dependence shall have been formally or tacitly acknowledged; that she was only bound by her treaty, and as to the possessions to be insisted upon, that her engagements were conditional, and that her obligations did not commence until they were fixed by the cessation of the war, with a caution against "far-fetcheu inductions, subject to discussion and contradiction, tending to alter the fundamental system of the alliance."

This was followed by a second urgent memorial on the importance of the mediation of Spain, and of a decision upon the terms of a treaty. A conference was held with a committee of Congress on the twelfth of July. Gerard stated, "that the court of London, showing on one side dispositions to a reconciliation with France, rejects, on the other, the very idea of a formal and explicit acknowledgment of independence," which France perseveres to hold up as a preliminary and essential condition." He reminded Congress, that Holland had only obtained a tacit acknowledgment of independence after a war of thirty, and an explicit one after a resistance of seventy years; and to that day, that Genoa and the Swiss cantons had obtained no renunciation or acknowledgment, either tacit or formal, from their former sovereigns, but that they enjoy their sovereignty and independence only under the guarantee of France.

This was pronounced a difficulty "merely in words," and it was suggested, "that instructions upon particular conditions might frustrate the purpose of the treaty-a tacit acknowledgment."

The necessity, by the adoption of "just and moderate terms," towards England, of enabling Spain to bring her mediation to a happy issue, was enforced. Congress were also reminded, that proper terms should be offered to his Catholic majesty, in order to reconcile him perfectly

to the American interest, and lest he should "drop the mediation."

To obviate these difficulties, a commission with full powers based upon the treaty with France was proposed. Congress thus admonished, resumed the consideration of their ultimata. After much debate, a division was taken upon an amendment admitting that independence might be tacitly assured. This was negatived by the vote of seven States.

After various propositions as to the fisheries, it was decided, that the guarantee of them should not be an ultimatum. The acquisition of Canada and of Nova Scotia. was relinquished; and a cessation of hostilities was to be agreed to upon the evacuation of the United States. "In all other matters," the envoy was instructed "to govern himself by the alliance between his most Christian Majesty and these States, by the advice of their allies, by his knowledge of our interests, and by his own discretion, in which we repose the fullest confidence."

As the negotiation was to be conducted under the mediation of Spain, the terms of a treaty with that power were also discussed. Anxious to obtain a subsidy, aware of the desire of Spain to repossess the Floridas, and doubtful of the extent of the treaty of alliance with France on this point, Congress agreed to guarantee them to Spain, if wrested from Great Britain, but insisted upon retaining the right of a free navigation of the Mississippi into and from the ocean. The question of this navigation was much debated, but it was exacted, and a motion to authorize a private instruction to recede from it below the territory of the United States, if that right should be found an insuperable obstacle to a treaty, was rejected.*

* 2 S. J.

A draft of instructions as to a treaty of commerce with Great Britain was also prepared. The commercial treaty with France was to be the guide. No privilege was to be granted to Great Britain not granted to France, and no peculiar restrictions or limitations to be consented to in favor of Great Britain. The common right of fishing was to be in no case given up. The importance of its enjoyment was declared. France was to be induced to enter into articles for its better security.

Should its enjoyment be interrupted by Great Britain, the force of the Union was to be exercised to obtain redress; and Congress pledged themselves, that no treaty of commerce should be entered into, nor any commerce be carried on with Great Britain, without an express stipulation on her part for the unmolested taking of fish in the American seas beyond three leagues from the shores of the British territories.

The votes on the articles of these treaties affecting the Fisheries and the Mississippi, assumed too much a geographical character, but satisfied for a time the extreme sections of the United States. To France they were of little interest.

Having removed these obstacles to a peace with Great Britain, Gerard, feeling he had accomplished his errand, on the seventeenth of September took public leave of Congress.

CHAPTER XXXIII.

THE choice of persons to conduct these negotiations was the next great matter of interest. John Jay and John Adams were both in contemplation as ministers to treat with England. The first effort was to exclude Jay, then President of Congress; and with this obvious intent, a member from South Carolina, who might not be suspected of being prompted by a preference of Adams, offered a resolution, which was seconded by his friend Gerry, declaring that Congress would not appoint any person being a member of their body to any office under the United States for which he would receive any emolument. This resolution was defeated by the votes of all the members except four. These were the delegates from New Hampshire, Massachusetts, and one from South Carolina.*

Adams and Jay were then placed in nomination. The next day a vote was taken, but no election was had, and the expedient of first choosing an envoy to Spain was resorted to. This was ordered, and Jay was appointed the following day to this mission. Thus he was removed from competition with Adams, and the latter was chosen to negotiate with England.

The preference of Adams to Jay has been ascribed to

* Peabody, Lovell, Gerry, and Matthews.-S. J. U. S. 51.

*

his having "so generally fallen in with the policy of the Southern States, and of the French minister, by refusing to insist upon the fisheries, as a fundamental principle of national independence, as to rouse in the New England delegates the greatest repugnance to intrusting him with the vital interests of that negotiation." This statement is not warranted by the record. Jay, it is true, voted against insisting on a stipulation from England of a right to cure fish on the coast of Nova Scotia as an ultimatum, it being obvious, if Nova Scotia were to remain a British possession, that the United States had no right to require the use of that coast for any purpose. But as to requiring an acknowledgment of the common right of fishing, and a declaration, that, in no case, by any treaty of peace, it be given up, he voted in favor of it in unison with all the members, seven excepted.†† The course of this matter would indicate that the vote as to these missions involved no principle, but that the election of Adams was a concession to the wishes of his immediate friends. If there was an intrigue for this appointment, it was not on the part of the friends of Jay. To please South Carolina, John Laurens was appointed Secretary to the Legation, which place he declining, his father, Henry Laurens, was chosen Minister to Holland.

A few days after, the Chevalier de la Luzerne presented his letters of credence as the successor of Gerard. His high connections-for he was grandson of De la Moignon, chancellor of France, nephew of Malesherbes, and nearly allied to De Broglio-showed it to have been a complimentary selection. He recently had filled the

Life of Adams, i. 295.

N. H., R. I. 3, Penn. 4, Virginia 1.

"You shall never see my name," Jay writes to Livingston, "to a bad peace, nor to one that does not secure the fishery."-D. C. 8-128.