No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 14 October 2024
Historians have long known that leaders of the American Revolution looked to the law of nations for insight into the rights and obligations of independent states. In so doing, Americans relied largely on the writings of European legal theorists, such as Hugo Grotius and Emerich de Vattel, whose treatises on the law of nations are regarded today as having laid the foundations of international law. As this article demonstrates, however, early modern statesmen did not base their conduct on such treatises, but on a customary law of nations that they derived from precedent and the text of earlier treaties. This article elucidates the distinction between the customary and theoretical branches of the law of nations. It then goes on to examine the law of nations’ impact on revolutionary-era diplomacy, drawing particular attention to a series of wartime negotiations over rights to the Mississippi River. As the article shows, most American emissaries lacked experience with the customary laws of diplomacy and struggled to use that law effectively in their negotiations. The most serious consequences were averted due in part to French legal advice, and because one American, John Jay, acquired enough competence in customary law to guide his colleagues toward an effective negotiation of peace.
1 Benjamin Franklin to Alexander Dumas, December 19, 1775, in The Revolutionary Diplomatic Correspondence of the United States, ed. Francis Wharton, 6 vols. (Washington, DC: United States Government Printing Office, 1888), 2:64 (hereafter RDC). Vattel's treatise was the latest contribution to a genre that dated back to the medieval era. Other writers in the early modern era included: John Selden (1584–1654), Christian Wolff (1679–1754), and Jean Jacques Burlamaqui (1694–1748). For the law of nations in the history of international law see: Grewe, Wilhelm G., The Epochs of International Law, trans. Byers, Michael (Berlin: Walter de Gruyter, 2000)CrossRefGoogle Scholar; The Oxford Handbook of the History of International Law, eds. Bardo Fassbender and Anne Peters (Oxford: Oxford University Press, 2012); and Neff, Stephen C., Justice Among Nations: A History of International Law (Cambridge, MA: Harvard University Press, 2014)Google Scholar. For the law of nations in the American Revolution see especially, Onuf, Peter and Onuf, Nicholas, Federal Union, Modern World: The Law of Nations in an Age of Revolutions: 1776–1814 (Madison: Madison House, 1993)Google Scholar; Armitage, David, “The Declaration of Independence and International Law,” The William and Mary Quarterly 59, no. 1 (January 2002): 39–64CrossRefGoogle Scholar; Golove, David and Hulsebosch, Daniel, “A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition,” New York University Law Review 85 (October 2010): 953–60Google Scholar; and Gould, Eliga, Among the Powers of the Earth: The American Revolution and the Making of a New World Empire (Cambridge: Harvard University Press, 2012)Google Scholar. For the law of nations in the early American judiciary see especially, Dickinson, Edwin, “The Law of Nations as Part of the National Law of the United States,” The University of Pennsylvania Law Review 101 (1952–1953): 26–57CrossRefGoogle Scholar; and Jay, Stewart, “The Status of the Law of Nations in Early American Law,” Vanderbilt Law Review 42 (1989): 819–49Google Scholar. Alexander Hamilton, “Defence No. XX,” October 23 and 24, 1795, The Papers of Alexander Hamilton, ed. Harold C. Syrett, 27 vols. (New York: Columbia University Press, 1973), 19:341. See also J. G. A. Pocock's reference to the founders’ “triadic incantations of Grotius, Pufendorf, and Vattel” in, “Political Thought in the English-Speaking Atlantic, 1760–1790, Part I: The Imperial Crisis,” in The Varieties of English Political Thought, 1500–1800, ed. J. G. A. Pocock (New York: Cambridge University Press, 1993), 282.
2 Neff writes that, “[I]n Europe, a rich body of state practice arose in international legal affairs to deal with practical problems for which natural law had no ready answers,” Justice Among Nations, 98; while Randall Lesaffer notes that, “Scholarly doctrine certainly did not constitute the major source of inspiration for the diplomats who negotiated and wrote the peace treaties of the early modern era… who first and foremost relied on older peace instruments.” “Alberico Gentili's ius post bellum and Early Modern Peace Treaties,” in The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire, eds. Benedict Kingsbury and Benjamin Straumann (Oxford: Oxford University Press, 2010), 210–40 at 214.
3 Anthony Carty writes, “There is no comprehensive history of the concept of customary international law.” “Doctrine versus State Practice,” in The Oxford Handbook, eds. Bardo Fassbender and Anne Peters, 972–96 at 977. Grewe concurs, writing that “reliable research” on “state practice of the law of nations during the Spanish Age… does not yet exist,” The Epochs of International Law, 150; Neff adds that the practice of deriving legal principles from earlier treaties and negotiations is “a subject area that has yet to be explored in any detail,” Justice Among Nations, 191. Randal Lesaffer writes that early modern diplomacy resulted in “political compromises” that made “no allowance for the dictates of justice.” “Alberico Gentili's ius post bellum,” 225.
4 American merchants and lawyers were well versed in maritime and commercial law. Military officers had also been exposed to the laws of war during the Seven Years’ War. Jay, John, “An Address to the People of the State of New-York, On the Subject of the Constitution,” in The Selected Papers of John Jay, ed. Nuxoll, Elizabeth, 7 vols. (Charlottesville: University of Virginia Press, 2010–2021), 4:682Google Scholar (hereafter SPJJ).
5 Lyons, Benjamin C., “The Law of Nations and the Negotiation of the Treaty of Paris (1783),” Journal of the Early Republic 42 (Summer 2022): 205–25CrossRefGoogle Scholar.
6 For ius gentium during the Roman era see Herzog, Tamar, A Short History of European Law: The Last Two and a Half Millennia (Cambridge, MA: Harvard University Press, 2018), 26–27CrossRefGoogle Scholar; and Grewe, The Epochs of International Law, 8–9. For Cicero's contribution to the law of nations see Kaius Tuori, “The Reception of Ancient Legal Thought in Early Modern International Law,” in The Oxford Handbook, eds. Bardo Fassbender and Anne Peters, 1012–33 at 1016–18. Gratian, The Treatise on Laws, Decretum DD, trans. Augustine Thompson (Washington, DC: The Catholic University of America Press, 1993), 1–20. Tuori states that Gratian took his definition from Isidore of Seville (560–636), “Reception of Ancient Legal Thought,” 1017–18.
7 Queller, Donald, The Office of Ambassador in the Middle Ages (Princeton: Princeton University Press, 1967)Google Scholar, vii, 11, and 13. For the law of nations during the medieval era see Grewe, The Epochs of International Law, 67–69, 93–95, and 103–5; and Mattingly, Garrett, Renaissance Diplomacy (Baltimore: Penguin Books, 1955), 246–47Google Scholar. For the law of nations as derived from other bodies of European law, see Randall Lesaffer, “Peace Treaties and the Formation of International Law,” in The Oxford Handbook, eds. Bardo Fassbender and Anne Peters, 71–94 at 74–75. For the contribution of church canonists see Mattingly, Renaissance Diplomacy, 19; and Grewe, The Epochs of International Law, 83–86. Grewe notes that “[t]he formation and development of rules and norms of the law of nations during the Middle Ages, was mainly a product of the diplomatic and treaty practice of the various temporal and spiritual powers.” He adds that, “The customary law of nations found particular expression in the field of maritime law and was impressively codified… [linking the] law of trade and navigation closely with the maritime law of peace and war,” The Epochs of International Law, 88 and 91. For Europe as a singular body politics, see Jackson, Robert, Sovereignty: Evolution of an Idea (Cambridge: Polity Press, 2007), 24–55Google Scholar. For ecclesiastical oversight of the political realm, see Grewe, The Epochs of International Law, 69 and 72–73. For the distinction between theoretical and customary laws of war, see Grewe, The Epochs of International Law, 105–6.
8 de Vitoria, Francisco, “De Indis (1538),” in Francisco de Vitoria: Political Writings, ed. Pagden, Anthony (New York: Cambridge University Press, 1991), 231–92CrossRefGoogle Scholar. For the medieval law of nations as applying principally to Europe and only partly to relations with non-European states see Grewe, The Epochs of International Law, 150–51; and Heinz Duchhardt, “From the Peace of Westphalia to the Congress of Vienna,” in The Oxford Handbook, eds. Bardo Fassbender and Anne Peters, 628–52 at 644. Martin Kintzinger states that Vitoria built on Cicero's idea that the law of nations was “given by nature to every human being and all people and nations.” “From the Late Middle Ages to the Peace of Westphalia,” in The Oxford Handbook, eds. Bardo Fassbender and Anne Peters, 607–27 at 619 and 621–22. For Suárez's contribution, see Neff, Justice Among Nations, 153–58. For Gentili's, see Grewe, The Epochs of International Law, 187–90; and essays in Kingsbury and Straumann, The Roman Foundations.
9 Grotius, Hugo, On the Law of War and Peace, 3 vols. (Indianapolis: Liberty Fund, 2005)Google Scholar. For the political context in which Grotius wrote, see Nellen, Henk, Hugo Grotius: A Lifelong Struggle for Peace in Church and State, 1583–1645 (Leiden: Brill, 2015)CrossRefGoogle Scholar, which contains a summary of his treatises on 371–75. According to Vattel, Grotius held that, “When a number of persons at different times and in different places maintain the same principle as true,” then their “common opinion” can be attributed to “universal consent,” such that the principle in question became binding on all nations. Emerich de Vattel, The Law of Nations or the Principles of Natural Law, Applied to the Conduct and to the Affairs of Nations and of Sovereigns, trans. Charles G. Fenwick, 3 vols. (Buffalo, NY: William S. Hein & Co., 1995 [1916] [1758]), Book I, “Preface,” 4a–5a.
On the question of whether Grotius or Suárez merits the title, “father international law” see James Muldoon's historiographic essay, “The Contribution of Medieval Canon Lawyers to the Formation of International Law,” Traditio 28 (1972): 483–97. For the European legal and intellectual context in which Vitoria, Grotius, and Suárez were working, see Bellomo, Manlio, The Common Legal Past of Europe, 1000–1800, trans. Cochrane, Lydia (Washington, DC: Catholic University of America Press, 1995)CrossRefGoogle Scholar; Stein, Peter, Roman Law in European History (New York: Cambridge University Press, 1999)CrossRefGoogle Scholar; and Kuttner, Stephan, “The Revival of Jurisprudence,” in Renaissance and Renewal in the Twelfth Century, eds. Benson, Robert L. and Constable, Giles (Cambridge, MA: Harvard University Press, 1982), 299–323Google Scholar.
10 See note 2. For the treatises in schools of diplomacy, see Roosen, William J., The Age of Louis XIV: The Rise of Modern Diplomacy (Cambridge, MA: Schenkman, 1976), 74–75Google Scholar. For their importance to English jurists, see Chief Justice Mansfield's opinion in Triquet v. Bath (1764) as discussed in Bederman, David J., The Classical Foundations of the American Constitution: Prevailing Wisdom (New York: Cambridge University Press, 2008), 239CrossRefGoogle Scholar, with citation to 3 Bur., at 1478, 1481, and 97. The works of Grotius and other Protestant theorists were banned in Spain until the late eighteenth century, see del Moral, Ignacio de la Rasilla, In the Shadow of Vitoria: A History of International Law in Spain (Leiden: Brill, 2018), 31–32Google Scholar. For the training of a typical minister of state, see the first few chapters of Murphy, Orville T., Charles Gravier, Comte de Vergennes: French Diplomacy in the Age of Revolution, 1719–1787 (Albany: State University of New York, 1982), 3–76Google Scholar.
11 On the history of diplomatic method, see especially, M. S. Anderson, The Rise of Modern Diplomacy: 1450–1919 (London: Longman, 1990); Politics and Diplomacy in Early Modern Italy: The Structure of Diplomatic Practice, 1450–1800, ed. Daniela Frigo (New York: Cambridge University Press, 2000); Harold Nicolson, The Evolution of Diplomatic Method (Westport, CT: Greenwood, 1977 [1954]); and Roosen, The Age of Louis XIV. For the increased use of resident ambassadors during the fifteenth century, see Queller, The Office of the Ambassador, 76–84; and Nicolson, The Evolution of Diplomatic Method, 25–46.
12 For the dissemination of the new diplomatic methods throughout Europe see William R. Polk, Neighbors and Strangers: The Fundamentals of Foreign Affairs (Chicago: University of Chicago, 1997), 253–58; Anderson, The Rise of Modern Diplomacy, 40–80; and Lesaffer, “Peace Treaties and the Formation,” 78–83. For recent literature on the rise of the nation state see Daniel Philpott, Revolutions in Sovereignty: How Ideas Shaped Modern International Relations (Princeton: Princeton University Press, 2001); and Daniel Nexon, The Struggle for Power in Early Modern Europe: Religious Conflict, Dynastic Empires, and International Change (Princeton: Princeton University Press, 2009). On sovereignty see Kintzinger, “From the Late Middle Ages,” 627. Neff states that though, “the idea of papal or imperial institutions exercising a permanent oversight or restraint on governments no longer held sway…, natural law… continued to hover above the various independent states… and, at least in principle, to place legal restraints on their actions,” Justice Among Nations, 140–41. William Roosen writes that in the seventeenth century, one can say either that “the state was the personification of the ruler or that the ruler embodied the state,” The Age of Louis XIV, 72. For the importance of pacta sunt servanda, see Lesaffer, “Peace Treaties and the Formation,” 83; and Anthony Carty who cites Emmannuelle Jouannet to the effect that by the eighteenth century, “there was a legal conscience of a fundamental rule of… pacta sunt servanda.” “Doctrine Versus State Practice,” 993.
13 Gérard to Vergennes, August 7, 1778, in Despatches and Instructions of Conrad Alexandre Gérard: 1778–1780, ed. John J. Meng (Baltimore: The Johns Hopkins Press, 1939), 202. The Americans had access to bound volumes of European treaties, which contained major points of legal doctrine, but did not explain how to employ law in practice. In 1776, for example, Benjamin Franklin gave John Adams “a printed Volume of Treaties” for use in drafting the “model treaty” with European states. The Diary and Autobiography of John Adams, ed. L. H. Butterfield, 4 vols. (Cambridge, MA: Belknap Press of Harvard University Press, 1961), 3:338.
14 Henri Doniol, ed. Histoire de la Participation de la France à l’établissement des Étas-Unis d'Amérique: Correspondence Diplomatique et Documents, 5 vols. (Paris: Imprimerie Nationale, 1886–1892), 4:453. See for example Richard B. Morris's reference to the “pseudo-Machiavellian ethics” of early modern statecraft in James H. Hutson, “The Treaty of Paris and the International State System,” in The Treaty of Paris (1783) in a Changing States System, ed. Prosser Gifford (Lanham, MD: University Press of America, 1984), 4. Daniela Frigo writes that in the eighteenth century, “the principles of ‘distinction’ and ‘honour’… dominated relations among…European powers,” Politics and Diplomacy, 21.
15 The notion that treaty obligations could be broken for “good reason” dated back to the Greek and Roman eras. Nicolson, The Evolution of Diplomatic Method, 10. Carty notes that many of the philosophical treatises were written to help statesmen “draw a distinction between justifying pretexts of legal arguments and real underlying motives.” “Doctrine Versus State Practice,” 994.
16 For the failed invasion of England, see A. Temple Patterson, The Other Armada: The Franco–Spanish Attempt to Invade Britain in 1779 (Manchester: Manchester University Press, 1960).
17 An English translation of the Convention of Aranjuez is in Samuel F. Bemis, The American Secretaries of State and Their Diplomacy (New York: Alfred A. Knopf, 1927), 1:294–99. Spain's efforts to void the Treaty of Aranjuez are detailed in Samuel F. Bemis, The Hussey-Cumberland Mission and American Independence: An Essay in the Diplomacy of the American Revolution (Princeton: Princeton University Press, 1931), 35–40, with primary sources in the appendix. In 1763, the French foreign minister Choiseul negotiated terms of peace with England and then presented Spain with a fait accompli, leaving Carlos III no choice but to sign or continue the war on his own.
18 In Article VIII of the Franco–American treaty of alliance, the signatories pledged not to “lay down their arms, until the Independence of the united states shall have been formally or tacitly assured,” Treaties and Other International Acts of the United States of America, ed. Hunter Miller (Washington: United States Government Printing Office, 1931–1948), 2:36–39. Floridablanca's proposal is described in Bemis, The Hussey-Cumberland Mission, 28–29.
19 For sovereigns’ exclusive jurisdiction over the conduct of war and diplomacy see Duchhardt, “From the Peace of Westphalia,” 634 and 652. See also Lesaffer's statement that, after the seventeenth century, “no regular peace treaties between princes and rebels and can be found, except those ending in the successful secession of the rebels.” “Peace Treaties,” 81. “States” and “sovereigns” were generally synonymous in this era, though a small number of princes were regarded as sovereigns despite the fact that their territories were not large enough to constitute states. Frigo writes that a defining attribute of states was the acquisition of a “monopoly over foreign policy.” Politics and Diplomacy, 7. See also, J. Craig Barker, “The Theory and Practice of Diplomatic Law in the Renaissance and Classical Periods,” Diplomacy and Statecraft 6, no. 3 (1995): 593–615.
20 Garret Mattingly states that the most important customary laws were those pertaining to, “the recognition and status of diplomatic principles, the behavior and immunities of diplomatic agents, and the negotiations, validity and observance of diplomatic agreements,” Renaissance Diplomacy, 18–20. Queller, The Office of the Ambassador, 117, describes a credential from the thirteenth century that is remarkably similar to the credentials used by British emissaries in 1782, as published in John Jay, The Winning of the Peace: Unpublished Papers, 1780–1784, ed. Richard B. Morris (New York: Harper & Row, 1980), 360–62.
21 See committee report in Journals of the Continental Congress, 1774–1789, ed. Worthington Ford (Washington, DC: United States Government Printing Office, 1904–1937), 10:29–35 (hereafter JCC). A committee report states that, “the declaration of Lieutenant General Burgoyne, ‘that the public faith is broke,’ is of itself sufficient to justify Congress in taking every measure for securing the performance of the convention, which the law of nations, in consequence of this conduct, will justify,” JCC, 10:30. For additional context, see Janet Beroth, “The Convention of Saratoga,” The Quarterly Journal of the New York State Historical Association 8, no. 3 (July 1927): 257–80. The risk in this case was even greater since the laws of England held that the king was not obligated “to adhere to treaties made with rebels.” See Gérard to Vergennes, September 1, 1778, in Meng, Despatches and Instructions, 250.
22 Congress based its decision on “the practice of British officers in similar cases” and the “judgment of the most approved writers,” thus demonstrating their familiarity with British military history and the writings of European theorists, JCC, 10:30–31. The limits of their knowledge, however, soon became apparent.
23 Gérard to Vergennes, August 16, 1778, in Meng, Despatches and Instructions, 226. Gérard to Vergennes, September 1, 1778, in Meng, Despatches and Instructions, 249–51, emphasis added. “[I]n all transactions between independent Nations,” Gérard also averred, it was “necessary first to examine the power of the one in whose name negotiations were conducted as well as the Nature and form of the power of those who represented to negotiate and conclude.” Gérard to Vergennes, August 16, 1778, in Meng, Despatches and Instructions, 226.
24 Gérard to Vergennes, August 16, 1778, in Meng, Despatches and Instructions, 226. In the same letter, Gérard added that if Burgoyne's soldiers had destroyed their ammunition boxes, as the Americans alleged, then “the law of nations would be satisfied in holding captive the soldiers who had violated their agreement,” 226. For precedents established during the Dutch War for Independence, see Grewe, The Epochs of International Law, 184–85. P. J. Marshall writes that, “[I]t was official [British] policy, for as long as it was practical to do so, to deny recognition to the United States.” The Making and Unmaking of Empires: Britain, India, and America, c. 1750–1783 (New York: Oxford University Press, 2005), 356.
25 See Paul W. Mapp, The Elusive West and the Contest for Empire, 1713–1763 (Chapel Hill: University of North Carolina Press, 2011); Thomas P. Abernethy, Western Lands and the American Revolution (New York: Russell & Russell, 1959 [1937]); and Paul C. Phillips, The West in the Diplomacy of the American Revolution (New York: Russell & Russell, 1913). See also, Clarence W. Alvord, “The Genesis of the Proclamation of 1763,” Historical Collections of the Michigan Pioneer and Historical Society 36 (1908): 20–52. The scope of the American vision can be seen in the Mitchell map of 1755, in which the states of Virginia, Georgia, and the Carolinas are depicted as extending indefinitely into the interior.
26 Arthur Lee's diary entry of December 12, 1777 in Richard Henry Lee, Life of Arthur Lee, 2 vols. (Freeport, NY: Books for Libraries Press, 1969 [1829]), 1:361. Miller, Treaties and Other International Acts, 40, emphasis added.
27 For France's dependence on Spain to achieve naval parity with Britain, see Jonathan R. Dull, The French Navy and American Independence: A Study of Arms and Diplomacy, 1774–1787 (Princeton: Princeton University Press, 1975). For the process by which Spain was brought into the war as an ally of France, see Murphy, Charles Gravier, Comte de Vergennes, 261–79.
28 For Spain's interests in the Mississippi River, see Gérard to Vergennes, July 25, 1778, in Meng, Despatches and Instructions, 185–89. Vergennes to Gérard, October 26, 1778, in Meng, Despatches and Instructions, 359–60.
29 Gérard to Vergennes, December 12, 1778, in Meng, Despatches and Instructions, 420; and Gérard to Vergennes, December 22, 1778, in Meng, Despatches and Instructions, 433.
30 Gérard to Vergennes, February 17, 1779, in Meng, Despatches and Instructions, 526–29.
31 Gérard to Vergennes, March 3, 1779, in Meng, Despatches and Instructions, 550. Gérard to Vergennes, May 21, 1779 in Meng, Despatches and Instructions, 673, emphasis added.
32 Gérard to Vergennes, April 4, 1779, in Meng, Despatches and Instructions, 595. In May, Gérard drafted a lengthy memo on the subject in which he paused at one point to ask the Americans how Spain could be expected to accept arguments, “as contrary to its interests and to its tranquility as it is contrary to the Law of reason and of Nations?” (emphasis added). For the debate within Congress, see Jack N. Rakove, The Beginnings of National Politics: An Interpretive History of the Continental Congress (Baltimore: Johns Hopkins University Press, 1979), 243–63.
33 Congress's resolution is in RDC, 3:293–95. For the election of Adams and Jay, see RDC, 3:337.
34 For Adams's and Vergennes's correspondence on these matters in February and March 1780, see Butterfield, The Diary and Autobiography of John Adams, 4:243–54. For their later correspondence of July 1780, see Papers of John Adams, ed. Gregg L. Lint, 20 vols. (Cambridge, MA: Harvard University Press, 1977–), 10:1–58. To be fair, Vergennes had kept the Americans in the dark with respect to the condition of French finances and the broader diplomatic landscape in Europe. If Adams had been more fully informed of the challenges that Vergennes faced at the time, he might have adopted a more conciliatory tone. For a broader analysis of Adams's conduct, see editorial note in Lint, Papers of John Adams, 9:516–20.
35 A translation of Vergennes's letter is in Lint, Papers of John Adams, 10:37–42. To the Chevalier de la Luzerne, August 7, 1780, in The Emerging Nation, ed. Mary A. Giunta, 3 vols. (Washington, DC: NHPRC, 1996), 1:98–99. Luzerne replaced Gérard as French minister to the United States in the fall of 1779.
36 See David Golove and Daniel Hulsebosch's observation that there was a performative aspect to early modern statecraft. “A Civilized Nation,” 943. In their Declaration of Independence Congress had averred: “That these United Colonies are, and of Right ought to be Free and Independent States… [and as such] have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”
37 For the commissioners, see Thomas Rodney to Caesar Rodney, June 14, 1781, in Letters of Delegates to Congress, 1774–1789, ed. Paul H. Smith, 26 vols. (Washington, DC: Library of Congress, 1976–2000), 17:320–21. Congress's instructions of June 15, 1781 are in RDC, 4:504–5. Laurens was captured by the British en route to Europe and imprisoned.
38 For Jay's work in Spain, see Benjamin C. Lyons, “The Law of Nations in John Jay's Negotiations with Spain, 1780–1782,” in Spain and the American Revolution, eds. Gabriel Paquette and Gonzalo Quintero Saravia (New York: Routledge, 2019), 147–58.
39 Jay to the President of Congress, September 20, 1781, in SPJJ, 2:561–62. For Adams's response to the orders, see John Adams to the President of Congress, October 15, 1781, in Lint, Papers of John Adams, 12:16. For Franklin's response, see From Benjamin Franklin to Samuel Huntington, September 13, 1781, in The Papers of Benjamin Franklin, ed. Barbara B. Oberg, 39 vols. (New Haven: Yale University Press, 1999), 35:475.
40 For the diplomatic context that guided Vergennes's approach to the negotiations see Murphy, Charles Gravier, Comte de Vergennes, 382–94. A detailed analysis of these negotiations can be found in Lyons, “The Law of Nations and the Negotiation of the Treaty of Paris.” Vergennes gave this advice in part because he wanted the Americans to make progress in their negotiations without receiving an acknowledgment of independence that would enable them to drop out of the war before Spain had achieved its objectives. Gerald Stourzh writes that, “Franklin never did care much for legal arguments in international relations.” “Firmness with regard to substance and more carelessness than might possibly be warranted with regard to legally confirmed rights thus distinguishes Franklin's demeanor.” Benjamin Franklin and American Foreign Policy (Chicago: University of Chicago Press, 1954), 219–20.
41 See Lyons, “The Law of Nations and the Negotiation of the Treaty of Paris,” 13, for an example of how promises made without a proper exchange of credentials could be repudiated. Among the issues that the United States needed to resolve with Great Britain were the status of American loyalists, pre-war commercial debts, and rights to the Newfoundland fisheries.
42 See “To the Secretary for Foreign Affairs,” November 17, 1782, in SPJJ: 3:237–41.
43 See “Aranda's Notes on Negotiations with John Jay,” in SPJJ, 3:78–87; and Jay to Aranda, September 10, 1782, in SPJJ, 3:114. In a memo written over the summer of 1782, a member of the French foreign ministry stated that deficiencies in diplomatic credentials were a valid reason to reject negotiations, “if one did not wish to [negotiate].” Giunta, The Emerging Nation, 1:473–75.
44 Jay to the Secretary for Foreign Affairs, November 17, 1782, in SPJJ, 3:242–45. According to Jay's report, he instructed his emissary to inform the British cabinet that, “though we were determined faithfully to fulfil our Treaty and Engagements with [France], yet it was a different thing to be guided by their or our Construction of it” (emphasis in the original), 244. For evidence that Jay's suspicions were legitimate, see the editorial note, “The Rayneval and Vaughan Missions to England,” in SPJJ, 3:95–99.
45 Miller, Treaties and Other International Acts, 2:38–39.
46 The Spanish court had also hoped to recover Gibraltar from England, but gave up that objective once the American preliminaries were signed, knowing that France no longer had grounds for requiring the United States to remain in the war.
47 Jay to Vergennes, c. September 11, 1782 (unsent), in SPJJ, 3:123. To put it another way, Jay was upholding the Americans’ assertion in the Declaration of Independence that, “as Free and Independent States,” the United States had “full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”