The Diplomatic Correspondence of the American Revolution Volume VIII Part 20

"The respect due to your Excellency's judgment, our confidence in the friendship of our good and great ally, and the tenor of our instructions from Congress, all conspire to urge us to lay before your Excellency a full state of the facts and circ.u.mstances, which create our objections to treating with Mr Oswald under the commission in question.

"We flatter ourselves, that in the course of this discussion, some light will be cast upon the subject, and it gives us pleasure to reflect, that our objections will be reviewed by a Minister, possessed of candor to acknowledge their force on the one hand, and talents to detect and discover to us their fallacy on the other.

"It appears to us unnecessary to premise, that on the 4th day of July, 1776, the representatives of the then late Thirteen United Colonies, in Congress a.s.sembled, did in the name and by the authority of the good people of those Colonies, and for the reasons in that act specified, 'solemnly publish and declare, that the said United Colonies were and of right ought to be _free and independent States_, that they were absolved from all allegiance to the British Crown, and that all political connexion between them and the State of Great Britain was and ought to be totally dissolved; and that as _free and independent States_, they had _full power_ to levy war, _conclude peace_, contract alliances, establish commerce, and to do all other acts and things, which independent nations might of right do. And for the support of that declaration, with a firm reliance on the protection of Divine Providence, they did mutually pledge to each other their lives, their fortunes, and their _sacred honor_.'

"This declaration was immediately ratified by legislative acts of the different States, all of whom have ever since so uniformly abided by it, that the authority of the King of Great Britain has never from that day to this extended over more ground in that country, than was from time to time under the feet of his armies.

"The United States also bound themselves to each other by a solemn act of confederation and perpetual union, wherein they declare, 'that the style of the Confederacy should be, _the United States of America_,'

and by it they vested _in Congress_ the sole and _exclusive_ right and power of determining on _peace_ and war, of sending and receiving Amba.s.sadors, and entering into _treaties_ and alliances.

"Thus becoming of right, and being in fact free, sovereign and independent States, their representatives in Congress did on the 15th day of June, 1781, grant a commission to certain gentlemen (of whom we are two) _in their name_ to confer, treat, and conclude, with the Amba.s.sadors, Commissioners, &c. _vested with equal powers_ relating to the re-establishment of peace, &c.

"On the 25th of July 1782, his Britannic Majesty issued a commission under the great seal of his kingdom to Richard Oswald, reciting in the words following, 'that whereas by an act pa.s.sed in the last session of Parliament, ent.i.tled, "An Act to enable his Majesty to conclude a peace or truce with certain Colonies in North America," therein mentioned, it recited, that it is essential to the _interest, welfare, and prosperity_ of Great Britain, and the _Colonies or Plantations_ of New Hampshire, Ma.s.sachusetts Bay, &c. (naming the thirteen) that peace, intercourse, trade, and commerce, should be restored between them, therefore, and for a full manifestation of our earnest wish and desire; and of that of _our Parliament_, to put an end to the calamities of war, it is enacted, that it should and might be lawful for us to treat, consult of, agree and conclude with any Commissioner or Commissioners, named or to be named, _by the said Colonies or Plantations_, or with any body or bodies, corporate or politic, or any a.s.sembly or a.s.semblies, _or description of men or any person whatsoever_, a peace or truce with the said Colonies or Plantations, _or any of them_, or any _part or parts thereof_, any law, act or acts of Parliament, matter or thing to the contrary in anywise notwithstanding.' The commission then proceeds to appoint and authorise Mr Oswald to treat &c. in _the very words of the act_.

"We do not find ourselves described in this commission as the persons with whom Mr Oswald is authorised to treat.

"Nations, particularly corporations, mercantile companies, and indeed every private citizen, in every country, have their t.i.tles, their styles, their firms, and their additions, which are necessary to their being known in the law; that is to say, the law of nations requires, that national acts shall give to every sovereign and nation its proper political name or style, in the same manner as the munic.i.p.al law of the land will only take notice of corporations, companies, and even private citizens by their proper names and legal descriptions.

"When the United States became one of the nations of the earth, they published the style or name, by which they were to be known and called, and as on the one hand they became subject to the law of nations, so on the other they have a right to claim and enjoy its protection, and all the privileges it affords.

"Mr Oswald's commission is a formal, national act, and no nation not mentioned or properly described in it can consider him properly authorised to treat with them. Neither the United States of America, nor Commissioners appointed by _them_, are mentioned in it, and, therefore, we _as their servants_ can have no right to treat with him.

"We are apprised the word _Colonies_ or Plantations of New Hampshire, &c. in _North America_, convey to the reader a geographical idea of the country intended by the commission, and of the manner of its first settlement, but it conveys no political idea of it, except perhaps a very false one, viz. as dependent on the British Crown; for it is to be observed, that the words _Colonies or Plantations_ have constantly been used in British acts of Parliament, to describe those countries while they remained subject to that Crown, and the act holds up that idea in a strong point of light when it declares, _that it is essential to the interest, welfare, and prosperity of the Colonies or Plantations_ of New Hampshire, &c. that peace, &c. should be restored, &c. For as independent States our interests, welfare, and prosperity, were _improper objects for the Parliamentary discussion and provision of Great Britain_.

"The United States cannot be known, at least to their Commissioners, by any other than _their present, proper, political name_, for in determining whether Mr Oswald's commission be such as that we ought to treat with him under it, we must read it with the eyes, and decide upon it with the judgment of _American Ministers_, and not of private individuals.

"But admitting that the studied ambiguity of this commission leaves every reader at liberty to suppose, that we are or are not comprehended in it, nay supposing it to be the better construction, that we are, still in our opinion it would ill become the dignity of Congress to treat with Mr Oswald under it.

"It is evident, that the design of the commission was, if possible, to describe the United States, the Congress, and their Commissioners, by such circ.u.mlocutory, equivocal, and undeterminate words and appellations, as should with equal propriety apply to the Thirteen States considered as British Colonies and territories, or as independent States, to the end, that Great Britain might remain in a capacity to say, that they either had the one or the other meaning, as circ.u.mstances and convenience might in future dictate.

"As Congress have no doubts of their own independence, they cannot with propriety sanctify the doubts of others, and, therefore, cannot admit the sufficiency or decency of any commission that contains them.

"It being well known, that the United States have vested in Congress the exclusive right to make peace, this commission, by authorising Mr Oswald to treat with them _separately_, and even with parts of them, and with any person or persons whatsoever, offers such open and direct violence to the honor and prerogatives of Congress, as to be better calculated to excite their resentment than their acquiescence. Nor can we conceive it very decent in Great Britain to expect that Congress, after having so long firmly and uniformly maintained the rights of independence, should now consent to deviate from that character by negotiating with her for peace, in any other capacity than the one in which they have carried on the war with her.

"It seems agreed on all hands, that the commission does not acknowledge us to be independent, and though the King of Great Britain consents to make it the _first article_ of the proposed treaty, yet, as neither the first nor the last article of the treaty can be of validity till the conclusion of it, can it be reasonably expected, that we should consent to be viewed during all that interval as British subjects, there being no middle capacity or character between subjection and independence? Neither Congress nor their servants, if so inclined, have a right to suspend the independence of the United States for a single moment, nor can the States themselves adopt such a measure, while they remember the solemn manner in which they pledged to each other their lives, their fortunes, and their _sacred honor_, to support their independence.

"It gives us pleasure to find that these inferences and conclusions from the general nature and rights of independence, stand confirmed by the express acts and declarations of Congress on the subject, and in whatever view these acts may be regarded by others, they must be considered as authoritative by their servants.

"So early as the 17th of July, 1776, Congress resolved, 'that General Washington, in refusing to receive a letter said to be sent by Lord Howe, addressed to "George Washington, Esq." acted with a dignity becoming his station, and, therefore, that this Congress do highly approve the same, and _do direct_ that no letter or message be received on any occasion whatever from the enemy by the Commander in Chief, or others, the commanders of the American army, but such as shall be directed to them in the characters they respectively sustain.'

"We conceive that the reason of this resolution extends with at least equal force to _civil_ officers, and particularly to Commissioners appointed to treat of peace with Great Britain.

"On the 5th of September, 1776, Congress resolved, 'that General Sullivan be requested to inform Lord Howe, that this Congress, _being the representatives of the free and independent States of America_, cannot with propriety send any of its members to confer with his Lordship in their _private_ characters, but that ever desirous of establishing peace on reasonable terms, they will send a committee of their body to know whether he has any authority to treat with persons _authorised by them_ for that purpose in behalf of _America_, and what that authority is; and to hear such propositions as he shall think fit to make respecting the same; that the President write to General Washington and acquaint him, that it is the opinion of Congress, no proposals for making peace between Great Britain and the United States of America _ought to be received or attended to_, unless the same be made in writing, and addressed to the representatives of the said States in Congress, or _persons authorised by them_, and if application be made to him by any of the commanders of the British forces on that subject, that he inform them, that these United States, who entered into the war only for the defence of their lives and liberties, will cheerfully agree to peace on reasonable terms, _whenever such_ shall be proposed to them in MANNER AFORESAID.'

"These resolutions were pa.s.sed at a time when the United States had formed no alliances, and when a formidable and hostile army had just arrived to invade their country. If such, therefore, were their sentiments, and such their resolutions at so early, so dangerous, and doubtful a period, there certainly is reason to presume, that the fort.i.tude which influenced them has not been abated by the present aspect of their affairs.

"On the 22d of November, 1777, Congress resolved, 'that all proposals of a treaty between the King of Great Britain or any of his Commissioners and the United States, _inconsistent with the independence_ of the said States, or with such treaties or alliances as may be formed under their authority, _will be rejected by Congress_.'

"We cannot consider the present proposals to treat with us in a character _below independence to be consistent with it_.

"Among other objections _unanimously_ made by Congress, on the 22d of April, 1778, to certain bills of the British Parliament, then about to be pa.s.sed into laws to enable the King of Great Britain to appoint Commissioners to treat, &c. is the following, viz.

'Because the said bill purports, that the Commissioners therein mentioned may treat with _private individuals_, a measure highly derogatory to _national honor_.'

"Mr Oswald's commission contains a similar clause, and, consequently, is liable to the same objection.

"The Congress did also, on the same day, _unanimously_ declare, 'that these United States cannot with propriety hold any conference or treaty _with any Commissioners_ on the part of Great Britain, unless they shall _as a preliminary thereto_, either withdraw their fleets and armies, or else _in positive and express terms acknowledge the independence of the said States_.' Neither of these alternatives have as yet been complied with.

"On the 6th of June, 1778, the Congress ordered their President to give an answer in the following words to the Commissioners appointed under the British acts of Parliament beforementioned, viz.

'My Lord,

'I have had the honor to lay your Lordship's letter of May the 27th, with the acts of the British Parliament enclosed, before Congress, and I am instructed to acquaint your Lordship, that they have already expressed their sentiments upon bills not essentially different from those acts, in a publication of the 22d of April last.

'Your Lordship may be a.s.sured, that when the King of Great Britain shall be seriously disposed to put an end to the unprovoked and cruel war waged against these United States, Congress will readily attend to such terms of peace as may consist with the _honor of independent nations_, the interest of their const.i.tuents, and the sacred regard they mean to pay to treaties.'

"The honor of an _independent nation_ forbids their treating in a _subordinate_ capacity.

"On the 17th of June, 1778, Congress in another letter to the same Commissioners, _unanimously_ join in saying;

'Nothing but an earnest desire to spare the further effusion of human blood could have induced them to read a paper containing expressions so disrespectful to his Most Christian Majesty, the good and great ally of these States, or to _consider_ propositions so derogatory to the honor of an independent nation.

'The acts of the British Parliament, the commission from your sovereign, and your letter, suppose the people of these States to be subjects of the Crown of Great Britain, and are founded on an _idea of dependence_, which is utterly _inadmissible_.

'I am further directed to inform your Excellencies, that Congress are inclined to peace, notwithstanding the unjust claims from which this war originated, and the savage manner in which it has been conducted.

They will therefore be ready to enter _upon the consideration_ of a treaty of peace and commerce, not inconsistent with treaties already subsisting, _when_ the King of Great Britain shall demonstrate a sincere disposition for that purpose. The only solid proof of this disposition will be an explicit acknowledgment of the independence of these States, or the withdrawing his fleets and armies.'

"On the 11th of July, 1778, the British Commissioners again endeavored to prevail upon Congress to treat with them on the humiliating idea of dependence. And on the 18th day of the same month, Congress came to the following resolution, viz.

'Whereas Congress, in a letter to the British Commissioners of the 17th of June last, did declare that they would be ready to _enter into the consideration_ of a treaty of peace and commerce not inconsistent with treaties already subsisting, _when_ the King of Great Britain should demonstrate a sincere disposition for that purpose, and that the only solid proof of this disposition would be an _explicit acknowledgment of the independence_ of these States, or the withdrawing his fleets and armies; and whereas neither of these alternatives have been complied with, therefore resolved, that no answer be given to the letter of the 11th instant from the British Commissioners.'

"We find Congress still adhering to the same resolutions and principles, and in pursuance of them lately directing General Washington to refuse Sir Guy Carleton's request of a pa.s.sport for one of his family to carry despatches from him to Congress. The late resolutions of the different States on that occasion show how exactly the sense of the people at large corresponds with that of their representatives in Congress on these important points.

"To our knowledge, there is not a single instance in which Congress have derogated from the practice and conduct of an independent nation.

All their commissions, as well _civil_ as _military_, are and always have been in that style. They have treated with France and the States-General of the United Provinces, and those powers have treated with them on an equal footing. What right, therefore, can Britain have to demand, that we should treat in a different manner with her? Or with what propriety can we pay marks of respect and reverence to our enemies, which we never have paid to our friends; friends too, who are at least equal to her in power and consideration; nor can we forbear observing, that the second article of our treaty of alliance with his Most Christian Majesty declares, 'That the essential and direct end of the present defensive alliance is, to maintain effectually the _liberty, sovereignty, and independence, absolute and unlimited_, of the said United States, as well in matters of _government_ as of commerce.'

"Hence it appears, that not only the regard due to our own dignity, but also to the dignity of our great ally, and the faith of treaties, forbid our receding in the least from the rights of _that sovereignty and independence_, the support of which forms the _direct end_ of our alliance.

"But although the United States as an independent nation can regard Great Britain in no other light, than they would any other Kingdom or State with whom they may be at war, yet we can easily perceive that Great Britain has stronger objections than other nations can have to treating with us as _independent_. But these objections, however strong, are more proper subjects for their deliberations whom they affect, than for ours, whom they do not respect. Britain may amuse herself with, and therefore be embarra.s.sed by doubts of our t.i.tle to independence, but we have no such doubts, and therefore cannot be perplexed or influenced by them.

"Other nations owe their origin to causes similar to those which gave birth to ours, and it may not be useless to inquire how they conducted themselves under similar circ.u.mstances.

"The tyranny of Philip II of Spain made his subjects in the Low Countries declare themselves independent; a long and cruel war ensued, which was suspended by a truce for twelve years, and afterwards concluded by a definitive treaty of peace.

"History bears honorable testimony to the wisdom and fort.i.tude of that nation during that interval, and we think the following detail is so interesting, and so applicable to the case of our country in general, and particularly to the point in question, that we cannot forbear requesting your Excellency to peruse it.

"On the 26th of July, 1581, the United Provinces, by a formal act, declared that Philip II had forfeited his right to the sovereignty of those Provinces, and that consequently they were independent.