We may now stop to consider whether Jay was justified in the stand he took, and particularly whether his suspicions of French faith were well-founded. His refusal to accept Oswald's original commission and to treat for an acknowledgment of independence was probably wise. It amounted to a declaration that America should be treated with as an independent power, and that independence need not be considered in the negotiations as the price of peace.
Too much can be made of this episode, for that America really secured better terms simply because her independence was acknowledged before treating may well be doubted. On the other hand, Jay was right, because he was technically so, but chiefly because an evidence of weakness would have damaged his cause. A dignified objection to being considered a delegate from rebellious colonies rather than a plenipotentiary from sovereign states was natural, legitimate, and useful.
The propriety and wisdom of Jay's conduct toward France constitute a difficult and perplexing problem, which can be understood only after a careful study of many details. One needs to examine all the intricacies of the tangled skein of Revolutionary diplomacy before reaching a conclusion, and then he may find his opinion differing from the judgment of other investigators, for the decision rests on circumstantial evidence and depends on the interpretation of personal conduct. First, it may be said that the episode of the Marbois letter, of which much has been said by historical writers, is of little importance. Suspicions have been thrown on its authenticity, but it was probably entirely genuine. Though written in a tone decidedly captious and unfriendly to America, and in that respect not altogether in harmony with other correspondence between Vergennes and his representatives, it was in general accord with French policy; and it is difficult to explain why Jay should have been surprised by it, for before he left America he knew very well that France did not think that the United States should make the possession of the fisheries the absolute condition of a satisfactory treaty.
Concerning the purpose of Rayneval's mission, Jay was in a measure mistaken. Rayneval was sent to interview Shelburne with intent to discover whether certain communications made by Shelburne to De Grasse concerning the basis of peace were to be taken seriously and at full value. He was not formally instructed to discuss American affairs, but the fact of the matter is, he did discuss them and did not hesitate to speak disparagingly of the American claims. No harm was done the American cause, however, for the result of his work was probably to convince Shelbume that, as he had already suspected, the French and Americans were in disagreement. Thus Rayneval encouraged a natural desire on the part of the English to win the United States from attachment to France, and also inspired them to offer favorable terms to the persistent commissioners at Paris. It is not to be wondered at, nevertheless, that Jay believed that Rayneval's purpose was to injure the American cause and assist that of Spain and France. He showed considerable sagacity as well as independence of judgment; in light of the evidence before him he was, perhaps, justified in acting as he did.
And yet in his suspicions of France Jay was only partly right. If we free our minds from the old-fashioned notion that France entered the war and poured out her blood and treasure for the gratification of America and from an amiable zeal for American principles, and if we see that her chief object was to weaken England and to restore in some measure her own prestige, then the action of France takes on a different aspect, and we do not so lightly charge her ministers with cunning, duplicity, and falsehood. Of course, she was not wasting her substance to please America, and nothing but simple self-complacency would have imagined that such was her object. For some years before the summer of 1782 the French had been bearing the burden of the war. To accuse France of treachery under such circumstances, because she was insistent that the United States must not make a separate peace, or because she did not wish Congress or the commissioners to set terms and conditions that would prolong the war, is to misunderstand the difficulty of her position and to judge of her conduct solely from the viewpoint of American desire. It is necessary to remember that France was the leader in a great European war for which she was responsible; and she had good reason for contending that America should not be regardless of the interests of the other combatants.
As we have already seen, however, the problem had been much complicated by the fact that France had finally induced timorous, selfish Spain to join in fighting England, and, believing in the need of Spanish aid, had entered into an arrangement, which was not, to be sure, in direct variance with her pledges to America, but which rendered the consummation of peace more difficult. Indeed, in some slight measure this arrangement made the interests of the United States subordinate to those of Spain, all of whose feelings and instincts were hostile to the purposes of the revolting colonies. The terms of the treaty between France and Spain were not known in detail to our commissioners in 1782, but we can now see that France was embarrassed by the pressing demands of her European neighbor, who had entered the war with hesitation, had not contributed much to its success, and wished to come out of it with glory and the lion's share of the booty.
Under the circumstances it was impossible for Vergennes to act as if only American interests were to be considered. He seems to have been sincerely anxious for peace, for France was feeling sorely the burden of the war. He was, moreover, desirous of keeping the friendship of Spain, and, to satisfy her, was quite willing that the Americans should be hemmed in between the mountains and the sea. We must remember that the American claims were, to say the least, exceedingly bold, while Spain's demands for western land were not devoid of reason. There is no evidence that Vergennes had much at heart the narrowing of American territory; he wished, in order to bring peace and to appease Spain, that the claims of our commissioners should be kept just as low as possible. He was not at all anxious to see America playing a conspicuous ro1e among the nations, and had little dread of her capacity, but he was also honestly set upon securing the independence of the states. The lowest limit that would stand any chance of being acceptable to the negotiators at Paris or to Congress was the one he favored. There may be some reason for thinking that he wished to hem in the Americans by the Appalachians, because he hoped that ultimately French, rather than Spanish, power would be established in the west. But there seems at present to be little substantial evidence that any such hope or purpose really determined his conduct.
As to what course the American commissioners should have taken, men still differ in opinion. The instructions, obtained as they were, need not be taken too seriously, and the commissioners did not in any way desert France or disregard her peculiar interests in their negotiations. Jay suspected more than the truth, and it may possibly be true that he gained nothing by his breach of instructions and by conducting the negotiations without the knowledge of France. But if all of the negotiations had been carried on with the full knowledge of Vergennes, and hence with the full knowledge of Spain, there is little reason to think that so good a treaty could have been secured. France certainly would not have given frank advice in favor of American demands, and probably in the end the commissioners would have been obliged to disregard the counsel of the ministers of the king. We may conclude then by saying that Jay was partly right and partly wrong in his suspicions; that France was in a position in which she could not possibly consider only the interests of the United States and give advice for the benefit of America alone; that because of the breach between the commissioners and the French minister the English were induced to treat more freely, more rapidly, and more generously than would otherwise have been the case; that while Vergennes was not altogether frank, and was considering the interests of Spain and France, he was not deliberately, treacherously, and maliciously plotting, as is sometimes charged, to cramp and belittle the United States.
When Oswald's new commission came, late in September, 1782, negotiations began in earnest. Vergennes was not informed as to the details of what was imder discussion, and the business in hand moved forward rapidly. Early in October Jay submitted to Oswald a scheme of a treaty, to which the British commissioner gave his consent, and it was sent to England in hopes that it would be acceptable to the ministry. The boundaries were practically the same as those called for by the early instructions of Congress: the northern line, running from the intersection of the forty-fifth degree of north latitude with the St. Lawrence to the south end of Lake Nipissing and thence straight to the sources of the Mississippi, included a good deal of what is now Canada; the western line was the Mississippi. The Americans were assigned the right to enjoy the fisheries, but, on the other hand, there was no promise on the part of the United States that the refugees would be compensated or that the laws regarding confiscations would be repealed, the commissioners declaring that the laws for confiscation had been made by the individual states and that Congress had no authority to stipulate for their repeal.
The draft of the proposed treaty was not acceptable to the ministry. They knew it would be bitterly attacked in Parliament, if for no other reason because it contained no promise of aid to the loyalists, who by adhering to the king's cause had risked their all, and in many cases had lost their all, and thousands of whom had been treated with harshness or driven from the country. The English merchants also to whom debts were owing in America would expect assurance that they could make collections; and the boundaries as outlined in this preliminary sketch were, Shelburne thought, far too generous to America.
Shelburne, therefore, decided to try again, and sent Henry Strachey to aid Oswald, and perhaps to strengthen the resisting power of this friendly and gracious commissioner. John Adams about the same time came to Paris from The Hague and entered vigorously into the work. The English representatives now insisted upon restoration of property to the loyalists, or their indemnification, and a stipulation for general amnesty. Strachey was not so pliant as Oswald seems to have been. He is "artful and insinuating," wrote Adams. "He pushes and presses every point as far as it can possibly go; he is the most eager, earnest, pointed spirit."
In spite of strong objections and many difficulties another preliminary sketch was agreed upon and taken to England early in November, by which it was agreed that British creditors should meet with no lawful impediments to recovering the sums owing them on debts contracted before 1775. As for the loyalists, the American commissioners would go no further than a stipulation that Congress should recommend to the states so to correct any laws they might have passed regarding the confiscation of lands belonging to British subjects as to render the acts consistent with justice and equity. Only the tenacity of Adams retained the guaranty of the right of citizens of the United States to enjoy the fisheries in common with British subjects as "heretofore." The northern arid eastern' boundaries were not far different from those appearing in the earlier draught; the southern boundary was, as before, the thirty-first parallel from the Mississippi to the Appalachicola, but a separate secret article was agreed upon, wherein it was stipulated that if at the conclusion of the war Great Britain should retain West Florida, the northern boundary of this province should be a line through the mouth of the Yazoo ("Yassous") River, which is about 32° 25', not far from the present site of Vicksburg.
The commissioners waited with interest in Paris for some announcement as to the reception accorded the new articles in London. There was reason enough to fear that the refusal to give compensation to the Tories might destroy all prospects for immediate peace. Jay said that England would be content with a "tract of land, with a pompous preamble." But the Americans Were determined that nothing favoring the loyalists should be inserted. And yet something must be done. "We live in critical moments," wrote Adams. Parliament is to meet, and the King's speech will be delivered on the 26th." Shelburne, indeed, needed to act quickly; he had to choose between an unsatisfactory treaty and none at all, and either alternative would be troublesome. But as the king could not meet Parliament with good face unless able to announce either peace or the continuance of the war, the houses were prorogued for a few days, and Shelburne determined to make another effort for the loyalists and possibly for the fisheries.
When this determination was announced at Paris, wearily over the subject the commissioners went again. The Americans absolutely refused to yield compensation for the Tories and insisted on the right to a share in the fisheries. It was finally brought home to the attention of the Englishmen that they could get no better terms, and a preliminary treaty was agreed to on November 30, 1782, not substantially different from the draft which Strachey had taken to London the early part of the month.
In the treaty as finally agreed upon the boundary was not the same as in the earlier draughts, and, though considered accurate at the time, it in reality left much to be determined by later negotiation. The northeastern boundary was described as "a line drawn due north from the source of Saint Croix River to the Highlands; along the said Highlands which divide those rivers that empty themselves into the river St. Lawrence, from those which fall into the Atlantic Ocean, to the northwesternmost head of Connecticut River." This seemed clear enough, but, in fact, before the lines could be drawn it was nfecessary to determine which was the St. Croix River, which highlands were referred to, what were the rivers falHng into the ocean, and to which branch of the Connecticut belonged the northwestern head of the river. From the Con-necticut the line ran along the forty-fifth parallel to the St. Lawrence, thence through the Great Lakes and connecting waters to the Lake of the Woods. From the most northwestern point of the Lake of the Woods the line ran due west to the Mississippi — an impossible boundary — down the river to latitude thirty-one degrees, and thence east, by that parallel and by the line which is now the northern boundary of Florida, to the ocean. The secret article mentioned before was retained, whereby the United States agreed, in case Great Britain at the conclusion of the war should "recover or be put in possession of West Florida," to accept as its southern boundary from the Mississippi to the Appalachicola a line running through the mouth of the Yazoo. Heedless of the fact that the mouth of the Mississippi was in the hands of unhappy Spain, the eighth article of the treaty declared that the navigation of the river from its source to its mouth should be free to Americans and British alike. The grant of this privilege of navigation England based on her treaty with France of 1763.
The success of the American negotiators was phenomenal; they won practically every contested point. "You will notice," wrote Vergennes to Rayneval, "that the English buy peace rather than make it. Their concessions, in fact, as well in the matter of the boundaries as in that of the fisheries and the loyalists, exceed all that I could have thought possible." The peace was received with enthusiasm in America, as well it might have been; for how the country that had in many ways wearied of the war and of strenuous well-doing could have had the hardihood to expect so much is difficult to see.
Some members of Congress, it is true, were disposed to criticise the conduct of the commissioners. But such complaints were of little moment, for in reality the course followed by the negotiators worked France no injury. The articles of agreement of 1782 were preliminary only, and it was distinctly understood that the final treaty should not be signed until France was ready to close the war.
Vergennes wrote in a tone of injured magnanimity to Luzerne, who repeated to Congress his master's sentiments. But Vergennes could complain of naught save the exhibition of discourtesy and lack of confidence. His letter to Franklin was a dignified rebuke: "You are wise and discreet, sir; you will perfectly understand what is due to propriety; you have all your life performed your duties. I pray you to consider how you propose to fulfill those which are due to the King." An adroit letter, at once frank and insinuating, in the best form of experienced diplomacy, was sent by Franklin, acknowledging that the Americans had been guilty of neglecting a point of bienseance, and intimating that he hoped the notion of the Englishmen that they had divided the allies would prove unfounded. So little did the French minister feel aggrieved that he consented almost immediately after this interchange of letters to afford the United States a new proof of the friendship of the king by granting a loan of six milion liyres for the year 1783, and this although France was much oppressed with the expenses of the war, and although the financial burdens that were rolling up were beginning to foretell the great revolution that awaited her.
To discuss the question as to which one of the commissioners is deserving of chiefest credit would be useless; we all must recognize the fact that Jay, with admirable boldness, took the weightiest responsibility and bore the heaviest burden in the anxious days before Adams came from The Hague. Adams, whose rare words of praise are like apples of gold in pictures of silver, was warm in his enthusiasm for Jay's valor: "Nothing that has happened since the beginning of the controversy in 1761 has ever struck me more forcibly, or affected me more intimately, than that entire coincidence of principles and opinions between him [Jay] and me." But until further evidence is produced we are also bound to believe that Jay was somewhat too suspicious of France, for if in the end American independence had not been secured Vergennes would have been discredited in Europe, and there is as yet no evidence that he had much at heart the limitation of America's territory, even if on the whole he was inclined to sympathize with Spain in her contention for the west. Franklin, it should be noticed, had laid the plans for the negotiation, and there is no good reason for thinking that he would have easily surrendered any of the American claims. Easy-going he was, and possibly too much inclined to trust the Frenchmen, who of course had their own interests to look after, but he was shrewdness itself, and had spent a long life in studying human nature and learning its lessons.
In January, 1783, England concluded preliminary articles of peace with France and Spain. Gibraltar, the chief object of Spanish desire, was not surrendered to Spain, but Minorca and the Floridas were. France, for all her sacrifices, obtained but little. She had entered the war hoping to crush forever the power of her rival across the channel; she had acted with energy and spent money with profusion. Confirmation of a few petty fishing privileges, the establishment of "full right" to two dreary islands off the coast of Newfoundland, abrogation of an article in the treaty of Utrecht stipulating that Dunkirk should not be fortified, certain territories in India which she was destined soon to lose, and a few other concessions from Great Britain, seem slight recompense for the strenuous efforts of France to regain her old prestige by helping the American colonies to independence, and by humbling the nation that had stripped her of her possessions twenty years before.
Though it is difficult to see how America could have won independence without France, though Spanish aid was won only by dangling "shining objects" like Gibraltar temptingly before the eyes of the court at Madrid, and though France planned the campaigns, furnished troops, and paid money, the French king received little for his pains, and within ten years after this treaty England was ready to fight again, seemingly as vigorous and as self-reliant as of yore. If the American Revolution was a popular uprising on this side of the water, in Europe it was preeminently a war conceived in the cabinets of kings, and fought out for policies of state that in the end proved illusory.
The definitive treaty of peace, concluded on September 3, 1783, and ratified by the Congress of the Confederation in January, 1784, was simply a repetition of the preliminary articles of November, 1782. America was now possessed of a wide territory and every apparent opportunity for peace and progress. Could England have rested content with her loss and treated her former colonies with nobleness and justice, could America have forgotten her animosity and believed that not all Englishmen were bullies, could the spirit which actuated Oswald, Jay, and Franklin at Paris have been perpetuated, many of the trials of the future might have been avoided.