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.