Chapter 5
“To Keep This Country in Peace”
French Violations and Executive Actions
With the ink still drying on the Neutrality Proclamation, maritime citizens began to alert the national government that French privateering was occurring in America’s ports and along its coast.1 While cabinet members had put their full efforts into drafting a consensus statement based on Enlightenment ideas, they had paid little attention to enforcing it. During the hectic spring and summer of 1793, the Washington administration confronted a barrage of domestic and international challenges to the neutrality policy. Beyond a general desire to avoid European hostilities, the national government had no mechanisms in place to block French privateering, to prohibit U.S. citizens from serving on these vessels, or to respond to British complaints about ship seizures and losses. With the violations outpacing the government’s ability to respond, Washington once again employed his strong political skills to corral his advisors’ divergent views into comprehensive enforcement plans. Seeking consensus on the best ways to implement the proclamation, as he had done during its formulation, the president and his cabinet deliberated on and agreed to a series of groundbreaking policies that defined the responsibilities of nascent federal agencies. Through their painstaking crafting of an enforcement strategy, Washington and his administration built a neutral federal government, beginning with the executive branch.
The first steps toward implementing the Neutrality Proclamation proved largely institutional, relatively small, and surprisingly contentious. The cabinet officer with the greatest role in enforcing neutrality was the secretary of state. As constituted by Congress, this position bore responsibility not only for U.S. diplomacy but also supervised “state” matters, including communication with governors. Washington institutionalized the protocol of diplomatic channels when he instructed Secretary of State Jefferson to disseminate the proclamation to American and European diplomats and to state governors.2
The letters to the various ambassadors captured both the boldness of America’s neutral stance and the young nation’s insignificance in European affairs. Writing to the French, English, and Dutch ministers stationed in the United States, Jefferson began, “As far as the public gazettes are to be credited, we may presume that war has taken place among several of the Nations of Europe.” He then announced America’s preemptive policy of neutrality: “Disposed as the U.S. are to pursue steadily the ways of peace, and remain in friendship with all the nations, the president has thought it expedient, by proclamation . . . , to notify this disposition to our citizens . . . , the line of conduct for which they are to prepare.” Acknowledging the lack of communication from Europe’s warring nations, Jefferson added that this statement was issued “without waiting for a formal notification from the belligerent powers.”3 British minister George Hammond’s cheeky response confirmed Europe’s low opinion of America’s international standing while also previewing the men’s rocky relationship. Hammond first affirmed America’s “friendly and impartial conduct towards the belligerent powers.” He then noted, “but as you seem to be of the opinion, that, in order to give this measure immediate and complete operation, it is necessary for this government to obtain some more formal knowledge of the existence of hostilities than such as is to be collected from the public Gazettes,” on February 1, 1793, France had indeed declared war against Britain and the Netherlands.4
Jefferson also wrote to the five U.S. ministers posted in Europe, distinguishing between those stationed in countries that were at war (France, Britain, and the Netherlands) and those that were not (Portugal and Spain).5 To the diplomats based in warring countries, he instructed that they alert their host countries of America’s desire “to preserve peace and friendship with all the belligerent powers.”6 For those in countries not at war, Jefferson regarded his message as both informational and preemptive: “Should the nation where you are, remain neutral, these papers will serve merely for your information: should they take part in the War, you will be pleased to make to them the same communication, which our ministers at Paris, London, and the Hague, are instructed to make.”7 The secretary of state’s letters to Europe announced America’s intention to pursue peace and friendship with all nations, rather than waiting for formal notification from the warring countries or risking involvement by default. These dispatches also underscored the U.S. government’s minor role in international affairs.
The domestic unveiling of this policy also exposed the gap between the statement’s boldness and the relative weakness of the American government in enforcing it. Jefferson shared the proclamation with the governors of the fifteen states (now including Vermont and Kentucky), declaring to each that the policy “will have the benefit of Your Excellency’s aid towards their general and strict observance by the citizens of the State over which you preside.”8 Secretary of the Treasury Hamilton sent copies of the proclamation to the collectors of the customs stationed in the coastal cities, advising that “the building of vessels calculated and fitted for war is a circumstance which will merit particular attention.”9 While Washington’s cabinet correctly identified the states and ports as the frontline for possible neutrality violations, these letters did not specify how governors and customs collectors were supposed to handle any transgressions.
In 1789 Congress had nationalized the U.S. Customs Service through the Tariff Act and the Duties on Tonnage Act and had also authorized fifty-nine customs districts across eleven states.10 The Customs Service had the twin distinctions of employing the bulk of the national government’s personnel and collecting the lion’s share of its revenues. By 1792, the customs service had expanded into fourteen states and employed 146 officers and 332 subordinates. The top position of collector of the customs proved to be a desirable one because of its high pay; its influential role in a community, particularly in a busy port city such as Boston; and its ability to hire staff.11 The Customs Service also distinguished itself in revenue collection. Of the $5.1 million the U.S. government brought in during its founding decade, $5 million (88 percent) came from customs alone.12 While this agency had a clear role in revenue collection, its enforcement responsibilities remained murky.
Disagreements on the best ways to employ the customs collectors and the U.S. attorneys produced the first of many cabinet debates on the domestic enforcement of neutrality. The controversy began on May 4, when Hamilton recommended to Washington that the Treasury Department’s collectors of the customs report all neutrality violations, “including the building of ships with gun ports,” to the secretary of the Treasury.13 Given the Customs Service’s size and influence, not to mention Hamilton’s authority over it, Jefferson’s vehement opposition to this proposal was not surprising. First, Jefferson feared that “the collectors of the customs are to be made an established corps of spies or informers against their fellow citizens.” Second, he saw Hamilton’s proposal as an unconstitutional power grab by the Treasury Department since this agency bore no responsibility for issues of war and peace. In addition, giving Treasury oversight of neutrality violations would further increase the power of the government’s largest department, “already amply provided with business, patronage, and influence.”14 Lastly, Jefferson believed that grand jurors and judges, rather than Treasury officials, should handle neutrality violations because legal matters fell under their purview.15
Jefferson was not alone in objecting to Hamilton’s proposed circular. Washington expressed concern that the provision identifying “the building of ships with gun ports” as a neutrality violation might be misunderstood. He wrote to Hamilton, “I am not disposed to adopt any measures which may check Ship-building in this Country” and cautioned against “too promptly” adopting measures that are “not indispensably necessary.”16
This disagreement over enforcement protocol and responsibilities ended the same way disputes over the policy’s formulation had: with Attorney General Randolph crafting a compromise. Randolph proposed that the customs collectors report neutrality violations to the U.S. attorneys, who would then relay them to the attorney general.17 In addition, the revised instructions would not contain language about ship construction.18 This compromise took authority away from the Treasury secretary as well as the secretary of state, who also bore responsibility for supervising the nation’s district attorneys and federal marshals.19 Although the cabinet reached this agreement on May 10, Hamilton pushed back on efforts to curtail his department’s authority when he delayed the release of this revised circular until August 9, an enforcement lapse of three months.20
Washington and his cabinet found themselves embroiled in a second enforcement dispute when they debated the best way to issue sea passports (or sea letters). While government officials and maritime citizens both agreed on the important role sea passports played in protecting America’s neutral commerce, questions quickly emerged on how to handle these requests. In late April, Stephen Higginson, a prominent Boston merchant, wrote to Hamilton, “I wish there were sea Letters or other proper documents issued by the officer of the union, to serve as a uniform mode of evidence as to property.”21 William Ellery, the customs collector of Newport, Rhode Island, requested that Hamilton provide “such sea letters or passports as you may deem will be for the security of our navigation and commerce.”22 As the government began to fulfill these requests, questions abounded over what diplomatic format to follow, which federal official would issue these passports, and whether foreign-built but American-owned ships were eligible for these protective documents.
The concept of sea passports had its origins in the Treaties of Amity and Commerce that the United States had negotiated with France (1778), the Netherlands (1782), and Prussia (1785). If one party to the treaty was at war but the other was at peace, the latter could issue sea passports to protect its neutral commerce. Despite their agreement on the overriding principle, each treaty contained a slightly different format for these passports. Such variations proved to be an abstract concern prior to 1793 because the United States had no reason to issue these documents to its merchant ships. But with Britain at war with U.S. treaty partner France, protecting American commerce became a top priority.23 Seemingly minor issues assumed great importance because these sea letters provided the first line of defense in America’s campaign to remain neutral.
During the first week of May, Washington’s cabinet members, along with the Treasury Department’s commissioner of the revenue, Tench Coxe, exchanged a flurry of letters in an attempt to resolve these outstanding issues.24 Jefferson wrote a detailed opinion on May 3, in which he made a strong case that “passports shall be given not merely to the vessels built in the United States, but to vessels belonging to them.” He added that American commerce would suffer irreparable harm if foreign-built ships were subject to seizure, for “homebuilt vessels” provided “the transportation of a very small part of this produce to market.”25 In the discussions over which passport format to follow, diplomacy carried the day. With the United States already issuing sea letters using the Dutch template, Washington and his cabinet decided to also include language from the French treaty of 1778 to avoid any diplomatic misunderstanding with France.26 Lastly, despite his previous misgivings about the Treasury Department’s reach, Jefferson agreed with Hamilton that the collectors of the customs in each port should issue these passports. The protection of American commercial ships began in earnest on May 13, 1793, with the distribution of 500 blank ship passports to the nation’s customs houses, each bearing the signatures of the president and the secretary of state.27 One measure of these passports’ effectiveness in promoting neutral American commerce, particularly in the transportation of goods from the French West Indies, was Britain’s decision that November to attack U.S. ships because such cargoes were seen as benefiting France’s war effort.28
As Washington and his cabinet methodically and incrementally implemented the neutrality policy, a tsunami named Edmond Charles Genet made landfall in Charleston, South Carolina, on April 8 and upended their delicate efforts. During his ten-month posting as the French Republic’s minister, Citizen Genet, as he styled himself, repeatedly challenged U.S. neutrality as he fulfilled the mandate of his revolutionary government and supplied his own interpretations along the way.29 While his antics affirmed the wisdom of Washington’s policy, his transgressions also exposed numerous enforcement difficulties that the administration had yet to consider.
Genet’s tenure proved to be controversial from the outset, thanks to the ambitious and unrealistic instructions the idealistic Girondins, who now ruled the French republic, gave him. First, Genet was encouraged to form a “national pact” with the United States to renew the commercial and political bonds that had linked the two nations. In addition, he was supposed to seek advance payment of America’s Revolutionary War debts to support France’s wartime economy, to foster expeditions into Spanish Louisiana and Florida, and to liberally interpret the privateering provisions of the Treaty of Amity and Commerce by offering French commissions to Americans willing to serve as privateers or as soldiers on expeditions against Spanish territory. Amid these blatant challenges to U.S. sovereignty, Genet was also told to respect the federal government and its authority.30
Armed with these ambitious instructions as well as 300 blank commissions, Genet further upended diplomatic protocol by arriving in Charleston rather than proceeding directly to the nation’s capital of Philadelphia. He blamed a turbulent Atlantic journey for his premature disembarking. Nonetheless, the minister conveniently found himself in a port city that was strategically important to France’s West Indian colonial trade and in a state that remained favorably disposed to his country’s revolution.31 Not surprisingly, Genet’s first violation of U.S. neutrality occurred here, when he commissioned four American ships as privateers to support the French war effort. The names of these newly converted ships announced their revolutionary ideas—the Republican, the Anti-George, the Sans-Culotte, and the eponymous Citizen Genet—and their mission to harass and capture British vessels.32 With the French republic’s navy decimated by Britain’s superior fleet, privateering represented a viable alternative wartime strategy.33 While Genet emerged as its most visible proponent, other French captains and their ships engaged in this practice in American waters as well.34
Genet’s southern detour meant that, for five weeks, he conducted business as France’s minister before presenting his credentials to the president of the United States. As Genet slowly meandered northward, reports of his misdeeds seeped into Philadelphia from a variety of sources.35 President Washington received a letter from two Norfolk, Virginia, merchants who reported that the privateer Sans Culotte had been outfitted with guns and contained a large number of Americans but very few Frenchmen among its crew.36 Several days later a Federalist congressman, William Vans Murray, reported to Jefferson that the Sans Culotte had sailed north to Maryland’s Eastern Shore and had captured a British ship, the Eunice.37
These rumors escalated into a full-blown diplomatic crisis on May 2, when British minister Hammond sent Jefferson the first of numerous memorials complaining of French privateering against British vessels. His May 2 letter reported that the French frigate Embuscade (the same vessel that had transported Genet to America) had captured the English merchant ship Grange in Delaware Bay near Philadelphia. Hammond, who enjoyed lecturing Jefferson, pointed out the obvious: the seizure had occurred in U.S. waters “in direct violation of the Law of Nations” as well as an “infringement on its [American] neutrality.”38 He further urged the U.S. government to “adopt such measures . . . for procuring the immediate restoration” of the ship “and for obtaining the liberation of her crew now illegally and forcibly imprisoned” on the Embuscade.39 The involvement of American sailors, vessels, and ports in European warfare had been exactly what Washington (and his cabinet) had hoped to avoid in issuing the Neutrality Proclamation two weeks earlier.
Jefferson offered a vague but sympathetic response to Hammond’s memorial, declaring that “the US being at peace with both parties, will certainly not see with indifference its territory or jurisdiction violated by either” and promised to investigate the matter.40 As subsequent exchanges between Hammond and Jefferson made clear, the American government did not have either rules or enforcement mechanisms in place to prevent French privateering. It also did not have any means to prohibit Americans from serving on these ships or from offering their vessels to a European nation’s war effort. On May 8, an impatient Hammond reminded Jefferson of his May 2 memorial and requested “as speedy an answer as may be convenient.”41 That day he also submitted two more memorials that reported additional privateering violations, including the Embuscade capturing two other British ships (the Four Brothers and the Morning Star) as well as describing the commissionings that had occurred in Charleston under Genet’s direction.42 As late as May 31, Hammond still had not received a definitive response from Jefferson on the return of captured British ships, inquiring of the secretary of state “at what time I may expect to receive the determination of this government upon it.”43 The British minister appeared to have a long wait ahead of him.
With Washington and his administration preoccupied with smaller questions over which federal officials should report privateering violations and how to issue sea letters, a few weeks passed before they focused on the specifics of Hammond’s May 2 memorial concerning the Grange’s capture. At the heart of the discussion was whether the Delaware Bay constituted U.S. territory or international waters, as the French claimed. Jefferson, at the president’s request, asked the attorney general to prepare a legal opinion on the extent of America’s jurisdiction over the Delaware Bay. Randolph confirmed that this bay was U.S. territory and that the French seizure of a British ship in its waters violated American neutrality.44 On May 15, Jefferson wrote to both the British and French ministers to convey this decision and to urge a restoration of the Grange to its owners.45 On May 27, Genet, in a rare act of cooperation, agreed to this request, writing, “My brave brethren, the seamen of the Embuscade, have readily concurred in a measure which I represented to them as a proper mean to convince the American government of our deference and of our friendship.”46 The quick resolution of the Grange case offered the false impression that enforcing neutrality would be easy and uncontroversial. Instead, it represented only a small drop in the tidal wave of neutrality violations that would confront the administration.
Even before the successful resolution of the Grange case, Washington expressed concern that American ships and sailors were serving as French privateers and on May 14 convened the cabinet to formulate a more comprehensive response. Employing the consensus-based approach that had proven effective during the policy’s formulation, the president and his advisors quickly identified their enforcement priorities. First, the administration sought to prosecute “certain citizens” who “have engaged in committing depredations on the property and commerce of some nations at peace with the United States” in order to stop Americans from serving on privateers. As the supervisor of U.S. attorneys, Jefferson instructed William Rawle of Pennsylvania “to take such measures for apprehending and prosecuting” these violators “according to the law.”47 Second, Secretary of War Knox directed governors to use their state militias “to detain the parties first aggressing until you could communicate the case to the president” to prevent situations like the capture of the Grange in U.S. waters or the commissioning of privateers in Charleston from happening again.48
Beyond these initial steps, thornier issues such as the restoration of ships in open waters and the banning of all privateering activities in American ports preoccupied the cabinet for the remaining weeks of May. The Grange had established the precedent of returning prizes captured in territorial waters. But did the U.S. government have a similar obligation for ships (typically British) seized in the open Atlantic, particularly if the privateer (typically French) had been outfitted in American ports? In separately submitted opinions, Hamilton and Knox argued that the United States should restore prizes brought into U.S. ports, regardless of where they were captured, “in order to avoid participation in the war.”49 Jefferson and Randolph countered that the two belligerents should expect privateering and the capture of prizes to occur in open waters during wartime, therefore the neutral United States had no involvement in such cases. Jefferson explained, “If the commission be good, then the capture having been made on the high seas, under a valid commission from a power at war with Great Britain, the British owner has lost all his right, and the prize would be deemed good even in his own courts.”50 Several days later, on May 21, Washington adopted Jefferson and Randolph’s approach of not intervening in captures that had occurred on open waters, believing this stance to be the most compatible with American neutrality.51
With these smaller enforcement issues resolved, the president and his cabinet turned their attention to the overriding one: how best to prohibit French (and British) ships from manning, outfitting, and equipping privateers in American ports.52 In Jefferson’s notes from the cabinet meeting, titled “the Citizen Genet and Its Prizes,” the secretary of state listed the many issues at play, including U.S. obligations under the Treaty of Amity and Commerce as well as the “touchiness” of Franco-American relations, particularly with the new minister’s arrival and the popularity of the French cause. Nonetheless, Jefferson’s minutes acknowledged that Article XXII’s prohibition against France’s enemies outfitting privateers into American ports did not translate into permission for France to engage in this practice. Similarly, Article XVII of the treaty allowed France to bring prizes into U.S. ports but did not offer any elaboration on what else was permissible. As they concluded their discussions, Washington’s advisors contemplated several options: one, require French privateers to give up the prize and order the prize, the privateer, or both to leave, whichever was feasible (Hamilton and Knox); two, do not order or give away anything (Jefferson); three, order the privateer only away (Randolph). Demonstrating his savvy as a statesman, Washington selected Randolph’s recommendation because it promoted American neutrality while avoiding provocative actions that could jeopardize this stance.53
Before announcing these policies to the French and British ministers, Jefferson took the additional step of asking Randolph to prepare a statement that defended America’s right to prohibit the French from commissioning privateers in its ports. Genet’s May 27 letter to Jefferson had contained a very generous interpretation of the 1778 Treaty of Amity and Commerce, an understanding that the French minister would repeatedly express in his prolific correspondence to the secretary of state. After citing French privateering rights under that treaty, Genet added that the U.S. citizens commanding and manning these privateers had “entered the service of France in order to defend their brothers and their friends.”54 In response to the minister’s fulsome expectations, Attorney General Randolph provided Jefferson with a six-point statement that emphasized America’s sovereign right to prohibit the commissioning of privateers and to ban U.S. citizens from serving on them, that a “vessel . . . illegally commissioned, and illegally manned . . ., should be put out of the protection of the U.S.”55
On June 5, 1793, with the cabinet’s decisions on privateering and Randolph’s statement on U.S. sovereignty in hand, Jefferson, in his capacity as the nation’s chief diplomatic officer, communicated the administration’s enforcement policies to Ministers Genet and Hammond. He wrote to Genet, “after mature consultation and deliberation,” the president has concluded that “the arming and equipping vessels in the Ports of the United States to cruise against nations with whom they are at peace, was incompatible with the territorial sovereignty of the United States,” then added the directive that “the armed vessels of this description should depart from the ports of the United States.” Acknowledging the arguments the French minister had included in his May 27 letter, Jefferson responded with an affirmation of America’s sovereign rights and countered that “the granting [of] military commissions within the United States by any other authority than their own is an infringement on their sovereignty.”56 In confronting France’s principal transgression against American neutrality, he and Washington’s administration at large believed this letter would be enough to end French privateering.
Jefferson’s June 5 letter to Hammond addressed the concerns the British minister had raised in his numerous memorials: stopping privateering against British ships and restoring captured vessels to their owners. Jefferson wrote that “the president, after a full investigation of this subject, and the most mature consideration,” had found the privateering complaints “to be just,” and his administration had taken “effectual measures . . . for preventing repetitions of this act.” In terms of returning captured ships, the secretary of state reiterated his earlier argument that the seizures of British vessels by legally commissioned French privateers in international waters were acts of war between these two countries and did not concern the United States. While he acknowledged that the United States had not been prepared for the French privateering that began in Charleston, Jefferson explained that the United States was now taking steps “that the vessels, so armed and equipped, shall depart from our ports.”57
With privateers ordered to leave American ports and the appropriate governing authorities (U.S. attorneys, governors, and customs officers) and diplomatic officials notified, Washington and his administration seemed well on their way to stopping additional transgressions and to upholding U.S. neutrality. Yet the reactions of the two European ministers demonstrated that the United States had crafted an unenforceable “paper policy.” Genet remained committed to privateering in American ports, and Hammond intended to press the U.S. government to restore and even indemnify the British prizes French ships had captured. In Genet’s defiant response to Jefferson, he reiterated France’s right to outfit and equip privateers in U.S. ports. Demonstrating the dramatic flourish that characterized his diplomatic tenure, Genet wrote to Jefferson, “I have seen with pain . . . your letter of the 5th of this month.” Genet then reaffirmed his understanding of France’s privateering privileges: “The United States, friends of the French . . . , have permitted them to enter armed, and remain in their ports, to bring there—their prizes, to repair them, to equip in them, whilst they have expressly refused this privilege to their enemies.”58 Genet found authority for the current privateering activities by conflating two provisions of the Treaty of Amity and Commerce: Article XVII, which permitted French captains to bring their prizes into American ports (but did not authorize equipping, outfitting, or manning them), while Article XXII prohibited France’s enemies from “fitting” prizes in those same ports or “to sell” or “to exchange” captured ships and their cargoes.59 With the French so allowed to bring privateers into U.S. waters, Genet further interpreted the “prohibition” against the signatories’ enemies as “permission” for France to privateer in American ports.
In his June 17 reply, Jefferson refuted the authority that Genet claimed the Treaty of Amity and Commerce had provided. He wrote, “The XVIIth article . . . permits the armed vessels of either party, to enter the ports of the other, and to depart with their prizes freely.” But, Jefferson countered, “the entry of an armed vessel into a port, is one act; the equipping a vessel in that port, arming her, manning her, is a different one, and not engaged by any article of the Treaty.”60 In fact, the right of French vessels to bring privateers into U.S. ports had been affirmed in a May 30 circular that Hamilton had sent to the customs collectors.61 Genet, of course, was having none of this, and his vociferous commitment to his interpretation increasingly soured Washington and his cabinet on him.
With France continuing to privateer in American ports, Hammond remained equally committed to involving the U.S. government in the return of British prizes. The minister based his appeal on two loopholes in America’s June 5 enforcement policy: first, claiming that the commissions of French privateers’ commissions were invalid, because a foreign power lacked sovereignty in American ports, and second, arguing that the seizures had occurred in U.S. waters, based on the Grange decision. Hammond dedicated the summer to pursuing these points in federal court and elsewhere (as detailed below) in order to force a decision favorable to British interests.
With the United States lacking a navy to enforce the administration’s June 5 policy, French privateering continued with abandon, and Genet remained its enthusiastic supporter. Two of the privateers he had commissioned in Charleston, the Sans Culotte and the Citizen Genet, proved to be particularly aggressive and prolific, as did the Embuscade, which had transported the French minister to America.62 While the privateers’ initial captures had launched America’s enforcement policy, their later prizes, most notably the William and the Little Sarah, illustrated both the federal government’s neutral aspirations as well as the domestic and international difficulties in enforcing them.
The William, a Scottish ship, was among the Citizen Genet’s many prizes. Its capture led to two landmark enforcement cases: first, the prosecution of an American serving on privateers, and second, Hammond’s campaign to require the U.S. government to restore prizes captured in American waters. The William’s notoriety began on May 14, when a skeletal crew from the Citizen Genet transported the ship into Philadelphia to be condemned as a prize.63 Leading this effort was the privateer’s prize captain, an American mariner named Gideon Henfield, who, along with another American, John Singleterry, had been recruited to serve on the Citizen Genet.64 Henfield had joined its crew based on the lucrative promise that he would be put in charge of the privateer’s first prize.65 (In one of his memorials, Hammond described the nefarious “houses of rendezvous” in Charleston where such transactions occurred.)66 Upon Henfield and Singleterry’s arrival in Philadelphia, U.S. Attorney Rawle arrested both men for violating American neutrality, pursuant to Jefferson’s May 15 instructions. Preventing Americans from participating in the current Anglo-French war was a major goal of the Neutrality Proclamation, and Washington and his cabinet hoped this initial prosecution would set an example and stop future violations.
Not surprisingly, Citizen Genet (the minister, not the vessel) vehemently opposed the arrests of Henfield and Singleterry, sharing his opinions with Jefferson on the matter. Tangibly demonstrating his disrespect for U.S. sovereignty and the rule of law, Genet questioned their arrests in a series of letters. On June 1, he wrote, “I have this moment been informed, that two officers in the service of the republic of France . . . have been arrested on board the privateer of the French republic.” Genet dramatically added, “The crime which my mind cannot conceive, and which my pen almost refuses to state, is the serving of France, and defending with her children the common and glorious cause of liberty.” Then the French minister took the even bolder step of asking for Jefferson’s intervention “and that of the President of the United States in order to obtain the immediate releasement [sic] of the abovementioned officers.”67
Jefferson’s terse response wisely focused on the constitutional and legal impossibilities of Genet’s request. First, he pointed out that “Mr. Henfield appears to be in the custody of the civil magistrate, over whose proceedings the executive has no control.” Jefferson then added, “the act with which he is charged will be examined by a jury of his countrymen, in the presence of judges of learning and integrity.” He also included a memorandum from Randolph, outlining the federal government’s case against Henfield.68 The attorney general listed three major reasons for Henfield’s prosecution: first, he was a citizen of the United States and subject to its laws; second, his actions violated American treaties with the three powers (Great Britain, Prussia, and the Netherlands) at war with France because these agreements required the United States and its citizens to remain at peace; and third, Henfield’s activities constituted disturbing the peace.69 Jefferson’s letter would not be the last time he explained to Genet the authorities and responsibilities of the federal government. Not easily dissuaded, Genet played an active role in defending Henfield’s right (and that of other Americans) to serve on French privateers.
The William also figured in Hammond’s campaign to involve the U.S. government in the restoration of captured British ships. The British minister encouraged the William’s owners (as well as the Fanny’s, a vessel seized by the Sans Culotte) to petition for restitution of their ships through the U.S. district court in Pennsylvania. Each case rested on two arguments: first, the William had been seized in U.S. territorial waters, specifically in the Chesapeake Bay, two miles from Maryland’s shore.70 Second, the petitions declared the French commissions invalid because a foreign power did not have the authority to privateer in America’s neutral waters.71 The William’s capture offered the federal government two opportunities to slowly assert its authority, with the U.S. attorney holding Henfield and Singleterry in jail for bringing this vessel into port, and the marshal of the district court assuming custody of the William (and the Fanny) as its owners awaited the federal judge’s ruling.72
While Jefferson and Randolph worked to prosecute neutrality violations in the federal courts, Secretary of War Knox began to see a positive response to his May 24 order that governors detain ships suspected of privateering in their ports.73 On June 9, Governor George Clinton of New York reported to President Washington “that a sloop was equipped, armed, and manned in this Harbor and ready to sail, and that there were reasons to suspect that she was intended to act as a privateer.” Clinton added that he had “ordered a small detachment of militia on board with directions to detain her until you should be notified.” The governor identified the ship as the American-owned Polly, but its French captain had renamed it the Republican, one of Genet’s original four commissions.74 Washington and his cabinet, seeking to establish a protocol for dealing with cases like this, directed Clinton to deliver the vessel to Richard Harison, the U.S. attorney in New York, to investigate the allegations of privateering.75 Jefferson, in his role as supervisor of the U.S. attorneys, specifically instructed Harison to institute “such proceedings at law against the vessel and her appurtenances as may place her in the custody of the law, and may prevent her being used for purposes of hostility against any belligerent powers.”76 By holding and disabling the Republican through legal channels, the federal government sought to put an end to the arming and equipping of all privateers in American ports.
The government’s temporary detention of both the William and the Republican further enraged Genet. Believing in France’s fundamental right to privateer in U.S. waters, Genet launched an ill-advised tirade against the government’s efforts to remain neutral. Writing to Jefferson on June 14, he declared the holding of these vessels to be “in contempt of the treaties which unite the French and Americans” and “in contempt of the law of nations.” Dismissive of the government’s policies, the French minister boldly directed Jefferson to “inform the President of the United States of these facts; to let him know that they [civil and judicial officers] have used his name in committing these infractions of laws and treaties.” Genet concluded his letter with the demand that Washington provide immediate restitution, with damages and interests, for the French prize, the William, and the privateer, the Republican.77 In response, Jefferson returned to familiar arguments, first refuting Genet’s belief in France’s right to privateer in American ports, then explaining that the judicial branch, not the executive, handled disputes over property.78
Despite Jefferson’s confidence in the judiciary, the federal government’s enforcement efforts endured a significant setback with the court’s ruling on the William. On June 21, the U.S. district court judge in Pennsylvania, Richard Peters, released the William from custody, declaring a lack of jurisdiction “to decide in a matter growing out of the contests between belligerent powers.”79 Hammond, undeterred by this ruling, immediately turned to the executive branch for redress. Writing to Jefferson, the British minister expressed “no doubt that the executive government of the United States will consider the circumstances of this capture as an aggression on its sovereignty and will consequently pursue such measures . . . for procuring the immediate restoration to its rightful owners of the British Ship William thus illegally taken.”80 As Washington’s cabinet scrambled to formulate a response to Hammond, Secretary of War Knox directed Governor Thomas Mifflin of Pennsylvania and his state militia to assume temporary custody of the William from the federal courts.81
The unwillingness of federal courts to exercise their statutory authority in admiralty cases such as that of the William placed an embarrassing obstacle in the government’s enforcement efforts. While the Judiciary Act of 1789 had established that the U.S. district courts possessed “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction,” Judge Peters, along with other judges in future cases, denied that the federal courts bore this responsibility.82 This ruling left the federal government without admiralty authority at a time when foreign privateering was rampant. Without U.S. courts to detain prizes and resolve these disputes, Jefferson found himself in the awkward position of turning to the unreliable and unpredictable Genet for assistance.
On June 25 the secretary of state requested that ships captured in U.S. waters by armed French vessels “be detained under the orders of yourself [Genet] or of the Consuls of France in the several ports, until the government of the United States shall be able to inquire into and decide on the fact.” In other words, the proverbial “fox” (French privateers) would be guarding the lucrative “hen house” (ports with captured prizes). Additionally, Jefferson instructed Genet that if a French consul was unavailable, the state governors would be responsible for detaining the vessels until a “consul may be called in.”83 Pursuant to Jefferson’s request, Secretary Knox ordered the Pennsylvania state militia to transfer the William to Francois Dupont, the French consul in Philadelphia.84
The district court’s failure to assume its admiralty responsibilities, coupled with the delegation of this role to a foreign minister, laid bare the federal government’s impotence in enforcing neutrality. Jefferson, who had repeatedly explained America’s constitutional rules and its national sovereignty to Genet, now had to cede some of that authority to an individual who had never respected it in the first place. Specifically, he sought Genet’s help in resolving the question at the heart of Hammond’s June 21 memorial: was the William’s claim of being “taken within the limits of the protection of the United States” legitimate? If so, he requested Genet “to give orders to the Consul of France at this port to take the vessel into his custody and deliver her to the owners”; if not, the minister should report this conclusion to Jefferson and await further instruction.85
With Jefferson (and the U.S. government) approaching Genet from a position of weakness, the normally obstreperous French minister was all smiles and cooperation. In his response, Genet declared, “The arrangement you propose, sir, suits us in every respect,” adding, “I shall communicate them to the consuls and vice consuls of the republic.” He even made the preposterous claim that the French diplomatic community considered “the first of our duties to respect all the rights of sovereignty of the United States.”86 Whether Genet would actually take any steps to resolve the twin cases of the William and the Fanny remained to be seen.87 What was clear was that Jefferson’s June 25 request had exposed the federal government’s lack of enforcement powers, a revelation that would embolden Genet to intensify his campaign against its authority.
In the aftermath of the William ruling, the judicial branch proved to be the site of a second and even greater setback to the administration’s enforcement efforts with the acquittal of Henfield.88 Following his arrest in May for privateering, Henfield came to trial on July 22 at a special session of the Pennsylvania Circuit Court in the case United States v. Henfield. Recognizing the trial’s significance, Attorney General Randolph and U.S. District Attorney Rawle worked together to prepare a strong case against him. Rawle, embracing his duties as district attorney, wrote a twelve-point indictment that built on the arguments contained in Randolph’s May 30 memorandum. First, the United States had international treaties with several nations in which it pledged to remain peaceful. Since the Constitution considered these treaties to be the supreme law of the land, Henfield had violated U.S. law. Second, as an American citizen, Henfield had an obligation as a member of civil society to obey the laws of the United States. He could not merely “opt out” when he found a particular law onerous. Rawle’s arguments proved persuasive enough to convince the Philadelphia-based grand jury to support the government’s indictment. Further bolstering the government’s case were the instructions to the jury from U.S. Supreme Court Justice James Wilson, one of the three presiding judges.89 Wilson reinforced Rawle’s arguments regarding the law of nations and a citizen’s constitutional obligations, concluding “that a citizen, who, in our State of Neutrality, and without the Authority of the Nation, takes an hostile Part with either of the belligerent Powers, violates thereby his Duty and the Laws of his Country.”90 In establishing the legal basis for Americans remaining neutral, Randolph, Rawle, and Wilson also relied upon earlier instructions crafted by Chief Justice John Jay.91
Despite the federal government’s united and seemingly formidable case against Henfield, his supporters mounted a spirited defense of his right (and that of other Americans) to privateer on behalf of France. Leading the charge was none other than the newly emboldened Citizen Genet, who had been the darling of Philadelphia’s Democratic-Republicans since his triumphant arrival in May.92 Still basking in the glow of numerous fetes in his honor and his newly acquired admiralty authority, Genet saw this case as his path to overriding the federal government’s opposition to French privateering. With that goal in mind, he personally financed Henfield’s team of prominent Republican lawyers: Peter Du Ponceau, Jared Ingersoll, and Jonathan Dickinson Sergeant.93 These attorneys argued three major points in his defense: first, Henfield had renounced his U.S. citizenship when he boarded the privateer, so he was not violating any laws; second, the Treaty of Amity and Commerce with France did not prohibit Americans from serving on privateers; and third, perhaps most damning to the government’s case, the Neutrality Proclamation lacked statutory authority. The fast-moving trial, which began on July 22 and produced an indictment five days later, ended dramatically on July 29, with the jury acquitting Henfield by a vote of 11 to 1.94
This verdict, occurring in the nation’s temporary capital of Philadelphia, elated Genet and his supporters and stunned the administration. Genet immediately hosted a celebration in Henfield’s honor, inviting Philadelphians to “meet Citizen Henfield.” He also encouraged other “friends of liberty” to emulate Henfield and enlist on French privateers. With pro-Democratic-Republican newspapers such as Philadelphia’s National Gazette covering and disseminating the verdict, news quickly spread up and down the Atlantic coast. Henfield’s supporters in Boston and New York City, for example, saluted the mariner’s activities and the “virtuous and independent jury of Pennsylvania” for affirming republican values.95
The Henfield verdict, of course, inflicted a devastating blow to a central objective of the administration’s neutrality policy: preventing Americans from participating in a foreign war. The responses of Washington, Hamilton, and Jefferson revealed a great deal about their relationship to this policy. A concerned Washington pondered calling Congress into session to gain institutional support from the government’s remaining constitutional partner.96 Hamilton and Jefferson took a more partisan tack. Hamilton, who had been promoting the Neutrality Proclamation since late June through his Pacificus essays, now directed his fire at Genet in a new series under the pseudonym “No Jacobin,” with the first essay appearing soon after the verdict.97 Jefferson, seeking to spread his partisan wings and distance himself from the neutrality policy, penned his resignation letter to Washington on July 31, two days after Henfield’s acquittal. The president shrewdly encouraged him to remain in the cabinet until the end of 1793.98
The long summer of enforcement challenges, exacerbated by these governing difficulties and rising partisan tensions in the cabinet, produced a full-blown crisis with the Little Sarah incident. The ordeal of the Little Sarah began on May 24, when this ship entered Philadelphia as a prize of the prolific French privateer Embuscade (which had previously captured the Grange).99 A month after the Little Sarah’s seizure, Governor Mifflin wrote to Washington “that the Brigatine Little Sarah . . . is fitting out as a privateer” and asked the president for direction in what “measures to be pursued.”100 By early July, the Little Sarah had been rechristened as the privateer Petite Democrate, had been outfitted with fourteen cannons, and was “lying in the river Delaware at some place between this city and Mud Island.”101
What made the Little Sarah so significant was that its capture and conversion illustrated the failure of the federal government to ban privateering in its ports, including the nation’s temporary capital. When an exasperated Washington wrote to Jefferson on July 11 “what is to be done about the Little Sarah,” he was addressing both this specific case and the larger challenge of stopping privateering. The president had little doubt as to the culprit: “Is the Minister of the French Republic to set the Acts of this Government at defiance—with impunity? And then threaten the Executive with an appeal to the People?” Lamenting the failure to stop both privateering and Citizen Genet, he wrote, “What must the world think of such conduct, and of the Government of the United States in submitting to it?”102 The Little Sarah launched Washington and his cabinet into a full-blown political and constitutional crises during the sweltering months of July and August 1793.
When the cabinet held its first meeting about the Little Sarah on July 8, the more moderating voices of Washington and Randolph were not present. Instead, the partisan tensions that had been simmering all along were on full display as Hamilton and Knox sought a more aggressive approach to stop French privateering. Reflecting a desire to weaponize American enforcement (and also to gain a partisan edge), they proposed the use of force to stop the repurposed Little Sarah from sailing. Specifically, Hamilton and Knox advocated “establishing a battery on Mud Island [in the Delaware River], under cover of a party of militia, with direction that if the brig Sarah should attempt to depart before the pleasure of the President shall be known concerning her, military coercion be employed to arrest and prevent her progress.”103 This proposal enjoyed the enthusiastic support of Governor Mifflin, but Jefferson opposed it.104 Hamilton and Knox prepared a thirteen-point memorandum that elaborated on the need to use military force to stop “the unequivocal breach of neutrality.” Jefferson countered with his own statement advocating a continuation of diplomacy rather than “the actual commencement of hostilities.”105 Hamilton and Knox’s provocative proposal marked a dramatic departure from the ineffectual policy of asking privateers to voluntarily leave and reflected the administration’s growing exasperation with France’s aggressiveness and Genet’s rising disrespect for U.S. sovereignty.
Washington’s return to cabinet deliberations on July 12 inserted a moderating voice that had been absent at the earlier meeting. Instead of addressing the fortifying of Mud Island, an undertaking he opposed, the president sought to resolve the crisis through constitutional and diplomatic channels.106 In an effort to understand “what shall be strictly conformable to the treaties of the United States and the laws respecting the said questions,” Washington and the cabinet turned to their constitutional counterpart, the U.S. Supreme Court, for answers. While the court reviewed these issues, Jefferson wrote a joint letter to Hammond and Genet on July 12 requesting that the seven ships involved in unresolved privateering cases, including the Little Sarah, be detained until the president received the court’s ruling.107 Although Washington’s approach avoided the hostilities associated with Hamilton and Knox’s proposal, it nonetheless encountered obstacles. British minister Hammond scoffed at Jefferson’s letter: “I cannot conceal from you my surprise at the requisition contained in it.” He reminded the secretary of state that these vessels were outfitted to commit “hostilities on the subjects of Great Britain, or British property,” and concluded, “I have no wit of control over any of them.”108 Genet, who had witnessed firsthand the American government’s weakness, simply ignored Jefferson’s request to detain the Little Sarah and instead ordered the ship to depart the Delaware River, an action that infuriated Washington and his cabinet.109
Despite earlier setbacks in the lower courts, Washington and his cabinet harbored great hope that advice from the Supreme Court would help the government resolve its current enforcement crisis. Returning to the consensus-based approach that had worked in the past, Hamilton, Knox, and Jefferson each drafted detailed questions for the court and then consolidated their submissions into a single document. Once again the ideas of the prolific Hamilton heavily influenced the final document because he had submitted the most questions (twenty two, compared with Jefferson’s fourteen and Knox’s twelve) as well as the most detailed. Interestingly, Randolph, the government’s chief attorney, did not return to Philadelphia in time to submit questions or to participate in these discussions.110
After obtaining Washington’s approval, Jefferson submitted the cabinet’s twenty-nine questions to the Supreme Court on July 18 with the following instructions: “The President would therefore be much relieved if he found himself free to refer questions of this description to the opinions of the Judges of the supreme court . . . , whose knowledge of the subject would secure us against errors dangerous to the peace of the United States and their authority ensure the respect of all parties.”111 These comprehensive and carefully drafted queries, falling into three broad categories, cogently captured the enforcement challenges that threatened American neutrality. The first question tackled the broad theme of France’s right to privateer based on its diplomatic agreements with the United States: “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 U.S. are at peace to fit out originally in and from the ports of the U.S. vessels armed for war, with or without commission?”112 A second area of concern focused on America’s obligations under the laws of neutrality and in its treaties with France and with its enemies to allow privateering in U.S. ports, including the selling of prizes, the outfitting of ships, and the establishment of consular courts. The final set of questions focused on the specific enforcement challenges occurring in the United States: restitution of captured ships, the distance of its water boundaries, the prohibition of Americans serving on privateers, and selling U.S.-built ships to the warring parties for merchandise. The document also offered an opportunity for the Supreme Court to affirm the free-trade principles that had inspired the Neutrality Proclamation: “Is the principle that free bottoms make free goods . . . to be considered as [a] now established part of the law of nations?"113
Despite the care the administration had taken in identifying the myriad enforcement challenges associated with neutrality, the Supreme Court proved more interested in asserting its institutional independence than resolving policy disputes. On July 12, when Jefferson, on behalf of the president, had asked the justices to come to Philadelphia on July 18 to address “matters of great public concern,” he had not specified the topic to be discussed. On the seventeenth, Chief Justice Jay impatiently queried Washington as to when the court would know why they had been summoned.114 While Jefferson’s letter the next day amply answered Jay’s question, the Court expressed “a reluctance to decide it, without the advice and participation of our absent Brethren.”115 With a quorum finally achieved, their response to the administration’s questions proved to be more of a triumph for their constitutional role than for the enforcement of neutrality. On August 8, the justices informed the president that “lines of the separation drawn by the Constitution between the three departments of government” prevented them from offering advice to the executive branch.116 While the federal judiciary would eventually find its constitutional voice on admiralty and neutrality cases, its record thus far was disappointing to the administration.
With the judiciary unwilling to act, Washington briefly contemplated turning to the remaining branch of government, the legislative as embodied in Congress, for assistance. Writing to the cabinet on August 3, the president queried “whether it be proper—or not—to convene the legislature at an earlier period than that at which it is meet, by law? And . . . at what time?” Washington specifically cited Henfield’s acquittal and the administration’s ongoing difficulties with Genet as reasons for involving Congress.117 A day later he noted a decree from France’s National Convention “authorizing their ships of wars and armed vessels to stop any neutral vessels loaded in whole, or parts with provisions, and send them into their ports” as an additional issue requiring congressional attention.118 Jefferson once again emerged as the only cabinet member who supported calling Congress into session early. He argued that several legislative provisions were pending that would “enable the government to steer steadily through the difficulties daily produced by the war in Europe.” In addition, “the legislature meeting a month earlier will place them a month forwarder” in their understanding of the unfolding events.119 Countering Jefferson were Hamilton, Knox, and Randolph, who shared the belief that recent events did not qualify as “an extraordinary occasion” for convening the legislature. They also argued that meeting a month early did not offer that much extra time for Congress to discuss events, and the scheduling change would create logistical challenges in terms of communication and travel.120 While Washington personally supported convening early, a lack of unanimity in his cabinet resulted in his dropping this proposal.121 With Congress not scheduled to meet until December and the judicial branch slow to exercise its authority, the executive branch found itself with the sole responsibility for enforcing neutrality, at least for the time being.
After an exhausting three months spent reacting to a never-ending stream of privateering violations, Washington and his cabinet dedicated August to the formulation and issuance of systematic rules intended to stop infractions against American neutrality.122 While these policies did not break new ground or reinterpret treaties, they did offer a comprehensive assertion of the federal government’s authority over enforcing neutrality. Washington once again employed a consensus approach in crafting these policies as he solicited the opinions of all four cabinet members and incorporated their recommendations into rules that possessed their unanimous support.123
The first decision, titled “Rules on Neutrality” and dated August 3, went to the heart of privateering violations when it declared, “The original arming and equipping of vessels in the ports of the United States by any belligerent parties, for military service offensive or defensive, is deemed unlawful.”124 The subsequent seven points made a distinction regarding the outfitting of merchant ships (lawful) versus warships (unlawful), while giving vessels the benefit of the doubt when their purpose was unclear. Additionally, France’s enemies were not allowed to outfit prizes made of French ships, in recognition of its 1778 treaty rights. Pursuant to earlier treaties, stranded or wrecked warships, including privateers, were permitted in American ports for humanitarian and emergency reasons. Lastly, these rules prohibited inhabitants of the United States from serving on privateers.
In an effort to uphold American neutrality and to calm British complaints, the administration’s second policy decision took an aggressive stance against French privateering and its insubordinate minister. The second August 3 statement, titled “Cabinet Opinion on French Privateers,” declared that “the Minister of [the] French Republic be informed that the President considers the United States as bound pursuant positive assurances, given in conformity to the laws of neutrality, to effectuate the restoration of, or to make compensation for, prizes which shall have been made of any parties at war with France subsequent to the fifth of June last by privateers fitted out of their ports.” The policy continued that Genet “will cause restitution to be made of all prizes taken and brought into American ports” or, if this was not possible, the indemnification of these prizes, “to be reimbursed by the French nation.” Lastly, the U.S. government intended to deny asylum to any privateers in order “to prevent the future fitting out of” these vessels in American ports.125 This announcement reflected a dramatic departure from Jefferson’s June 5 letters to Ministers Genet and Hammond, in which he had asked French privateers to voluntary leave American ports and had denied Hammond’s request for the restoration and reimbursement of captured British ships.126
These policy decisions, of course, would be meaningless unless they were shared with the officials in charge of enforcing them. On July 29, Washington reminded the cabinet of the importance of customs collectors in reporting violations, writing, “It will not be amiss . . . to reconsider the expediency of directing the custom house officers to be attentive to the arming or equipping vessels—either for offensive or defensive war in the several ports to which they belong—and make report thereof to the governor, or some other proper officer.”127 While the process for customs collectors to follow in reporting neutrality violations had preoccupied the cabinet in May, a circular had never been issued to these officials. With Washington eager to systematically enforce neutrality, a recalcitrant Hamilton finally released this circular to the collectors of the customs on August 4. He instructed them to “have a vigilant eye upon whatever may be passing within the ports, harbors, creeks, inlets and waters of such district to contravene the laws of neutrality . . . and [to] give immediate notice to the governor of the state and to the attorney of the judicial district.” Hamilton also disseminated the August 3 rules of neutrality in this circular.128 Similarly, Secretary of War Knox shared the neutrality guidelines with state governors on August 7 and the French privateering rules on August 16.129
The final step of announcing these new enforcement rules was to share them with the British and French ministers. On August 7, Jefferson communicated the U.S. government’s new policies on privateering and neutrality to Genet and Hammond, including the decision that France would be responsible for restoring or reimbursing captured British ships.130 In a subsequent letter to Hammond, dated September 5, he reiterated America’s intentions to offer either restitution or compensation for British vessels that had been captured either in U.S. waters or in its ports after June 5, 1793, in case France failed to do so. Additionally, even though the United States did not have a treaty with Great Britain dealing with trade, “it was the opinion of the president that we should use towards that nation the same rule” that the United States follows in its free-trade agreements with France and others.131 In offering to indemnify British shipping losses, the government sought to resolve a festering diplomatic crisis with its principal trading partner that could potentially lead to war.
One of the principal goals of the Neutrality Proclamation was to keep Americans from participating in European hostilities. The lion’s share of violations occurred on water and involved privateering. Yet there were a handful of individuals, including the governor of Virginia, who hoped to support France’s war efforts on land. On September 15, 1792, a French military officer named Ferdinand Bayard wrote to Washington offering to raise a regiment of American troops and lead them into battle to aid the French republic, proclaiming: “The cause is a glorious one. . . . The American corps of volunteers, may be raised by individuals, to save government some inconveniences which may result from its interfering.”132 Not surprisingly, Washington never responded to Bayard’s impudent offer.
The real shocker for Washington came from his revolutionary colleague and Virginia neighbor (and the state’s current governor) Henry “Lighthorse Harry” Lee, who offered to fight on behalf of France. Lee, then struggling with depression after the death of his wife, sought a diversion that would utilize his military talents. He wrote to Washington, “Bred to arms I have always since my domestic calamity wished for a return to my profession, as the best resort to my mind in its affliction.” Lee added: “Finding the serious turn which the French affairs took last year I interposed with the Marquis [Lafayette] to obtain me a commission in their army. . . . I am consequently solicitous for the best advice.”133 Washington had to respond to Lee because of the potential problems a U.S. citizen of such political stature, military reputation, and close association to the president volunteering to help the French could cause to America’s fragile foreign policy. On May 6, Washington offered this carefully worded response to Lee: “I should ponder well before I resolved; not only for private considerations but on public ground.”134 The governor desisted. While Americans in Kentucky would eventually join French-led military units for action against Spanish Louisiana, the larger threat to neutrality continued to come from the sea, not the land.
The productive month of August included one more significant, but not entirely unexpected, enforcement decision: unanimous cabinet support for requesting the recall of the troublesome French minister, Citizen Genet. While this action had been contemplated as early as July, the administration drafted its case against Genet in mid-August and submitted it to the U.S. minister to France, Gouverneur Morris, a week later. The reasons for seeking Genet’s recall were not difficult to fathom: authorizing French privateering; permitting French consuls to exercise exclusive admiralty authority over French prizes (a confusing point considering Jefferson’s directive to Genet about the William); sending off the Little Sarah, in violation of instructions to the contrary; disrespecting the U.S. government, particularly the president; and supporting Americans serving on French privateers.135 While the subsequent French decision to recall Genet represented a triumph of the federal government’s authority and sovereignty, it also proved to be a time-consuming process that would include additional charges against the minister and eventually involve Congress, the federal courts, and a shuffling of diplomats.
August 1793 marked a dramatic turning point in the federal government’s enforcement efforts. After struggling with blatant neutrality violations and a lack of comprehensive policies and procedures with which to respond, the executive branch took concrete steps to make American neutrality a reality. In a series of statements, Washington and his cabinet explicitly banned privateering in U.S. ports, reiterated the prohibition against Americans from serving on these ships and from participating in European warfare in general, and established procedures for indemnifying captured ships. The government also asserted its sovereignty in diplomatic matters by initiating the recall of Citizen Genet, the French minister who instigated many of these infractions. These enforcement efforts, of course, were not perfect, as evidenced by continued French violations and British complaints. Nonetheless, the recently constituted federal government asserted itself and defined its authorities for the first time in order to support Washington’s goal of “keeping this Country in Peace”136 Eventually, Congress and the courts would embrace their constitutional duties and strengthen the government’s ability to enforce neutrality. But in its early days, as neutrality made the bumpy journey from Enlightenment concept to viable foreign policy, the executive branch took the lead in building a neutral nation. In doing so, the federal government came to promote and protect U.S. sovereignty and autonomy at home and abroad for generations to come.