probable that the application of that theory to
circumstances would be a very nice and perplexing
task. It strongly behooved a new country to pre
serve its good name and its friendships.
If Fox had been able to carry his point, matters
might have moved more expeditiously. But pend
ing the struggle between him and Shelburne no
advance could be made at Paris. Grenville and
Oswald could not work in unison. Franklin and
de Vergennes became puzzled and suspicious, hav
ing only an imperfect inkling by report and gossip
concerning the true state of affairs. They sus
pected, with good show of evidence, that the real
object of English diplomacy was to drive in a
wedge between the allies. Amid these perplexi
ties, on April 22, Franklin wrote to Jay, begging
him to come to Paris: "Here you are greatly
wanted, for messengers begin to come and go,
. . . and I can neither make nor agree to condi
tions of peace without the assistance of my col
leagues. ... I wish therefore you would . . .
render yourself here as soon as possible. You
PEACE NEGOTIATIONS 371
would be of infinite service." Jay arrived on
June 23, to Franklin s "great satisfaction," and
the meeting was cordial. Jay was thirty-seven
years old, and Franklin was seventy-six, but Jay
says: "His mind appears more vigorous than that
of any man of his age I have known. He cer
tainly is a valuable minister and an agreeable
companion."
The deadlock continued. Grenville showed a
commission to treat with France and "any other
prince or state." But the "enabling act," giving
the king authority to acknowledge the independ
ence of the States, had not yet been passed by
Parliament; and it did not appear that England
recognized the ex-colonies as constituting either
a prince or a state. Oswald had no commission
at all. Franklin, though he found himself "in
some perplexity with regard to these two negotia
tions," strove to set things in motion. He pre
ferred Oswald to Grenville, and intimated to Lord
Shelburne his wish that Oswald should receive
exclusive authority to treat with the American
commissioners. He at the same time suggested
sundry necessary articles to be disposed of by the
treaty, namely : independence, boundaries, and the
fisheries; and sundry advisable articles, namely:
an indemnity to be granted by England to the
sufferers by the war; an acknowledgment of her
error by England, and the cession of Canada.
But the duel between Shelburne and Fox must
first be settled, and it was now about to be settled
372 BENJAMIN FRANKLIN
suddenly and in an unexpected manner. On July
1, 1782, Lord Kockingham died, and the crown,
as Walpole facetiously remarked, thereby de
scended to the king of England. The monarch
at once, though very reluctantly, requested Shel-
burne to accept the post of prime minister, regard
ing him as in some degree less obnoxious than
Fox. Thereupon Fox and his friends retired in
high dudgeon from office, and Grenville promptly
asked to be recalled. His opportune request was
granted very readily, and his place was given to
Fitzherbert, who brought personal letters to Frank
lin, but who was not accredited to treat with the
States. It seemed that this business was now
again to fall into the hands of Oswald, and ac
cordingly, though he still remained without any
definite authority, active discussion was resumed
between him and Franklin. Early in August
both believed that an understanding upon all im
portant points had been reached. Jay had been
ill almost ever since his arrival in Paris, and was
only now recovering; Adams was still in Holland;
so that Franklin and Oswald had had the whole
matter between themselves.
Just at this time Parliament rose; and Shel-
burne sent Vaughan to Paris to give private as
surance to Franklin that there would be no change
in policy towards America. A commission was
at the same time drawn up and sent to Oswald
empowering him to treat with commissioners of
the "colonies or plantations, and any body or
PEACE NEGOTIATIONS 373
bodies corporate or politic, or any assembly or
assemblies." This singular phraseology at once
produced trouble. Jay indignantly repudiated the
colonial condition imputed by this language, and
resolutely said that independence must be no item
in any treaty, but must be recognized before he
would even begin to treat. The point was dis
cussed by him with de Vergennes and Franklin.
The French minister at first had "objected to
these general words as not being particular
enough;" but now he changed his mind and ad
vised not to stickle; for independence must be
the result of the treaty, and it was not to be
expected that the effect should precede the cause.
Franklin, with evident hesitation and reluctance, 1
gave his opinion that the commission "would do."
Oswald then showed his instructions, which di
rected him to concede "the complete independence
of the thirteen States." Unfortunately the en
abling act had not even yet passed, so that there
was some doubt as to the power of the ministers
to agree to this. Jay s determination remained
unchanged; for he suspected that the motives of
de Vergennes were not disinterested, and thought
that Franklin was hoodwinked by his French pre
dilections. Franklin, on the other hand, thought
that the minister wished only to expedite the
negotiation as much as possible, a matter in which
he himself also was very zealous; for he under
stood the English political situation and knew
1 Franklin s Works, viii. 99, 101, 150, note.
374 BENJAMIN FRANKLIN
that Shelburne s tenure of power was precarious,
and that any possible successor of Shelburne would
be vastly less well-disposed to the States. This
induced him to stretch a point in order to go
on with the treating. Parliament was to meet
on November 26, and unless peace could be con
cluded before that time, the chance for it there
after would be diminished almost to the point of
hopelessness. But Adams wrote from Holland
that he also disapproved the unusual form of the
commission, though a commission to treat with
envoys of "the United States of America" would
satisfy him, as a sufficient implication of independ
ence without an explicit preliminary acknowledg
ment of it.
About the middle of August Jay drew up a
letter, suggesting very ingeniously that it was
incompatible with the dignity of the king of
England to negotiate except with an independent
power; also that an obstacle which meant every
thing to the States, but nothing to Great Brit
ain, should be removed by his majesty. Franklin
thought that the letter expressed too positively
the resolve not to treat save upon this basis of
pre-acknowledged independence. He evidently
did not wish to bolt too securely the door through
which he anticipated that the commissioners might
in time feel obliged to withdraw. Moreover Jay
thought that at this time "the doctor seemed to
be much perplexed and fettered by our instruc
tions to be guided by the advice of this court,"
PEACE NEGOTIATIONS 375
a direction correctly supposed to have been pro
cured by the influence of the French envoy at
Philadelphia.
Jay s suspicions concerning the French minister
happened now to receive opportune corroboration.
On September 4 Kayneval, secretary to de Ver-
gennes, had a long interview with Jay concerning
boundaries, in which he argued strongly against
the American claims to the western lands lying
between the Alleghanies and the Mississippi.
This touched Jay nearly, for the navigation of the
Mississippi was the one object which he had espe
cially at heart. Six days later the famous letter
of Marbois, de la Luzerne s secretary, which had
been captured en route from Philadelphia to
de Vergennes at Paris, was put into the hands
of Jay through the instrumentality of the English
cabinet. This outlined a scheme for a secret
understanding between England and France to
deprive the Americans of the Newfoundland fish
eries. This evidence seemed to prove Jay s case;
yet Franklin remained strangely unshaken by it,
for he reflected that it came from the British
ministry and was infected with suspicion by this
channel. But still another occurrence came to
strengthen Jay s conviction of some latent hos
tility in the French policy, for he learned that
Eayneval was making a rapid and secret journey
to London. He felt sure that this errand was to
intimate to Shelburne that France did not incline
to support the demands of her American allies.
376 BENJAMIN FRANKLIN
In the fullness of his faith he took a courageous,
very unconventional, but eminently successful
step. He persuaded Vaughan to hasten to Lon
don, and to present sundry strong arguments
going to show that it was the true policy of Eng
land to grant the demands of the States rather
than to fall in with the subtle plans of France.
He felt with regret that he could not consult
Franklin regarding this proceeding, which he un
dertook upon his own sole responsibility. It put
Shelburne in a singular position, as arbiter be
tween two nations enemies of England and allies
of each other, but each manoeuvring to secure its
own advantage at the cost of its friend, and to
that end presuming to advise him upon English
interests. He did not ponder long before accept
ing the American arguments as the better, and
deciding that the English policy was rather to be
liberal towards a kindred people than to unite
with a traditional foe in curtailing their pro
sperity. He said to Vaughan: " Is the new com
mission necessary?" "It is," replied Vaughan;
and his lordship at once gave orders for making
it out. Had he fallen in with the French ideas,
he would, upon the contrary, have cherished this
disagreement for a while, in order finally to sell
out a concession on this point at the price of some
such substantial matter as the fisheries or the
western lands. Forthwith Vaughan was on his
way back to Paris, accompanied by a messenger
who carried the amended document empowering
PEACE NEGOTIATIONS 377
Oswald to treat with the commissioners of the
"Thirteen United States of America, viz.: New
Hampshire," etc., naming them all. "We have
put the greatest confidence, I believe, ever placed
in man, in the American commissioners. It is
now to be seen how far they or America are to
be depended upon. . . . There never was such
a risk run ; I hope the public will be the gainer,
else our heads must answer for it, and deservedly."
Such were the grave and anxious words of the
prime minister.
Upon the receipt of this commission negotia
tions were actively resumed, Franklin and Jay
on one side, Oswald alone on the other. The old
ground was gone over again. On October 5-8,
both parties assented to a sketch of a treaty,
which Oswald transmitted to London for consid
eration by the ministry. But the raising of the
siege of Gibraltar, and reflection upon the prob
able results of the incipient estrangement between
American interests and those of France and Spain,
now induced the English to hope for more favor
able terms in some particulars. So instead of
adopting this draft they sent over Mr. Strachey,
a man especially well informed concerning the dis
puted boundaries, to reinforce Oswald in an effort
to obtain modifications on these points.
Meantime another serious difference of opinion
was developed between Franklin and Jay. The
influence of de Vergennes at Philadelphia had
by no means been exhausted in securing colleagues
378 BENJAMIN FRANKLIN
for Mr. Adams. He had further desired to have
the American envoys instructed that no American
demands outside of independence must be allowed
to interpose obstacles in the way of French pur
poses. In this he had been wholly successful.
Of the demands which Congress had at first
intended to insist upon, one after another was
reduced to a mere recommendation, until at last
independence alone was left as an absolute and
definitive ultimatum. Moreover the closing para
graph of the instructions actually bade the envoys
to maintain constant communication with their
generous ally the king of France, and in the last
resort to be governed in all matters by his advice.
This servility had raised the ire of Jay almost to
the point of inducing him to refuse a post so
hedged around with humiliation. With his views
concerning the intentions of de Vergennes it now
seemed to him intolerable to jeopard American
interests by placing them at the mercy of a cabinet
which unmistakably, as it seemed to him, designed
to sacrifice them to its own ends. Accordingly
he was for disobeying this unworthy instruction
of Congress, and for conducting the negotiation in
strict secrecy as towards the French minister.
But Franklin was no less resolute on the other
side. His established and grateful confidence in
de Vergennes remained unshaken, and he saw no
error in consulting the wisest, and by all proofs
the best and truest friend whom the States had
ever had. Moreover he saw that the orders of
PEACE NEGOTIATIONS 379
Congress were imperative. It was a serious di
vision. Fortunately it was soon settled by the
advent of John Adams, about the end of October.
That gentleman, prompt, fearless, and suspicious,
at once fell in with Jay s views. In a long even
ing s talk he apparently read Franklin a pretty
severe lecture, and certainly ranged himself very
positively on Jay s side. Franklin listened to
his vehement colleague, and at the moment held
his peace in his wise way. It was true that
Adams brought the casting vote, though Franklin
of course might resist, and could make his resist
ance effectual by communicating to de Vergennes
all which passed, and in so doing he would be
backed by the authority and orders of Congress.
But he determined not to pursue this course.
When next they all met for conference he turned
to Jay and said : " I am of your opinion, and will
go on without consulting this court." This was
all that passed when thus for a second time Frank
lin surrendered. Nothing indicates by what mo
tives he was influenced. Some writers suggest
that he had a lurking notion that Jay s views
were not altogether ill founded; but later he de
clared the contrary. 1 Others fancy that he sim
ply yielded to a majority vote. To me it seems
more probable that, weighing comparative impor
tance, he gave in to what he conceived to be
the supreme necessity of advancing to a speedy
conclusion; for, as has been said, he keenly appre-
1 Franklin s Works, viii. 305, 306.
380 BENJAMIN FRANKLIN
ciated that time was pressing. Parliament was
to meet in a few weeks, on November 26, and it
daily became more evident that if a treaty was to
be made at all, it must be consummated before
that date. Now, as in the question concerning
the preliminary acknowledgment of independence,
peace overruled all considerations of minor points.
If this was indeed his end, he achieved it, for
negotiations were now zealously pushed. The
important question of the western boundaries and
the navigation of the Mississippi was the especial
concern of Jay. Spain covertly wished to see the
States worsted upon these demands, and confined
between the Alleghanies and the sea; and the
Bourbon family compact influenced France to con
cur with the Spanish plans. But in the secret
treating Jay prevailed. The fisheries were the
peculiar affair of Adams, as the representative of
New England. France would fain have had the
States shut out from them altogether; but Adams
carried the day. Some concessions were made
concerning the collection of debts owing in the
States to Englishmen, and then there remained
only the matter of indemnification to American
royalists. Upon this the fight was waged with
zeal by all; yet Franklin had the chief responsi
bility to bear. For there now arose to plague him
that unfortunate proposition of his for the cession
of Canada and the restoration of confiscated Tory
property in the States. This encouraged the Eng
lish and gave them a sort of argument. Moreover
PEACE NEGOTIATIONS 381
the indemnification was "uppermost in Lord Shel-
burne s mind," because, unlike other matters, it
seemed a point of honor. With what face could
the ministry meet Parliament with a treaty desert
ing all those who had been faithful to their king?
It was indeed a delicate position, and the English
were stubborn; but 110 less so was Franklin, upon
the other side. With the great province of Can
ada as an offset, or quasi fund, the States might
have assumed such an obligation, but without it,
never. Further the American commissioners reit
erated the explanation often given: that Con
gress had no power in the premises, for the matter
lay within the sovereign jurisdiction of each State.
This argument, however, really amounted to no
thing; for if the fact was so, it behooved the States
to give their agent, the Congress, any power that
was necessary for making a fair treaty; and Eng
land was not to be a loser by reason of defects in
the American governmental arrangements. For
a while it really seemed that the negotiation would
be wrecked upon this issue, so immovable was
each side. As Vaughan wrote: "If England
wanted to break, she could not wish for better
ground on her side. You do not break, and
therefore I conclude you both sincere. But in
this way I see the treaty is likely of itself to
break."
Franklin now ingeniously counteracted his ear
lier imprudence by reviving an old suggestion of
his, that immense claims might be preferred
382 BENJAMIN FRANKLIN
against England on behalf of Americans whose
property had been wantonly destroyed, especially
by the burning and plundering of towns, and he
actually presented an article providing for such
compensation, and an elaborate written paper
sustaining it. 1 At last the Englishmen sought
final instructions from Lord Shelburne. He re
plied with spirit that it should be understood that
England was not yet in a position to submit to
"humiliation," least of all at the hands of Ameri
cans; but finally he so far yielded as to say that
indemnification need not be absolutely an ultima
tum. This settled the matter; the negotiators
who could yield must yield, and they did so. A
sort of compromise article was inserted: "that
Congress should recommend to the state legisla
tures to restore the estates, rights, and properties
of real British subjects." The American envoys
knew that this was worthless, and the English
negotiators certainly were not deceived. But the
article sounded well, and gave at least a standing
ground for the ministry to defend themselves. 2
1 Franklin s Works, viii. 218, text and note.
2 It is not without interest in this connection to remark that
Franklin was very ill disposed towards the "loyalists," having
scant toleration for their choice of a party. For a man of his
liberality and moderation his language concerning them was
severe. He objected to calling them "loyalists," thinking " roy
alists " a more correct description. To indemnification of their
losses by Parliament he had " no objection," for the damnatory
reason that " even a hired assassin has a right to his pay from
his employer." Franklin s Works, ix. 183. He often spoke in
the like tone about these people. See, for exajmple, Works, ix.
PEACE NEGOTIATIONS 383
On November 30 the articles were at last signed,
with the stipulation that they were for the present
merely preliminary and provisional, and that they
should be executed as a definitive treaty only
simultaneously with the execution of a treaty of
peace between France and England.
The business was finished none too soon. In
order to cover it the meeting of Parliament had
been postponed until December 5. The danger
which had been escaped, and which would not
have been escaped had Franklin had a less correct
appreciation of relative values in the negotiation,
at once became apparent. The howl of condem
nation swelled loud in the House of Commons; it
was felt that the ministry had made not a treaty
but a "capitulation." The unfortunate Shelburne
was driven out of power, pursued by an angry
outcry from persons altogether incapable of appre
ciating the sound statesmanship and the wise fore
cast of the future advantage of England which he
had shown in preferring to give the colonies a
chance to become a great, English-speaking, Eng
lish-sympathizing, commercial people, rather than
to feed fat the aspirations of France and Spain.
These proceedings would have been good evidence,
had evidence been wanting, that the American
commissioners had done a brilliant piece of work.
De Vergennes also added his testimony, saying:
70, 72. But when the war was over and the natural mildness of
his disposition could resume its sway, he once at least spoke more
gently of them. Ibid. 415.
384 BENJAMIN FRANKLIN
"The English have bought the peace rather than
made it."
If the original instructions given to Oswald
are compared with the treaty it will be found that
England had conceded much; on the other hand
the Americans, with no ultimatum save independ
ence, had gained in substance all that they had
dared seriously to insist upon. One would think
that Franklin, Jay, and Adams had fairly won
warm gratitude at the hands of their countrymen.
Posterity, at least since the publication of long
suppressed private papers and archives has shown
what powerful occult influences were at work to
thwart them, regards their achievement with un
limited admiration. But at that time a different
feeling prevailed.
No sooner were the preliminary or provisional
articles signed than Franklin informed de Ver-
gennes of the fact. That minister was much sur
prised. He had been quietly biding his time,
expecting to be invoked when the English and the
Americans should find themselves stopped by that
deadlock which he had done his best to bring
about by his secret intimations to England. He
was now astonished to learn that England had not
availed herself of his astute suggestions, but had
given terms which the Americans had gladly ac
cepted. The business was all done, and the clever
diplomat had not had his chance. At first he said
nothing, but for a few days pondered the matter.
Then on December 15 he disburdened his mind
PEACE NEGOTIATIONS 385
in a very sharp letter to Franklin. "I am at a
loss," lie wrote, "to explain your conduct and
that of your colleagues on this occasion. You
have concluded your preliminary articles without
any communication between us, although the in
structions from Congress prescribe that nothing
shall be done without the participation of the
king. You are about to hold out a certain hope
of peace to America, without even informing your
self of the state of the negotiation on our part.
You are wise and discreet, sir; you perfectly
understand what is due to propriety; you have
all your life performed your duties; I pray you
consider how you propose to fulfill those which
are due to the king."
Franklin found himself in a painful position;
for he could by no means deny that he had duties,
or at least something very near akin to duties,
to the king, imposed upon him by numerous and
weighty obligations which at his request had been
conferred upon him and accepted by him on behalf
of the American people. The violation of the
instructions of Congress gave to the secret treating
too much the air of an insulting distrust, of the
throwing over a friend when he had been suffi
ciently used; for whatever might be suspected,
it could by no means be proved that de Vergennes
was not still the sincere friend which he certainly
long had been. This bore hard upon Franklin.
The policy which in fact had been forced upon
him against his will by his colleagues was now
386 BENJAMIN FRANKLIN
made a matter of personal reproach against him
especially, because he was persistently regarded as
the head and front of the commission; no Euro
pean yet dreamed of considering any other Ameri
can as of much consequence in any matter in
which Franklin was concerned. During long-
years de Vergennes had been his constant and
efficient adviser and assistant in many a day of
trial and of stress, and Franklin believed him to
be still an honest well-wisher to the States. More
over it actually was only a very few weeks since
Franklin had applied for and obtained a new loan
at a time when the king was so pressed for his
own needs that a lottery was projected, and bills
drawn by his own officials were going to protest.
All this made the secrecy which had been prac
ticed seem almost like duplicity on Franklin s
part, and he felt keenly the ill light in which he
was placed. It is true that if he had known then