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?