Newfoundland, are a chain of banks, extending all along the coast, and
almost adjoining each other, and those banks are where our fishermen
go for the first fare, in the early part of the season. Their second
fare is on the Banks of Newfoundland, where they continue to fish,
till prevented by the tempestuous and boisterous winds, which prevail
in the fall of the year on that coast. Their third and last fare is
generally made near the coast of Cape Sables, or banks adjoining
thereto, where they are not only relieved from those boisterous gales,
but have an asylum to fly to in case of emergency, as that coast is
lined, from the head of Cape Sables to Halifax, with most excellent
harbors. The sea-cow fishery was, before the present war, carried on
to great advantage, particularly from Nantucket and Cape Cod, in and
about the river St Lawrence, at the Island St Johns and Anticosti, Bay
of Chaleurs, and the Magdalen Islands, which were the most noted of
all for that fishery. This oil has the preference to all others,
except spermaceti."
Mr Jay desired to know whether Mr Oswald had now power to conclude and
sign with us. Strachey said he had, absolutely. Mr Jay desired to know
if the propositions now delivered us, were their ultimatum. Strachey
seemed loath to answer, but at last said, no. We agreed these were
good signs of sincerity. Bancroft came in this evening, and said, it
was reported, that a courier had arrived from M. Rayneval, in London,
and that after it, the Count de Vergennes told the King, that he had
the peace in his pocket, that he was now master of the peace.
_Tuesday, November 26th._ Breakfasted at Mr Jay's, 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 upon the subject, 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 thirtythree; 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
I expressed yesterday, of knowing the state of the negotiation between
him and the Count de Vergennes, respecting the fishery. He told us,
that the Count was for fixing the boundaries where each nation should
fish; he must confess he thought the idea plausible, for that there
had been great dissensions among the fishermen of the two nations;
that the French Marine Office had an apartment full of complaints and
representations of disputes; that the French pretended, that Cape Ray
was the Point Riche.
I asked him, 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 showed him an extract
of a letter from the Earl of Egremoot, to the Duke of Bedford, of
March the 1st, 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 dit tems necessaire
pour pecher et secher les poissons_." That it is a received law among
the fishermen, that whoever arrives first shall have his choice of the
stations; that the Duc 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 to his Grace, the Duke of
Bedford, express instructions to come to an eclaircissement upon the
point with the French Ministry, and to refuse the exclusive
construction of the Treaty of Utrecht. I also showed him a letter from
Sir Stamier Porteen, Lord Weymouth's Secretary, to Lord Weymouth,
enclosing an extract of Lord Egremont's letter to the Duke of Bedford,
by which it appears, that the Duc de Nivernois insisted "that the
French had an exclusive right to the fishery, from Cape Bonavista to
point 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 Izard. 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 he said 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 could not
contend for it against us. We had only contracted not to disturb 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 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 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
remittances than the fishery, no other way to pay for their clothing;
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 straitened 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 persuaded, that
if the germ of a war was left anywhere, 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 them, more decided a great deal on
this point, than Mr. Jay or myself.
_Wednesday, November 27th._--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 some time before
dinner with him and Dr. Franklin, and all the afternoon with them and
Mr. Oswald, endeavoring to come together concerning the fisheries and
the tories.
_Thursday, November 28th._--This morning I have drawn up the following
project.
ART. III. "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 Gulf of St. Lawrence, 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, harbors, or creeks of Nova
Scotia, or any of the shores of the Magdalen Islands, and of the
Labrador 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."
_Friday, November 29th._--Met Mr Fitzherbert, Mr Oswald, Dr Franklin,
Mr Jay, Mr Laurens, and Mr Strachey, at Mr Jay's, _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 not consent to leave out
the limitation of three leagues from all their shores, and the fifteen
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 Fitzherbert and Mr Strachey.
Upon the return of the other gentlemen, Mr Strachey proposed to leave
out the word _right_ of fishing, and make it _liberty_. Mr Fitzherbert
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 three hundred leagues distance from
the people of America, and at six hundred 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 constantly been fighting in Canada, Cape Breton, and Nova
Scotia, for the defence 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 Fitzherbert said, the argument is in your favor. I must confess
your reasons appear to be good; but Oswald's instructions were such,
that he did not see how he could agree with us; "and, for my part, I
have not the honor and felicity to be a man of that weight and
authority in my country, that you, gentlemen, are in yours; (this was
very genteely said) I have the accidental advantage of a little favor
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 ourselves as little more than pens in the hands of government
at home, and Mr Oswald's instructions are _so_ particular."
I replied to this; "the time is not so pressing upon us, but that we
can wait until 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 Fitzherbert 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 afterwards should 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.
Upon this, I recounted the history of General Gage's 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 Halifax. 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 Fitzherbert, Mr Oswald, and Mr Strachey
retired for some time, and returning, Mr Fitzherbert said, that upon
consulting together, and weighing everything as maturely as possible,
Mr Strachey 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 Oswald's 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
Strachey and Mr Fitzherbert were urging us to leave out the word
_right_, and substitute the word _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, that I
could never put my hand to any articles, without satisfaction about
the fishery; that Congress had three or four years ago, when they did
me the honor to give me a commission to make a Treaty of Commerce with
Great 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 Mr Laurens was now present,
who, I believed, was in Congress at the time, and must remember it. 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.
_Saturday, November 30th. St Andrews' Day._--We met first at Mr Jay's,
then at Mr Oswald's, examined and compared the treaties. Mr Strachey
had left out the limitation of time, the twelve months, that the
refugees were allowed to reside in America, in order to recover their
estates, if they could. Dr Franklin said this was a surprise upon us.
Mr Jay said so too. We never had consented to leave it out, and they
insisted upon putting it in, which was done.
Mr Laurens said, there ought to be a stipulation, that the British
troops should carry off no negroes, or other American property. We all
agreed. Mr Oswald consented.
Then the treaties were signed, sealed, and delivered, and we all went
out to Passy to dine with Dr. Franklin. Thus far has proceeded this
great affair. The unravelling of the plot has been to me the most
affecting and astonishing part of the whole piece.
As soon as I arrived in Paris, I waited on Mr Jay, and learned from
him the rise and progress of the negotiations. Nothing, that has
happened since the beginning of the controversy in 1761, has ever
struck me more forcibly, or affected me more intimately, than that
entire coincidence of principles and opinions between him and me. In
about three days I went out to Passy, and spent the evening with Dr
Franklin, and entered largely into conversation with him upon the
course and present state of our foreign affairs. I told him, without
reserve, my opinion of the policy of this Court, and of the
principles, wisdom, and firmness, with which Mr Jay had conducted the
negotiation in his sickness and my absence, and that I was determined
to support Mr Jay to the utmost of my power in the pursuit of the same
system. The Doctor heard me patiently, but said nothing.
The first conference we had afterwards with Mr Oswald, in considering
one point and another, Dr Franklin turned to Mr Jay, and said, I am of
your opinion, and will go on with these gentlemen in the business,
without consulting this Court. He accordingly met with us in most of
our conferences, and has gone with us, in entire harmony and unanimity
throughout, and has been able and useful, both by his sagacity and his
reputation in the whole negotiation.[15]
I was very happy, that Mr Laurens came in, although it was the last
day of the conferences, and wish he could have been sooner. His
apprehension, notwithstanding his deplorable affliction under the
recent loss of so excellent a son, is as quick, his judgment as sound,
and his heart as firm as ever. He had an opportunity of examining the
whole, and judging and approving, and the article, which he caused to
be inserted at the very last, that no property should be carried off,
which would most probably in the multiplicity and hurry of affairs
have escaped us, was worth a longer journey, if that had been all. But
his name and weight is added, which is of much greater consequence.
These miserable minutes may help me to recollect, but I have not found
time, amidst the hurry of business and crowd of visits, to make a
detail.
I should have before noted, that at our first conference about the
fishery, I related the facts, as well as I understood them; but
knowing nothing myself, but as a hearsay witness, I found it had not
the weight of occular testimony; to supply which defect, I asked Dr
Franklin, if Mr Williams of Nantes could not give us light. He said
Mr Williams was on the road to Paris, and as soon as he arrived he
would ask him. In a few days, Mr Williams called on me, and said Dr
Franklin had, as I desired him, inquired of him about the fishery, but
he was not able to speak particularly upon that subject; but there was
at Nantes a gentleman of Marblehead, Mr Samuel White, son-in-law to Mr
Hooper, who was master of the subject, and to him he would write.
Mr Jeremiah Allen, a merchant of Boston, called on me about the same
time. I inquired of him. He was able only to give such a hearsay
account as I could give myself. But I desired him to write to Mr
White, at Nantes, which he undertook to do, and did. Mr White answered
Mr Allen's letter by referring him to his answer to Mr Williams, which
Mr Williams received and delivered to Dr Franklin, who communicated it
to us, and it contained a good account.
I desired Mr Thaxter to write to Messrs Ingraham and Bromfield, and Mr
Storer to write to Captain Coffin at Amsterdam. They delivered me the
answers, both contained information, but Coffin's was the most
particular, and of the most importance, as he spoke as a witness. We
made the best use of these letters with the English gentlemen, and
they appeared to have a good deal of weight with them.
From first to last, I ever insisted upon it with the English
gentlemen, that the fisheries and the Mississippi, if America was not
satisfied in those points, would be the sure and certain sources of a
future war, showed them the indispensable necessity of both to our
affairs, and that no treaty we could make, which should be
unsatisfactory to our people upon those points, could be observed;
that the population near the Mississippi would be so rapid, and the
necessities of the people for its navigation so pressing, that nothing
could restrain them from going down, and if the force of arms should
be necessary, it would not be wanting; that the fishery entered into
our distilleries, our coasting trade, our trade with the Southern
States, with the West India Islands, with the coast of Africa, and
with every part of Europe in such a manner, and especially with
England, that it could not be taken from us, or granted us stingily,
without tearing and rending; that the other States had staples, we had
none but fish, no other means of remittances to London, or paying
those very debts they had insisted upon so seriously; that if we were
forced off, at three leagues distance, we should smuggle eternally,
that their men-of-war might have the glory of sinking, now and then, a
fishing schooner, but this would not prevent a repetition of the
crime, it would only inflame, and irritate, and enkindle a new war,
that in seven years we should break through all restraints, and
conquer from them the island of Newfoundland itself, and Nova Scotia
too.
Mr Fitzherbert always smiled, and said it was very extraordinary that
the British Ministry and we should see it in so different a light.
That they meant the restriction, in order to prevent disputes, and
kill the seeds of war, and we should think it so certain a source of
disputes, and so strong a seed of war; but that our reasons were such,
that he thought the probability on our side.
I have not time to minute the conversation about the sea-cow fishery,
the whale fishery, the Magdalen Islands, the Labrador coasts, and the
coasts of Nova Scotia. It is sufficient to say, they were explained
to the utmost of our knowledge, and finally conceded.
I should have noted before, the various deliberations between the
English gentlemen and us, relative to the words, "indefinite and
exclusive right," which the Count de Vergennes and M. Gerard had the
precaution to insert in our treaty with France. I observed often to
the English gentlemen, that, aiming at excluding us from fishing upon
the north side of Newfoundland, it was natural for them to wish that
the English would exclude us from the south side. This would be making
both alike, and take away an odious distinction. French statesmen must
see the tendency of our fishermen being treated kindly and hospitably,
like friends, by the English on their side of the Island, and
unkindly, inhospitably, and like enemies, on the French. I added,
further, that it was my opinion, neither our treaty with the French,
nor any treaty or clause to the same purpose, which the English could
make, would be punctually observed. Fishermen, both from England and
America, would smuggle, especially the Americans, in the early part of
the spring, before the Europeans could arrive. This, therefore, must
be connived at by the French, or odious measures must be recurred to
by them or us to suppress it, and, in either case, it was easy to see
what would be the effect upon the American mind. They, no doubt,
therefore, wished the English to put themselves upon as odious a
footing at least as they had done.
Dr Franklin said, that there was great weight in this observation, and
the Englishmen showed plainly enough that they felt it.
I have not attempted, in these notes, to do justice to the arguments
of my colleagues; all of whom were throughout the whole business,
when they attended, very attentive and very able, especially Mr Jay,
to whom the French, if they knew as much of his negotiations as they
do of mine, would very justly give the title, with which they have
inconsiderately decorated me, that of "_Le Washington de la
negotiation_," a very flattering compliment indeed, to which I have
not a right; but sincerely think it belongs to Mr Jay.
_Tuesday, December 3d._--Visited M. Brantzen, _Hotel de la Chine_. M.
Brantzen asked me, how we went on? I told him we had come to a full
stop, by signing and sealing the preliminaries the 30th of November. I
told him, that we had been very industrious, having been at it
forenoon, afternoon, and evening, ever since my arrival, either with
one another, or with the English gentlemen. He asked if it was
definitive and separate? I said by no means. They were only articles
to be inserted in the definitive treaty. He asked, if there was to be
any truce or armistice in the mean time? I said again, by no means.