American Neutrality in 1793: A Study in Cabinet Government 9780231877909

Citation preview

AMERICAN NEUTRALITY IN 1793 A Study in Cabinet Government

BY

CHARLES MARION THOMAS, PH.D. Assistant Professor in History in Long Island University

NEW YORK COLUMBIA UNIVERSITY PRESS LONDON; P . S. KING & SON, I.II>.

I93I

COPYRIGHT,

1931

BY COLUMBIA U N I V R B S I T Y

PRESS

PRINTED IN T H B UNITED STATES OF AMERICA

PREFACE THIS study is the result of an interest aroused in the author's mind when he first realized the importance of the events of the year 1793 in the development of the American policy of neutrality. A question developed concerning the influence of Thomas Jefferson upon the origin of this policy. It became evident that there was no thorough study of the relative contributions of the various members of the cabinet. Some writers gave Jefferson, as Secretary of State, credit for having originated almost all the principles of American neutrality that appeared in official documents over his signature. In turn, even the less prejudiced supporters of Hamilton attributed to him the wisest of these decisions. Both theories could not be correct. A preliminary survey showed that a careful study of available sources would probably furnish an answer to this question. The more the author investigated this problem the more fascinating it became. Starting as an attempt to discover the contributions of Jefferson to this policy of neutrality the search soon developed into a study of cabinet government. It became evident that scarcely a single principle was added by an individual. They were nearly all the product of joint discussions in the cabinet, the result of compromises within a cabinet that contained, fortunately, as divergent elements as have ever been found in any American cabinet. The good fortune was that the necessity of compromise would and did produce a neutral course more nearly in the middle of the way, more impartial, than that which any individual could have found. S

6

PREFACE T h i s study reveals how this neutrality went beyond the

ordinary

requirements

of

the

international

law

of

the

eighteenth century, how it was truly a new, an A m e r i c a n policy of neutrality, and how it has set the precedent f o r many o f the neutral duties generally accepted among nations to-day.

Neutral duties received more attention f r o m W a s h -

ington's cabinet in 1793 than did neutral rights.

The ex-

planation of this is to be found in the first chapter of this study.

T h e following pages consequently deal more exten-

sively with neutral duties than rights, but the latter are discussed herein in so far as they entered into cabinet discussion during that year. I f the author has been so fortunate as to contribute to a better understanding of the methods employed in the

first

cabinet of the United States the credit therefor should g o largely to the excellence of the sources available.

It is well

k n o w n that the papers of many of the early statesmen of the United States have been fairly well preserved.

T h i s prob-

lem proved to be one of the unusual instances, however, in which scarcely a desired bit of evidence on even minor points is lacking.

If it seemed that it would be useful to

have a knowledge o f the discussion which took place at a particular cabinet meeting concerning some problem, sufficient search and discretion usually revealed a better record of that cabinet meeting than could have been found in official minutes had such been left.

Jefferson had a well-formed

habit of filing a w a y even the torn scraps of paper on which he jotted d o w n thoughts during a conversation.

These in

time have found their w a y to the bound volumes of his manuscripts in the L i b r a r y of Congress.

There also can be

found press copies of each of the three or f o u r rough d r a f t s (much interlined) through which the arguments passed before they finally appeared in a formal letter or state paper. T h e papers of Hamilton and of others add missing links.

PREFACE

7

Each man carried on an extensive private correspondence, and rare gems frequently appear in the papers of their friends. Jefferson's letters to James Madison were at times so charged with state secrets that he dared not trust them to the mails. This is merely an example. Equally useful at times are the letters which the British minister, Hammond, wrote to his government, since Hamilton often thought it necessary to take the edge off of an unpleasant fact by giving Hammond an oral account of the last cabinet meeting. These are merely a few indications of the availability of sources which supplement one another on this topic if a person is willing to seek them. The reader who is interested in this will find in the footnotes the other examples too numerous to mention here. For the benefit of readers who may be so located as not to have access to rarer sources, a consistent practice has been followed o f citing a document in its most generally available, reliable form. Manuscripts usually are cited only when there is no accurate reprint. Pertinent papers cited in printed form have been checked with the manuscripts, when important and possible, in order to permit this system of citation. The extra effort is well expended if a few more individuals are turned thereby to the writings of these statesmen. Attention is called in footnotes to the instances in which inaccuracies occur in cited volumes of papers edited by ordinarily reliable individuals. This is not intended as a reflection upon those editors, for such errors are inevitable. I f there is more than one available edition of such works, other things being equal, the pagination of the most widely-sold edition is used, the date o f which is available in the bibliography or footnotes. The author wishes to acknowledge his indebtedness to the several teachers, colleagues and friends whose kindness led them to give so generously of their time and counsel. Pro-

8

PREFACE

fessor David Saville Muzzey was largely responsible for the author's attention being directed to this problem, and made many helpful suggestions in the early stages o f the study. Professor Dixon Ryan F o x has furnished encouragement and advice at critical times, and has sacrificed his own interests to read the entire manuscript and to assist in the preparation for publishing it. Professor Philip Caryl Jessup o f the Division of Public Law o f Columbia University has furnished indispensable criticism on the technicalities of international law, having read the complete manuscript of chapters three, four, five and the second half of chapter six together with other parts of the manuscript. The author wishes to express his gratitude for a long conference with Judge John Basset Moore and for the useful suggestions received from him; for the careful criticism from Professor Philip Dillon Jordan of Long Island University who has read the entire manuscript and assisted in other ways; for useful suggestions from Mr. Alan Wilson Marshall and for the friendship of those who have made the author's material existence possible. CHARLES M . LONG ISLAND UNIVERSITY, MARCH, 1 9 3 1 .

THOMAS.

CONTENTS PAGE

PREFACE

S

L I S T OF A B B R E V I A T I O N S

N

CHAPTER I The Proclamation of Neutrality

13

C H A P T E R II The Preliminary Questions and the Arrival of Genet

53

C H A P T E R III The Limit of American Territory

91

C H A P T E R IV The Prohibition of the Fitting Out of Armed Vessels in the Ports of the United States 118 CHAPTER V The Prohibition of Foreign Recruiting and the Usurpation of Consular Jurisdiction 165 CHAPTER

VI

Genet's Effect on American Neutrality—Neutral Duties—Neutral Rights 221 APPENDIX

I

267

APPENDIX II

272

APPENDIX I I I

275

APPENDIX I V

278

BIBLIOGRAPHY

280

INDEX

285

9

L I S T OF A B B R E V I A T I O N S A. S. P. F. R., I.: American State Papers, Foreign Relations, vol. I. Bee, Admiralty Reports: Reports of Cases Adjudged in the District Court of South Carolina by the Hon. Thomas Bee, Judge of that Court, to which is Added an Appendix Containing Decisions of the Admiralty Court of Pennsylvania by the late Francis Hopkinson, Esquire, and Cases Determined in Other Districts of the United State. Philadelphia, 1810. B. S. P. (Henry Adams Transcripts) : British State Papers, Hammond Correspondence, Henry Adams Transcripts, in the Library of Congress. B. S. P . : British State Papers, Hammond Correspondence, Transcripts in Ford Collection at The New York Public Library. C. of G.: Correspondence of Genet, edited by Frederick J . Turner, Annual Report of the American Historical Association, 1903, vol. II. F., W. of J.: The IVritings of Thomas Jefferson, edited by Paul Leicester Ford. F., IV. of W.: The IVritings of George IVashington, edited by Worthington Chauncey Ford. G. B. Mss.: The George Bancroft Manuscripts in The New York Public Library. G. W. P . : George Washington Papers in The Library of Congress. H., L. of II.: The Life of Alexander Hamilton (vol. V ) , by John C. Hamilton. H., IV. of H.: The Works of Alexander Hamilton, edited by John C. Hamilton. J. G. L.: Thomas Jefferson's Germantown Letters, edited by Charles Francis Jenkins. L., W. of H.: The Works of Alexander Hamilton, edited by Henry Cabot Lodge. L. C.: The Library of Congress. N. Y . P. L . : The New York Public Library. T. J . P . : Thomas Jefferson Papers in The Library of Congress. Treaties and Conventions: Treaties and Conventions Concluded between The United States of America and Other Powers since July 14, 1776, Containing Notes . . .Senate Executive Documents, 48th Cong., 2nd Sess., vol. I, part 2. W., W. of J.: The Writings of Thomas Jefferson, edited by H. A . Washington. 11

CHAPTER I THE

P R O C L A M A T I O N OF

NEUTRALITY

the Secretary of State, is often obscured in the shadow of the author of the Declaration of American Independence and hidden by the conspicuousness of the first Democratic president. Nevertheless, many of the policies of Jefferson, the President, were conceived or developed during his years as Secretary of State under Washington. This earlier period was especially important in the formation of a neutrality policy. The principles of neutrality laid down for the United States in the year 1793 were sound and enduring ; 1 few changes have been necessary in this policy and fewer still, almost to the point of non-existence, were the modifications later made by Jefferson. The problems presented to the United States by the Napoleonic Wars were primarily of the same nature as, and often identical with, those that accompanied the European conflict a decade earlier, and it was seldom necessary for Jefferson, while President, to do more than reenunciate and attempt to enforce the principles and solutions of 1793. It THOMAS JEFFERSON,

1

Speaking before the House of Commons during the debate on the repeal of the Foreign Enlistment Act of 1819, Canning said, " All I now call upon the House to do, is to adopt the same course which it has recommended to neutral powers upon former occasions. If I wished f o r a guide in a system of neutrality I should take that laid down by America in the days of the presidency of Washington and the secretaryship of Jefferson, in 1793 . . . Here, Sir, I contend is the principle of neutrality upon which we ought to act." The Speeches of . . . George Canning (6 volumes, London, 1828), vol. v, 50-52; T . C. Hansard, The Parliamentary Debates, N. S., V I I I , 1056; Journal of House of Commons, vol. 78, p. 212 (April 16, 1823).

13

14

AMERICAN

NEUTRALITY

IN 179S

is necessary, then, to look to the earlier year if we wish to learn the origin of these principles. However much the members of Washington's cabinet may have disagreed on most questions, they were all thoroughly convinced that the United States must avoid war as long as possible, whatever be the cost. They differed widely in their views on the best way of doing this; so widely, in fact, that each member at times thought his opponents insincere in their protestations of neutrality. If even an impartial observer chanced to read only certain portions of the works of either man he might get the impression that Jefferson would have welcomed war with England 1 or that Hamilton was ready for a rupture with France. 2 A more complete study shows that this was not true concerning either, at any time during the year 1793. A correct view of the attitude of each of these men is essential to an understanding of the origin of the neutrality policy of the United States. Such a view can best be obtained from their own statements extending over a period of many years. In a conflict between France and England neither Jefferson nor Hamilton could ever be neutral in the sense of being indifferent. Washington was the only member of the Executive Department in 1793 who approached that point of true neutrality. If he had a preference there is no record of his having expressed it. With Jefferson and Hamilton it was a question of honestly trying to maintain an actual neutrality in spite of those predilections that were often expressed by each, within the inner circle of his friends. Jefferson was convinced that the fate of the American experiment was bound up with the success of the French 1 See for example F., IV. of J., V I , 153-157, Jefferson to W . Short, January 3, 1793.

* See for example L., W. of H., IV, 191-192, Cabinet opinion—Little Sarah.

THE

PROCLAMATION

OF

NEUTRALITY

15

Revolution, 1

that even " The liberty of the whole earth was depending on the issue of the contest, and was ever such a prize won with so little innocent blood." 2 But Jefferson was as firmly convinced that the United States should take no part in any European War. 8 He had a personal dislike for war; " I confess to you, I have seen enough of one war never to wish to see another." * He disapproved of war as a mode of repairing injuries because it " is as much a punishment to the punisher as to the sufferer." 8 He felt that the United States as a neutral nation could give France more support through selling grain to her.9 Finally he clearly saw that neutral powers reaped the benefits of wars.7 " It is expected the flames of war will be kindled between our two neighbors. Since it is so decreed by fate, we have only to pray their soldiers may eat a great deal." 8 " I hope the 1 F., W. of J., V , 358, Jefferson to Edmund Pendleton, July 24, 1791; ibid., V , 375, T o Edward Rutledge, August 29, 1791; ibid., V I , 157-8, T o Thomas Mann Randolph, January 7, 1793; ibid., V I , 249, T o Brissot de Warville, May 8, 1793; ibid., V I I , 152, T o Edward Rutledge, June 24, 1797. Washington's views on this point are given in a note in the Thomas Jefferson Papers. A f t e r quoting an extreme statement of the danger to America in case France loses, Washington adds, " The above comes from a warm friend to America [in England], his fears may be too strong but . . . it may be proper not to suffer them to pass by unnoticed . . . The President wishes it to be shown to the Gentlemen [The cabinet] if they are still together." T . J. P., Nos. 14802, 14803, May 14, 1793.

* F., W. of /., V I , 154-5, Jefferson to W . Short, Jan. 3, 1793. * Ibid., V I , 264-66, Jefferson to Harry Innes, May 23, 1793. 4

Ibid., V I , 505, Jefferson to John Adams, April 25, 1794.

1

F., W. of J., V I , 508, Jefferson to Tench Coxe, May 1, 1794.

*Ibid., I V , 469, Jefferson to William Carmichael, Dec. 15, 1787; ibid., V I , 217, Jefferson to U. S. minister to France, April 20, 1793. Cf. G. Morris to T . Pinckney, Mar. 2, 1793, A. S. P. F. R., I, 396. ' W., W. of J., V I I , 625, Jefferson to Washington, May 3, 1793, official opinion on passports. 8

F., W. of J., V , 241, Jefferson to Alexander Donald, Aug. 29, 1790.

i6

AMERICAN

NEUTRALITY

IN 179$

new world will fatten in the follies of the old." 1 Jefferson's desire to maintain the neutrality of the United States during his presidency is well known 2 and in his last years he retained these opinions of the value of neutrality. Writing to John Adams at the time of the war between Russia and Turkey he said: * I hope we shall prove how much happier for man the Quaker policy is, and that the life of the feeder is better than that of the fighter; and it is some consolation that the desolation by these maniacs of one part of the earth is the means of improving it in other parts. Let the latter be our office, and let us milk the cow while the Russian holds her by the horns and the Turk by the tail. It is evident that Jefferson was partial to France, but that at the same time he desired peace.4 Hamilton considered the first " a womanish attachment to France and a womanish resentment against Great Britain," 8 and McMaster has more recently said that " Jefferson . . . was at all times more French than American." 6 This is an unjust statement, for Jefferson's preference for France was relative to England, and not to his native land. There is no doubt that the primary motivation of Jefferson's conduct was always a consideration for the welfare of the United States. 7 Again, 1

Ibid., V, 197, Jefferson to Edward Rutledge, July 4, 1790.

2

Ibid., VIII, 266-273, Third Annual Message to Congress, Oct. 17, 1803.

' Ibid., X, 217, June 1, 1822. 4

Cf. F„ W. of ]., VI, 192-3, Jefferson to Madison, March, 1793*

1

L., W. of H., VIII, 259, Hamilton to Edward Carrington, May 26,1792.

• McMaster, History of People of the U. S., II, 103; cf., Von Hoist, Const. History of U. S., I, 116, " Jefferson . . . justified the charge that he played a marked part and valued the friendship of France more than the honor of his own Country." T

The following quotation especially illustrates Jefferson's bias for France, as against Great Britain but also the predominance of his thoughts on the welfare of America. . . It will never be easy to convince me

THE PROCLAMATION

OF

NEUTRALITY

the opposite view might result from the improper interpretation of isolated expressions, but a more careful and extensive study of his writings shows that he was constantly seeking advantages for America. His policy required a continued maintenance of peace. He was confident that the European situation would finally place each nation in such a position that, by threats, the United States could force concessions from all of them.1 The operation of such a policy was much hampered by the slow communications of the day. Many opportunities passed before advantage could be taken of them,2 but time was to show that America might gain more from the vicissitudes of the European struggle than in any other way. Few nations have had greater incentive for pursuing a policy of neutrality than had the United States during the first years of its existence. The nation was weak in comparison with the powers of Europe, but its vast and rich territory and astounding rate of growth promised it a position of eminence and respect—if even so little as twenty years of freedom from European interference could be assured. War in 1793 would have been disastrous and not only Jefferson 8 but all wise statesmen of the period realized that by a firm yet just conduct in 1793, we might not have obtained such a respect for our neutral rights from Great Britain, as that her violations of them & use of our means to wage her wars, would not have furnished any pretence to the other party to do the same. W a r with both would have been avoided, commerce & navigation protected & enlarged. W e shall now either be forced into a war, or have our commerce and navigation at least totally annihilated . . ." F., W. of J., V I I , 1 1 3 ( 1 7 9 7 ) . 1 C f . W . , W. of J., I l l , 173, Jefferson to William Carmichael, August 2, 1790. F., W. of J., V , 57, Jefferson to Washington, December 4, 1788, after expressing an opinion that the U . S. should take no part in European wars, Jefferson added, " I see no impossibility in availing ourselves of the wars of others to open the other ports of America to our commerce as the price of our neutrality."

' The Nootka Sound episode for example. 3 W . , W. of J., V , 58, Jefferson to Tench Coxe, March 27, 1807. dozen years."

" A

i8

AMERICAN

NEUTRALITY

IN 1793

this. 1 Hamilton in the leading rank of these likewise wished to preserve the neutrality of his country although he was as partial to England as Jefferson was to France. The neutrality of the United States was first threatened in the year 1 7 9 0 when England and Spain were at the point of going to war over the Nootka Sound incident. 2 In this eventuality lay the danger that Great Britain would try to march troops f r o m Canada across the territory of the United States. This danger was so real that Washington requested the official opinions of his advisors as to " What then should be the answer of the Executive of the United States to L o r d Dorchester, in case he should apply f o r permission to march troops through the territory of the said States to the Mississippi." 8 Hamilton replied with an exhaustive study of the question, in which he reached no definite conclusion although he voiced a strong desire to avoid w a r : * Though it may be uncertain how long we shall be permitted to preserve our neutrality, that is not a sufficient reason for departing from it voluntarily. It is possible we may be permitted to persist in it throughout. And if we must renounce it, it is better it should be from necessity than choice; at least till we see a prospect of renouncing it with safety and profit. If the government is forced into a war, the cheerful support of the people may be counted upon. If it brings it upon itself, it will have to struggle with their displeasure and reluctance . . . the most general opinion is, that it is our true policy to steer as clear as possible of all foreign connections, other than commercial. Although uncertain of the propriety of granting the per1 L., W. of H., IV, 43, 46, Hamilton to Washington, official opinion, Nootka Sound Case, September 15, 1790; F., W. of W., XII, 283, Washingon to Earl of Buchan, 22 April, 1793. 3 Sec W. C. Ford, The U. S. and Spain in 1790 (Brooklyn, 1890). 8 F., W. of W., XI, 497, August 27, 1790. 4 L., W. of H., IV, 20-49, September 15, I79®.

THE

PROCLAMATION

OF

NEUTRALITY

mission if Lord Dorchester requested it, Hamilton concluded that the passage should be permitted if attempted without asking leave and, if completed without violence, the United States should be content with remonstrating against it. 1 Hamilton continued to favor this policy of neutrality down to and through the year 1793, 2 that is, during the period when the most important foundations of the American policy were being laid. Even in his conversations with Hammond, the British Minister, Hamilton displayed sufficient justice in his attitude only to favor " as strict a neutrality as is compatible with its [the United States'] present engagements." 8 Hammond's reports to Grenville covering his relations with Hamilton show that the latter permitted his predilections toward England to lead him into indiscretions4 as great as, or greater than, any of the injudicious steps that Jefferson was led to take by his partiality for France. But there is clear evidence in these same papers that it was Hamilton's intention to use for the benefit of the United States whatever influence with England he hoped thus to gain.5 This partiality of Hamilton for England was 1

Jefferson reaches the same conclusion concerning the desirability of neutrality in his opinion (F., W. of J., V , 238-9, August 28, 1790) but is considerably more frightened at the prospect of having England as a western neighbor. The opinions of the other gentlemen may be found in W. C. Ford, The U. S. and Spain in 1790. They all favor neutrality as long as possible. 1

L., W. of H., V I I I , 259, Hamilton to Edward Carrington, May 26, 1792; ibid., V I I I , 298, Hamilton to John Jay, April 9, 1793. ' B. S. P., Hammond to Grenville, No. 6, March 7, 1793. * B. S. P., Hammond to Grenville, No. n , April 2, 1793; ibid., No. 14, May 17, 1793; ibid., No. 16, July 7, 1793. For an example of an especially unfortunate conversation of Hamilton with Hammond, which destroys the force of a carefully planned complaint of the American Government, cf. Hammond to Grenville, No. 14, May 17, 1793, and Grenville to Hammond, January 11, 1794 (Food as Contraband). * B. S. P., Hammond to Grenville, No. 8, March 7, 1793.

Views of

20

AMERICAN

NEUTRALITY

IN 1793

as important as that of Jefferson f o r France. A psychological analysis would be necessary before an ample explanation could be given of these two attitudes. It is certain, however, that not the least important reason f o r Hamilton's attachment to England had its origin in the fact that his financial structure was founded upon revenues to be derived f r o m British-American commerce. 1 His most precious masterpiece would be endangered by a war with England, in fact by any war, and so Hamilton, too, had a strong and honest desire f o r peace even with France. Washington's sympathetic appreciation of F r a n c e 2 was untainted by the extreme hatred of Great Britain which was characteristic of Jefferson. He and his two most prominent secretaries held similar opinions on the desirability of neutrality in 1 7 9 3 , and his views are adequately expressed in a letter to the E a r l of B u c h a n : a " To be little heard of in the great world of politics." These words I can assure your Lordship, are expressive of my sentiments on this head, and I believe it is the sincere wish of United America to have nothing to do with the political intrigues, or the squabbles of European nations; but on the contrary, to exchange commodities and live in peace and amity with all the inhabitants of the earth, and this I am persuaded they will do, if rightly it can be done. To administer justice to, and receive it from, Hamilton's conduct have been expressed which are as extreme as the accusations above that Jefferson was more French than American. Jefferson records an observation that came to him that the English " Considered Colo. Hamilton & not Mr. Hammond as their effective minister here " and speaks of asylum awaiting him in E n g l a n d F., IV. of J., I, 232, Anas, June 7, 1793. It is however, unjust to question the loyalty to America of either man. 1 C. of G., p. 233, Genet to Minister of Foreign A f f a i r s , J u l y 3 1 , 1793; L., W. of H., I V , 273, Americanus, No. 2, by Hamilton. 2

F., W. of }., V I , 153-7, Jefferson to William Short, January 3, 1793.

' F „ IV. of W„ X I I , 282-4, April 22, 1793.

THE

PROCLAMATION

OF

NEUTRALITY

every power with whom they are connected will, I hope, be always found the most prominent feature in the administration of this country; and I flatter myself that nothing short of imperious necessity can occasion a breach with any of them. Under such a system, if we are allowed to pursue it, the agriculture and mechanical arts, the wealth and population of these States will increase with that degree of rapidity as to baffle all calculation, and must surpass any idea your Lordship can hitherto have entertained on the occasion.1 In that year, therefore, circumstances were favorable to the development of an admirable neutrality policy by the United States. Hamilton was certain to present ably and completely the British side of every question that might arise, Jefferson would see that no arguments favorable to France were overlooked, and the final decision on every important point rested with Washington. T h e desire for peace on the part of each member of the cabinet was great enough to insure the unanimous acceptance and faithful administration of those decisions which would finally be determined upon. President Washington was at Mount V e r n o n when the first news o f the declaration by France of war against E n g land reached America. 2 This visit to Mount Vernon had been planned by him several weeks ahead 3 and it is evident that at that time public affairs were not expected immediately to become so serious as to require his constant presence at Philadelphia. Nevertheless the news of the spreading of the European W a r was not totally unexpected. T h e probability of the eventual implication of England in the 1 Cf. F., W. of W., X I I , 275-78, Washington to David Humphreys, 23 March, 1793. 2

T . J. P., No. 15486, Washington to Jefferson, April 5, 1793.

' F., W. of W., X I I , 268, Washington to Burwell Bassett, 4 March, 1793.

22

AMERICAN

NEUTRALITY

IN 1793

war had been seen possibly several months earlier.1 On February 20, Colonel W. S. Smith had brought to Jefferson information of a projected French attack against Spanish America, and this certainly would have involved Spain in the war.2 This information was received with enough credence that the cabinet thought it necessary to alter the instructions to the commissioners who had been appointed to negotiate a treaty with Spain. 3 Early in March, Hammond, the British Minister to the United States, considered the " existing critical state of Europe " serious enough to render " not altogether useless " an essay of more than five thousand words on the internal and external relations of America. 4 He concluded this account by stating that he thought it improbable that the United States would enter any European war against Great Britain, but added, " I may however be mistaken." ® Hammond also wrote Grenville, " I shall attend with the most unremitting diligence to the proceedings of the newly appointed French minister." 8 And in the meantime the min1

The ciphered paragraph in the letter to Pinckney (U. S. Minister to G. B.) of January 1, 1793, directing him " t o be very watchful over the embarkation of troops to Canada, and to give us immediate and constant information thereof " may have been prompted by this possibility. See T . J. P., No. 14526-27, April 12, 1793. * See Anas, February 20, 1793, F., IV. of /., I, 217. * F., W. of /., VI, 206, Jefferson to Carmichael and Short, March 23, 1793. ' B. S. P., Hammond to Grenville, Nos. 5 and 6, March 7, 1793. * To Hammond, Jefferson was the disturbing quantity. " Mr. Jefferson is so blinded by his attachment to France, and his hatred of Great Britain as to leave no doubt upon my mind, that he would without hesitation commit the immediate interests of his country in any measure which might equally gratify his predilections and his resentments." Ibid., No. 6. * Hammond had been informed of the probable dispatch of such a minister in the letter from Grenville dated January 4, 1793, and first acknowledged by Hammond on March 7.

THE

PROCLAMATION

OF NEUTRALITY

23

ister occupied himself with learning and reporting all that he could about an attempt of Colonel Smith to buy forty thousand stands of arms to be sent to France, so Hammond believed, 1 or possibly to Ireland. Hammond's report was written before he had received any news of the declaration of war. It is evident that to him the news was not unexpected when it did come. T o the American observer the probability of a general European war became constantly more evident as the month of March passed. First came word of the beginning of the trial of the French k i n g ; 2 then the account of his fate 8 was soon followed by evidences of the approaching blockade of France. 4 B y the 16th of the month Jefferson was writing to Pinckney, " The transactions of Europe are now so interesting that I shall be obliged to you, every week, to . . . [send to me] the Leyden gazettes [ b y ] such ship's bags as shall be first coming to any port north of North Carolina." 5 Soon after this letter Jefferson informed various consuls and ministers of the United States stationed from China to E u r o p e : 8 Present appearances in Europe rendering a general war there probable, I am to desire your particular attention to all the indi1

B. S. P., Hammond to Grenville, No. 9, March 7, 1793.

2

F., W. of J., V I , 201, Jefferson to George Gilmer, March 15, 1793.

' W . , W. of /., I l l , 527, Jefferson to , March 18, 1793; Gibbs, Memoirs, Oliver Wolcott to Oliver Wolcott, Sen., March 20, 1793. 4

F., W. of /., V I , 192-3, Jefferson to Madison, March, 1793.

' W., W. of J., I l l , 525-6. In the letter of April 12, 1793, Jefferson supplements this by ". . . every other port from New Hampshire to Virginia inclusive . . . in the present interesting times, it is most desirable to receive this gazette as quickly as possible to relieve us from the torment of the English newspapers whose lies suffice to [?] their truths (because doubted) can give no satisfaction." T . J. P., Nos. 14526-7, Jefferson to Pinckney. • Ibid., I l l , 530-1, Jefferson to Samuel Shaw, Consul at Canton, in China, March 21, 1793.

24

AMERICAN

NEUTRALITY

IN 1793

cations of it, and on the first imminent symptoms of rupture among the maritime powers, to put our vessels on their guard. In the same event the patronage of our Consuls will be particularly requisite to secure to our vessels the right of neutrality, and protect them against all invasions of it. You will be pleased also in the same case, to give no Countenance to the usurpation of our flag by foreign vessels, but rather indeed, to aid in detecting it, as without bringing to us any advantage, the usurpation will tend to commit us with the belligerent powers and to subject those vessels which are truly ours to harrassing scrutinies in order to distinguish them from counterfeits . . . and to take the business of transportation out of our hands.1 T h e American government was prepared then f o r war between France and England before news of its declaration reached the United States, but it expected Great Britain, not France, to take the initiative. 2 T h e National Convention at Paris declared war against Great Britain and Holland on the first day of February 1793. 8 This information was first known in America some time between March 27 and April 7. The rumor was brought to Philadelphia on the former date by the captain of a ship from Lisbon and appeared in The National Gazette on March 30.4 Jefferson, however, in writing from the capital to Madison on March 31 reported, " Nothing remarkable this week " ; 5 and in his letter the next day to Washington mentions the report but " suspects " ' Cf. F., W. of ]., VI, 205, Jefferson to U. S. Minister to Portugal, David Humphreys, March 22, 1793; W., W. of J., I l l , 535, Jefferson to Dumas, March 24, 1793. * F., W. of J., VI, 201, Jefferson to George Gilmer, March 15, 1793; ibid., VI, 192-3, Jefferson to Madison, March, 1793. ' T. J. P., No. 14969, Randolph to Jefferson, May 26, 1793, in an official opinion by the Attorney General. * " On Wednesday last arrived here the ship Dispatch Capt. Hodgdon from Libson . . ." ' Madison Papers, L. C.

THE PROCLAMATION

OF

NEUTRALITY

that it is the result of a pilot's mistake. 1 Hamilton decided on April 5 that " there seems to be no room f o r doubt of the existence of war " and so wrote to the President, 2 but there is no evidence that Jefferson accepted the report before the 7th, on which day he confirmed it to Madison 3 and to the President. 4 Washington had written to J e f f e r son two days earlier, " I hope the account . . . had no better foundation than suggested in your letter [of April 1 s t ] f o r I should be sorry to receive a confirmation of it," but he approved of certain precautions that the secretary had taken.® Washington had expected to remain about a month at Mount Vernon.® H a d he spent an additional month there the history of the United States would have been much altered and there would have been no occasion f o r such a study as this. The President had but to remain passive, he had but to linger another month and then half the available vessels in the United States would have been afloat in quest of British prizes. 7 But Washington did not remain at Mount Vernon. He cut short his original visit 8 and hast1

F., W. of J., V I , 2 1 2 - 1 3 , Jefferson to Madison, April 7, 1793. " W e may now I believe give full credit to the accounts that war is declared between France & England." 2

T. J . P., No. 14447, Jefferson to Washington, April 1, 1793.

* L., W. of H., V I I I , 296, Hamilton to Washington, April 5, 1 7 9 3 ; This is after the arrival of another ship, the John Buckley from Lisbon, with letters; ibid., 297, Hamilton to Washington, April 8, gives final confirmation. 4 Ibid., V I , 2 1 2 , Jefferson to the President, April 7, 1793. The news had reached England on February 8, and a letter was immediately written to Hammond ( B . S. P., to Hammond. February 8, 1793) which it appears he did not receive until after April 2, see B. S . P., the several dispatches from Hammond to Grenville, April 2, 1793. 4

T . J . P., No. 15486, Washington to Jefferson, April 5, 1793.

« F., W. of W., X I I , 268-9, Washington to Burwell Bassett, 4 March, I7937 9

See the reception and exploits of Genet as described below. F., W. of IV., X I I , 286-9, Washington to Henry Lee, 6 May, 1793.

26

AMERICAN

NEUTRALITY

IN

1793

ened back to Philadelphia by the most direct route 1 in order to confer with his cabinet on the best means of preserving the neutrality of his country. The day following that of the President's arrival in Philadelphia, 2 he submitted a list of thirteen questions to the Secretaries and to the Attorney General to be considered by them " with a view to forming a general plan of conduct for the executive." 3 Jefferson thought the questions had 1

Ibid., XII, 278-9, Washington to Jefferson, 12 April, 1793.

He reached Philadelphia on Wednesday, April 17. X I I , 279 n. s

F., W.

of

IV.,

* The following circular was sent by Washington to the Secretaries and Attorney General on 18 April, 1793 (F., W. of W., XII, 279). " T h e posture of affairs in Europe, particularily between France and Great Britain, places the United States in a delicate situation, and requires much consideraion, of the measures which will be proper for them to observe in the war between those powers. With a view to forming a general plan of conduct for the executive, I have stated and enclosed sundry questions, to be considered preparatory to a meeting at my house to-morrow, where I shall expect to see you at 9 o'clock, and to receive the result of your reflections thereon. I am, &c." The following were the questions which were enclosed by Washington in the above letters. The text of the questions here used is taken from F., IV. of W., X I I , 280-81. I. Shall a proclamation issue for the purpose of preventing interferences of the citizens of the United States in the war between France and Great Britain, &c.? Shall it contain a declaration of neutrality or not? What shall it contain? II. Shall a minister from the Republic of France be received? III. If received, shall it be absolutely or with qualifications; and if with qualifications, of what kind? IV. Are the United State obliged by good faith to consider the treaties heretofore made with France as applying to the present situation of the parties? May they either renounce them, or hold them suspended till the government of France shall be established? V . If they have the right, is it expedient to do either, and which. V I . If they have an option, would it be a breach of neutrality to consider the treaties still in operation? V I I . If the treaties are to be considered as now in operation, is the

THE

PROCLAMATION

OF

NEUTRALITY

been drafted by Hamilton and about three weeks later he confided to the Anas:1 The President sends a set of Questions to be considered & calls a meeting. Though those sent me were in his own hand writing, yet it was palpable from the style, their ingenious tissue & suite that they were not the President's, that they were raised upon a prepared chain of argument, in short that the language was Hamilton's and the doubts his alone. . . . E. R. [Edmund Randolph] the next day told me, that the day before the date of these questions, Hamilton went with him thro' the whole chain of reasoning of which these questions are the skeleton, & that he recognized them the moment he saw them. The authorship of these important questions has been a much mooted question from that day to this. The circumstantial quality and biased nature of Jefferson's evidence has led many authorities to doubt the authorship of Hamilton. Perhaps the most respectable of the more recent examples of this tendency is offered by the editor of the standard

VIII. IX. X. XI.

XII. XIII.

1

guarantee in the treaty of alliance applicable to a defensive war only, or to war either offensive or defensive. Does the war in which France is engaged appear to be offensive or defensive on her part? Or of a mixed and equivocal character? If of a mixed and equivocal character does the guarantee in any event apply to such a war? What is the effect of a guarantee such as that to be found in the treaty of alliance between the United States and France? Does any article in either of the treaties prevent ships of war, other than privateers, of the powers opposed to France from coming into the ports of the United States to act as convoys to their own merchantmen? Or does it lay any other restraint upon them more than would apply to the ships of war of France? Should the future regent of France send a minister to the United States, ought he to be received? Is it necessary or advisable to call together the two Houses of Congress, with a view to the present posture of European affairs. If it is, what should be the particular object of such a call?

F., W. of /., I, 226, Anas, April 18, 1793, " Written May the 6th."

28

AMERICAN

NEUTRALITY

IN

1793

edition of Hamilton's works. Lodge prints these questions over the signature of Washington without a word as to their authorship. 1 Perhaps additional weight may be added to this judgment by the fact that Washington also signed and addressed to Hamilton a set of these questions, the same as to the other members of the cabinet.2 The author of this study, however, is convinced that Hamilton was undoubtedly responsible for the questions and that he probably drew them up in a form very similar to, if not identical with, that in which they were stated by Washington. In writing to Jefferson on April 1 2 the President mentioned his desire for a strict neutrality, and went on to say, " Such other measures as may be necessary for us to pursue against events . . . you will also think o f , and lay before me at my arrival in Philadelphia." 3 He had also written a similar letter to Hamilton at the same time.* A f t e r such a request it would be no more than natural that the more formal Secretary of the Treasury should have prepared a paper to lay before the President while Jefferson should have thought the letter called for no more on his part than careful preparation for the next cabinet meeting.® More important as evidence, however, is the correspondence 1 L., W. of H., I V , 72-73. This is the usual course of Lodge when he is uncertain as to a claim that has been made by John C. Hamilton in his edition of his father's works. If Lodge is certain that Hamilton is mistaken in attributing a paper to his father he usually calls attention to the fact. J

Hamilton Papers ( L . C.) 1st series, vol. 19, No. 2561. This is the original paper from Washington to Hamilton, April 18, 1793. ' F., W. of W., X I I , 278-9, Washington to Jefferson, April 12, 1793. ' H., W. of H., I V , 357, Washington to Hamilton, April 12, 1793. 4 It seems that this is the logical explanation of the absence of a written paper by Jefferson, rather than that indicated by John C. Hamilton (Hamilton, Life of Alexander Hamilton, V . 228-9) who feels that it was a neglect of duty on the part of the Secretary of State " whose province it was " to advise on foreign affairs.

THE

PROCLAMATION

OF NEUTRALITY

29

between Hamilton and John Jay, the Chief Justice, just before the President's return to Philadelphia. This, of course, was not available to Jefferson when he wrote the above passage in the Anas, but it materially supplements that account. These letters prove that Hamilton had practically an outline of most of these questions in mind a week before the return of the President; that at that time " the doubts were his " and even " the language," in several cases in which they were stated by Washington. The Secretary of Treasury commenced a letter of April 9 to Jay as follows: " When we last conversed together on the subject, we were both of opinion that the minister expected from France should be received. Subsequent circumstances have perhaps induced an additional embarrassment on this point, and render it advisable to reconsider the opinion generally, and to raise the further question. . . . " 1 In this letter he asks Jay's opinion on the questions numbered, in Washington's list, 2, 3, 4, 5, 6, and 12. A second letter of the same day contains nothing but the first question and a request to Jay to draft such a proclamation as he might deem proper.2 It is evident that the questions were in the process of formation at this time. The opinion which Jefferson had already expressed to his friends 3 would account for Hamilton's addition of the thirteenth question as soon as the two men had had even a brief conversation on the recent news. The questions of the guarantee would naturally arise from a more mature contemplation of the fourth question. There is almost conclusive evidence then that Hamilton was re1

L., IV. of H., V I I I , 297-8, Hamilton to John Jay, April 9, 1793.

Ibid., V I I I , 288, Hamilton to John Jay, April 9, 1793; for Jay's answer see Johnston, Correspondence and Public Papers of John Jay, HI, 473-72

3

F., W. of J., V I , 192-3, Jefferson to Madison, March, 1793.

30

AMERICAN

NEUTRALITY

IN

1793

sponsible for most, probably for twelve, of the thirteen questions. The question numbered eleven is of doubtful authorship. It may have been added by Washington, but considering the intensive study that Hamilton was making of the treaties there is a strong possibility that Hamilton may have been responsible for it. 1 It would not have been unusual for the President to have accepted and copied Hamilton's paper into his letters calling a meeting of the cabinet, notwithstanding the implication of an attempt by Washington to deceive the rest of his Secretaries.2 There is clear evidence that he thought it advisable, on other occasions, so to use the reports of Secretaries.8 Marshall in speaking of these questions in his Life of Washington says, " points certainly occurred, and were submitted to the consideration of the cabinet, on which the chief magistrate himself felt no doubts." * The reference is especially to the second question, " Shall a minister from the Republic of France be received?" It is evident that Washington had already decided to receive a minister from the Republic and had instructed the Secretary of State so to inform Gouverneur Morris, the American Minister to 1

See B. S. P., Hammond to Grenville, No. 6, March 7, 1793.

Bowers, Jefferson and Hamilton, in too strong a sense by Bowers. 2

p. 215.

" D e c e i v e " is probably used

' Cf. Jefferson to Washington, June 17, 1793, Second opinion on the New Loan (F., IV. of J., V I , 303-6) and Washington to Hamilton, 20 June, 1793 (F., IV. of W., X I I , 298-300). This is a very clear example of the practice. Deceit, however, was probably neither intended nor thought possible either in this case or in that of the questions. Washington must have realized that each Secretary understood the other well enough to recognize the source of the questions in each case. The practice may have been the result of a sense of delicacy in the matters. 'Marshall, Life of Washington, V , 403 (Ed. of 1807). This was of course written before the Anas were printed and Marshall may not even have heard of Jefferson's suspicion that Hamilton was the author of the questions.

THE

PROCLAMATION

OF

NEUTRALITY

France. 1 That would also preclude any question concerning the reception of a minister from a future regent unless the regent should derive his authority from the French nation. Marshall attributes this extension of the questions to the President's desire to take a " view of the whole ground." The same may now be said of Hamilton since he is considered the author. It is evident that a short time before he, too, had decided that the minister from the Republic should be received,2 and Marshall's reasoning as to the motive for these additional questions may also be applied to the case of Hamilton. This new authorship, however, arouses the suspicion that there may have been other reasons for the easily recognized extension of the questions. It is just first to hear Hamilton's own explanation. In the letter to Jay, quoted above, he attributes this extension to the inclusion of England in the war which had " perhaps induced an additional embarrassment on this point." 8 But it might be added that the additional embarrassment was scarcely great enough to justify a refusal to receive the minister, after the dispatch of such assurances as Morris had been instructed to extend to the French government. 4 The explanation that is not given by Hamilton, but which is very probable, is that he anticipated a struggle with Jefferson over some of the other questions and wished to be in a position to bargain a little, and to maintain an appearance of reasonableness by making some concessions himself.® If this was his purpose it was successful, for Jefferson, writing to Madison relative 1 F., W. of J., V I , 199-201, Jefferson to Morris, March 12, 1793; cf. Anas, March 30, 1793, F., W. of J., I, 224. 2B.

S. P., Hammond to Grenville, No. 11, 2 April, 1793.

* Hamilton to Jay, April 9, 1793. 4

L., W. of H., V I I I , 297-8.

Jefferson to Morris, March 12, 1793, op. cit.

1 Hamilton agreed with the unanimous opinion of the cabinet on April 19 that the minister should be received. H., IV. of H., I V , 361.

32

AMERICAN

NEUTRALITY

IN 1793

to the decision on the first question, said, " indeed, it was not expedient to oppose it altogether, lest it should prejudice what was the next question, the boldest and greatest that ever was hazarded." 1 Marshall enumerates the advantages of taking " a more full view of the subject" and says that the additional questions were " incapable of producing any mischievous effect while they were confined to those for whom alone they were intended," but that unfortunately the questions together with some of the answers to them " though submitted only to the cabinet, found their way to the leading members of the opposition, and were among the unacknowledged but operating pieces of testimony, on which was founded the accusation brought against the administration of cherishing dispositions unfriendly to the French Republic." 2 The insinuation is that Jefferson revealed state secrets. It is evidently true that Jefferson gave Madison some, probably all, of the questions and part of the answers,8 and that his refusal to give all the answers, as he very often did in similar cases,4 was perhaps founded more on partisan considera1 F., W. of J., V I , 315-16, June 23, 1793. The decision on the first question was also unanimous. H., W. of H., I V , 361.

1

Marshall, Life of Washington, V, 403-4.

3

F., W. of J., V I , 315-16, Jefferson to Madison, June 23, 1793.

4

Jefferson kept Madison well informed of what passed in the cabinet meetings, sent him copies of many important papers (i. e., F., IV. of J., V I , 367-70, August 1 1 , 1793), and at times when there was not time to make a copy sent him the originals with careful requests that they be returned as they belonged to the files in the office of the Secretary of State. If there was any delay in acknowledging these papers Jefferson was much worried " lest some infidelity should be practiced on the road " ( T . J . P., No. 15597, July 28). Some of the less important originals and many of the copies were kept and preserved by Madison (see Madison Papers, L . C . ; c f . W., W. of J., I l l , 579, June 9, 1793, with W., W. of J., I V , 8, June 29, 1793. These are merely a f e w examples of frequent references of this nature).

THE PROCLAMATION

OF

NEUTRALITY

tions than on any sense of delicacy.1 Yet the insinuation by Marshall is unjust because the questions were revealed not only by Jefferson to his friends, but also by Hamilton to his supporters 2 and the latter revealed just as secret information even to the British Minister.8 The first was that question of the thirteen that demanded most immediate attention. The Executive Officers at Philadelphia had not been informed on April 18 that citizens of the United States were actually engaging in hostilities against either belligerent,4 but they realized that immediate action was necessary if such hostilities were to be prevented. In those days of slow communication it would take nearly a month for word of any decision the federal government might make to reach the distant ports of the United States, while news of the war might have reached them almost as soon as it did Philadelphia.® There was in America a deep and extensive sympathy for France. 6 The clause in the Franco-American Treaty of Commerce relative to the arming of privateers in the ports of the United States might 1 F., W. of J., V I , 361-2, Jefferson to Madison, A u g u s t 3, 1793. " I think it is better you should not know them." Madison was then writing the Helvidius papers. T h i s is the only example the author has found of such a r e f u s a l by Jefferson to Madison. 2 See Johnson, Correspondence. ..of John Jay, I I I , 472-7, A p r i l - M a y , 1793- Especially the reference to Jay's visit to Philadelphia. 3 B . S. P., Hammond to Grenville, N o . 17, A u g u s t 10, 1793. Recall of Genet and full cabinet decision. It would appear that neither Secretary was conscious of any impropriety in this conduct, on his own part, but rather that Marshall overestimates the secrecy that was supposed to be exercised with respect to cabinet meetings. 4 But see W a s h i n g t o n to Jefferson, 12 April, 1793. X I I , 278-9. 5

T h e news did reach Charleston on the 8th of April.

' Cf.

H a z e n , Contemporary

PP. 164-173-

American

Opinion

F., W.

of

W.,

C. of G . 212.

of French

Revolution,

34

AMERICAN

NEUTRALITY

IN 1799

easily be misinterpreted, 1 and the prospective gains of privateering were very alluring. A s an applicant for French naturalization later expressed it to Genet, the opportunity of " uniting to exertion in the cause of freedom, the prospect of accumulating wealth " was a " most powerful spring of action." 2 It is not surprising, then, that Washington hastened back from Mount Vernon, and that the Cabinet first considered and reached a decision on the question relative to the proclamation. In August, 1 9 1 4 , another European war made it necessary for the Executive of the United States again to decide such a question. Conditions in Europe in August 1 9 1 4 were in many ways similar to those of 1793. The interference of the war with American commerce was probably to be much the same in principle in each instance in spite of the hundred and twenty-one years that had elapsed. And the sympathy of the Americans was divided between the two contestants in the recent as in the first war. Briefly, the situations of America in both cases were similar, but there was marked contrast between the position of President Wilson and that of President Washington. Wilson issued immediately, 3 without hesitation and without consulting his Cabinet,* a proclamation which set forth in detail the acts which were prohibited to citizens of the United States, citing the statutes which had prescribed these prohibitions. Wilson also included in this proclamation a detailed statement of the conduct which would be expected of the belligerents if any of them should come within the jurisdiction of the United States. In planning and issuing his proclamation Wilson 1

Article 22, Treaty of Commerce (1778).

1

John Stewart to Genet, Richmond, May 10, 1793, Genet Papers, L. C. * August 4, 1914. Baker and Dodd, The Public Papers of Woodrow Wilson, The New Democracy, I, 151-6. 4

Houston, Eight Years with Wilson's Cabinet, I, 118.

THE PROCLAMATION

OF

NEUTRALITY

needed only to follow numerous precedents and the laws of Congress. Washington, on the other hand, could be guided by no precedent. E v e r y question had to be weighed and debated by the President or his advisors and there was a difference o f opinion among the members of the Cabinet upon these as upon most questions. Jefferson did not f a v o r the issuance of a proclamation of neutrality, but it is certainly incorrect to say that he did not favor neutrality. I n addition to his general attitude on the subject, which has already been discussed, 1 he had given during the preceding month much evidence o f his desire that the United States avoid this European War, 2 and he immediately afterwards gave other indications of this attitude. 3 Jefferson favored a strictly neutral conduct such as would have given neither belligerent just cause for complaint, but he opposed any official announcement of such a policy, 4 because he thought it was unwise and because he thought that deciding on such a policy was beyond the powers of the Executive. Jefferson explained his contention that it would be against the best interests of the United States to issue such an 1

S e e supra, pp. 14-16. F . , IV. of / . , V I , 192-3.

!

J e f f e r s o n t o M a d i s o n , M a r c h , 1793, and s e e

his official c o r r e s p o n d e n c e f o r t h e m o n t h ;

ibid.,

VI,

192-211.

T h e senti-

m e n t s e x p r e s s e d in t h e l a t t e r w e r e l a r g e l y J e f f e r s o n ' s and t h e d r a f t i n g e n t i r e l y his.

' Ibid., V I ,

232, J e f f e r s o n t o M a d i s o n , A p r i l 28, 1 7 9 3 ;

ibid., V I ,

217,

J e f f e r s o n to G . M o r r i s , A p r i l 20, 1793. 4

I t s e e m s t h a t the m o s t t h a t J e f f e r s o n t h o u g h t p r o p e r in the line o f

an official d e c l a r a t i o n w a s f o r t h e P r e s i d e n t to " d e c l a r e the a c t u a l state o f t h i n g s to be that o f p e a c e , " s t r e s s b e i n g placed on the p r e s e n t tense w i t h no indication o f p o l i c y f o r e v e n t h e i m m e d i a t e f u t u r e . J., V I , 325-28, J e f f e r s o n t o M a d i s o n , J u n e 29, 1793. a

statement

in

1802, u n d e r

the name

of

Lucius

F . , IV.

of

Hamilton published Crassus

J e f f e r s o n " a t first o b j e c t e d t o t h e d e c l a r a t i o n o f n e u t r a l i t y . " H., V I I , 318, N o . X V I I I o f t h e L u c i u s C r a s s u s papers.

saying L . , W.

that of

AMERICAN

36

NEUTRALITY

IN

1793

official statement by saying that " it would be better to hold back the declaration of neutrality as a thing worth something to the powers at war, that they would bid for it, & we might reasonably ask a price, the broadest privileges of neutral nations." 1 This seemed to Jefferson a very appropriate time to act upon his general policy 2 which would enable America, at peace, to force concessions from each of the European nations, in turn, as they were caught in the exigencies of wars. It seemed an especially fortunate chance since England was the country that would now wish America to remain neutral and England was also the country which was most effectively (and Jefferson thought most unreasonably) denying to America her just rights. 3 Jefferson considered it very poor policy to " promise beforehand so fast that she [England] has not time to ask anything." * Jefferson's second objection to the issuance of a proclamation of neutrality was the result of his adherence to the theory of strict construction of the constitution. He felt that a declaration of neutrality was a declaration that there should be no war, 0 and that as the Executive could not decide the question of war on the affirmative side, neither ought it to do so on the negative side.® In support of this argument it was said: 7 1

F., W. of J., VI, 315-6, Jefferson to James Madison, June 23, 1793; ibid., I, 266, Anas, November 18, 1793. 2

See supra, p. 17.

* See especially Jefferson's correspondence with Hammond over the non-execution of the treaty of peace 1783. A. S. P. F. R., I, 188-243. * F., IV. of J., VI, 238-40, Jefferson to Monroe, May 5, 1793; c f . ibid., 325-28, Jefferson to Madison, June 29, 1793, for Jefferson's later opinion of what we had lost by not following this advice. 5 Ibid., VI, 315-16, Jefferson to Madison, June 23, 1793; c f . T. J. P. (L. C ) . No. 14559, "notes."

* W., W. of J., I l l , 519, Jefferson to Madison, March, 1793. ' Hunt, W. of Madison,

VI, 182-3, Helvidius, No. V.

THE PROCLAMATION

OF

NEUTRALITY

In exercising the constitutional power of deciding a question of war, the legislature ought to be as free to decide, according to its own sense of the public good, on one side as on the other side, . . . [The legislature ought not to be, by a proclamation] thrown under the dilemma of either sacrificing its judgment to that of the executive; or, by opposing the executive judgment, of producing a relation between the two departments, extremely delicate among ourselves, and of the worst influence on the national character and interests abroad. Jefferson was supported in this view by Madison, M o n r o e and many other Republican leaders. 1

T h e fact that most,

if not all, o f the critics o f such a proclamation were members of the opposition party has led to the accusation that the desire to confine the matter to Congress w a s prompted by partisan motives. 2

T h i s should not cause us to lose sight

of the t w o g r o u n d s of objection outlined above, as stated by Jefferson, and which were doubtless sincere, but it must also be remembered that such a proclamation did supply g o o d political material f o r a party that w a s composed largely of French sympathizers; and it is also important to remember, in connection w i t h the question of the competency of the E x e c u t i v e in the matter, that the Republican party expected to control the next Congress, which had already been elected. 8 T h i s third motive doubtless did reinforce Jefferson's opposition to a proclamation of neutrality, and w i t h some o f his subordinates it m a y have been the most important of the motives. 1

S. M . Hamiton, W. of Monroe,

2", 1793- Hunt, IV. of Madison, 8, June 10, 1793.

I, 261-267, M o n r o e to Jefferson, June

V I , 127-129, Madison to Jefferson, M a y

* Bassett, The Federalist System, p. 8 7 ; cf. W a s h i n g t o n to R i c h a r d H e n r y Lee, 24 October, 1793, F., IV. of IV., X I I , 345-6. ' T h e Republicans did have a m a j o r i t y of the House and " s o nearly balanced w e r e parties in the Senate that it w a s frequently the fate of . . . [the Vice-President] to determine points." Marshall, Life of Washington, V , 547.

AMERICAN

3«

NEUTRALITY

IN 1793

Hamilton, in contrast with Jefferson, was strongly in f a v o r of the issuance of a proclamation. H e did not go so f a r as to say publicly that the Executive could bind Congress by such an act, but he did feel that the President had the power, in the absence of Congress, " to proclaim the neutrality of the nation," at least until the next meeting of Congress. 1 In answer to Jefferson's argument that even this was an usurpation of power by the Executive, Hamilton replied on April 1 9 with almost exactly the same argument that he later amplified in the Pacificus papers. 2 H e insisted that the issuance of the proclamation was merely an executive act; that the executive power of the United States was completely lodged in the President (with certain exceptions, one of which he designated as being the right of the Legislature to declare w a r ) ; and that therefore the President had authority to issue such a proclamation. T h e argument continues : 3 It may be said, that this inference would be just, if the power of declaring war had not been vested in the Legislature; but that this power naturally includes the right of judging whether the nation is or is not under obligations to make war. The answer is that, however true this position may be, it will not follow that the Executive is in any case excluded from a similar right of 1

L . , W. of H„ I V , 142, 146. Pacificus N o . 1 . J e f f e r s o n understood Hamilton to say in a cabinet meeting " T h a t he understood it [the proclamation] as meant to g i v e them [ f o r e i g n nations] . . . assurance & satisfaction " " as a declaration of neutrality f u t u r e as well as present." Anas, N o v e m b e r 18, 1 7 9 3 , p. 266. A l t h o u g h this is not reliable as a source, it seems impossible to disprove such a statement by any of the numerous writings of Hamilton's on the subject. * J e f f e r s o n s a y s that the quotation immediately below " is precisely the answer he [ H a m i l t o n ] g a v e at the time to my objection that the E x e c u t i v e had no authority to issue a declaration of neutrality." F . , W. of / . , V I , 325-8, J e f f e r s o n to Madison, J u n e 29, 1793. • L., IV. of H.,

I V , 1 4 2 - 1 4 3 , Pacificus N o . 1 .

THE PROCLAMATION

OF

NEUTRALITY

judgment, in the execution of its own functions. I f , on the one hand, the Legislature have a right to declare war, it is on the other, the duty of the Executive to preserve peace till the declaration is made; and in fulfilling this duty it must necessarily possess a right of judging what is the nature of the obligations which the treaties of the Country impose on the government ; and when it has concluded that there is nothing in them inconsistent with neutrality, it becomes both its province and its duty to enforce the laws incident to that state of the nation. T h e Executive is charged with the execution of all laws, the laws of nations, as well as the municipal law, by which the former are recognized and adopted. It is consequently bound, by executing faithfully the laws of neutrality, when the country is in a neutral position, to avoid giving cause of war to foreign Powers. Such were the arguments by which H a m i l t o n proved the power of the President to issue a proclamation o f neutrality. 1

N e x t , it w a s necessary f o r him to answer Jefferson's

argument that such a declaration was unwise, even if permissible.

H a m i l t o n attempted this by saying, 2 " W e r e the

U n i t e d States now, what if . . . [they remain at peace] they may expect to be in

fifteen

or twenty years, there

would have been more room f o r an insinuation . . . that they ought to have secured to themselves some advantage as the consideration of their neutrality, . . . an idea, however, the justice and magnanimity mended."

of

which cannot be

com-

But in consideration of their present resources

such pretensions would be " at once excessive and unprincipled " and the chance of gain would be outweighed b y the chance o f being implicated in the w a r .

Hamilton's con-

sciousness of the w i s d o m of neutrality as a general policy 1 Madison attempted to answer the argument in Helvidius No. 2. Hunt, IV. of Madison, V I I , 151-160. His answer is not altogether convincing.

» L., IV. of H„ I V , 185-6, Pacificus No. 7-

4°

AMERICAN

NEUTRALITY

IN 1793

was in this instance reinforced by his partiality for England with the result that, to him, all collateral questions sank into insignificance beside the necessity of avoiding war. 1 In contrast to Jefferson 2 he felt that since it was to be done anyway it was only an indication of wisdom for the government to declare its neutrality without requisition of England.8 Even Jefferson recognized the preponderance of the arguments in favor of the issuance of a proclamation.4 A careful consideration of his arguments against such a step is necessary to an understanding of Jefferson's attitude, but still more significant is the fact that he yielded these when confronted by the other arguments. Although he consented to the proclamation, Jefferson would never by himself, have seen the advisability of this. It was necessary that another should prove to him its wisdom. It was fortunate that Hamilton was present. Once both sides were clearly before his mind Jefferson, the neutral, whose first interest was 1

Five years later, war with France was threatening and the position of the two men is reversed. Then it is Jefferson who is most certain of the value of neutrality, and Hamilton was inclined to give more attention to subordinate questions. But the depth of the neutral convictions of each man is indicated by the restraint exercised by Hamilton in 1797 and 1798 and that of Jefferson in 1793. See L., IV. of H., V I I I , 461-462, Hamilton to William Smith, April 10, 1797, " I have . . . differed from many of my friends . . . We seem to feel and reason as the Jacobins did when Great Britain insulted . . . us . . . we have as much need of a temperate conduct now as we had then; " ibid., 529, Hamilton to T. Sedgwick, February 21, 1799; ibid., 537-8; Hamilton to Washington, October 21, 1799; ibid., V, 363-461, essays published by Hamilton in 1797-8. IV. of Jefferson, IV, 189-192, Jefferson to E. Rutledge, June 24, 1797* F., W. of J., VI, 238-40, Jefferson to Madison, May 5, 1793. J

L., W. of H., IV, 187, Pacificus No. 7.

* Jefferson's statement to Madison, supra, p. 32 is not alone sufficient to explain his consent to the issuance of a proclamation.

THE

PROCLAMATION

OF

NEUTRALITY

always America, predominated over Jefferson the French sympathizer, and the official cabinet opinion delivered to Washington on April 19 was unanimous. 1 A mere reading of the opinions which the cabinet submitted to the President while Jefferson was Secretary of State proves that he was not a man who consented to an opinion merely for the sake of unanimity.2 His concurrence in this opinion was a sign of his conviction of the wisdom of issuing a proclamation. But, as has been seen, the conviction was reached with difficulty and, as will be seen, Jefferson intended to let it extend no farther than was necessary.3 The cabinet met on April 19 in answer to the summons of Washington * and after a discussion which included the arguments outlined above it delivered a joint written opinion to Washington which advised the issuance of a proclamation and which submitted rather definite suggestions as to its contents.5 The proclamation was issued by the President on April 22, 1793, in the following words:* 1 F., W. of / . , V I , 217, Cabinet opinion o n p r o c l a m a t i o n . . . , April 19, 1793; L., IV. of H., I V , 74, the same opinion. 1 For example, F., W. of / . , V I , 191, Cabinet opinion o n Indian w a r , February 25, 1793. Ibid., V I , 339-40, Cabinet opinion o n Little Sarah, July 8, 1793; ibid., V I , 362-3, Cabinet opinion on calling Congress, A u g u s t 4, 1793; ibid., I, 267-70, Anas, N o v e m b e r 23, 1793; Establishment of military academy. T h i s independence is noticeable both o n the most important and on the less important decisions. 3

Neither did it prevent criticism of the proclamation once it w a s issued and had served its purpose ( F . , W. of J., V I , 259, Jefferson to Madison, May 19, 1793). T h i s criticism w a s probably partly f o r partisan reasons and partly a remainder of s o m e of his earlier opposition, Jefferson to Madison, A u g u s t 11, 1793, T . J. P., N o . 15692-5. 4 5

See supra, p. 26«., W a s h i n g t o n to Secretaries, 18 April, 1793.

F., W. of }., V I , 217, Cabinet opinion o n P r o c l a m a t i o n and F r e n c h Minister " A t a meeting of the heads of departments and the A t t o r n e y General at the President's, April 19, 1793, by special summons to consider

AMERICAN

42

NEUTRALITY

By the President of The United States of

IN 179S

America,

A PROCLAMATION

Whereas it appears that a state of war exists between Austria, Prussia, Sardinia, Great Britain, and the United Netherlands, of the one part, and France on the other: and the duty and interest of the United States require, that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent Powers: I have therefore thought fit by these presents to declare the disposition of the Undted States to observe the conduct aforesaid towards those powers respectively; and to exhort and warn the citizens of the United States carefully to avoid all acts and proceedings whatsoever, which may in any manner tend to contravene such disposition. And I do hereby also make known, that whosoever of the citizens of the United States shall render himself liable to punof several questions previously communicated to them in writing by the President. Qu. I.

Shall a Proclamation issue &c? (See the questions)

agreed by all that a Proclamation shall issue forbidding our citizens to take part in any hostilities on the seas with or against any of the belligerent powers, and warning them against carrying to any such powers any of those articles deemed contraband according to the modern usage of Nations and enjoining them from all acts and proceedings inconsistent with the duties of a friendly nation toward those at war. Qu. II.

Shall a minister from the Republic of France be received?

agreed unanimously that he shall be received. Qu. III. If received, shall it be absolutely, &c [note by Ford, " A t this point the following is struck out: ' The Attorney General & Secretary of State are of opinion he should be received absolutely & without qualifications. ' T h e Secretaries of the Treasury and W a r ? ' ] This and the subsequent questions are postponed to another day." • This text of the proclamation is taken from A. S. P. F. R., I, 140. It may also be found in F „ W. of W., XII, 281-282.

THE

PROCLAMATION

OF

NEUTRALITY

ishment or forfeiture under the law of nations, by committing, aiding, or abetting hostilities against any of the said Powers, or by carrying to any of them those articles which are deemed contraband by the modern usage of nations, will not receive the protection of the United States, against such punishment or forfeiture; and further, that I have given instructions to those officers, to whom it belongs, to cause prosecutions to be instituted against all persons, who shall, within the cognizance of the courts of the United States, violate the law of nations, with respect to the Powers at war, or any of them. In testimony whereof, I have caused the seal of the United States of America to be affixed to these presents, and signed the same with my hand. Done at the city of Philadelphia, the twenty-second day of April, one thousand seven [L. S.] hundred and ninety-three, and of the Independence of the United States of America the seventeenth. GEO. WASHINGTON.

By the President: Th: Jefferson. This proclamation was drafted by Edmund Randolph, the Attorney General. There is no room for the slightest doubt to remain on this point, yet there is a persistent opinion that it was drafted by John J a y , the Chief Justice. 1 This opinion that J a y was the author is based upon the draft of such a proclamation which he sent to Hamilton on the eleventh of April. 2 Being written on the same subject, in most part for the same purposes and even with a knowledge of the thirteen 1

So recent and respectable an author as Samuel Flagg Bemis has said, " Washington issued a proclamation, drafted by John Jay." American Secretaries of State, vol. ii, p. 69 (1927). The other perpetuators of this error are almost as numerous as those who attribute the proclamation to Randolph. ' Johnston, Correspondence ... John Jay, III, 473-477- This was in answer to Hamilton's second letter of April 9th. See supra, p. 29.

44

AMERICAN

NEUTRALITY

IN 179S

questions later submitted to the cabinet, this d r a f t naturally bears a marked resemblance to the proclamation as issued. The son of the Chief Justice in writing his Life of John Jay called attention in 1833 to the Jay-Hamilton correspondence and suggested the probability that " the first draught of it [the proclamation] was made by the Chief Justice." 1 M a n y later writers, acquainted with this passage, have merely compared the two proclamations and concluded that Jay was the author o f the one issued. Since the publication of the papers and correspondence of the other members of the cabinet the evidence of Randolph's authorship is conclusive. Jefferson repeatedly refers to him as the author, and nowhere indicates that the d r a f t by Jay or any other d r a f t was known to the cabinet. 2 Hamilton does not refer to its authorship in his letters; but by his son and biographer the proclamation is attributed to Randolph, 3 and the more recent editor of the Jay papers discounts the authorship of Jay. 4 It is an error, then, to refer to Jay as the author of the proclamation that was issued, but it is impossible to determine just what influence his d r a f t may have had upon the final draft. It is possible that Hamilton may have given Jay's draft to Randolph, but neither has left any indication of this. N o r is there indication of any consultation between Hamilton and Randolph on the d r a f t i n g of the proclamation, and under the circumstances such would have been unusual. 5 It is very 1

William Jay, Life

of John Jay, I, 298.

F., IV. of J., VI, 315-16. Jefferson to Madison, June 23, 1793; ibid., VI, 367-70, Jefferson to Madison, August 11, 1793; ibid., VI, 346-50, Jefferson to Monroe, July 14, 1793. 3

3

John C. Hamilton, Life

of Hamilton,

V, 235.

Johnston, Correspondence ... of John Jay, III, 474 n. (1891); M. D. Conway, Edmund Randolph (N. Y., 1888), 202-3. 4

cf.

5 The President frequently designated a certain member of his cabinet to draft an important paper. The author has found no instance in which

THE

PROCLAMATION

OF

NEUTRALITY

probable, then, that Jay's draft never passed out of the hands of Hamilton and that its only influence was such as it may have had in determining Hamilton's views on this question, and in turn the expression of these by him at the cabinet meeting. Even here the most striking similarity between the two drafts, the absence of the word "neutrality" in each,1 is the very point that Hamilton would not have insisted upon at the cabinet meeting.2 It is probable, then, that Jay's draft had little influence, even indirectly, on the final proclamation.3 such a member sought further advice of his colleagues. In disputed questions such a designation was considered an indication of the tenor which the President wished to be given to the paper. 1 Jay to Hamilton, April 11, 1793, Johnston, Correspondence of John Jay, III, 474, calls attention to his "avoiding the expression" "neutrality," but he does use the word " neutral " in his draft. 1 Jay's draft is too long to justify its inclusion here in full, but a comparison of the two drafts is very interesting. T h e other similarities between them seem to the author to be only such as might be expected had Hamilton never received Jay's draft. Jay devotes some two or three hundred words to an introduction for a statement that our recognition of the French Republic is de facto, then includes most of the points found in Randolph's draft, except the reference to contraband, but expresses them in different words, the difference often being very interesting and concludes with a recommendation that the citizens and especially the newspapers of this country avoid public discussions likely to cause friction. 3 Randolph's biographer feels that Jefferson was glad to leave the drafting of the proclamation to the Attorney General so that he could more logically criticize it later (Conway, Edmund Randolph, 203-3). There seems to be no reason for doubting this. Jefferson nowhere intimates that it was confided to the Attorney General against his advice. The Secretary of State would naturally have drafted such a proclamation on foreign affairs (cf. H., IV. of H., I V , 306-318, for the practice in Washington's administration on such matters) and it is inconceivable that the President would unnecessarily have slighted Jefferson when he was pleading so earnestly with him to remain in the cabinet against Jefferson's own desire to retire. (On Jefferson's retirement see F., IV. of IV.. X I I , 321-322, Washington to Jefferson, 12 August, 1793: and F.,

AMERICAN

46

NEUTRALITY

IN 1793

It seems that the omission of all reference to neutrality in the proclamation of A p r i l 2 2 was a special concession to Jefferson. 1

T h i s permitted him to compromise with his o w n

strict constructionist views on the incompetency of the executive to issue a proclamation of neutrality and allowed him to retain some hope of forcing concessions f r o m E n g l a n d in return f o r such a declaration. 2

A s events

developed,

however, the omission of all reference to neutrality w a s a concession more apparent than real.

T h e proclamation con-

tained a warning or an announcement on every point that was necessary f o r the preservation of a neutral position, and went about as f a r as the executive could legally g o without an act of Congress. 3

T h e people immediately recognized

it as a proclamation of neutrality. 4

Hamilton considered it

IK. of J., VI, 163-4, Jefferson to M. J. Randolph, January 26, 1793; ibid., 213-4, Jefferson to T. Pinckney, April 12, 1793; ibid., 360-361, Jefferson to G. Washington, July 31, 1793; ibid., 366-367, Jefferson to G. Washington, August 11, 1793; ibid., I, 356-9, Anas, August 6, 1793-) 1 " E. R., who drew it, brought to me the draught, to let me see there was no such word as neutrality in it." Jefferson to Monroe, July 14, 1793. F-. W7- of J., VI, 346-350; c f . Jefferson to Madison, August 11, 1793; ibid., VI, 367-70. 1

That Jefferson did retain such a hope for a short time is shown in the Anas, November 18, 1793 (F., IV. of J., I, 266), and in Jefferson to Monroe, May 5, 1793 (F., IV. of J., VI, 238-40). See also Jefferson to Madison, June 29, 1793 (ibid., VI, 325-28), in which Jefferson says he feels that Hammond may have been instructed to grant the very concessions that he (Jefferson) had wanted to contend for. However, Jefferson was mistaken (cf. B. S. P., Grenville to Hammond, February 8, 1793). Hammond had the opposite instructions. 1 John C. Hamilton is justified in his contention that the Secretary of the Treasury secured every important point for which he contended in this matter (Life of Hamilton, V, 233). 4 That is the name that was usually used in speaking of it. Cf. Jefferson to Monroe, July 14, 1793 (F., W. of J., VI, 346-50), Randolph to Washington, November 10, 1793 (F., IV. of IV., X I I , 344-345 n.).

THE PROCLAMATION

OF

NEUTRALITY

as such, 1 and the President himself even used the term in his public papers. 2 That conception of it immediately became so widespread that Jefferson had considerable trouble getting the matter straightened out when the cabinet was preparing the President's speech to Congress the next November. A t that time, Hamilton said that he had understood the proclamation as carrying an assurance to foreign nations of our neutrality, future as well as present; Randolph said that he doubted the President's right to make such a declaration f o r the future, but that he had meant only that foreign nations should understand the proclamation as an intimation of the President's opinion that neutrality would be our interest; Jefferson said that he had intended " no such thing " as even Randolph's explanation, but that he would have preferred them to be doubtful and come and bid for our neutrality. The President then interrupted the argument to say that " he had never had an idea that he could bind Congress . . . or that anything contained in his proclamation could look beyond the first day of their meeting. His main view was to keep our people in peace. He apologized for the the use of the term neutrality in his answers." 8 The President, however, was unwilling to have the speech state that the proclamation was not a declaration of neutrality, this being too much like " crying peccavi before he was charged." * The drafting of this part of the 1 Pacificus, No. i, second paragraph and passim (L., W. of H., 136).

* Hunt, W. of Madison,

IV,

V I , 178, Madison to Jefferson [August 22,

17931' F., W. of J., I, 266-7, Anas, November 18, 1793. The President justified his use of the term neutrality by his having submitted the first paper in which it was used to the consideration of the cabinet and none of them had objected to the term. 4

Ibid., November 21.

AMERICAN

48

NEUTRALITY

IN 1793

communications to Congress was finally assigned to Randolph 1 who prepared the paragraph as delivered to Congress and which spoke of the proclamation merely as " a declaration of the existing legal state of things." 2 This was different f r o m the draft of the speech as prepared by Hamilton. 8 Perhaps one reason f o r the immediate recognition of the proclamation as a declaration of neutrality, in spite of the absence of the word, was the widespread appreciation of the need of such a declaration. Friends of the federal officials from various parts of the country wrote to them advising such a proclamation as soon as news of the war reached America. Governor Henry Lee of V i r g i n i a in a letter to Washington, dated April 29, 1 7 9 3 (before Lee had heard of the proclamation) said: * " The considerate part of society hope f o r peace, which can only be obtained by strict neutrality. D o you not think your proclamation on this subject would be useful? Pardon the suggestion. . . . " Almost three weeks before this Stephen Higginson of Boston had written a similar letter to Hamilton advising a proclamation by the President to inform the people on the subject of neutrality. 8 Even Jefferson himself, though long very careful never to associate the word neutrality with the proclamation, used the word repeatedly in describing the 1 1

3,

Ibid., November 28. F., IV. of IV., X I I . 351. Speech to both Houses of Congress, December I793-

1

L., IV. of H., V I I , 75-6, President's Speech, Draft by Hamilton; c f . Anas, November 21, 1793, op. cit. 4 1

F., W. of W., X I I , 287-8 n., Lee to Washington, Richmond, April 29.

Hamilton Papers (L. C.), 1st series, vol. 18, No. 2549. Higginson to Hamilton, April 10, 1793; c f . G. Morris to T. Pinckney, March 2, 1 7 9 3 , A. S. P. F. R„ I, 396.

THE PROCLAMATION

OF NEUTRAUTY

49

actual condition of the United States both before and after the decision to issue the proclamation.1 Looking back with the perspective of a century it is easy to see the wisdom of the course that was pursued in April, 1793 and the danger of that which Jefferson would have followed if left to himself. The proclamation as issued and put into execution 2 by the United States won the approval of Great Britain. Hammond reported to his government that " this paper though worded with considerable caution appears to admit but little cavil, and to be as explicit in its import as could have been expected." * The next year Grenville wrote that, " His Majesty's ministers think that there appears to have prevailed in . . . [the general conduct of the government of the United States] . . . a desire for the maintenance of a fair neutrality, and even a disposition friendly towards this country." 4 Fortunately, then, the British Government was first convinced of the good faith of the American Government. Then, on the tenth of June, 1794, a half-year's accumulation of dispatches from America reached the British Foreign Office.' These showed that America was fast drifting toward war with Great Britain 1 F., W. of /., VI, 212. Jefferson to the President, April 7, 1793; ibid., VI, 217, Jefferson to G. Morris, April 20, 1793; W., W. of J., I l l , 541-2, Jefferson to T. Pinckney, April 20, 1793.

* It should be noted that Jefferson in his official capacity carried out this proclamation as faithfully as any member of the cabinet, and so deserves much of the credit for its successful execution. * B. S. 4 B. S. 1794; cf. P. F. R., 5

P., Hammond to Grenville, No. 14, May 17, 1793. P. (H. Adams Transcripts), Grenville to Hammond, 11 January, T. Pinckney to U. S. Secretary of State, January 9, 1794, A. S. I, 430.

The usual interruption of communication by cold weather was unusually long that winter. These were the first dispatches from America since November 10. B. S. P., Hammond to Grenville, No. 1, February 20, 1794; and passim, November, 1793—March, 1794.

5°

AMERICAN

NEUTRALITY

IN 179S

and Hammond was not at all optimistic of the future. Five days later J a y reached London. 1 The success of his mission was due in no small degree to this sequence of events. In contrast with J a y ' s success, what would have been the probable result if the United States had followed a policy of trying to force Great Britain to grant concessions at the beginning in order to secure our neutrality? The slowness of communications created a dangerous possibility of misunderstanding which could not be promptly corrected. The British Government was already biased against America, and considered her a potential ally of France. 2 This situation was made more dangerous by the exploits of Genet— so difficult to prevent or explain—which were already starting at Charleston. 3 It is not difficult to predict a disastrous result. In the estimation of the belligerents the strength of America was slight in comparison to the importance of the European struggle. Consequently, neither would have tolerated her neutrality if it became evident that a neutral policy would react to the benefit of an opponent. It was the good fortune of the Washington administration that, collectively, the members were able to recognize the strength of a frankly neutral policy. When once such a policy was determined upon—that is, after the 19th of April—the President and all the members of the cabinet turned again faithfully to the difficult task of steering the country on a course of true neutrality.* The 1 Johnston, Correspondence.. Randolph, 23 June, 1794.

.of

Jay, I V , 28-9, John J a y to Edmund

2

" Indeed not only the king but most of his courtiers and (except the Pole) all the foreign ministers, seem to consider the Americans as united in principles with French." Thomas Pinckney to the Secretary of State (Jefferson), December, 1792, C. C. Pinckney, Thomas Pinckney, p. 104. * C. of G., p. 212, Genet to Minister of Foreign Affairs, 16 April, 1793. * Jefferson had " 50 proclamations immediately printed on a quarto piece

THE PROCLAMATION

OF

NEUTRALITY

proclamation was important in that it served as an early and forcible announcement to foreign nations o f the policy they might expect on the part of the United States. 1 It was important in that it early served as a check to the bellicose conduct contemplated by many American citizens. The proclamation was not important as an indication o f the neutral dispositions of the various members of the administration. Jefferson, when he opposed it, was and would have remained, as much a neutral as Hamilton who supported such a course from the first. And again, the proclamation itself was not so important as was its execution. Viewed by itself the proclamation would appear to indicate a vacillating policy. It was the straight and narrow course which was steered during the succeeding months that laid so firmly the foundations of American neutrality and furnished such an admirable example of neutral conduct to the world. The pursuance of such a course required much delicate calculating and much bold steering through crises. The record of this was gradually ground out and preserved in each set of instructions that went to Pinckney, to Morris or to others and in each letter that was sent to Hammond or to Genet. Most of this work fell to the lot of Jefferson, the Secretary of State, but the records of cabinet meetings show that the of paper " and sent one to each governor in his letters dated April 26, 1793- The infrequency of the post caused some delay however in the dispatch of some of them (T. J. P., No. 14613 and note on back of same). Jefferson had already informed the foreign ministers resident at Philadelphia of the proclamation in his letter of April 23, 1793 (W., IV. of J., Ill, 543, and T. J. P., No. 14602). The letters to the U. S. ministers abroad bore the date of April 26 (W., IV. of /., Ill, 544). Randolph evidently followed these letters with letters of his own to the U. S. District Attorney. See a copy of such, Randolph to W . M. Channing, May 12, 1793, Emmet Collection, No. 3677, N. Y. P. L. 1 In later years this proclamation has attracted additional attention from students of international law since it serves as one of the early examples of such official statements, declaratory of the law of nations.

52

AMERICAN

NEUTRALITY

IN 179S

most important questions received the attention of the President and of all the members of the cabinet, and that the responsibility was assumed by all. It is, then, with such instructions and letters and with the decisions of these questions that the succeeding pages must deal.

CHAPTER

II

T H E PRELIMINARY QUESTIONS AND THE A R R I V A L OF

GENET

ONCE the question of the proclamation had been settled and the policy of the government was announced Washington and his cabinet could contemplate the situation more tranquilly, being reasonably certain that the slow communication of that period would not permit other pressing questions to demand solutions for at least several days. The modern statesman must long for such a period of relaxation and must envy Edmond Randolph his opportunity to intimate " that in so great a question he should choose to give a written opinion " 1 and then to devote seventeen days to its preparation. A f t e r receiving the cabinet opinion delivered to him on April 19 Washington approved such a course in answering the other questions and the members of the cabinet proceeded so to prepare their answers to these questions which " took a view o f the whole ground." 2 The President's circular had included most of the problems which obviously demanded immediate solution, and it was reasonably certain that most of the questions therein would have to be answered, in the ordinary course of events, within a few weeks. If by this anticipation the solutions to these questions could be ready when circumstances first demanded them, the administration could feel itself well started on its course of neutrality. 1

F., W. of J., I, 227, Anas, April 18, 1793.

* These questions are printed, supra, pp. 26-27».

53

54

AMERICAN

NEUTRALITY

IN 1793

The questions as to the present applicability of the treaties with France 1 were next in importance after the solution of the first question. During the dark hours of the American Revolution the United States had accepted aid from France at the price of a treaty of alliance by which the United States " guaranteed forever against all other powers . . . the possessions of the Crown of France in America." 2 On the same day that this treaty was concluded the two countries had also concluded a treaty of " Amity and Commerce " with each other. Several of the articles of the latter treaty also assumed unusual importance with the developments of the year 1793. The articles referring to prizes and to privateers were most important. By the former article s the two countries reciprocally agreed that if either were at war its ships of war and privateers should have the right to carry, into the ports of the other, any prizes which they might take from the enemy, such prizes to be free from arrest, seizure, search, duties, and examination concerning their lawfulness, and such ships to have the right at all times to hoist sail and depart with their prizes. The same article provided that no such privileges should in that case be extended to the enemy of either of the parties. The second article referred to above 4 provided that enemy privateers should not be allowed to be fitted out, or to sell their prizes in the ports of either party, nor to purchase victuals there, the last with the usual humane exceptions. Another article of this same treaty 8 provided that no subject of either of the parties should apply for, or take, any commission or letters of marque to privateer against the other country 1

That is, questions 4, 5, and 6. * Treaty of Alliance, Article XI, concluded February 6, 1778. ' That is, article X V I I of the Treaty of Amity and Commerce. 4 That is, article X X I I of the Treaty of Amity and Commerce. 4 Article X X I of the Treaty of Amity and Commerce.

THE

PRELIMINARY

QUESTIONS

AND

GENET

or against any of its subjects, and that if any person should do so he should be punished as a pirate. 1 It would be an easy matter so to interpret some of the above articles as to bind the United States to a course incompatible with a policy o f safe neutrality. T h e article guaranteeing possessions in the W e s t Indian Islands would at least present this possibility. It would be a considerably more difficult matter so to construe these treaties as to enable the United States to remain at peace. It is sufficiently clear, from the discussion of the proclamation of neutrality, that the President and all the members of his cabinet wished to preserve the neutrality of their country. W i t h Hamilton and his adherents, it was simply a question of relieving the United States o f any objectionable obligations under these treaties in the quickest, most complete and most satisfactory way possible. W i t h Jefferson and those who felt the same as he did, the problem was to relieve the United States, without antagonizing France, of those duties the performance of which would be considered by England as sufficient cause for war. T h e most difficult part of the latter program lay in keeping the respect and good will of France. T h e proper road to safety, as viewed by each group, is outlined in the written opinions delivered to Washington by the members of his cabinet, during the last week in April or the first in May. Jefferson thought that Hamilton advised a declaration that the treaties with France were void, and Jefferson con1 The other articles of the treaty of Amity and Commerce which especially entered into the discussions in 1793 and which are discussed below were articles X I V and X X I I I which provided for the rule of Free ships—Free goods and Enemy ships—Enemy goods; article X V relative to reparation for injuries; article X X I V which contained a definition of contraband; article X X V relative to the issuance of passports to ships; and article X I X relative to reparation of ships. The text of these treaties may be found in Treaties and Conventions, pp. 296-310.

56

AMERICAN

NEUTRALITY

IN 179S

tinued to believe this.1 Jefferson, however, was mistaken. All that Hamilton advised was a qualification to the effect that they were " temporarily and provisionally suspended." 2 It is by no means so certain that Hamilton would not have wished to advise a declaration that they were void. Hamilton had been giving careful thought to this question since the first of the month. Even at that time he doubted " whether we could bona fide dispute the ultimate obligation of the treaties," 3 but his doubts on this point evidently had not then reached the point of forcing such a possibility from his mind. He had conversations with both John Jay and Rufus King aboirt that time, and evidently sought their advice on most of the questions. King, in writing his advice to Hamilton after having returned home, felt that it was necessary to state that he had concluded that the treaties could not be declared void,4 and Jay felt that it was best not to speak of the treaties at the present.0 The possibility of declaring them void must then at least have been mentioned in the conversations. Whatever Hamilton's views may have been on the first of April, by the last of the month he himself evidently had decided against this possibility, for he does not mention it in his report to the President or in any other official papers. Hamilton, in his written answer to the President, devoted his effort in so far as the paper dealt with the questions concerning the treaties, to proving that they did not apply to the present situation of the parties.4 From this he de1 Anas, April 18, 1793, " Written May 6." The questions " lead to a declaration of the Executive that our treaty with France is void." F., W. of J., I, 226. • H., W. of H., IV, 363, Opinion, April, 1793' L., W. of H., VIII, 297-8, Hamilton to John Jay, April 9, 1792. 4 H., W. of H„ V, 553-554, King to Hamilton April 24, 1793. 1 Ibid., V, 552-553, Jay to Hamilton, April 11, 1793. • L., W. of H., IV, 75, Hamilton to Washington, April, 1793-

THE

PRELIMINARY

QUESTIONS

AND

GENET

rived the conclusion that they might be suspended until the government of France was established, and then, if the form of that government should be such as to render a continuance of the treaties contrary to the interests of the United States, they might be renounced.1 Hamilton believed that the neutrality of the United States would be made secure by the establishment of such a doctrine ; it would remove the necessity of interpreting any of the articles, and in this manner the United States would be permitted to avoid friction with Great Britain. Both these treaties would be put aside for the duration of the present conflict. Hamilton then gave his most careful attention to proving the above doctrine 2 and the arguments that he produced are worthy of careful consideration. The first, and, to Hamilton, probably the most pertinent argument against the applicability of the treaties, was that they were made with Louis X V I , King of France, his heirs and successors, and that Louis had been driven from his throne. Hamilton acknowledged that these treaties were real treaties and as such bound the nations and not merely the governments. But after a careful study of the various authorities on international law 3 he concluded that this, as well as " the reason of the thing," proved that in case of civil war a nation allied by such treaties was not bound to »Ibid., I V , 89. ' Further evidence of the care with which Hamilton prepared these arguments is found in his draft of the paper which was submitted to the President. This draft abounds in interesting erasures and interlineations. Hamilton Mss. L. C. 1st Series, vol. 19, Nos. 2602-2625, April, 1793. The paper as submitted to the President can be found in L., W. of H., I V , 74-101. ' Both Hamilton and Jefferson of course minimized the value of the other's citations. Jefferson characterizes one of Hamilton's as an " ill understood scrap in Vattel." F., IV. of /., V I , 232, Jefferson to Madison, April 28, 1793.

58

AMERICAN

NEUTRALITY

IN 179S

assist the other nation against its king. Neither was it bound to support the king against his subjects. Hamilton thought that it would indeed be unjust to turn such an alliance to the disadvantages o f the very king who made it, or of his heirs. Clearly the only proper thing was to consider the treaties suspended while awaiting the result. 1 The next argument that Hamilton developed against the applicability of the treaties is that this alliance was a defensive alliance,2 and that France was now engaged in an offensive war. The diplomats of the present decade would indeed be grateful to Hamilton if he could have left them a satisfactory definition of a defensive war. However, he merely accepted the technical definition which he found in numerous texts on the subject, which is, " that the first who takes up arms, whether justly or unjustly, commences an offensive war." 3 There was no doubt but that France had been the first to declare war against every one of the powers with which she was then known to be at war. Therefore, a merely defensive alliance could not bind the United States. But for good measure Hamilton continued and discussed the question of the justness of the war. He acknowledged that such a question as this was always difficult to answer, because each party used the same arguments; but Hamilton concluded that in this instance France had given more grounds for war than had the other. 4 1 L., W. of H., pp. 74-88.

I V , 74-101.

This argument is developed mainly on

1 There was no dispute on this point. Article I I of the Treaty of Alliance speaks of " the direct end of the present defensive alliance." The question was whether the war of 1793 was offensive on the part of France.

' L., W. of H., op. ci/., p. 102. 4 The arguments as to the offensive nature of this war on the part of France are developed in L., W. of H., op. cit., pp. 101-112.

THE

PRELIMINARY

QUESTIONS

AND

GENET

In addition to these two main arguments against the applicability of the treaties, Hamilton developed several minor ones. France during this revolution had declared certain of her treaty obligations null on the principle of inapplicability to the new order of things. The same right could not then be denied by France to other countries.1 The presence of unusual or extreme danger was, according to the law of nations, sufficient grounds for a nation's avoiding its obligations under treaties. But, said Hamilton, this was the "most questionable and least reputable of all the objections." If the United States acknowledged the treaties as in operation, it was very likely that they would in the end have to rely upon this disreputable argument.2 Was it not better to declare them suspended at once because of the other just reasons than to risk this ? s Another argument advanced by Hamilton was probably the one that was to be best understood by the American public. It was expressed in the question, " Suppose the contest unsuccessful on the part of the present governing powers of France, what would then be our situation with the future government of that country," if we aided the revolutionary government? This was a very practical question.4 As the Secretary of the Treasury had early told Jay, the " very point " in the whole matter was concerned with the future of the French government. It was clearly advisable to postpone decisions until this was determined. Hamilton felt that in his answers to the questions of the President he had shown also that it was clearly 1

L., W. of H., op. cit., pp. 96-97.

' The question of the guarantee, discussed hereafter, was the basis of this statement. ' The argument on the question of " unusual and extreme danger " is developed, pp. 92-93, op. cit. 4

Cf. H., Life of H„ V, 236.

6o

AMERICAN

NEUTRALITY

IN

1793

permissible to postpone all decisions on the treaties by holding them suspended until the government of France should be established. Jefferson was opposed to declaring the treaties suspended. He denied that the treaties were inapplicable, with respect either to their separate articles or to their whole significance. What grounds, then said he, can there be for suspending either in its entirety? But as there seemed to be doubts as to some of the articles, he proceeded to try to remove those doubts. His task then was merely to answer successfully the arguments of Hamilton. This he attempted to do in the written answer which he submitted to the President's questions. Although Jefferson's answer was submitted at about the same time as Hamilton's, 1 the former was able to anticipate all the important arguments in the paper of the latter. Hamilton had, in the cabinet meeting of April 19 taken " up the whole subject and . . . gone through it in the order in which the questions sketch it." * Jefferson had given careful attention to these arguments, and had noted them on a slip of paper.8 On the back of the same slip he made a brief 4 note of the principles that would guide him in answering these arguments.® On another L., W. of H., V I I , 297-8, Hamilton to John Jay, April 9, 1793. Jefferson sent his to Washington on April 28, 1793. F., W. of J., V I , 218-9. The date on the paper submitted by Hamilton is merely " April, 1793 ", but the day could not have been far from the 28th. 1

2 F., W. of J., I, 226, Anas, April 18, 1793, " Written May 6." • The original sheet is now No. 14560 of the T . J . P. 4 It is merely this brief note of principles that John C. Hamilton reproduces in Life of Hamilton, V , 231, as the answer of Jefferson to the President's questions.

* The principle on which he then determined to base his answers to question 4, 5, and 6 was as follows, " 1st Principle. The people the source of all authority, the constituent in all treaties. This answers qu. II, I I I , I V , V , V I , X I I . " T . J . P., No. 14559-

THE

PRELIMINARY

QUESTIONS

AND

GENET

6l

portion of the same paper he outlined in more detail the points which later went into his answer to the President. 1 It is evident, then, that Jefferson as well as Hamilton gave his most careful attention to the answer to the President's questions. First, it was necessary to demolish Hamilton's arguments that, since the treaties were made with Louis X V I , the United States was not bound to consider them as applicable to the existing government of France which was engaged in a war against the heirs of this king. Jefferson attacked this with relish. Imagine the reaction of a Republican to an insinuation that the United States would not have allied herself with France in 1778, had she then been a Republic, and that the " ancient despotism " of France would have been more agreeable to the United States. Jefferson amply proved that the treaties bound the mations, not the governments ; 2 and that though both nations had changed the forms o f their governments, the treaties were not annulled by these changes.3 Hamilton's right of suspending was derived from the right of annulling. 4 Therefore, if there was no right of annulling there was no right of suspending. It was not difficult for Jefferson to cite ample passages 5 from the textbooks on international law in proof of his contention that there was no right of annulling because of such a change in government. The convenient feature of those textbooks was the fact that if one was well enough acquainted with them one could usually find passages to 1 This paper as delivered to Washington can be found in F., IV. of J., V I , 219-231. Opinion on French Treaties, April 28, 1793. 2 F., IV. of J., op. cit., p. 231. Hamilton had acknowledged this half of the argument, L., W. of H., I V , 79.

' F., W. of ]., op. cit., p. 220. 4

L., W. of H., I V , 89, opinion on Treaties.

5

F., W. of J., op. cit., pp. 225-227.

62

AMERICAN

NEUTRALITY

IN 1793

prove either side of a controversy. In this manner Jefferson matched and even surpassed Hamilton's legal arguments on this question. When it came to " the reason of the thing " Hamilton's point fell when Jefferson called attention to the fact that it was based on the assumption that the United States might rather be allied to a despotism than to a republic. In spite of the apparent reasonableness of Hamilton's first argument, it did not stand criticism. Washington certainly never indicated his willingness to accept it and even so staunch a supporter of the Secretary of the Treasury as Rufus K i n g considered it " a point of delicacy and not quite free from doubt." 1 The question, then, of the inapplicability of the whole treaties was settled. The United States would support no such doctrine. Hamilton and his group had lost and were forced to prove that individual articles of the treaties would not fit the changed situation. Jefferson early made it clear that even if such articles were found, they would not provide sufficient reason for the renunciation of the entire treaties by the United States. Instead, it would only justify America in refusing compliance with these articles, and then the right to declare the whole void would rest with France. 2 A study of the two treaties shows that the only articles of which the application might reasonably have been expected to cause trouble between Great Britain and the United States in 1793, were article X I 3 of the Treaty of Alliance, and articles X V I I 4 and X X I I 8 of the Treaty of Amity and Commerce. Jefferson quickly and easily disposed of the last two of these with the same arguments that he later 1

H., W. of H., V , 553-4, King to Hamilton, April 24, 1793.

* F., W. of J., op. cil., p. 224. ' The guarantee. * French prizes to be admitted to United States ports. ' Against fitting out English privateers in American ports.

THE PRELIMINARY

QUESTIONS

AND GENET

63

amplified in explaining these articles to Genet and the French government.1 There remained the danger from the guarantee by which the United States agreed to defend the possessions of France in the West Indies. It was probable that adherence to this would involve the United States in war with Great Britain. Ordinarily a nation should be willing even to go to war to fulfil its just obligations, but there were some extenuating circumstances in this instance. France had had a very considerable navy when the guarantee was entered into; this fact had doubtless been taken into consideration; now France had a much weaker navy; America had none; England had a very large one; any attempt by the United States now to defend the French West Indies against England would be not only hopeless but ridiculous. It would be of such unusual and extreme danger to the United States as to justify her in refusing to fulfil the guarantee. Both Hamilton and Jefferson saw this, but the latter called attention to the fact that the danger must be certain and immediate, and not merely apprehended in order to justify declaring the article null. Was the danger immediate, asked Jefferson? Not at all. France might not and probably 2 would not, call upon us to fulfil the guarantee; 3 England might not attack the islands; they 1

See infra, pp.

. See F., W. of J., op. cit., p. 223.

* F., W. of J., V I , 217, Jefferson to G. Morris, April 20, 1793. France would gain more from our greater ability as a neutral, to ship grain to France and to her possessions; c f . G. Morris to T . Pinckney, March 2, 1793, A. S. P. F. R., I, 396; c f . Instructions to Monroe, June 10, 1794. A. S. P. F. R., I, 668-669. ' This was also the view of the British Government on the question. It of course considered the war as offensive on the part of France and Grenville wrote to Hammond " I conceive the French Government will hardly venture even to make an Application to the United States for Assistance, on the grounds of their Treaty of Alliance." B. S. P., Feb. 8, 1793. The actual intentions of the French Government, which of course were not then known, are expressed in the instructions to Genet,

64

AMERICAN

NEUTRALITY

IN 1793

might be able to defend themselves,1 and even if France did call upon us we might be able to attain our ends through negotiation with Great Britain without the necessity of going to war; 2 in short the danger was so uncertain s that it would be no justification for present action. The second important point in Hamilton's argument (namely, that the United States was not bound to fulfil the defensive treaty of alliance because the war was offensive on the part of France) was developed as a means of escaping this guarantee. Now Jefferson had shown that for other reasons it was not necessary to fulfil the guarantee at the present, and where they say that during " Tres Longtems" the guarantee will be scarcely more than nominal on the part of the United States. The value to France of such a guarantee, they say, is in the future, in being allied to a country whose resources are increasing in a "progression incalculable ". C. of G., p. 2io. 1

Jefferson to Madison, June 9, 1793, F., W. of J., VI, 290-294. A question arises concerning the occasion that would justify France in calling upon the United States, Jefferson later wrote Madison that the only indication they had had of the attitude of France with regard to the defensive quality of the guarantee was a statement by Genet. This was so extreme that it was evident it was merely Genet's personal opinion and as unreliable as an indication of the attitude of the French Government as his other opinions. T. J. P., Nos. 15692-15695, Jefferson to Madison, Aug. 11, 1793. The French Government probably did not see fit to volunteer such a definition and certainly the United States would not needlessly request one. Cf. However Genet to Jefferson Nov. 14, 1793, A. S. P. F. R., I, 246. This was apparently ignored; instructions to Monroe, June 10, 1794. A. S. P. F. R., I, 668-669. * The arguments relative to the guarantee as developed by Jefferson are mainly on pp. 222-223 of F-> W. of J., VI. See however his reference to the possibility of negotiation in his " opinion " of Dec. 20, 1793, F., W. of J., VI, 485-488. ' The British Minister to the United States added an additional argument not mentioned by Jefferson when he said " I collect from some communication I have had with persons of authority, any protection offered by a foreign power to . . . [The French West Indies] in a state of independence might not be regarded" as a causis federis. B. S. P. Hammond to Grenville, No. 6, Mar. 7, 1793.

THE PRELIMINARY

QUESTIONS AND

GENET

that needlessly 1 to decide the disputed question of which side had begun the war would only uselessly insult France. 2 Both Jefferson and Hamilton were arguing in favor of postponing the decisions on the treaties. Their ideas, however, of the best way of doing this were so radically different that each thought the other was trying to force a decision. Hamilton thought that the best way of postponing a decision would be to suspend the treaties during the war. Jefferson thought that that would be the very means of forcing a decision. Hamilton said, " if there be an option, the effect of not using it would be to pass from a state of neutrality to that of being an ally." 3 Hamilton had been arguing not that the treaties were void, but that they were voidable; and therein lay the weakness of this last contribution of his. He acknowledged that they had not yet been renounced by the United States. Would not renouncing them, then, be making the very decision that both were trying to avoid? There is much weight in Jefferson's answer that " not renouncing the treaties now is far from being a breach of neutrality, that the doing it would be the breach, by giving just cause of war to France." 4 John C. Hamilton is surprised e at the opposition of Jefferson to " this peace preserving policy" of the Secretary of the Treasury. Which of the Secretaries proposed the more peace-preserving policy 1

Jefferson therefore does not answer the 8th question in his paper. A n indication of his attitude on the offensive nature of the war, on the part of France, is found in an earlier letter to Madison, F., W. of J., V I , 2 1 2 - 2 1 3 , April 7, 1793. There he defends France, but does not definitely say the w a r is defensive. s F., W. of J., V I , 2 1 8 - 1 9 . April 28, 1793.

T o the President of the United States.

5

L., W. of H., I V , 98, Answer.

3

L., W. of H., I V , 95.

• F., IV. of }., V I , 2 3 1 . 5

John C. Hamilton,

This was an answer to the 6th question. Opinion on Treaties.

Life of Alexander Hamilton,

V , 232.

66

AMERICAN

NEUTRALITY

IN 1793

with respect to the applicability of the treaties?

He who

supported the policy which finally w o n the approval even of England, 1 or he w h o advised renouncing the treaties and further insulting F r a n c e by g i v i n g as a reason the fact that she was engaged in an offensive w a r ?

Once again we must

realize that neither Jefferson nor H a m i l t o n could have f o r mulated a policy of true neutrality f o r this troubled year. Y e t the presence of each was necessary in order that the unprejudiced W a s h i n g t o n could select f r o m the proposals o f each the elements of a truly neutral policy.

A s surely as

Hamilton's proclamation w a s necessary, so also would the f o l l o w i n g of his advice on the treaties have been disastrous. 2 T h e thirteenth question prepared by the President w a s whether it w a s advisable to call together the t w o Houses of Congress because of the European situation.

This question

w a s probably added to the other twelve by Hamilton a f t e r he had learned that Jefferson intended to propose such a call. 3

It w a s certainly necessary in a set of questions which

were to " take a view of the whole g r o u n d . "

A s has been

seen, some persons raised the question of whether the E x e c 1

B. S. P. ( H . Adams Transcript), Grenvilleto Hammond, ii Jan., 1794.

* The attitude of Edmund Randolph and Henry Knox, the Attorney General and Secretary of W a r respectively, on these questions is typical of the parts they were to play throughout the year. Randolph agreed with Jefferson on most of the points but differed enough that he submitted a separate opinion to Washington (F., W. of J., I, 227, Anas, April 18, 1793, " W r i t t e n , May 6 " ; Conway, Edmund Randolph, p. 202). Knox merely signed Hamilton's opinion beside the signature of the author ( A . H. P., L. C., 1 Series, vol. 19, No. 2627, Hamilton and K n o x to Washington, May 2, 1793). This is the reason that this study does not deal more extensively with the opinions of Randolph and Knox. It should not be inferred from this that K n o x was a drone in the cabinet. A search through the Washington Mss. in the Library of Congress reveals many cabinet papers prepared by K n o x but these deal almost exclusively with military questions (G. W . P., vols. 258-266). ' F., W. of J., V I , 192-3, Jefferson to Madison, Mar., 1793.

THE

PRELIMINARY

QUESTIONS

AND

GENET

67

utive had the power under the Constitution even to issue a proclamation of neutrality.1 It was certain that the right of the Executive alone to perform some of the other acts contemplated in the questions, would also be doubted. Many of these are now conceded to the Executive through precedent, but it must be remembered that the Constitution had only been in operation four years, and that few precedents had been set on questions of neutrality. In such a state of uncertainty Hamilton and Jefferson might be expected to disagree on the relative powers of the two branches of our government. Jefferson may have had various motives in proposing the calling of Congress. One, and probably the most important, of these motives was the result of an honest conviction that under our Constitution the legislature was a more powerful body than many persons seemed to think. So honest a conviction was this that it caused him much worry at a later date, although he finally partly yielded. A less laudable motive, but one that was doubtless present with Jefferson, arose from a partisan desire to hasten the assembling of the first Congress in which his party was to have a majority. 2 Any insinuation that this was a " covert policy " whereby Jefferson hoped to involve us in the war is unjust.3 Jefferson had no such wish, but it is not so certain that, if Congress had been assembled, the popular enthusiasm might not have spread to it with unfortunate consequences.4 The danger of this was doubtless one of the 1

See supra, Chapter I.

1

F., IV. of J., V I , 143, 214, Jefferson to Thomas Pinckney, Dec. 3, 1792, April 12, 1793. The Senate of the next Congress was about evenly divided. Marshall, Life of Washington, V , 547. The Republicans elected their candidate as Speaker of the House, Annals of Congress, IV, 133. 3

John C. Hamilton ( L i f e of Hamilton, V , 232), misquotes his father to this effect. • This is acknowledged by Schouler, Life of Jefferson,

p. 171.

68

AMERICAN

NEUTRALITY

IN

179S

r e a s o n s w h i c h p r o m p t e d the other m e m b e r s o f the cabinet to oppose this p r o p o s a l . 1 A s e v e n t s developed, perhaps it is j u s t a s well that C o n g r e s s d i d not a s s e m b l e e a r l y in 1 7 9 3 .

A f t e r it h a d been

decided i m m e d i a t e l y to issue the p r o c l a m a t i o n , a n d a f t e r h e s a w that H a m i l t o n w o u l d be unable t o o b t a i n the e x t r e m e m e a s u r e s s u g g e s t e d b y the questions, J e f f e r s o n himself r e a l ized that the presence o f C o n g r e s s w a s not so essential a t that time. 2

H e j o i n e d in the u n a n i m o u s a n s w e r

a g a i n s t calling C o n g r e s s at once, again

officially presented

August.

for

3

advising

a n d the question w a s not

decision

until

the

first

of

A t t h a t t i m e it w a s considered i m p o r t a n t e n o u g h

t o require

f o r m a l opinions f r o m all the m e m b e r s o f

the

cabinet. 4 The

remaining

questions w h i c h w e r e p r o p o s e d

by

the

P r e s i d e n t ° a n d w h i c h h a v e not been d i s c u s s e d a b o v e deal 1

F., W. of J., I, 255, Anas,

Aug. 3, 1793.

* Ibid., V I , 277-279, Jefferson to Madison, June 2, 1793. ® Ibid., I, 227, Anas, April 18, 1793. " Written M a y 6." This was not included in the written opinion delivered to the President by the cabinet on April 19th (F., W. of J., V I , 2 1 7 ) , but it must have been decided upon soon thereafter and certainly before April 28th. Ibid., V I , 218-19, Jefferson to the President. 4

These opinions are printed in H., W. of H., I V , 455-462.

' The eleventh question in the list is interesting chiefly because of what it does not include. It is the only question that asks what specific acts of the belligerents are to be permitted in the ports of the United States It is merely the indication of the beginning of dozens of such questions that were to come later. The Secretaries showed great vagueness on this point. They either passed over the question or answered it ambiguously. These answers can best be discussed later in connection with the more extensive questions on this phase of neutrality. It should be stated here, however, that when Jefferson said " The 4th page of the inclosed contains my answer to the n t h " (F., IV. of J., V I , 218-19, Jefferson to Washington, April 28, 1793) he referred to those two paragraphs numbered 5 and 6 which are now on page 223 of F., W. of J., V I , (1cf. T. J . P., Nos. 14664-14674)-

THE

PRELIMINARY

QUESTIONS

AND

GENET

69

with the reception of a minister from France. These three questions 1 were, if subordinate to any, second in importance only to those that dealt with the interpretation of the treaties. T h e two groups of questions were in fact closely connected. According to Hamilton's proposal, the w a y in which the minister was received would indicate the interpretation which the United States intended to give to the treaties. T h e Secretary of the Treasury advised that the reception of the expected minister from the Republic of France should be qualified by a previous declaration: 2 That the Government of the United States uniformly entertaining cordial wishes for the happiness of the French nation, and disposed to maintain amicable communication and intercourse, uninterrupted by political vicissitudes, does not hesitate to receive him in the character which his credentials impart; yet considering the origin, course and circumstances of the relations originally contracted between the two countries, and the existing position of the affairs of France, it is deemed advisable and proper, on the part of the United States, to reserve to future consideration and discussion the question—whether the operation of the treaties by which these relations were formed, ought not to be deemed temporarily and provisionally suspended ; and under this impression, it is thought due to a spirit of candid and friendly procedure to apprise him beforehand of the intention to reserve that question, lest silence on the point should occasion misconstruction. It will be seen from this opinion that even Hamilton answered the second question in the affirmative.

T h e cabinet

had decided that the minister should be received and had announced its decision to the President in the unanimous 1 That is, questions, 2, 3, and 12, the twelfth being of less immediate importance. 4

L., W. of H., I V , 75, answer to questions, April, 1793.

AMERICAN

70

NEUTRALITY

IN

1793

opinion of April 19. 1 In fact it could scarcely have done otherwise. Before news of the declaration of war had reached America the question had already been decided affirmatively, not only by the President 2 and Secretary of State, 3 but also in the mind of the Secretary of the Treasury. 4 The American minister to France had been given instruction authorizing him, in effect, to communicate such a decision to the government of the Republic. 0 The news of the declaration of war came before the minister had actually been received, and, while there was still a possibility of reversing the decision. Hamilton seems to have been the only one who considered doing so.6 This did not meet the approval even of his closest friends, J a y 7 and King. 8 The Secretary of the Treasury evidently soon gave up all hope of refusing completely to receive the expected minister,9 even if he had ever seriously considered such a course. The impropriety of the step was so great that Jefferson doubtless included it in those propositions of Hamilton's " which would astonish Mr. Pitt himself with their boldness." 10 1

F., W. of J., V I , 2 1 7 : Cabinet opinion, April 19, 1793.

2 Marshall, Life of Washington, 3

F., W. of J., V I , 199-201.

V, 403.

Jefferson to G. Morris, Mar. 12, 1793.

* L., IV. of H., V I I I , 297-98, Hamilton to Jay, April 9, 1793; B. S. P., Hammond to Grenville, No. 11, 2nd April, 1793. 5

F., W. of J., V I , 199-201, Jefferson to G. Morris, Mar. 12, 1793.

* Hamilton to Jay, April 9, 1793, L., W. of H., op. cit.-, c f . F., W. of J., I, 224, 226-7, Anas, Mar. 30, April 18, 1793. 7 Johnston, Correspondence .. .of Jay, III, 473-476; c f . Jay to Hamilton, April 11, 1793, with Jay's draft of the proclamation. 8

H., IV. of H., V , 553-554, Rufus King to Hamilton, April 24, 1793

* F., IV. of J., I, 226-7, Anas, April 18, 1793. Hamilton agreed to receive the minister " at the same time expressing his great regret that any incident had happened, which should oblige us to recognize the government." C f . F., IV. of J., V I , 223, Jefferson to Washington, April 28, J 79310 Jefferson to James Monroe, May 5, 1793, Monroe Papers, N. Y . P. L.

THE

PRELIMINARY

QUESTIONS

AND

GENET

71

The d e l a y 1 in the arrival of the new minister from France also left another possibility, and one which was more possible. This was to qualify his reception in some such manner as that suggested by Hamilton in the previous quotation. This appealed to Hamilton as a necessary and practical course as soon as he heard that war had been declared. He asked, in his first letter to Jay, 2 if it would be perfectly neutral to receive the minister from the republic and refuse one from the expected regent; 3 would the unqualified reception of the minister irrevocably commit us on the treaties; France was in a very uncertain condition—would it not be better to receive him with qualifications, reserving questions as to the applicability of the treaties. " These," said he, " are questions which require our utmost wisdom. . . . Imprudent things have already been done which render it proportionally important that every succeeding step should be well considered." J a y 4 and King 5 both advised a qualified reception and this was indicative of the potential attitude of an important element in the American population.® In his doubts concerning the possibility of having been 1 This delay was caused chiefly by long postponement of the departure from France, but partly by contrary winds after the start. Genet to Minister of Foreign Affairs, 16 April, 1793, C. of G., pp. 211-13. 1

L „ W. of H., V I I I , 297-8, Hamilton to Jay, April 9, 1793.

' Few people besides Hamilton had any doubts on this point. Jay seemed to think it was a simple question of recognizing no regent until he was regent de facto. Jay to Hamilton, April 11, 1793, Johnston, op. cit., I V , 473-474. Jefferson answered this question in much the same way in his paper to the President. F., IV. of J., V I , 218-19. Hamilton gave no written answer to the twelfth question. For Washington's attitude see F., W. of IV., XII, 285-286, Washington to Hamilton, 5 May, 1793. 4

Jay to Hamilton, April 11, 1793, Johnston, op. cit.

5

Rufus King to Hamilton, April 24, 1793; H., IV. of H., op. cit.

' See also Ford, Writings

of John Quincy Adams

( 1 9 1 3 ) , I, 135 et seq.

72

AMERICAN

NEUTRALITY

IN

1799

immediately received if he had gone directly to Philadelphia, Genet was probably more nearly correct than the French Minister of Foreign Affairs seemed to think. Genet told the latter that he (Genet) probably would not have been received immediately had he gone directly to Philadelphia.1 O f course, Genet was exaggerating as usual when he wrote this letter home, but a qualified reception would have had much the same effect upon this minister as a refusal; and once England had entered the war, the uppermost thoughts in the minds of Jay, King and Hamilton were concerned with the necessity of evading the obligations of the treaties as quickly as possible.2 Jefferson also wished to protect the interests of the United States, even to the extent of avoiding the obligations under the treaties, if necessary, 3 but he disapproved of connecting the reception of the minister with any reservation on the treaties, even if it should be decided to make such a reservation. In the latter case he thought the suspension should be a separate act. 4 He denied that the reception of the minister had anything to do with the applicability of the 1 Cf. Genet to French Minister of Foreign Affairs, 19 June, 1 7 9 3 ( C . of G., p. 2 1 7 ) , and Minister of Foreign Affairs to Genet, 30, July, 1793 (C. of G., pp. 2 2 8 - 2 3 1 ) . The Minister cited the assurance from the American Government and rebuked Genet for making such an assertion. 2 Henry Cabot Lodge says, in a note in his edition of Hamilton's Works ( I V , p. 7 4 ) , that this answer to Washington's question " c a r r i e s the principle of our neutrality a step further and is most important. Hamilton wished to sever as quietly as possible all connection with France, so that we might be free from alliances of any sort which were likely to go beyond mere comity and commercial reciprocity." The important point is whether Genet and the French Government would have permitted the severance to be " quiet" if it had been undertaken in the manner suggested by Hamilton.

' This is clearly shown in his answers to the questions on the applicability of the treaties. F., IV. of J., V I , 2 2 1 . 4

F., IV. of J., V I , 223, 224, 2 3 1 , Answers to the questions.

THE PRELIMINARY

QUESTIONS

AND

GENET

73

treaties, and that such a qualified reception was necessary to protect the interest of the United States. In support of his contention that there was no logical connection between the reception of the minister and the treaties, Jefferson again advanced the argument that the treaties were already in operation 1 between the United States and the Republic of France. T h i s was based upon the fact that they were not void but only voidable, 2 that they had never been renounced by the United States and so the recognition of the Republic by the United States 3 made the treaties effective between the two governments. I f , then, the treaties were already in operation the unqualified reception of the minister could have " no effect either to continue or to annul them," 4 certainly not to annul if unqualified, and as certainly not to continue since they would continue in effect either way. In addition to this absence of external effect, there was the fact that the treaties did not even mention the sending of ministers, since this was done under the common usage of nations. 3 W h e r e was there any justification for connecting the reception of the minister and the qualification of the treaties? N o t only was there no justification for such a procedure, but there were positive argu1

Ibid., VI, 224, Answers to the questions.

This was acknowledged by Hamilton, but Jefferson did not always remember that he did so. Cf. F., IV. of J., I, 226-7, and ibid., V I , 224. Some misunderstanding of Hamilton's views still exists (Julius Goebel, The Recognition Policy of The U. S., pp. 97-115)• The passage in Hamilton's answers to the President is capable of misinterpretation (L., IV. of H., IV, 82), but its true meaning is clear when read in connection with his other contemporaneous expressions (Hamilton to Jay, April 9, 1793, op. cit.). 1

s There is no doubt but that the United States had already given their minister to France instruction more than ample to authorize him to extend such recognition, F., IV. of J., V I , 189-190.

' F., IV. of }., VI, 224, 231, Answers to the questions. 5

F., W. of J., V I , 224, Answers to the questions.

AMERICAN

74

ments against it.

NEUTRALITY

IN 179S

T h e connecting of the reception of Genet

and the qualification o f the treaties would result in a " curious compound " ; the advocates of the H a m i l t o n i a n theory were apparently ready " to admit and deny the same thing."

1

T o receive the minister w a s to admit the legitimacy of the French Republic. legitimacy.

T o renounce the treaties w a s to deny its

Jefferson considered the connection of the t w o

an impossibility.

Hamilton,

however,

measures " different and separable though included in the same act.

thought

the

f r o m each other,"

two 2

al-

T h e r e f o r e , the qualifica-

tion of the treaties would not effect the reception of the minister, as such.

T h e r e w a s much weight in this positive

argument of Jefferson's on the impossibility of j o i n i n g the two.

H e w a s probably correct, but if w e accept the conten-

tion of Hamilton that it w a s permissible, w h a t then are his arguments f o r so connecting the t w o ? Hamilton felt that if the U n i t e d States did not q u a l i f y the reception of the minister, Europe might look upon this nation as an ally of France, and that A m e r i c a might be drawn into the conflict. 3

It is true that in the past the

recognition of a new government had o f t e n been followed by participation in the w a r that was being w a g e d by it to establish itself.

Jefferson, however, had an entirely different idea

o f the meaning of recognition.

T o him it meant no more

than acknowledgment that that government actually exercised its authority over a given territory. 4

It

indicated

' Ibid. ' L., W. of H., IV, 99, Answers to the President's questions. ' L., W. of H., IV, 95, 98, 99 and passim. * Hamilton's proposed qualification the position of the act of recognition with his ideas of the consent of the tion (see Anas, Dec. 30, 1792, F., IV. place as little importance as possible

Answers to the questions.

clashed with Jefferson's theory of in international law. To Jefferson governed and the right of revoluof J., I, 214), the objective was to on the act of recognition, a mere

THE PRELIMINARY

QUESTIONS

AND

GENET

nothing as to participation. 1 B y pursuing a truly neutral course 2 which would give no reason to suspect the United States, Jefferson intended to avert the possibility of Europe's misunderstanding the unqualified reception of the minister; and after the proclamation had been issued he doubtless felt that it would be an additional guard against this misunderstanding 3 and render the qualification still more useless. There remained only Hamilton's argument that if the minister was received unqualifiedly the operation of the treaties would be acknowledged. This " would preclude a future renunciation," 4 and Hamilton called attention to the fact that even Jefferson acknowledged the probable necessity of such a renunciation in the future. 0 The weakness of this point was acknowledged. Jefferson, as we have seen, denied categorically that the reception of the minister would have any effect either to continue or to annul the treaties, and Hamilton himself, in another portion of his paper, acknowledged that treaties might always be renounced because of the appearance of extreme and unusual danger. 8 meaning that by the act the recognizing government only acknowledged a de facto situation, with no idea of participation and no obligation against recognizing another government the next month if it was actually in possession of the jurisdiction. This would make recognition less important and more readily given and would permit successful revolutions more often when they were needed. To accept the qualification proposed by Hamilton would be to acknowledge that recognition might be a forerunner of intended participation. This would give a vast importance to the act and so hamper the recognition of new governments. Jefferson then had theoretical as well as practical reasons for opposing the qualification. ' F., W. of J., VI, 224, Answers to the questions. F., W. of J., VII, 113, Jefferson to Dr. Edwards, Jan. 22, 1797, ibid., "VI, 259-262, Jefferson to Madison, May 19, 1793. 'Ibid., VI, 346-350, Jefferson to Monroe, July 14, 1793. 4 L., IV. of H., IV, 90, Answers to the questions. 5 F., U\ of J., VI, 224, 231, Answers to the questions. * L., IV. of H., IV, 93, Answers to the questions. 1

76

AMERICAN

NEUTRALITY

IN 179S

A pursuance of the arguments outlined above led to the conviction that if a qualification of the treaties was advisable, there was no necessity of connecting it with the reception of the minister; that there was no advantage in so doing except that of seizing upon an outstanding event as furnishing an opportunity for publishing such an announcement; that not only was there no justification for so using the opportunity, but that there were positive reasons against such a connection. Washington decided that the expected minister from the French Republic should be received without any qualifications.1 We are not permitted to know the relative influence which the various arguments had in determining this decision; whether it was due entirely to a conviction that a suspension of the treaties was unwise, or whether it was due partly to a persuasion that there was no reason for joining such an announcement to the reception of a minister, and this being the case, that the announcement could well await the development of events.2 Whatever reasons may have appealed to the President, it is clear that he accepted the position of the Secretary of State and rejected the advice of the Secretary of the Treasury. Once again it was Jefferson who was responsible for an important decision affecting the neutrality of the United States. Its importance cannot be denied. Had the minister not been received, or had his reception been qualified, it is evident 1

C. of G., p. 214, Genet to Minister of Foreign Affairs, May 18, 1793; F., W. of J., VI, 299, Jefferson to G. Morris, June 13, 1793; L., W. of H., IV, 227, No Jacobin, No. V. 2 The minister having been received unqualifiedly, events did not immediately demand such a suspension of the treaties by the United States. They continued to furnish cause for worry but no official action was taken until the treaties were " annulled " by an act of Congress, July 7, 1798, which was effectively recognized at the time of the ratification of the Convention of 1800 between the two nations (Treaties and Conventions, pp. 1232-1333).

THE PRELIMINARY

QUESTIONS

AND

GENET

that the relations between the United States and France might have been much different during the rest of this year, and the remainder of Washington's administration. The members of the administration had scarcely reached their conclusions on these thirteen preliminary questions before events demonstrated to them that they were only preliminary; that their searchings through dusty volumes on international law, that their headaches and sleepless nights of the past few weeks were only samples of what lay before them in the many months to come. There was no need for Hamilton or for anyone laboriously to assemble the additional queries. They presented themselves from all parts of the country in such close succession that two were accumulating for each one that was being answered. So great had the accumulation become within three months that, as we shall see, the Justices of the Supreme Court could not appreciate the honor of being requested to furnish solutions for twenty-nine compound and carefully worded questions. The problems raised by the presence of Citizen Edmond Charles Genet appeared in the van of these additional questions, which demanded solutions if America was to maintain a true neutrality. Citizen Genet was immediately recognized as constituting one of the more important of these questions, and eventually as the most important of them all. This is the place neither for a biography of Genet, nor a history of his mission to the United States, but if he was not at the bottom of most of the violations of American neutrality in 1793. the exceptions are due to no reluctance on his part. 1 1

Meade Minnigerode in Jefferson, Friend of France (N. Y., 1928), takes a different attitude toward Genet. There is perhaps a need for such works as this but let it be distinctly understood that this is not intended by Minnigerode as an impartial study. He himself states (p. 348) that it is not such; that its purpose is rather to present Genet in the best possible light. All that was necessary was to misinterpret the obligations of the United States under the Franco-American treaties as

AMERICAN

78

NEUTRALITY

IN 179S

H i s name must frequently appear in any study of the development which our neutrality policy underwent during that year.

Genet's predecessor as French minister to the United

States, Jean de Ternant, had been appointed during the first year of the French Revolution.

A f t e r the changes in the

French government in the fall of 1792 it was decided to replace him. 1 H e had merited and had w o n the approval of President Washington, 2 but his attitude toward the new government in France was not beyond question. 3

A s the condition of

the k i n g was becoming more critical it w a s probably thought best to replace Ternant by some man w h o had more recently been subject to closer surveillance.

T h e man decided upon

had recently been forced f r o m his post as Charge

d'affaires

at St. Peteisburg by the unfriendly attitude of

Russia

t o w a r d the developments in France, and b y his o w n very evident Republican sentiments. 4

These same

sentiments,

and especially the expressions of them in his official dispatches f r o m Russia, were excellent recommendations to the new rulers of France.

T h e y soon decided to appoint Genet

as minister to Holland, but later decided to avail themselves of such an avowed Republican in the more distant post at Philadelphia.

T h i s appointment did not meet with the un-

Minnigerode does all through his volume (i.e., pp. 207, 208, 229). An excellent case can easily be built up for Genet based on this one false assumption. See chapter I V of this study for definite proof that this is a misinterpretation of the treaties by Minnigerode. 1 American Historical Association Report, 1903, II, 43, The Correspondence of Ternant. F., IV. of J., I, 217, Anas, Feb. 20, 1793.

* F., IV. of IV., XII, 290, Washington to Ternant, [23] May, 1793. ' F., IV. of J., V I , 192-3, 238-40, Jefferson to Madison, March, 1793; Jefferson to Monroe, May 5, 1793; ibid., V I , 233-4, Jefferson to Ternant, April 30, 1793, note on rough draft of this letter. 4 G. C. Genet, Washington, Jefferson and "Citizen" Genet ( N . Y., 1899), pp. 1-18; for Genet's past services, cf. with A. S. P. F. R., I, 183, Genet to Jefferson, Nov. 15, 1793.

THE PRELIMINARY

QUESTIONS

AND

GENET

qualified 1 approval of Gouverneur Morris, the American minister to France, who already knew that he himself was persona non grata to the new French government.2 Morris thought Genet had " more of genius than ability " and said prophetically, " he will talk so much as to furnish sufficient matter for putting him on one side of his object, should that be convenient." 8 Genet received his instructions in December, 1792,4 and the " supplement to his instructions" during the next month.8 He sailed about the middle of February, 1793.6 Reasonable security from capture by the English was obtained by sailing in the heavily armed French frigate Embuscade, but there was no assurance in those days of escaping the perils and delays of the ocean. As a result, said Genet, the Embuscade first touched the American coast at Charleston, S. C. instead of at Philadelphia.7 The envoy felt no doubt that his superior " would be surprised " at this,8 and it was not only the Minister of Foreign Affairs who was surprised. Various reasons have been assigned for Genet's landing at a point so remote from the seat of government, and yet which was no nearer France than was Philadelphia 9 — contrary winds,10 the avoidance of a more 1

A. C. Morris, Diary and Letters of G. Morris, II, 25. * Ibid., I, 603, Nov. 2, 1792. * A. C. Morris, Diary and Letters of G. Morris, II, 25-6. Morris was not in sympathy with the new government in France (ibid., II, 53), and might have been prejudiced against any man of Genet's sentiments, but his characterization of Genet is very accurate. 4

C. of G., pp. 201-207. Ibid., pp. 207-211. Cf. Dewitt, Thomas Jefferson, p. 515, reprint of decree. * C. of G., p. 212, Genet to Minister of Foreign Affairs, 16 April, 1793. ' Ibid. "Ibid., p. 211. ' F., W. of }., VI, 377, Jefferson to G. Morris, Aug. 16, 1793. 10 C. of G„ p. 212; H., Life of H., V, 247; G. C. Genet, op. cit. 5

8o

AMERICAN

NEUTRALITY

IN J79S

boisterous navigation to a northern harbor, 1 an avoidance of the greater risk of falling in with the enemy's vessels, 2 the desire to transmit instructions for ulterior objects in the shortest time to the French West Indies, 3 and the desire to commence his activities in a friendly port, f a r from the restraint of the federal government. 4 Genet explains it only by giving the first and hinting at the third reason." Many impartial writers have been willing to accept the contrary winds as the cause.* Others are more suspicious. There can be, of course, no proof that either is incorrect. Genet's subsequent conduct furnished grounds f o r the suspicions upon which the last assigned motive is founded. Instead of hastening on to the seat of the government and presenting his credentials as a minister plenipotentiary might have been expected to do, Genet remained at Charleston eleven days 7 and then proceeded by land, sending the Embuscade along the coast to Philadelphia, where it arrived several days ahead of the minister.8 This occasioned still more surprise, especially on the part of those not likely to 1

H, Life of H„ V , 247.

* C. of G., p. 2 1 3 ; H., Life of H., V, 247. 3 4

H., Life of H., V, 247. Ibid.

' C. of G., pp. 211-13, Genet to Minister of Foreign Affairs, 16 April,

17936

Channing, Hist, of U. S., IV, 129; Hill, Leading p. 61. ' Amer. Hist. Assoc. Report, Foreign Affairs, 10 May, 1793.

American

Treaties,

1903, II, 198, Ternant to Minister of

" F., W. of J., V I , 376, Jefferson to G. Morris, Aug. 16, 1793; F., W. of J., V I , 238-240, Jefferson to James Monroe, May 5, 1793. L., W. of H., V I I I , 300, Hamilton to , May 1793. The Embuscade saluted Genet on his arrival at Philadelphia; McMaster, II, 100-101, quotes General Advertiser, May 16, 1793.

THE

PRELIMINARY

QUESTIONS

AND

GENET

8l

be too friendly to France anyway. 1 Genet was by no means idle during his stay at Charleston, and on his journey northward. H e had been charged, in his instructions, with several important enterprises, which he was to undertake in America, if and when conditions were opportune. H e had also been warned that " the cold character of the Americans only warms by degrees." 2 His reception at Charleston convinced him that this last statement did not apply in his case, and that the time was opportune to execute some of the enterprises intrusted to him. In spite of the fact that aristocrats and partisans of England were numerous in that city, according to Genet an immense crowd met him at the river and he was immediately received by the governor, the senators, and the representatives of the people.8 The true friends of liberty were anxious promptly to establish that fraternity which should exist between the two nations and a complete confidence was immediately established between Genet and Governor Moultrie. T h i s friendship with the chief executive was very valuable to Genet. " This venerable veteran and sincere friend of our revolution," said the minister, " grants me all the favors in his power." 4 Governor Moultrie aided in securing the provisions which Genet was to purchase and send to France and her colonies; he promised to permit privateers to arm against England, 6 and he " has furnished me with useful information, which I have put to profit, on other parts of my instructions." 8 Then Genet convinced Moultrie that the neutrality of the United States demanded that the forts guarding the harbor should be in a 1

L „ IV. of H„ I V , 226, No Jacobin, No. V .

2

C. of G., p. 21511, Lebrun to Genet, Feb. 24, 1793.

® C. of G., p. 212, Genet to Minister of Foreign Affairs, 16 April, 1793. 4

Ibid.

F., IV. of J., I, 248, Anas, July 26, 1793; see also C. of G., p. 207211, Supplement to Instructions. 5

* C. of G., p. 212, op. cit.

82

AMERICAN

NEUTRALITY

IN 179S

state of defense, and the Governor promised to see that they were. Not content with mere promises, the envoy proceeded to require their fulfilment. H e was soon able to report that he had already armed and had on the sea four privateers 1 — but more of these later. It is first necessary f o r us to get Genet to Philadelphia before we discuss these acts and most friends would have advised him that it was first necessary for him to go there before effecting them. Once at Charleston, Genet could easily have gone on to Philadelphia by sea, and have reached there before the first of May. He says he first planned to do this, but that he had decided to finish his journey by land in spite of the difficulties of this route since " General Washington is actually in his beautiful retreat at Mount Vernon . . . and I hope to give him, within a few days the letters which I carry to him." 2 Others have assigned different reasons for this journey through the friendly South. Genet was accused of seeking popular support to second his official negotiations with the government.® If this was his purpose 4 he certainly succeeded in attracting the approval of the people. His journey to Philadelphia was one long ovation. Public receptions, addresses or dinners, or all of these, greeted him in practically 5 every town through which he passed.8 So 1

The Republican, the Sans Culotte, the Anti-George, and the Patriote or Citizen Genet. C. of G., p. 213, Genet to Minister of Foreign Affairs, 16 April, 1793. * C. of G., p. 213, Genet to Minister of Foreign Affairs, 16 April, 1793. Genet also mentions in this letter, two English frigates cruising, he understands, off the coasts of New York and Pennsylvania to intercept him. 8 L., IV. of H„ IV, 226, No Jacobin, No. V. * C. of G., p. 217, Genet to Minister of Foreign Affairs, 19 June, 1793. s In a very few towns, such as Alexandria " the fiscal party... was an overmatch for those who wished to testify the American sentiment," but such other towns as " Georgetown it is said repaired the omission," Madison to Jefferson, May 27, 1793, Hunt, W. of Madison, VI, 130. * McMaster, op. cit., II, 100.

THE

PRELIMINARY

QUESTIONS

AND

GENET

83

pleasant were the receptions that twenty-eight days were spent on a journey which Genet had expected to make in two weeks 1 and which Ternant had expected to take three.2 The length of his journey is more significant when it is remembered that after learning of the proclamation of neutrality at Richmond 8 he hurried on so rapidly that the intended public dinner at Fredericksburg was cancelled.4 At last Genet reached Philadelphia on May i6,® five weeks and three days after he had landed at Charleston.8 Philadelphia had been preparing for nearly a month to receive him.7 He considered his entry into this city " a triumph for Liberty" and said, " the true Americans are overwhelmed with j o y . " 8 Extensive preparations had been made to meet him at Gray's Ferry and to escort him into the city with all honors. He escaped this by " arriving in town with the letters which brought information that he was on the road." 9 The reception that was accorded him, however, 1

C. of G., p. 213, Genet to Minister of Foreign Affairs, April 16, 1793.

* Amer. Hist. Assoc. Report, 1903, II, 195. Foreign Affairs, 20 April, 1793.

Ternant to Minister of

* Parton, Life of Jefferson, p. 477. 4 Hunt, Writings of Madison, V I , 130, Madison to Jefferson, May 27, 17934

Ternant to Minister of Foreign Affairs, 19 May, 1793, Amer. Hist. Assoc. Report, 1903, II, 199. National Gazette, Sat., May 18, 1793. 4 Genet had arrived at Charleston, on the eighth of April, Genet to Minister of Foreign Affairs, April 16, 1793, C. of G., p. 212. ' Hazen, Cont. American Opinion of the French Rev., p. 176. 8

C. of G., pp. 214-215, Genet to Minister of Foreign Affairs, 18 May,

1793-

* Jefferson to James Madison, May 19, 1793 (F., W. of J., V I , 259262) ; McMaster (op. cit., II, 101), relying upon the contemporary newspapers describes the reception by " thousands of citizens " at Gray's Ferry. The General Advertiser evidently wrote the story up in advance and failed to change it after the miscarriage of plans. G. C. Genet in his Washington, Jefferson, and " Citizen" Genet corrects McMaster and

84

AMERICAN

NEUTRALITY

IN 179S

on the succeeding day, and throughout the following weeks entitles Philadelphia to pre-eminent rank among the cities that exerted themselves to honor the minister plenipotentiary with popular receptions.1 Such was the way in which the people received Genet.2 The moment had now come for his one and only official reception in America, more important than all the popular recognitions combined. How did he fare when he first called upon the dignified Washington? W e have reviewed above the controversy waged within the cabinet over the manner of recognizing this minister, and the decision to grant him an unqualified reception. A f t e r this decision, Washington could only await Genet's arrival and decide what degree of personal and official warmth was to characterize this reception. Although the final decision on his reception was not reached until the first of May, the minister had been expected for several months.8 Washington had gives the true account but without any reference to his sources and the generally biased character of his work detracts from the reliance that otherwise might have been placed upon this passage. His accuracy can be verified in this instance, however, by the above letter from Jefferson to Madison ( M a y 19), and by a letter from Hamilton to , May, 1793 (L., W. of H., V I I I , 300-303) ; the latter is the most extensive contemporary account of the reception that this author has found. 1 Good secondary accounts of Genet's reception at Philadelphia may be found in Scharf and Westcott, History of Philadelphia, I, 476 et seq. (Philadelphia, 1884) and in Citisen Genet's Visit to Philadelphia by Henry Budd (Philadelphia, 1919, 67 pp.). 1 These popular receptions were continued by the cities farther north a month or so later when Genet made a trip to New Y o r k (Hazen, Cont. Amer. Opinion of French Rev., p. 183).

' One of the earliest references by members of the cabinet to the appointment of Genet is in the Anas for February 20, 1793 (F., IV. of J., I, 2 1 7 ) ; see also E. Randolph to Washington, February 22, 1793 (G. W . P., No. 34493), where Randolph advises awaiting the arrival of Genet before taking action on the recall of Morris; see also Jefferson to the President, March 21, 1793 (F., W. of J., V I , 204) ; Anas, March 30, 1793 (F.,

THE

PRELIMINARY

QUESTIONS

AND

GENET

85

early decided that though M r . Genet should be received, it should not be " w i t h too much w a r m t h or cordiality, so only as to s a t i s f y h i m . "

1

J e f f e r s o n could not at first understand

this, but later decided that it w a s " a small sacrifice to the opinion of H a m i l t o n . "

2

I f W a s h i n g t o n on M a r c h 3 0 w a s

willing so to accommodate Hamilton, w e can easily imagine that his attitude w a s at least no more friendly t o w a r d Genet a f t e r his delayed arrival and a f t e r news of his activities at Charleston began to come through.

Genet, then, w a s not

fated to receive a v e r y cordial welcome at his first private audience

3

with W a s h i n g t o n , whose dignity could be freez-

ing upon an occasion which demanded it.

Four

months

later Genet realized that this reception had been v e r y cool. I t is more difficult to tell w h a t his immediate opinion of it W. of J., I, 224) ; Jefferson to President, April 7, 1793 (F., W. of J., VI, 212), " we have no further news of G e n e t " ; Jefferson to T. Pinckney, April 12, 1793 (T. J. P., Nos. 14526-14528), " T h e letter you enclose to Mr. Genet shall be taken care of but as yet we have not heard of his embarkation;" Ternant to Minister of Foreign Affairs, 20 April, 1793 (Amer. Hist. Assoc. Report, 1903, II, 195). A boat from Charleston brings news of Citizen Genet's arrival in that city; this is probably the earliest news of the event to reach Philadelphia; Jefferson to G. Morris, Aug. 16, 1793 (F., W. of J., VI, 376). " W e received through the channel of the newspapers [April 22nd] the first intimation that Mr. Genet had arrived at Charleston; " Jefferson to Madison, April 28, 1793 (F., IV. of J., VI, 232), " we expect Mr. Genet here within a few days; " Jefferson to Madison, 12 May, 1793 (F., W. of I., VI, 250-252), "Genest is not yet arrived tho' hourly expected." 1

Anas, ' Ibid., Jefferson from the

March 30, 1793. F-. W. of J., I, 224. If so this would correspond to the sacrifice to the opinion of which was made when the word " neutrality" was omitted proclamation.

' Genet's credentials were presented to the President on May 17 (Ternant to Minister of Foreign Affairs, 19 May, 1793, Amer. Hist. Assoc. Report, 1903, II, 199; Jefferson to O. Morris, June 13, 1793, F., W. of J., VI, 299-301), and the minister was received immediately (Jefferson to G. Morris, Aug. 16, 1793, F., W. of ]., VI, 377). ( C f . F., IV. of J., I, 248, Anas, July 26, 1793, and McMaster, op. cit., II, 101).

86

AMERICAN

NEUTRALITY

IN 1793

may have been. He seems not to have expressed himself at the time. 1 The description of this first audience which the minister gives in his letter of September 18, 1793 2 is generally accepted as expressive of the impression the event made on him. It should be remembered, however, that this letter was written immediately after the envoy had been notified that his recall had been requested. In it he complains that the President: Did not speak to me at my first audience, but of the friendship of the United States toward France, without saying a word to me without enouncing a single sentiment on our revolution while all the towns from Charleston to Philadelphia, had made the air resound with their most ardent wishes for the French republic. . . . That the first magistrate of a free people decorated his parlor with certain medallions of Capet and his family, which served at Paris as signals of rallying.3 Genet had at last come to realize that the mere fact that the people made the air resound in his honor was not sufficient recommendation to win for him the support of Washington. A s we shall see, he did not yet realize, in September, that the acclaim of a vociferous element of the population was insufficient to enable him to dispense with the support of the constitutional government of the United States.* 1

Genet's letters contain many criticisms of Washington's general conduct which was thwarting many of the minister's plans, but none of these before September apply to the nature of the first audience, 1. e., C. of G., p. 216, 217, G. to Minister of Foreign Affairs, 31 May, 19 June, 1793. 1 Geneit to Jefferson, Sept. 18, 1793, A. S. P. F. R., I, 172-174. Jefferson had notified Genet of his recall on Sept. 15, F., W. of J., VI, 429430.

Cf. this with a similar description in Genet to Minister of Foreign Affairs, 7 Oct., 1793, No. 13A, C. of G„ p. 245. 4 By October Genet was talking of giving " a great acceleration to the necessary revolution that is preparing here." Genet to Minister of Foreign Affairs, Oct. 7, 1793, No. 13A, C. of G., p. 248. 3

THE PRELIMINARY

QUESTIONS

AND GENET

87

Still less did he realize, in M a y , that it was hopeless f o r him to try to subvert this government. It is difficult f o r us, who see this same constitution over a century later, the oldest in existence and still regulating one of the most stable of governments, to realize that a foreign minister could ever have hoped to subvert it. M o r e careful observers than the French Minister, however, felt in 1 7 9 3 that the government of the United States was passing through a crisis and that its stability and permanence were by no means assured. B e f o r e news of the declaration of war had reached America and before the situation of the United States had become as serious as it later did, the British minister to the United States recorded his carefully prepared estimate of the government to which he was accredited. Hammond was not such an erratic genius as Genet, but is reported to have been a man of foresight and somewhat more than ordinary ability. 1 H e wrote to G r e n v i l l e : 2 I shall briefly observe that from the foregoing statement of facts it appears—that the constitution of this country experienced obstacles in its formation, which its progress has not been able to remove—that it is liable to dangers from sources of internal disquietude and from the influence of external causes. . . . I shall not pretend to insinuate that the government is exposed to the danger of immediate or absolute destruction . . . [but] it is in a moment of crisis, and that a very short period will be requisite to ascertain its fate. It is hard to estimate just what danger Washington anticipated in M a y f r o m Genet. 3 With his more accurate ' See estimate by W. C. Ford in F., W. of IV., X I I Hammond to Grenville, Mar. 7, 1793, No. 5, B. S. * From the account that Jefferson gives in the Anas (F., W. of J., I, 256-259), it seems that the President some apprehensions. 1

292-29311. P. for Aug. 6, 1793, did come to have

88

AMERICAN

NEUTRALITY

IN

1793

understanding of Jefferson and the Republican leaders, his confidence in their ultimate integrity, the President was probably not as worried as the more partisan Federalists. John Adams was sufficiently impressed by the " terrorism excited by Genet " that twenty years later he thought there were ten thousand people in the mob that was going to " drag Washington out of his house and effect a revolution in the government." 1 Hamilton at the time thought there was danger of a " combination growing up to control . . . measures with regard to foreign politics, at the expense of the peace of the country—perhaps at a still greater expense." 2 Even Jefferson realized that " a fair neutrality will prove a disagreeable pill to our friends, tho' necessary to keep out of the calamities of a war." 3 Could a fair neutrality be maintained in the face of such popular sympathy f o r the French Revolution * and such popular praise of an envoy who would not scruple to lead the people against their own government ? Jefferson, still wanting neutrality but not yet convinced that support of Genet would endanger it, recognized that " our constituents seeing that the government does not express their mind . . . are coming forward to express it themselves." e This was precisely what they were doing. Genet wrote home that " the voice of the 1 C. F. Adams, Work of John Adams Jefferson, 30 June, 1813.

(ed. of 1856), X , 47.

Adams to

* L., W. of H., V I I I , 300-303, Hamilton to . . . , May, 1793; c f . Jefferson's account of a speech made by Hamilton on this subject at a cabinet meeting. F., W. of J., I, 247, Anas, July 23, 1793. ' F., W. of J., V I , 232, Jefferson to Madison, April 28, 1793. * See also Hamilton, IV. of Monroe, I, 252-3, Monroe to Jefferson, May 8, 1793; Hunt, W. of Madison, V I , 133-4, Madison to Jefferson, June 17, 1793; F., W. of J., V I , 238-40, Jefferson to Monroe, May 5, 1793; National Gazette, May 4, 1793, article dated Richmond, April 24. 6

F., W. of J., V I , 259-262, Jefferson to James Madison, May 19, 1793.

9°

AMERICAN

NEUTRALITY

IN 1793

of the fate of Genet. Most of these queries could only be answered by Genet himself, and by his conduct in the numerous transactions in which his mission would involve him. These activities of his were, even before he reached Philadelphia, presenting pressing questions for settlement, both for Genet and for the administration. These pressing questions and others came in close succession and intermingled, but each must be taken up separately and pursued to its end before we can understand the fate that befell Genet, and the effect which his mission had upon the development of the American policy of neutrality.

THE PRELIMINARY

QUESTIONS

AND GENET

89

people continues to counteract the declaration of neutrality of President Washington." 1 Would Genet be able so to guide his own conduct as to reap the full benefit of these conditions? Could he use the voice of the people to counteract the proclamation, yet restrain his own acts to such a semblance of neutrality as to keep the support of Jefferson? Could he use his popular support as a prod for Hamilton and the English sympathizers, yet so judiciously as not to antagonize Washington? Truly it would take a rare diplomat to accomplish these things, but they were not impossible. Or would Genet, carried away by his own enthusiasm and blinded by the praise of the people, become exasperated at the restraint of the government, try to ignore it, or to lead the people to overthrow it? If he tried the latter, would he succeed? W a s the report of Hammond true, and was the attachment of the people to Genet and France strong enough to make this the crisis? Or, on the other hand, would Genet make a misstep which could be seized upon by his opponents to ruin him and his plans ? W e have not heard so much about these opponents and the people who did not go out to meet Genet, and greet him with cheers, but there were such persons. They were less vociferous than Genet's partisans, but Hamilton exerted his influence with them,2 and on the day the demonstration was made at Philadelphia in favor of Genet, three hundred of the principal merchants of that city assembled and presented an address to the President expressing their gratitude for the proclamation.8 Perhaps this was the true omen of what the coming months were to bring, and 1

C. of G., p. 216, Genet to Minister of Foreign Affairs, 31 May, 1793. Hamilton, Life of Hamilton, V, 252. s F., IV. of J., VI, 259-262, Jefferson to Madison, May 19, 1793; op. cit., p. 180; McMaster, op. cit., II, 112; C. of G., p. 217, Genet to Minister of Foreign Affairs, 19 June, 1793. 1

CHAPTER III T H E L I M I T OF AMERICAN TERRITORY

THE British minister, Hammond, after informing Grenville of the President's proclamation, added,1 " It has been an extremely fortunate circumstance that almost immediately after the appearance of this declaration of neutrality, events should have arisen which have brought the sincerity of it to a practical test." These events to which Hammond referred were the direct result of Genet's arrival at Charleston, and of his actions there. The news that the French minister had reached the United States came to Philadelphia while Randolph was drafting the proclamation.2 A week later Jefferson wrote to George Wythe, 3 " we understand that a French frigate has taken several English vessels off the Capes of Delaware, within two or three days after they left Philadelphia. We shall be a little emharassed occasionally till we feel ourselves firmly seated in the saddle of neutrality and the line of our neutrality is firmly understood . . . by the belligerent parties." * This and other similar cases gave rise to questions " equally delicate, difficult and disagreeable." 6 The French frigate, in 1 B. S. P., Hammond to Grenville, No. 14, May 17, 1793. Hammond continued to give an account of the Grange and the other prizes.

' Cf. Ternant to Minister of Foreign Affairs, 20 April, 1793, (Amer, Hist. Assoc. Report, 1903, II, 195), and Jefferson to G. Morris, Aug. 16, 1793, F., W. of ]., VI, 376. ' F., IV. of /., VI, 218, April 27, 1793. 4 Ibid., VI, 232, Jefferson to James Madison, April 28, 1793. 'Jefferson to G. Morris, June 13, 1793. F., IV. of /., VI, 299-301.

91

92

AMERICAN

NEUTRALITY

IN 179S

the incident mentioned by Jefferson w a s the

Embuscade,

and one of the prizes taken " off the Capes of D e l a w a r e " w a s an E n g l i s h merchant vessel called the Grange. case of the Grange easily settled.

The

w a s itself comparatively clear-cut and

It w a s , however, only the first of several

similar cases, most of w h i c h w e r e m o r e difficult to settle. T h e consideration and final solution of the questions arising out o f these cases led to the first enunciation of one of the most permanent details o f the neutrality policy of this count r y ; namely, the declaration of the maritime extent of the territory of the U n i t e d States. G«net had not been in Philadelphia a month before J e f ferson had explained to him his t w i n principles of neutrali t y — " that it is the right of ev?ry nation to prohibit acts of sovereignty f r o m being exercised b y any other within its limits; and the duty of a neutral nation to prohibit such as would injure one of the w a r r i n g p o w e r s . "

1

T h e emphasis

on the " duty " is the interesting feature of the Jeffersonian principles o f neutrality.

T h e w o r l d had o f t e n seen nations

interested in their neutral rights, but it had seldom seem them impartially emphasizing their o w n neutral duties.

It

is this extreme regard f o r the duties of neutrality that Canning praised so highly a f e w y e a r s later 2 and which has caused the conduct o f the U n i t e d States in 1793 to be a model until the present day.

Jefferson w a s also interested

in the neutral rights of the U n i t e d States, but he realized that the surest w a y of maintaining neutrality * w a s to convince the belligerents that this country w o u l d observe its 1 F., W. of J., V I , 282-3, Jefferson to Genet, June 5, 1793, see T. J. P., No. 15001. " Notes" by Jefferson showing the development of this phrase.

1 T . C. Hansard, The Parliamentary 16, 1823.

Debates.

N. S., VIII, 1056, April

« Cf. Jefferson to Ternant, May 15, 1793, F., W. of J., VI, 254-7.

THE LIMIT

OF AMERICAN

TERRITORY

duties insofar as possible. Fortunately, America was so far from the heat of the European conflict in 1793 that none of the warring powers found it convenient to attempt violation of this neutrality, except in ways which were open to prevention or adjustment by compensation. All neutral nations have not been so fortunate. It, of course, was advisable to prevent all the violations possible and thus avoid any dispute concerning the necessity of making compensation for failing in neutral duties. Any well-balanced study of American neutrality in 1793, recognizing this relative importance in the minds of Washington and his cabinet, must consider the struggle for neutral rights as of secondary importance and give first and major attention to the attempts of the United States to prevent such violations of its territory as would injure one of the warring powers. If a country is to prevent violations of its sovereignty it must first know the extent of its jurisdiction.1 Belligerents must not be allowed to engage in hostilities within its territory. In a naval war the maritime extent of this jurisdiction becomes very important. Since there was no universally accepted practice among nations on this point, it was more difficult for the United States to reach a decision in 1793. The case of the Grange led to an immediate decision on the extent of American jurisdiction over one portion of her littoral waters. The other similar cases eventually led to the formation of a general rule to apply to the coast as a whole. Although these cases also involved a rather simple decision it was postponed longer than that in the case of the Grange, probably partly because it was realized that any decision that might be reached on this point would not have such an immediate effect as would the de1

S e e Hamilton's discussion of this entire question in

2., L . , W.

of H.,

I V , 207-216.

No Jacobin,

No.

T h e r e is also a s u m m a r y of some points

in J e f f e r s o n to G . M o r r i s , A u g . 16, 1 7 9 3 , F . , W. of J.,

383-385.

AMERICAN

y 4

NEUTRALITY

IN 1798

cision of some of the other vital and more pressing questions. This very delay, however, enables us better to follow the various steps that were taken in attempting to reach a decision, and these steps more nearly represent the ideal procedure as ^contemplated by the members of the cabinet. The facts concerning the exact place of capture are usually rather difficult to arrive at in a dispute of this nature. It seems, however, that there was little question as to these facts in the case of the Grange. Jefferson at first used the phrase " off the Capes of Delaware " in his private letters.1 More specifically it seems that the Grange had left Philadelphia about the middle of April. 2 While the captain was trying to put to sea he heard that the French ship was coming and decided to remain near the coast.3 The Embuscade came into the bay shortly thereafter, on the 25th day of April,* and made a prize of the Grange while it was resting at anchor near the Buoy of Brown,6 that is " within the Bay of Delaware." 8 The only question was whether this was within the jurisdiction of the United States.7 The Grange was carried to Philadelphia and an1

Jefferson to George Wythe, April 27, 1793, F., W. of J., V I , 218; Jefferson to Monroe, May 5, 1793, ibid., V I , 238-40. * F . , IV. of J., V I , 232, Jefferson to Madison, April 28, 1793; cf. E. Randolph to Jefferson, May 14, 1793, A. S. P. F. R., I, 148-9. ' T. J . P., Nos. 14696-14704, Testimony, May 3, 1793. 4

F., W. of }., V I , 236-7, Jefferson to Ternant, May 3, 1793.

5

T . J . P., Nos. 14820 -21 (Hammond to Jefferson, May 2, 1793? bound with May 14-15), " Corroborated by the annexed affidavit of the pilot, and the affirmations of two respectable passengers on board of the Grange." * F., W. of ]., V I , 252-4, Jefferson to Hammond, May 15, 1793. T

Hamilton, Life of Hamilton, V , 258, says " Jefferson had artfully raised a doubt whether the Grange was captured within the waters of the United States." This seems to be very unjust to Jefferson. He merely voiced, as he had to do, a doubt which already existed. His advice to

THE

LIMIT

OF AMERICAN

TERRITORY

95

chored there as a prize according to the seventeenth article of the treaty of Amity and Commerce. The people were overjoyed at this visible evidence of French success.1 Even Jefferson joyfully told Eppes that he had missed seeing what had " highly gratified the great mass of Philadelphians." 2 But the full measure of this joy was soon to be destroyed. The National Gazette told its readers on May 15 that, " W e hear that Mr. Hammond, the British minister, has presented a memorial to our executive, relative to the capture of the English ship Grange." 8 The exultation of any members of the administration, who may have been gratified by the capture, was of even shorter duration. Hammond had submitted his memorial on the second of May * and the decision had been made by the time this issue of the National Gazette appeared.5 The British minister had assumed in his memorial that the capture had been made within the territory of the United States and had no doubt that the executive government would cause its immediate restoration.® The day after Hammond sent his memorial, Jefferson Washington a few months later shows that he would have been the last man to have denied the jurisdiction of the United States over Delaware Bay. See Jefferson to Washington, Oct. 3, 1793. F., IV. of /., V I ,

433-351 " Upon his coming into sight thousand & thousands of the yeomanry of the city crowded & covered the wharves. Never before was such a crowd seen there, and when the British colors were seen reversed & the French flying above them they burst into peals of exultation," Jefferson to Monroe. May 5, 1793, Monroe Papers, N. Y . P. L. 1 Jefferson to John Wayles Eppes, May 23, 1793, F., W. of J., V I , 263-264.

'The 4

National Gazette, Philadelphia, Wednesday May 15, 1793.

T . J. P., Nos. 14820-21, Hammond to Jefferson, May 2, 1793.

1F.,

W. of J., V I , 252-254, Jefferson to Hammond, May 15, 1793.

• T . J. P., Nos. 14820-21, op. cit.

96

AMERICAN NEUTRALITY

IN 179S

notified the French minister of the complaint of the B r i t i s h minister, furnished him with copies of the evidence cited by the latter, and observed " that the United States being at peace with all parties cannot see with indifference its territory or jurisdiction violated by either; that the government will therefore proceed to inquire into the facts and f o r that purpose will receive with pleasure & consider with impartiality any evidence " which Ternant would furnish on the subject. T h e detention in Philadelphia of the vessel, cargo, and crew was of course also requested. 1 The French minister made a reply, 2 but he could say little. He had written his superior, the Minister of Foreign A f f a i r s two days earlier relating the details of the capture in essentially the same manner as stated by Hammond. Ternant then expected an official complaint f r o m the American Government, but had decided to take no action until the arrival of his successor, not knowing what instructions Genet might have to guide him in such a matter. 3 In the meantime the American Government was proceeding with its inquiry. T h e facts being evident, the question of law was referred to the Attorney General f o r his opinion. Randolph submitted his report to the Secretary of State on M a y 14. In this paper he proceeded to prove that the entire Delaware B a y was within the territory, and under the jurisdiction, of the United States. 14 Randolph immediately ' J e f f e r s o n to Ternant, M a y 3, 1793, F., W. of J., V I , 2 3 6 - 3 7 ; see also Jefferson to Hammond, M a y 3, 1793, F., W. of /., V I , 236. * A. S. P. F. R„ I, 148, E . Randolph to Jefferson. ' T e r n a n t to Minister of Foreign A f f a i r s , M a y 1, 1793, Amer. Hist. Assoc. Report, 1903, I I , 196-197. 4 The Status for Delaware Bay, here claimed has now become fixed in international law. This has been important to the United States not only in determining her neutral duties, but in many other ways, not least of which is f o r purposes of her own defense. T h e precedent set in 1 7 9 3 was largely the means of establishing this status. In international law

THE

LIMIT

OF AMERICAN

TERRITORY

97

dismissed, as irrelevant to the case of the Grange, all consideration of the general extent of the jurisdiction of a country into the sea along its whole coast line. This, he said, was the special case of an, inland river or bay in which " The corner stone of our claim is that the United States are proprietors of lands on both sides of the Delaware, from its head to its entrance into the sea." Further, no nation save Great Britain had claimed, since the establishment of the British provinces, any community of right in this bay; Great Britain had relinquished her claim by the treaty of Paris, 1783, and this with the privity of France; still further, the United States had exercised exclusive jurisdiction over this bay by including it within its revenue districts. " The conclusion is that the Grange has been seized on neutral ground . . . the duty arising from the illegal act is restitution." 1 This opinion by Randolph was accepted by the rest of the cabinet and became the basis of Jefferson's letter of May 15 to the British and the French Ministers in which he announced that " on full and mature consideration, the government deems the capture to have been unquestionably within its jurisdiction and that according to the rules of neutrality . . . it is bound to see the crew liberated and the vessel and cargo 2 restored to their former owners." 3 In the status of bays larger than twice three miles in width depends upon precedent in the individual cases. If a bay is prescribed f o r (claimed upon the grounds of possession) by one nation, and this claim is assented to by other nations, and remains undisputed by any it eventually becomes accepted. T h i s is what happened in the case of D e l a w a r e Bay. See P . C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction, pp. 395-397 ( N . Y., 1927). 1

E. Randolph to Sec. of State, M a y 14, 1793.

A. S. P. F. R., I, 148-

149' H a m m o n d did not seem to think that liberating the c r e w and restoring the vessel and cargo w a s sufficient. B e f o r e the restoration had been

AMERICAN

98

NEUTRALITY

IN 179S

this decision he had the acquiescence of Genet, who reached Philadelphia at this moment, and the vessel was yielded to the British owners. 1 The United States assured France that in making the decision it had listened to nothing but the dictates of immutable justice; 2 and Jefferson also took advantage of the occasion to observe to Hammond that he hoped the readiness with which the United States redressed this wrong would be reciprocated by Great Britain to American citizens pursuing their lawful business in all parts of the world. 3 Genet thought that the conduct of the French in relinquishing this prize was worthy of praise also and made it the occasion of calling attention to the great respect which the French had for the laws of the United States. 4 Such self-praise on the part of Genet was no more extraordinary than that contained in Jefferson's letter to Hammond. Genet did not, however, always retain this respect for the laws of the land; and when it became necessary to file charges against him, made, Hammond wrote Grenville that if the Grange was restored he had directed claims to be made for compensation for its detention (B. S. P., Hammond to Grenville, No. 14, May 17, 1793 ) ' F., IV. of J., V I , 254-7, 252-4 (Jefferson to the French Minister; Jefferson to the British Minister, May 15, 1793), copies of the report by Randolph were sent with these letters. 1

Genet to Jefferson, May 27, 1793, A. S. P. F. R., I, 149-50. * Jefferson to French Minister, May 15, 1793, op. cit. 'Jefferson to Hammond, May 15, 1793, F., W. of J., V I , 252-4. " The learned conclusions of the Attorney General of the United

4

States, and the deliberations of the American government, have been on this subject the rule of my conduct. . . . M y brave brethern the seamen of the Embuscade have readily concurred in a measure which I represented to them as a proper means to convince the American government of our deference and of our friendship. The French republicans sir, know the duties which nations owe to one another; . . . they know how to distinguish its enemies and its friends ", Genet to Jefferson, May 27, 1793, A. S. P. F. R„ I, I49-ISO-

THE LIMIT

OF AMERICAN

TERRITORY

99

one of them was that although the seizing of the Grange " was a flagrant violation of the jurisdiction of the United States, Mr. Genet—instead of apologizing, takes great merit in his letters for giving her up." 1 A s we review the conduct of Genet, with respect to the other negotiations which he had with the federal government, we shall become constantly more surprised at his ready acquiescence in this decision in the case of the Grange. True, it was a clear-cut case and there was little room for dispute, but such considerations as these did not prevent Genet from finding grounds for refusing compliance with similar decisions a few weeks later. Why then was he so complacent in this case ? The most logical answer may be found if we acknowledge as genuine the sentiments which he expressed in his letter to Jefferson, quoted above.2 He did really wish to show respect for the laws of the United States. Moreover, he was carrying on other important negotiations at the same time. He was not yet convinced, as he later became, that the cards were stacked against him. He wished to show a willingness to be reasonable, to make some concessions himself. When the decision in the case of the Grange was announced he therefore acquiesced in it, thereby settling the question of the jurisdiction of the United States over Delaware Bay. There remained the similar question of the extent of the territory of the United States into the seas along her coast line as a whole. Cases to demand the settlement of this question also were not slow in arising. On May 5 two conscientious gentlemen at Norfolk took " the liberty considering it a duty to give " the Secretary of State " information of two schooner boats cruising off our Capes as privateers under French commissions, who are daily chasing vessels bound in and ' Jefferson to G. Morn's, Aug. 16, 1793, F.t W. of J., VI, 383. * Genet to Jefferson, May 27, 1793, A. S. P. F. R., I, 149-150.

AMERICAN

IOO

NEUTRALITY

IN 1793

out to the great prejudice of our trade and contrary to the law of nations to be chasing and boarding vessels within our territories." the

Eagle.2

1

These privateers were the Sans W e recognize the Sans

Culotte

Culotte

and

as one o f the

first privateers fitted out by Genet at Charleston.

Three

days after the date of the above letter this privateer captured the brigantine Fanny, four or five miles distant, it w a s said, from Cape Henry."

T h e Fanny

w a s carried to Phila-

delphia as a prize, and there reclaimed by the British minister as taken within the jurisdiction of the United States. 4 A n o t h e r similar privateer, the Citizen the British merchant vessel William,

Genet,

had captured

on M a y 3.

T h e point

at which this capture w a s made w a s variously estimated at f r o m two to five miles off the lighthouse at Cape Henry. 0 Shortly a f t e r w a r d s the Etnbuscade brigantine, Catharine,

captured the

off the Capes of Delaware

8

British

and " t w o

or t w o and a half miles " f r o m the coast of the U n i t e d States. 7

T h e Catharine

was carried into the port of N e w

Y o r k as a prize, being one of the first cases of this nature to demand settlement at that port. 8 1

These captured ships,

Thomas Newton, Jr., and Wm. Lindsay, to Thomas Jefferson, May

5, 1793, T . J . P . , N o . 14713. 2 " They are about the size of the largest pilot boats & rigged as they are, mounting four carriage guns each", T. J . P., op. cit. Cf. account of armament in A. S. P. F. R., I, 162 (sworn testimony).

'Jefferson to Genet, June 29, 1793, with inclosures.

A. S. P. F. R., I,

162-163.

A. S. P. F. R., I, 162, and F., IV. of J., VI, 329-330, Jefferson to Genet, June 29, 1793. 4

5 A. S. P. F. R., I, 161. Sworn testimony of witnesses furnished by Hammond.

•Hammond to Grenville, No. 10, June 10, 1793 (B. S. P.). 'Jefferson to Hammond, June 13, 1793, F., IV. of J., VI, 298-9. " Jefferson to U. S. Attorney for N. Y., June 12, 1793, F., W. of J., VI, 296-7; Hamilton to Rufus King, June 15, 1793, L., W. of H., VIII, 304-5-

THE

LIMIT

OF AMERICAN

TERRITORY

ioi

as well as several others, 1 were immediately reclaimed by the British minister, the grounds in each case being that they had been taken within the jurisdiction of the United States. The French minister usually denied that they were so captured 2 and then the dispute in each would center around ( I ) a question of fact as to where the capture took place, and ( 2 ) a question of law as to what was the extent of the jurisdiction of the United States. Settling such questions does not at first seem to be so difficult a task. It would seem that the natural course would have been immediately to reach a conclusion on the general question as to the extent of jurisdiction and then to have eliminated the individual cases by a consideration of the evidence each side was able to present. The settlement was not to be so rapid as this, however. The first long delay resulted from uncertainty as to which branch of the federal government should be expected to make such decisions. The complaints would first reach the executive department. This was natural, since the government was new and precedents had not been set in these matters. A British 3 subject, or his agent in America, discovering that his 1 Besides the four cases named above, the following captures especially entered into the consideration of this question of extent of jurisdiction. The citations following each are to the most important sources of information for that particular case; the brig William Tell, captured by the French brig the Ccrf; F., IV. of J., VI, 410-412, 422-424, 428-29; the British brig Pilgrim, captured by the French privateer the Sans Culottes; F., W. of J., VI, T. J. P., Nos. 16171, 16172, H„ W. of H., IV, 511, J. G. L„ pp. 87-9. The British brig Conningham, captured by the French privateer Sans Culottes, T. J. P., Nos. 16173, 16174, H., W. of H., IV, 511, / . Jefferson to Gov. Shelby, Nov. 6, 1793, A. S. P. F. R., I, 455; Nov. 9, 1793, A. S. P. F. R., I, 458; cf. Jefferson to Knox, Nov. 6, 1793, J. G. L., pp. 40-41; Randolph to Gov. Shelby, Mar. 29, 1794, A. S. P. F. R., I, 456. ' Knox to Gov. St. Clair, Nov. 9, 1793, A. S. P. F. R., I, 458; see also Smith, L i f e . . . (papers) of Arthur St. Clair, II, 316-27. • Knox to Major General Wayne, Mar. 31, A. S. P. F. R., I, 458. The attitude of Gov. Shelby of Kentucky toward this expedition has been the subject of much controversy. His answer to Jefferson's first letter promised full cooperation in preventing the expedition (Oct. 5, 1793, A. S. P. F. R., I, 455) but the answer to the second was very different. (Jan. 13, 1794, A. S. P. F. R., I, 455-6). Shelby's later explanation was that he knew the plans for the expedition would fail and that he merely took this as an occasion for impressing the Federal Government with the need of opening the Mississippi. For the entire controversy see A Review by Samuel M. Wilson, of Isaac Shelby and the Genet Mission, by Dr. Archibald Henderson (52pp. Lexington, Ky., 1920); Marshall, History of Ky., II, 98-123; Butler, History of the Commonwealth of Ky., 2nd ed., pp. 524-31. 4

' See, A. S. P. F. R., I, 309 et seq.; 426-427, 459"46o.

FOREIGN their a u t h o r i t y .

RECRUITING

187

T h i s doubt h a d h a d its e f f e c t upon the

promptness a n d completeness of the p r e v e n t i v e measures. C l e a r l y , there w a s a need f o r legislative action to define a n d authorize the course that w a s t o be pursued i n p r e v e n t i n g f u t u r e attempts so to violate the A m e r i c a n policy of neutrality.

T h e s e events, 1 then, m a y be said to be the direct

cause o f that portion o f the n e u t r a l i t y act o f J u n e

1794

w h i c h prohibits f o r e i g n enlistments in the U n i t e d S t a t e s . T h i s p r o v i s i o n of the act w a s based upon the principles de1 The above account has primarily considered those attempts of France to launch expeditions and privateers f r o m the territory of the United States. These were so much more numerous and important than the other attempts that they served almost exclusively in the development of these principles. There were attempts on the part of Great Britain, however, to launch expeditions against France f r o m the United States and these were opposed by the administration in the same manner as the ones here described. Perhaps the most important of these plots against France was the expedition planned against St. Domingo and which was connected with the mutiny of the French fleet at New York. The French minister got word of this plan and requested Jefferson to take preventive measures which he did promptly and effectively. Genet, always extreme, also requested the administration to take other preventive measures, such as arresting men he suspected and ordering all ships bound f o r St. Domingo to obtain passports f r o m the French Minister. (A. S. P. F. R., I, 187.) These were of course refused. T h e following citations deal with these expeditions against the French. Hammond to Grenville, No. 23, Nov. 10, 1793, B. S. P., H e n r y Adams transcripts; Grenville to Hammond, n Jan., 1794, B. S. P . ; Hammond to Grenville, No. 19, Sept. 17, 1793, B. S. P . ; Genet to Minister of Foreign Affairs, No. 12, Sept. 19, 1793, C. of G., pp. 242-3; Sercy to Genet, 16 Oct., 1793, Genet Paper, L. C., Genet to Jefferson, Sept. 6, 1793, A. S. P. F. R., I, 177; Cabinet opinion, Aug. 5, 1793, F., W. of /., V I , 370-371; Cabinet Decisions, Sept. 7, 1793, F., W. of J., V I , 410-412; Jefferson to W a s h ington, Sept. is, 1793, F., W. of /., V I , 410-412; Jefferson to Genet, Sept. 12, 1793, F., IV. of /., V I , 425-427; Jefferson to Genet, Nov. 22, 1793, J. G. L., pp. 109-10; Jefferson to Gov. Moultrie, Nov. 13, 1793, J. G. L., pp. 69-70; Genet to Jefferson, Nov. 29, A. S. P. F. R., I, 187; Jefferson to Genet, Nov. 30, 1793, F., W. of /., V I , 459-6o; Statements printed in A. S. P. F. R., I. 188; Jefferson to Gov. of South Carolina, Dec. 23, 1793, W., IV. of /., IV, 97-98; Genet to Gov. Clinton, Oct. 10, 1793, Emmet Collection, No. 6283, N. Y. P. L.

!88

AMERICAN

NEUTRALITY

IN

179S

veloped by the cabinet, and announced by Hamilton's letter of instructions in August, 1 7 9 3 1 It was declared unlawful for any citizen or resident of this country to enlist, within the United States, in the service of any belligerent power. 2 Thus was established a rule which the United States has followed to the present day. A third 8 complaint in the memorial which the British minister addressed to the Secretary of State on May 8, 1793, was that these privateers, illegally fitted out at Charleston, had gone to sea and made prizes of several British vessels which they had brought back into the ports of the United States. Hammond announced that he doubted not " that the executive government of the United States will pursue such measures as to its wisdom may appear the best calculated . . . f o r restoring to their rightful owners any captures " so made.4 We have already devoted some attention to the restitution of prizes captured by these French privateers. That, however, was a different case. The principle upon which restitution was claimed was entirely different. The grounds f o r the restitution of those prizes were that they had been captured within the jurisdiction of the United States, with nothing said concerning the origin of the vessels that made the captures. In this third complaint restitution was demanded because the prizes, although made on the high seas, had been captured by vessels which 1 F., W. of J., V I , 358-35911. These instructions only specified the permissible act of a belligerent enlisting its own subjects who were in this country but neither citizens nor residents of the United States. The interpretation that was intended to be given to this eighth rule is indicated in F., IV. of J., V I , 358-60, questions as to belligerents, July 29, 1793; and in the Anas, for the same date, F., IV. of J., I, 250.

* 1 Statutes at Large 381. See Appendix I V for a more complete discussion of the Neutrality Act of 1794. s 4

See supra, p. 121. Hammond to Jefferson, May 8, 1793, T. J. P., No. 14822.

FOREIGN

RECRUITING

189

had fitted out in contravention of the duty of the United States to prevent such equipment. It w a s claimed that this duty of preventing an injury included that of repairing or redressing it when it had happened. 1 T h e restitution was the redress demanded. T h i s was the only complaint made by H a m m o n d in his letter of M a y 8 which was not answered in Jefferson's reply dated M a y 15. Jefferson at that time only replied to this third complaint by saying, " T h e remaining point in the same memorial is reserved for further consideration." 2 T h e British minister in explaining this passage to Grenville t w o days later gave a remarkably accurate account of what had passed in the cabinet, but his prescience did not prove so reliable as his knowledge of past events. 3 Your Lordship will perceive from Mr. Jefferson's answers that the sole point reserved for future consideration is my requisition that the British Vessels captured by the privateers fitted out at Charleston should be restored to their rightful owners. These prizes are not valuable . . . their restoration on the general principle . . . I cannot but conceive must follow from the admission that the vessels capturing them were furnished with commissions of which this government disapproves, and the validity of which it disputes. I have indeed been informed that the sole ground upon which this discussion now rests, is the apprehension lest the interference of the United States in enforcing the restitution of the prizes so made may be regarded as an offensive act of hostility against France. There may be some doubt whether this w a s the sole ground which was causing the delay, but it was the primary 1

H., W. of H., I V , 117, Hamilton to Washington, May 15, 1793.

' Jefferson to Hammond, May 15, 1793, F., IV. of /., V I , 252-254. ' Hammond to Grenville, No. 14, May 17, 1793, B. S. P. It is obvious that this information also came from Hamilton, cf. postscript to Hammond to Grenville, No. 16, July 7, 1793, B. S. P.

AMERICAN

NEUTRALITY

IN 179S

consideration. Jefferson voiced it so strongly 1 that the President decided to request written opinions f r o m his advisors on this problem. It took time to prepare these and that is the reason that this answer was postponed. The time was well used by the members of the cabinet, however, f o r the opinions submitted on this question were nearly masterpieces. Hamilton, seconded by Knox, 2 thought that the prizes should be restored. His opinion was submitted to the President on May 15. 3 The arguments in support of this contention were, to summarize briefly, that fitting out and manning the privateers in the ports of the United States was a very serious infringement of our sovereignty. Vattel was quoted to show that this act would j u s t i f y a declaration of war against France by the United States unless France consented to make suitable reparation. The next question to be considered then was what reparation it was suitable for the United States to demand. With respect to the case as it involved the United States and Great Britain, the former had been bound in duty to prevent this injury to the latter. This was acknowledged but it was said that it applied only to the future, that the United States could not be expected to prevent such acts before news of the war had spread. Hamilton answered 1

F., fV. of J., I, 229, Anas, May 20, 1793, Jefferson was very much agitated when he advanced these arguments. He carried practically all of them to lengths in which he himself did not believe. This passage is valuable as showing his agitation; but for a true view of his opinion on any of the individual points it must be used only alongside his written opinion of May 16th. A careful study shows that this written opinion corresponds very closely with his later attitude and policies. The only logical course then is to discount the statements in the Anas for May 20th. This is one of the most conspicuous examples of the unreliability of the Anas except after careful criticism. * F., W. of /., I, 230, Anas, May 20, 1793. ' L., W. of H., IV, 112-121, Hamilton to Washington, May 15, 1793.

FOREIGN

RECRUITING

191

that this was an excuse but no justification, that excuses could be used only when no remedy was at hand. If the United States had not prevented the injury they should redress it by means of the remedy which was present; that is, by restoring the prizes which were now resting in her ports. This would be " a species of reparation consonant with the nature of the injury ". France could not object to being required to surrender a property, the means of acquiring which had its origin in a violation of our rights. Thus we could and were in duty bound to make reparation to Great Britain. If we did not she could consider it an agression upon her by the United States and cause of war. Hamilton's conclusion was that " a decided conduct appears most consistent with our honor and our future safety." Jefferson opened his argument 1 with an acknowledgment that the United States should prevent France from fitting out privateers in our ports, in order to preserve a fair and secure neutrality. But, he continued, Great Britain should not expect this prevention to be immediately effective in the most distant ports of the country. That would be unreasonable. She should rather be satisfied with a very moderate apology on the part of the United States. Such an apology had already been made. To demand satisfaction beyond what was adequate was a wrong on the part of Great Britain. As to restoration of the prizes—that was impossible. The commission given to the privateers was acknowledged to be valid as between the belligerents. At the moment of capture, then, property in the prizes had been 1

F., W. of /., VI, 257-259, "Opinion on the Little Sarah" (May 16, 1793) ; the title has been supplied by Ford, not appearing on the original in the T. J. P., care should be used in distinguishing this opinion from those given in July (F., IV. of J., VI, 340-44). Both opinions happened to effect the same ship but the cases were entirely different. In May the Little Sarah was a prize undergoing litigation, in July as the Little Democrat she was a privateer illegally fitted out in a neutral port.

AMERICAN

NEUTRALITY

IN

179S

vested in the captors. T h e English owner had lost all right to the property. T h e United States could only restore it to him through an act of reprisal against France f o r the violation of our sovereignty. T h e r e might be some excuse for such an act as between France and the United States. France had committed a gross transgression; but an act of reprisal w a s a very serious thing. It seldom failed to lead to war. A l l other means of obtaining satisfaction were to be used first. Reprisal w a s only the last resort, and if it became necessary only Congress could authorize the step, f o r the right of reprisal w a s expressly lodged with them by the constitution. 1 T h e President was impressed with the weight of the arguments against restoring the prizes. He decided that they should not be restored. T h i s was really a compromise between the conflicting opinions which existed in the cabinet. T h e nature o f this compromise is not evident until we take a broader view of the situation. Besides the question of restitution this question also involved a decision on what w a s to be done about the privateers illegally fitted out. W e r e they and their prizes to be permitted to use the ports of the United States the same as all French vessels or were these vessels to be considered as having forfeited their rights under the treaty because of their illegal origin ? This ques1 Randolph's opinion (H., IV. of H., IV, 403-406) agreed with Jefferson's but devoted more study to the question of the validity of the commission. On this he reached the same conclusions as Jefferson did. He added the observation that the capture being valid as between Great Britain and France, it was not the province of the former to determine what satisfaction the United States should require of France for the violation of our sovereignty. Even if Great Britain had a right to compensation from the United States she could not specify that this payment should be by restitution. A l l British claim to the captured vessels was gone. Jefferson summarized all the arguments and added some new ones in his letter to Thomas Pinckney, June 14, 1793, F., W. of J., VI, 301-303.

FOREIGN

RECRUITING

193

tion is not specifically discussed in the written opinions given to Washington the middle of May, but we have seen above that it was under discussion at the same time and that the decision was announced at the same time. Jefferson said that Hamilton and K n o x were in favor of giving up the prizes, but if that could not be, then to order away the privateers and prizes, and if that proved impossible then to order away only the privateers'. The Secretary of State records that he thought that neither could be given up or ordered away and that Randolph favored ordering away the privateers and nothing more. Jefferson added, " The President confirmed the last opinion & it seemed to be his own." 1 This decision was officially 2 announced to the two foreign ministers in letters which were dated the same day in June but were very different in composition. It was necessary, in the letter to the French minister, 8 to explain the reasons why the proscribed privateers must depart. W e have seen above how carefully this was done by Jefferson and the attempts that were made to soothe Genet's feelings. There is evidence that when the other three members of the cabinet eliminated the last paragraph of this letter because of its too marked sympathy f o r France, Jefferson took it upon himself personally to reassure the minister. 4 There was no 1 F. ( IV. of J., V I , 230, Anas, May 20, 1793; part of the unreliable note in the Anas of this statements seem to conform to the known views as to be worthy of credence. Cf. also ibid., I,

this entire explanation is date, but these particular of all four men so closely 242, Anas, July 13.

2 The general tenor of the decision had been verbally announced the last of May, cf. F., IV. of J., I, 248-9, Anas, July 26, and F., W. of J., V I , 282-283, Jefferson to Genet, June 5, 1793.

' Jefferson to Genet, June 5, 1793, F., W. of J., V I , 282-283. 4

" It is Mr. Jefferson who has signed these complaints, but as he himself avows to me we should consider him in this transaction only as the passive instrument of the President." Genet to Minister of Foreign Affairs. No. 14, Oct. 7, 1/93, C. of G., p. 254. It is very probable that

AMERICAN

NEUTRALITY

IN 179S

need, however, of explaining to Genet, the refusal to restore the prizes. It is in the letter to the British minister 1 that we find this half of the argument. The reasoning is the same as in Jefferson's opinion to the President. 2 If Great Britain should deny the validity of the commissions given to the privateers then the only proper action would be for the individuals to bring the case before a United States Court of Admiralty. The court could give redress if the commissions were not valid, and the executive would not be justified in interfering even in that case.3 Jefferson was in hopes 4 that Hammond would see " in these proceedings of the President, unequivocal proof of the line of strict right which he means to pursue. The measures now mentioned are taken in justice to the one party; the ulterior measure of seizing and restoring the prizes, is declined, in justice to the others." Hammond understood this decision pretty well, although he did not agree 5 with the reasoning. He wrote his government that the final decision had been delayed this long " by a contrariety of sentiment relative to it subsisting among the President's confidential advisors . . . the hesitation to restore the prizes . . . arose f r o m an apprehenJefferson told Genet this with respect to the ordering away of the proscribed privateers. (It was true in that case, c f . F., IV. of J., I, 230, Anas, M a y 20.) Genet applied the statement to later events as well, in some of which Jefferson was not the passive instrument. Genet to Minister of Foreign Affairs, No. 7, July 3 1 , 1793, C. of G., pp. 232. 1

Jefferson to Hammond, June 5, 1793, F., W.

of J., V I , 285-287.

« F „ W. of J., V I , 257-259' This argument is found in the opinions of Jefferson and of Randolph. Hamilton tries to deny its solidarity in his opinion but the same argument appears in this letter to Hammond. 4 C f . T . J . P. No. 15042 with F „ W. draft of this letter to Hammond. 5

of J., V I , 285-7.

The first is a

Jefferson to T . Pinckney, June 14, 1793, F., IV. of J., V I , 301-303.

FOREIGN

RECRUITING

195

sion lest such a measure might be considered as an act of o f f e n s i v e hostility a g a i n s t F r a n c e . "

T h e minister thinks

that in his e f f o r t s to d e f e n d this course J e f f e r s o n has relied upon an assumption of f a c t s " v e r y d i f f e r e n t f r o m the real state of t h e m . "

1

In his reply H a m m o n d tried more to im-

press the government " w i t h a proper sense of the importance of the subject rather than to t r y to effect a revision of the decision."

T h e B r i t i s h minister would have p r e f e r r e d

to w i n all his complaints, but he w a s not going to risk losing the f a v o r a b l e decisions on the others by t r y i n g to get a f e w prizes of little value.

H e thought it w a s his duty " to

e x p r e s s in terms of civility and respect " his " s a t i s f a c t i o n with its [the g o v e r n m e n t ' s ] general disposition and . . . [ h i s ] expectation that the assurances . . . received upon other points would be carried into e f f e c t . " 2

Washington

had a g a i n f o u n d the w i s e s t course to be that which lay between the positions of J e f f e r s o n and Hamilton. H a m m o n d ' s conclusion that it w a s inadvisable to t r y to obtain a reversal of the decision not to restore these prizes m a r k e d the end of the c o n t r o v e r s y so f a r as prizes already captured were concerned. not the only prizes.

B u t u n f o r t u n a t e l y these w e r e

T h e F e d e r a l G o v e r n m e n t had

ex-

pressed its expectations that the measures outlined in the letter of J u n e 5 w o u l d be e f f e c t i v e and that " the evil, thus early arrested will be of v e r y limited e f f e c t ; perhaps, indeed soon disappear altogether." so easily settled.

3

T h e question w a s not to be

A s had been seen Genet did not send the

proscribed privateers a w a y as requested.

They

remained

in or cruising out of A m e r i c a n ports and they brought more prizes into these ports.

T h i s m a r k s the beginning of the

1

Hammond to Grenville, No. is, June io, 1793, B. S. P.

i

Hammond to Grenville, No. 15, June 10, 1793, B. S. P. Jefferson to Hammond, June 5, 1793, F., W. of J., VI, 285-87.

s

AMERICAN

NEUTRALITY

IN 179S

second stage in the controversy over the restoration of these prizes. Even Jefferson acknowledged that the United States were bound to prevent armament in her ports after it had had a reasonable time to prepare preventive measures. What if Genet continued to equip privateers and the government failed to prevent it ? What if these privateers and those already armed at Charleston 1 continued to capture English ships ? That country could not be expected always to be satisfied with a " very moderate apology." These additional prizes made by the proscribed privateers were a troublesome question in the back of the minds of the members of the cabinet during the months of June and July. There is no evidence that they gave much careful consideration to it before the first of August. The British minister had at once seen the possibility of the privateers refusing to depart and had asked Jefferson f o r more exact information on the course to be pursued. 2 The reply he received was that the " speedy departure of these vessels is expected." 3 This seemed to satisfy the cabinet until about the middle of July. The British minister had been continuing his complaints in the meantime,14 but the fact that Genet did not 1

It will be seen that a distinction might be made between the liability of the United States for prizes made by privateeers fitted out before time for prevention had elapsed, and those made by privateers later fitted out. T h e decision to expel the former from our ports was evidently later looked upon as invalidating this distinction and as acknowledging the liability of the United States even for the future prizes that might be, and were, made by these early privateers. Once the decision to expel the early privateers was made Jefferson accepted it so completely that there is no evidence of his having made this distinction. In either case, however, the principles hereafter discussed would have been the same and would have had the same development. T h e only difference would have been in the number of vessels to which they applied. * F., W. of J., V I , 306-7.

Cabinet Opinion, June 17, 1793.

* T . J . P., No. 15240, Jefferson to Hammond, June 19, 1793. 4

See Cabinet Opinion, July 12, 1793, F., IV. of /., V I , 344-45.

FOREIGN

RECRUITING

ig7

refuse 1 to send the privateers away gave the administration room for hoping that he would soon comply with their requests. The Little Democrat incident seems to have awakened them to the fact that there was no hope that the French minister would keep the offending ships out of the ports of the United States. Even then the prizes recently made by these privateers did not receive much consideration. So many questions were demanding immediate decision during the first half of July that this was still kept in the background. The letter which was written to Genet on the twelfth, requesting him to detain the Little Democrat and the other privateers until the judges could be consulted also included these prizes among the vessels that were to be detained.2 When it came time to prepare the questions to be submitted to the judges, the question of what was to be done about these prizes was, of course, included.3 When the refusal of the judges to answer the questions was known, it was evident that the cabinet would again have to reach some decision relative to these prizes. The President raised the question of the prizes on August 2. Jefferson says " He desired we would meet at my office the next day to consider what should be done with the vessels armed in our ports by Mr. Genet & their prizes." * Hamilton acknowledged, at the cabinet meeting on the third of August, that he had lost all patience with the French minister and his privateers. He proposed to suppress the privateers by military coercion and to deliver their prizes to 1 Genet's policy of silence continued until the middle of September; the privateeers remained, and he merely did not answer the orders to send them away. A. S. P. F. R., I, 184.

2 Jefferson to Genet, July 12, 1793, A. S. P. F. R., I, 163. Cabinet opinion on Privateer and Prizes, July 12, 1793, F., IV. of /., V I , 344-5. 3

Question 24, see Appendix I.

* F., W. of J., I, 254-5, Anas, Aug. 2, 1793.

AMERICAN

NEUTRALITY

IN 179S

their original owners. 1 There is not much doubt that the conduct of Genet and the captains of these vessels would have justified such action by the United States, but was it the wisest course? Jefferson thought not. H e proposed to " require from Mr. Genet a delivery of the prizes to their owners, otherwise that, in consequence of the assurance we had given the British Minister, we should be bound to pay for them & must take credit for it with France." 2 He would also inform the French Minister that we would allow no further asylum in our ports to the proscribed privateers. 3 Jefferson believed that it would be cheaper to pay for the prizes than to risk a war with France, by seizing her armed vessels. Either course would equally well fulfill the neutral duties assumed by the United States. All that Great Britain could claim was restitution or compensation. Jefferson's plan was agreed to, with the additional provision that the governors of the states were to be notified that the proscribed privateers were not to be permitted to stay in our ports.* This last provision was an attempt to re1

F . , W. of J., I, 255, Anas,

A u g . 3, 1793.

• F . , W. of J., I, 255, Anas, A u g . 3, 1793, f o r Genet's answer t o this proposal to " take c r e d i t " on the F r e n c h debt f o r this compensation see Genet to J e f f e r s o n N o v . 29, 1793, A. S. P. F. R., I, 1 8 5 ; f o r a n e x p l a n ation of the intentions of the administration in m a k i n g this proposal see J e f f e r s o n to Gouverneur M o r r i s , A u g . 16, 1793, F . , IV. of J., V I , 390.

Anti-George ' T h e s e now included the Citisen Genet, Sans Culotte and fitted out at Charleston b e f o r e the fifth of J u n e , and the Conqueror of the Bastile, the Little Democrat and the Carmagnole fitted out since the prohibition at Charleston, Philadelphia a n d in the D e l a w a r e respectively. C f . F . , W. of / . , I, 255, Anas, A u g . 3, 1793, with L t . Gov. W o o d ' s ( V a . ) circular of A u g . 22, 1793, A. S. P. F. R., I, 606-607, and see T . J . P., N o . 15668, J e f f e r s o n to H a m m o n d , A u g . 8, 1793. Cf. F . , W. of J., I , 255, Anas, A u g . 3, 1 7 9 3 ; F . , IV. of W., X I I , 3 1 4 i6n. Cabinet opinion, A u g . 5, 1793, T. J . P., N o . 15657, J e f f e r s o n to H a m m o n d , A u g . 7, 1 7 9 3 ; A. S. P. F. R., I , 606-07. C i r c u l a r of L t . G o v . W o o d ( o f V a . ) , A u g . 22, 1793. A. S. P. F. R., I, 167, J e f f e r s o n to Genet, A u g . 7, 1793, F . , W. of / . , V I , 274-6n. " N o t e s " J e f f e r s o n to Washington. 4

FOREIGN

RECRUITING

199

move the cause and prevent the need of frequent new decisions. The cabinet placed considerable importance upon the manner of notifying the t w o foreign ministers of this conclusion. They first disagreed upon whether to notify both ministers or just Genet. Jefferson's proposal had been to notify only Genet. 1 Hamilton could not see the wisdom of trying to avoid making the explanation and the promise of compensation to Hammond. 2 The President wisely concluded that " if you notify it to the party to whom it will give displeasure, we should do it to that also which will feel satisfaction f r o m it." 8 The cabinet did not reach and present the formal opinion on the restitution of prizes until the fifth of August. 4 The President decided for the full communication on the same day. Jefferson 5 in preparing the letters to the two ministers " found it would require caution of expression " and he did not finish the d r a f t s until the next day. 6 These as submitted to the President, accepted 1

F., W. of J., I, 255, Anas, Aug. 3, 1793.

1

F., W. of J., VI, 36511. Jefferson to Washington, Aug. 18, 1793. T. J. P. No. 15839, " Note ". ' F., W. of J., I, 255-6, Anas, Aug. 6th. • F., W. of W., XII, 3i4-i6n. Opinion of the Cabinet, Aug. 5, 1793. This same opinion is given in F., W. of J., VI, 370-371, and in H., W. of H., IV, 468 with the date " August 15, 1793 "; Comparison with the dates of the letters to Hammond and Genet ( T . J. P., No. 15657 and A. S. P. F. R., I, 167) shows that Aug. 15th is an incorrect date. 5

F., W. of /., VI, 365a

Jefferson to Washington, Aug. 18, 1793.

* Ibid., John C. Hamilton (in L. of H., V, 331-3) claims that the Secretary of the Treasury drafted both the Cabinet opinion of Aug. 5, 1793, and the letter to Genet of Aug. 7. The Anas, Aug. 3 (F., W. of J., I, 255) says that the former was based on the ideas which Jefferson advocated and opposed to those of Hamilton. Neither of these sources is reliable per sc. The letter to Washington (F., W. of J., VI, 365n.) is pretty conclusive proof that Jefferson drafted the letter to Genet. Cf. H., W. of H., IV, 567-571.

AMERICAN NEUTRALITY

IN 1793

by him, and sent to the t w o ministers each contained the sentence " the President considers it as incumbent upon the United States " to make compensation f o r the vessels if the prizes were not restored. 1 Washington had insisted that " the expression be so guarded as to convey nothing more than an opinion of the executive " 2 and Jefferson had succeeded in so guarding it. W a s h i n g t o n and Jefferson both had constitutional scruples on this matter which did not appeal to Hamilton, and by which he did not feel bound. 3 T h e former felt that only Congress could really bind the nation to make this compensation and they wished to phrase the statement so as to leave the matter to Congress but also so as to carry assurance that the President would attempt to furnish this identification. T h e message to Congress the next December expressed in even more careful form this assurance which had been given to Great Britain, and referred the final settlement to their judgment. 4 T h e decision, that the United States should furnish compensation for these prizes which had been taken by the pro1 Jefferson to Hammond, Aug. 7, 1793, T. J. P., No. 15657; the letter to Genet said " The President considers it as incumbent upon the United States to indemnify the owners of those prizes," A. S. P. F. R., I, 167.

* Washington to Hamilton, July 2, 1794, F., IV. of IV., XII, 439. ' See H., W. of H., IV, 569-571. Hamilton to Washington, June 22, 1793, suggesting a way to deprive the House of Representatives of any control over this compensation, and Washington's refusal to consent to such a plan, Washington to Hamilton, July 2, 1794, H., W. of H., IV, 571. 4 F., IV. of IV., XII, 357, Message to . . . Congress, Dec. 5, 1793, cf. ibid., 427, Washington to Hamilton, July 2, 1794. This passage in the message to Congress was taken verbatim from the draft supplied by Jefferson, F., IV. of J., VI, 456-459, Congress did not see fit to take up the matter (Washington to Hamilton, July 2, 1794, op. cit.) and it caused Hammond some little worry (Hamilton to Washington, June 22, 1794, H., IV. of H., IV, 569) until Jay's treaty was received and it was seen that the subject was covered by the seventh article of that treaty. See Appendix III.

FOREIGN

RECRUITING

20I

scribed privateers brought into the ports of the United States and not restored to Great Britain, was acceptable to the British minister, 1 but he was not satisfied with all the details. T h e caution which Jefferson had thought it necessary to use in drafting the letter had left in doubt some interpretations which Hammond thought were necessary. The letter to Hammond on Aug. 7 had restated the complaint, named the individual prizes to which the complaint applied and concluded with a statement that if measures f o r restitution should fail, the President considered it as incumbent on the United States to make compensation " fo-r the vessels." 2 On August 30 Hammond officially requested an interpretation of these words. Did they only include the prizes specified or did " the vessels " refer to all vessels to which the complaint might apply ? s There seemed to be no serious omission, 4 by Jefferson, of vessels already captured, but the question was whether the letter included those prizes which might be made in the future by these proscribed privateers. This was a very pertinent question in view of the failure of the privateers to leave the ports of the United States after a similar decision of the cabinet in June. 6 Jefferson immediately saw that Hammond wished to establish a general rule that either restitution or compensa1

Hammond to Grenville, No. 17, A u g . io, 1793, B . S . P . ; ibid.. No. 2, Feb. 22, 1793, B. S. P., Hamilton explained this decision to Hammond, and also included an account of the Cabinet discussion which produced the decision. Cf. Hammond to Grenville, No. 17, A u g . 10, and ibid., No. 1 1 , April 2, 1793, B. S . P. * T . J . P. No. 15637. ' See Jefferson to Hammond, Sept. 15, 1793, F., W. of /., V I , 408-410. 4 See Jefferson to Hammond, A u g . 8, 1793, T . J . P., No. 15668, and Jefferson to Hammond, Sept. 5, 1793, F., W. of J., V I , 408-410.

• Cf. Jefferson to Genet, June 5, 1793, A. S. P. F. R., I, 1 5 0 and ibid.,

Aug. 7th, ibid., 167.

202

AMERICAN

NEUTRALITY

IN 1793

tion would be made. 1 If drafting the letter of Aug. 7 required " caution " 2 the answer to this one required " great caution," 3 but in the letter to Hammond on Sept. 5 4 the Secretary of State tried to establish the true grounds on which he thought a general rule should be formed. 5 This letter and a similar one of November 1 4 8 furnish a good summary of the administration's policy on this point. The United States was bound by treaties with three of the belligerents T to protcct and defend, or restore " by all means in their power " the vessels of these nations which might be in the waters or ports of the United States. If all the means in its power were used and failed in their e f fect this country was not bound by the treaties to make compensation to those nations. The United States did not have a similar treaty with Great Britain but the President decided that, to avoid any suspicion of unneutral conduct, the United States should apply the same rule toward that country as applied to the other three. Further, this rule should be extended to captures made on the high seas and brought into our ports by vessels which had been armed in these ports. This much was the conduct that might be expected of a neutral nation but it would be clearly unneutral conduct to promise compensation to Great Britain when it would not be due to the three other powers in a similar case. 8 This would be putting England without a treaty in a more 1

Jefferson to Washington (undated). F., W. of J,, VI, 4o8n. F., W. of J., VI, 36511. Jefferson to Washington (Aug. 18, 1793). 'Ibid., 408a, ibid, (undated). * F., W. of J., VI, 408-410. 5 Ibid., 4o8n. Jefferson to Washington (undated). * Ibid., 444-448, Jefferson to Hammond. 7 France, The United Netherlands and Prussia. * The above explanations are from the letter to Hammond, Sept. 5, 1793, F., W. of J., VI, 408-10. 1

FOREIGN

RECRUITING

203

favorable position than the other countries which were with treaties. 1 But for particular reasons the United States had forborne to use! all the means in their power for the restitution of certain vessels captured f r o m British subjects. T h e President therefore thought it incumbent upon the United States t o make compensation for these vessels. As to prizes made under the same circumstances and brought in after the date of Jefferson's former letter (August 7 ) , the President had determined that all the means in the power of the country should be used for their restitution. If these failed, since compensation would not have been due to the three other powers in an analogous case, it w a s not meant to give an opinion that it ought to be granted to Great Britain. 2 W h e n Hammond reached this statement in reading Jefferson's answer to his request for a general rule, the minister probably concluded that his request had been refused. Such, however, was not the intention o f the cabinet. Jefferson or some other member, saw the interpretation which would probably be given to this sentence and the next statement in the letter to Hammond was inserted in the margin of Jefferson's rough draft of this letter. 3 T h e President was willing to formulate a general rule to the extent of expressing his opinion that compensation would be equally incumbent on the United States if any future cases should arise similar to those before August 7. In other words, indemnity should be given if the United States again decided not to use all the means in its power to expel the offending privateers or to prevent new armaments. 4 1 This statement from Schouler (Hist, of U. S-, I, 275) expresses Jefferson's attitude more clearly than he ever expressed it himself.

* Jefferson to Hammond, Sept. 5, 1793, F., W. of J., V I , 408-410. ' T. J. P., No. 15870, Jefferson to Hammond, Sept. 5, 1793. * See F., IV. of /., V I , 408-410, Jefferson to Hammond, Sept. 5, 1793.

AMERICAN NEUTRALITY IN 1793 The conduct to be pursued in the disposition of prizes captured by the proscribed privateers was, then, to be determined by the chronological period in which they were captured. There were three of these periods which were defined in the letter of Sept. 5. Those prizes captured before the fifth of June were no longer in dispute. The decision announced on that date had been not to restore them.1 The President contemplated either restoration or compensation for such prizes which had been captured between June 5 and August J. 2 For these taken after this date in August restitution 3 was contemplated if it could be effected by any means in the power of the United States.4 The British minister was not satisfied with the provision for prizes taken after August 7. He thought it left too much scope for collusion, and that " the present agent of . . . France [would] . . . be too quick-sighted not to take advantage " of this.5 An excellent example, in which no collusion was charged, but indicative of what might easily become prevalent if collusion did develop, was furnished by the French privateer, the Industry. This vessel, it was charged, had augmented her force at Baltimore, had then gone to sea and captured the British ship Roehampton and sent her into that port as a prize.6 Claim for restitution 1

Jefferson to Hammond, June 5, 1793, F., IV. of J., VI, 285-287.

* See Randolph to Fauchet, May 29, 1795, A. S. P. F. R., I, 610, for a good reconciliation of this decision with the arguments advanced against such a course in June. 'Jefferson to Hammond, Sept. 5, 1793, F., IV. of J., VI, 408-410; cf. Jefferson to Madison, Aug. 18, 1793, F., W. of J., VI, 393-395. 4

See Appendix III for an account of the later importance of this decision

5

Hammond to Grenville, No. 2, Feb. 22, 1793, B. S. P.

6

F., IV. of }., VI, 444-448, Jefferson to Hammond, Nov. 14, 1793; ibid., VI, 452-53, Cabinet Decisions (Nov. 23) ; F., W. of IV., XII, 336, Washington to Gov. Sim Lee (Md.), 13 Oct., 1793; Hammond to Grenville, No. 2, Feb. 22, 1794, B. S. P.

FOREIGN

RECRUITING

205

w a s made on the ground that the Industry should be classed w i t h the proscribed privateers. It was acknowledged that the augmentation of f o r c e had been slight and Jefferson claimed that it could not have been prevented by all the means then in the power of the United States. Restitution w a s accordingly refused and Jefferson added that it would be a measure of incalculable consequences to " decide that the smallest circumstance of military equipment to a vessel . . . should invalidate her prizes through all time." 1 It is clear that there was some practical justification for Jefferson's argument. If all the rights of the French vessels under the treaties were not to be nullified it was necessary to establish some such rule. Otherwise, through unjustified accusations on the part of Great Britain, or even honest differences of opinion over small and relatively unimportant details, scarcely a French privateer would be able to bring her prizes into ports of the United States. O n the other hand, it is easy to see where this principle could be extended, by collusion, to cover almost complete equipments. Hammond, however, as he " perceived that the government w a s determined not to restore the prize " decided that the question warranted no more at present than " a sort of a protest . . . against the whole of the transaction " but he was determined to watch f o r all evidences of collusion on the part of Randolph when he took Jefferson's place.2 1 Jefferson to Hammond, Nov. 14, 1793, Jefferson here tries to shift part of the responsibility of detecting armaments to the English consuls.

' Hammond to Grenville, No. 2, Feb. 22, 1793, B. S. P. The question of compensation for losses sustained by these prizes because of detention, waste or spoilage was a subordinate part of the same demand for indemnification. Hammond's contention for this additional compensation was also granted and arrangements were made for determining the amount due in each case. (F., fV. of J., V I , 4o8n., Jefferson to Washington (undated), ibid., V I , 408-10, Jefferson to Hammond, Sept.

2o6

AMERICAN

NEUTRALITY

IN

1798

A fourth 1 complaint in the memorial which the British minister addressed to the Secretary of State on May 8, 1793 was that the French consul at Charleston had condemned as legal prizes certain British vessels which had been captured by the French frigate Embuscade. H a m m o n d said that he was advised that " this judicial act o f the F r e n c h consul at Charleston is not warranted by the usage of nations nor by the stipulations of any existing treaties between the United States and France, and may lead to most dangerous consequences." 2 The British minister, requested that, if the United States government agreed in this opinion, it would take measures to prevent " similar exertions of illegal authority on the part of the French consuls." T h e point of the matter was that the Franco-American treaty of A m i t y and Commerce gave France and her subjects the right to carry their prizes into the ports of the United States, 3 but these prizes could not be sold until 5, 1/93; Hamilton to Jefferson, Dec. 11, 1793, T . J. P., No. 16349, Hamilton to Jefferson, Dec. 18, 1793, T. J. P., No. 16378). But when it was attempted to carry these into effect it was found that the United States (see T . J. P., No. 16409, draft of this letter of Dec. 26. All members of the Cabinet approved of this interpretation) intended to apply here also the principle of responsibility only to the extent of using all means in its power to prevent the loss. If the vessel was restored as soon as reasonably possible there would of course be no compensation due (Jefferson to Hammond, Dec. 26, 1793, F., IV. of /., V I , 489-90). Hammond claimed that the loss was often as great in five days as it would be in five months and objected to this interpretation. He asked his government for immediate instructions to cover such cases (Hammond to Grenville, No. 2, Feb. 22, 1794, B. S. P.) but by the time this letter reached England Jay was also ready to begin negotiations and Hammond received no answer. 1

See supra, p. 121.

' T . J. P., No. 14824, Hammond to Jefferson, May 8, 1793. » Article X V I I .

FOREIGN

RECRUITING

207

legally condemned by a prize court, 1 and the treaty did not give France the right to erect such courts in the United States. Genet, however, thought that France did have such a right, and soon after his arrival he ordered the French consul at Charleston to hold such a court f o r condemning the prizes. 2 T h i s was merely the beginning of the long line of usurpations of jurisdiction by French consuls in A m e r i c a which reached its climax in A u g u s t with the outrage committee by Duplaine at Boston. T h e government of the U n i t e d States immediately in M a y , took measures to announce its disapprobation of these judicial acts of the French consul at Charleston. T h e cabinet felt that to permit such acts, aside f r o m their disrespect t o w a r d the U n i t e d States, would be conduct unbecoming to a neutral nation. 3 T h e letter of M a y 1 5 in answer to H a m m o n d ' s complaints, contained especially strong statements on this act. 4 You justly add that this judicial act is not warranted by the usage of nations nor by the stipulations existing between the United States and France. I observe further, that it is not warranted by any law of the Land. It is consequently a mere nullity, as such it can be respected in no court, can make no part in the title of the vessel, nor give to the purchaser any other security than what he would have had without it. In short, it is so absolutely nothing as to give no foundation of just concern to any person interested in the fate of the vessel; . . . The proceeding, indeed, if the British Consul has been rightly informed . . . has been an act of disrespect towards the United States, to which its Government cannot be inattentive. A just sense of our own rights 1

For a statement of the judicial procedure to be followed in prize cases see John Bassett Moore, A Digest of Int. Law, V I I , 603-8. * Minister of Foreign Affairs to Genet, July 30, 1793, C. of G., p. 228. s

Jefferson to Hammond, Sept. 9, 1793, F., IV. of J., V I , 422-424.

4

Jefferson to Hammond, May 15, 1793, F., W. of / , V I , 252-254.

208

AMERICAN

NEUTRALITY

IN 1793

and duties and the obviousness of the principle are a security that no inconveniences will be permitted to arise from repetitions of it.1 Genet was informed on the same day and in almost the same words 2 that the Federal Goernment looked upon this as a very serious transgression, as " An assumption of jurisdiction . . . that could not be deemed an act of indifference." Since this was the first offense of this nature, the Executive Government would consider it, if it really had happened, " a n error in j u d g m e n t " in the consul, but it would expect Genet to see that such errors were not repeated either by the consul at Charleston or by any other French agent. Genet's answer to this part of Jefferson's letter was expressed in every polite terms. If the consul of the French Republic at Charleston had made use of some formality or expression that might indicate that he was arrogating jurisdiction to himself which he did not have, the error would certainly be avoided in future condemnations. There was, however, he thought, no doubt of the right of French consuls to condemn such prizes, for the treaty gave France " the right of bringing . . . prizes into American ports and of there doing with them as [it] pleased." 3 It was clear that there was a difference of opinion on just what rights the French consuls had. The right of French consuls to try prizes, upheld by Genet, 1 For the attitude of the British Government see Grenville to Hammond, No. i, ii Jan., 1793, B. S. P. ( H e n r y Adams Transcripts) Hammond was instructed to object to the acquiescence of the American Government, or to its failure to take more positive measures to prevent repetitions. The minister had already objected, see Jefferson to Hammond, Sept. 9, 1793, F „ W. of J., V I , 422-4; ibid., Sept. 15. 1793, F „ IV. of J., V I , 428-9.

* Jefferson to Genet, M a y 15, 1793, A. S. P. F. R., I, 147. * Genet to Jefferson, May 27, 1793, A. S. P. F. R., I, 149.

FOREIGN

RECRUITING

209

was contested by the Federal Government. Both disputants stated their opinions in May and the matter seems to have rested there until the first of September, so far as the federal executive was concerned. Its interpretation does not seem to have been either restated or clarified during the intervening months. The policy adopted during that time was one of announcing that such condemnation having no effect could give no title, and of trusting to the resulting insecurity to prevent sales based upon such condemnation. If such sales were made, possession was a matter which could easily be settled by the parties themselves through a suit of law against whomever had the property in his possession without valid title.1 If such additional condemnations were made, that was a matter between the offending agents and the Federal Government, or between the two governments.2 Many such violations are known to have occurred during these three months, and some prizes so condemned were sold in the United States.3 The warning was, however, sufficient to prevent other sales which Genet desired to make.4 Genet was not as reticent on this subject between May and August as was the federal executive. Complaints and explanations were submitted by him in which he protested against any interference with this jurisdiction of French 1

T. J. P., Nos. 15815, 15844, Jefferson to Randolph, Aug. 28, Jefferson to Messrs. Wilson, Potts, and Eaton, Sept. 1, 1793; see The Betsey (1794). 3 Dallas 6 for the decision of the Supreme Court, Feb., 1794. * It seems that the Cabinet was slow in deciding just what action to take to punish or prevent these violations of the sovereignty of the United States. The question evidently came up on July 23rd but was postponed again, Anas, July 23, 1793, F., W. of J., I, 247. 5

Jefferson to Messrs. Wilson, Potts & Eaton, Sept. 1, 1793, T. J. P. No. 15844; L , W. of H„ IV, 227, N o Jacobin, No. V . ' Washington to Jefferson, Oct. 6, 1793, F., IV. of W., X I I , 3 3 1 - 3 3 2 ; Rear Admiral Sercy to Genet, 16 Oct., 1793, Genet Papers, L. C.

AMERICAN

NEUTRALITY

IN 1793

consuls and in which he tried to justify such jurisdiction,1 The most important of these interferences by American officers and the resulting protests originated from prizes which involved an additional complication because they were captured near enough the American coast to support a claim of invalidity on that ground. The prizes which have been discussed above in connection with the determination of the extent of territorial jurisdiction were also, then, the cases which produced the demarcation of consular jurisdiction.2 The procedure was ordinarily for the prize to be brought in by the French privateer, condemned by the French consul, and then placed in the hands of a French agent to be sold. While this process was being completed, or even while the sale was being conducted the marshal for some American court would appear and declare that the prize was seized and in process of adjudication by that court.3 A contest would then result between the United States court and the consular court for the possession of the prize. In the early months of Genet's mission these were contests of words rather than of force. 4 These controversies were marked by considerable indecision on the 1 Genet to Jefferson, June 14, 1793. A. S. P. F. R., I, 152; Protest of Hauterive, French consul at New York, June 21, 1793, A. S. P. F. R., I, iS3; Protest of Dupont, French Consul at Philadelphia, June 22, 1793, A. S. P. F. R., I, 153-154.

* These cases were naturally the first to present this question because there would be no justification for an American court interesting itself in prizes legally captured on the high seas and illegally condemned until after such prizes were sold and had passed out of the possession of the captors. On the other hand vessels thought to have been captured within the protection of the American coasts might be the subject of legal action as soon as the prize reached an American port. » Cf. case of the " Willian," A. S. P. F. R., I, 152-154. Genet to Jefferson.

Incisures,

* Cf. case of the Catharine of Halifax, A. S. P. F. R., I, 153-4-

FOREIGN

RECRUITING

211

part of the American court, which was usually not at all certain that it had jurisdiction over the case.1 When some of these District Courts decided that they did not have jurisdiction and dismissed the cases, the federal executive had to take some action. The vessel could not be conceded to the captors merely because no court thought it had been authorized to hear the case. The first action taken by the federal executive was to have a military guard established on the disputed vessels as soon as the district court released its claim.2 This being very dissatisfactory to Genet 3 and expensive to the Federal Government,4 the cabinet concluded on June 25 to leave these vessels in the custody of the French " consuls until the Government of the United States shall be able to . . . decide on the fact." 6 This was very acceptable to Genet.8 About a month after this decision of June 25 the district courts at New York and at Boston decided that they might have jurisdiction in such cases.7 Marshals with writs from these courts attempted to take possession of vessels alleged to have been captured within the protection of the United » Hamilton to Rufus King, June 15, 1793. L-, W. of H., V I I I , 304. 1

Protest of Dupont, A. S. P. F. R., I, 1 5 4 ; Jefferson to the United States Attorney for New York, June 12, 1793, F., IV. of J., V I , 296-7. ' Genet to Jefferson, June 22, 1793, A. S. P. F. R., I, 155. * Governor Clinton to President Washington, June 9, 1793, T. J. No. 15140. 5

P.,

Jefferson to Genet, June 25, 1793, A. S. P. F. R., I, 160.

• Genet to Jefferson, June 26, 1793, A. S. P. F. R., I, 160-161. ' A t New York—Jefferson to Madison, Sept. 18, 1793, F., W. of J., V I , 417-20; at Boston, Higginson to Hamilton, Aug. 24, 1793» H., IV. of H., V , 577-580. Circumstances of course presented similar cases in all the important ports at about the same time. Several courts acting at the same time and reaching contrary decisions increased the confusion that would have prevailed anyway if only one court had been undecided as to its jurisdiction.

212

AMERICAN

NEUTRALITY

IN

1793

States. Genet had little comprehension of the division of powers between the three independent departments of this government 1 and less inclination to let one department deprive him of any advantage that he thought he had gained from another branch of the government. H e had possession of the vessels and pretended to think that all the Federal Government had reserved to itself in the letter of June 2 5 was the right to determine the line to which its protection should extend.2

The

minister

determined not to

per-

mit the courts again to get possession of French prizes. Genet himself, directed the course which was pursued at New Y o r k . The marshall was forbidden to arrest the vessel, and orders were given to the French squadron, then at New Y o r k , to protect her by force. 3 This was sufficiently starting conduct to make Jefferson ask if there had ever before been an instance like it,4 but Genet was more fortunate in arranging the details of his procedure than was the French consul at Boston. The persistence of the marshal at the latter place led the consul into conduct which surpassed that at New Y o r k . Duplaine, the French vice

5

consul at Boston had caused a

1

F., W. of /., I, 238, Anas,

2

Genet to Minister of Foreign Affairs, No. 3 1 , Dec. io, 1793, C. of G.,

pp. 281-2.

July 10, 1793-

See explanation of

Jefferson to Genet, Sept. 9, 1793. F . ,

IV. of J., V I , 420-422. * F . , W.

of

J., V I , 417-20, Jefferson to Madison, Sept. 8, 1793;

W. of J., V I , 410-412.

F.,

Cabinet decisions, Sept. 7, 1 7 9 3 ; F., W. of J., V I ,

433"5> Jefferson to Washington, Oct 3, 1793. 4

Jefferson to Madison, Sept. 8, 1793, op. ext.; c f . ibid.., Sept. 1, 1793,

F . , W. of /., V I , 401-404. 6

Duplaine added this title to his signature.

(A.

S. P. F. R.,

and it is the title used by Washington in official papers

(ibid.,

I, 179) j8i).

Genet spoke of Duplaine as " C o n s u l par interim" (Genet to Minister of Foreign Affairs, No. 3 1 , Dec. 10, 1793, C. of G., 2 8 1 - 2 8 8 ) .

FOREIGN

RECRUITING

213

small 1 privateer to be fitted out near that port about the first of August. 2 Escaping arrest through the sympathy with France of some of the state 3 and federal * officials at Boston this privateer proceeded to chase vessels within and just out of that harbor. 5 On August 21 this privateer, the Roland, made prize of the schooner Greyhound with a cargo of ninety-five thousand mackerel.6 The same day the former owners of the schooner brought suit for recovery in the United States district court T on the grounds that the vessel had been captured within the jurisdiction of the United States.8 A deputy marshal with a writ of replevin went to seize the vessel. He got on board and announced that the vessel was in his possession. The prize master thought differently and after considerable controversy an armed guard was sent to the schooner and she was moved over beside a French ship of war, 9 by the order of Duplaine.10 The marshal, being informed that he would be 1 Gore to R. King, Aug. 1, 1793 (Charles R. King, Life and Correspondence of Rufus King, I, 487-8) cites the size as proof that the vessel was intended only for cruising in or near the harbor.

' Cabinet opinion, A u g . 5, 1793 (F., W. of J., V I , 363-4). ' Gore to King, A u g . 4, 1793 (King, op. cit., I, 490-2) thinks that Gov. Hancock was reasonable but that Lt. Gov. Samuel Adams was responsible for the delay which permitted the escape. Cf. ibid., Aug. 8, 1793 (ibid,, I, 493-4)4

Higginson to Hamilton, A u g . 24, 1793 (H., W. of H., V , 577-580).

Gore to King, A u g . 1, 1793 (King, op. cit., I, 487-8). were in the crew. 4

T w o Americans

• Writ of replevin ( A . S. P. F. R., I, 179). 7

Ibid.

Genet to Minister of Foreign Affairs, No. 31, 10 Dec., 1793, C. of G., pp. 281-2. 9

9 Sworn statement of Samuel Bradford, the deputy marshal, I, 181. 10

A.S.P.F.R.,

Ibid., sworn statement of Thomas Amony, A. S. P. F. R., I, 179;

214

AMERICAN

NEUTRALITY

IN 1793

opposed by force if he undertook to move the vessel, dismissed his assistants but remained on board the Greyhound, himself, for three days.1 A t the end of that time the ship of war removed the guard, sailed out of the harbor, and the marshal had the ship brought to the wharf. 2 During the three days, which the marshal spent on board the vessel the district attorney, another marshal and several other men were remonstrating with Duplaine against this use of force, but the consul refused to release the vessel.3 By the laws of France, the captain of the frigate was under the orders of the consul as long as his ship of war remained in the harbor.4 He evidently concluded that it was very unwise for the consul to use force in opposition to the laws of the land and decided to avoid further difficulty for himself by sailing away and leaving the consul to conceal his surprise as best he could.5 The cabinet first heard of this conduct of the French consul through two private letters.® It immediately ordered the district attorney at Boston thoroughly to investigate the case, and institute such a prosecution against Duplaine as Gore to Duplaine, Aug. 22, 1793, A. S. P. F. R., I, 179; Sworn statement of J. Brooks, A. S. P. F. R., I, 180; sworn statement of Lyde, A. S. P. F. R., I, 180; Higginson to Hamilton, Aug. 24, 1793, op. cit.; Genet to Minister of Foreign Affairs, No. 31, op. cit. Bradford, op. cit.

1 1

1bid.

»A. S. P. F. R., I, 179-181. 4 Captain Van Dogen to John Lowell (sworn statement by Lowell, A. S. P. F. R„ I, 180).

* Bradford, op. cit. • Christopher Gore, U. S. Atty. at Boston, to Tobias Lear, Sec. to Pres. Washington, Aug. 24, 1793 (referred to in Jefferson to Gore, Sept. 2nd; F., IV. of /., VI, 404-406) ; Higginson to Hamilton, Aug. 24, 1793, H., W. of H„ V, 577-80. The Cabinet had discussed the fitting out of the Roland at its meeting on Aug. 5th, F., fV. of /., VI, 363-4.

FOREIGN

RECRUITING

215

the case would bear. If it seemed that the conduct would bear prosecution on several charges, Gore was to press the one that would bear the least doubt, even if it was a less serious charge. Otherwise, " an acquittal, though it might be founded merely on the opinion that the grade of offense with which he [was] charged is higher than his act would support, yet it might be construed by the uninformed to be a judiciary decision against his amenability to the law." 1 The cabinet did not care to have another case result as the one against Henfield had. The cabinet also called the attorney's attention to the fact that consuls were not " diplomatic characters " and were especially declared in the Consular Convention to be " subject to the laws of the land as the natives a r e . " 2 Gore, whose opposition to the proFrench acts was well known,' faithfully carried out these instructions, but to no avail. Three times the attorney brought charges against the consul and three times the jury failed to sustain the charges,4 much to the joy of some citizens of Boston 5 and in other parts of the country." The letter instructing the attorney to prosecute Duplaine also instructed him to obtain the best evidence he could, upon oath, and send it to the Federal Government " within as few days or even hours " as possible.7 This " accom1

Jefferson to Gore, Sept. 2, 1793, F., W. of J., V I , 404-406.

* Article II, Franco-American Consular Convention, 1788. ' Higginson to Hamilton, Aug., 24, 1793, H., W. of H., V , 577-80. 4 Genet to Samuel Adams, Oct. 28, 1793, George Bancroft Mss. Samuel Adams Papers, N. Y . P. L . ; Genet to Minister of Foreign A f fairs, No. 31, 10 Dec., 1793, C. of G., pp. 281-2; Stephen Higginson to Hamilton, Aug. 24, 1793, H., W. of H., V, 577-580. 5

See Samuel Adams to Citizen Genet, Oct. 22, 1793, in De Witt, Thomas Jefferson, pp. 556-557. • Marshall, Life

of Washington, V, 454.

' Jefferson to Christopher Gore, Sept. 2, 1793, F., W. of J., V I , 404406; cf. Cabinet opinion, Aug. 31, 1793. F., W. of J., V I , 398-400.

216

AMERICAN

NEUTRALITY

IN 1793

plice " of Genet's was not to escape the results of his " criminal conduct " 1 so easily when the cabinet tried the case as he did when the juries freed him. The cabinet had decided on August 31 that Duplaine's exequatur should be revoked if it appeared that he had been guilty of the conduct charged.2 The yellow fever interfered with communications considerably just at that time, but it was scarcely more than a month until the exequatur was revoked.3 These actions at Boston won for Duplaine the unenviable distinction of being the only French agent in America, except Genet, who was specifically named in the decree of the French Committee of Public Safety ordering the arrest and return to France of such agents as were guilty of malversations.* Genet himself, of course, took an entirely different view of the matter. He had been notified on September 1 5 that he might expect Duplaine's exequatur to be revoked 5 and the exequatur of the consul's successor, Dannery, was signed by the President on the same day that the other one was revoked.8 This was as far as the minister went in acquiescence, however, and he even tried to explain away this slight act of consent on his part.7 Genet 1 Decree of the Committee of Public Safety, 16 Oct., 1793, printed in appendix to De Witt, Thomas Jefferson, p. 557.

' F., W. of J., VI, 398-400, Cabinet opinion, Aug. 31, 1793. s Letters patent signed by Washington (A. S. P. F. R., I, 181-182), Washington to Jefferson, Oct. 11, 1793 (F., W. of W., XII, 332-336). Announcing signature of above on Oct. 11, 1793, probably dated Oct. 3, 1793 —see Jefferson to Duplaine, Oct. 3, 1793, A. S. P. F. R., I, 178, Jefferson to G. Morris, Oct. 3, 1793, A. S. P. F. R., I, 182; Jefferson to Washington, Oct. 3, 1793, F., IV. of }., VI, 433-5. ' Decree of Com. of Pub. Safety, 16 Oct., 1793, DeWitt, op. cit. 5

Jefferson to Genet (Sept. 15, 1793), F., W. of J., VI, 429-30.

• Washington to Jefferson, 11 Oct., 1793, F., W. of W., XII, 332-336. ' Dannerv's exequatur had to have been officially submitted for signature by Genet. See F., W. of J., I, 232. Anas, May 7, 1793 for an explanation of the usual procedure.

FOREIGN

RECRUITING

217

denied the President's right to remove Duplaine and answered the official notification which he received 1 of the removal with a philippic 2 which he published in the newspapers before delivering it to the Secretary of State. 3 The protest which Genet instructed * Dannery to deliver to the Governor of Massachusetts explained his interpretation of the exist of Duplaine in the following w o r d s : s I consul of the French Republic at Boston protest against the act of the Government of the United States which purports a Dismission of Citizen Duplaine, the consul par interim at Boston, and declare that Citizen Duplaine is only deprived of his functions by being replaced by Citizen Dannery appointed by the Executive Council of the French Republic to fulfill the duties of the Consulate. I declare that . . . every other case of this sort . . . can be only a persecution exercised against the Citizens of an independent Nation and an act of offense against the French nation itself. There was considerable significance attached to the last sentence of this protest, because the Federal Government had already threatened to revoke other exequaturs. The incidents happening at Boston and at N e w Y o r k at about the same time had forcibly brought the government to a reali1

Jefferson to Genet, Oct. 3, 1793, W., W. of J., I V , 72.

* The copy of this which Genet submitted to Samuel Adams for his approval may be found in the George Bancroft Mss. Samuel Adams Papers, N. Y . P. L., Genet to Adams, Oct. 28, 1793. s

Jefferson to Madison, Nov. 2, 1793, F., IV. of J., V I , 438-440; c f . T. J. P., No. 16122, Jefferson to Genet (not sent). 4

Citizen Dannery to Citizen Adams, Gov., Boston, Nov. 4, 1793, George Bancroft Mss. Samuel Adams papers, N. Y . P. L . ; Genet to Minister of Foreign Affairs, No. 31, Dec. 10, 1793, C. of G., pp. 281-282. 5

Protest Dannery to Gov. of Mass., Nov. 7, 1793, George Bancroft Mss. Samuel Adams Papers, N. Y . P. L . ; this protest was discussed by the Cabinet at the meeting on Nov. 22, 1793, F., IV. of J., V I , 452-3, Cabinet Decisions.

218

AMERICAN

NEUTRALITY

IN 1793

zation of the fact that Genet and the French consuls generally, were ignoring the wishes of the Administration and proceeding in the condemnation of prizes as though it had not been forbidden. The cabinet decided the first of September to take effectual measures to put an end to this exercise of admiralty jurisdiction which they considered both an infringement of the country's sovereignty and a violation of its neutrality. 1 It was announced to the diplomats 2 and to interested private individuals 8 that the government had had " particular " reasons for believing that the former measures would be sufficient, " but finding at length they would not, such others have been lately taken, as can no longer fail to suppress this irregularity completely." These measures consisted of revoking the exequatur of Duplaine, partly as an example, and of notifying all the other consuls, that their exequaturs would be similarly revoked if they committed any of the forbidden acts, that the violations would be suppressed " by the authority of the country," and that the offending consuls would be punished as the laws prescribed.4 The consuls did not all accept this warning in silent meekness 5 but it does not seem that the President found it necessary to revoke any more exequaturs. The 1 F., IV. of J., VI, 410-2, Cabinet Decisions, Sept. 7, 1793; the Supreme Court took the final step necessary to completely set the question at rest when it decided against any such French right; The Betsey (1794), 3 Dallas 6.

»Jefferson to Genet (Sept. 15, 1793), F., W. of J., VI, 429-30; Jefferson to Hammond, Sept. 9, 1793, F., W. of J., VI, 422-4, the quotations are from the latter. ' T. J . P., No. 15844, Jefferson to Messrs. Wilson, Potts & Eaton, Sept. 1, 17934 Circular to the French Consuls, Sept. 7, 1793, F., W. of J., VI, 417; cf. Jefferson to Genet (Sept. 15, 1793), F., W. of J., VI, 429-30. s Hauterive sent a proud and haughty answer; see Jefferson to Washington, Sept 15, 1793, F, W. of }., VI, 428-9.

FOREIGN

RECRUITING

219

agents of France still continued to display excessive enthusiasm at times 1 but it is very probable that the warning was as effective as could be expected.2 There was no doubt, in spite of Genet's attempts to explain Duplaine's exit, that the President could remove consuls and it probably was not long until these agents began to suspect that they had better not put too much confidence in Genet's ability to take care of them, or even of himself." 1

Jefferson to Genet, Nov. 5, 1793, A. S. P. F. R., I, 182; Moissonier to Gov. Lee (of Md.), Oct. 23, 1793, ibid., 182; Genet to Jefferson, Nov. IS, 1793, ibid., 183. Hammond to Grenville, No. 20, Oct. 12, 1793, B. S. P . ; Grenville to Hammond, No. i, Jan. n , 1794; Henry Adams Transcripts, B. S. P.; Cabinet Decisions (Nov. 23, 1793), F., W. of /., VI, 452-3* Genet wrote Jefferson on Nov. 29, 1793, " I have long since prescribed to all our consuls neither to oppose nor allow to be opposed our resistance to the moral force of the justice of the United States," A. S. P. F. R., I, 185. • Aside from the question of the right of French consuls to condemn prizes in consular courts established in the United States there arose the additional question as to whether French prizes legally condemned elsewhere should be permitted to be sold in the United States (H, W. of H., V, 553-4, King to Hamilton, April 24; T. J. P., No. 14559, Notes April, 1793; F., W. of J., VI, 232, Jefferson to Madison, April 28). The Franco-American treaty of Amity and Commerce, Article 22, provided that English ships were not to be permitted to sell their prizes here, but there was no statement that French vessels could or that they could not. At first sight this seems as clear a case as the fitting out of privateers. It was prohibited to one and should therefore be prohibited to both. There was a distinction between the cases, however, based largely upon prevailing practices in Europe at the time. There was a belief that permitting the sale of prizes by one belligerent in a neutral country was sufficiently sanctioned to justify the United States in granting France this privilege and even to justify France in objecting to a refusal to do so. (See Hamilton to Jay, June 4, 1794, L., W. of H., VIII, 320-1; F., IV. of J., I, 242, Anas, July 13, 1793). To this reasoning was added the additional inducement that came from a desire to buy these prizes, often at a bargain. Still however, there was the possibility that Great Britain might consider such conduct unneutral. The question came before the Cabinet for decision the last of May, 1793. The decision

AMERICAN

NEUTRALITY

IN 179S

was that " no power less than the legislature can prevent" the sale of these prizes, but that the President should recommend such a prohibition to Congress when it met. ( T . J. P., No. 14997, Notes end of May; T . J. P., No. 14993, Randolph to Jefferson, May 31, 1793; T. J. P., No. 14994, Randolph to Tobias Lear; L., W. of H., IV, 224. No Jacobin, No. I V ) . There was a clause in the Neutrality Bill of 1794 which prohibited such sales in the United States but the clause was rejected before the bill became a law (Hamilton to Jay, June 4, 1794, L., W. of H., VIII, 320-321; Statutes at Large, I, 381-383). The sale of French prizes in the United States continued down to the ratification of Jay's treaty which prohibited this practice as did article 22 of the Franco-American treaty (Jefferson to Albert Gallatin, Aug. 28, 1801. F., W. of J., V I I I , 86).

CHAPTER VI GENET'S EFFECT O N

AMERICAN

NEUTRALITY;

NEUTRAL

D U T I E S — N E U T R A L RIGHTS

JEFFERSON wrote one passage into the Anas1 which will forever condemn him in the eyes of those seeking to prove that he was " more French than American." 2 Genet himself would not have made many changes had he been asked to revise this argument. The explanation of the notes in the Anas for May 20, 1793, has been given above.3 They do not represent Jefferson's mature judgment at the time they were written; he would not have executed many of the proposals even if left to himself, but this passage does show the length to which Jefferson's mind was willing to go, in May, when driven to extremities. Three months later Jefferson wrote an indictment * of Genet which was one of the most condemnatory ever written of any minister. Genet had lost the first and last member of the Administration upon whose confidence he could depend.5 Jefferson by this time had withdrawn his support of Genet; consequently, his notes of earlier cabinet arguments as recorded in the Anas and as used by later critics, represent views which he had discarded some time previously. His proposals at cabinet meetings had come to be as indicative of a true American 1

Anas, May 20, 1793, F., IV. of J., I, 229.

5

McMaster, History of the People of the United States, II, 103.

3

Supra, p. 190.

Jefferson to Gouverneur Morris, August 16, 1793, F., IV. of J., V I , 371-393. 5 C. of G., p. 210, Instructions to Genet. 221 4

AMERICAN

NEUTRALITY

IN 1793

neutrality as those of any of the President's advisors, and more truly neutral than many of the plans that were proposed.

Genet, himself, w a s largely responsible f o r this clar-

ification and assertion o f the underlying principles of neutrality that characterized Jefferson's attitude, as he was also responsible for the immediate development of many of the principles which were to characterize the neutral policy of the United States in years to come.

A consideration of

Genet's conduct and its effects between M a y and A u g u s t , and later, is consequently pertinent in any study of the origin of these principles. Genet's arrival at Charleston, his conduct there, his journey to Philadelphia and his reception by the President have been considered above.

Jefferson in describing Genet's part

in this audience, wrote to Madison t h a t : 1 It is impossible for anything to be more affectionate, more magnanimous than the purport of his mission. W e know [said Genet] that under present circumstances we have a right to call upon you for the guarantee of our islands. But we do not desire it. W e wish you to do nothing but what is for your own good, and we will do all in our power to promote it. Cherish your own peace and prosperity. . . . W e see in you [the United States] the only person on earth who can love us sincerely, and merit to be so loved. In short [Jefferson added] he offers everything and asks nothing. Genet was not long to offer everything and ask nothing.

He

had already taken too much f o r granted without asking, and he was beginning to feel the reaction to such a course.

While

Jefferson was w r i t i n g to Madison, Genet w a s pondering the letter of the fifteenth of M a y 1

2

transmitting the complaints

Jefferson to Madison, May 19, 1793, F., W. of J., VI, 259-262.

'Jefferson to the French Minister (Ternant), May 15, 1793, A. S. P. F. R., I, 147-148.

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

223

of the British minister. Within less than a month the French minister had to face the adverse decisions of the cabinet on the controversy over the ship Grange, the right to fit out privateers in American ports, the right to enlist citizens of the United States to serve on these, the claim of admiralty jurisdiction for consular courts, the right of the illegally equipped privateers to remain in our ports, and on his claim that the courts of the United States could not take cognizance of any French prize.1 Genet had brought all this upon himself, but the force of all these contrary decisions at once was enough to shake the poise of any diplomat. They had a very decided effect upon Genet. He had tried to be conciliatory in the Grange case, the last of May, but he soon lost any ability he might ever have had along this line.2 1

There were also additional decisions not pleasing to the French Minister. See for example his proposition for the advance payment of the debt of the United States to France, discussed in Appendix II. * The disposition of Genet is well illustrated in a minor question that arose over the address of consular commissions, and the formality of receiving them. The Secretary of State first merely called his attention to the fact that such commissions should be addressed to the executive branch of the government and that the original commission must be produced according to law before an exequatur could be issued. Instead of acquiescing, as Hammond did, Genet began a long argument which became warm on each side and finally ended by the refusal of the executive to receive any commissions improperly addressed, and by Genet referring the matter to his home government as being " more important than it seemed." The following references cover this dispute and the formality observed in granting exequaturs. Jefferson to Hammond, August 27, 1793, T . J. P., No. 15805; ibid., August 24, 1793; ibid., 15789; ibid., September 10, 1793; ibid., 15917; Jefferson to Genet, October 2, 1793, A. S. P. F. R., I, 178; ibid., November 5, J. G. L„ pp. 35-6; ibid., November 11, T. J. P., No. 16184; Genet to Jefferson, November 14, A. S. P. F. R., I, 184; Jefferson to Genet, November 22, F., W. of /., VI, 451; Cabinet Decisions (November 23, 1793), F., W. of J., VI, 5424531 Jefferson to Genet, December 9, 1793, F., IV. of J., VI, 463-465; Genet to Minister of Foreign Affairs, 10 December, 1793, No. 29, C. of G. pp. 279-280; Jefferson to Genet, December 25, 1793, T. J. P., No. 16408.

AMERICAN

NEUTRALITY

IN

179$

His letters to the Secretary of State became rapidly more insolent until he reached the one of June 22 which was so insulting to the President and to the Administration as a whole that it was never answered. 1 T w o weeks later the cabinet had learned of the equipping of the Little Democrat. During the turbulent week that followed Genet surpassed in arrogance all his past conduct, destroyed the last hope of keeping the confidence of Jefferson, 2 and dropped, in a moment of fury, the expression that his enemies later used to seal his fate. Genet was unfortunate in convincing the Administration that it must take drastic action, and in giving his enemies a chance to indict him before the people with a catch-phrase at the same time and over the same incident, but the final result would probably have been the same anyway. Washington would never have requested Genet's recall against the advice of Jefferson, 3 and with Jefferson leading the Republicans in support of the Administration in this matter, the remaining popular support of Genet would not have been worthy of serious consideration. The result for Genet was that he retained little more than a semblance of support left to console him. The phrase which was used in the popular campaign against the French minister was a statement which he made that he would " appeal from the President to the people." There were some people,4 it is true, who could 1

Genet to Jefferson, June 22, 1793, A. S. P. F. R„ I, 155-156. J. P., No. 15830-15834. Jefferson to Genet (not sent).

C f . T.

* C f . Jefferson to Monroe, June 28, 1793, F., W. of J., V I , 321-324; with, Jefferson to Madison, July 7, 1793; ibid,., 338-339, and Jefferson to Monroe, July 14, 1793; ibid., 346-350; Jefferson to Monroe, July 14, 1793, T. J. P., No. 15508. ' Jefferson was weakening in his enthusiasm for Genet before the Little Democrat incident, see Jefferson to Madison, June 28, 1793, F., IV. of /., V I , 321-324. ' T h e National

Gasette,

August 21, 1793, " W h y all this outcry against

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

not see such a heinous offense in making a statement like that in a republic, but it served as a rallying cry for all antiFrench sentiment and the idea of a foreign minister making such a statement won many people into opposition to Genet w h o were not anti-French. Genet made the statement in his argument with Dallas over the Little Democrat on the 1 night between the sixth and seventh of July. He probably repeated the same sentiment in his conversation with Jefferson on the seventh. 2 There is no doubt that the phrase expressed exactly what Genet meant 3 and Jefferson confidentially told Madison that there was no doubt that Genet had used it on the occasion charged. 4 W h e n the Federalists were later making political capital 5 out of the phrase both the minister of France for saying he would appeal to the people. Is the President a consecrated character that an appeal from his decision must be considered criminal." 1

L., W. of H., V I I I , 307, Hamilton to Rufus King, August 13, 1793.

* F., W. of }., I, 238, Anas, July 10, 1793. ' Over a week before this incident Jefferson had written to Monroe " I am doing everything in my p o w e r . . . to destroy the dangerous opinion which has been excited in him [Genet] . . . that he has an appeal from the Executive to Congress & from both to the people." Jefferson to Madison, June 28, 1793, F. W. of J., V I , 331-24. Jefferson had been forewarned but it was useless. 'Jefferson to Madison, September 1, 1793, F., W. of J., V I , 401-404. " I can assure you it is a fact." ' T h e r e seems little doubt that this is a just accusation against these politicians. There is some similarity between their conduct in this incident and the Republican opposition to the proclamation of neutrality. Each was partly for political effect and partly non-political. Hamilton in the latter case gave the hint to Jay and King arid they issued the statement relying upon Hamilton to help them in the latter part of the conroversy. See L., W. of H., V I I , 307; King, Life and Correspondence of Rufus King, I, 438-69; Jay, Life of John Jay, I, 303; Hunt, Writings of Madison, V I , i78-i"9n. Madison to Jefferson, August 27, 1793; Hamilton, Writings of Monroe, I, 260-276, 279. Monroe to Jefferson, August 21, September 3, and December 4, 1793.

226

AMERICAN

NEUTRALITY

IN 1793

J e f f e r s o n 1 and Dallas 2 found some technicality which would enable them to deny that the statement had been made to either of them, but these denials were evident mainly for political use.8 The decision which the cabinet reached with regard to Genet, shortly after the Little Democrat incident, was not based upon a catchphrase, nor was it entirely the result of the arrogance which the French minister showed in this one case. That event merely marked the crisis in a course that had been inevitably tending in the same direction ever since Genet's arrival. The equipping and sailing of the Little Democrat, was, however, the last straw. Hamilton immediately made a motion that France should be requested to recall Genet. Jefferson at that time suggested a milder course and the President was silent.4 Jefferson, himself, had already lost hope of being able to correct the course the French minister was pursuing. His private letters show that. 5 The counter proposition which he made to Hamilton's early proposal for a recall was probably mainly to pre1 See the statement which Jefferson prepared for newspapers, but did not use. F., W. of J., V I , 432-433.

* See statement by Dallas, published in the American Daily Advertiser (Philadelphia), December 9, 1793, as reprinted in Historical Magazine, X, 336. This magazine reprints here most if not all of the Articles which appeared in contemporary newspapers on this dispute. * T h e later history of this charge by J a y and King and the dispute that followed can easily be found in the above citations to the works of J a y , King, Hamilton, Jefferson and a good account partial to Genet but reproducing many of the letters which passed is given in the Historical Magazine, X , 329 et seq. Genet tried to prosecute J a y and King for libel before the quarrel was over and the dispute furnished the occasion for some of Genet's major disputes with the administration during the latter part of the year. * F., IV. of J., I, 243, Anas, 6

13 July, 1793.

Jefferson to Monroe, J u l y 14, 1793, F., IV. of J., V I , 346-350; Jefferson

to Madison, J u l y 14, 1793, T . J . P., No. 15508.

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

227

vent too precipitate action and to gain time. 1 T h e Secretary o f State realized that the neutrality o f the country had never been in greater danger than it was at that moment, 2 and Hamilton realized the same thing when he made the proposal. He gave Hammond to understand that this government looked forward to war with France as " neither improbable nor distant." 3 T h e action to be taken against Genet was again taken up at the cabinet meeting ten days later. T h e President, himself, introduced the subject this time and said that his own opinion was that Genet's " whole correspondence should be sent to G. Mor [Governor M o r r i s ] with a temperate but strong representation o f his conduct drawing a clear line between him & his nation, expressing our friendship to the latter but insisting on the recall o f Genet, and in the mean time that we should desire him either to withdraw or cease his functions." * This was a combination of the three plans proposed at the earlier meeting. It was satisfactory to Hamilton and he exhorted the President to remain firm, holding up the danger of losing the support of the people if any other course was pursued. W h e n Hamilton had finished, K n o x related certain incidents which Jefferson thought were intended to exasperate the President all the more with Genet. 5 No decision was reached at this meeting 1 Randolph was still absent on his journey to Virginia. He returned the following week (F., IV. of J., VI, 253-5, Jefferson to Madison, July 21, 1793)- Jefferson had little respect for Randolph ( T . J. P., No. 15695, Jefferson to Madison, August 11, 1793) but he would much rather have him present than absent when any voting was to be done in the Cabinet.

'Jefferson to Madison, July 14, 1793, T. J. P., No. 15508. " W e know too well t h a t . . . there is right enough on both sides to marshall each nation with its own agents and consequently against one another and consequently also us with England." ' Hammond to Grenville, No. 17, August 10, 1793, B. S. P. ' F., W. of J., I, 247, Anas, July 23, 1793. ' F., W. of J., I, 247, Anas, July 23, 1793.

228

AMERICAN

NEUTRALITY

IN

1793

and the question was suspended another week while Jefferson was preparing copies and translations of all of Genet's correspondence, for the benefit of those members who did not read French. 1 This material was read in the meeting on August i , and the final decision was reached.2 It was agreed unanimously that a full statement of Genet's conduct and a copy of his correspondence should be sent to the United States minister to France, to be transmitted to the executive council. They agreed also that Genet's recall should be requested in this letter. K n o x suggested in addition that they " send him off " but Jefferson says this proposal to dismiss Genet was rejected by all the others.3 The Secretary of State adds that he himself advised that the request to recall Genet be expressed with great delicacy, but that the others were for peremptory terms.4 The decision being agreed upon, the drafting of the letter which was to be transmitted to the executive council 5 was naturally left to the Secretary of State.® 1

The President himself seemed to require translations. Washington, September 15, 1793, F., W. of J., V I , 428. ' F., W. of J., I, 252, Anas,

Jefferson to

August 1, 1793.

3

Hammond explained to his government that " in consideration of his [Genet's] distance from home his functions would not be entirely suspended, but that he would still be allowed to make any communication in writing on ordinary business." Hammond to Grenville, No. 17, August 10, 1793, B. S . P. * F., W. of J., I, 252, Anas, August 1, 1793. 4

This letter was to be addressed to Gouverneur Morris but was to be " so prepared as to serve for the form of communication to the council." F., W. of J., I, 252, Anas, August 1, 1793. • J o h n C. Hamilton's claim that the Secretary of Treasury wrote this letter is ridiculous (H., L. of H., V , 335). There is some justification for a claim that Hamilton was responsible f o r some of the ideas which went into this letter. Many of these were drawn from Cabinet discussions and some were contributed by all the members. But John C. Hamilton bases his claim also on the literary style of the letter. There is no doubt

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

Much depended upon the way in which the request to recall Genet was worded. Hammond wrote to Grenville, " should the national convention determine to support its minister—this order of things must issue in war between France and this country." 1 Perhaps the British minister was too hopeful, but a serious situation might have resulted if the request had been expressed in a manner unsatisfactory to France. W e may assume that the word peremptory was used by the majority of the cabinet 2 with the meaning of incontrovertible, and that the decision was not that the request should be dictatorial. In this sense Jefferson produced a masterpiece in writing the letter to Morris.® The request stated in as positive terms as anyone could desire, 4 appeared at the end of the eight-thousand-word letter which throughout was as delicate as any that Jefferson could have had in mind when he suggested that the request be expressed with " great delicacy." 5 This gentleness, however, did not spare Genet. A clear distinction was made between the minister and his government. 8 Genet was indicted in a most thorough and most conclusive manner but the " constant and unabating " friendship of the United States for the French nation was expressed " with assurances which cannot whatever that Jefferson was responsible for the rhetoric of the letter and that he did the actual writing of it. Cf. /efferson to Madison, August 11, 1793 (F., W. of J., VI, 367-70), with the letter to Gouverneur Morris. See Jefferson to Washington (August 18, 1793), F., IV. of J., VI, 3650. 1

Hammond to Grenville, No. 17, August 10, 1793, B. S. P.

F.,

1

IV. of J., I, 252, Anas, August 1, 1793.

»Jefferson to Morris, August 16, 1793, F., IV. of J., VI, 371-393. 4

F., IV. of J., VI, 393; op. cit.

5

F., IV. of J., I, 252, Anas, August 1, 1793.

• F., W. of J., VI, 374, Jefferson to Morris, August 16, 1793, " Our first duty was to draw a strong line between their intentions & the proceedings of their minister."

AMERICAN

NEUTRALITY 1

bo s t r o n g e r than t r u e . " letter, h o w e v e r , French

government

ments o f

179S

T h e m o s t s t r i k i n g f e a t u r e of this

is the m a n n e r

G e n e t t o indict h i m s e l f .

IN

in w h i c h

Jefferson

causes

T h e letter is so c o m p o s e d that the

is not a s k e d to rely u p o n

the a d m i n i s t r a t i o n .

The

charges are

the

state-

all

based

u p o n the letters f r o m G e n e t to the S e c r e t a r y o f S t a t e , copies o f w h i c h w e r e sent w i t h this complaint. tions

are

mentioned

they

are

incidental,

When and

conversaeven

then

u s u a l l y o n l y those c o n v e r s a t i o n s w h i c h w e r e later s u m m a r ized in w r i t i n g . 2

H a m i l t o n had suggested charging Genet

also w i t h that p a r t o f his unofficial conduct w h i c h w a s

of-

1

Ibid., p. 393. See however one friendly expression that was eliminated at the Cabinet meeting 011 August 20 because of fear of giving offence to the other nations. F. ( W. of J., I, 259, Anas, August 20, 1793. C f . p. 391 of the letter in F., W. of J., V I . Jefferson was very much opposed to this elimination. H e said that from the first correspondence with Genet he had favored censuring the minister but accompaning it with assurances of friendship for his nation, that he had inserted such expressions of friendship in the first few letters but that the other gentlemen had struck them out ( f o r examples of this see T . J . P., Nos. 14993, 15059 on the letter to Genet on June 5, 1793). Jefferson said that he had then conformed to their opinions in his subsequent letters and had not inserted a single term of friendship, that on the present occasion however it had been agreed that such expressions should be inserted to reassure France and that he had accordingly charged the letter pretty full of them; that he felt that this expression about "liberty warring on herself " was essenial to assure France and the people of the United States that this country in requesting the recall of Genet was not attacking the cause of liberty. This explanation at the Cabinet meeting, however, was ineffective, the President was undecided and the rest of the Cabinet voted to strike the phrase out, which was done. The Anas f o r August 20 contains this explanation. 1 It seems that Randolph suggested the reference to verbal conversations which Genet had had with Jefferson, the Attorney General advising that Jefferson make a careful record of these before the letter was written (Randolph to Washington, July 24, 1793, George Washington Papers, No. 34768). Randolph was however opposed to attributing any statements to Genet unless they had been made in conversations with Jefferson (Randolph to Jefferson, August 4, 1793, F., W. of J., V I , 3 7 3 ) .

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

231

fensive, 1 but Jefferson clearly saw that this would really only weaken the letter. 2 Such evidence would be based only upon hearsay. It would be easier to assemble, but Jefferson was willing to take the extra trouble ' if it would render the concurrence of France any more certain. The despatch of the letter requesting the recall of Genet did not end the anxiety of the administration about that minister and his actions. T h e y could not hope to get a reply f r o m France for several months. W h a t was to be done in the meantime? Genet was constantly becoming more unbearable. Washington had lost patience and was ready to suspend the functions of the minister while awaiting the reply 4 and it is probable that he continued to favor 5 this 1 See Hamilton's plan of the letter, F., W. of J., V I , 37™- (See the other drafts here assembled by Ford also).

* See Randolph's discussion of this proposal, Randolph to Jefferson, August 4, 1793, F., W. of }., V I , 373' A large part of Jefferson's time for three weeks was devoted to preparing this letter. The decision to write it was made August 1 (F., IV. of J., I, 252, Anas, August 1 ; F., IV. of J., V I , 397, Cabinet opinion). Jefferson received the outlines drafted by Hamilton and Randolph a day or so later (F., W. of J., V I , 37i-375n. These are reprinted here). There are several references to his working on the letter in his confidntial letters written during the next two weeks (Jefferson to Washington, August 18, 1793, F., W. of J., V I , 36sn., Jefferson to Madison, August 11, 1793. F., W. of }., V I , 367-70, the first speaks of part of the letter being completed on August 6). The rough draft was read at the Cabinet meeting on August 15 (F., IV. of J., V I , 397, Cabinet opinion), the letter was carefully read by paragraphs, corrected and agreed to on the 20th (ibid., F., IV. of J., I, 259, Anas, August 20), and the letter was signed on August 23, it being agreed that it should bear the date of the last document it contained that is, August 16, 1793 (H., IV. of H., I V , 468-9, Cabinet opinions). The letter was sent on a special swift-sailing vessel and care was taken to guard against its interruption (F., W. of J., V I , 397, op. cit.; Hammond to Grenville, No. 19, September 17, 1793, B. S. P., the date given by Hammond must be a mistake; Note, Hamilton to Jefferson, T . J. P., No. 15777). 4

F., IV. of J., I, 247, Anas, July 23, 1793.

5F.,

IV. of J., I, 265-6, Anas,

November 8, 1793; ibid., 267.

Anas,

AMERICAN

NEUTRALITY

IN 1793

course, which had been suggested by Knox. Jefferson called attention to the unfairness of leaving a belligerent so long without a representative in a neutral country 1 and it was agreed not to suspend Genet's functions, although by way of insurance, there was included in the letter of August 16 a statement that this step might be found inevitable.2 If Genet was to continue for several months to serve as French minister here, should he be informed that his recall had been requested, or should he be left here to think that he was defying the Administration with impunity? Would such a warning only make the minister all the more active, or would it have a restraining effect? These questions were considered at the cabinet meeting on August i and it was then decided to tell Genet that his government had been requested to recall him.3 A complete copy of the letter to Gouverneur Morris was sent to Genet,* but not until September 15, when the dispatch boat was far enough away to prevent its being overtaken by ships under Genet's orders." 5 He was assured that he would be permitted to continue his November 18, 1793; King, Life and Correspondence of Rufus King, I, 479-80, contemporary notes by King. 1 Cf. Hammond to Grenville, No. 17, August 10, 1793, B. S. P., with Anas, July 13, F., IV. of }., I, 243. The wisdom of this forebearance was rather generally recognized in the Cabinet, see Anas, August I, 1793, F., IV. of J., I, 252. 1 F., IV. of J., VI, 393, Jefferson to Gouverneur Morris; the President was several times very near to suspending Genet before word finally came that he was to be recalled. There was constant danger of this from the middle of November until the first of January, see King, Life and Correspondence of Rufus King, I, 479-480; F., IV. of J., I, 265-268, Attas, November 8-18, 1793; L., W. of H„ VII, 78-79. * F., IV. of J., I, 252, Anas, August 1, 1793. Jefferson was opposed to this, thinking it would only make him more active. * Note following this letter in A. S. P. F. R„ I, 172; Jefferson to Genet (September 15, 1793), F., W. of J., VI, 429-30. * Hammond to Grenville, No. 19, September 17, 1793, B. S. P.

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

233

functions only " so long as they shall be restrained within the limits of the law as heretofore, announced " to him.1 Hamilton made one proposal at the cabinet meeting on August 1 which Jefferson opposed with all his ability. This was a motion that the whole correspondence with Genet and a statement of the proceedings be published as an appeal of the Administration to the people.2 This proposal was made by Hamilton largely for political reasons 3 and Jefferson was motivated almost entirely by political expediency in opposing the motion.4 Each man, however, advanced other argu' F., W. of J., V I , 429-30. Jefferson to Genet (September 15, 1793)It is interesting to read the protest, quoted above which Genet instructed Dannery to make against the dismissal of Duplaine. T h e denial that the President had power to dismiss Duplaine would apply equally well to the threatened dismissal of Genet himself, c f . also Genet to Jefferson, November 14, 1793, A. S. P. F. R., I, 184. ' F., W. of J., I, 252, Anas, A u g u s t I, 17933

Hamilton did not express himself so freely in letters which were to be preserved as did Jefferson but the advantages the Federalists would d r a w f r o m such a step render Jefferson's suspicions reasonable (Jefferson to Madison, August 11, 1793, T . J . P., Nos. 15692-95, second letter of this date; c f . Hamilton to R u f u s King, August, 1793, L., W. of H., V I I I , 307-309). Jefferson said " t h o s e a r e proposing an appeal to the people that never looked towards that tribunal before." Jefferson to Madison, July 14, 1793, T . J . P., No. 15508. 4

It is easy to see that Jefferson's strongest fears of such an appeal were based upon the effect it would have on the party that had been most friendly to Genet. H e is very f r a n k in his second letter to Madison on August 11, 1793 ( T . J . P., Nos. 15692-15695—not the letter in F., IV. of J., for this d a t e ; F., W. of J., V I . 361-362, Jefferson to Madison, August 3, 1793). H e had earlier said, " i f it ever should be necessary to lay his [Genet's] communications b e f o r e Congress or the public, they will excite universal i n d i g n a t i o n " (Jefferson to Madison, July 7, 1793, F., W. of J., V I , 338-9). H e thought that a f e w months delay would give the Republican party time enough to abandon Genet and convince the people of the distinction between the minister and French nation (August 11, 1793, op. cit.). Monroe was not so certain of the ability of the people to make this distinction ( H a m i l t o n , W. of Monroe, I, 273276, Monroe to Jefferson, September 3, 1793, c f . Madison to Monroe, September 15, 1793, H u n t , W. of Madison, V I , 190-197).

234

AMERICAN

NEUTRALITY

IN 179S

ments to justify his contention. Hamilton and K n o x argued that the people were now supporting the government and that a publication would strengthen their confidence in the Administration, whereas, on the other hand, there were many people supporting Genet and that if he were left to publish only what he wanted to he might draw enough support to overthrow the government. 1 This possibility aroused considerable apprehension in the mind of the President 2 and he favored the publication. 3 Jefferson replied to these arguments with an open accusation that it was an attempt to make the President the head of a party, and called attention to the fact that there had been dissensions in the cabinet on many decisions. A publication would only advertise these and there would be the same dissension among the people. It would devolve into a contest between the President and Genet for popular support. Such a contest would be undignified and there was no need for it because the people were still supporting the Administration. 14 The last argument was the one that won the President. Randolph suggested that the appeal to the people be postponed until it was seen that the executive needed to take some drasic action to win popular support and Washington decided upon this plan, saying that it might not be necessary at all.8 T h i s proved to be the case and, although the President does not seem to have been always certain that he had chosen the wiser course,® the Administration did not publish the cor' Washington to Jefferson, 6 October, 1793, F., IV. of W., X I I , 331-332, quoting Knox to Washington; Jefferson to Madison, August 11, 1793, T . J. P., No. 15692-15695). ' F., W. of J., I, 256 et seq, Anas, August 6, 1793. sation with Washington.

Notes on a conver-

'Jefferson to Madison, August 11, 1793, T . J. P., No. 15692-15695. 4

F., W. of J., I, 253, Anas, August 3, 1793.

'Jefferson to Madison, August 11, 1793, T . J. P., No. 15692-5. •Washington to Jefferson, 6 October, 1793, F., W. of WXII,

331-

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

235

respondence of Genet until Congress met in December, and it was laid before them in explanation of the request for his recall. It can readily be seen that the equipment of the Little Democrat and the resulting cabinet decisions of July and August marked the climax in Genet's diplomatic career in the United States, but the succeeding months were not at all an anti-climax. The tension was retained until the end. T h e French minister remained as willing to pervert American neutrality as he ever had been although less successful in doing so. He probably caused the cabinet as much worry over other matters at the last of the year as he did between M a y and August, by violations of the American Principles of Neutrality. It seems, however, that the notification that his recall had been requested did have a restraining influence on his actions, but not on his words. It will be recalled that the preventive measures taken by the government in answer to each of the complaints of the British minister became reasonably effective about this same time. These two circumstances account for the fact that Genet found it either inadvisable or impossible after the middle of September to commit many new violations of the neutrality of the United States, even though he was willing to do so. Much of the worry which he caused the cabinet the last of the year had its origin in questions that do not properly deserve more consideration in a study of neutrality. Many other questions had originated earlier and have been discussed above. Perhaps the most important of the remaining questions were those connected with the approaching session of Congress. These occupied a large portion of the time of the cabinet the 332. It is very probable that the President postponed the step as a concession to Jefferson. The conditional postponement could do little harm and Washington was going to appeal to Jefferson, within a week, to again postpone his resignation. F., IV. of /., I, 256, Anas, August 6, 1793-

236

AMERICAN

NEUTRALITY

IN 179S

latter part of the year. Genet had looked forward to this event since the first month of his mission to this country. Scarcely a question has been discussed above in which Genet did not add the additional argument that the decision made by the executive should have been left to the legislature. He had broadly hinted early in June 1 that the President should assemble Congress to consider the questions which were under discussion and he openly said in his letter of June 22 that Congress should have already been assembled.2 From this time on he insisted at every opportunity on the President's taking such a step. His reasons are evident. The people had given him an enthusiastic reception and he thought Congress would be as favorable to him.s It has been seen that in April Jefferson had some doubts of the competency of the executive to settle the questions that were arising. It was decided, however, that Congress should not then be called, Jefferson concurring in this opinion,4 and the question was not again formally presented to the cabinet until the last of July. In the meantime, Jefferson continued to think such a step advisable,® but if he ever realized such a desire to Genet it was soon regretted. It is certain that by June Jefferson was doing everything in his power to correct Genet's mistaken idea that Congress 1

Genet to Jefferson, June 8, 1793.

* Genet to Jefferson, June 22, 1793.

A. S. P. F. R., I, 1 5 1 . A. S. P. P. R., I, 155-156.

' Cf. C. of G., Genet to Minister of Foreign A f f a i r s , No. 4, June 19, 1793 (P- 216-28), August 2, 1793 (p. 235) ; No. 1 3 A , October 7, 1793 (p. 248) ; Jefferson to Madison, November 17, 1793, F., IV. of J., V I , 449-50. 4

F., W. of J., I, 227, Anas,

5

April 18, " w r i t t e n May 6 " .

F., W. of ]., V I , 277-79. He wrote Madison on June 2, " I should myself wish to keep their meeting off to the beginning of October if affairs will permit it." This was advising a session two months earlier than the legal date. Cf. F., IV. of J., V I , 280-282, Jefferson to Monroe, June 4, 1793; F „ W. of J., V I , 3 1 5 - 3 1 6 , Jefferson to Madison, June 23,

1793-

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

had final and exclusive jurisdiction in all matters.1 It is interesting indeed to find Jefferson descanting on the limitations of congressional power. He certainly gave several such private lectures to the French minister.2 Genet had carried the idea to lengths which Jefferson thought dangerous and he was trying to correct the minister in order to save France's reputation in America. 3 The attempt was futile but harmless. The Secretary of State did not lose any of his own doubts concerning the competency of the executive while he was trying to moderate those of the French minister. Jefferson was ready with his arguments in favor of an early session of Congress when the cabinet again considered the question. It seems that the President himself raised the question this time,4 and insisted on its discussion.5 Knox, Hamilton and Randolph were against the measure and Jefferson supported it.® The cabinet decided to prepare written opinions on the question. The three opinions agreed that since the last of April there had been no new sufficiently " extraordinary occasion " to justify the move.7 Jefferson found 1

Jefferson to Monroe, June 28, 1793, F., W. of J., V I , 321-324.

* See F., W. of /., I, 238, Anas, July 10, 1793, for Jefferson's account of what he told Genet on this subject. The accuracy of this passage in the Anas might be questioned if the letter to Monroe on June 28 did not remove all doubt of Jefferson's attitude. •Jefferson to Madison, August 11, 1793, T. J . P., Nos. 15692-15695. 'F., W. of J., I, 248, Anas, July 23, 1793. F., W. of fV., X I I , 317, Washington to Jefferson, August 4, 1793. • F., W. of J., I, 255, Anas, August 3, 1793. ' These opinions are all assembled in H., W. of H., I V , 455-562. Hamilton's can also be found in L., W. of H., I V , 211-213. This is one of the few questions in which we have been interested on which Knox prepared a separate opinion. The reason is probably found in the prominence of the probability of war as one reason advanced for calling Congress. The Secretary of War deprecated this motive because of the inadvisability of a winter campaign in any event.

AMERICAN

NEUTRALITY

IN 1793

such an occasion in the probability of war with the Creek Indians and Spain, and in the need of additional legislation to cover such cases as Henfield's. 1 The President told Jefferson that he " should have been for calling Congress himself " but he acquiesced in the majority 2 and Congress did not meet until the first of December. The date on which Congress was to assemble was, then, one month ahead when the cabinet reassmbled after the yellow fever epidemic. Much of this month was spent preparing the speech and the messages which the President was to deliver to the legislature. There was much to be explained : 3 the proclamation, the rules formulated by the administration to enforce neutrality, each of the major and several of the minor disputes with Genet, the controversies with Great Britain and the danger of war with Spain, to mention only those topics more closely connected with the formulation of the neutrality policy. The views of the ad1

F., W. of J., VI, 362-363. ' F., W. of J., I, 256, Anas, August 6, 1793; F., IV. of J., VI, 367-370. Jefferson to Madison, August 11, 1793. * There were still other questions which demanded consideration by Congress, but which the executive did not feel it would be proper to transmit in an official message. One of these was refunding to the St. Domingo refugees the tonnage duties they had had to pay upon entering the United States. These individuals were often penniless after their flight and the remission was generally favored but the Attornel General decided and gave an official opinion that the legislature was the only authority that could grant the relief. Genet's petition was transmitted to the legislature through private hands and Congress soon passed an act remitting the duties. Cabinet opinion, August 5, 1793, F., IV. of J., VI, 363-364; Jefferson to Hamilton, September 12, 1793, A. S. P. F. R., I, 178; Jefferson to Washington, October 3, 1793, F., IV. of J., VI, 443435; Washington to Jefferson, October 11, 1793, F., IV. of IV., XII, 332-336; Randolph to Hamilton, November 15, 1793, H., IV. of H., IV, 487-8; Cabinet Decisions, December 7, 1793, F., IV. of J., VI, 462-463; Jefferson to Genet, December 15, 1793, T. J. P., No. 16630; Report of House Committee, A. S. P. F. R., I, 314; Act for remission... Annals of Congress, IV, 1418-1419.

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

ministration on each of these points had to be expressed (or left unexpressed) in carefully chosen words and this was all the more difficult because the cabinet disagreed on just what were the views of the Administration. The various matters were carefully considered, however, at numerous meetings and finally assembled into three communications; a speech which was delivered on December 3, 1 a message regarding the relation of the United States with Genet, France, and Great Britain, which was transmitted on December 5,2 and a confidential message relative to the transactions with Spain which was sent by the President on December 16, 1793. 3 Since there has been more or less confusion and contradiction among authors and editors' 4 with respect to the authorship of these communications, it seems necessary here to consider the origin of those paragraphs of each which deal with neutrality. The procedure followed by the cabinet in preparing these communications was the same as that used in reaching conclusions upon other complex problems. There was usually first some general discussion, then various members would prepare rough drafts. These would be criticized separately and decisions reached on certain points. Other drafts would be prepared in which the author would embody the points decided upon, whether favored by him or not, and the statement he preferred with respect to the undecided points. These would be discussed and the whole process repeated several times. Merely to know who composed the last draft is then insufficient. We must go deeper if we wish to IF., W. of W„ XII, 350-356; A. S. P. F. R., I, 21-23. »F., W. of W., XII, 356-358; A. S. P. F. R„ I, 141-142. »F., W. of W., XII, 370-372; A. S. P. F. R., I, 247. 4 Much of this is due to a failure to realize that the points which the Cabinet considered concurrently were divided just at the end into three separate communications.

AMERICAN

240

NEUTRALITY

IN

1793

find the true sources a n d in the end this is impossible in some cases because o f insufficient evidence on the o r a l discussions w h i c h took place. nite.

I n others, the a u t h o r s h i p is m o r e defi-

T h e r e is, h o w e v e r , one significance attached to the

a u t h o r s h i p o f the last d r a f t .

I t is o f t e n , but not a l w a y s , an

indication that its a u t h o r ' s ideas h a v e been a little m o r e g e n erally accepted than those o f the others.

I t is w o r t h while,

f o r this reason, to consider the final a u t h o r s h i p o f each c o m munication.

T h e r e seems t o be little doubt that R a n d o l p h

c o m p o s e d the speech o f message

of

December

wrote

the

draft,

in J e f f e r s o n ' s w r i t i n g ,

5.2

December of

3,1

a n d that J e f f e r s o n A

fairly

the m e s s a g e

complete

relative

to

S p a i n also e x i s t s a m o n g his papers. 8 T h e discussion o f those portions o f each o f these c o m 1 Anas, November 23, 1793, F., W. of J., I, 269-270; ibid., November 28, 1793; ibid., I, 270-271. The d r a f t in L., W. of H., V I I , 61-68, November 8, 1793, is evidently very preliminary. It contains almost nothing on foreign affairs, but was condensed without much alteration into the final paragraphs on Indian affairs and was expanded into the final statements relative to financial affairs. Conway's criticism of Jefferson for not drafting this speech is unfair (Conway, Edmund Randolph, p. 154). It is true that it dealt "chiefly with foreign a f f a i r s " but it was the one communication which was to be general and deal with all affairs. Aside from a division of labor at the end it is very possible that there may have been some delicacy understood but not expressed in the matter. Jefferson revealed a disinclination to having Hamilton phrase his (Jefferson's) thought (Jefferson to Randolph, May 8, 1793, F., W. of J., 244246) and the Secretary of Treasury might not have preferred to have Jefferson phrase the passage which dealt with the treasury. 4 See Jefferson to Washington, December 2, 1793 F., IV. of J„ V I , 460-462, and " D r a f t of President's Message " (November, 1793), F., IV. of J., V I , 456-9, c f . the latter with the message as delivered. This leaves no doubt whatever as to the composing of this message. In addition see note at the foot of this draft in T . J . P., Nos. 16272-16273. Jefferson there says, " T h i s shows my original draught and the alterations made in it at our council at the President's, November 28, 93." The word original refers, of course, only to complete drafts.

* T. J . P., Nos. 16548-16549, December, 1793.

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

munications which deal especially with questions of neutrality can best proceed in the order in which they appear in the speech and messages. The second paragraph of the speech of December 3 deals with the proclamation which had been issued. The manner of handling this question had caused more dissension in the cabinet during November than any other point. Hamilton had insisted on the views which we have already seen that he held on the meaning of the proclamation. These were the same ideas that he had expressed in the Pacificus e s s a y s ; 1 that the proclamation was binding upon the nation, that the President was competent to issue such a proclamation, that it constituted a commitment against the clause which guaranteed French tenure of their West Indies and the other similar arguments. Jefferson had strenuously opposed such arguments at the cabinet meetings, 2 and had been successful in defeating most of them. The President had agreed with Jefferson that Hamilton wished to give the proclamation a scope which he ( Washington) had not intended in A p r i l 3 and this paragraph in the speech pretty well represents Jefferson's ideas.4 I f , however, this statement is compared with the corresponding one in Hamilton's draft of the speech 5 it will be found that they do not disagree so much. When it is compared with Hamilton's earlier list of " Objects to be communicated . . . " 6 the absence in the speech of all mention of the guar1

L., W. of H., I V , 135-191, Pacificus.

*Anas, November 18 and 21, F., W. of J., I, 266, 269. Most of the arguments on this side had been published in the Helvidius Essays written in answer to Pacificus by Madison at Jefferson's request. 'Ibid.,

especially, November 18.

4

Jefferson said, " I declared for Randolph's [draft] though it gave that instrument [the Proclamation] more objects that I had contemplated." ' L„ IV. of H., V I I , 76. • L., IV. of H„ V I I , 74; See also Randolph's " Heads of subjects" (H.,

AMERICAN antee is noted.

NEUTRALITY

IN 179S

T h e explanation doubtless is that this point

w a s decided between the dates of Hamilton's t w o papers. 1 T h e r e seems to be no evidence of a dispute about the w o r d ing of the third paragraph in the speech of December 3 . T h i s followed the outlines of the cabinet decisions that had been made the last of M a y and in A u g u s t .

It has been seen

that earlier in the year Hamilton considered permission of the sale of prizes a matter of " doubtful propriety."

2

Like-

wise J e f f e r s o n had opposed, indirectly, the restoration of some of the prizes which it had been decided to return to British owners."

T h e first sentence of the fourth paragraph

in this speech is a clear victory f o r Jefferson.

T h e Secre-

tary of the T r e a s u r y w o u l d never have advised such a general invitation to Congress to correct the decisions which the executive had made during the last eight months. 4

T h e last

part of the fourth and the entire fifth and sixth paragraphs probably represented the unanimous judgment of the cabW. of H., IV, 484), which contains a reference to the guarantee. Genet had demanded the fulfillment of the guarantee (Genet to Jefferson, November 14, 1793, A. S. P. F. R., I, 246) but the Cabinet apparently decided that this was a demand which originated in Genet's own erratic brain and not being authorized by his government should be ignored. Cf. F., IV. of J., I, 248, Anas, July 26, 1793. 1 This verifies the statement made by Jefferson in the Anas, November 21, F., W. of J., I, 268. Jefferson also states that Knox favored Hamilton's proposals.

* L „ IV. of H., I V , 224, No Jacobin, No. I V . * F., IV. of J., I, 229, Anas, May 20, 1793. This refers to the prizes brought in by those privateers which Jefferson did not wish to expel. It is uncertain whether Jefferson would have later maintained this point even if it had not been overruled by the Cabinet. The entire entry in the Anas for May 20 has been criticised above. * F., W. of J., I, 266-267, Anas, November 18 and 2 1 ; Hamilton's general attitude can be verified by reference to the Pacificus essays. L., W. of H., IV, 135-191. It is of course impossible to verify the specific words that Jefferson attributes to Hamilton.

NEUTRAL inet.

DUTIES—NEUTRAL

RIGHTS

243

Hamilton, it is true, had expressed some doubts con-

cerning the jurisdiction of the courts in these cases, but he acknowledged that his own mind was not clear on that subject

1

and he probably did not object 2 to these statements.®

The message which Washington sent to Congress on December 5 was also the subject of very heated discussions in the cabinet.

This message, composed by Jefferson, was that

which dealt primarily with Genet and the relations with France.

It contained several paragraphs on our relations

with Great Britain and was the message which accompanied the copies of the correspondence between the Secretary of State and Genet, and Hammond. 4 1

Hamilton objected to

Hamilton to Rufus King, June 15, 1793, L., W. of H., VIII, 304. ' In his " Objects to be communicated," Hamilton had included " necessity of some auxiliary provisions by law." L., W. of H., VII, 74. • For the replies of Congress to this speech see Annals of Congress, IV, 17-18 (Senate), and ibid., 138-140 (House). Both replies approved of and praised the conduct of the Executive, the approval of the address from the House being by the unanimous vote of that body. Genet read his fate in these replies. He wrote home, " Congress has met—America has decayed," Genet to Minister of Foreign Affairs, No. 27, December 10, 1793 C. of G., p. 277. 4 A fairly complete copy of the correspondence with Genet was sent to Congress. The one notable omission was that of all the letters on the Jay-King affair (see explanation in Anas, November 28, 1793, F., W. of }., I, 270; See also notes by Ford in F., IV. of W., XII, 358). These omitted letters have been printed in the Historical Magazine, X, 329 et scq., other omitted letters can be found in A. S. P. F. R., I, 243-246. Unfortunately however these were not the only letters with Genet which were omitted. Several others exist in the Thomas Jefferson Papers which are interesting in such a study as this but which were either overlooked or thought of too slight importance to be transmitted to Congress. The correspondence with Hammond, as transmitted to Congress was by no means complete. It seems that it was only intended to send those letters relating to the two matters especially in dispute between Great Britain and the United States; that is to the inexecution of the treaty and to the additional orders of June 8 relative to contraband. The omissions left blank Hammond's side of the Genet-Jefferson-Hammond correspondence on the neutral duties of the United States.

244

AMERICAN

NEUTRALITY

IN

179S

this message as soon as Jefferson read the draft to the cabinet on the afternoon of November 28. He thought that the contrast drawn between the conduct of France and England was too marked, that it was insulting to England. 1 Jefferson says that he voluntarily " whittled down " the expressions to which Hamilton objected. In the end Hamilton was still unsatisfied and objected to the whole message, but insisted that if it were sent it should be confidential. Great Britain's conduct had been very unsatisfactory and a double publication would serve to offset any reaction that might be expected from publishing the correspondence with only one government. Hamilton's argument against publishing the British correspondence was that the matters to which it referred were still pending. Jefferson replied that the negotiation on the inexecution of the treaty seemed to be concluded as far as Great Britain was concerned, and that neither of the matters were in such a state of dependence as the recall of Genet and that no scruples had been expressed on that. 2 The President decided upon a complete Some of these omitted letters with Hammond have been printed in the editions of Jefferson's writings. Others still exist in the Thomas Jefferson Papers. Still others can be obtained from the transcripts made from the summaries which Hammond sent to Grenville. Fortunately these three sources have been able to fill all the important gaps which have been detected in connection with this study. 1

H., L. of H., V, 363, 410-413; F., IV. of J., I, 271-272, Anas, November 28, 1793; B. S. P., Hammond to Grenville, No. 2, February 2, 1794; Jefferson has been accused of favoring this publication of correspondence with the ministers only after the news of the unsatisfactory "Additional Instructions " on contraband had arrived from England. This may have had some effect but he had asked Madison's advice on a double publication before this information had been received. F., W. of J., VI, 393395, Jefferson to Madison, August 18, 1793. 1

Jefferson's arguments are given in the Anas, November 28, F., W. of J., I, 271-272. See also Washington to Jefferson, December I, 1793, F., W. of IV., XII, 349-350; Jefferson to Washington, December 2, 1793, F., W. of J., V I , 460-462. Hammond wrote Grenville that Jefferson was

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

245

publication against the advice of Randolph, Hamilton and Knox.1

T h e r e seems to be no evidence of dissension in the

cabinet in connection w i t h the message relative to Spain. One other important communication to Congress in D e cember, 1 7 9 3 , is interesting here because of the policy which it advised.

T h i s w a s J e f f e r s o n ' s report on the commerce of

the United States. 2

T h e Secretary of State had been re-

quested to prepare such a report in F e b r u a r y , 1 7 9 1 .

Some

time after that the report had been prepared, but it had not been then submitted to Congress because of certain additional information which w a s expected but not yet received. 3 T h i s report as delivered in December * dealt only with conditions before the w a r and of course did not refer to neutrality.

It became the occasion, however, f o r a prolonged de-

bate during which important plans f o r the maintenance of to blame for the publication of the British correspondence, which was so displeasing to the British Minister. H e attributed it to political motives and said it had been opposed by one, possibly two members of the Cabinet (Hammond to Grenville, February 2, 1794, B. S. P . ) . Hamilton evidently had not told him the whole story. Even Randolph opposed the publication of the correspondence on the Additional Instructions. F., IV. of J., I, 271-272, Anas, November 28. 1

Certain interesting changes were made by Jefferson in this message after the news of the unfavorable decree of the National Assembly had been received. These can easily be seen in the message as reprinted in F , IV. of J., VI, 456-459. * " Report on the privileges and restrictions on the commerce of the United States in foreign countries," December 16, 1793, F., IV. of J., VI, 470-484. 3 Secretary of State to the Speaker of The House of Representatives, December 16, 1793, F., W. of J., VI, 470-47in. See also F., W. of J., VI, pp. 179, 184, 186, 188.

* Hammond wrote Grenville (No. 2, February 22, 1794, B. S. P.) that Jefferson had advocated the publication of the communications over the additional Instructions merely to prepare a background unfavorable to Great Britain for this report. Cf. also Hammond to Grenville, Xo. 7, March 7, 1793.

246

AMERICAN

NEUTRALITY

IN

1793

the neutral rights of the United States were formulated. Jefferson showed in this report the different w a y s in which the various foreign nations treated the commerce of the United States and then proceeded to discuss the best means by which these restrictions could be " removed, modified or counteracted." 1 H e advised commercial retaliation against the offending nations. W e too should have discriminative duties and these should be gradually increased, if they did not bring relief, until the vessels of the offending nations were excluded from our ports. 2 T h i s proposal w a s published just at a time when the United States was sorely in need of some w a y of obtaining justice. England was violating with impunity what this country considered her neutral rights. T h e Additional Instructions on contraband, discussed below, were causing the seizure of a multitude of American vessels and complaints were coming in f r o m all sides. Madison soon proposed, in the House of Representatives, a set of resolutions 3 which would put into effect the measures advised in the report on commerce. These were warmly debated in the House * and the more they were discussed the stronger became the demand f o r some effective retaliation. These resolutions were but a stepping stone. The movement soon passed on to another measure, founded upon the principle of commercial retaliation proposed by Jefferson and stronger than the resolutions of Madison. A temporary embargo was laid on commerce with Great Britain. 8 T h i s was followed by a non-intercourse bill which failed to pass the Senate only 1

F., W. of J., V I , 479. Op. cit.

*F., W. of J., V I , 479-484- C f . Oliver Wolcott to Jedediah Morse, December 30, 1793, Gibbs, Memoirs... I, 125. ' Annals

of Congress,

I V , 155-158.

* Ibid., I V , 174 et seq. See Hammond's report to Grenville on this debate and these resolutions (No. 2, February 3, 1794, B. S. P . ) . He explains its fervor and the measures that he was taking against it. 4

Annals

of Congress,

I V , 75-76, 529-531. March 26, 1793.

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

247

by the casting vote of the Vice-President. 1 T h e embargo was extended another month. Such was the origin of the principle of using an embargo and commercial retaliation to defend the neutral rights of the United States. 2 This study has been mainly concerned thus far with the neutral duties of the United States, with the enforcement of neutrality within its own territory. It is evident from the above paragraph that there was also some struggle at this time for the neutral rights of this country, f o r the just claims of a non-belligerent state and its citizens on the high seas. T h i s phase of the problem became important later in the year 1793, than did the other phase, and it did not reach its crisis until after this year. Jefferson's career as Secretary of State included only the beginning of the struggle for neutral rights. T h e real foundations on this part of the neutrality policy of the United States were laid, however, shortly after his retirement from office on December 31, 1793. 8 Before his resignation, therefore, Jefferson made several contributions to this phase of the policy besides that which came from the influence of his report on commerce. One of these contributions was the explanation of this country's interpretation of the rules governing contraband of war. T h e British Minister delivered a memorial to Jefferson in May which expressed such a solicitude for the welfare of the citizens o f the United States as is seldom found in the correspondence of British officials at that time: 4 1

Ibid., I V , 90, April 28, 1793.

Ibid., I V , 84, 597-598, April 18, 1793. S e e similar sentiments expressed by Jefferson in his letter to Madison, March—1793, F., W. of J., V I , 192-193. 1

* F., W. of J., V I , 496, Jefferson to W a s h i n g t o n , December 31, 1793. F., W. of W„ X I I , 401-402, W a s h i n g t o n to Jefferson, 1 January, 1794. * Hammond to Jefferson, M a y 8, 1793, T . J. P., N o . 14825. T h i s is one of the series of memorials delivered soon a f t e r Genet's exploits at Charleston became known. T h o s e referring to neutral duties h a v e been discussed above.

248

AMERICAN

NEUTRALITY

IN 1793

The undersigned . . . has the honor of representing to the Secretary of State, that he has received information from various respectable quarters, that a considerable quantity of arms and military accoutrements which an agent of the French Government has collected and purchased in this country, is now preparing to be exported from New Y o r k to France. The secrecy with which a transaction of this nature is generally conducted, has rendered it impossible for the undersigned to procure precise proof of it. Entertaining however no doubt of the existence of the fact he esteems it his duty to lay it immediately before the executive government of the United States which he trusts will deem it more expedient (if any measure for the purpose can be devised) to prevent the execution of this contravention of the President's proclamation than to expose vessels belonging to its citizens to those dangers and difficulties which may result from the circumstances of their carrying articles of the description above mentioned. Jefferson's reply to this memorial announced the adherence of the U n i t e d States to a generally accepted principle

1

which

the United States has followed to the present day with relatively f e w and unimportant exceptions.

T h e United States

would not try to prevent the sale of contraband, nor even of munitions to belligerents. 2

In justification of this decision

1 T h i s decision not to prohibit the exportation of munitions was in accordance with international l a w as interpreted by most nations at that time. It seems that a century or two earlier nations had ordinarily agreed in treaties to prohibit and punish as illegal any attempts to export contraband. T h e l a w had changed or w a s changing, however, by 1793 and w a s to remain usually unquestioned f o r over a century after that date. T h e recent W o r l d W a r saw the development of arguments that tended to revert to the status existing b e f o r e the eighteenth century. Germany and A u s t r i a w e r e the nations that most strongly advanced these arguments against the permissibility of exporting munitions. T h e s e principles proposed by the Central powers w e r e not accepted as neutral duties by the United States. ( G e r m a n Ambassador, Bernstorff, to the Secretary of State of the United States, Memorandum No. A 2841, A p r i l 4, 1915, Special Supplement to A m e r i c a n Journal of Int. L a w , I X , 125-126.)

* T h e r e arose, in 1793, the question as to classification of ships which

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

Jefferson said that our citizens had always been free to make, sell and export arms. This was the constant occupation of some of them, the only means perhaps of their subsistence. T o suppress their callings merely because a war exists in some foreign countries was not to be expected. It would be hard in principle and impossible in practice. The law of nations, Jefferson said, did not require such an internal derangement in the occupations of neutrals. It was satisfied with the external penalty of confiscation of such of these munitions as should fall into the hands of any of the belligerent powers while on their way to the ports of their enemies. This, said Jefferson, was all that the proclamation meant. " T o this penalty our Citizens are warned that they will be abandoned." 1 No investigation was to be made of this complaint from the British minister. In order to work no inequality between the parties at war the benefit of this decision would " be left equally free and open to all." 2 The assurance with which Hammond expressed his faith that the United States would prevent the exportation of were to be sold to one of the belligerents. Could they be built pierced for guns, and sold? Could they be carried to European ports and sold? Were they contraband while on the way to Europe? Hamilton held that it was not neutral even to build and sell them. Randolph thought they could not be sold here but could be carried to European ports, subject to seizure as contraband while on the way. Jefferson held that they could be sold here or carried to foreign parts and sold and were not contraband while on the way to those ports (all opinions are given in F., IV. of J., I, 242, Anas, J u l y 13, 1 7 9 3 ) . It seems that the Cabinet did not find it necessary to reach a definite decision on this point and that the practice was not prohibited (cf. the neutrality act of June, 1794, and Fenwick, Neutrality Laws of the United States, pp. 1 0 8 - 1 1 0 ) . Vessels so purchased could not, of course, be manned and armed in the United States. C f . Jefferson to Madison, September 13, 1808, F.,JV. of J., I X , 208-209. 1 This principle was later enunciated in Hamilton's instructions to the collectors. L., W. of H„ I V , 236-241.

* Jefferson to Hammond, M a y 15, 1793, F., IV. of J., V I , 252-254.

AMERICAN

NEUTRALITY

IN 1793

these arms might indicate that he would be as displeased at this reply as at the refusal of any of the other requests which he made at the same time. Genet, however, thought that it was probable that this step had no other object than " to prepare diplomatically, pretext to the English ships of war to subject American vessels . . . to arbitrary visits and detentions." 1 It seems that the French minister was almost correct. There may be some question whether the visits were to be arbitrary or not, but Hammond wrote to his government that he had judged it proper " to obtain from this government a formal and explicit assurance that it would not protect its citizens in these proceedings." 2 The memorial at least furnished the occasion for the formulation of one of the permanent principles of the neutrality policy of the United States. 3 Jefferson's next attempt to explain the interpretation which the United States placed on the rules concerning contraband of war did not result in the establishment of so permanent a principle as did his earlier effort. Nevertheless it is probably of more importance because of the magnitude of the interests that were in question, and because Jefferson then enunciated the principle which represented the generally prevailing attitude in the United States at that time and which this country tried to enforce. This question was 1

Genet to Jefferson, May 27, 1793, A. S. P. F. R., I, 149-150.

* Hammond to Grenville, No. 14, 1793, B. S. P. ' A distinction was made between the sale of munitions to a belligerent by an individual and such a sale by the government itself. Genet recalling the conduct of France before she joined our revolution, proposed that the Federal Government should sell him certain arms which they had on hand. The request was denied because " such act would be a clear violation of the neutrality so lately proclaimed by the United States." See a reprint from the Knox papers in Noah Brooks, Henry Knox, pp. 226227. This distinction is now accepted as a sound doctrine in international law.

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

251

r a i s e d f o r s o l u t i o n later i n t h e y e a r , 1 b y s o m e d i s t u r b i n g inf o r m a t i o n w h i c h the August.

administration

received

t h e last

of

T h e Consul f o r the U n i t e d States at L i v e r p o o l 2

had obtained a copy o f

certain " additional Instructions "

w h i c h h a d b e e n issued o n J u n e 8 f o r t h e d i r e c t i o n o f B r i t i s h ships of w a r and privateers.

R e a l i z i n g t h e i r i m p o r t a n c e the

a g e n t h a d i m m e d i a t e l y sent t h e m t o P h i l a d e l p h i a . instructions

s

These

m a d e it l a w f u l f o r B r i t i s h s h i p s to d e t a i n all

vessels t h a t w e r e c a r r y i n g c o r n , flour o r m e a l t o a F r e n c h port.4

T h e vessels s o d e t a i n e d w e r e t o be c a r r i e d i n t o B r i t -

ish ports, or those f r i e n d l y to G r e a t Britain, and the corn, flour or m e a l w a s to be s o l d o n l y in G r e a t B r i t a i n o r in c o u n t r i e s in a m i t y w i t h t h a t S t a t e . 5

T h e United States main-

t a i n e d t h a t t h e s e p r o v i s i o n s w e r e n o t c o n t r a b a n d o f w a r ; that 1 The question of contraband had of course received consideration at the time the President's proclamation was issued. In addition to general consideration special pains were taken to prevent the early date of the proclamation from working an injury to American shippers. The proclamation was issued before the government had been officially notified of the declaration of war and it was thought that it should not be taken by foreign prize courts as legal proof of the date after which all citizens of this country could be assumed to have been aware of the war. Anas, November 8, 1793, F., IV. of J., I, 228; Jefferson to Van Berkel, April 23, 1793, W., W. of J., I l l , 543; Jefferson to Morris, Pinckney, and Short, April 26, 1793, W., fV. of J., I l l , 543-5441F.,

W. of J., V I , 398-400, Cabinet opinion, August 31, 1793.

• A. S. P. F. R., I, 240, "Additional Instructions to the commanders of his Majesty's ships of war and privateers that have or may have letters of Marque against France, given at our court at St. James's the eighth day of June, 1793..." * Pinckney had written Jefferson in March expressing a fear that such a step as this would be taken. Jefferson sent instructions to oppose any such measure but added that the Cabinet cannot "conceive that it will be attempted," Jefferson to Pinckney, May, 7, 1793, F. W. of J., VI, 242-244. 5 Additional clauses in these instructions announced the regulations that were to govern the seizure of ships attempting to enter a blockaded port. These are discussed below.

252

AMERICAN

NEUTRALITY

IN

1793

articles which could be classed as contraband had been often enunciated by treaties between nations and that provisions were not in this category. The cabinet decided at once that Mr. Pinckney should be directed strongly to urge a revocation of these additional instructions and to claim indemnification for any citizens of the United States that had suffered loss as a result thereof. 1 Jefferson wrote this letter to Pinckney setting forth in it the grounds on which the United States based their objection to these additional instructions. " When two nations go to war " said Jefferson, " those who choose to live in peace retain the natural right to pursue their agriculture, manufactures, and other ordinary vocations." The only restrictions on the right were those relative to contraband, and against carrying anything to a port actually blockaded. Provisions were not contraband because they were not among those articles generally recognized as such. For Great Britain to try now to include them was to " strike at the roots of our agriculture, that branch of industry which gives food, clothing, and comfort, to the great mass of the inhabitants of these states . . . no nation can agree at the mere will or interest of another, to have its peaceable industries suspended, and its citizens reduced to idleness and want." Jefferson maintained that it was not enough for Great Britain to say she or her friends would buy the produce. " W e have a right," said he, " to judge for ourselves what market best suits us." In selling to France there were certain advantages that could not be had by selling to Great Britain or her friends, and there was no right by which they could thus deprive us of these advantages. Finally, Jefferson added, it would be unfair to one belligerent for a neutral 1

Cabinet opinion, August 3 1 , 1793, F., IV. of J., V I , 398-400; c f . Anas, September 4, 1793, F., IV. of J., I, 265 and F., W. of J., V I , 4 1 0 - 4 1 2 ' Cabinet decisions.

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

country to permit the other illegally to prevent it from selling to both warring powers those provisions which were sold to one. The United States must either sell provisions to both warring powers or to neither. To do the latter would ruin our agriculture. Great Britain might " feel the desire of starving an enemy nation, but [it had] no right to do it at our loss." The Secretary of State concluded these instructions to Pinckney with a request that he press for an immediate answer from Great Britain and that he report back to the President in time for him to lay the matter before Congress.1 It will be seen that these arguments are practically all based upon the contention that provisions were not contraband. If that is granted, these contentions appear reasonable, but that was the very point which Great Britain denied. 1

Jefferson to Pinckney, September 7, 1793, F., IV. of J., VI, 412-416. France had anticipated these British orders and the National Assembly had passed a similar decree on May 9, declaring provisions contraband and which was even a more serious offence against the United States because it was in direct violation of the treaty with the United States. News of this reached America about the first of August (F., W. of IV., XII, 317, Washington to Jefferson, August 4, 1793) but was soon followed by the decree of May 23 which exempted American ships from the former decree. Both were officially communicated to the American Government together on September 27 (Genet to Jefferson, A. S. P. F. R I , 243-244). The United States had no objection to the French decree as amended so the matter was at rest until the last of November when news came of a series of other French decrees, which resubjected American vessels to the decree of May 9 (see the very interesting explanation of the motives back of these decrees, as given in the letters from Gouverneur Morris to Jefferson, A. S. P. F. R., I, 363 et seq.). This information reached America just in time to cause Jefferson to change the expressions relative to France in the message of December 5 (F., W. of J., VI, 456-459. Jefferson to Washington, November—1793). The message stated that representations would be made immediately on the subject but it seems that they were postponed to await the result of the Genet affair (Randolph to Morris, January 10, 1794, A. S. P. F. R., I, 402). A convenient collection of these and later French decrees can be found in A. S. P. F. R„ I, 748 et seq. (1798).

254

AMERICAN

NEUTRALITY

IN 1793

Jefferson insisted that they were not but Grenville maintained that the law of nations had changed and that " by the most modern writers " provisions were to be considered as articles of contraband. 1 Many persons found it difficult to defend the British contention. Hamilton regarded it as " a very harsh and unprecedented measure " 2 and Hammond acknowledged that he himself " defended it as well as . . . [he] was able " but that it " afforded . . . [him] the greatest satisfaction to be furnished with the arguments advanced in . . . [his] lordship's dispatch." 3 Even the British minister had to wait until he was supplied with arguments from home. The Secretary of the Treasury urged Hammond to explain the matter to the American administration as soon as he received an explanation himself " as a timely explanation might remove the unfavorable impressions it had made." * Grenville had dispatched the explanation to Hammond 5 on the same day that Pinckney wrote to Jefferson 6 giving an account of the issuance of the instructions and the arguments which he had advanced against them. The British explanations might have been " timely " if it had not been for the diligence of the consul at Liverpool, but even then they would not have removed the unfavorable impression which had been made. Hammond transmitted the explanations to Jefferson 7 as soon as he received them,8 but these were no more satisfactory than those Hammond had been 1

Grenville to Hammond, July 5, 1793, B. S. P. Hammond to Grenville, No. 19, September 17, 1793, B. S. P. 8 Ibid. * Ibid. 5 Grenville to Hammond, No. 8, July 5, 1793, B. S. P. • Pinckney to Jefferson, July 5, 1793, A. S. P. F. R., I, 241. T Hammond to Jefferson, September 12, 1793, A. S. P. F. R„ I, 240. 2

• T h e British Packet had arrived at New York on September 10. Hammond to Grenville, No. 19, September 17, 1793, B. S. P.

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

255

able to think of himself and Jefferson merely replied 1 that the discussion had been transferred to London. The arguments of Jefferson and Pinckney were no more effective on Great Britain, however, than the explanations of Hammond were on the United States. Pinckney could only write home that England had even made treaties binding her to this policy and showed an inclination to add fresh embarrassments rather than to remove those already operating. 2 This information was transmitted to Congress 8 in time to enter into the debates over the retaliative measures, discussed above, but Jefferson had already retired to quieter scenes and left these affairs to other hands.4 The second and third paragraphs of the Additional Instructions also contained provisions which were offensive to the United States. These 0 contained the usual instructions given in time of war permitting the seizure of vessels apprehended in an attempt to enter a blockaded port, but they also provided that the vessels of Denmark and Sweden should be only prevented from entering on the first attempt and not seized until the second attempt to enter. All other vessels were to be seized on the first attempt. The only nations " in1

Jefferson to Hammond, September 22, 1793, F., W. of J., VI, 431-32.

* Pinckney to Secretary of State, November 25, 1793, A. S. P. F. R., I, 327-328* Message from the President, February 24, 1793, A. S. P. F. R„ I, 327* Few if any of these ideas on neutral rights enunciated by Jefferson in 1793 were then formulated by him. He had developed them earlier and had helped incorporate many of them into the set of commercial treaties negotiated under the confederation. Jefferson was the chairman of the Congressional Committee on Foreign Relations when the plan for these early treaties was formulated in 1784, and later helped negotiate the treaty with Prussia. Jefferson was closely associated with Franklin at this time and was probably influenced by the similar ideas held by that statesman. 5

A. S. P. F. R., I, 240, "Additional Instructions . . ."

AMERICAN

NEUTRALITY

IN 1793

habiting the shores of the Atlantic ocean and practicing its navigation " who were neutral at that time were Denmark, Sweden and the United States. This, then, was a discrimination solely against this country. It was deeply resented, even by Hamilton, 1 who could be expected to be more charitable with Great Britain than the other members of the cabinet usually were. T h e obvious explanation was that these two favored countries had treaties with Great Britain reserving such rights to them. These treaties were not known in the United States, but Jefferson assumed 2 that such existed, and Hammond ventured to say that he was " convinced " that was the explanation. 3 T h i s was not sufficient justification, however, in the eyes of the United States. It was impossible that Great Britain was bound by these treaties to refuse us that privelege. In similar cases the United States had granted that country all the favors which she was bound to grant to France, and which she was not specifically prohibited f r o m granting to England. That was the fundamental principle at the base of the entire neutrality policy that had been developed during the past five months. Then Great Britain refused to extend it to this country in return. Jefferson took keen pleasure 4 in telling Hammond, in 1

Hammond to Grenville, No. 19, September 17, 1793, B . S . P .

» J e f f e r s o n to Pinckney, September 7, 1793, F., IV. of J., V I , 412-416. ' I n a conversation with Hamilton, see Hammond to Grenville, No. 19, September 17, 1793, B . S. P . 4 T h e relations between the United States and Great Britain at this time were unsatisfactory to begin with. Jefferson had been conducting negotiations with Hammond on the inexecution of the treaty of peace, and Hammond had not replied to the letter which Jefferson had sent to him on May 29, 1792. One of the main contentions of the United States was for the evacuation of the Northwestern Forts which were still held by the British. It seemed as though Great Britain intended to terminate the negotiations by indefinitely delaying the answer. Jefferson and Washington lost patience, and tried to get an answer from Hammond but

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

answer to his letter giving this explanation 1 that he would not " contest the rights of the principle, as a right to its reciprocity necessarily results to be." 2 There was one neutral right, claimed by some people, and favored by Jefferson, which however, he refrained from considering as already a part of international law. This was the right expressed in the phrase " Free Ships—Free Goods." It was well known that Jefferson favored this rule that goods should follow the bottom instead of the owners. This was the explanation usually given to his insistence on the word " modern " in referring to the " modern usage of without success. T h e letter of May 29, 1792, had been sent to England by the British minister and he pleaded his inability to get an answer himself. T h u s the matter remained until Jay was sent to England. A. S. P. F. R., I, 188-238, correspondence on this subject, 1791-1792; Anas, J u n e 3, 1792, F., W. of / . , I, 193-198; Washington to Charles Carroll, 23 January, 1793, F., W. of W., X I I , 257-259; Washington to the members of the Cabinet, M a r c h 21, 1793, F., fV. of W., X I I , 273274; Washington to George Clinton, 31 March, 1793, F., W. of W., 408-410; Jefferson to Pinckney, April 20, 1793, W., IV. of J., I l l , 541542; Washington to Jefferson, 1 June, 1793, F., IV. of W., X I I , 291-292; Jefferson to Pinckney, J u n e 14, 1793, F., IV. of J., V I , 301-303; Jefferson to Hammond, J u n e 19, 1793, F., IV. of J., V I , 3 1 4 ; Cabinet opinion, June, 1793, F., IV. of J., V I , 3 1 5 ; Jefferson to H a m m o n d ( a f t e r J u n e 20, 1793), F., IV. of J., V I , 3 2 1 ; H a m m o n d to Jefferson, June 20, 1793, A. S. P. F. R„ I, 238; Anas, September 4, 1793, F., W. of J., I, 265; Cabinet Decisions, September 7, 1793, F., W. of J., V I , 410-412; Jefferson to Hammond, November 13, 1793, J. G. L., pp. 68-69; Jefferson to Washington ( N o v e m b e r 15, 1793), J. G. L., pp. 87-89; H a m m o n d to Jefferson, November 22, 1793, /. G. L., 68-69. Cabinet Decisions (November 23, 1793), F., IV. of J., V I , 452-453- Jefferson to Pinckney, November 27, 1793, W . , W. of J., I V , 85-86; Jefferson to D r . E d w a r d s , December 20, 1793, F., IV. of J., V I , 494-495; Correspondence between Randolph and Hammond, 1794. 1

Hammond to Jefferson, September 12, 1793, A. S. P. F. R., I, 240.

' J e f f e r s o n to H a m m o n d , September 22, 1793, F., IV. of / . , V I , 431432. See Hammond's comment to Grenville on this " A v i d i t y " of J e f f e r son's, B. S. P., No. 20, November 12, 1793. T h e most favored nation clause in Jay's treaty of course covered such cases as this.

258

AMERICAN

NEUTRALITY

IN

179S

nations " in the President's proclamation in April. 1 Genet, however, carried the principle forward too rapidly for Jefferson to be willing to follow. 2 T h e United States and France had by treaty established between themselves the rule that the goods should follow the vessel, not the owners." In the war which began in 1793, then, according to this rule American goods on English vessels would be subject to capture by the French, and English goods on American vessels would not be subject to such capture. T h e United States enforced their part of this provision without question. The Little Sarah, an English vessel, had on board some flour and meal belonging to citizens of the United States when captured in the early days of the war. T h e vessel was brought back to Philadelphia as a French prize. T h e Americans laid claim to the flour and meal. 4 T h e Attorney General decided that " the 14th Article of our treaty with France has shut out all general reasoning from the law of nations " on this question. 5 T h e former owners were notified that they had no claim to the property. 6 This, of course was satisfactory to Genet, but he also insisted on another application of the principle. T h e treaty provided that Free Ships should mean Free Goods. The 1

F., W. of J., V I , 485-488, " Opinion ". * Jefferson himself makes this statement in the " o p i n i o n " of December 20» 1793. cited above. H e had some hope of at least gaining concessions f r o m Great Britain on this point, but the too precipitate action of Genet forced Jefferson to adopt the British contention in his reply to Genet on July 24 (F., IV. of J., V I , 355-357). This however was only a temporary expedient. For his later attitude see Jefferson to Madison, August 12, 1801, F„ IV. of J., V I I I , 81-82. • Treaty of Amity and Commerce, Articles 14 and 23. ' J e f f e r s o n to Holland and Mackie, May 27, 1793, T. J. P., No. 14974. 4

Randolph to Jefferson, May 26, 1793, T . J . P., No. 14969.

•Jefferson to Holland and Mackie. May 27, 1793, T . J. P., No. 14974; cf. also L„ W. of H., IV, 220, No Jacobin, No. I I I .

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

259

French minister demanded 1 that the United States force England to refrain from seizing French goods on ships belonging to citizens of the United States. Jefferson thought this was going entirely too far. It was assuming that a rule in a treaty between France and the United States could be binding upon Great Britain. The latter country had never been willing to consent to the principle that the goods should follow the bottom. T o try to force Great Britain so to respect French property would then, in addition to being unfair, mean war. Jefferson had to try to convince Genet of his mistake. He took two weeks in which to prepare the answer 2 and then sent it to Genet on the twenty-fourth of July. 3 Jefferson first explained the obvious inapplicability of the rule to the British, that the general law of nations provided for the contrary rule and that the rule of Free Ships—Free Goods could only apply between those nations who had especially provided for such a regulation in their treaties with each other. Probably despairing of this sound reasoning having any effect, Jefferson went on to show that France would not lose anything by fulfilling the treaty thus interpreted. It would gain as much or more from the American goods which it captured in English vessels as would be lost by French goods seized by the British in American vessels. It was all in vain.4 Genet sent in a second list of seizures, again demanded effectual measures by 1 The first written letter of this nature seems to be that of July 9, 1793 (Genet to Jefferson, A. S. P. F. R., I, 164). In it Genet mentions the frequent conversations he lias had with Jefferson on this subject. This was followed by the letter of July 25 (Genet to Jefferson, A. S. P. F. R., I, 165), and its inclosures.

* See the note on the Cabinet meeting of July 23, 1793, Anas, F., IV. of J., I, 247. 'Jefferson to Genet, F., W. of J., VI, 355-357. 'Genet to Minister of Foreign Affairs, No. 15, October 5, 1793. G. pp. 255-256.

C. of

260

AMERICAN

NEUTRALITY

the government of the United States

IN 179S 1

and threatened to

order his armed vessels to disregard this provision of the treaty if such measures were not taken. 2

T h e cabinet had

by this time reached the point of ignoring such letters from Genet, and so the matter rested. 3

Since this date the United

States has long struggled to establish the principle of Free S h i p s — F r e e Goods, but they have not gone so f a r as to assume that such a rule w a s established without the consent of the other interested nations. 4 Belligerents often make mistakes in seizing vessels even when there is comparative certainty as to the interpretation of the rules.

It is natural then that there should have been

many such mistakes made in the w a r which started in 1 7 9 3 , when there w a s v e r y little certainty as to the interpretations of some of the regulations of international law.

There was

one provision which w a s often inserted in treaties in an at1

Genet to Jefferson, July 25, 1793, A. S. P. F. R., I, 165.

1

F., W. of J., VI, 485-488, Opinion, December 20, 1793; c f . Genet to Minister of Foreign Affairs, No. 15, October 5, 1793, C. of G., pp. assis^ 8 This provision of the Franco-American treaty was causing trouble in France at the same time. The decree of May 9 violated it, that of the 23rd restored it only to again repeat the circle. See G. Morris to Secretary of State, A. S. P. F. R., I, 363 et seq.

* The Anglo-American controversy over impressment was of course waged during the war, as at all times. It was not, however, strictly a problem of neutrality. The controversy was being waged, almost as strongly before the war started as after. Jefferson continually instructed Pinckncy to make representations on the matter and Pinckney continually replied that he did so without success. A. C. Morris, Diary and Letters of Gouvemor Morris, I, 326-329 (1790) ; Message to Congress, February 8, 1792, A. S. P. F. R., I, 1 3 1 ; Jefferson to Pinckney, March 16, 1793, W., W. of J., I l l , 525-S26; King to Hamilton, April 24, 1793, H., W. of H., V, 553-554; Jefferson to Pinckney, May 7, 1793, F., W. of ]., VI, 242-244; Jefferson to Pinckney, June 2, 1793, F., IV. of /., VI, 279; Jefferson to Pinckney, September 11, 1793, T . J. P., No. 15939-13940; Pinckney to Jefferson, September 25, 1793, A. S. P. P. R., I, 243.

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

261

tempt to decrease the number of these illegal captures. This was a stipulation that in case of war the nations which were parties to the treaty would furnish their vessels for purposes of identification with passports drawn up according to a certain specified form. 1 It became necessary when the war started for the United States to establish administrative regulations to effectuate this provision in her treaties. It was discovered that there was considerable uncertainty with respect to the details of issuing these passports to United States vessels. Probably the most important decision to be reached in this respect was whether the passports should be given only to American-built vessels or to all vessels owned by citizens of the United States. The treaties permitted the issuance of passports to all vessels owned wholly by citizens of the United States, wherever built. It was objected, however, that so to issue them would encourage collusive transfers merely to obtain the cover of our passports for foreign ships. It was further objected that issuing passports to vessels built in foreign ports would lessen the demand for shipbuilding here. 3 There was, on the other hand, a strong demand for such passports from citizens of the United States who owned foreign-built vessels.® It was argued, that all the property of our merchants deserved to be protected by our flag: that to refuse passports after the pro1 See for example the Franco-American treaty of Amity and Commerce (1778).

* These objections are restated by Jefferson in order to answer them in his opinion on passports, W., IV. of J., VII, 624-626, May 3, 1793. Some of the objections are hinted at in Rufus King to Hamilton April 24 1793, H , W. of H., V, 553-554* See the long letter from Stephen Kingston of Philadelphia, to Tench Coxe, April 29, 1793 ( T . J . P., Nos. 14677-14679), which was included in the letter from Coxe to Jefferson, April 30, 1793 (T. J . P., No. 14683). Kingston owned such a vessel and developed in this letter practically all the arguments which were later used to justify the issuance of passports to foreign-built vessels.

262

AMERICAN

NEUTRALITY

IN 179S

visions in the treaties would be to condemn the vessels to certain seizure; that to grant this protection to all vessels that were bona fide property of our citizens would give a great impetus to our commerce because a neutral country needed more new vessels in time of war than it could possibly build; that without these additional ships much of the produce of this country, unable to obtain safe transportation, would have to remain on our hands. Finally, the objections were answered by saying that unreasonable collusion could be avoided by using due care, and that our ship yards would be kept fully employed anyway.1 Jefferson's arguments were effective and the President decided that these passports should be issued to all vessels belonging wholly to citizens of the United States.2 It was also decided that these passports should only be issued in ports of the United States, instead of permitting them to be issued by American consuls or ministers in foreign ports. This was a necessary safeguard against blank passports falling to the hands of either belligerent.8 1 These are the arguments advanced in Jefferson's opinion to the President, May 3, 1793, W., W. of J., V I I , 624-626. 1 Jefferson to Tench Coxe, May 3, 1793, T . J . P., No. 14695; Jefferson to Pinckney, May 7, 1793, F.p W. of /., 242-244; Jefferson to Monroe, June 28, 1793, F., W. of J., V I , 321-324; Jefferson to Gouverneur Morris, June 13, 1793, F., W. of J., V I , 299-301; Anas, 6, 1793, F., IV. of J., I, 227.

•In the early days of the war Pinckney had issued such passports at London, before he could receive orders from home. Morris had refused to issue any in French ports. The two ministers had a rather interesting correspondence on the subject before they were informed of the Cabinet decision (A. S. P. F. R., I, 354-355)- The proposal to issue them in foreign ports was generally disapproved of by the members of the administration. See, in addition to the former citations; Jefferson to Pinckney, April 12, 1793, T. J . P., Nos. 14526-14527; and Randolph to Jefferson, May 2, 1793, T. J . P., No. 14689. This letter from Randolph is accurately reprinted in Conway, Edmund Randolph, p. 149, but with inaccurate comment. Conway is not always so accurate in reprinting

NEUTRAL Many

spoliations

DUTIES—NEUTRAL of

American

RIGHTS

commerce

occurred

263 in

1 7 9 3 in spite of all the efforts of J e f f e r s o n and the rest of the administration to protect the neutral rights of the citizens of the United States on the high seas. 1

S o m e of these spol-

letters concerning Randolph. Jefferson wrote a letter to Madison on August 11, 1793, which was too confidential to be trusted to the post. Among other things it is very condemnatory of Randolph ( T . J . P., Nos. 15692-15695). One sentence in the original is "that I might make some good out of him." Conway reports this sentence, " That I might have some good out of him," which wholly changes the meaning. This letter from Jefferson to Madison on August 11, 1793 (second one of same date), is very interesting in several respects but has not been reprinted in either edition of Jefferson's works. Sketches of it have been reprinted in various footnotes. John C. Hamilton does however, accurately reprint almost the entire letter in his Life of Hamilton, V, 341-345. ' Morris to M. le Brun, March 24, 1793, A. S. P. F. R., I, 358-359, and the other correspondence following; Jefferson to French Minister, April 5. 1793. F-, W. of I-, VI, 2 1 1 - 2 1 2 ; Jefferson to Coster Freres & Co., May 21, 1793, F., IV. of /., VI, 262; Jefferson to John Nixon, June 4, 1793. T. J . P., No. 15052; Jefferson to Thomas Pinckney (June 26, 1793), T. J . P., No. 15307; Jefferson to Hammond, June 26, 1793, F., W. of J., VI, 319-320; Jefferson to Genet, July 12, 1793, T. J . P., No. 15485; Jefferson to various merchants, August 27, 1793, T. J . P., Nos. 15808812; Jefferson to Hammond, August 8, 1793, T. J . P., No. 15669; Cabinet decisions, December 7, 1793, F., W. of J., VI, 462-463; Message of President transmitting report of Randolph, March 5, 1794, A. S. P. F. R., I, 423-424; Randolph to Vice-President, May 20, 1794, A. S. P. F. R., I, 461; Gouverneur Morris to Randolph, May 31, 1794, A. S. P. F. R., I, 408; Randolph to Jay, July 10, 1794, A. S. P. F. R., I, 149; Randolph to Jay, August 11, 1794, A. S. P. F. R„ I, 482-483; " Reports," A. S. P. F. R-, I, 750-758; Message to Congress, February 18, 1798, A. S. P. F. R., II, 119-122; Senate Documents No. 102, 19th Congress, 1st Session. Among the secondary accounts worthy of consideration are: An Examination of the British Doctrinc which subjects to capture a neutral trade not open in time of peace, by [James Madison, 1806] 204 pp.; An Examination of the Conduct of Great Britain respecting neutrals, byj Juriscola [Tench Coxe], Philadelphia, 1807; there is a manuscript in the T. J . P. (No. 16483, erroneously dated by some one in pencil "1793"), with a title, " Infractions of Neutral rights by the French and English, Their Dates," this covers the period from November, 1792, to July, 1793, and may be only the first sheet of what was a larger summary. The interesting thing about this manuscript is that it is almost an outline of this portion of the above article by Coxe.

264

AMERICAN

NEUTRALITY

IN 1799

iations were justifiable but others were not. The justice of almost all captures was of course denied by the individuals who lost property in that manner. Many complaints came to the Federal Government from these individuals. Jefferson interceded with Genet 1 and with Hammond 2 on behalf of such of these as were obviously the victims of improper captures. Even in those cases where it appeared that the capture had been legitimate Jefferson was often equally considerate of the claimants, giving them a careful statement of the rules which governed the case and concluding " I have therefore rendered you the only service which the nature of the case admits, by a prompt attention and answer to your application. With wishes that it could have been more satisfactory. . . . " 3 A s will be seen from the above citations these spoliations were fairly numerous in the early months of the war, 4 but they increased rapidly after the French and British orders of May, June and November. Jefferson prepared a circular letter 6 in August which was sent to the merchants in the various sections of the country requesting them to forward to the government well authenticated evidence of all captures which had been made upon them in violation of the law of nations. H e was directed by the President to assure them that " proper proceedings will be adopted 1 Jefferson to Genet, July 12, 1793, T . J . P., No. 15485; Jefferson to the French Miniser, April 5, 1793, F., W. of J., V I , 211-212.

' J e f f e r s o n to Hammond, J u n e 26, 1793, F., IV. of / . , V I , 319-320; Jefferson to Hammond, August 8, 1793, T . J . P., N o . 15669; cf. Jefferson to T h o m a s Pinckney ( J u n e 26, 1793), T . J . P., No. 15307. ' J e f f e r s o n to Holland and Mackie, M a y 27, 1793, T . J . P., N o . 14974. 4 S e e however the optimistic letters of Hamilton to Washington, April 8, 1793, L., IV. of H„ V I I I , 297; and K i n g to Hamilton, April 24, 1793, H „ W. of H„ V , 553-5541 A copy of this letter is printed in W., W. of J., I V , 51-52, as Jefferson to Duke and Company, A u g u s t 21, 1793. F o r other copies see T . J . P., Nos. 15808-15812, August 27, 1793.

NEUTRAL

DUTIES—NEUTRAL

RIGHTS

265

for their relief." 1 This letter laid the foundation for the gathering of evidence on these cases. The multitude of evidence so collected was assembled, bound and sent to J a y , after the retirement of Jefferson, to be used in negotiating the treaty with England. 2 The retirement of Jefferson on the last day of the year 1793 s terminated for several years, his connection with the forming of the neutrality policy of the United States. J e f f erson had intended to retire from the cabinet many months earlier, 4 but had frequently postponed the act at the earnest entreaties of President Washington. 5 Had Jefferson been permitted to retire when he first attempted to resign this study of the neutrality policy of the United States in 1793 would probably never have been made. In yielding his own desire for the peaceful seclusion of Monticello Jefferson continued to hold the office as Secretary of State during the months when the United States was first called upon to formulate a policy of neutrality. This study has not attempted to prove that Jefferson alone deserves credit for the estab1

This promise played an important part almost a century later in determining the liability of the Federal Government in the French Spoliation claims which were still in litigation (U. S. Court of Gaims, Reports, vol. 2i, p. 355, Gray, Admr. V, United States). ' Randolph to Jay, May 27, 1793, A. S. P. F. R., I, 474. • F., IV. of J., VI, 496, Jefferson to Washington, December 31, 1793; F., W. of W., XII, 401-402, Washington to Jefferson, 1 January, 1794. * Jefferson to Washington, May 23, 1792. F., IV. of J., VI, 6; Jefferson to Washington, September 9, 1792; ibid., 108-109; Jefferson to Thomas Mann Randolph, November 2, 1792; ibid., 127-128; Jefferson to Martha Jefferson Randolph, June 26, 1793; ibid., 163-5; Jefferson to James Madison, June 9, 1793; ibid., 290-294; Jefferson to Washington, July 31, 1793; ibid., 360-361; Jefferson to Washington, August 11, 1793; ibid., 366-367; Anas, August 6, 1793; F., IV. of J., I, 256-257. 'Washington to Jefferson, October 8, 1792, F., IV. of IV., XII, 201202; Washington to Jefferson, August 12, 1793; ibid., 321-322; Anas, August 6, 1793; F., W. of J., I, 256-257.

266

AMERICAN

NEUTRALITY

IN 1799

lishment of this policy. It was the composite work of several men. The work of Hamilton was almost indispensable. T h e work of Jefferson was indispensable in the formulation of a policy so truly impartial as that laid down f o r the United States in 1 7 9 3 . There is no doubt but that Washington desired to act impartially in the war between France and England in 1 7 9 3 . E v e n if he had ever harbored a prejudiced thought or sentiment at that time, there is no evidence of its having been expressed. Few if any men were so truly impartial as Washington in that year, but no single human mind could have conceived the correct solution to all the problems that arose during these months. Certainly the mind of Washington could not have done so. T h e characteristics that made him the most noted of our presidents were of a different nature. Hamilton might have been able to see the answer for each complicated question had he been truly impartial. But Hamilton was at heart pro-British in spite of his desire for neutrality. That was more the fault of Hamilton than sympathy for France was a fault of Jefferson. Neither had been moulded to be impartial and strive as he would, neither could have achieved the American policy of neutrality. Each, however, had been endowed with a brilliant mind. Each could lay before Washington logical solutions to the problems which threatened American neutrality so that the president could choose from these opinions that which was most truly in accord with his neutral policies.

APPENDIX

I

Q U E S T I O N S PRESENTED TO T H E JUSTICES OF S U P R E M E COURT BY T H E C A B I N E T ON J U L Y 18,

1793

It has been thought best to insert all these questions at one point. The list contains queries dealing with almost every topic discussed in this entire study. The discussion of those questions relative to the extent of territorial jurisdiction (19, 20) is to be found in Chapter III. This is also true of parts of the other questions. It will be seen that questions 1, 2, 3, 4, 5, 11, 12, 13, 14. 15, 16, 23, and 24, deal with the dispute over fitting out ships (Chapter I V ) . The remaining questions more properly enter this study at various other points. The text from which these questions are reprinted is that found in F., W. of J., V I , 352-354". QUESTIONS PRESENTED TO T H E JUSTICES OF T H E SUPREME COURT

1. Do the treaties between the U. S. and France give to France or her citizens a right, when at war with a power with whom the United States are at peace, to fit out originally in and from the ports of the United States vessels armed for war, with or without commission? 2. If they give such a right, does it extend to all manner of armed vessels, or to particular kinds only? if the latter, to what kinds does it extend? 3. Do they give to France, or her citizens, in the case supposed, a right to refit, or arm anew vessels, which before their coming within any port of the United States were armed for war, with or without commission? 4. If they give such a right, does it extend to all manner of armed vessels, or to particular kinds only ? if the latter, to what 267

268

APPENDIX

I

kinds does it e x t e n d ? does it extend to an augmentation of force, or does it only extend to replacing the vessel in statu quo ? 5. Does the 22d A r t i c l e of the T r e a t y of Commerce, in the case supposed, extend to vessels armed for war on account of the government of a power at w a r with France, or to merchant armed vessels belonging to the subjects or citizens of that p o w e r ( v i z ) of the description of those which, by the English are called Letters of M a r q u e ships, by the F r e n c h batiments amies en merchandize et en guerre? 6. D o the treaties aforesaid prohibit the United States f r o m permitting in the case supposed, the armed vessels belonging to a power at w a r with France, or to the citizens or subjects of such power to come within the ports of the United States there to remain as long as they may think fit, except in the case of their coming on with prizes made of the subjects or property of F r a n c e ? 7. D o they prohibit the United States f r o m permitting in the case supposed vessels armed on account of the government of a power at war with France, or vessels armed f o r merchandize and war, with or without commission on account of the subjects or citizens of such power, or any vessels other than those commonly called privateers, to sell freely whatsoever they maybring into the ports of the United States and freely to purchase in and carry from the ports of the United States goods, merchandize and commodities, except as excepted in the last question ? 8. D o they oblige the United States to permit France, in the case supposed, to sell in their ports the prizes which she or her citizens may have made of any power at w a r with her, the citizens or subjects of such power, or exempt f r o m the payment of the usual duties, on ships and merchandize, the prizes so made, in the case of their being to be sold within the ports of the United States. 9. D o these treaties, particularly the Consular convention, authorize F r a n c e as of right, to erect courts within the jurisdiction of the United States f o r the trial and condemnation of prizes made by armed vessels in her service?

APPENDIX

I

269

10. Do the laws and usages of nations authorize her, as of right, to erect such courts for such purpose ? 1 1 . Do the laws of neutrality, considered relatively to the treaties of the United States with foreign powers, or independently of those treaties permit the United States in the case supposed, to allow to France, or her citizens the privilege of fitting out originally, in and from the ports of the United States vessels armed and commissioned for war, either on account of the government, or of private persons, or both? 12. Do those laws permit the United States to extend the like privilege to a power at war with France? 13. Do the laws of neutrality, considered as aforesaid, permit the United States in the case supposed, to allow to France or her citizens, the privilege of refitting or arming anew, vessels which before their coming within the United States were armed and commissioned for war? May such privilege include an augmentation of the force of such vessels? 14. Do those laws permit the United States to extend the like privilege to a power at war with France? 15. Do those laws, in the case supposed, permit merchant vessels of either of the powers at war, to arm in the ports of the United States without being commissioned? May this privilege be rightfully refused? 16. Does it make any difference in point of principle, whether a vessel be armed for war, or the force of an armed vessel be augmented, in the ports of the United States in the means procured in the United States or with means brought into them by the party who shall so arm or augment the force of such vessel? If the first be unlawful, is the last lawful? 17. Do the laws of neutrality, considered aforesaid, authorize the United States to permit to France, her subjects or citizens, the sale within their ports of prizes made of the subjects or property of a power at war with France, before they have been carried into some port of France and there condemned, refusing the like privilege to her enemy? 18. Do those laws authorize the United States to permit to France the erection of courts within their territory and juris-

270

APPENDIX

I

diction, f o r the trial and condemnation of prizes r e f u s i n g that privilege to a power at w a r with F r a n c e ? 19. If any armed vessel of a foreign power at war with another, with w h o m the United States are at peace, shall make prize of the subjects or property of its enemy within the territory or jurisdiction of the United States have not the United States a right to cause restitution of such prizes? A r e they bound or not by the principles of neutrality so to do, if such prize shall be within their p o w e r ? 20. T o what distance, by the laws and usages of nations, may the United States exercise the right of prohibiting the hostilities of foreign powers at w a r with each other, within rivers, bays and arms of the sea, and upon the sea along the coasts of the United States? 21. H a v e vessels armed f o r w a r under commission f r o m a foreign power, a right, without the consent o f the United States to engage within their jurisdiction, seamen or soldiers, f o r the service of such vessels, being citizens of that power, or of another foreign power, or citizens of the United States? 22. W h a t are the articles, by name to be prohibited to both or either party ? 23. T o what extent does the reparation permitted in the 19 Article of the treaty with F r a n c e g o ? 24. W h a t may be done as to vessels armed in our ports bef o r e the President's proclamation? and what as to the prizes they made before and after? 25. M a y we, within our own ports, sell ships to both parties, prepared merely f o r merchandize? M a y they be pierced f o r guns? 26. M a y w e carry either or both kinds to the ports of the belligerent powers f o r sale? 27. Is the principle that free bottoms make f r e e goods, and enemy bottoms make enemy goods, to be considered as now an established part of the law of nations ? 28. If it is not, are the nations with whom w e have no treaties, authorized by the law of nations to take out of our vessels enemy passengers, not being soldiers and their b a g g a g e ?

APPENDIX

I

271

29. May an armed vessel belonging to any of the belligerent powers follow immediately merchant vessels, enemies departing from our ports, for the purpose of making prizes of them?— if not, how long ought the former to remain after the latter has sailed? and what shall be considered as the place of departure, from which the time is to be counted? and how are the facts to be ascertained?

A P P E N D I X GENET'S

FINANCIAL

II DIFFICULTIES

T h e failure to obtain sufficient financial resources w a s a contributing cause to the f a i l u r e of several of Genet's projects. Genet had expected to obtain these resources f r o m the F e d e r a l Government. T h e U n i t e d States had as a result of the loans made during the A m e r i c a n R e v o l u t i o n and the f u n d i n g operations thereafter, a large f u n d e d debt in 1793, m u c h of w h i c h w a s held by the g o v e r n m e n t of F r a n c e . Periodic payments were due on this debt. T h e s e w e r e interrupted f o r a short time in 1792 by the unsettled conditions in F r a n c e and the lack of any person authorized to receive payments. ( J e f f e r s o n to G o u v e r n e u r M o r r i s , M a r c h 12, 1793, F., W. of /., V I , 199200), payments w e r e ordered to be resumed, h o w e v e r , as soon as news came that a National A s s e m b l y had met in F r a n c e . (Ibid.) In the meantime the U n i t e d States had gone ahead and paid the remainder of f o u r million livres w h i c h had been designated to the relief of S t . D o m i n g o . (Jefferson to T e r n a n t , Jan. 14, 1793, F., W. of J., I, 208; ibid., 220). B y the time this w a s exhausted the F r e n c h minister here, T e r n a n t , had applied f o r three million livres m o r e to be spent in provisions to send to France. I n v i e w of the f a c t that most of this w a s due and that the need of F r a n c e f o r supplies was extreme ( J e f f e r son to T h o m a s M a n n R a n d o l p h , M a y 6, 1793, F., W. of /., V I , 2 4 1 - 2 ) the Cabinet decided to advance this payment to T e r n a n t without a f u r t h e r justification than his request, H a m i l t o n alone partly dissenting ( C a b i n e t opinion, F e b . 25, 1793, F., W. of J., V I , 1 9 0 ) . T e r n a n t soon a f t e r w a r d s made another request f o r an advance payment but this w a s a f t e r the news of the appointment of Genet had come and the payment w a s r e f u s e d . J e f f e r son to Ternant, A p r i l 30, 1793, F . , W. of J., V I , 233-234; J e f f e r s o n to W a s h i n g t o n , F e b . 12, 1793, F., W. of J., V I , 174272

APPENDIX

II

273

1 7 9 ; Jefferson to Hamilton, May 1, 1793, F., W. of /., V I , 2352 3 6 ; Hamilton to Jefferson, May 3, 1793, L., W. of H., V I I I , 299-300. Soon after the arrival of Genet at Philadelphia he announced that the Executive Council had intrusted him to request the payment of as large a part of the debt to France as the United States could " effect " (A. S. P. F. R., I, 142 et seq. See also instructions of Genet, C. of G., pp. 2 0 1 - 2 1 1 ) . This was to be spent here for provisions which were to be sent to France and her colonies. The President was authorized by law to make advance payments only upon advantageous conditions. Genet claimed that the proposal to spend the money in the United States was such an advantage. Such a proposal had been indirectly received from France some months earlier (Anas, Feb. 20, 1793, W., W. of J., I X , 1 3 2 ) but this had been refused without much discussion, the Cabinet being unanimous in so advising (G. W. P., No. 34460, Cabinet opinion, Mar. 2, 1 7 9 3 ) . The more official proposal by Genet demanded more consideration. Many reasons were presented against making large advance payments, among which was a claim that it would be unneutral to so aid one belligerent (Jefferson summarizes these in a letter to Washington, June 6, 1793, F., W. of /., V I , 287289). The Cabinet decided unanimously to refuse to make any large advances (Jefferson to Hamilton, June 3, 1793, F., W. of J., V I , 280). Jefferson did, however favor slight advances from time to time (Jefferson to Washington, June 6, 1793, op. cit.). Hamilton wished, in announcing the unanimous opinion to Genet to give a blunt refusal, without reasons. Jefferson insisted on making the refusal as pleasant as possible. After some dissensions over this point the President decided in favor of Jefferson's contention and Hamilton prepared a report attributing the refusal to a lack of means on the part of the United States (Jefferson to Genet, June 1 1 , 1793, F., W. of J., V I , 294-295; cf. Jefferson to Hamilton, June 3, 1793; F., W. of J., V I , 280, Jefferson to Washington, June 6, 1793; F., IV. of J., V I , 287-289; The several communications are assembled in L., W. of H., I V , 1 2 1 - 1 3 1 ; and H., L.ofH., V , 276).

274

APPENDIX

II

As usual Genet did not accept the decision as final, tried to secure still greater advance payments than those granted, about six months advance having been paid, and finally attempted to assign the debt to individuals against the wishes of the Federal Government. For this part of the dispute see, Genet to Jefferson, June 14, 1793, A. S. P. F. R., I, 156-157; Genet to the Citizens of the United States, June 17, 1793, A. S. P. F. R., I, 158; Genet to Jefferson, June 18, 1793, A. S. P. F. R., I, 1 5 8 ; Jefferson to Genet, June 19, 1793, F., W. of J., V I , 3 1 2 - 3 1 3 ; Jefferson to Genet, June 23, 1793, F., W. of /., V I , 3x5; Anas, July 5, 1793, F., W. of J., I, 235; Anas, July 23, 1793, F „ W. of /., I, 246; Jefferson to Washington, Aug. 22, 1793, F., W. of ]., V I , 395; Genet to Jefferson, Nov. 1 1 , 1793, A. S. P. F. R., I, 185; Genet to Jefferson, Nov. 14, 1793, A. S. P. F. R., I, 185-186; Jefferson to Genet, Nov. 15, 1793, J. G. L., p. 86; Hamilton to Washington, Nov. 23, 1793, L., W. of H., IV, 248; Jefferson to Genet, Nov. 24, 1793, J. G. L., P : 1 1 1 ; Jefferson to Genet, Dec. 6, 1793, T. J . P. No. 1 6 3 1 5 ; Hamilton to Washington, Jan. 4, 1794, L., W. of H., IV, 250260; Report to the Senate, June 6, 1794, A. S. P. F. R., I, 468. The most important communications between the two ministers and their respective governments on this subject are the instructions to Genet, C. of G., pp. 2 0 1 - 2 1 1 ; Genet to Minister of Foreign Affairs, No. 32, Dec. 10, 1793, C. of G., pp. 282-283; Grenville to Hammond, Mar. 12, 1793, B. S. P . ; Hammond to Grenville, No. 16, 7 July, 1793, B. S. P.

APPENDIX

III

A R T I C L E V I I OF T H E J A Y T R E A T Y

T h e letter from Jefferson to Hammond, Sept. 5, 1793, was later accepted by both parties as the basis for the settlement of those claims discussed in Chapter V of this study. As such it was mentioned in the Jay treaty and formed an appendix to that treaty. This part of the negotiations, as well as the final settlement of the disputed cases, took place a f t e r the period covered by this study. These are so interesting, however, and so important as a precedent, that it has been thought worth while to include at this point a summary of these later developments. By article V I I of the Jay treaty provision was made for the settlement of two classes of claims, one American and the other British. In the case of the American claims it was contended that the British government had violated rights of neutral trade. In the case of the British claims it was contended that the government of the United States had failed to perform its neutral duties by permitting captures to be made within its territorial jurisdiction, as discussed in chapter I I I of this study, and by permitting the original equipping and arming of French vessels in American ports. It was agreed in the Jay treaty to establish at London a mixed commission, to see that justice was done to the citizens of each nation. This section was not written into the treaty without considerable difficulty. The conduct of Genet, the arguments of Jefferson, the demands of Hammond and the British Orders in Council had all so disturbed friendly relations that Jay and Grenville were more than once at the point of failure. Once when these negotiations had reached a critical point Lord Grenville announced that many of the disputed cases were now before the courts and that no definite judgment could be formed until the effect of these proceedings should be known. H e said that if " from whatever cir275

276

APPENDIX

III

cumstance " the parties may be unable to procure such redress in the ordinary course of law as the justice of their cases might entitle them to expect, " His Majesty [would] be anxious that justice should, at all events, be done." O n the basis of this declaration the plenipotentiaries succeeded in agreeing on a measure of redress without entering into a discussion of the particular principles on which relief should be granted. This is the explanation of how the seventh article of that treaty succeeded in settling a difficult problem by transferring it to the quieter precincts of an arbitial commission. It was agreed to establish at London a mixed commission to consist of five persons. T h e first meeting of the commissioners was held on A u g u s t 16, 1796. T h e commissioners were John Nicholl and John Anstey appointed by Great Britain, Christopher Gore and William Pinkney appointed by the United States and Colonel John Trumbull of Connecticut selected by lot. T h e first formal awards were made April 13, 1797 but there was soon considerable delay because of the difficulty of obtaining evidence and proofs concerning each case, and for various other reasons. O n July 20, 1799 the proceedings of the commission were suspended for over two years because of the failure of another commission sitting at the same time under article V I of the Jay treaty. T h e commissioners under article V I I reassembled, however, February 15, 1802 and succeeded in bringing their proceedings to a successful close on February 24, 1804. This commission made awards against the United States government in favor of British citizens totaling $143,428.14. The total amount of the awards in favor of American citizens was probably about $11,650,000.00. Each government immediately paid the awards against it. O u r interest in these proceedings might be permitted to stop here had this case not become so important as a precedent. It is an example moreover which has attracted considerable attention in recent years, partly by comparison, partly by contrast. It is by no means certain that our conduct of the last fifteen years has been an improvement upon this precedent. So eminent an authority as John Bassett Moore has spoken of this

APPENDIX

III

277

as the example of the " existence of a more liberal policy than that which now prevails " and he continues " as we are somewhat prone to boast of leading the van in the cause of peace it may be worth our while to consider whether we should not gain a position far in advance of that we now hold if we were to recur to the practice we followed a hundred and twenty years ago " (1794-1914). As an introduction to an address on " International Arbitration " he cites this as an example of a case where " there was no specifications or limitation, the two governments being evidently anxious to remove every cause of controversy by a sweeping arbitral settlement." " Notable by the amplitude of its jurisdiction . . . (the commission) asserted and exercised the power to determine for itself the limits of its jurisdiction under the terms of its constitution. . . . It entertained claims based on condemnation of property by national prize courts of the highest jurisdiction and awarded damages where it held such condemnation to have been wrongful." The work of the London commission under the Jay treaty has yet another result. Among the international arbitrations so far held that of the Alabama claims at Geneva in 1872 still represents the high-water mark. " B u t " , says Moore, " It is a fact known to the intelligent negotiators of that time . . . that the germination of the Geneva arbitration may be traced to the Jay treaty and the proceeding of the London commission, which was, it is believed, the first international tribunal judicially to award pecuniary compensation for damages resulting from the alleged failure of a government to perform its duties as a neutral." Cf. John Bassett Moore, History and Digest of International Arbitrations, I, 299-349; ibid., International Adjudications Ancient and Modern (N. Y., 1929), pp. X V - X C I ; ibid., International Law and some Current Illusions and Other Essays, Chapters I, II and IX.

APPENDIX

IV

T H E N E U T R A L I T Y A C T OF

1794

1 Statutes at Large 381: Many of the clauses of this neutrality act of 1794 were based largely on principles which were developed during the critical year of 1793. Still other clauses of this act were the result of those events during the year 1793 which revealed the lack of statutes expressly conferring needed authority on the various officials. Several of these sections are mentioned incidently in other parts of this study but this act has been so important in later years that a more careful discussion of its provisions is appropriate. Sections one and two are the ones mentioned in Chapter V of the text and declare it illegal for any person to accept such a commission or so to enlist while under the jurisdiction of the United States. The third section of this act makes it illegal to fit out or arm a vessel in the waters of the United States with the intent to employ it in the service of any foreign, belligerent state with which the United States is at peace. This section merely gives statutary force to the rules on this subject which were developed by the cabinet as a result of Genet's attempts to fit out French privateers during the year 1793. The fourth section likewise provides legal punishment for any one convicted of augmenting the force of any vessel for such purposes. The cabinet had succeeded in defining and prohibiting this offense but was handicaped in trying to prevent it by the lack of power or at least failure to fine or imprison violators of its regulations. This section of the act merely supplied this deficiency. The fifth section of the act provided punishment for setting on foot military expeditions such as those which Genet planned against Spain from Kentucky and the Southern states. The expeditions had been effectively prevented by the Federal Government by the use of the army, and the moral influence of the 278

APPENDIX

IV

279

officials themselves. It is easy to see, however, that this prevention might not have been so effective had Genet had more money with which to finance such movements. The necessity of better legislation on this phase of the problem had been demonstrated while congress was in session. It has been seen that considerable confusion had resulted, during the year 1793, from an uncertainty concerning which courts if any, had jurisdiction over complaints made in cases of captures made within the waters of the United States. The sixth section of the act settled this question by declaring that the district courts should take cognizance of such complaints. The next two sections of the act expressly authorized the President to use the land and naval forces of the United States to prevent any of the transgressions prohibited above. The President had already been so using the army but he probably welcomed this authorization as an antidote to any charge that he had been exceeding his constitutional powers in so doing.

BIBLIOGRAPHY I . P R I M A« Y M A T E R I A L S A.

MANUSCRIPTS

Samuel Adams Papers, George Bancroft Collection, New Y o r k Public Library. British State Papers, Hammond Correspondence, Henry Adams Transscripts, Library of Congress. British State Papers, Hammond Correspondence, Transcripts in the Ford Collection, New Y o r k Public Library. Edmond Charles Genet Papers, Library of Congress. Alexander Hamilton Papers, Library of Congress, First Series, volumes 18-21; Second Series, volume 3. Thomas Jefferson Papers, Library of Congress, volumes 81-96. Henry Knox Papers, Library of Congress. James Madison Papers, Library of Congress. James Monroe Papers, New Y o r k Public Library. Edmund Randolph Papers, Library of Congress. Edmund Randolph Papers, Thomas Addis Emmet Collection, New Y o r k Public Library. George Washington Papers, Library of Congress, volumes 258-266. B. PUBLISHED SPEECHES AND WRITINGS

The

Writings of Thomas Jefferson, edited by H. A . Washington, 9 volumes, New York, 1853. The Writings of Thomas Jefferson, edited by Paul Leicester Ford, 10 volumes, New York, 1892. Jefferson's Germantown Letters, edited by Charles Francis Jenkins, Philadelphia, 1906. ( A useful small collection dealing with the month of November, 1793, some of which are not published elsewhere.) The Writings of George Washington, edited by Worthington Chauncey Ford, 14 volumes, New York, 1889. The Works of Alexander Hamilton, edited by Henry Cabot Lodge, 9 volumes, New York, 1885. The Works of Alexander Hamilton, edited by John C. Hamilton, 7 volumes, New York, 1851. (These papers are carefully and accurately printed without comments.) 280

BIBUOGRAPHY

281

The Life of Alexander Hamilton, by John C. Hamilton, volume V , Boston, 1879. (This contains extensive quotations from manuscripts by various authors, not published elsewhere.) Edmund Randolph, Moncure Daniel Conway, New York, 1888. (This contains reprints of some valuable sources, but must be used with caution.) The Correspondence and Public Papers of John Jay, edited by Henry P. Johnston, 4 volumes, New York, 1890. Memoirs of the Administrations of Washington and John Adams, edited from the Papers of Oliver Wolcott, by George Gibbs, 2 volumes, New York, 1846. The Writings of John Quincy Adams, edited by Worthington Chauncey Ford, 7 volumes (to 1823), New York, 1913. The Diary and Letters of Gouverneur Morris, edited by A. C. Morris, 2 volumes, New York, 1888. The Writings of James Monroe, edited by Stanislaus Murray Hamilton, 7 volumes, New York, 1898. Letters and other Writings of James Madison, published by order of Congress, 4 volumes, Philadelphia, 1867. The Writings of James Madison, edited by Gaillard Hunt, 9 volumes, New York, 1900. The Works of John Adams, by Charles Francis Adams, 10 volumes, Boston, 1856. Correspondence of Genet, edited by Frederick J . Turner, Annual Report of the American Historical Association, 1903, volume II, Washington, D. C., 1904. (Diplomatic correspondence only, in French, very useful.) Correspondence of Tenant, edited by Frederick J. Turner, Annual Report of the American Historical Association, 1903, volume II, Washington, D. C., 1904. (Diplomatic correspondence only, in French.) " Documents Historiques," in Thomas Jefferson, par Cornelis De Witt, Paris, 1861. (Reprints documents from the French Archives.) The St. Clair Papers, The Life and Public Service of Arthur St. Clair, edited by William Henry Smith, 2 volumes, Cincinnati, 1882. Notes on the Life of Noah Webster, compiled by Emily E. F. Ford, edited by Emily E. F. Skeel, 2 volumes, New York, 1912. The Life and Correspondence of Rufus King, edited by Charles R. King, 6 volumes, New York, 1894. Henry Knox, by Noah Brooks, New York, 1900. Life of General Thomas Pinckney, by Rev. Charles Cotesworth Pinckney, D.D., Boston, 1895. A Compilation of the Messages and Papers of the President, by James D. Richardson, 10 volumes, Washington, 1896.

282

BIBLIOGRAPHY C. OFFICIAL

DOCUMENTS

Annals of Congress, volume I V . American State Papers, Foreign Relations, volumes I, II. House Journal, volume II, 3rd Congress, 1st Session. Senate Documents, 19th Congress, 1st Session, No. 102. Message from the President of the United States [May 20, 1826] Transmitting Copies of the Several Instructions to the Minister of the United States to the Government of France, and of the Correspondence with Said Government, Having Reference to the Spoliations Committed by that Power on the Commerce of the United States Anterior to September 30, 1800, &c., Washington, 1826. Senate Executive Documents, 48th Congress, 2nd Session, volume I, part 2. Treaties and Conventions Concluded between the United States of America and Other Powers since July 14, 1776, Containing notes, with reference to negotiations preceding the several treaties, to the Executive, Legislature or Judicial Construction of them, and to the Causes of the abrogation of some of them; a chronological list of the treaties ; and an analytical index, Washington, 1889. Senate Executive

Journal, volume I, 3rd Congress, 1st Session. D. OTHES PRIM Ait Y SOURCES

Bee, Admiralty Reports : Reports of Cases Adjudged in the District Court of South Carolina by the Hon. Thomas Bee, Judge of that Court, to which is Added an Appendix Containing Decisions of the Admiralty Court of Pennsylvania by the late Francis Hopkins, Esquire, and Cases Determined in Other Districts of the United States, Philadelphia, 1810. Ford, Worthington Chauncey, The United States and Spain in 1790. Brooklyn, 1890, (chiefly a collection of source material). Gazette of the United States, Philadelphia, 1793. T h e Historical Magazine, volume X , 1866. (Contains reprints of many letters.) Juriscola [Tench Coxe], An Examination of the Conduct of Great Britain Respecting Neutrals, Philadelphia, 1807. Marshall, John, The Life of George IVashington, 5 volumes, Philadelphia, 1807. The National Gazette, Philadelphia, 1793. I I . SECONDARY

REFERENCES

Bassett, John Spencer, The Federalist System, New York, 1906. Bemis, Samuel Flagg, The American Secretaries of State and Their Diplomacy, volume II, pp. 2-93, New York, 1927. ( A good summary.)

BIBLIOGRAPHY

283

Bonis, Samuel Flagg, Jay's Treaty, A Study in Commerce and Diplomacy, New York, 1924. Bemis, Samuel Flagg, Pinckney's Treaty, A study of America's Advantage from European Distress, Baltimore, 1926. Bowers, Claude G., Jefferson attd Hamilton, 1925. (The citations of newspapers are especially good.) Chinard, Gilbert, Thomas Jefferson, the Apostle of Americanism, Boston, 1929.

Fen wick, Charles G., The Neutrality Laws of the United States, Baltimore, 1912. (A compilation of the various laws from 1794 to the present with useful summaries and discussions.) Genet, George Clinton, IVashington, Jefferson and "Citizen" Genet, 1793, New York, 1899. (An interesting defense of Genet.) Hall, William Edward, The Rights and Duties of Neutrals, London, 1874. Hall, William Edward, A Treatise on International Law, 3rd Edition, Oxford, 1890. Hazen, Charles D., Contemporary American Opinion of the French Revolution, Baltimore, 1897. Hyde, Charles Cheney, International Law, 2 volumes, Boston, 1922. Jessup, Phillip C., The Law of Territorial Waters and Maritime Jurisdiction, New York, 1927. Learned, Henry Barrett, The President's Cabinet, New Haven, 1912. McMaster, John Bach, A History of the People of the United States, volume II, New York, 1885. Moore, John Bassett, A History and Digest of the International Arbitrations to which the United States has been a Party, 6 volumes, Washington, 1898. Moore, John Bassett, A Digest of International Law, 8 volumes, Washington, 1906. Rhee, Syngman, Neutrality as Influenced by the United States, Princeton, 1912. (A more concise discussion of the principles of neutrality in general acceptance among nations at each period from the 16th century to 1872.) Wharton, Francis, State Trials of the United States, Philadelphia, 1849. (Contains a good report of the Henfield case.) Woolery, William Kirk, The Relation of Thomas Jefferson to American Foreign Policy, 1783-1793. Baltimore, 1927. Zimmerman, James Fulton, Impressment of American Seamen, New York, 1925.

INDEX Absence of cabinet members, 139 Accumulation of questions, 77 A d a m s , John, f e a r of Genet's influence, 88 A d a m s , J. Q., 112 A d a m s , Samuel, and privateers, 213 Additional instructions, on contraband, 246; explanation o f , 251 A d m i r a l t y , courts o f , stop sale of prizes, 103; Supreme Court locates prize jurisdiction, 117; district court at Philadelphia decides it does not have admiralty jurisdiction, 105; jurisdiction, located in 1794, 279 A l a b a m a claims, 276, 162 A l e x a n d r i a , V a . , 8a A n a s , unreliability o f , 190 A n s t e y , John, 276 Anti-George, 82, 120 Appeal, f r o m the President to the people, 224 Applicability of the treaties with France, 54-66 Arbiter, in prize cases, 115 Arbitration, 277 Armaments, in A m e r i c a n ports, 196, 118-165 A r m e d vessels, not to be fitted out, 118-165; required to depart, 130 A r m i n g of French vessels, covered in Jay treaty, 275 Attorney General, writes to the district attorneys, 1 5 7 ; see also Edmund Randolph, 157 Augmentation of forcc, when only slight, 205 A u g m e n t i n g the f o r c e of a vessel prohibited in 1794, 278 Bay of Delcware, 94-97 Belligerents, rules governing, 1 5 1 ; specific acts permitted to, 68; specific acts prohibited to, 144 Bermudian vessel, 160 Blockaded port, vessel seized entering, 255

Boston, British frigate, 101 British, see also English, 159 British armaments attempted in United States ports, 159 British expeditions f r o m United States planned, 187 British foreign enlistment act of 1819, 13 British Minister to United States, see Hammond, G e o r g e Buchan, E a r l o f , 20 Burlemaqui, citation o f , 169 Cabinet, absence of members, 139; acts against F r e n c h expedition f r o m the United States against Spain, 185; asks advice of l a w y e r s of Pa., N . Y . , and Md., 1 7 1 ; bargaining within, 31-32; British Minister k n e w the deliberations o f , 130, 189, 201, 228; convinced that the United States must avoid war, 1 4 ; determines questions of facts, 107; distinguishes between privateers, letter of marque vessels and g o v ernment owned ships of w a r , 163; d r a f t i n g of papers, 44-45, 148; expected w a r between Spain and the United States, 182; fails to reach decision on t w e n t y - f o u r hour truce, 164; f o r m i n g a general plan f o r the executive, 262 7 ; helps conduct case in court against Henfield, 172; ideal of procedure, 94; informed by private letters, 214, 2 6 1 ; interpretation of the proclamation, 4649; joint opinions by members, 66, 140, 190; notes during meetings, 60-61; opinions, on French debt, 273; on the Grange, 9 7 ; on Henfield, 176; on issuance of proclamation of neutrality, 4142; Little Democrat armament, 139; no power less than the legis285

286

INDEX

lature can p r e v e n t sale o f prizes, 2 1 9 ; on reception of Genet, 697 0 ; on recruiting, 168; on restitution o f prizes ; unanimous a g a i n s t fitting o u t p r i v a t e e r s , 1 2 8 ; unanimous to recall Genet, 2 2 8 ; opposed erection o f F r e n c h p r i z e courts, 208; orders district attorney to i n v e s t i g a t e D u p l a i n e ' s conduct and t o p r o s e c u t e him, 2 1 4 ; p r e p a r a t i o n of questions f o r the Justices o f S u p r e m e C o u r t , 148; procrastination o f , n o ; rel a x a t i o n possible, 53 ; reluctant to establish general rules, 107 ; responsibility w a s a s s u m e d b y all members o f , 5 1 - 5 2 ; s e c r e c y o f discussions, 32-33; sense of delicacy s h o w n in, 30; settles d o w n to f o r m u l a t e definite rules, 150: Washington overrides the m a j o r i t y v o t e o f , 156 Canada, B r i t i s h troops to, 22 Canning, G e o r g e , 13 Cannon shot theory, n o C a p e H e n r y , TOO Capet, see L o u i s X V I Captures, complaints of those illegal, 102 C a r g o , o f the Grange, 97-98; o f the Greyhound, 213 C a r m i c h a e l , commissioner to Spain, 183 C a r r i a g e s , gun, 146, 161 Catharine, 104 Censure, directed a g a i n s t the g o v ernment, 175, 215 Cerf, 101 Charleston, S . C., consul at held prize court, 2 0 7 ; Genet c o m m i s sioned p r i v a t e e r s at, 1 1 9 ; reception o f Genet, 81-82 China, 23-24 Citisen Genet, ship. 82, 120; captures the William, 100; escape of f r o m P h i l a d e l p h i a , 135 Citizens, f o r e i g n r e c r u i t i n g o f , 122 C l a r k , G e o r g e R o g e r s , plans e x pedition f o r Genet, 178-186 Classification of rules, 158 Clinton, G o v e r n o r , receives c o m plaint f r o m Genet, 1 6 2 ; use o f militia, 106 C o l l e c t o r s of the customs, instructions to, 151

Collusion, danger o f , 204 C o m m e r c e , J e f f e r s o n ' s report on, 245 ; spoliations of A m e r i c a n , 263 C o m m e r c i a l retaliation advised, 246 Commissions, C o n s u l a r , address o f , 223; for privateering, 118; validity o f , 194 Communications to congress, 238-

245

Communications, slowness o f , 33, 49-50. 84-85, 179 Compensation for detention of vessels, 97-98, 205 Compensation f o r prizes, 199 Complaints o f illegal capture, 101 Concessions, Jefferson thought neutrals should f o r c e f r o m belligerents, 36 Condemnation of prizes, see C o n sular courts, 122 C o n f u s i o n made violations possible, 158 C o n g r e s s , e x t r a session proposed, 29, 67-68, 1 7 5 ; b y Genet, 236; but rejected b y cabinet, 238; message to on compensation f o r prizes, 200 ; party c o n t r o l o f , 37 ; preparation f o r m e e t i n g o f , 238 Conningham, 101, 116. Conqueror of the Bastile, 121 C o n s u l a r commissions, address o f , 223 C o n s u l a r courts, H a m m o n d ' s protest against, 122 C o n s u l a r jurisdiction, usurpation o f , 205-220. Consuls, A m e r i c a n resident abroad ordered to g u a r d neutrality, 232 4 ; subject to courts, to be punished, 215, 218 Contraband, export of articles, rules g o v e r n i n g , 2 4 7 ; r e f e r r e d to in instructions to collectors of customs, 153; United States maintained that provisions w e r e not, 251 ; see a l s o additional instructions on, 246 Conventions, disregard of by Genet, 119 Coolness between W a s h i n g t o n and Jefferson, 141 C o u r t s , of A d m i r a l t y , stop sales of prizes, 103; A m e r i c a n , indecision o f , 2 1 0 ; contest between United States c o u r t s and consu-

INDEX lar courts, 210; district court at Philadelphia decides it does not have admiralty jurisdiction, 105; Genet's attitude toward, 105; jurisdiction of, mentioned in communication to congress, 243; ship owners would appeal to, 102; see also consular courts, District courts, prize courts, Supreme court, 213. Crew, of the Grange, 97-98. Criticism of the proclamation, by Jefferson, 41 Custody of prizes, 107, 211 Dallas, A . J., interview with Genet, 138, 225 Dannery, French consul at Boston, 216. Decentralization of procedure, 114 Defense, arming for, 137, 145 Defensive alliance, 58 Delaware Bay, 94-97 Delaware, Capes of, 100 Denmark, 255 Detention of vessels, 97-98, 205 Distress, ships in, 152 District attorney, remonstrates with Duplaine, 214 District attorneys, duty of in prize cases, 114; instructions to. 143; to be informed of violations, 151, 155. District court, suit brought in for recovery of prize, 213 Dorchester, Lord, 18 Drafting of, cabinet papers, 44-45, 148; communications to congress, 47-48, 238 Duplaine, French vice consul at Boston, uses force against government, 107, 207, 212-217 Dutch vessel, 160

287

States gave same rights to England as to countries with treaties, 202 English privateers, fitted out in Charleston, Baltimore, Philadelphia and Georgia, 160; could not enlist Americans, 173 English, prizes, captured from. 121 English vessels, could not bring prizes to United States ports, 152 English, see also British, 159 Enlisting in foreign service prohibited in 1794, 278 Equipments, doubtful in nature, 153 Evidence, withheld, 108 Executive, decided most of prize cases, 115 ; ill prepared to take care of cases, 150; and the law of nations, 39; preferred to have courts settle cases, 103 Executive usurpation, 38 Exequatur, revocation of, 216 Extreme danger, furnishes justification for avoiding obligations, 59. 63, 75

Fanny, 100, 102, 114 Financial difficulties of Genet. 272 Fiscal Party, 82 Fitting out of armed vessels prohibited, 118-165 Fitting out vessels prohibited in 1794, 278 Fleets, of belligerents, no limit on length of visit in ports of the United States, 163 ; see also French fleet, British fleet, 163 Florida, see East Florida, 180 Foreign enlistment act of 1819, British, 13 Foreign recruiting, prohibition of, 165-205 Fortifications, harbor, 81-82 Eagle, size of, 100 France, had declared obligations East Florida, Genet, plans attack null, 59; sympathy for France against, 180 of state and federal officials, Embargo, laid in 1794, 246 213 ; treaties with, 152 ; treaty Embiiscade, arrival at Charleston, with compared with others, 202 79; arrival at Philadelphia, 80 Fredericksburg, Va., 83 captures British vessel, 206 Free Ships—Free goods, 257 captures the Catharine, 100; cap- French Canadians, 180 tures the Grange, 91; captures French consul, captain subject to the Little Sarah, 137 ! while vessel of war was in port, England, when possible the United ' 214

288

INDEX

French consuls, see consular jurisdiction, 206 French decrees concerning American vessels, 253 French fleet, arrives during July, 158; expected daily, 140; remained at New York, 163 French Minister to United States, see Genet, E. C. French naturalization, 34, 168 French principles, America connected with, 50 French regent, minister from, 71 French Republic, attitude on the guarantee, 64; danger of, overdraw of, 59; Jay's attitude toward recognition of, 45; knew that France had no right to fit out ships in American ports, 127; recognition of, 73-75. French Revolution, popular sympathy for, 88-89. French seamen, oversupply o f , 176 French sympathizers, 37 French West Indies, 80; see also guarantee. Gaillard, John, 112 Galiani, 110 Gazettes, see newspapers. General rules, cabinet reluctant to establish, 108 Genet, E. C., arrival of, 77-90; on the guarantee, 64; reception o f , questions on, 68-70; delay in his arrival raises question of qualified reception, 7 1 ; knew of danger of a qualified reception, 72; responsible for many violations of neutrality, 77-78; earlier life, 78; reasons for landing at Charleston, 79-80; journey to Philadelphia, 82-83; news of his appointment, 84-85; official reception of, 84-86; hoped to subvert government of the United States, 86-89; acquiesces in decision on Grange, 98-99; attitude toward American courts, 105; intentionally delays replies, 109; the equipping of privateers, 118165; explains the Charleston incidents, 124; to negotiate new treaty, 127; refused to order privateers to depart, 133; Little Democrat, armed by, 138; de-

fends enlistment of Americans, 167; lack of knowledge of international law, 169; planned expeditions against Spanish America, 178; financial difficulties, 179, 272; and St. Domingo, 187; ordered erection of prize courts, 207; opposes Federal courts, 212; published philippic in newspapers before delivering it to the Secretary of State, 217; effect on American neutrality, 221237; poise shaken by many adverse decisions, 223; insolent letter not answered, 224; recall of, 226-232; his last months as minister, 235; attempted to assign the debt to individuals, 274 Geneva arbitration, 277 Georgetown, Va., 82 Georgia, expedition ordered stopped, 186; French expeditions started in, 180; Indian war in, 182; privateer fitted out in, 159 Gore, Christopher, 215, 276 Governor of Kentucky, asked to prevent Genet's expedition, 185 Governor of Pennsylvania, re-examined the Little Sarah, 138 Governors, asked to enforce order against offending vessels, 134; to deliver over prizes, 114; expected to aid, 105; to be informed of violations, 151; instructions to, 142; notified that proscribed privateers were not to remain, 198; also see George Clinton, John Hancock, Henry Lee, William Multrie, Isaac Shelby Grain trade, 15, 63, 251 Grand juries, charges to, 143, 155 Grange, 91-99; Genet had tried to be conciliatory, 223; Hammond's complaint against, 122 Gray's Ferry, 83 Great Britain, see England, 202 Grenville, Lord, on the guarantee, 63; Hammond's reports to, 19; maintained that provisions were contraband, 254; opinion of the proclamation, 49; warns Hammond and America against Genet, 121 Greyhound, prize, 213

INDEX Grotius, citation of, 169 Guarantee, of French West Indies, 62-65; Genet on, 222; origin of the question concerning, 29 Gulf stream as limit of territorial waters, 112 Hamilton, Alexander and France, 14; necessity of postponing all wars for twenty years, 18-20; and Hammond, 19-20; partiality for England, 19-20, 39-40; authorship of the preliminary questions, 27-32; explains to Jay his doubts on reception of Genet, 31; reveals cabinet discussions to his friends, 33; and the proclamation, 38-52; interpretation of the proclamation, 46-49; written opinion an applicability of treaties, 55-60; war offensive by France, 58; on reception of Genet, 69-72; influences merchants to address president favoring the proclamation, 8990; opinion on fitting out privateers, 128; written opinion on Little Democrat, 140; author of some of the questions for the Supreme Court, 149; written opinion on restitution of prizes, 190; expects war with France over recall of Genet, 237 Hamilton, John C., accuses Jefferson of neglect of duty, 28; claims authorship for father, 148; Jefferson's opinion on the treaties, 65-66 Hammond, George, essay on America, 22; opinion of Jefferson, 22; opinion of the proclamation, 49; on the guarantee, 64; character of, 87; on permanency of the Federal Government, 87; memorial on the Grande, 95; presents complaints of illegal captures, 102; withheld evidence, 108; scries of memorials on violations of neutrality, 121; pleased with decision against fitting out vessels, 129; opinion of American attempt to observe neutrality, 136; acquiesces in adverse decision, 161, 205, 195; knew deliberaions of the cabinet, 189, 201, 228

289

Hancock, John, Governor of Mass., 213 Henfield, Gideon, trial of, 171, 174 Higginson, Stephen, asks detailed questions, 145; suggests a proclamation, 48 Holland, France declares a war on, 24; Genet appointed minister to, 78 Holland, Mr., an American merchant, 137, 258. Indemnification for prizes illegally captured, 200 Indians, 182 Indictment, Randolph prepares indictment used against Henfield, 172 Industry, augmented her force, 204 Industry, shipbuilding, 155 Inland rivers, 97 Inspection of armament of vessels entering and leaving ports, 153 Instructions to Genet, 79 Interlineations in rough drafts, 148 International law, citations of on recruiting, 168; citations to, on suspending treaties, 57-58, 6162; Genet's lack of knowledge of, 169 Iredell, James, charge of, 172; charge to grand jury in N. C., 143 Ireland, 23 Jane of Dublin, 160 Jane, augments, equipment, 160 Jaudenes, Spanish commissioner to the United States, 182 Jay, John, and the preliminary questions, 29-30; not author of the proclamation of neutrality, 43*45! arrival in London, 50; treaties not void, 56; on reception of Genet, 70-72; charge to grand jury at Richmond, 143; charges against Genet, 225 Jay treaty, article VII, 275 Jefferson, Thomas, as Secretary of State. 13; as President, 13; and England, 14; and the French Revolution, 14-15; United States should take part in no European war, 15-19; later attitude on neutrality, 16; criticism of, 16;

2ÇO

INDEX

America should gain from European struggles, 17; and the preliminary questions, 26-28; reveals cabinet discussions to Madison, 32-33; and the proclamation, 35-52; consents to the proclamation, 40-41; reason for not drafting proclamation, 45-46; interpretation of the proclamation, 46-49; execution of the proclamation, 49-52; written opinion on applicability of treaties, 60-66; renunciation of entire treaties impossible, 62; on the guarantee, 63; offensive nature of the war, 65; joined in unanimous answer against calling congress in May, 68; recognition of French regent, 7 1 ; opposed qualified reception of Genet, 72-76; theory of act of recognition, 74-75; public gratified by capture of Grange, 95; favored appeal to courts, 103; favored wider margin for territorial waters, 110; replies to Hammond's complaints, 123; on right to fit out privateers, 127; interview with Genet on Little Democrat, 138; written opinion on the Little Democrat, 140; author of some of the questions for the Supreme Court, 149; attitude in Henfield case, 1 7 1 ; Genet tells of his expedition against Spanish America, 183; written opinion on restitution of prizes, 191; personally reassures Genet, 193; writes indictment of Genet, 221, 229; weakening in his enthusiasm for Genet, 224; on the limitations of congressional power, 237; wrote message of Dec. 5, to congress, 240; report on commerce, 245; replies to Hammond's complaint on contraband, 248; prepared a circular letter to merchants, 264; retirement of, 265 Jones, John Paul, 126 Jurisdiction, over admiralty complaints located in 1794, 279 Kentuckians, 178 Kentucky, cabinet learns of Genet's plans in, 185; Genet's expe-

dition from, 179; Genet sends Michaux, 183 King, Rufus, treaties not void. 56; on reception of Genet, 70-72; on exploits of John Paul Jones, 126; charges against Genet, 226. Kingston, Stephen, developes practically all arguments used by cabinet to justify issuance of passports to foreign-built vessels, 261 Knox, Henry, usually accepted and agreed with Hamilton's Cabinet opinions, 66; announces decisions to Governors, 110; written opinion on Little Democrat, 140; Washington orders to gain knowledge of Spanish forces, 185; related certain incidents intended to exasperate Washington, 227 Lawyers, cabinet asks advice of, 171 Lee, Henry, Governor of Virginia, proposes to go to France to join army, 170; suggests a proclamation, 48 Legislature, right to declare war,

38-39

Letter of Marque vessel, the Swallow, 162 Letter of Marque, vessels differed from privateers. 153 Letters of Marque, acceptance of by merchant vessels, 146; Genet issued, 118-119 Letters, British delay in answering, 132 Limit of American territory, 91-

U7

Little Democrat, armed by Genet at Philadelphia, 137-144; cabinet opinions on, 191; effect of incident, 197; Genet's argument with Dallas, 225; incident is turning point, 224, 226; reported by Genet, 1 2 1 ; use Genet intended to make of, 180 Little Sarah, became the Little Democrat, 137; cabinet opinions on, 1 9 1 ; captured by the Embuscade, 137; enemy ships—enemy goods clause enforced by the United States against Americans, 258

INDEX Littoral waters, 93 Liverpool, United States consul at, 251 Lodge, H . C., on authorship of preliminary questions, 28; on authorship of questions f o r the Supreme Court, 148; on suspending treaties. 72 Louis XVI, and Genet, 86; treaties made with, 57-58, 61; trial of, 23 Louisiana, 178 Mackie, Mr. an American merchant, 137, 258 McMaster, J. B., 16, 176 Madison, James, constitutionality of the proclamation, 37; resolutions of, 246 Mangourit, French consul at Charleston, S. C., 180 Maritime extent of territory, 91117 Marshal, boards a prize, 213 Marshall, John, opinion of preliminary questions, 30-31 Martinique, 136 Means, use of by belligerents, 144 Merchant vessel, arming of, 152 Merchants, circular letter to prepared by Jefferson, 264; see also Holland and Mackie Mexico, French plans against, 183 Michaux, Andre, aids Genet in the West, 179 Military expeditions, punishment provided in 1794 for starting, 278 Military guard, established by French on prizes, 213; established on disputed prizes, 211 Mississippi river, 18; Clark established post on, 179; necessity of opening, 181 Monroe, James, constitutionality of the proclamation, 37; sympathizes with Henfield, 171 Morris, Gouvemeur, estimate of Genet, 78-79; persona non grata in France, 79 Moultrie, Governor, reception of Genet, 81-82; yields to Genet, 120 Mud Island. 140

291

Munitions, sale of, by the government, denied, 250; Hammond's protest against, 122 Murray, Admiral, 163 National Gazette, 176, 224 Napoleonic wars, 14 Naturalization, French, 34, 168 Navies, relative strength of French, British and American, 63 Netherlands, treaty with, 152, 202 Neutral duties, 221-266; emphasis on in 1793, 92-93 Neutral rights, 221-266 Neutrality act of 1794, 278; forbade foreign recruiting, 187 Neutrality, fitting out of armed vessels a violation of, 131; word not used in the proclamation, 45-49 New Hampshire, 23 New Orleans, attack on, 178, 183; Genet plans attack against, 180; Washington wants a secret correspondent at, 185 New York, contest with Genet over prize at, 212 Newspapers, desire for those from Europe, 23 Nicholl, John, 276 Non-intercourse bill of 1794, 246 Non-military repairs, 146 Nootka Sound, 18-19, '49 Norfolk, Virginia, 99 North Carolina, 23 Northwestern Territory, 186 Notes during cabinet meetings, 60-61 Offensive war by France, 58 Ohio river, fort established on, 186 Old Whig, 121 Pacificus papers, 38 Partisan motives, effect on conduct of foreign relations, 88; effect 011 proposal for extra session of congress, 67-68; in opposition to Genet, 225; in opposition to proclamation, 37; in proposal to publish correspondence, 233 Passports for vessels, 261 Patriate, 82

292

IXDEX

Persecution, objection to possi- | 116-117; sale of, 209, 219, 242; bility of, 154 j stopped by court, 103; those Peers, Judge, charge of, 172 made by the proscribed privaPhiladelphia, reception of Genet, teers, 196; see also Catharine, Conningham, Fanny, Grange, 83-84. Greyhound, Jane of Dublin, Pilgrim, 101, 116 Little Sarah, Pilgrim, RepubliPickney, Thomas, directed to urge can, Rosehampton, William, a revocation of the additional inWilliam Tell. structions, 252 Proclamation of neutrality, 13-52; Pickney, William, 276 and contraband, 251; mentioned Polly, see Republican, 143 in message to congress, 241; Portholes, opening new ones, 146, popular reception of, 88-90, 173; 161 tested by events, 118 Ports, not to be used for fitting Prohibited, acts of belligerents, out armed vessels, 118-165 144 Precedents, absence of, 34-35, 67 Prohibition of the fitting out of Preliminary questions, 53-77 armed vessels, 118-165 Privateering, immediate resort to, Prohibition of foreign recruiting, 33 165-205 Privateers, attempt to exclude by Provisions, Genet to purchase, force. 135; depredations of, 121; 273; purchased by Genet, 81 expulsion of those illegally fitted Prussia, treaty with, 152, 202 out, 192; fitted out by British Publication of correspondence prosubjects, 159; fitting out of, 118posed, 233 165; Genet refuses to send away, Puffendorf, citation of, 169 195; and Governor Moultrie, 81-

82; manned with Americans, 166; mentioned in treaty, 54; slight augmentation of force of, 205; see also, Anti-George Carmognole, Citizen Genet, Conquerer of the Bastille, Eagle, English Privateers, Industry. Little Democrat, Old Whig, Patriate, Republican, Roland, Sans Culotte. The Embuscade was a frigate of the French Government's. Prize Courts, erected by French, 207 Prize masters, 213 Prizes, cabinet discussion on expelling, 131; capture of, 275; captured from English, 121; in charge of French consuls during detention, 106; compensation for, 200; custody of, 2 1 1 ; demand for restitution of, 187-204; English vessels could not bring in, 152; forcible contest between the government and Genet for, 212; general rule on disposition of those reclaimed, 204; mentioned in treaty, 54; reclaimed as taken within American waters,

Questions, accumulation of, 77; preliminary, 53-77; presented to the Justices of the Supreme Court, 267; the thirteen preliminary, 26-43; those the Supreme Court was asked to answer, 147 Randolph, Edmund, and the preliminary questions, 27; drafted the proclamation, 43-45; interpretation of the proclamation, 47-49; chooses to give written opinion, 53; often agreed with Jefferson, 66; opinion on capture of the Grange, 96-97; opinion on fitting out privateers, 129; responsible for arguments used to justify expelling privateers, 131; deletes paragraph from Jefferson's letter to Genet, 134; absent in Virginia, 139; official opinion on recruiting, 170; opinion on restitution of prizes, 192; composed speech of Dec. 3, to congress, 240 Rawle, William, 172 Recall of Genet, 226-232 Recruiting, covered in rules governing belligerents, 152

INDEX Refitting of privateers, 145 Regent of France, minister from, 71 Replevin, writ of, 213 Reprisal, acts of, 192 Republican, ship, 82, 101, 120, 143 Revolution, planned by Genet against United States Government, 86-89 Richmond, Virginia, 83 Rivers, inland, 97 Roehampton, 204 Roland, French privateer, 213 Rules governing belligerents, 151 Russia, Genet in, 78 Sale of prizes, 209, 219, 242 St. Clair, Arthur, 186 Sans Culotte, 82; captures the Conningham, i o i ; size of, 100; on the sea, 120 St. Domingo, Briish expedition against, 187; refugees, 238; relief of, 272 Secrecy of cabinet discussions, 3233 Secretary of War, writes to the various governors, 157; see also Henry Knox, 157 Shelby, Isaac, Governor of Kentucky, 186 Ships of war, those government owned differed from privateers, 1 S3 Shipbuilding industry, 153 Short, commissioner to Spain, 183 Smith, W. S., brings word f r o m France, 22; Hammond's knowledge of, 22-23; warns cabinet of French attack on Spanish America, 183 Soldiers, recruiting of, 165 South, Genet's plans in, 177 South Carolina, French expedition started in, 180; expeditions stopped, 186 Southern states, Hammond accuses of breaches of neutrality, 136 Sovereignty, violations of, see Grange. Spain, commissioners to, 22; Genet's plans against, 177; message to congress relative to, 245; relations between the United States and, 181

293

Spanish America, French plans against, 22, 183 Spanish colonies, United States not to guarantee, 183 Spanish Commissioners, Hammond compared to, 133 Specific acts prohibited to belligerents. 144 Spoilage, compensation for, 205 Spoliations of American commerce, 263 Strict construction theory, 36 Supreme Court, declares that district courts have jurisdiction over prizes, 117; Justices set forth duties of neutrality, 143; advisory opinion requested of, 146; questions presented to by cabinet, 267; questions to on extent of territory, 109 Sweden, 255 Swallow, letter of marque vessel, 162 Tennessee river, 180 Ternant, Jean de, 78, 83, 96, 272 Territory, limit of, 91-117; case of the Greyhound, 213; same vessels involved as in usurpation of consular jurisdiction, 210 Testimony, procedure for taking in prize cases. 115 Three-mile limit, 112 Treasury Department, Jefferson opposed to increasing influence of, 154 Treaties, applicability of those with France, 54-66; Jay treaty, article VII, 275; with France, annulled 1798-1800, 76; misinterpretation of obligations of United States under, 77-78; questions on, 267; voidable but not void, 73 Treaty of alliance. 54-55 Treaty of amity and commerce, 54-55; gave no right to erect prize courts, 206; did not authorize France to fit out ships in American ports, 126; interpretation of, 152 Treaty of 1783, in execution of, 256 Treaty, new one to be negotiated by Genet, 127

294

INDEX

Truce of twenty-four hours, 164 Trumbull, John, 276 United Netherlands, see Netherlands, 202 Usurpation of consular jurisdiction, 205-220 Vair, Spanish commissioner to the United States, 182 Vattel, cited by cabinet, 190; cited on neutrality, 129; cited on recruiting, 169 Vessels, pierced for guns, 154, 155, 249 Violations of sovereignty, see Grange. V o n Hoist. H. E „ 16 War, first news of, 21-25 Washington, George, truly neutral, 14; views on French Revolution, 15; desire for peace, 20-21; at Mount Vernon, 21, 25, 140; signs questions for cabinet drafted by Hamilton, 28; incorrect implication that he attempted to deceive members of the cabinet, 30; interpretation of the proclamation, 47-48; decides on unqualified reception of Genet, 76; official reception of

Genet, 84-86; fear of Genet's influence, 87-88; choosing the three-mile limit, 1 1 1 ; would receive and consider Genefs explantation, 124; Little Democrat decision, 141; favored shipbuilding industry, 155; advises against Governor Lee joining French army, 170; wants a secret correspondent at New Orleans, 185; had constitutional scruples against suggestion of Hamilton's, 200; ready to dismiss Genet, 231; postpones publication of correspondence, 234; acquiesced in the majority cabinet vote. 238; decides on complete publication against the advice of a majority of the cabinet, 244 Waste, compensation for, 205 Wayne, Anthony, 186 West, Genet's plans in, 177 William, 100, 102, 108, 116 William Tell, 101 Wilson, Judge, charge o f , 172 Wilson, Woodrow, 34-35 Witnesses, often depart, 114 W o l f , citation of, 169 Yellow fever, 109, 185, 216, 238