of those islands in the establishment, in connection with the missionaries, of temperance restrictions, can only do so through the agency of the German government. Mr. Evarts, Sec. of State, to Mr. White, min. to Germany, Nov. 13, 1880, "We have no treaty relations with the Gilbert and Marshall islands, or any knowledge of the intention of Germany with respect thereto, except the reports which reach us, with more or less authenticity, that Great Britain and Germany have agreed upon lines of division in the Pacific Ocean, by which determinate areas will be open to the exclusive settlement and control of the respective Governments." Mr. Bayard, Sec. of State, to Mr. Morrow, M. C., Feb. 26, 1886, 159 MS. See, also, Mr. Bayard, Sec. of State, to Mr. Pendleton, Feb. 27, 1886, MS. As to the subsequent establishment by Great Britain of a protectorate XIX. GREAT BRITAIN. 1. TREATY OF PEACE, 1782–83. (1) NEGOTIATIONS. § 824. "It was not until after the first edition of this work [Wharton's Int. Law Dig.] was printed that I [Dr. Wharton] had the opportunity and leisure to examine the Stevens collection of Franklin papers, purchased by Congress, and now on deposit in the Department of State. As to the extraordinary historical value of those papers, as well as the singular skill with which they have been ar ranged by Mr. Stevens, I entirely concur with Dr. E. E. Hale in the opinion expressed by him in the preface to the interesting volume published this year by himself and his son (Franklin in France, from original documents, by Edward E. Hale and Edward E. Hale, jr., Boston, 1887). Dr. Hale, in this valuable volume, closes his compilation of the Franklin papers with 1782. My object in the present note is (beginning shortly after Dr. Hale closes) to use the materials afforded by the Stevens collection as a means of construing the treaty of peace as definitely settled on September 3, 1783. "The questions which the Franklin papers help largely to solve are, it should be recollected, of great interest in reference not merely the history but to international law. If, as the papers now before us show, the treaty of 1782-3 was a treaty of partition of an empire, then each of the two sovereignties thus separated carried with it all the incidents that it had enjoyed prior to partition so far as this does not conflict with the treaty limitations. The importance of this distinction is manifest. If the United States took by "grant" under the treaty, then the rights of reciprocity, both as to fisheries and as to navigation, which existed previously between the colonies and the parent state, could only, so it might be argued, be claimed under the treaty so far as it created them de novo. If, on the other hand, the treaty was one of partition, then these rights remained, except so far as they were limited in the treaty. That the latter view is correct is, I submit, abundantly shown in prior volumes of this work, supra, § § 150, 301 ff. And it is so fully sustained by the papers contained in the Stevens collection that I have thought it important to introduce into this appendix extracts from such of those papers as bear on this question. "Before, however, proceeding to this specific task it is important to notice the vividness with which these papers bring before us, with an accuracy heretofore unobtainable, the leading personages who were concerned in the negotiation of the treaty. The more prominent of these personages, whose letters, many of them in the original manuscript, are now in the Department of State, and some of whose private memoranda and journals are also there deposited, are as follows: The Earl of Shelburne, Mr. Charles James Fox, Mr. Richard Oswald, Mr. Thomas Grenville, Count de Vergennes, Dr. Franklin, Mr. Jay, and Mr. John Adams. "The condition of things, so far as concerned Great Britain, at the time when the peace negotiations began, was as follows: "On February 27, 1782, Lord North being still minister, the opposition carried a resolution declaring the advisers of further offensive war with America to be enemies of their country. On March 8 a resolution of censure on the ministry came within a few votes of adoption. On March 15 a motion of want of confidence in the ministry was lost by a majority of 9, but notice was given of its renewal on the 20th. On that day Lord North resigned, and George III. called on Lord Shelburne for advice. Lord Shelburne declared it essential that Lord Rockingham should be made minister, one of the conditions being the recognition of the independence of the United States. In the ministry thus constituted, Lord Rockingham, as prime minister, took the treasury; Lord John Cavendish was chancellor of the exchequer; Mr. Fox, secretary for foreign affairs; Lord Shelburne, secretary for home and colonial affairs, while Dunning, a lawyer of great eminence, and a personal friend of Shelburne, entered into the cabinet as Lord Ashburton and chancellor of the Duchy of Lancaster. As noncabinet officers were Burke, pay-master general; Thomas Townshend, secretary at war, and Sheridan, undersecretary of state. The Duke of Portland, afterwards prime minister, went to Ireland as lord-lieutenant. Mr. Pitt declined to take any office that did not bring a seat in the cabinet, and no seat in the cabinet was offered to him. Lord Shelburne. "The Earl of Shelburne, whose character is one of those as to which historians have had the greatest difficulty in giving an explicit judgment, had, in his early political life, been associated with Henry Fox, the first Lord Holland, and with Lord Bute. Certainly two more unsafe guides could not have been found: The first able, subtle, determined, corrupt, making the amassing of wealth his chief parliamentary object; the other a stupid and pompous egotist, without statesmanlike ability, owing his position to the favor with which he was personally regarded by the Princess of Wales during the minority of George III.; and, by his high tory views of prerogative, coupled with his pretentious manner, acquiring great influence over that monarch during the early years of his reign. Lord Shelburne's letters to both Fox and Bute show characteristics which enable us to understand why, against Shelburne, the charge of duplicity was so frequently made. But it must be remembered that Shelburne was then a young man conscious of great ability, possessing great wealth, and with a natural ambition to take a leading position in English political life. English politics were at that time in a chaotic state. There was no strong liberal party as such; leading Whigs had become, as in the case of George Grenville, advocates of high prerogative. William Pitt, the father, withdrawn from political activity by ill health, was about for a time to be sunk in the obscurity of the House of Lords. Lord Shelburne's flattery of Lord Holland and Lord Bute was no more fulsome, and was probably no less entirely a matter of form, than was Lord Chatham's flattery of most of the leading public men to whom his letters are preserved; and it must be kept in mind that as soon as Lord Chatham reappeared on the political stage, taking, whenever his health enabled him to take, a leading independent part, he was sustained by Lord Shelburne with a resoluteness and energy which can not now be questioned. But however this may be, of two points as to Lord Shelburne we may rest assured. Whatever may have been his early political associations, his personal sympathies, as his life matured, were with the school of liberal political economists, of which Adam Smith was the head, and among whose members were Franklin, Price, and Priestley. He did not, indeed, avow republican sentiments, however much he may have regarded them as in theory sound; in this respect following Halifax, whom he resembled in not a few characteristics. Yet his intimacy with philosophical republicans of the advanced whig school, his impatient disdain of the old-line aristo cratic Whigs, his opposition to the British navigation laws, his advocacy of free trade, his views on the French Revolution, taking, as did Jefferson, a wise intermediate position between the terroristic antagonism of Burke and the extravagant Utopian advocacy of Fox, all indicate that his convictions were those of liberals such as Franklin and Jefferson. All this, in the negotiations with America, which were to be conducted by him, would lead him to strive for a peace which would establish free commercial relations between the two countries. But there were other reasons why such a peace should not only be negotiated, but negotiated promptly. Lord Shelburne, like Lord Chatham, had resisted the pressure of the Rockingham Whigs, led by Fox and Burke, for a recognition of American independence as a substantive prerequisite to be followed by whatever treaties Great Britain's superior strength might then enable her to impose. This, of course, would amount practically to Great Britain saying to the colonies, as soon as by acknowledging their independence she had detached them from their European allies, Go off by yourselves; I clear my skirts of you; whatever you get from me afterwards must be a matter of favor.' On the other hand, Shelburne, like Chatham, clung to the idea of an imperial confederation, and when this was out of the question, to a treaty of partition, based on reciprocal enjoyment of ancient rights. On this basis, as we will see, were framed the provisional articles which afterwards took the shape of the treaty of peace. And that they were peculiarly liberal to the United States is due not merely to Shelburne's views, as above expressed, but to the necessity of his then political position. "The struggle between Fox and Shelburne for the control of the negotiations with Franklin, then the sole minister of the United States in Paris, will be noticed presently more fully. It is enough at this point to say that the formal right in this respect was with Shelburne, since the colonies belonged to him, and, until their independence was acknowledged, the United States, to the British eye, were still colonies. Fox, unable to submit to this conclusion, was about to resign, when the death of Lord Rockingham, on July 1, 1782, precipitated the resignation not merely of Fox but of his immediate friends. A new cabinet was framed, with Shelburne at the head of the treasury, Thomas Townshend secretary for the colonies, Lord a Of Shelburne, Lecky (4 Hist. Eng. 226, Am. ed.), while taking in other points a lower view than that given in the text, writes: "He was one of the earliest, ablest, and most earnest of English free traders, and no statesman of his time showed himself so fully imbued with the commercial views of Adam Smith. ... His private life was eminently respectable. He bore a long exclusion from office with great dignity and calm, and no part of his public career appears to have been influenced by any sordid desire of emolument, title, or place." Grantham secretary for foreign affairs, and William Pitt chancellor of the exchequer. Of the cabinet, Mr. Bancroft (Formation of the Federal Constitution, Book I., Chapter III.) thus speaks: "The restoration of intercourse with America pressed for instant consideration. Burke was of opinion that the navigation act should be completely revised; Shelburne and his colleagues, aware that no paltry regulation would now succeed, were indefatigable in digesting a great and extensive system of trade, and sought, by the emancipation of commerce, to bring about with the Americans a family friendship more beneficial to England than their former dependence. To promote this end, on the evening of the 11th of February [1783], William Pitt, with the permission of the King, repaired to Charles James Fox and invited him to join the ministry of Shelburne. The only good course for Fox was to take the hand the young statesman offered; but he put aside the overture with coldness, if not with disdain, choosing a desperate alliance with those whose conduct he had pretended to detest, and whose principles it was in later years his redeeming glory to have opposed.' 6 "On April 3, Pitt, still retaining, in the delay incident to the formation of the coalition ministry, the leadership of the House, presented,' to follow Mr. Bancroft's narrative, a bill framed after the liberal principles of Shelburne. Its preamble, which rightly described the Americans as aliens, declared "it highly expedient that the intercourse between Great Britain and the United States should be established on the most enlarged principles of reciprocal benefit;" and, as a consequence, not only were the ports of Great Britain to be opened to them on the same terms as to other sovereign states, but, alone of the foreign world, their ships and vessels, laden with the produce and manufactures of their own country, might as of old enter all British ports in America, paying no other duties than those imposed on British vessels.' The bill was opposed by Eden (afterwards Lord Auckland), as introducing a bold revolution in our commercial system.' Its principle was sustained by Burke, who urged that all prohibitory acts be repealed,' and that the Americans should be left in every respect as they were before in point of trade.' But before further action had been taken on the bill, Lord Shelburne's ministry went out of office, the coalition having at last succeeded in forming a ministry which commanded a majority in .the House of Commons. Pitt going out of office with Shelburne, the bill was dropped. By the coalition cabinet, which succeeded, it was utterly repudiated; Fox, while apparently recognizing the justice of free navigation as a principle, declaring that 'great injury often comes from reducing commercial theories to practice.' Fox's further proceedings in this connection will be noticed when we proceed to H. Doc. 551-vol 540 |