1782 November 29. Fryday.
Met Mr. Fitsherbert, Mr. Oswald, Mr. Franklin, Mr. Jay, Mr. Laurens and Mr. Stratchey at Mr. Jays, Hotel D’Orleans, and spent the whole Day in Discussions about the Fishery and the Tories. I proposed a new Article concerning the Fishery. It was discussed and turned in every Light, and multitudes of Amendments proposed on each Side, and at last the Article drawn as it was finally agreed to. The other English Gentlemen being withdrawn upon some Occasion, I asked Mr. Oswald if he could consent to leave out the Limitation of 3 Leagues from all their Shores and the 15 from those of Louisbourg. He said in his own Opinion he was for it, but his Instructions were such, that he could not do it. I perceived by this, and by several Incidents and little Circumstances before, which I had remarked to my Colleagues, who were much of the same opinion, that Mr. Oswald had an Instruction, not to settle the Articles of the Fishery and Refugees, without the Concurrence of Mr. Fitsherbert and Mr. Stratchey.
Upon the Return of the other Gentlemen, Mr. Stratchey proposed to leave out the Word Right of Fishing and make it Liberty. Mr. Fitsherbert said the Word Right was an obnoxious Expression.
Upon this I rose up and said, Gentlemen, is there or can there be a clearer Right? In former Treaties, that of Utrecht and that of Paris, France and England have claimed the Right and used the Word. When God Almighty made the Banks of Newfoundland at 300 Leagues Distance from the People of America and at 600 Leagues distance from those of France and England, did he not give as good a Right to the former as to the latter. If Heaven in the Creation gave a Right, it is ours at least as much as yours. If Occupation, Use, and Possession give a Right, We have it as clearly as you. If War and Blood and Treasure give a Right, ours is as good as yours. We have been constantly fighting in Canada, Cape Breton and Nova Scotia for the Defense of this Fishery, and have expended beyond all Proportion more than you. If then the Right cannot be denied, Why should it not be acknowledged? and put out of Dispute? Why should We leave Room for illiterate Fishermen to wrangle and chicane?
Mr. Fitsherbert said, the Argument is in your Favour. I must con fess your Reasons appear to be good, but Mr. Oswalds Instructions were such that he did not see how he could agree with Us. And for my Part, I have not the Honour and Felicity, to be a Man of that Weight and Authority, in my Country, that you Gentlemen are in yours (this was very genteelly said), I have the Accidental Advantage of a little favour with the present Minister, but I cannot depend upon the Influence of my own Opinion to reconcile a Measure to my Countrymen. We can consider our selves as little more than Pens in the hands of Government at home, and Mr. Oswalds Instructions are so particular.
I replied to this, The Time is not so pressing upon Us, but that We can wait, till a Courier goes to London, with your Representations upon this Subject and others that remain between Us, and I think the Ministers must be convinced.
Mr. Fitsherbert said, to send again to London and have all laid loose before Parliament was so uncertain a Measure—it was going to Sea again.
Upon this Dr. Franklin said, that if another Messenger was to be sent to London, he ought to carry Something more respecting a Compensation to the Sufferers in America. He produced a Paper from his Pocket, in which he had drawn up a Claim, and He said the first Principle of the Treaty was Equality and Reciprocity. Now they demanded of Us Payment of Debts and Restitution or Compensation to the Refugees. If a Draper had sold a Piece of Cloth to a Man upon Credit and then sent a servant to take it from him by Force, and after bring his Action for the Debt, would any Court of Law or Equity give him his Demand, without obliging him to restore the Cloth? Then he stated the carrying off of Goods from Boston, Philadelphia, and the Carolinas, Georgia, Virginia &c. and the burning of the Towns, &c. and desired that this might be sent with the rest.1
Upon this I recounted the History of G[eneral] Gages Agreement with the Inhabitants of Boston, that they should remove with their Effects upon Condition, that they would surrender their Arms. But as soon as the Arms were secured, the Goods were forbid to be carried out and were finally carried off in large Quantities to Hallifax.
Dr. Franklin mentioned the Case of Philadelphia, and the carrying off of Effects there, even his own Library.
Mr. Jay mentioned several other Things and Mr. Laurens added the Plunders in Carolina of Negroes, Plate &c.
After hearing all this, Mr. Fitsherbert, Mr. Oswald and Mr. Stratchey, retired for some time, and returning Mr. Fitsherbert said that upon consulting together and weighing every Thing as maturely as possible, Mr. Stratchey and himself had determined to advise Mr. Oswald, to strike with Us, according to the Terms We had proposed as our Ultimatum respecting the Fishery and the Loyalists.—Accordingly We all sat down and read over the whole Treaty and corrected it and agreed to meet tomorrow at Mr. Oswalds House, to sign and seal the Treaties which the Secretaries were to copy fair in the mean time.
I forgot to mention, that when We were upon the Fishery, and Mr. Stratchey and Mr. Fitsherbert were urging Us to leave out the Word Right and substitute Liberty, I told them at last In Answer to their Proposal, to agree upon all other Articles, and leave that of the Fishery to be adjusted, at the definitive Treaty. I said, I never could put my hand to any Articles, without Satisfaction about the Fishery. That Congress had, 3 or 4 Years ago, when they did me the Honour to give me a Commission, to make a Treaty of Commerce with G. Britain, given me a positive Instruction, not to make any such Treaty, without an Article in the Treaty of Peace, acknowledging our Right to the Fishery, that I was happy that Mr. Laurens was now present who I believed was in Congress at the Time, and must remember it.2
Mr. Laurens upon this said, with great Firmness, that he was in the same Case, and could never give his Voice for any Articles without this.
Mr. Jay spoke up and said, it could not be a Peace, it would only be an insidious Truce without it.3
1. A copy of Franklin’s counter-proposal is in Adams Papers, Nov. 1782, docketed “An Article proposed & read to the Commissioners before signing the preliminary Articles, with a state of facts”; a printed text is in Franklin’s Writings, ed. Smyth description begins The Writings of Benjamin Franklin, ed. Albert Henry Smyth, New York and London, 1905–1907; 10 vols. description ends , 8:632, note. In reporting the end of the preliminary negotiation, Franklin said that “Apparently ... to avoid the discussion” of his proposed new article, the British Commissioners “suddenly changed their minds, dropped the design of recurring to London, and agreed [also] to allow the fishery as demanded” (to Livingston, 5 Dec. 1782; same description begins The Writings of Benjamin Franklin, ed. Albert Henry Smyth, New York and London, 1905–1907; 10 vols. description ends , p. 632–633). For the tame compromise on the question of restoring loyalist property (a recommendation by Congress to the state legislatures), see Miller, ed., Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America, Washington, 1931–1948; 8 vols. description ends , 2:98–99.
2. Instructions of 16 Oct. 1779, q.v. in JA’s Autobiography. Those for negotiating peace had of course been superseded by fresh instructions to the joint commissioners, 15 June 1781, prepared under the eye of La Luzerne (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, 1904–1937; 34 vols. description ends , 20:651–654); and JA’s instructions to negotiate a treaty of commerce had been revoked by a resolution of Congress, 12 July 1781 (same, description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, 1904–1937; 34 vols. description ends p. 746).
“Friday Novemr. 29.... Dined at Mr. Adams—in good Spirits. Said he on being asked if he would fish at Dinner, No laughingly—‘he had had a pretty good Meal of them today.’ I told [him] ‘I was glad to hear it as I knew a small Quantity would not satisfy him.’
“In the Evening I learned every thing was going right and that in all probability the whole would be finished tomorrow off or on. I am well satisfied it will be on. All goes well and we have all that can be wished. Mr. A is well satisfied with Dr. F’s Conduct and says he has behaved well and Nobly; particularly this day” (Matthew Ridley, Diary, MHi).