LbC (Adams Papers); APM Reel 109.

JA's Diary indicates that on the evening of 23 Nov. he was with John Jay when Jay received a request from Richard Oswald for a meeting at either Jay's or Oswald's residence. Oswald's purpose was to arrange a meeting between himself and the American Commissioners to present the proposed treaty, which was newly approved by the Shelburne ministry and had reached Paris earlier in the day in the care of Henry Strachey. Matthew Ridley's diary recorded Strachey's return on the 23d and indicated that Oswald and his colleague, Alleyne Fitzherbert, were “very doubtful about Peace” and “of Ld. Shelburne keeping his Ground.” Their apprehensions, which were well founded and shared by their American counterparts, largely concerned Arts. 3, 5, and 6 dealing with the fisheries and the loyalists (see notes 4, 5, and 7). For JA's account of the negotiations, which centered on those two issues and concluded successfully on the 29th, see JA, D&A , 3:72–81.

The preamble and Art. 1 are essentially the same as their counterparts in the draft treaty of [4 Nov.], above, that Strachey had carried to London. They were incorporated virtually unchanged into the preliminary treaty signed on 30 Nov., below. The only significant difference between this and the 88earlier draft was that the first paragraph of the preamble is here less specific and more implicit regarding the American obligation not to sign a separate peace under the terms of the Franco-American alliance of 1778.

Article 2 was also incorporated into the preliminary treaty, differing significantly from the corresponding passage in the [4 Nov.] draft, above, only in that it ran the northern boundary through the middle of the Great Lakes. For the alternatives considered before this solution was devised, see the [4 Nov.] draft, and note 4; and JA's 6 Nov. letter to Robert R. Livingston, and note 8, both above. In his Diary JA noted that the Shelburne ministry “did not approve” the boundary as set down in Art. 2, thinking “it too extended, too vast a Country, but they would not make a difficulty” (JA, D&A , 3:72).

JA underlined these two words because “Liberty” was unacceptable to the American Commissioners, who insisted that the ability of Americans to fish on the Grand Banks should be a right. “Right” was the word used in the [4 Nov.] treaty, above, that Strachey carried to London, but it was replaced with “Liberty” in the course of the cabinet's deliberations. The original word was restored in drafts of the article on [28 Nov.] and [29 Nov.] and in the treaty signed on 30 Nov., all below. In his Diary entry for 29 Nov., JA wrote that “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” (JA, D&A , 3:79).

JA believed that, as revised in London, this article was an effort to reconcile American access to the Newfoundland fisheries with any corresponding stipulation to be made in an Anglo-French peace treaty, writing in his Diary that he “could not help observing that the Ideas respecting the Fishery appeared to me to come piping hot from Versailles.” The practical effect of the change in language would have been to prohibit the Americans from fishing closer than three leagues, or nine miles, from the coast. During a long and detailed explanation of the minutiae of the cod and haddock fisheries and American participation by tradition and treaty, JA noted that the proposed change would have placed American fishermen at a severe disadvantage without securing any benefit for English fishermen. JA explained that in the springtime cod and haddock came very close to shore, even into the harbors and streams. While American fishermen could get to the fishing grounds early enough to take advantage of this phenomenon, English fishermen could not. Therefore, if Americans were not permitted to operate unrestricted along the coast, no fish would be taken by anyone. On 25 Nov., during the opening stages of his defense of American fishing rights, which continued intermittently on 26, 28, and 29 Nov., JA noted that “we have a saying at Boston that when the Blossoms fall the Haddock begin to crawl,” that is, to move out into deep water (same, 3:72–81). For the evolution of this article with regard to the access of American fishermen to the inshore fishery and their ability to dry and cure their catch, see the drafts of [28 Nov.] and [29 Nov.], all below.

As it appears here this article was considerably shorter than the version in the [4 Nov.] treaty, above, carried to London by Strachey. In the treaty signed on 30 Nov., below, it was even shorter and had been made reciprocal. For the evolution of the article see the draft at [28 Nov.], below.

Neither this nor the following article, which together require restitution and amnesty for the loyalists, appear in the treaty signed on 30 November. Nevertheless, they illustrate the gulf dividing the British and American negotiators. What to do about the loyalists was the most contentious issue of the negotiations. As Benjamin Vaughan observed in a 27 Nov. letter to Benjamin Franklin, “if you wanted to break off your treaty, I am perfectly sensible that you could not do it on grounds in which America would more join with you, than this of the refugees. On the other hand, if England wanted to break, she could not wish for better ground on her side” (Franklin, Papers , 38:368–369). The American Commissioners’ problem was that Arts. 5 and 6 were less conditional and went further than the provisions in the draft treaty of [4 Nov.], above. Indeed, their inclusion as they appear here indicates the pressure on the Shelburne ministry to do something tangible for the loyalists. This is particularly so in view of the commissioners’ 7 Nov. letter to Richard Oswald, above, in which they declared that, despite Oswald's warning that the ministry in London would consider the [4 Nov.] draft's provisions regarding the loyalists inadequate, anything beyond what was granted to the loyalists there was 89unacceptable to them and impossible for Congress to implement.

Despite the importance of the loyalist issue and its potential to render a peace settlement impossible, JA's Diary has relatively little to say about the negotiations over the loyalists. On 26 Nov. he noted that there had been “endless Discussions about the Tories” and on the 27th that Oswald and the commissioners were “endeavouring to come together, concerning the Fisheries and Tories.” Only on the 29th does he comment extensively regarding the final British capitulation to the inevitable and the acceptance of the articles appearing in the treaty of 30 Nov., below. JA's reticence probably stems from his more active role and interest in the negotiations over the fisheries; it probably also reflects his deference to Benjamin Franklin, who was “very staunch against the Tories, more decided a great deal on this Point than Mr. Jay or my self.” Indeed, in his Diary entry for 29 Nov., JA quotes extensively from the paper that Franklin presented during that day's negotiating session, a copy of which is in the Adams Papers (JA, D&A , 3:77, 78, 80–81; Franklin, Papers , 38:375–377). Franklin threatened that should the British insist on compensation for the loyalist losses in America, the commissioners would require that American citizens be compensated for the destruction and losses caused by British wartime operations. For the evolution of the articles concerning the loyalists, see the draft article at [ca. 26 Nov.], and the preliminary treaty signed on 30 Nov., both below.

This article was included virtually verbatim in the treaty of 30 Nov., below, except that at this point the negotiators inserted additional text specifically prohibiting British forces from taking slaves or other American property with them when they evacuated the United States. The addition reflected the arrival of Henry Laurens at Paris on or about 29 Nov. and was Laurens’ main contribution to the treaty (JA, D&A , 3:80).

This and the separate article were little changed from the [4 Nov.] draft, above, and were incorporated virtually verbatim into the preliminary treaty of 30 Nov., below.