Part 38

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 delà du dit tems nécessaire pour pêcher et sécher 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, _Hôtel d'Orléans_, 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 négotiation_," 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, _Hôtel 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.

He then said, that he believed France and England had agreed too; that the Count de Vergennes' son was gone to England with M. de Rayneval; but he believed the Spaniards had not yet agreed, and the Dutch were yet a great way off, and had agreed upon nothing. They had had several conferences. At the first, he had informed Mr Fitzherbert, that their High Mightinesses insisted upon the freedom of navigation as a preliminary and a _sine qua non_. Mr Fitzherbert had communicated this to his Court, but the answer received was, that his Court did not approve of conceding this as a _sine qua non_, but chose to have all the demands of their High Mightinesses stated together. M. Brantzen answered, that his instructions were, not to enter into any conferences upon other points, until this was agreed. That it was the intention of the British Court to agree to this. That he could not consider any changes in the Ministry as making any alteration. They were all Ministers of the same King, and servants of the same nation. That Mr Fox, when he was Secretary of State, by his letter to the Russian Minister, had declared the intention of the King to consent to the freedom of navigation, &c.

M. Brantzen said, however, that he had in his private capacity and without compromising his ministerial character, entered into explanations with Mr Fitzherbert, and had told him that he should insist upon three points, the freedom of navigation, the restitution of territories in the East and West Indies, and compensation for damages. The two first points could not be disputed, and the third ought not be; for the war against them had been unjust, the pretences for it were groundless, their accession to the armed neutrality must now be admitted, even by Britain's accession to it, to have been an illegitimate cause of war, and the object of a treaty with America could not be seriously pretended to be a just cause of war; and many members of Parliament had in the time of it declared the war unjust, and some of those members were now Ministers; even the prime Minister, my Lord Shelburne himself, had freely declared the war unjust in the House of Peers; and if the war was unjust, the damages and injustice ought to be repaired.