4. That the commissioners do negotiate a perpetual treaty of commerce.
5. That all prosecutions of the loyalists in America be immediately abated, and that they be permitted to remain until twelve months after the definitive treaty, unmolested in their endeavors to obtain restitution of their estates.
6. That all prisoners on both sides be immediately released.
7. That intercourse of amity and commerce do immediately take place between Great Britain and the United States of America.
Sketch of a Provisional Treaty of Commerce.
As soon as preliminaries of peace are signed with any independent States, such as Spain, France, and Holland, the course of mutual commerce emerges upon the same terms and conditions as were existing antecedent to the war, the new duties imposed during the war excepted. The case between Great Britain and America is different, because America, from a dependent nation before the war, emerges an independent nation after the war. The basis, therefore, of a provisional treaty between Great Britain and the United States would be simply to arrange such points as would emerge after the war, impracticable and discordant to the newly established independence of the American States, and to leave all others, as much as possible, untouched. For instance, that all instrumental regulations, such as papers, bonds, certificates, oaths, and all other documents should be, between Great Britain and the United States, upon the same footing, and no other than as between Great Britain and any other independent nation, but that all duties, drawbacks, bounties, rights, privileges, and all pecuniary considerations, should emerge into action and effect as before. I say emerge as before, not stipulated for any fixed term, because I am speaking of a provisional treaty, not of a provisional bill of commerce, for a specified period. By this means, all difficulties, which otherwise would be accumulated, and obstruct a temporary and provisional act are avoided in limine. The ports will be immediately opened, upon specified and known conditions. If the legislature of either country thinks proper to introduce on its own part any new conditions or regulations, even previous to the intended treaty of commerce, that will not shut the ports again generally but only operate pro tanto according to the case; on which side soever any novel condition should arise, the other will likewise be at liberty to make any corresponding regulations as between independent nations. The great object is to open the ports between Great Britain and the United States, immediately on the signature of preliminaries of peace, as between France and Great Britain. By the proposition above stated, Great Britain and France, and Great Britain and the United States respectively, on the subject of intercourse of commerce, would emerge again after the war into situations relatively similar to their situation before the war.
The Crown of Great Britain is enabled by the Conciliatory Act of 1782 to repeal, annul, make void, or suspend, for any time or times, the operation and effect of any act of Parliament, or any clause, provision, matter, or thing therein contained, relating to the colonies or plantations now become the United States of America; and, therefore, the crown is not only competent to conclude, but likewise to carry into effect any provisional treaty of commerce with America. The first foundation must be laid in the total repeal of the Prohibitory Act of December, 1775, not only as prohibiting commerce between Great Britain and the United States, but as the corner stone of the war; by giving up universally all American property at sea to military plunder, without any redress to be obtained by law in any British Court of Admiralty. After this, all obstructions from the act of navigation and other acts regulating the commerce of the States of America (formerly dependent upon Great Britain,) may be removed. Instructions may be sent to the Commissioners of the customs to dispense with bonds, certificates, &c. which by the old laws are required to be discharged or attested by supposed governors, naval or customhouse officers in America. The questions of drawbacks, bounties, &c. after opening the ports, may remain free points of discussion and regulation, as between States having no commercial treaty subsisting between them. As the Crown is competent to open an intercourse of commerce with America by treaty, this mode is preferable to any act of Parliament, which may be only a jealous and suspicious convention ex parte. This mode by treaty avoids the accumulated difficulties, which might otherwise obstruct the first opening of the ports by act of Parliament, and above all, it secures an alternate binding part of the bargain, which no act of Parliament can do.
Breviate of the treaty, viz. Provisional for intercourse and commerce between Great Britain and the United States of America.