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Subject Area: Political Theory
Topic: The American Revolution and Constitution

TO THOMAS JEFFERSON, SECRETARY OF STATE. - George Washington, The Writings of George Washington, vol. XII (1790-1794) [1891]

Edition used:

The Writings of George Washington, collected and edited by Worthington Chauncey Ford (New York and London: G. P. Putnam’s Sons, 1890). Vol. XII (1790-1794).

Part of: The Writings of George Washington, 14 vols.

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TO THOMAS JEFFERSON, SECRETARY OF STATE.

Philadelphia, 4 August, 1793.

Sir,

If the heads of departments and the attorney-general, who have prepared the eight rules, which you handed to me yesterday, are well satisfied that they are not repugnant to treaties, or to the laws of nations, and moreover are the best we can adopt to maintain neutrality, I not only give them my approbation, but desire they may be made known without delay for the information of all concerned.2

The same expression will do for the other paper, which has been subscribed as above, and submitted to my consideration, for restoring or making restitution of prizes under the circumstances therein mentioned.1

It is proper you should be informed, that the minister of France intends to leave this city for New York to-morrow; and not amiss, perhaps, to know, that, in mentioning the seasonable aid of hands, which the Ambuscade received from the French Indiaman the day preceding her meeting the Boston, he added, that seamen would no longer be wanting, as he had now fifteen hundred at his command. This being the case, (although the allusion was to the subject he was then speaking upon,) some of these men may be employed in the equipment of privateers, other than those now in existence, as the right of fitting out such in our ports is asserted in unequivocal terms.

Was the propriety of convening the legislature at an earlier day, than that on which it is to assemble by law, considered yesterday?1

The late decree of the National Convention of France, dated the 19th of May, authorizing their ships of war and armed vessels to stop any neutral vessel loaded in whole or in part with provisions, and send them into their ports, adds another motive for the adoption of this measure. I am, &c.

[2 ]Harassed by the complaints and representations of both the English and the French ministers on alleged violations of neutrality, Washington and his advisers undertook to frame a set of rules that would embody the policy of the government, as determined, and that would be conformable to treaties and the laws of nations. For this purpose a meeting of the cabinet was held on July 29th. “It was agreed that a letter of marque, or vessel armé en guerre, and in merchandise, is not a privateer, and therefore not to be ordered out of our ports. It was agreed by Hamilton, Knox and myself, that the case of such a vessel does not depend on the treaties, but on the laws of nations. E. Randolph thought as she had a mixed character of merchant vessel and privateer, she might be considered under the treaty; but this being over ruled”—the Attorney-General and Secretary of the Treasury proposed some rules which were considered.—Jefferson Anas. At a subsequent meeting (August 3d), the rules as digested were submitted and unanimously approved, and on the next day issued by Hamilton as a Treasury circular. The rules were as follows:

“1. The original arming and equipping of vessels in the ports of the United States by any of the belligerent parties for military service offensive or defensive is deemed unlawful.

“2. Equipments of merchant vessels by either of the belligerent parties, in the ports of the United States, purely for the accommodation of them as such, is deemed lawful.

“3. Equipments, in the ports of the United States, of vessels of war in the immediate service of the government of any of the belligerent parties, which, if done to other vessels, would be of a doubtful nature, as being applicable either to commerce or war, are deemed lawful; except those which shall have made prize of the subjects, people, or property of France, coming with their prizes into the ports of the United States, pursuant to the seventeenth article of our treaty of amity and commerce with France.

“4. Equipments in the ports of the United States, by any of the parties at war with France, of vessels fitted for merchandise and war, whether with or without commissions, which are doubtful in their nature, as being applicable either to commerce or war, are deemed lawful, except those which shall be made prize, &c.

“5. Equipments of any of the vessels of France in the ports of the United States, which are doubtful in their nature, as being applicable to commerce or war, are deemed unlawful.

“6. Equipments of every kind, in the ports of the United States, of privateers of the powers at war with France, are deemed lawful.

“7. Equipments of vessels in the ports of the United States, which are of a nature solely adapted to war, are deemed unlawful; except those stranded or wrecked, as mentioned in the eighteenth article of our treaty with France, the sixteenth of our treaty with the United Netherlands, the ninth of our treaty with Prussia; and except those mentioned in the nineteenth article of our treaty with France, the seventeenth of our treaty with the United Netherlands, the eighteenth of our treaty with Prussia.

“8. Vessels of either of the parties not armed, or armed previous to their coming into the ports of the United States, which shall not have infringed any of the foregoing rules, may lawfully engage or enlist their own subjects or citizens, not being inhabitants of the United States; except privateers of the powers at war with France, and except those vessels which shall have made prize, &c.”

[1 ]“Opinion of the Cabinet on the Restitution of Prizes, 5 August, 1793:—That the minister of the French Republic be informed, that the President considers the United States as bound, pursuant to 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 of the parties at war with France, subsequent to the 5th day of June last by privateers fitted out of their ports.

“That it is consequently expected, that he will cause restitution to be made of all prizes taken and brought into our ports subsequent to the abovementioned day by such privateers; in defect of which, the President considers it as incumbent upon the United States to indemnify the owners of those prizes; the indemnification to be reimbursed by the French nation.

“That, besides taking efficacious measures to prevent the future fitting out of privateers in the ports of the United States, they will not give asylum therein to any, which shall have been at any time so fitted out, and will cause restitution of all such prizes as shall be hereafter brought within their ports by any of the said privateers.

“That instructions be sent to the respective governors in conformity to the above communication.”

[1 ]Gideon Henfield, an American citizen, had enlisted to serve on the French privateer Le Citoyen Genet, and on the complaint of Hammond his case came before the President. Randolph gave his opinion that Henfield could be prosecuted in the federal courts; that by the common law, independent of any statute, the federal courts have power to punish offences against the federal sovereignty. Henfield was arrested and reclaimed by Genet. Chief-Justice Jay in a charge to the grand jury, impanelled at Richmond, very clearly laid down the principle that any American citizen who should violate the neutrality by committing, aiding, or abetting hostilities against either of the powers at war, was to be deemed guilty of a violation of the laws of the United States, and liable to a prosecution in the federal courts, under an indictment at common law for disturbing the peace. [The charge is printed in Wharton, State Trials.] The same rule was even more broadly stated by Justice Wilson in his charge in Henfield’s case; but in spite of the united opinion of the judges on the law and the legal arguments of Randolph and Rawle, a verdict of acquittal was rendered. This result was regarded as a victory for Genet, who it was said advanced the money to pay for the defence, and as a severe blow to the prestige of the administration. Randolph rushed into print to assert that the verdict did not alter the legal aspects of the case, and some deficiency in point of fact, or some circumstance of equity, had brought about the result. The enlisting on French privateers to commit hostilities against Great Britain was clearly unlawful.—Conway, Edmund Randolph, 183, 185. It may be added that the doctrine so strongly enounced by the justices and Randolph was soon unsettled, and in later decisions of the court entirely set aside.

In view of this verdict, the question of Genet’s conduct, the situation of Indian affairs, and the general complexion of political matters, Washington thought of calling Congress together at an earlier date than that on which it was to meet by law. Knox, Randolph, and Hamilton were against it; Jefferson was in favor of it. Genet was staking all on Congress and was anxious to have it assembled, believing that he would receive its full support. A little incident is recorded by Jefferson. “Knox said we should have had fine work, if Congress had been sitting these last two months. The fool thus let the secret out. Hamilton endeavored to patch up the indiscretion of this blabber, by saying, ‘he did not know; he rather thought they would have strengthened the executive arm.’ It is evident they do not wish to lengthen the session of the next Congress, and probably they particularly wish it should not meet till Genet is gone.”—Anas.