Long before Jay reached Paris to take up his post as peace commissioner, peace feelers had been put out both by the belligerents and by certain neutral powers. In 1778 the British had dispatched the Carlisle Commission to America to effect reconciliation by offering home rule, but the proposal had offered too little and come too late. That same year Spain proposed a long-term truce that left America’s ultimate fate unresolved. In 1779–80 Jacques Necker, France’s Director General of Finance, acting in secret and behind the back of his country’s foreign minister, suggested a partition scheme, but nothing came of it.1

The war dragged on, plunging France and Spain into serious financial difficulties without any compensating military successes. Early in 1781, Vergennes was willing to consider a proposal for a long-term truce that left each side in possession of the territory in America that it then controlled except for New York. Once hostilities had ceased, the conflict would be mediated by Catherine II of Russia and Joseph II of Austria. The plan would have bypassed Congress by providing that each of the thirteen states was to be represented by its own delegates, a proposal designed to fracture American unity and thereby release France from its treaty commitment to independence. This led John Adams, then still the sole American peace commissioner, to remind Vergennes that, under the Articles of Confederation, only Congress had authority to enter into diplomatic negotiations.2 Vergennes’s support for the plan also diminished when Britain demanded an end to the Franco-American alliance and refused to recognize American independence in advance of negotiations. Vergennes further concluded that, however patriotic Adams might be, he was by temperament incapable of succeeding at a task as difficult and delicate as peacemaking, and had instructed La Luzerne to persuade Congress to order Adams to obtain prior French approval for any course of action he might wish to adopt.3

Unaware that Vergennes had lost interest, Congress agreed to accept a mediation that was accompanied by recognition of American independence, a truce, and Britain’s evacuation of the territory she held. At La Luzerne’s urging, Congress circumscribed Adams’s authority by enlarging the peace commission to include Jay, Franklin, Thomas Jefferson, and Henry Laurens, and, on 15 June 1781, it issued controversial instructions to its peace commission to keep the French informed and to “make the most candid and confidential Communications upon all subjects to the Ministers of our generous Ally the King of France; to undertake nothing in the Negotiations for Peace or Truce without their Knowledge and Concurrence; and ultimately to govern yourselves by their Advice and Opinion.” La Luzerne scored a further success when Congress chose the pro-French Robert R. Livingston to serve as Secretary for Foreign Affairs.4

Yorktown (Oct. 1781) brought an end to both the idea of mediation and the North ministry, which resigned on 20 March 1782. Its collapse destabilized British politics. The new ministry was headed by Charles Watson-Wentworth, marquess of Rockingham (1730–82), as first lord of the treasury. Charles James Fox held the post of Secretary of State for Foreign Affairs. His rival, William Petty Fitzmaurice, Earl of Shelburne (1737–1805), served as secretary of state for home, colonies, and Irish affairs. An immediate rift developed between Shelburne and Fox, who considered the United States to be a de facto independent nation and insisted that negotiations with America came under his jurisdiction. Shelburne, who hoped to retain the thirteen states within the Empire on some basis, countered that, since American independence had not yet been formally conceded, the management of the negotiations belonged to his office.5

Each man maneuvered for control of the peace process. Shelburne acted first. On 6 April he notified Franklin that he was sending Richard Oswald, an elderly Scottish merchant “fully appriz’d” of his mind and Franklin’s longtime friend, to continue unofficial discussions about prospects for a separate peace that David Hartley, an emissary from the North ministry, had already initiated. Oswald arrived at Passy on 12 April 1782. Their conversation centered on the qualitative differences between “peace” and “reconciliation,” which, for Shelburne, meant an end to the war and reintegration of the colonies within the Empire. When Oswald suggested that the United States might have reason to settle separately with Britain, Franklin brought him to Versailles, where Vergennes reminded him that France’s treaty with the United States precluded either nation from making a separate peace.

At a leave-taking breakfast before Oswald’s return to England two days later, however, Franklin hinted that if Britain ceded Canada, it might promote not only peace but reconciliation with an independent United States. Sale of Canadian lands, he added, could provide a fund that could be used to indemnify Americans whose property had been destroyed by the British and their Indian allies and compensate Tories for their forfeited estates. Shelburne was unwilling, however, either to concede independence or to yield Canada, and he was adamant that Loyalists must be compensated and all debts to British subjects paid. In his notes on the discussion, Franklin commented: “This is mere Conversation-matter between Mr. O & Mr. F. as the former is not impower’d to make propositions, & the latter cannot make any without the concurrence of his Colleagues—”6

In a letter to Shelburne of 18 April, Franklin again claimed that he could not conduct substantive negotiations in the absence of the other American peace commissioners then in Europe. Four days later, he remarked to Jay that he was “unable to either make or agree to Propositions of Peace without the Assistance of my Colleagues,” suggested that Jay’s continued presence in Spain served no purpose, and urged him to come to Paris. Franklin had already asked Adams and Laurens to join him, but neither man was immediately available.

As both Jay and Franklin well knew, however, the Americans’ commission in fact empowered any one or combination of the commissioners to conclude a treaty. Aware that informal discussions might soon be replaced by official negotiations, Franklin wanted as many of the American commissioners as possible to share the honor and the blame for the final product. He spoke frankly in a subsequent letter to Laurens: “I have never yet known of a Peace made, that did not occasion a great deal of popular Discontent, Clamour and Censure on both Sides. . . . Ministers and Leaders of the contending Nations, . . . generally represent the State of their own Affairs, in a better Light, and that of the Enemy in a worse, than is consistent with the Truth: Hence the populace on each Side expect better Terms than really can be obtained; and are apt to ascribe their Disappointment to Treachery.”7

Shelburne did not confine his efforts to secure peace without conceding independence to negotiations in Paris. He sent his private secretary, Maurice Morgann (1726–1802) to New York with instructions to Sir Guy Carleton and Admiral Robert Digby, the top-ranking military and naval officers there, to reconcile with the colonies and make overtures for a separate peace. Carleton and Digby, who had been named joint peace commissioners on 25 March 1782, informed both Washington and Congress that the new ministry would welcome reunion. Congress, however, suspecting that Britain’s intent was to deceive it into relaxing its exertions for carrying on the war and to set aside its alliance to France, repulsed their overtures firmly and decisively. Parliament had also ordered Carleton to promote peace by evacuating British troops from New York. Instead, he had troops from other points diverted to New York to enable him to negotiate with Washington from a position of strength. This, however, made Jay suspect that Britain was attempting to avoid recognizing American independence.8

Fox’s emissary to Paris was Thomas Grenville (1755–1846), a son of George Grenville, the author of the ill-starred Stamp Act. Like Oswald, he carried no powers authorizing him to negotiate with any of the belligerents.9 Grenville indicated that Britain was prepared to evacuate its troops from American soil and to conclude a peace if it could be had on reasonable terms. He opened discussions with Franklin and Vergennes on 9 May. Spain’s ambassador at Paris, Pedro Pablo Abarca de Bolea, conde de Aranda joined them the following day. Addressing himself to Vergennes, Grenville put forward the terms on which Britain hoped to base a settlement: Britain would cede American independence, assumed to be France’s primary reason for entering the war, to France in exchange for British islands France had captured in the West Indies; France would agree to return all other territories to their status as defined by the Treaty of 1763.10

Vergennes refused separate negotiations with Britain and rejected the premise that Grenville’s proposal was based on out of hand. American independence, he said, was “only a very indirect Cause of the War,” which would have been incited without it, and the idea of ceding it to France was preposterous. While he refused to suggest what France might demand from Britain, he insisted that the new treaty should be founded in reciprocal justice and dignity. This would require substantial revisions to the 1763 peace settlement with regard to the Newfoundland fisheries, commerce, and territory in the East and West Indies and in Africa.

Aranda asserted that Spanish belligerency was “totally distinct from the independence of America,” an assessment with which Jay, after his fruitless struggle to be recognized as minister to Spain, would have wholeheartedly agreed. Franklin insisted that the United States had already achieved its independence at the expense of much blood and treasure and had no need to bargain for it. He pointed out to Grenville that the American commissioners were fully empowered by Congress to negotiate a treaty as long as that treaty preserved America’s commitments to her ally, France. All agreed, however, that negotiations could take place in Paris, and that Aranda and Grenville would seek commissions from their governments authorizing them to negotiate a peace agreement. Vergennes indicated that Grenville’s powers must cover Spain and Holland, but did not explicitly mention the United States.

Grenville was convinced that France and Spain intended to demand substantial sacrifices from Britain and that they would expect the United States to support their objectives. Britain, he recommended, should do everything possible to weaken American support for its allies, or at least lead France to believe it had done so. “Giving in the first instance independance to America, instead of making it a conditional Article of a general Treaty,” he noted in a dispatch of 14 May to Fox, would enable Britain to “gain the effects tho’ not the form of a separate Treaty,” and would lessen America’s willingness to support claims in which it had no stake. Franklin, he reported, appeared at times to “glance toward these ideas.”11 That morning, Grenville reported, he had gone “so far as to say, that when we had allowed the independance of America, the treaty she had made with France for gaining it ended.”12

The timing and extent of recognition of American independence and the related matter of commissions were key tools in the diplomatic kits of all the participants. The commission sent to Grenville on 21 May empowered him to negotiate only with France. Vergennes pronounced this unacceptable and refused to negotiate. He was, as was Aranda, especially concerned to have Spain recognized as a party to the negotiations. He had also decided that the issue of American independence should be negotiated directly between Britain and the United States. His purpose here was to remove any possibility that Britain’s granting it could be considered compensation to France and Spain, thereby weakening their claims for indemnification on issues they held “separate from those of America”—their losses under the Treaty of 1763. Franklin told Grenville explicitly that, unless his commission authorized him to negotiate with the United States, he would not treat with him. Franklin was, however, pleased that the issue of independence would not be included in negotiations with France.13

On 10 June, Fox sent Grenville powers to negotiate not only with France, but with “any other of the Enemies of G Britain.” Grenville presented his powers to Vergennes on 15 June, and arrangements were made to communicate them to Aranda, Franklin, and Berkenrode, the Dutch commissioner. Vergennes presented France’s peace terms to Grenville on 21 June, but later that same day, Aranda objected that failure to mention Spain specifically in the commission offended her dignity and demanded either a “separate full power for Spain” or a new full power in which no one was named explicitly.14

Events in Britain again intervened to recast negotiations in Paris. On 17 June Parliament passed the Enabling Act authorizing peace with America. Although Franklin had hoped it would contain an explicit acknowledgment of American independence, it did not. Instead, it authorized the king to conclude a peace “with certain Colonies in North America, . . . any Body or Bodies, Corporate or Politick, or any Assembly or Assemblies or Description of Men or any Person or Persons whatsoever. . . .”15

Before the text of the Enabling Act reached Paris, in letters of 26 and 27 June, Franklin had suggested to Shelburne’s emissary, Richard Oswald, that, when it passed “and the States of America are acknowledg’d to be such,” the words of the 10 June commission could be interpreted to include the United States under the rubric of “any other Prince or State whom it may concern,” and he expressed his hope that Britain still intended to vest Oswald with the character of plenipotentiary. In a letter to the secretary for foreign affairs written on 29 June, Franklin noted that Britain’s intentions had for some weeks past “appear’d somewhat equivocal and uncertain.” This he attributed to their defeat of the French at the Battle of the Saints, after which they “a little repented of the Advances they had made in their Declarations respecting the Acknowledgment of our Independence.”16

The Jays arrived in Paris on 23 June and settled into the quarters arranged for them by William Temple Franklin at the Hôtel de la Chine at the Palais Royale.17 Jay plunged into his diplomatic rounds at once. That same day he went to see Franklin at Passy, then the next day the pair journeyed to Versailles to pay a call on the comte de Vergennes, who briefed them on the state of the negotiations with Great Britain. On the Spanish side, Jay took up negotiations directly with Aranda on 25 June.18 Shortly thereafter, however, Jay became ill with influenza and was unable to participate in diplomatic activities until the beginning of August.

On 1 July, a week after Jay’s arrival, Rockingham, the titular head of the Cabinet, died of influenza, and the king promptly named Shelburne to head the government. He was known to be reluctant to recognize American independence. To force the Cabinet to take sides between himself and Shelburne, Fox demanded the immediate recognition of American independence and attempted to block the appointment of Oswald as sole negotiator with the United States. When the victory went to Shelburne on both issues, Fox’s position became untenable, and he resigned. This stripped Grenville of his sponsorship, and left Oswald as sole negotiator with Franklin and Jay.19

In Britain the breakup of the coalition ministry propelled two new men into posts critical to the peace negotiations: Thomas Townshend (1733–1800, later 1st Viscount Sydney) who assumed Shelburne’s post as colonial (home) secretary, and Baron Grantham (Thomas Robinson, 1738–86, 2d baron Grantham), who replaced Fox as foreign secretary. Shelburne notified Grenville of the changes in the government and instructed him to assure the French and Americans that Fox’s departure would neither alter the direction of negotiations nor dampen the king’s “ardent desire for peace.” The dispatch arrived on 8 July. Grenville travelled to Versailles the following day, acquainted Vergennes, Aranda, and Franklin with its contents, and then resigned. He was replaced by Alleyne Fitzherbert (1753–1839), a young career diplomat who had been serving as minister at Brussels. Fitzherbert’s instructions empowered him to “treat of Peace between Great Britain and any of the Powers or States with which She is now at War, and for concluding and signing the same.”20

Oswald was concerned about reassuring Franklin that the change in ministries did not signify any “reserve intended in the grant of independence,” and he was anxious to “lose no point of the ground gained to date.” On 10 July, a day after Grenville resigned, Oswald had a long visit with Franklin designed to elicit from him the terms on which the United States was prepared to conclude a peace. Franklin thereupon provided him with two lists of conditions, the first of which he described as “necessary” (independence, a settlement of boundaries, including a confinement of the boundaries of Canada to what they were prior to the Quebec Act of 1774, and freedom of fishing on the banks of Newfoundland and elsewhere), and the second, “advisable” (indemnity to Americans who had suffered by the war, a public acknowledgment of England’s error, equality of commercial privileges, and the cession of Canada). Oswald reported Franklin’s position to Shelburne. In his reply of 27 July, Shelburne committed himself to “the most unequivocal Acknowledgement of American Independancy,” to send Oswald a commission containing “Full Powers to treat and to conclude,” and “to make the Independancy of the Colonies the Basis & Preliminary of the Treaty,” but not a prelude to it, as the Americans wished.21 There matters rested until Jay’s improved health allowed him to become an active participant in the negotiations, which he largely managed for several months beginning in August, when Franklin became ill.22