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Subject Area: Political Theory
Topic: The American Revolution and Constitution

JAY TO ROBERT R. LIVINGSTON. [Private.] - John Jay, The Correspondence and Public Papers of John Jay, vol. 3 (1782-1793) [1891]

Edition used:

The Correspondence and Public Papers of John Jay, ed. Henry P. Johnston, A.M. (New York: G.P. Putnam’s Sons, 1890-93). Vol. 3 (1782-1793).

Part of: The Correspondence and Public Papers of John Jay, 4 vols.

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JAY TO ROBERT R. LIVINGSTON.

[Private.]

Passy, 19th July, 1783.

Dear Robert:

Our despatches by Barney must be ready the day after to-morrow. The many letters I have written and have still to write by him, together with conferences, company, etc., keep me fully employed. You will therefore excuse my not descending so much to particulars as both of us indeed might wish. As little that passes in Congress is kept entirely secret, we think it prudent at least to postpone giving you a more minute detail than you have already received, of the reasons which induced us to sign the provisional articles without previously communicating them to the French Minister. For your private satisfaction, however, I will make a few remarks on that subject.

Your doubts respecting the propriety of our conduct in that instance appear to have arisen from the following circumstances, viz.:

1st. That we entertained and were influenced by distrusts and suspicions which do not seem to you to have been altogether well founded.

2d. That we signed the articles without previously communicating them to this Court.

With respect to the first. In our negotiation with the British commissioner, it was essential to insist on, and, if possible, obtain, his consent to four important concessions.

1st. That Britain should treat with us as being what we were, viz., an independent people. The French Minister thought this demand premature, and that it ought to arise from, and not precede, the treaty.

2d. That Britain should agree to the extent of boundary we claimed. The French Minister thought our demands on that head extravagant in themselves, and as militating against certain views of Spain which he was disposed to favour.

3d. That Britain should admit our right in common to the fishery. The French Minister thought this demand too extensive.

4th. That Britain should not insist on our reinstating the tories. The French Minister argued that they ought to be reinstated.

Was it unnatural for us to conclude from these facts that the French Minister was opposed to our succeeding on these four great points, in the extent we wished? It appeared evident that his plan of a treaty for America was far from being such as America would have preferred; and as we disapproved of his model, we thought it imprudent to give him an opportunity of moulding our treaty by it. Whether the minister was influenced by what he really thought best for us, or by what he really thought would be best for France, is a question which, however easy or difficult to decide, is not very important to the point under consideration. Whatever his motives may have been, certain it is that they were such as opposed our system; and as in private life it is deemed imprudent to admit opponents to full confidence, especially respecting the very matters in competition, so in public affairs the like caution seems equally proper.

Secondly. But admitting the force of this reasoning, why, when the articles were completed, did we not communicate them to the French minister before we proceeded to sign them? For the following reasons:

The expectations excited in England by Lord Shelburne’s friends, that he would put a speedy period to the war, made it necessary for him either to realize those expectations or prepare to quit his place. The Parliament being to meet before his negotiations with us were concluded, he found it expedient to adjourn it for a short term, in hopes of then meeting it with all the advantages that might be expected from a favourable issue of the negotiation. Hence it was his interest to draw it to a close before that adjournment should expire; and to obtain that end, both he and his commissioner became less tenacious on certain points than they would otherwise have been. Nay, we have, and then had, good reason to believe that the latitude allowed by the British Cabinet for the exercise of discretion was exceeded on that occasion.

I must now remind you that the King of Great Britain had pledged himself, in Mr. Oswald’s commission, to confirm and ratify, not what Mr. Oswald should verbally agree to, but what he should formally sign his name and affix his seal to.

Had we communicated the articles, when ready for signing, to the French Minister, he doubtless would have complimented us on the terms of them; but, at the same time, he would have insisted on our postponing the signature until the articles then preparing between France, Spain, and Britain should also be ready for signing—he having often intimated to us that we should all sign at the same time and place.

This would have exposed us to a disagreeable dilemma. Had we agreed to postpone signing the articles, the British Cabinet might, and probably would, have taken advantage of it. They might, if better prospects had offered, have insisted that the articles were still res infectæ—that Mr. Oswald had exceeded the limits of his instructions—and, for both these reasons, that they conceived themselves still at liberty to depart from his opinions, and to forbid his executing, as their commissioner, a set of articles which they could not approve of.

It is true that this might not have happened, but it is equally true that it might; and therefore it was a risk of too great importance to be run. The whole business would, in that case, have been set afloat again; and the Minister of France would have had an opportunity, at least, of approving the objections of the British Court, and of advising us to recede from demands which in his opinion were immoderate, and too inconsistent with the claims of Spain to meet with his concurrence.

If, on the other hand, we had, contrary to his advice and request, refused to postpone the signing, it is natural to suppose that such refusal would have given more offence to the French Minister than our doing it without consulting him at all about the matter.

Our withholding from him the knowledge of these articles until after they were signed was no violation of our treaty with France, and therefore she has no room for complaint, on that principle, against the United States.

Congress had indeed made and published a resolution not to make peace but in confidence and in concurrence with France.

So far as this resolution declares against a separate peace, it has been incontestably observed; and, admitting that the words “in confidence and in concurrence with France” mean that we should mention to the French Minister and consult with him about every step of our proceedings, yet it is most certain that it was founded on a mutual understanding that France would patronize our demands, and assist us in obtaining the objects of them. France, therefore, by discouraging our claims, ceased to be entitled to the degree of confidence respecting them which was specified in the resolution.

It may be said that France must admit the reasonableness of our claims before we could properly expect that she should promote them. She knew what were our claims before the negotiation commenced, though she could only conjecture what reception they would meet with from Britain. If she thought our claims extravagant, she may be excusable for not countenancing them in their full extent; but then we ought also to be excused for not giving her the full confidence on those subjects, which was promised on the implied condition of her supporting them.

But Congress positively instructed us to do nothing without the advice and consent of the French Minister, and we have departed from that line of conduct. This is also true; but then I apprehend that Congress marked out that line of conduct for their own sake, and not for the sake of France. The object of that instruction was the supposed interest of America, and not of France; and we were directed to ask the advice of the French Minister because it was thought advantageous to our country that we should receive and be governed by it. Congress only, therefore, have a right to complain of our departure from the line of that instruction.

If it be urged that confidence ought to subsist between allies, I have only to remark that, as the French Minister did not consult us about his articles, nor make us any communication about them, our giving him as little trouble about ours did not violate any principle of reciprocity.

Our joint letter to you by Captain Barney contains an explanation of our conduct respecting the separate article.

I proceed now to your obliging letter of the 1st May, for which I sincerely thank you.

This will probably find you at Claremont. I consider your resignation as more reconcilable to your plan and views of happiness than to the public good. The war may be ended, but other difficulties of a serious nature remain, and require all the address and wisdom of our best men to manage.

As Benson informed you that my family had no present occasion for supplies from me, I am more easy on that head than I have been. I have some fear, however, that they may rather have been influenced to decline my offers by delicacy with respect to me, than by the ease of their circumstances. I wish you would take an opportunity of talking freely with my brother Peter on this subject. Assure him that it would distress me greatly were he, or indeed any of the family, to experience embarrassments in my power to obviate. He may share with me to the last shilling; and so may Nancy, about whom, until within a day or two, I had been very uneasy. Tell them and Frederick that I mean, if God pleases, to return next spring; and that one of the greatest blessings of my life will be that of rendering it subservient to their ease and welfare. I write to Frederick by this opportunity, and authorize him to draw upon me for £150, New York money, to be divided between the three. If, on conversing with Peter, you should find it to be more convenient to him, be pleased to supply it, and draw upon me for the amount at thirty days’ sight.

I have lately heard of Mr. Kissam’s death. It affected me much. He was a virtuous and agreeable man, and I owed him many obligations.

Thinking of Mr. Kissam’s family calls to my mind the fate of the tories. As far as I can learn, the general opinion in Europe is that they have reason to complain, and that our country ought to manifest magnanimity with respect to them. Europe neither knows nor can be made to believe what inhuman, barbarous wretches the greater part of them have been, and therefore is disposed to pity them more than they deserve. I hope, for my part, that the States will adopt some principle of deciding on their cases, and that it will be such a one as, by being perfectly consistent with justice and humanity, may meet with the approbation, not only of dispassionate nations at present, but also of dispassionate posterity hereafter. My opinion would be to pardon all except the faithless and the cruel, and publicly to declare that by this rule they should be judged and treated. Indiscriminate severity would be wrong as well as unbecoming; nor ought any man to be marked out for vengeance merely because, as King James said, he would make a bonnie traitor. In short, I think the faithless and cruel should be banished for ever, and their estates confiscated; it is just and reasonable. As to the residue, who have either upon principle openly and fairly opposed us, or who, from timidity, have fled from the storm and remained inoffensive, let us not punish the first for behaving like men, nor be extremely severe to the latter because nature had made them like women.

I send you a box of plaster copies of medals. If Mrs. Livingston will permit you to keep so many mistresses, reserve the ladies for yourself, and give the philosophers and poets to Edward.

Now for our girls; I congratulate you on the health of the first, the birth of the second, and the promising appearance of both. I will cheerfully be godfather to the latter; what is her name?

Our little one is doing well. If people in heaven see what is going on here below, my ancestors must derive much pleasure from comparing the circumstances attending the expulsion of some of them from this country, with those under which my family has been increased in it.

Since my removal to this place, where the air is remarkably good, the pain in my breast has abated, and I have now no fever. Mrs. Jay is tolerably well. Assure Mrs. Livingston and our other friends with you of our regard.

I am, your affectionate friend,

John Jay.