The Journal proceeds—1782—November 26—Tuesday—Breakfasted at Mr. Jays, with Dr. Franklin, in consultation upon the propositions made to us yesterday by Mr. Oswald.—We agreed unanimously to answer him, that we could not consent to the article respecting the refugees as it now stands. Dr. Franklin read a letter which he had prepared to Mr. Oswald, upon the subject of the tories, which we had agreed with him that he should read, as containing his private sentiments. We had a vast deal of conversation upon the subject. My colleagues opened themselves, and made many observations concerning the conduct, crimes and demerits of those people.

Before Dinner Mr. Fitzherbert came in, whom I had never seen before: a gentleman of about thirty-three; seems pretty discreet and judicious; and did not discover those airs of vanity which are imputed to him.

He came in consequence of the desire which I expressed yesterday of knowing the state of the negotiation between him and the Comte de Vergennes respecting the fishery. He told us, the Comte was for fixing the boundaries where each nation should fish. He must confess he thought the idea plausible; for that there had been great dissentions between the fishermen of the two nations. That the French marine office had an whole apartment full of complaints and representations of disputes. That the French pretended that Cape Ray was the Point Riche.

I asked, if the French demanded of him an exclusive right to fish and dry between Cape Bonavista and the point Riche: He said they had not expressly; and he intended to follow the words of the treaty of Utrecht and Paris without stirring the point.

I shewed him an extract of a letter from the Earl of Egremont to the Duke of Bedford, March 1, 1763, in which it is said, that by the 13th article of the treaty of Utrecht, a liberty was left to the French to fish, and to dry their fish on shore; and for that purpose to erect the necessary stages and buildings; but with an express stipulation, “De ne pas sejourner dans la dite Isle, au dela du Temps necessaire pour pecher et secher le poisson.” That it is a received law among the fishermen, that whoever arrives first shall have the choice of the stations.—That the Duke de Nivernois insisted, that by the treaty of Utrecht the French had an exclusive right to the fishery, from Cape Bonavista to Point Riche. That the king gave his grace the Duke of Bedford express instructions to come to an ecclaircissement upon the point with the French ministry and to refuse the exclusive construction of the treaty of Utrecht.

I also shew him a letter from Sir Stanier Porteen, Lord Weymouth’s secretary, to Lord Weymouth, inclosing an extract of Ld. Egremont’s letter to the Duke of Bedford, by which it appears that the Duke of Nivernois insisted—

“That the French had an exclusive right to the fishery from Cape Bonavista to Cape Riche; and that they had on ceding the island of Newfoundland to Great Britain by the thirteenth article of the treaty of Utrecht, expressly reserved to themselves such an exclusive right, which they had constantly been in possession of, till they were entirely driven from North America in the last war.”

For these papers I am obliged to Mr. Izzard, (who gave them to me in 1778, at Paris.)

Mr. Fitzherbert said it was the same thing now word for word; but he should endeavor to have the treaty conformable to those of Utrecht and Paris. But we had given it up, by admitting the word “exclusive” into our treaty. I said, perhaps not. For the whole was to be conformable to the true construction of the treaties of Utrecht and Paris. And that if the English did not now admit the exclusive construction they, (the French) could not contend for it against us. We had only contracted not to molest them, &c.

I said it was the opinion of all the fishermen in America that England could not prevent our catching a fish without preventing themselves from getting a dollar. That the first fare was our only advantage; that neither the English nor the French could have it. It must be lost, if we had it not.

He said he did not think much of the fishery as a source of profit, but as a nursery of seamen. I told him the English could not catch a fish the more, or make a sailor the more, for restraining us. Even the French would rival them in the markets of Spain and Portugal.—It was our fish that they ought to call their own; because we should spend the profit with them. That the southern states had staple commodities; but New-England had no other remittance than the fishery: No other way to pay for their cloathing: That it entered into our distilleries and West-India trade as well as our European trade; in such a manner, that it could not be taken out or diminished, without tearing and rending. That if it should be left to its natural course, we could hire or purchase spots of ground on which to erect stages and buildings; but if we were straightened by treaty, that treaty would be given in instructions to Governors and Commodores, whose duty it would be to execute it. That it would be very difficult to restrain our fishermen; they would be frequently transgressing, and making disputes and troubles.

He said his principal object was to avoid sowing seeds of future wars.—I said it was equally my object; and that I was pursuaded that if the germ of a war was left any where, there was the greatest danger of its being left in the article respecting the fishery.

The rest of the day was spent in endless discussions about the tories. Dr. Franklin is very staunch against the tories; more decided, a great deal, on this point than either Mr. Jay or myself.

1782, November 27, Wednesday. Mr. Benjamin Vaughan came in, returned from London, where he had seen lord Shelburne. He says he finds the ministry much embarrassed with the tories, and exceedingly desirous of saving their honor and reputation in this point. That it is reputation more than money, &c.

Dined with Mr. Jay, and spent sometime before dinner with him and Dr. Franklin; and all the afternoon and evening with them and Mr. Oswald, endeavouring to come together concerning the fisheries and tories. 1782, Nov. 28 Thursday. This morning I have drawn up the following project:

Art. 3. That the subjects of his Britannic majesty and the people of the said United States, shall continue to enjoy, unmolested, the right to take fish of every kind, on the Grand Bank, and on all the other banks of Newfoundland; also in the Gulph of St. Laurence, and in all other places where the inhabitants of both countries used at any time heretofore to fish; and the citizens of the said United States shall have liberty to cure and dry their fish, on the shores of Cape Sables, and of any of the unsettled bays, harbours, or creeks of Nova Scotia, or any of the shores of the Magdlene Islands, and of the Labradore Coast; and they shall be permitted in time of peace, to hire pieces of land for terms of years of the legal proprietors, in any of the dominions of His said Majesty, whereon to erect the necessary stages and buildings, and to cure and dry their fish.

We must now interrupt the course of the Journal, to introduce some other documents alluded to in the foregoing minutes and explanatory to one of them.

Copy of a letter from Messrs. Adams, Franklin and Jay, to the Marquis de la Fayette, dated November 1782.

Sir—We have received the letter you did us the honor to write on the 25th. inst. (Probably this “instant” is a clerical mistake, and should have been “ultimo.”)

Our country has had early and repeated proofs both of your readiness and abilities to do her service. The prospect of an inactive campaign in America, induced us to adopt the opinion, that you might be more useful here than there, especially in case the Negotiation for peace on the part of France in England should be committed to your management; for your knowledge of our affairs, and attachment to our interests might have been very advantageous to us, on such an occasion. But as an opportunity now offers of your being instrumental in producing a co-operation, which would probably put a glorious and speedy termination to the war in America, we for our part, perfectly approve of your going with Count D’Estaing, in the manner proposed.

We have the honor to be, &c. &c.

To the Right Honourable T. Townsend Esq.

Passy, November 4, 1782.

Sir—I received the letter you did me the honor of writing to me, by Mr. Stratchy; and am much pleased with the opportunity it has given me of renewing and increasing my acquaintance with a gentleman of so amiable and deserving a character.

I know you were ever averse to the measures that brought on this unhappy war. I have therefore no doubt of the sincerity of your wishes for a return of peace. Mine are equally earnest. Nothing therefore except the beginning of the war, has given me more concern than to learn at the conclusion of our conferences, that it is not likely to be soon ended. Be assured that no endeavors on my part would be wanting, to remove any difficulties that may have arisen; or even if the peace were made, to procure afterwards any changes in the treaty that might tend to render it more perfect, and the peace more durable. But we who are here at so great a distance from our constituents, have not the possibility of obtaining in a few days fresh instructions, as is the case with your negotiators, and are therefore obliged to insist on what is conformable to those we have, and at the same time appears to us just and reasonable.

With great esteem and respect I have the honor to be, sir, your most obedient and most humble servant

Signed, B. Franklin

The letter presented to Mr. Oswald by Dr. Franklin, which is mentioned in the journal to have been delivered with the consent and approbation of both his colleagues, is as follows.—

Copy of a letter from B. Franklin, Esq. to R. Oswald, Esq. dated 1782.

Sir—You may well remember, that in the beginning of our conferences, before the other commissioners arrived, on your mentioning to me a retribution for the loyalists whose estates had been forfeited, I acquainted you that nothing of that kind could be stipulated by us—the confiscations being made by virtue of laws of particular states, which the congress had no power to contravene or dispense with, and therefore could give us no such authority in our commission.—And I gave it as my opinion and advice, honestly and cordially, that if a reconciliation was intended, no mention should be made in our negotiations of those people, for they having done infinite mischief to our properties by wantonly burning and destroying farm-houses, villages, and towns; if compensation for their losses were insisted on, we should certainly exhibit against it an account of all the ravages they had committed, which would necessarily recal to view scenes of barbarity that must inflame instead of conciliating, and tend to perpetuate an enmity that we all profess a desire of extinguishing.—Understanding however from you, that this was a point your ministry had at heart, I wrote concerning it to congress, and have lately received the following resolutions, viz.

By the United States in congress assembled, Sept. 10, 1782.

Resolved—That the secretary of foreign affairs be and he is hereby directed to obtain, as speedily as possible, authentic returns of the slaves and other property, which have been carried off or destroyed in the course of the war by the enemy, and to transmit the same to the minister plenipotentiary for negotiating a peace.

Resolved—That in the mean time the secretary for foreign affairs inform the said ministers that many thousands of slaves and other property to a very great amount, have been carried off or destroyed by the enemy; and that in the opinion of congress, the great loss of property which the citizens of the United States have sustained by the enemy, will be considered by the several states, as an insuperable bar to their making restitution or indemnification to the former owners of property which has been, or may be forfeited to, or confiscated by any of the states.

In consequence of these resolutions, and the circular Letters of the Secretary, the assembly of Pennsylvania then sitting, passed the following Act, viz.

The State of Pennsylvania in the General Assembly:

Wednesday, Sept. 18, 1782.

The Bill entitled an Act for procuring an estimate of the damages sustained by the inhabitants of Pennsylvania, from the troops and adherents of the king of Great Britain, during the present war, was read a second time.

Ordered to be transcribed and printed for the public consideration:

Extract from the Minutes,

Peter Z. Lloyd, Clerk of the General Assembly.

Bill entitled, an Act for procuring an estimate of the damages sustained by the inhabitants of Pennsylvania, from the troops and adherents of the King of G. Britain, during the present war.

Whereas great damages of the most wanton nature, have been committed by the armies of the King of G. Britain, or their adherents, within the territory of the United States of North America, unwarranted by the practice of civilized nations, and only to be accounted for from the vindictive spirit of the said King and his officers; and whereas an accurate account and estimate of such damages, more especially the waste and destruction of property, may be very useful to the people of the United States of America, in forming a future treaty of peace, and in the mean time may serve to exhibit in a true light to the nations of Europe, the conduct of the said King, his ministers, officers, and adherents; to the end, therefore, that proper measures be taken to ascertain the damages aforesaid, which have been done to the citizens and inhabitants of Pennsylvania, in the course of the present war, with this State.

Be it enacted by the Representatives of the Freemen of the Commonwealth of Pennsylvania, in General Assembly met, and by the authority of the same; that in every county of this State, which has been invaded by the armies, soldiers, or adherents of the King of G. Britain, the commissioners of every such county shall immediately meet together, each within their county, and issue directions to the assessors of the respective townships, districts and places, within such county, to call upon the inhabitants of every township and place, to furnish accounts and estimates of the damages, waste, spoil and destructions which shall have been done and committed as aforesaid upon the property real or personal, within the same township or place, since the first day of ——— which was in the year of our Lord 177— and the same accounts and estimates to transmit to the said commissioners without delay, and if any person or persons, shall refuse or neglect to make out such accounts and estimates, the said assessors of the township or place, shall from their own knowledge, and by other reasonable and lawful methods, take and render such an account and estimate of all damages done or committed as aforesaid. Provided always, that all such accounts and estimates, to be made out and transmitted as aforesaid, shall contain a narrative of the time and circumstances; and if in the power of the person aggrieved, the names of the General or other officer or adherent of the enemy, by whom the damage in any case was done or under whose orders, the army, detachment, party or persons committing the same, acted at the time; and also the names and addition of the person or persons, whose property was so damaged or destroyed: And that all such accounts and estimates be made in current money, upon oath or affirmation of the sufferer, or of others having knowledge concerning the same, and that in every case, it be set forth, whether the party injured, had received any satisfaction for his loss, and by whom the same was given.

And be it further enacted by the authority aforesaid, that the said commissioners, having obtained the said accounts and estimates from the assessor of the several townships and places, shall proceed to inspect and register the same in a book to be provided for that purpose, distinguishing the districts and townships, and entering those of each place together, and if any account or estimate be imperfect, or not sufficiently verified and established, the said commissioner shall have power, and they or any two of them are hereby authorized to summon and compel any person whose evidence they shall think necessary, to appear before them, at a day and place appointed, to be examined upon oath or affirmation concerning any damage or injury as aforesaid; and the said commissioners shall upon the call and demand of the Supreme Executive Council, deliver or send to the secretary of the said Council, all or any of the original accounts and estimates aforesaid; and shall also deliver or send to the said secretary, copies of the book aforesaid, or any part or parts thereof, upon reasonable notice.

And be it further enacted by the authority aforesaid, that all losses of negroes or mulatto slaves and servants who have been deluded and carried away by the enemies of the United States, and which have not been recovered or recompensed, shall be comprehended within the accounts and estimates aforesaid; and that the commissioners and assessors of any county which had not been invaded as aforesaid, shall nevertheless inquire after and procure accounts and estimates of any damages suffered by the loss of such servants and slaves as herein before directed as to other property.

And be it further enacted by the authority aforesaid, that the charges and expences of executing the act, as to the pay of the said commissioners and assessors, shall be, as in other cases, and that witnesses shall be rewarded for their loss of time and trouble, as witnesses summoned to appear in the Courts of Quarter Sessions of the Peace; and the said charges and expences shall be defrayed by the commonwealth; but paid in the first instance out of the monies in the hands of the treasurer of the county for county rates and levies, upon orders drawn by the commissioners of the proper county.”

We have not yet had time to hear what has been done by the other assemblies—but I have no doubt that similar acts will be made by all of them—and that the mass of evidence produced by the execution of those acts, not only of the enormities committed by those people under the direction of British generals, but of those committed by the British troops themselves, will form a record that must render the British name odious in America to the latest generations—In that authentic record will be found the burning of the fine towns of Charlestown near Boston; of Falmouth, just before winter, when the sick, the aged, the women and children, were driven to seek shelter where they could hardly find it; of Norfolk, in the midst of winter; of New London; of Fairfield; of Esopus; &c. &c. besides near a hundred and fifty miles of well settled country laid waste, every house and barn burned, and many hundreds of farmers with their wives and children, butchered and scalped.

The present British ministers, when they reflect a little, will certainly be too equitable to suppose that their nation has a right to make an unjust war, which they have always allowed this against us to be, and to do all sorts of unnecessary mischief, unjustifiable by the practice of any civilized people; which those they make war with are to suffer without claiming any satisfaction; but that if Britons or other adherents are in return deprived of any property, it is to be restored to them, or they are to be indemnified! The British troops can never excuse their barbarities. They were unprovoked. The loyalists may say in excuse of theirs, that they were exasperated by the loss of their estates, and it was revenge. They have then had their revenge. Is it right they should have both?

Some of those people may have merit with regard to Britain. Those who espoused her cause from affection. These it may become you to reward. But there are many of them who were waverers, and were only determined to engage in it by some occasional circumstances or appearances. These have not much of either merit or demerit—And there are others who have abundance of demerit, respecting your country, having by their falsehoods and misrepresentations, brought on and encouraged the continuance of the war. These instead of being recompensed should be punished.

It is usual among christian people at war, to profess always a desire of peace. But if the ministers of one of the parties choose to insist particularly on a certain article, which they know the others are not, and cannot be impowered to agree to, what credit can they expect should be given to such professions?

Your ministers require that we should receive again into our bosoms, those who have been our bitterest enemies, and restore their properties who have destroyed ours; and this while the wounds they have given us are still bleeding. It is many years since your nation expelled the Stuarts and their adherents, and confiscated their estates: much of your resentment against them may by this time be abated. Yet if we should insist on, and propose it as an article of our treaty with you, that that family should be recalled, and the forfeited estates of its friends restored, would you think us serious in our professions of earnestly desiring peace?

I must repeat my opinion, that it is best for you to drop all mention of the refugees. We have proposed indeed nothing but what we think best for you, as well as ourselves. But if you will have them mentioned, let it be in an article which may provide, that they shall exhibit accounts of their losses, to commissioners hereafter to be appointed, who shall examine the same, together with the accounts now preparing in America, of the damages done by them, and state the account—and that if a balance appears in their favor, it shall be paid by us to you, and by you divided among them as you shall think proper; and if the balance is found due to us, it shall be paid by you.

Give me leave however to advise you to prevent the necessity of so dreadful a discussion, by dropping the article; that we may write to America and stop the enquiry.

To John Adams, Benjamin Franklin and John Jay, Esquires, commissioners from the United States of America, &c.—

Paris, Nov. 5th, 1782.

Gentlemen—Knowing the expectation of the king’s ministers that a full indemnity shall be provided for the whole body of refugees, either by a restitution of their property, or by some stipulated compensation for their losses, and being confident, as I have repeatedly assured you, that your refusal upon this point will be the great obstacle to a conclusion and ratification of that peace which is meant as a solid, perfect, permanent reconciliation and reunion between Great Britain and America, I am unwilling to leave Paris without once more submitting the matter to your consideration. It affects equally, in my opinion, the honor and the humanity of your country and of ours. How far you will be justified in risking every favorite object of America by contending against these principles, is for you to determine. Independence and more than a reasonable possession of territory seem to be within your reach. Will you suffer them to be outweighed by the gratification of resentment against individuals? I venture to assert that such a conduct has no parallel in the history of civilized nations.

I am under the necessity of setting out by two o’clock to-day; if the time is too short for your reconsideration and final determination of this important point, I shall hope that you will enable Mr. Oswald to dispatch a messenger after me, who may be with me before morning at Chantilly, where I propose sleeping to-night, or who may overtake me before I arrive in London, with a satisfactory answer to this letter.

I have the honor to be, gentlemen, your most obedient and most humble servant.

Signed, H. Strachey.

To H. Strachy, Esq.—

Passy, 6th November, 1782.

Sir—We have been honored with your favor of the 5th inst. and as our answer to a letter we received from Mr. Oswald on the same subject contains our unanimous sentiments respecting it, we take the liberty of referring you to the enclosed copy of that answer. we have the honor to be, sir, your most obedient, &c.

Signed,

John Adams,

B. Franklin,

John Jay.

Copy of a letter to Mr. Oswald.—

Sir—In answer to the letter you did us the honor to write, on the 4th. inst. we beg leave to repeat what we often said in conversation, viz. that the restoration of such of the estates of refugees, as have been confiscated, is impracticable, because they were confiscated by laws of particular states, and in many instances have passed by legal titles through several hands. Besides, sir, as this is a matter evidently appertaining to the internal policy of the separate states, the congress, by the nature of our constitution, have no authority to interfere with it.

As to your demand of compensation to these persons, we forbear enumerating our reasons for thinking it ill founded. In the moment of conciliatory overtures, it would not be proper to call certain scenes into view, over which a variety of considerations should induce both parties at present to draw a veil. Permit us therefore only to repeat, that we cannot stipulate for such compensation, unless on your part it be agreed to make retribution to our citizens for the heavy losses they have sustained by the unnecessary destruction of their private property.

We have already agreed to an amnesty more extensive than justice required, and full as extensive as humanity could demand. We can therefore only repeat that it cannot be extended further. We should be sorry if the absolute impossibility of our complying further with your propositions on this head, should induce Great Britain to continue the war, for the sake of those, who caused and prolonged it. But if that should be the case, we hope that the utmost latitude will not be given to its rigours—Whatever may be the issue of this negotiation, be assured, sir, that we shall always acknowledge the liberal, manly and candid manner in which you have conducted it; and that we shall remain, with the warmest sentiments of esteem and regard, your most obedient, humble servants.

Signed,

J. Adams,

B. Franklin,

J. Jay.

Article proposed and read to the commissioners, before signing the preliminary articles.—

It is agreed, that his Britannic Majesty will earnestly recommend it to his parliament to provide for and make a compensation to the merchants and shop-keepers 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 and 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 stopped, 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 U. States.

Facts—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 labor 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 those 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 the 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 linen to a neighbor on credit, should follow him, take the linen 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 betrayed by the pretended credit, and are now doubly ruined, first by the enemy and then by the negotiators 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 robbed off?

The foregoing papers have not been arranged exactly in the order of their dates, because unfortunately some of them are without dates. In the next letter, the journal will be continued.