If Fox had been able to carry his point, matters might have moved more expeditiously. But pending the struggle between him and Shelburne no advance could be made at Paris. Grenville and Oswald could not work in unison. Franklin and de Vergennes became puzzled and suspicious, having only an imperfect inkling by report and gossip concerning the true state of affairs. They suspected, with good show of evidence, that the real object of English diplomacy was to drive in a wedge between the allies. Amid these perplexities, on April 22, Franklin wrote to Jay, begging him to come to Paris: "Here you are greatly wanted, for messengers begin to come and go, ... and I can neither make nor agree to conditions of peace without the assistance of my colleagues.... I wish therefore you would ... render yourself here as soon as possible. You would be of infinite service." Jay arrived on June 23, to Franklin's "great satisfaction," and the meeting was cordial. Jay was thirty-seven years old, and Franklin was seventy-six, but Jay says: "His mind appears more vigorous than that of any man of his age I have known. He certainly is a valuable minister and an agreeable companion."
The deadlock continued. Grenville showed a commission to treat with France and "any other prince or state." But the "enabling act," giving the king authority to acknowledge the independence of the States, had not yet been passed by Parliament; and it did not appear that England recognized the ex-colonies as constituting either a prince or a state. Oswald had no commission at all. Franklin, though he found himself "in some perplexity with regard to these two negotiations," strove to set things in motion. He preferred Oswald to Grenville, and intimated to Lord Shelburne his wish that Oswald should receive exclusive authority to treat with the American commissioners. He at the same time suggested sundry necessary articles to be disposed of by the treaty, namely: independence, boundaries, and the fisheries; and sundry advisable articles, namely: an indemnity to be granted by England to the sufferers by the war; an acknowledgment of her error by England, and the cession of Canada.
But the duel between Shelburne and Fox must first be settled, and it was now about to be settled suddenly and in an unexpected manner. On July 1, 1782, Lord Rockingham died, and the crown, as Walpole facetiously remarked, thereby descended to the king of England. The monarch at once, though very reluctantly, requested Shelburne to accept the post of prime minister, regarding him as in some degree less obnoxious than Fox. Thereupon Fox and his friends retired in high dudgeon from office, and Grenville promptly asked to be recalled. His opportune request was granted very readily, and his place was given to Fitzherbert, who brought personal letters to Franklin, but who was not accredited to treat with the States. It seemed that this business was now again to fall into the hands of Oswald, and accordingly, though he still remained without any definite authority, active discussion was resumed between him and Franklin. Early in August both believed that an understanding upon all important points had been reached. Jay had been ill almost ever since his arrival in Paris, and was only now recovering; Adams was still in Holland; so that Franklin and Oswald had had the whole matter between themselves.
Just at this time Parliament rose; and Shelburne sent Vaughan to Paris to give private assurance to Franklin that there would be no change in policy towards America. A commission was at the same time drawn up and sent to Oswald empowering him to treat with commissioners of the "colonies or plantations, and any body or bodies corporate or politic, or any assembly or assemblies." This singular phraseology at once produced trouble. Jay indignantly repudiated the colonial condition imputed by this language, and resolutely said that independence must be no item in any treaty, but must be recognized before he would even begin to treat. The point was discussed by him with de Vergennes and Franklin. The French minister at first had "objected to these general words as not being particular enough;" but now he changed his mind and advised not to stickle; for independence must be the result of the treaty, and it was not to be expected that the effect should precede the cause. Franklin, with evident hesitation and reluctance,[83] gave his opinion that the commission "would do." Oswald then showed his instructions, which directed him to concede "the complete independence of the thirteen States." Unfortunately the enabling act had not even yet passed, so that there was some doubt as to the power of the ministers to agree to this. Jay's determination remained unchanged; for he suspected that the motives of de Vergennes were not disinterested, and thought that Franklin was hoodwinked by his French predilections. Franklin, on the other hand, thought that the minister wished only to expedite the negotiation as much as possible, a matter in which he himself also was very zealous; for he understood the English political situation and knew that Shelburne's tenure of power was precarious, and that any possible successor of Shelburne would be vastly less well-disposed to the States. This induced him to stretch a point in order to go on with the treating. Parliament was to meet on November 26, and unless peace could be concluded before that time, the chance for it thereafter would be diminished almost to the point of hopelessness. But Adams wrote from Holland that he also disapproved the unusual form of the commission, though a commission to treat with envoys of "the United States of America" would satisfy him, as a sufficient implication of independence without an explicit preliminary acknowledgment of it.
About the middle of August Jay drew up a letter, suggesting very ingeniously that it was incompatible with the dignity of the king of England to negotiate except with an independent power; also that an obstacle which meant everything to the States, but nothing to Great Britain, should be removed by his majesty. Franklin thought that the letter expressed too positively the resolve not to treat save upon this basis of pre-acknowledged independence. He evidently did not wish to bolt too securely the door through which he anticipated that the commissioners might in time feel obliged to withdraw. Moreover Jay thought that at this time "the doctor seemed to be much perplexed and fettered by our instructions to be guided by the advice of this court," a direction correctly supposed to have been procured by the influence of the French envoy at Philadelphia.
Jay's suspicions concerning the French minister happened now to receive opportune corroboration. On September 4 Rayneval, secretary to de Vergennes, had a long interview with Jay concerning boundaries, in which he argued strongly against the American claims to the western lands lying between the Alleghanies and the Mississippi. This touched Jay nearly, for the navigation of the Mississippi was the one object which he had especially at heart. Six days later the famous letter of Marbois, de la Luzerne's secretary, which had been captured en route from Philadelphia to de Vergennes at Paris, was put into the hands of Jay through the instrumentality of the English cabinet. This outlined a scheme for a secret understanding between England and France to deprive the Americans of the Newfoundland fisheries. This evidence seemed to prove Jay's case; yet Franklin remained strangely unshaken by it, for he reflected that it came from the British ministry and was infected with suspicion by this channel. But still another occurrence came to strengthen Jay's conviction of some latent hostility in the French policy, for he learned that Rayneval was making a rapid and secret journey to London. He felt sure that this errand was to intimate to Shelburne that France did not incline to support the demands of her American allies. In the fullness of his faith he took a courageous, very unconventional, but eminently successful step. He persuaded Vaughan to hasten to London, and to present sundry strong arguments going to show that it was the true policy of England to grant the demands of the States rather than to fall in with the subtle plans of France. He felt with regret that he could not consult Franklin regarding this proceeding, which he undertook upon his own sole responsibility. It put Shelburne in a singular position, as arbiter between two nations enemies of England and allies of each other, but each manœuvring to secure its own advantage at the cost of its friend, and to that end presuming to advise him upon English interests. He did not ponder long before accepting the American arguments as the better, and deciding that the English policy was rather to be liberal towards a kindred people than to unite with a traditional foe in curtailing their prosperity. He said to Vaughan: "Is the new commission necessary?" "It is," replied Vaughan; and his lordship at once gave orders for making it out. Had he fallen in with the French ideas, he would, upon the contrary, have cherished this disagreement for a while, in order finally to sell out a concession on this point at the price of some such substantial matter as the fisheries or the western lands. Forthwith Vaughan was on his way back to Paris, accompanied by a messenger who carried the amended document empowering Oswald to treat with the commissioners of the "Thirteen United States of America, viz.: New Hampshire," etc., naming them all. "We have put the greatest confidence, I believe, ever placed in man, in the American commissioners. It is now to be seen how far they or America are to be depended upon.... There never was such a risk run; I hope the public will be the gainer, else our heads must answer for it, and deservedly." Such were the grave and anxious words of the prime minister.
Upon the receipt of this commission negotiations were actively resumed, Franklin and Jay on one side, Oswald alone on the other. The old ground was gone over again. On October 5-8, both parties assented to a sketch of a treaty, which Oswald transmitted to London for consideration by the ministry. But the raising of the siege of Gibraltar, and reflection upon the probable results of the incipient estrangement between American interests and those of France and Spain, now induced the English to hope for more favorable terms in some particulars. So instead of adopting this draft they sent over Mr. Strachey, a man especially well informed concerning the disputed boundaries, to reinforce Oswald in an effort to obtain modifications on these points.
Meantime another serious difference of opinion was developed between Franklin and Jay. The influence of de Vergennes at Philadelphia had by no means been exhausted in securing colleagues for Mr. Adams. He had further desired to have the American envoys instructed that no American demands outside of independence must be allowed to interpose obstacles in the way of French purposes. In this he had been wholly successful. Of the demands which Congress had at first intended to insist upon, one after another was reduced to a mere recommendation, until at last independence alone was left as an absolute and definitive ultimatum. Moreover the closing paragraph of the instructions actually bade the envoys to maintain constant communication with their generous ally the king of France, and in the last resort to be governed in all matters by his advice. This servility had raised the ire of Jay almost to the point of inducing him to refuse a post so hedged around with humiliation. With his views concerning the intentions of de Vergennes it now seemed to him intolerable to jeopard American interests by placing them at the mercy of a cabinet which unmistakably, as it seemed to him, designed to sacrifice them to its own ends. Accordingly he was for disobeying this unworthy instruction of Congress, and for conducting the negotiation in strict secrecy as towards the French minister. But Franklin was no less resolute on the other side. His established and grateful confidence in de Vergennes remained unshaken, and he saw no error in consulting the wisest, and by all proofs the best and truest friend whom the States had ever had. Moreover he saw that the orders of Congress were imperative. It was a serious division. Fortunately it was soon settled by the advent of John Adams, about the end of October. That gentleman, prompt, fearless, and suspicious, at once fell in with Jay's views. In a long evening's talk he apparently read Franklin a pretty severe lecture, and certainly ranged himself very positively on Jay's side. Franklin listened to his vehement colleague, and at the moment held his peace in his wise way. It was true that Adams brought the casting vote, though Franklin of course might resist, and could make his resistance effectual by communicating to de Vergennes all which passed, and in so doing he would be backed by the authority and orders of Congress. But he determined not to pursue this course. When next they all met for conference he turned to Jay and said: "I am of your opinion, and will go on without consulting this court." This was all that passed when thus for a second time Franklin surrendered. Nothing indicates by what motives he was influenced. Some writers suggest that he had a lurking notion that Jay's views were not altogether ill founded; but later he declared the contrary.[84] Others fancy that he simply yielded to a majority vote. To me it seems more probable that, weighing comparative importance, he gave in to what he conceived to be the supreme necessity of advancing to a speedy conclusion; for, as has been said, he keenly appreciated that time was pressing. Parliament was to meet in a few weeks, on November 26, and it daily became more evident that if a treaty was to be made at all, it must be consummated before that date. Now, as in the question concerning the preliminary acknowledgment of independence, peace overruled all considerations of minor points.
If this was indeed his end, he achieved it, for negotiations were now zealously pushed. The important question of the western boundaries and the navigation of the Mississippi was the especial concern of Jay. Spain covertly wished to see the States worsted upon these demands, and confined between the Alleghanies and the sea; and the Bourbon family compact influenced France to concur with the Spanish plans. But in the secret treating Jay prevailed. The fisheries were the peculiar affair of Adams, as the representative of New England. France would fain have had the States shut out from them altogether; but Adams carried the day. Some concessions were made concerning the collection of debts owing in the States to Englishmen, and then there remained only the matter of indemnification to American royalists. Upon this the fight was waged with zeal by all; yet Franklin had the chief responsibility to bear. For there now arose to plague him that unfortunate proposition of his for the cession of Canada and the restoration of confiscated Tory property in the States. This encouraged the English and gave them a sort of argument. Moreover the indemnification was "uppermost in Lord Shelburne's mind," because, unlike other matters, it seemed a point of honor. With what face could the ministry meet Parliament with a treaty deserting all those who had been faithful to their king? It was indeed a delicate position, and the English were stubborn; but no less so was Franklin, upon the other side. With the great province of Canada as an offset, or quasi fund, the States might have assumed such an obligation, but without it, never. Further the American commissioners reiterated the explanation often given: that Congress had no power in the premises, for the matter lay within the sovereign jurisdiction of each State. This argument, however, really amounted to nothing; for if the fact was so, it behooved the States to give their agent, the Congress, any power that was necessary for making a fair treaty; and England was not to be a loser by reason of defects in the American governmental arrangements. For a while it really seemed that the negotiation would be wrecked upon this issue, so immovable was each side. As Vaughan wrote: "If England wanted to break, she could not wish for better ground on her side. You do not break, and therefore I conclude you both sincere. But in this way I see the treaty is likely of itself to break."
Franklin now ingeniously counteracted his earlier imprudence by reviving an old suggestion of his, that immense claims might be preferred against England on behalf of Americans whose property had been wantonly destroyed, especially by the burning and plundering of towns, and he actually presented an article providing for such compensation, and an elaborate written paper sustaining it.[85] At last the Englishmen sought final instructions from Lord Shelburne. He replied with spirit that it should be understood that England was not yet in a position to submit to "humiliation," least of all at the hands of Americans; but finally he so far yielded as to say that indemnification need not be absolutely an ultimatum. This settled the matter; the negotiators who could yield must yield, and they did so. A sort of compromise article was inserted: "that Congress should recommend to the state legislatures to restore the estates, rights, and properties of real British subjects." The American envoys knew that this was worthless, and the English negotiators certainly were not deceived. But the article sounded well, and gave at least a standing ground for the ministry to defend themselves.[86]