T CHAPTER III DIVIDED WE FALL HE Thirteen Colonies having achieved independence, their status as a nation previous to the adoption of a constitution presents questions of extreme interest for the definition and exercise of sovereignty. Were the Thirteen States each sovereign in the fullest sense? Seemingly not. At any rate none of them exercised to the full those prerogatives of government belonging only to the sovereign. On the other hand could it be said that the Continental Congress, a body with power to recommend and not to enforce laws, and whose requests were so seldom heeded that its own members preferred absence to attendance, was in the fullest degree sovereign? Obviously not. And yet as the only body qualified to express a collective will in foreign matters the Congress was in theory at least a court of last resort, and its secretary for foreign affairs, John Jay, was the proper agent for the administration of international relations. Indifferent as most of the States showed themselves to their national obligations, not one of them challenged the theory of Congressional control of foreign affairs, or denied that the Treaty of 1783 was, under the Articles of Confederation, the supreme law of the land. The development which insured this uniformity of action and control was evolutionary in its nature. Foreign Affairs were initially intrusted to a Secret Committee of Foreign Correspondence. This gave way in 1777 to a Committee on Foreign Affairs, which carried on its tasks with much intervention from the Continental Congress as a whole. Adoption in 1781 of the Articles of Confederation emphasized the diplomatic function as one pertaining to the United States collectively, and not the separate States. Congress then proceeded to organize a Department of Foreign Affairs, with Robert Livingston as Secretary till 1784, when John Jay succeeded him until the organization of the new government under the Constitution. TREATY VIOLATIONS The most embarrassing problem which confronted the Department under the Confederation and for some time afterward, proved to be the execution of the Treaty of 1783. The surprising generosity of the British terms did not prevent vexatious irritations in their fulfillment. And by neither side, American or British, was the treaty observed in all its requirements. So intense was American bitterness against the Loyalists that adherence to Article VI which guaranteed them from molestation for the part they had played in the late War simply could not be enforced. Loyalists were so harassed that many of them thought best to leave the country. Less justifiable as a cause for complaint was the payment of debts due British merchants. The American government never assumed these, and as John Adams, its agent at London, pointed out, it was contrary to all experience and to the Law of Nations, to hold it directly accountable for them. The best it could do was to discourage any obstructions on the part of the State governments to the repayment of lawful obligations. He added that to hold American debtors responsible for interest accrued during the War would be unreasonable. The War was so destructive that it dried up the resources of payment. Moreover, for a Briton to have accepted such a payment in the duration of the War would have exposed him to severe punishment by his own government. Nevertheless commercial interests were so influential in British councils of the period that nonpayment of the debts was a continuous provocation to ill will. On the American side cause for complaint was even more insistent. The treaty provided for withdrawal by His Majesty's forces at their earliest convenience. In April of 1784, Sir Guy Carleton received instructions to remove from New York. It was November before all his troops had gone, yet the Americans saw no reason to complain on this account. Armed forces, quantities of supplies, Loyalists to the number of perhaps 100,000, all required time for movement, and there was no disposition to haggle over unavoidable delays. Removal, however, of large numbers of slaves accumulated in the odious guerilla raids of the Southern phase of the War, was effected in direct violation of treaty, and constituted a permanent grievance with the former owners. More serious still was the continued occupation by the British of the forts and trading posts in the Northwest Territory. The excuse offered, when in 1785 Great Britain first deigned to render one, was that the Americans had never for a single day observed the treaty. The forts, they said, would never be surrendered until the debts were paid. It was the contention of Great Britain that while retention of the forts was admittedly a treaty violation, Americans had set the precedent. Dr. Samuel Flagg Bemis in his "Jay's Treaty" has shown that this was not the case. At all events the forts controlled the fur trade routes. They commanded the Western frontier. They served as nuclei for stirring Indians to uprising. In the event that the United States should demonstrate sufficient power to take them, they might be handed over in accordance with the treaty. Meanwhile to hold them was an established policy. When Baron Steuben went on behalf of the Congress to receive the surrender, his mission was as fruitless as that of Lieutenant Colonel Fish who represented the single State of New York in an endeavor to secure the forts within its boundary. The motive for their retention was partly economic, partly military. From an economic point of view Great Britain sympathized with Canada when the Montreal fur traders coveted the pelts from America's side of the boundary. These amounted to about £100,000 of a total annual catch of £180,000. But as Gouverneur Morris later pointed out to the British authorities, London would have remained in either case the center of the world's fur trade, and should not have worried whether the skins arrived from Montreal or from New York, while possession by Americans of their rightful share in this trade would have facilitated the payment of the debts. From a military point of view, the British utilized the Indians as an argument for retention of the forts. The Indians made more desirable allies than foes. They were not reconciled to American occupation of their country, and much preferred the British. It was even more humane to the Americans themselves to postpone evacuation of the posts. This latter was the argument of a casuist. Yet the Canadian general, Haldimand, actually raised the point, although he did not base on it his argument for holding the forts. Circumstantial evidence is strong that Great Britain utilized the forts and the strategic advantages they afforded for direct incitement of Indians against Americans. The charge gains weight from the numerous gifts to the savages not merely of trinkets, but of food, rum, and guns. The Canadian archives reveal, however, that orders from England were frequent and invariable to curb the war spirit of the Indians as completely as possible. During the "Critical Period" of the present chapter, those orders were obeyed, though in 1794, the year that Jay negotiated the treaty which finally settled the question of the frontier forts, many corpses of Canadians were reported by General Wayne after the battle of "Fallen Timbers." And the Indian, Brant, asserted that peace would have come between the Red Men and the Americans years sooner had it not been for British. support.1 This background of ill will and bad faith was thoroughly known to the Secretary. Jay had long taken active interest in the Western country. While minister to Spain, he never lost sight of the importance of free navigation of the Mississippi. As foreign secretary for the Confederation, the Western problem was constantly before him. The Secretary's knowledge, interest, and sentiment relating to the West were destined to influence his subsequent activities in the negotiation of his treaty with Great Britain. 1 The causes of complaint between 1783 and 1795 are well set forth in Jay's Treaty; a Study in Commerce and Diplomacy, by Samuel Flagg Bemis (New York, 1923), pages 1-20. EARLY MINISTERS ABROAD As foreign secretary for the Confederation, Jay had much to contend with in the general weakness of the organization. Yet one compensation was his in the ability of his agents abroad. The aged Franklin after repeated requests to leave his post was finally permitted to return to America. Illness and gout had so reduced his strength that the king's litter was a welcome aid in his journey to the coast. But far from a return to die, as he seems to have anticipated, he was spared yet a little while to render further services to his country in the convention which gave it a constitution. Had Franklin foreseen with greater precision the impending revolution in France-that one was coming eventually he seems fully to have comprehended-it is possible that he might have preferred to extend his sojourn. To Jefferson, his successor, fell the supremely interesting rôle of elder brother to the French in revolution. For in the great days of 1789, La Fayette and other leaders in the National Assembly were to appeal to Jefferson for counsel in the mighty events then shaping. In the long list of American ministers to the Court of St. James more names of the first distinction may perhaps be found than in any other calendar of Americans. But when our country was in the making, France and ourselves were equally honored by the choice of two such world figures as Franklin and then Jefferson. At London, too, our first representatives set a precedent for ability and distinction. Though John Adams was our first official minister to England, America had previously been represented, though informally, by Henry Laurens, of South Carolina, who in 1780 was sent as minister to the Netherlands, but was captured on his journey over, and until the war was ended, was confined in the Tower of London as a prisoner of State. From this enforced retirement, Laurens lost no opportunity to influence opinion. On his release, he mingled with important personages, on whom he never failed to urge the need for healing recent wounds. Commercial freedom he regarded as the proper ointment. When Congress invited him to join with Franklin, Jay, and |