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The Fathers of the Constitution

Max Farrand

In the spring of 1782 Adams felt obliged to remain at The Hague
in order to complete the negotiations already successfully begun
for a commercial treaty with the Netherlands. Franklin, thus the
only Commissioner on the ground in Paris, began informal
negotiations alone but sent an urgent call to Jay in Spain, who
was convinced of the fruitlessness of his mission there and
promptly responded. Jay's experience in Spain and his knowledge
of Spanish hopes had led him to believe that the French were not
especially concerned about American interests but were in fact
willing to sacrifice them if necessary to placate Spain. He
accordingly insisted that the American Commissioners should
disregard their instructions and, without the knowledge of
France, should deal directly with Great Britain. In this
contention he was supported by Adams when he arrived, but it was
hard to persuade Franklin to accept this point of view, for he
was unwilling to believe anything so unworthy of his admiring and
admired French. Nevertheless, with his cautious shrewdness, he
finally yielded so far as to agree to see what might come out of
direct negotiations.

The rest was relatively easy. Of course there were difficulties
and such sharp differences of opinion that, even after long
negotiation, some matters had to be compromised. Some problems,
too, were found insoluble and were finally left without a
settlement. But such difficulties as did exist were slight in
comparison with the previous hopelessness of reconciling American
and Spanish ambitions, especially when the latter were supported
by France. On the one hand, the Americans were the proteges of
the French and were expected to give way before the claims of
their patron's friends to an extent which threatened to limit
seriously their growth and development. On the other hand, they
were the younger sons of England, uncivilized by their wilderness
life, ungrateful and rebellious, but still to be treated by
England as children of the blood. In the all-important question
of extent of territory, where Spain and France would have limited
the United States to the east of the Alleghany Mountains, Great
Britain was persuaded without great difficulty, having once
conceded independence to the United States, to yield the
boundaries which she herself had formerly claimed--from the
Atlantic Ocean on the east to the Mississippi River on the west,
and from Canada on the north to the southern boundary of Georgia.
Unfortunately the northern line, through ignorance and
carelessness rather than through malice, was left uncertain at
various points and became the subject of almost continuous
controversy until the last bit of it was settled in 1911.*

* See Lord Bryce's Introduction (p. xxiv) to W. A. Dunning. "The
British Empire and the United States" (1914).


The fisheries of the North Atlantic, for which Newfoundland
served as the chief entrepot, had been one of the great assets of
North America from the time of its discovery. They had been one
of the chief prizes at stake in the struggle between the French
and the British for the possession of the continent, and they had
been of so much value that a British statute of 1775 which cut
off the New England fisheries was regarded, even after the
"intolerable acts" of the previous year, as the height of
punishment for New England. Many Englishmen would have been glad
to see the Americans excluded from these fisheries, but John
Adams, when he arrived from The Hague, displayed an appreciation
of New England interests and the quality of his temper as well by
flatly refusing to agree to any treaty which did not allow full
fishing privileges. The British accordingly yielded and the
Americans were granted fishing rights as "heretofore" enjoyed.
The right of navigation of the Mississippi River, it was declared
in the treaty, should "forever remain free and open" to both
parties; but here Great Britain was simply passing on to the
United States a formal right which she had received from France
and was retaining for herself a similar right which might
sometime prove of use, for as long as Spain held both banks at
the mouth of the Mississippi River, the right was of little
practical value.

Two subjects involving the greatest difficulty of arrangement
were the compensation of the Loyalists and the settlement of
commercial indebtedness. The latter was really a question of the
payment of British creditors by American debtors, for there was
little on the other side of the balance sheet, and it seems as if
the frugal Franklin would have preferred to make no concessions
and would have allowed creditors to take their own chances of
getting paid. But the matter appeared to Adams in a different
light--perhaps his New England conscience was aroused--and in
this point of view he was supported by Jay. It was therefore
finally agreed "that creditors on either side shall meet with no
lawful impediment to the recovery of the full value in sterling
money, of all bona fide debts heretofore contracted." However
just this provision may have been, its incorporation in the terms
of the treaty was a mistake on the part of the Commissioners,
because the Government of the United States had no power to give
effect to such an arrangement, so that the provision had no more
value than an emphatic expression of opinion. Accordingly, when
some of the States later disregarded this part of the treaty, the
British had an excuse for refusing to carry out certain of their
own obligations.

The historian of the Virginia Federal Convention of 1788,
H. B. Grigsby, relates an amusing incident growing out of the
controversy over the payment of debts to creditors in England:

"A Scotchman, John Warden, a prominent lawyer and good classical
scholar, but suspected rightly of Tory leanings during the
Revolution, learning of the large minority against the repeal of
laws in conflict with the treaty of 1783 (i. e., especially the
laws as to the collection of debts by foreigners) caustically
remarked that some of the members of the House had voted against
paying for the coats on their backs. The story goes that he was
summoned before the House in full session, and was compelled to
beg their pardon on his knees; but as he rose, pretending to
brush the dust from his knees, he pointed to the House and said
audibly, with evident double meaning, 'Upon my word, a dommed
dirty house it is indeed.' The Journal of the House, however,
shows that the honor of the delegates was satisfied by a written
assurance from Mr. Warden that he meant in no way to affront the
dignity of the House or to insult any of its members."

The other question, that of compensating the Loyalists for the
loss of their property, was not so simple a matter, for the whole
story of the Revolution was involved. There is a tendency among
many scholars of the present day to regard the policy of the
British toward their North American colonies as possibly unwise
and blundering but as being entirely in accordance with the legal
and constitutional rights of the mother country, and to believe
that the Americans, while they may have been practically and
therefore morally justified in asserting their independence, were
still technically and legally in the wrong. It is immaterial
whether or not that point of view is accepted, for its mere
recognition is sufficient to explain the existence of a large
number of Americans who were steadfast in their support of the
British side of the controversy. Indeed, it has been estimated
that as large a proportion as one-third of the population
remained loyal to the Crown. Numbers must remain more or less
uncertain, but probably the majority of the people in the United
States, whatever their feelings may have been, tried to remain
neutral or at least to appear so; and it is undoubtedly true that
the Revolution was accomplished by an aggressive minority and
that perhaps as great a number were actively loyal to Great
Britain.

These Loyalists comprised at least two groups. One of these was a
wealthy, property-owning class, representing the best social
element in the colonies, extremely conservative, believing in
privilege and fearing the rise of democracy. The other was
composed of the royal officeholders, which included some of the
better families, but was more largely made up of the lower class
of political and social hangers-on, who had been rewarded with
these positions for political debts incurred in England. The
opposition of both groups to the Revolution was inevitable and
easily to be understood, but it was also natural that the
Revolutionists should incline to hold the Loyalists, without
distinction, largely responsible for British pre-Revolutionary
policy, asserting that they misinformed the Government as to
conditions and sentiment in America, partly through stupidity and
partly through selfish interest. It was therefore perfectly
comprehensible that the feeling should be bitter against them in
the United States, especially as they had given efficient aid to
the British during the war. In various States they were subjected
to personal violence at the hands of indignant "patriots," many
being forced to flee from their homes, while their property was
destroyed or confiscated, and frequently these acts were
legalized by statute.

The historian of the Loyalists of Massachusetts, James H. Stark,
must not be expected to understate the case, but when he is
describing, especially in New England, the reign of terror which
was established to suppress these people, he writes:

"Loyalists were tarred and feathered and carried on rails, gagged
and bound for days at a time; stoned, fastened in a room with a
fire and the chimney stopped on top; advertised as public
enemies, so that they would be cut off from all dealings with
their neighbors; they had bullets shot into their bedrooms, their
horses poisoned or mutilated; money or valuable plate extorted
from them to save them from violence, and on pretence of taking
security for their good behavior; their houses and ships burned;
they were compelled to pay the guards who watched them in their
houses, and when carted about for the mob to stare at and abuse,
they were compelled to pay something at every town."

There is little doubt also that the confiscation of property and
the expulsion of the owners from the community were helped on by
people who were debtors to the Loyalists and in this way saw a
chance of escaping from the payment of their rightful
obligations. The "Act for confiscating the estates of certain
persons commonly called absentees" may have been a measure of
self-defense for the State but it was passed by the votes of
those who undoubtedly profited by its provisions.

Those who had stood loyally by the Crown must in turn be looked
out for by the British Government, especially when the claims of
justice were reinforced by the important consideration that many
of those with property and financial interests in America were
relatives of influential persons in England. The immediate
necessity during the war had been partially met by assisting
thousands to go to Canada--where their descendants today form an
important element in the population and are proud of being United
Empire Loyalists--while pensions and gifts were supplied to
others. Now that the war was over the British were determined
that Americans should make good to the Loyalists for all that
they had suffered, and His Majesty's Commissioners were hopeful
at least of obtaining a proviso similar to the one relating to
the collection of debts. John Adams, however, expressed the
prevailing American idea when he said that "paying debts and
compensating Tories" were two very different things, and Jay
asserted that there were certain of these refugees whom Americans
never would forgive.

But this was the one thing needed to complete the negotiations
for peace, and the British arguments on the injustice and
irregularity of the treatment accorded to the Loyalists were so
strong that the American Commissioners were finally driven to
the excuse that the Government of the Confederation had no power
over the individual States by whom the necessary action must be
taken. Finally, in a spirit of mutual concession at the end of
the negotiations, the Americans agreed that Congress should
"recommend to the legislatures of the respective states to
provide for the restitution" of properties which had been
confiscated "belonging to real British subjects," and "that
persons of any other description" might return to the United
States for a period of twelve months and be "unmolested in their
endeavours to obtain the restitution."

With this show of yielding on the part of the American
Commissioners it was possible to conclude the terms of peace,
and the preliminary treaty was drawn accordingly and agreed to
on November 30, 1782. Franklin had been of such great service
during all the negotiations, smoothing down ruffed feelings by
his suavity and tact and presenting difficult subjects in a way
that made action possible, that to him was accorded the
unpleasant task of communicating what had been accomplished to
Vergennes, the French Minister, and of requesting at the same
time "a fresh loan of twenty million francs." Franklin, of
course,
presented his case with much "delicacy and kindliness of manner"
and with a fair degree of success. "Vergennes thought that the
signing of the articles was premature, but he made no
inconvenient remonstrances, ill procured six millions of the
twenty."* On September 3, 1783, the definite treaty of peace was
signed in due time it was ratified by the British Parliament as
well as by the American Congress. The new state, duly accredited,
thus took its place in the family of nations; but it was a very
humble place that was first assigned to the United States of
America.

* Channing, "History of the United States," vol. III, p. 368.
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