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A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875

The Revolutionary Diplomatic Correspondence --CHAPTER IX. DIFFICULTIES OF REVOLUTIONARY DIPLOMACY.

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The Revolutionary Diplomatic Correspondence of the United States, Volume 1
CHAPTER IX. DIFFICULTIES OF REVOLUTIONARY DIPLOMACY.

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From domestic organization. § 103. The domestic diplomatic organs of Congress during the revolutionary war were as follows, taking them in order of time:

The following proceedings give information as to the organization of the Department of Foreign Affairs:

Report on regulations in the office of foreign affairs, December 15, 1784.

The committee to whom was referred "regulations in the office of foreign affairs" humbly report:

That a resolution passed the 22d February, '82, empowered the secretary for foreign

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affairs to appoint an under secretary and one or more clerks, that in the opinion of your committee this power implies a right to remove them, or either of them, at his discretion.

That your committee conceive this right to appoint and remove the under secretaries and clerks that he may find it necessary to employ has not been revoked by any subsequent act of Congress, and that it was in no wise affected by the resolution of the 3d February last for the appointment of an under secretary to take charge of the papers of the department until the further orders of Congress.

That your committee are further of the opinion that a reasonable allowance should be made to the gentleman who may preside over this important department as a compensation for his services beyond what his dignified station may require him to expend. That Congress, in distinguishing between the sums given as a reward for his services and those intended for the support of the office, will free him from embarrassments which he can not but feel when he is at a loss to determine whether his own sentiments on this head conform to those of Congress.

Your committee therefore submit the following resolution:

Sept. 7, 1785.

Resolved, That whenever it shall appear to the secretary of the United States of America for the Department of Foreign Affairs that their safety or interest require the inspection of any letters in any of the post-offices, he be authorized and empowered to inspect the said letters. Excepting from the operation of this resolution, which is to continue for the term of twelve months, all letters franked by or addressed to members of Congress.

August 14, 1788.

The committee appointed to inquire fully into the proceedings of the Department of Foreign Affairs report:

That two rooms are occupied by this department, one of which the secretary reserves for himself and the reception of such persons as may have business with him, and the other for his deputy and clerks.

That the records and papers belonging to the department are kept in a proper manner, and so arranged as that recourse may be had to any of them without delay or difficulty.

That they find his method of doing business is as follows: The daily transactions are entered in a minute-book as they occur, and from thence are neatly copied into a journal at seasons of leisure. This journal contains a note of the dates, receipt, and contents of all letters received and written by him, with references to the books in which they are recorded, of all matters referred to him, and the time when, and of his reports thereupon, and in general of all the transactions in the department. It is very minute, and at present occupies two folio volumes.

His official letters to the ministers and servants of Congress and others abroad are recorded in a book entitled Book of foreign letters, and such parts as required secrecy are in cyphers.

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His official correspondence with foreign ministers here and with the officers of Congress and others in the United States, including the letters received and written by him, are recorded at large in a book entitled American letter book. They already fill three folio volumes.

His reports to Congress are recorded in a book entitled Book of reports, the third volume of which is now in hand. The papers on which the reports are made are subjoined to the report, unless in cases when, according to the ordinary course of the office, they are recorded in other books.

His correspondence and the proceedings with the Encargado de Negocios of Spain are recorded in a book kept for that purpose.

The passports for vessels issued by the secretary under the act of Congress of 12th February, 1788? together with the evidence accompanying the several applications, are recorded in a book kept for that purpose.

The letters of credence and commissions of foreign ministers, chargé des affaires, and consuls to the United States are recorded in a book entitled Book of foreign commissions.

There is also a book kept and regularly sent to the secretary of Congress to receive such acts of Congress as respect the department.

A book of accounts is kept, in which are entered the contingent expenses of the office.

The business of the office is done by his deputy and two clerks, and whatever time can be spared from the ordinary and daily business is employed in recording the letters received from the American ministers abroad. In this work considerable progress has been made. We find already recorded one volume, containing the letters of Mr. Dana during his mission to Russia, commencing 18th February, 1780, and ending 17th December, 1783; of Mr. H. Laurens, commencing 24th January, 1780, and ending 30th April, 1784; and of Mr. John Laurens during his special mission to Versailles, commencing 3d January, 1781, and ending 6th September following. Five volumes, containing the letters from Mr. Adams, commencing 23d December, 1777, and brought up to 10th April, 1787; the sixth volume is now in hand. Two volumes, containing the letters from Mr. Jay, commencing the 20th December, 1779, and ending 25th July, 1784. The letters from Mr. Deane, commencing the 17th September, 1776, and ending 17 March, 1782, are recorded, and those from Mr. Arthur Lee, commencing 13th February, 1776, and brought up to 15th February, 1778, are now in hand.

Those from Dr. Franklin, Mr. Jefferson, the first joint commissioners, the joint commissioners for negotiating a treaty of peace, and those for negotiating treaties of commerce, Mr. William Lee, Mr. Dumas, and others, are numerous, and are yet to be recorded.

The letter-book of the late committee for foreign affairs, composed of sheets stitched together and much torn, has been fairly copied in a bound book and indexed.

The books used for the records are of demy paper, and each volume contains from 5 to 6 quires of paper, being all of a size, except the two volumes of the secretary's reports, which are somewhat less.

There is an index to the paper cases and to the boxes in each case and to the papers in each box. In these cases and boxes are filed the original letters and papers belonging to the office.

The office is constantly open from 9 in the morning to 6 o'clock in the evening, and either his deputy or one of the clerks remains in the office while the others are absent to dinner.

By inspection of the book of foreign letters your committee find that several timely efforts have been made to furnish Mr. Carmichael with a cypher, the last of which they have reason to hope is successful. And upon the whole they find neatness, method, and perspicuity throughout the department.

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From congressional vacillation. § 104. The vacillating foreign policy of Congress added not a little to the difficulties of its legations abroad. It is elsewhere observed that Congress was divided in diplomatic, as well as in military and financial, matters into two distinct schools, the doctrinaire enthusiasts, such as Samuel and John Adams and Richard H. Lee, who believed that ideas, if pressed with untutored force, would triumph over all artificial barriers, and the school which held that in diplomacy, as well as in war and finance, all the rightful expedients which experience proved to be efficient should be made use of. By the first school it was insisted, as we will see, that envoys should be sent to demand succor from every European country, and it was predicted that if they spoke with sufficient resoluteness succor would be given. By the second, following in this respect the conclusions reached by modern diplomacy, it was held that no envoy should be sent to a court which had not previously intimated that such an envoy would be received, and it was predicted that envoys sent without this previous courtesy would meet with humiliating rebuffs.

It was unfortunate for us that a majority of Congress, influenced not only by the zealous appeals of the advocates of the first view, but by the letters of Arthur and William Lee, stating that they were informed by reliable authority that Spain, Holland, Prussia, Russia, Germany, Tuscany, and Sweden were anxious to receive American ministers, determined that such ministers should be sent. Their adventures, when attempting these missions, have been already incidentally noticed and will be hereafter more fully specified. It is enough here to say that the advocates of the policy which sent them looked upon Franklin, whom they regarded as the chief antagonist of that policy, with peculiar dislike. According to Richard H. Lee he was a "wicked old man," who would hesitate at no new crimes by which his old crimes could be covered up; and he was regarded by Samuel and John Adams if not indeed as actually wicked, as an indolent philosopher, who, from his love of aimless intrigue and his dislike to bold push, would deprive his country of advantages which a courageous front would procure.*

[Note *: * See infra, § 126, 149.]

The fluctuating policy of Congress as to foreign affairs is illustrated by the divisions in the committee to whom these affairs were intrusted and the changes in the tone of our diplomatic correspondence as one or the other of these parties was in its turn in the ascendant. When the committee was first constituted it contained, under the title of the "secret committee," the names of Franklin, Jay, Harrison, and Morris; to the first two of whom Arthur Lee objected as unfriendly to himself, while Harrison and Morris were known to be devoted friends of both Washington and Franklin. But Franklin and Jay went abroad, Morris after a while transferred his attention to the finance department, and frequently we find important instructions signed only by Richard H. Lee and Lovell, Lovell being a devoted friend of the Lees and of Samuel

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Adams. It was during periods when this committee was thus controlled that instructions issued withdrawing, as far as could be decently done, the control of our foreign relations abroad from Franklin, and placing it in the hands of those singular functionaries, our envoys without residences, whose very existence was ignored by the courts to which they were commissioned. It is true that when Morris, or Witherspoon, or Harrison, was in the ascendant on the committee, Franklin was treated as from the nature of things at the head of our diplomatic system; and it is true, also, that during the masterly administration of Livingston this view was taken, and Congress was advised to recall the envoys, who were not and would not be received as such in the courts to which they were sent. Still the contradictory character of the instructions received by our foreign ministers during the Revolution forced them at least in some cases to select their own line of action.

Our foreign relations, then, labored, in the first place, under the difficulty arising from the alternations of ascendancy between the school which on the one side desired to establish a diplomatic system as known by the law of nations, and which advocated a central diplomatic executive, selecting Franklin as the proper foreign representative of this executive, and the school on the other side which sought to do away with such executive, sending out a series of delegated representatives, keeping each under congressional control, under immediate congressional impulse. But there were also, in the second place, radical changes of congressional policy on matters of supreme importance, as to which Congress, from the impossibility of its obtaining prompt information, was not competent to act. Prominent among these were the questions relative to the Mississippi valley and to the fisheries, the action of Congress as to which will be detailed in the following pages.*

[Note *: * See index, titles Mississippi, Fisheries, Franklin, Jay, Congress. As to determination of Congress, see supra § 8. The great poverty of the country was one of the causes which limited attendance of members whose income was cut off by the war.
The Articles of Confederation provided that no delegate to Congress should hold a seat more than three years out of six. The execution of this provision, however, was considered optional in the States, and Massachusetts, in particular, returned Samuel Adams and Lovell, regardless of this restriction, during almost the entire war.]

From difficulty of ocean correspondence, and its intercepting and falsification. § 105. Even under the best circumstances letters then averaged two months in their passage from Philadelphia to Paris. When, however, the British blockade became more thorough, only a fraction, sometimes but small, of the letters sent reached their destination.

"When Congress had as many as twelve paid agents on that continent (Europe), all of whom wrote by every opportunity, and some of whom were authorized to make opportunities, and actually did attempt to start a packet once a month, there was once a period of eleven months during which Congress had not a line from one of them." (2 Parton's Franklin, 151.)

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So great was the difficulty in correspondence that four copies were made of every official document set forth, and on each was the warning written "to be sunk in case of danger from enemy."

Even when letters from America reached a European post-office they were opened, and if it were judged politic, detained. Hence it was that it was thought necessary to intrust very important papers to special agents.*

[Note *: * Doniol states that of four or five copies of dispatches sent by Gerard to Vergennes often only one reached Versailles. (3 Doniol, 295.)]

"These important dispatches (the first issued by the committee of secret correspondence) were not intrusted to any of the ordinary modes of conveyance. A special messenger was employed, Mr. Thomas Story, who was ordered to visit London, Holland, and Paris, deliver to Mr. Lee and Mr. Dumas their letters, and receive their replies, forward the Spanish dispatch, confer with certain friends of Dr. Franklin in Paris, and return to America with all speed. Soon after the departure of Mr. Story a M. Penet left Philadelphia for France, carrying with him from the committee a large contract for supplying arms, ammunition, and clothing for the American army. M. Penet was a merchant of Nantes, in France, a man zealous to serve the Colonies, but not of great capital or great connections. To him also Dr. Franklin intrusted letters to his friends in France, particularly to Dr. Dubourg, of Paris, the translator of his works, his fond and enthusiastic disciple." (2 Parton's Franklin, 113.)

Of the French dispatches from Philadelphia to Paris sometimes as many as seven were sent by distinct conveyances, never less than four. To the ciphers in these dispatches the British Government had at least a partial clew.

As will be hereafter seen,† an effort was made by Deane, and with comparative success, to evade scrutiny by writing his diplomatic dispatches between the lines of illusory business notes in invisible ink, which Jay, then on the home committee of correspondence, was enabled to bring out by an acid in his possession.

[Note †: † Infra, § 155; 1 Jay's Life, 65.]

When captured, letters which were secured by the enemy were as a matter of course reported at once to the foreign office at London, so that, as more than half of our correspondence met this destiny, the enemy was informed of the plans of Congress at least as freely as were the ministers of Congress abroad. It is true that some of these letters were in cipher. But the keys to most of our ciphers seem to have been possessed by the British foreign office, and even when this was not the case, an expert might at least make such a guess at a cipher as to invest it with dangerous effects. How artfully and mischievously this could be done is illustrated in the instance of the famous Marbois letter, elsewhere discussed at large,‡ in which an alleged letter from Marbois to Vergennes§ was "deciphered" in such a way by the British authorities in whose hands it fell as to make out of it a paper which, though

[Note ‡: ‡ Supra, § 85; infra, Marbois to Vergennes, Mar. 13, 1782, with note thereto.]

[Note §: § See this letter infra, under date of Mar. 13, 1782, with notes thereto. The stealing at Berlin of Arthur Lee's papers by the British minister is another illustration of the same unscrupulousness. See infra, Arthur Lee to commissioners, June 28, 1777. See introduction, §§ 144, 193, and under title of Forgery.]

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subsequently disavowed, as translated, by Marbois, yet at the time produced in the mind of Jay, to whom it was handed by Fitzherbert, a British envoy, under pledge of secrecy, the impression that France was untrue to her pledges of fidelity to the United States. The same may be said of certain "deciphered" letters of Washington claimed to have been intercepted by the British and published as originals. Much in them was admitted by Washington to be true. Yet by a few changes they were given a meaning not only essentially false, but which, had they been genuine as published, would have seriously injured the revolutionary cause.

But supposing letters from America reached France or Spain, or The Netherlands, or Russia, as the case might be, their destiny was still uncertain. In France they were in friendly hands, so far as concerned the post; and if they were opened their contents were not used so as to prejudice the common cause. But it was otherwise with Spain. No letters reached Jay by Spanish post, so he tells us, which did not bear marks of having been opened; and those he received he supposed to form but a fraction of those kept back.

From undue multiplication of envoys. § 106. It has already been shown that the policy of sending ministers to European courts where such ministers were not received worked injuriously to the United States from the mere fact of their non-reception. Another difficulty arose from the circumstance that several of these ministers took up their residence in Paris, and, without specific authority, considered it their duty to take part in the counsels of the American legation. Thus Ralph Izard, commissioned to Tuscany, never went there, but remained in Paris, claiming a right to be informed of all the details of the negotiations with France, and occupying no small share of the time and care of Franklin with discussions of this claim, which Franklin could not accede to, but on which Izard continued to insist.* When the triple legation of Franklin, Deane, and Arthur Lee (and afterwards Franklin, Arthur Lee, and Adams), was commissioned, it was understood that its members were to divide, so that one (Franklin) should remain in Paris, while the others should take charge of the missions to other capitals. But Arthur Lee, when he found that he could not be received in Madrid, or in Vienna, or in Berlin, made but brief excursions to Spain, to Austria, and to Berlin, reporting himself after each short trip promptly at Paris, there to differ from Franklin not only as to important business details, but as to the whole policy of the mission. When Adams was in Paris, during their joint mission, he concurred with Arthur Lee in what turned out to be the disastrous measure of removing Williams as commercial agent and putting in his place William Lee, with a nephew of William and Arthur Lee as clerk;† while on the

[Note *: * See index, titles Franklin, Izard.]

[Note †: † See infra, §§ 153, 176, 186.]

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whole question of sending legations to foreign courts which had not consented to receive them, and in the still more important question of the attitude to be assumed by the commissioners to the French court, Adams agreed with Lee. To these differences are to be ascribed the "dissensions" between the ministers at Paris in 1778--'79, which will be hereafter discussed.* It is due to Adams to say that he saw the inherent difficulties of permanent missions conducted by three joint commissioners; that he recommended that there should be but one permanent minister to France; and that he recognized Franklin's great influence with the French ministry as a strong reason for his retention though without colleagues.

[Note *: * Infra, §§ 126, 149.]

But there can be no doubt that down to the period when Franklin became sole minister, the American cause in Europe was much embarrassed by the fact that he had colleagues associated with him. Had it not been for Deane the complications with the numerous officers commissioned by him would not have arisen, nor would the transactions with Beaumarchais have been enveloped in a mist which it is even now impossible fully to dissolve. Had it not been for Adams and Arthur Lee our relations with France would not have been imperiled, nor would the missions to Berlin, Vienna, Florence, Madrid, and St. Petersburg have been attempted until a reception was assured. Moreover, the mere presence together in Paris of commissioners whose views of policy so widely diverged was calculated by itself to throw great discredit on American interests in Europe. And this discredit was not diminished by the indelicate importunity of the appeals for recognition and loans made by these envoys to the states to which they were specially commissioned.

Jefferson took the position that "the Americans ought never to solicit any privileges from foreign nations, in order not to be obliged to grant similar privileges themselves;" and it was partly on this ground that he objected to the sending envoys to courts to which they were not invited. This De Tocqueville (2, 298) calls plain and just.

From extraneous burdens. § 107. It was on the legation at Paris that gradually fell the burden not only of providing in a large measure funds for the continuance of the war, but of determining the innumerable questions that arose as to treatment and exchange of prisoners in Europe; as to the superintendence and direction of the numerous American privateers which made European ports the base of their operations; as to the prizes brought in by such privateers and their distribution; as to the selection and forwarding of supplies. These duties are hereafter more particularly described.†

[Note †: † Infra, § 118.]

From defective arrangements as to salaries and expenses. § 108. At first the salaries of the commissioners were not fixed at a specific rate, Congress resolving "that they should live in such a style and manner as they might

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find suitable and necessary to support the dignity of their public character," and that "besides the actual expenses of the commissioners a handsome allowance should be made to each of them as a compensation for their time, trouble, risk, and services." It was under this last clause that arose the question as to Izard's salary when unemployed in Paris, (he being there when his commission came and never having visited Tuscany, to which he was accredited,) and also, supposing a salary to be due him, whether it was to be enlarged so as to cover the expenses of educating his family. These points, as has been seen, were answered by Franklin in the negative and by Adams and Lee in the affirmative. In October, 1779, Congress, advised of the difficulties arising under this system, fixed the salary of a minister at £2,500 sterling ($11,111), and that of a secretary of the legation at £1,000 ($4,444). In May, 1784, the salary of ministers was placed at $9,000, and that of secretaries at $3,000. On the old quantum meruit standard the average expenses of the commissioners, taking them individually, was about £3,000 sterling (or $13,333).* In one respect the appropriation of Congress for its foreign legations was lavish. Salaries were given to Izard, though he never even visited the country to which he was accredited;† to Dana, though when he got to St. Petersburg he was refused any kind of recognition;‡ to the Lees, though wherever they went they prejudiced the American cause by the indiscretion and indelicacy with which they insisted on a recognition which met with refusals which each new application made more curt and harsh; to William Lee in particular, who was not received by any court to which he presented himself.§ To these legations secretaries were assigned. Even to that extraordinary person Stephen Sayre, who appeared as secretary to Arthur Lee at Berlin at the time of the theft of the legation papers, a salary was afterwards voted by Congress as properly due.∥ The way the salaries of our legations were collected added not a little to their questionable character. No funds, after the blockade stopped the forwarding to France of American produce, were received from America to pay these salaries, and hence they were paid almost exclusively out of funds raised in France; and Vergennes, who was strongly opposed to the sending of ministers to courts who would not assent to their reception, naturally objected to the money furnished by France being wasted in what he considered to be excursions detrimental not merely to the United States but to the allied cause. And then, in addition to this, Franklin, on whom the whole burden of the European negotiations fell, was left practically without help. His colleagues, when he had colleagues, were certainly not assistants. Even when he was sole minister his only secretary was his grandson, a minor, whose only use was that of a copyist and in some subsidiary degree of an accountant. And in addition to this deficiency of assistance in the legation, is to be considered the want of funds for secret service. Of
30 WH

[Note *: * See index, titles Salaries, Expenses.]

[Note †: † Infra, § 178.]

[Note ‡: ‡ Infra, § 169.]

[Note §: § Infra, § 177.]

[Note ∥: ∥ See infra, § 194.]

[Note : ¶ Infra, §§ 118, 119, 126.]

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such funds Franklin was destitute, while so lavish had been the enemy's appropriations in this line, that whenever an alleged friend of the American cause, hovering about Paris was found to be open to bribes, these bribes found him out, while, as we learn from the Stormont papers, Franklin was himself watched at every step by British spies. It was from the secret fund system of France that were paid such services of this class as were rendered to the allies.

From delicacy of position to France, growing out of instructions to consult her. § 109. The treaty of alliance of February 6, 1778, between France and the United States provided (Art. I) that "if war should break out between France and Great Britain during the continuance of the present war between the United States and England, his majesty and the said United States shall make it a common cause, and aid each other mutually with their good offices, their counsels, and their forces, according to the exigence of conjunctures, as becomes good and faithful allies."

By the eighth article it was provided that "neither of the two parties shall conclude either truce or peace with Great Britain without the formal consent of the other first obtained; and they mutually engage not to lay down their arms until the independence of the United States shall have been formally or tacitly assured by the treaty or treaties that shall terminate the war."

On June 15, 1781, Congress, through Huntington, its president, sent the following instructions to Messrs. Adams, Franklin, Jay, Laurens, and Jefferson, ministers plenipotentiary in behalf of the United States to negotiate a treaty of peace:

"You are therefore at liberty to secure the interest of the United States in such a manner as circumstances may direct, and as the state of the belligerent and the disposition of the mediating powers may require. For this purpose you are to make the most candid and confidential communications upon all subjects to the ministers of our generous ally the king of France; to undertake nothing in the negotiations for peace or truce without their knowledge or concurrence, and ultimately to govern yourselves by their advice and opinion, endeavoring in year whole conduct to render them sensible how much we rely upon his majesty's influence for effectual aid in everything that may be necessary to the peace, security, and future prosperity of the United States of America."

On May 31, 1782, Congress resolved--

"That the secretary for foreign affairs acquaint the minister plenipotentiary of France that the signal proof of inviolable constancy to his engagements given by his most christian majesty in the answer to the attempts of the British court to seduce him into a separate peace has been received by Congress with the sentiments with which it ought naturally to inspire faithful and affectionate allies, and entirely corresponds with the expectations which the magnanimity and good faith of his past conduct had established. That Congress embrace with particular satisfaction this occasion of renewing to his most christian majesty the assurances which they have so often and so sincerely repeated, of a reciprocal and equal resolution to adhere, in every event, to the principles of the alliance, and to hearken to no propositions of peace which are not perfectly conformable thereto.

"That the insidious steps which the court of London is pursuing render it improbable

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that any propositions conformable to these principles will be made to the United States; but that in case such propositions should be made, Congress will not depart from the measures which they have heretofore taken for preventing delay and for conducting the discussions of them in confidence and in concert with his most christian majesty; and that as Congress observe with the warmest approbation the purpose of his most christian majesty to oppose to the false appearances of peace held out by Great Britain those redoubled efforts which may render her sincerely disposed to it, so his majesty may be persuaded that they are no less impressed with the necessity of such concurrent exertions on the part of the United States as may frustrate the views of the common enemy in the new system which their policy seems to have adopted on this continent."

On August 8, 1782, a motion was made to reconsider this vote, but without success.

On October 4, 1782, Congress resolved unanimously "that they will not enter into any discussion of overtures of pacification but in confidence and in concert with his most christian majesty," and, to adopt the statement of Secretary Livingston to Congress on March 18, 1783, "directed that a copy of the above resolution be sent to all the ministers of the United States in Europe and published to the world."

That these were the views of Richard H. Lee down to the period of Arthur Lee's quarrel with France appears from the following passage from a letter to Arthur Lee of February 11, 1779:

"As for the noise made about its being said that the United States might make treaty with England witht the consent of their Ally if war was not declared--I do not believe that any one Man of sense, or member ever said or thought any think like it. 'Tis mere pretense. For myself I know that I would sooner cease to live than I would agree in any manner or for any pretext to desert our Ally for whom I feel infinite gratitude and reverence. You know perfectly well how long and how ardently my Soul has panted after this connection with France. Perhaps there was not another man in America so enthusiastically strenuous for the measure as myself. Indeed as Shandy says it was my Hoppy Horse. And now a pack of rascals would insinuate (for their private purposes) that I would injure the measure I have been so uniformly and so warmly promoting." (Lee MSS., Harvard College.)

The efforts of the British ministry to break up the alliance between France and the United States are shown by notes of George III in his correspondence with the United States; by the attempt to bribe Empress Catharine to induce France to abandon the American cause;* by Deane's "intercepted letters," as well as by personal appeal to each party separately.†

[Note *: * See supra, §§ 7, 30.]

[Note †: † Infra, § 29.]

Conflict between commissioners at Paris as to those instructions. § 110. It was maintained by Franklin that both policy and honor required a frank and friendly discharge of those instructions so as not merely to show full confidence in France, but in all matters of common interest to act on the common policy agreed on with Vergennes. Thus on the critical question of sending ministers to foreign courts Franklin not only consulted Vergennes, but maintained that Vergennes' advice not

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to send until something like a reception should be assured ought to be followed.* But Arthur Lee and Adams not only disagreed with him and overruled him in this, but took the position that France should not only be viewed with distrust, but that she should be made to know that she was so viewed.† When the negotiations for peace came on, the envoys, Franklin, Adams, and Jay, agreed that no definitive peace could be signed without France's assent, but Adams and Jay held that not only could negotiations be carried on with Britain of which France was to have no notice, but that a preliminary peace could be agreed on without such notice, even though it contained an article which was by its terms to be kept secret from France. The discussion of this question, however, must be remanded to another volume, to which, in regard to time, it properly belongs, while the views of Hamilton and Madison as to it have been already noticed.‡ That of Livingston appears in his correspondence.§

[Note *: * See infra, §§ 120, 124.]

[Note †: † See infra, §§ 124, 131, 134, 145, 152.
As to views of Hamilton and Madison on this question, see supra, § 4.
As to Adams, see index, title Adams.]

[Note ‡: ‡ See supra, § 4.]

[Note §: § See index, title Livingston.]

In 3 Magazine of American History, 41--43, are two letters from J. Q. Adams to William Jay, from which the following passages are extracted. The first is from a letter under date of August 18, 1832:

"I presume, however, that you have a copy of the diplomatic correspondence recently published by Congress and somewhat incorrectly edited by Mr. Sparks; I mean by the notes with which it is impoverished from the hand of the editor. But in the 10th volume of that compilation, page 129, there is a letter from the then secretary of foreign affairs, Robert R. Livingston, dated 25th of March, 1783, in which he censures severely enough the commissioners for their distrust of the court of Versailles. That letter he sent without submitting it to Congress, but he had submitted the previously received despatches, letters, and journals of the commissioners, giving an account of their treaty, before the peace between Great Britain and France had been concluded. The documents from the commissioners, he says, had been read in Congress, then referred back to him for a report, and thereupon he had written to Congress a letter, upon consideration of which motions were made and debated a whole day. Then his letter and the motions were committed and a report brought in, which had been two days under consideration, when the arrival of a vessel from Cadiz, with letters from Count D'Estaing and the Marquis de La Fayette, announced the conclusion of the peace, after which many members thought it would be improper to proceed in the report, and (says he) 'in that state it remains, without any express decision. From this you will draw your own inferences. I make no apology for the part I have taken in this business.'

"From the secret journals of Congress it appears that the letters from La Fayette and D'Estaing, announcing the peace, were received by Congress on the 24th of March, only the day before this letter from Mr. Livingston to the commissioners was written. They had immediately superseded all further debate on the report. From the temper of his letter to the commissioners, which he says he intended to have submitted, but which he did not submit to Congress, from the reserved manner with which he speaks of the debates, motions, and reports, which had been left undecided, and

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from his disclaimer of apology for the part he had taken in the business, it is to be inferred that he had recommended a vote of censure, but whether it extended to all the commissioners, or had a saving clause for Dr. Franklin, I am unable to say; very certainly it included your father and mine. The reply of the commissioners to Mr. Livingston, dated 27th July, 1783, page 193 of the same volume, and signed by Dr. Franklin as well as by our fathers, was an extinguisher to Mr. Livingston's objections."

The following is from a letter under date of October 20, 1832:

"In the conclusion of the preliminaries of peace with Great Britain in November, 1782, Dr. Franklin concurred with his colleagues by signing the treaty without previous communication of its contents to the Count de Vergennes. To have separated from his colleagues would have been imprudent; yet, if the withholding of the information from the French Government had been a breach of good faith, a man, to whom prudence did not embrace the whole duty of man, would have refused to sign and abided the consequences. Franklin signed with his colleagues, but his prudence gave Vergennes to understand that the withholding of the contents of the treaty had not been with his approbation, nor did he suffer his friends in Congress to be ignorant of his private opinions, and hence the effort of Congress to pass a vote of censure upon their commissioners and the petulant letter of their secretary of foreign affairs."

As to the above it is to be remarked as follows: (1) By John Adams it is stated, as we see elsewhere, that the contents of the treaty were communicated to Vergennes, which conflicts with the above recital. (2) There are no letters from Franklin advising "his friends" in Congress as to the position to take on the treaty. But Madison, Hamilton, and Witherspoon, with a majority of members with them, united, as is noted above, in holding that the terms of the treaty of alliance and of the instructions of Congress made it the duty of the commissioners to have conferred, as allies, with Vergennes as to their proceedings. When, however, the treaty of peace, in itself so advantageous, arrived, and when it appeared that France made no official complaint of the action of the commissioners, and was even ready to make a new loan to the United States, then Livingston, Madison, and Hamilton concurred in holding that no vote of censure should be passed.

Instructions not in themselves extraordinary. § 111. By Jay, than whom there could not be found a man of higher conscientiousness or more delicate sense of honor, it was held that so far as these instructions implied the subjection of the American envoys to the court of France, they imposed a degrading submission which no high-spirited nation ought to impose on its envoys.* But, on the other hand, so far as the instructions require consultation with the French Government as to peace propositions and the assent of that government to any definitive peace, it may now well be argued that such conditions are not only consistent with the reciprocal independence of the contracting sovereigns, but that they are the essential incidents of all treaties for joint wars. Thus in the treaty of March 10, 1854, between France, Great Britain, and Turkey,

[Note *: * See Hamilton as to Jay's attitude, supra, § 4.]

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the high contracting parties agreed to communicate to each other, without lapse of time, all propositions they might receive from Russia, directly or indirectly, in view of cessation of hostilities, of armistice, or of peace, while Turkey was not to conclude peace without the assent of both contracting powers; while by the treaty of April 10, 1854, France and Great Britain* engaged to receive no overtures tending to the cessation of hostilities, and to enter into no engagement with the Russian court without having deliberated in common.†

[Note *: * 1 Kinglake's Crimean War, 466. The treaties are given in full in 6 De Clercq's Collection, 422.]

[Note †: † In Lane-Poole's Life of Stratford Canning (2, 433, London, 1888), the biographer says:
"To treat separately for peace was expressly prohibited by the treaty of alliance; yet at the close of 1855 the emperor of the French was in secret communications with the son-in-law of the Russian chancellor, and their purport was treasonable to England. Satisfied with the half successes of the siege, Louis Napoleon was now as anxious for peace as he formerly had been eager for military glory. All the plans for the coming campaign were thrown over, and after a while the secret negotiations bore fruit in Russia's acceptance of an ultimatum. Plenipotentiaries were summoned to Paris, where Lord Clarendon soon discovered that England stood alone."
Yet, even assuming that there were these prior secret conferences between the French court and a Russian emissary, the terms of peace were discussed by the allies jointly, and England assented to them in conference before they were pressed on Russia. There was no settlement of terms between the envoys of one ally and the common enemy. No doubt each ally had his own method of sounding the enemy; such, in all allied belligerency, is necessarily the case. It is not unlikely also that Louis Napoleon, having got all he wanted in the way of glory from the war, was more anxious to close it, unprofitable as it was, than was England, which had down to this period played an inferior part. But the terms of peace, as finally agreed on, were discussed jointly and with great fullness, and, no matter what were the inducements that operated on the allies severally, they were the results of their common deliberations.]

It so happened that in 1855 there were strong temptations to induce France to receive separate proposals from Russia. In 1854, as was said by Drouyn de l'Huys to the French ambassador at London, the war had been half military, half naval, in which the two powers took about an equal share. When, however, Sebastopol fell, the war, if continued, would become continental, in which case the burden would fall mainly on France. France, therefore, naturally claimed, if such should be determined to be the policy of the allies, some compensation for the unequal burden thus thrown on her; and as such compensation she suggested the restoration of Poland. This proposition, however, was not even intimated to Russia; it was made exclusively and confidentially to the English ministry; and by both England and France it was agreed that under the treaty neither could make separate advances to Russia, and that any advances which Russia should, directly or indirectly, make to the one should be forthwith communicated to the other, to be deliberated on in common. It was not only never intimated that this mutual pledge to entertain peace propositions in common placed either party in a dishonorable vassalage to the other, but the agreement was considered

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as an essential incident of all alliances of belligerency, and was held by them to be an engagement of honor, the breach of which would have been disgraceful.*

[Note *: * See 2 Diplomatic Study of Crimean War (Russian official publication), 340. As indicating the view above taken, see Livingston to Jay, Dec. 30, 1782, Jan. 4, 1783.]

We may therefore properly hold that while, in case of want of good faith being shown by France to the United States, the United States envoys would have been justified in taking independent measures to protect their rights, yet, in default of such proof, which to hold good in such a case should have been communicated to France to await her reply, it was the duty of the envoys of the United States to proceed in peace negotiations in concert with France. The radical difference between Franklin and his colleagues was in the question of trust. Franklin saw no reason to distrust the fidelity of France at any time to her engagements to the United States during the revolutionary war. His colleagues did not share this confidence, and yet, while impressed by this distrust of their ally, they made no appeal for explanation. The weight of opinion, as will hereafter be more fully seen, is now that Franklin was right, and they in this respect wrong. But whatever may have been the correctness of their view, it was proper that, before making it the basis of their throwing off the burden of treaty obligation and their own instructions, they should have first notified France of their complaint. Obligations cannot be repudiated by one party on the ground of the failure of the other party to perform some condition imposed on him, without giving him notice of the charge against him, so that he could have the opportunity of explanation.†

[Note †: † The American envoys were not to blame for such informal conversations with Enlish agents as was a necessary incident of their position. But supposing that the formal negotiations were kept secret from France, the precedent was a bad one not merely from its want of good faith, but for its uselessness. From the nature of things Vergennes must have known the general character of the terms to which the negotiation was tending; and, if we are to take John Adams' statement to that effect literally, these terms were actually communicated. Vergennes must have been at least informally notified of them. If so, he could at that time have stopped the negotiation by a resolute protest. But that he was willing to assent to these terms, though from his relation to Spain he could not initiate them, is shown by the fact that not only did he, after the preliminaries were disclosed to him, make a new loan to the United States, but he refused to come to final terms with England until the American preliminaries were accepted as a definite peace. How far and in what way he was informed of the American peace negotiations of 1782 is a question which is still open. But if the negotiations were purposely kept secret from him without his desire that they should be, it is difficult to defend the American negotiators in this respect when charged with want of compliance with their treaty obligation to France. As to the distrust of France felt by Arthur Lee and Adams, see index, titles Arthur Lee, Adams, and Franklin; and see infra, §§ 131 ff., 145, 148.]

It may be added, on the merits, that the extenuation set up by Jay and Adams, that France was herself untrue to her obligations, however honestly they believed it, can not now be sustained. Livingston, who

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knew more of the attitude of France than any public man on the American side except Franklin, swept it aside as groundless. Edward Everett, one of the most accomplished historical writers and diplomatists the country has ever produced, speaks, as we shall see, to the same effect, and other historical critics of authority, to be also hereafter cited, give us the same conclusion. Yet there are other reasons which may excuse their course, and that of Franklin, who concurred with them rather than defeat a peace. In the first place, such was their isolation, that their means of communication with Congress was stopped; and they might well have argued that if Congress knew that the English envoys refused to treat with them except in secret conference their instructions would have been modified. In the second place, we may accept Adams' statement that Vergennes was from time to time informally advised of the nature of the pending propositions. In the third place, the articles agreed on in 1782 were not to be a definite treaty except with the assent of France.

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