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accession of Canada; he said, there could be no solid and permanent peace without it; that it would cost the British government more to keep it, than it was worth; it would be a source of future difficulties with the United States, and some day or other it must belong to them; and it was for the interest of both parties, that it should be ceded in the treaty of peace. Yet he did not think proper to urge such a cession as a necessary condition of peace, especially since Congress had forborne to instruct the commissioners on this subject, and since there was no claim on France, by the treaty of alliance, to sustain such a demand, as the pledge in that treaty was only to insure the independence of the old Thirteen Colonies, and Canada was not one of these. Mr. Oswald, in his conversations with Dr. Franklin, gave it as his opinion, that Canada should be given up to the United States, and said, that, when he mentioned it to the ministers, though they spoke cautiously, they did not express themselves as decidedly opposed to the meas
It was not pressed, however, by the American commissioners, and it would seem not to have been much dwelt upon in the subsequent progress of the negotiation.
At this stage of the business, Dr. Franklin was taken ill, and was confined for several weeks to his house. The negotiation was chiefly carried on by Mr. Oswald and Mr. Jay, though Dr. Franklin was consulted when occasion required it. Mr. Oswald at length produced his commission. It was first perused by Mr. Jay, who was so little pleased with it, that he refused to proceed with the treaty unless it should be altered. As it stood, Mr. Oswald was authorized to conclude a treaty "with commissioners named, or to be named, by the colonies or plantations in Amer61
ica," or any assembly, body, or description of men. Nothing was said of the United States as an independent power, nor could it be inferred, that their independence was to be recognised in a formal manner. Mr. Oswald appealed to his instructions on this head, and showed one of the articles, by which independence was to be granted in the treaty. Mr. Jay still insisted that this was not enough; that independence must be acknowledged in the first instance, and that the commission must be worded accordingly.
The form of Mr. Oswald's commission was faulty in two respects; first, the American commissioners did not represent colonies, but an independent nation; secondly, Mr. Oswald was empowered to negotiate with assemblies, or individuals of any description, which, to say the least, was unusual, and not respectful to the United States. Dr. Franklin was consulted, and he agreed with Mr. Jay, that the commission was objectionable in its form, but he had some doubts whether it was best to endanger the treaty by insisting too much on forms, especially as it was evident, that independence was to be granted, as well as all the other principal demands of the United States. In the present condition of affairs in England, there was a prospect of another change of ministry; and, if this should take place, it was extremely doubtful whether peace could be obtained on any reasonable terms, and whether the war would not be renewed. Mr. Jay saw the matter in a different light; he looked upon the form as a thing of more importance; and he labored the point for some time with Mr. Oswald, and with so much pertinacity as to gain a partial success.
As to a previous acknowledgment of independence, Mr. Jay said it ought to be declared by an act of Parliament. But Parliament was not now in session, and
would not convene for some months. He next suggested, that the King should do it by proclamation. Mr. Oswald replied, that the Enabling Act, which empowered the King to make peace, did not authorize him to issue such a proclamation; and, when Parliament should meet, they might destroy its effect, and perhaps throw every thing into confusion and defeat the treaty. When he complained to Dr. Franklin of Mr. Jay's inflexibility, and of its tendency to overthrow all that had been done, and take away all hope of continuing the negotiation, Franklin answered, "Mr. Jay is a lawyer, and may think of things that do not occur to those who are not lawyers." Mr. Jay finally gave up this point, and said, that, "if Dr. Franklin would consent, he was willing, in place of an express and previous acknowledgment of independence, to accept of a constructive denomination of character, to be introduced in the preamble of the treaty, by only describing their constituents as the Thirteen United States of America." Dr. Franklin agreed to this proposal, and the more readily, as Mr. Adams had some time before written to him from Holland as follows. "In a former letter I hinted, that I thought an express acknowledgment of independence might now be insisted on; but I did not mean, that we should insist upon such an article in the treaty. If they make a treaty of peace with the United States of America, this is acknowledgment enough for me."
The commission was accordingly sent back to London, and altered apparently without hesitation or objection. Instead of the original form, it was so worded, that Mr. Oswald was empowered to treat "with any commissioners or persons, vested with equal powers by and on the part of the Thirteen United States of America." After all, the previous acknowledgment
was not obtained. Independence made the first artiBut this was a small matter in itself; a thing of form and not of substance.
cle of the treaty.
These preliminary skirmishes occupied three months from the time the discussions first commenced between Dr. Franklin and Mr. Oswald. The negotiators were now ready to enter upon the solid part of their work. Independence, the boundaries, and the fisheries, were the three great points to be arranged. The first was settled at once, in the manner already described. The boundary question was more complex; it led to long discussions, to the examining of maps and ancient documents, and to such ingenious arguments and counter-arguments as diplomatists know how to use. It was finally adjusted to the satisfaction of the parties.
The right to catch fish in the ocean, at such a distance from the coast as not to interfere with the jurisdiction over any territory, is given by nature to all mankind, and is recognised by the laws of nations, although it is sometimes encroached upon by the usurpation of maritime powers. This right had been exercised by the Americans along their own coast, from the first settlement of the country, in common with the British. As to the Banks of Newfoundland, and other fishing grounds in that quarter, they had shared in the wars for maintaining and extending the liberty of fishing there, and in this view they possessed the same title to it as the inhabitants of Great Britain. They had not forfeited it by the Revolution, any more than they had forfeited the right to navigate their own bays and rivers. In short, the case was so plain, that no difficulty was made about it at the beginning of the negotiation; for we have seen, that it was included in the necessary articles first proposed
by Dr. Franklin. No objection was then made to it; and, in fact, Mr. Oswald was instructed to admit this article.
When, however, the negotiation seemed nearly at a close, the various propositions in the treaty having been carried back and forth by messengers between Paris and London, an effort was unexpectedly made by the British ministry to extort better terms. They now revived the question of the boundaries; but it was their great object to obtain compensation for the loyalists, or Tories, whose property had been confiscated, and many of whom had been banished from the country. If this could not be done, it was their next object to retain the fisheries as an equivalent. Mr. Strachey went over to Paris, and he and Mr. Fitzherbert united their forces with Mr. Oswald to push these points with all their might. At this time. Mr. Adams had joined his colleagues, having arrived in Paris near the end of October, a month before the treaty was signed. Coming fresh to the conflict, he exerted himself on every point with his usual ardor and energy; and the British claim to the fisheries, in particular, was resisted by him with great strength of argument and a determined spirit.
In regard to the loyalists, none of the American commissioners ever gave the least hope, that any thing could be done in their favor. Dr. Franklin discarded the idea, most pointedly, in his first conversations with Mr. Oswald. The commissioners had no power to act in the case; Congress had none. The property of the loyalists had been confiscated by the States, and the remedy, if any, must be sought from the States. An article in the treaty, to this effect, would not be binding; it would not be regarded. Besides, neither justice nor humanity required, that the Ameri