Franklin’s Proposed Article 5
Copy:2 American Philosophical Society; copy and transcript: National Archives; copies: Library of Congress (five), Massachusetts Historical Society (three)
The final day of negotiations was held at Jay’s residence at the Hôtel d’Orléans. In attendence were Oswald, Strachey, Fitzherbert, Franklin, Adams, Jay, and Henry Laurens (who had just arrived from London). They spent the day wrangling over the British ultimatum about the fisheries and the issue of compensation for the Loyalists. For most of the day, the success of the negotiations was in doubt.3
While Adams argued about the fisheries, Franklin brought up the issue of compensation for American citizens who had suffered in the war. He took from his pocket the present document and proposed it as a substitute for Article 5 of the British counterproposal.4 All four American commissioners elaborated on its contents: Adams explained the history of Gage’s doublecrossing the citizens of Boston; Franklin testified to the goods confiscated in Philadelphia, including his own library; Laurens described the plunder of slaves and silver in the Carolinas; and Jay offered other examples. The British commissioners “retired for some time.” When they returned, they agreed to drop the offensive terms of both articles. The Americans reciprocated by offering more favorable terms in Article 4, regarding creditors.5 The entire treaty was reviewed and corrected, and the commissioners agreed to sign and seal fair copies the following day.6 That evening Strachey wrote to a British official that he was “half dead from perpetual anxiety” and would not rest until he knew how these compromises would be viewed. “If this is not as good a Peace as was expected,” he continued, “I am confident it is the best that could have been made.”7 The American commissioners justified their own compromises in their letter to Livingston of December 14.
[November 29, 1782]
It is agreed that his Britannic Majesty will earnestly recommend it to his Parliament to provide for and make Compensation to the Merchants and Shopkeepers of Boston whose Goods and Merchandise were seized and taken out of their Stores, Warehouses and Shops, by Order of General Gage and others of his Commanders or officers there; and also to the Inhabitants of Philadelphia for the Goods taken away by his Army there. And to make Compensation also for the Tobacco, Rice, Indigo and Negroes &c. seized and carried off by his Armies under Generals Arnold, Cornwallis and others from the States of Virginia, North and South Carolina, and Georgia; and also for all Vessels and Cargoes belonging to the Inhabitants of the said United States, which were stopt, seized or taken, either in the Ports, or on the Seas by his Governors or by his Ships of War, before the Declaration of War against the said States.
And it is further agreed that his Britannic Majesty will also earnestly recommend it to his Parliament to make Compensation for all the Towns, Villages and Farms, burnt and destroyed by his Troops or Adherents in the said United States.
There existed a free Commerce upon mutual Faith between Great Britain and America. The Merchants of the former Credited the Merchants and Planters of the latter with great Quantities of Goods on the common Expectation that the Merchants having sold the Goods would make the accustomed Remittances; that the Planters would do the same by the Labour of their Negroes and the Produce of that Labour, Tobacco, Rice, Indigo, &c.
England before the Goods were sold in America, sends an armed Force, seizes the Goods in the Stores, some even in the Ships that brought them and carries them off. Seizes also and carries off the Tobacco Rice and Indigo, provided by the Planters to make Returns, and even the Negroes from whose Labour they might hope to raise other Produce for that Purpose.
Britain now demands that the Debts shall nevertheless be paid.
Will She, can She justly refuse making Compensation for such Seizures?
If a Draper who had sold a Piece of Linnen to a Neighbour on Credit, should follow him, take the Linnen from him by Force, and then send a Bailiff to arrest him for the Debt, would any Court of Law or Equity award the Payment of the Debt, without ordering a Restitution of the Cloth?
Will not the Debtors in America cry out that if this Compensation be not made, they were betray’d by the pretended Credit; and are now doubly ruined, first by the Enemy, and then by the Negociators at Paris, the Goods and Negroes sold them being taken from them with all they had besides, and they are now to be obliged to pay for what they have been robb’d of?
In Franklin’s hand: Read to the Commissioners Nov. 29. 82
Notation by Richard Oswald: Reparation of Damages, Devastations, Plunder—&ca—
2. In the hand of L’Air de Lamotte. This copy was at one time in Oswald’s possession (as witnessed by his notation) but ended up with Benjamin Vaughan, who wrote notes of his own identifying BF’s handwriting and mistakenly claiming that the text was in the hand of WTF.
Most of the other copies are entitled “Article proposed & read to the Commissioners before signing the preliminary Articles.” The one at the National Archives, mistakenly filed with the first draft treaty, is in WTF’s hand and is entitled “Article 5. (Proposed)”.
3. Strachey wrote Townshend at 11:00 that night that “A very few hours ago we thought it impossible that any Treaty could be made.” He went on to explain the modifications they had agreed to, emphasizing that unless they adopted the fisheries article as it now stood, “there could have been no Treaty at all.” Oswald and Fitzherbert wrote similar statements: Giunta, Emerging Nation, I, 690–1, 695, 701.
4. BF may have drafted this paper at an earlier date and shown it to Oswald at the end of the discussions of Oct. 30–Nov. 4 (for which see BF to Townshend, Nov. 4). See Strachey’s Nov. 8 report to Townshend, quoted above on p. 350, footnote 4. The British counterproposal is above, under Nov. 19.
5. They authorized the repayment of all debts, not just those incurred before 1775. (Both Strachey and Oswald stressed this concession in their letters to Townshend quoted above.) In return they obtained a British concession: “British creditors” was changed to “Creditors on either side.”
6. Butterfield, John Adams Diary, III, 79–81. See also BF to Livingston, Dec. 5.
7. Strachey to Evan Nepean, Nov. 29, 1782, in Giunta, Emerging Nation, I, 690.