John Jay and the Issue of Neutrality: Editorial Note
John Jay and the Issue of Neutrality
Early in 1793, the peace of Europe, already troubled by the revolution in France, its war against Austria and Prussia, and the execution of Louis XVI, was shattered by France’s declaration of war on Britain and the United Provinces on 1 February. On 5 April a British packet bearing definitive news of the outbreak of war reached New York. Anticipating it, Jefferson had already notified American diplomats and consuls to exert themselves to protect American vessels against all violations of neutrality, especially against usurpation of the American flag by foreign vessels. Neutrality, he said, would be “our plan” if European powers left the nation in full enjoyment of neutral rights.1 How the United States would define its neutrality—as strictly impartial or as more benevolent toward France, its ally during the American Revolution,2—and what it would mean in practice, were, however, very much open to discussion.
Washington was well aware that the situation confronting him was fraught with complications since it involved treaties with belligerents on both sides of the conflict. Executive power was controversial in itself, and its constitutional definitions and limits had yet to be tested. On 12 April, in preparation for a cabinet meeting scheduled for 19 April, Washington asked Jefferson and Hamilton to consider what measures should be adopted to prevent Americans from embroiling the United States with any of the belligerents and to ensure that it maintained “strict neutrality.”3 Jefferson did not respond in advance of the meeting, but Hamilton took the opportunity to express his concerns to the president beforehand and in so doing shaped the formulation of the thirteen questions Washington presented to the cabinet under the date of 18 April.4
Jay became a participant in the discussion by responding to Hamilton’s request for his opinions on both the advisability of a neutrality proclamation and the reception of the new French minister,5 which Hamilton thought should be “qualified” to avoid any suggestion that the United States considered France’s new government solidly established and the Franco-American treaties fully in force. Jay’s hurried response of 11 April enclosing a draft proclamation recommended doing everything “right” to avoid war, saying too little rather than too much, and avoiding any mention of treaties and of the word “neutrality”6 “because in this Country often associated with others.”7
Jay’s recommendations anticipated the position articulated by Attorney General Edmund Randolph in the proclamation he prepared for Washington’s signature on 22 April. It made no mention of treaties, did not use the word “neutrality,”8 indicated that the United States would be friendly and impartial toward all the belligerents; required Americans to refrain from hostile acts; and threatened to prosecute anyone who aided or abetted hostilities against any of the belligerents.9 Although Hamilton may well have shown Jay’s draft proclamation to Washington or the cabinet members, he probably did not share Jay’s cover letter, which, contrary to Hamilton’s opinions, argued for explicit and unqualified recognition of France’s de facto government, of the minister it sent to the United States, and of the full force of the Franco-American treaties.10
The cabinet meeting of 19 April considered only the first two of the questions Washington raised: 1) whether the government should issue a proclamation that enjoined American citizens not to “interfere” in the war between France and Great Britain and that explicitly declared neutrality; and 2) whether the United States should receive a minister from the Republic of France. Both proved to be extremely controversial. The cabinet agreed unanimously that the president should forbid Americans to engage in hostilities with or against any of the belligerents and should warn them against carrying contraband articles to any of them. It agreed that the newly appointed minister from France should be received, but disagreed as to whether his reception should be qualified or not. It postponed further discussion of the remaining questions.11
On Randolph’s suggestion, cabinet members answered the remaining questions in writing. Jefferson’s response of 28 April tersely enunciated the principles on which the positions he had advanced in the cabinet meeting questioning the constitutional authority of the president to declare neutrality had been based and identified the questions to which they related. In order of importance the principles were, first, that the people were the source of all authority and the constituent in all treaties, and second, that the legislature alone could declare war.12 Hamilton’s response of 2 May, cosigned by Knox, was largely devoted to proving that since it was France that declared war and was the aggressor, and the Franco-American treaty was a defensive alliance, the United States was absolved from coming to her defense. Randolph submitted a lengthy brief on 6 May, largely devoted to the question of whether or not the treaties were in force.13
After the proclamation was approved, the cabinet began to consider how to enforce it. Hamilton proposed that customs collectors should be charged to watch for any activity likely to violate neutrality within their districts and to report violations to him. Objections were raised to this suggestion because it was considered that surveillance by customs collectors would constitute “a system of espionage, destructive of the peace of society” and would make the Treasury Department responsible for seeing that the “laws” of neutrality were observed and for preserving peace with foreign nations. Although the cabinet apparently accepted Jefferson’s argument that primary responsibility for investigating and prosecuting neutrality violations should be assigned to federal judges and grand juries, Randolph proposed, and Hamilton agreed to, a compromise authorizing Hamilton to instruct customs collectors to report violations of neutrality to state governors and to federal district attorneys, who would in turn report them to Randolph. Washington subsequently directed Randolph to order district attorneys to require customs collectors to report neutrality violations to them.14
With the referral of enforcement to the federal courts, the issue now came within Jay’s jurisdiction. At some time during the first two weeks of May, Jay arrived in Philadelphia on his way south to attend the Circuit Court at Richmond, Virginia, the first session to meet after the promulgation of the Neutrality Proclamation. Although there is no documentation to establish that he conferred with Washington, Hamilton or other cabinet members on the issue while in Philadelphia, it is probable that he did so and revised his planned address to the grand jury based on discussions there.15
The new minister from France, Citizen Genet, had landed in Charleston on 8 April, where he immediately began, both before and after Washington’s proclamation was issued and before he had presented his credentials to Washington, to fit out and commission privateers in America ports and enlist Americans to serve on them.16 Genet proceeded northward at a leisurely pace. Along the way, he was received with elaborate demonstrations of popular gratitude for France’s support during the American Revolution and expressions of approval and solidarity with her struggle to establish a republican government in the face of opposition by Europe’s monarchies.17 As Jay travelled to Richmond, his path crossed Genet’s in Maryland, but the two did not meet.
Genet arrived in Philadelphia on 16 May. Problems immediately presented themselves. Complaints regarding prizes taken by privateers Genet had commissioned in Charleston, manned in part by American citizens, had already been brought to Jefferson’s attention by British minister George Hammond.18 Genet’s letter of accreditation was addressed not to the president but to Congress, which the French government, unaware of the implications of constitutional changes regarding executive power, assumed was in charge of foreign policy. His instructions, formulated largely by French foreign minister Pierre LeBrun, Jacques-Pierre Brissot de Warville, a Girondist leader in the National Convention, and finance minister Etienne Clavière, attempted to lay the foundations for a close partnership between the two republics by distancing the present French government from its monarchical predecessor. While they cautioned Genet to avoid showing favoritism to pro-French American officials, they directed him to strengthen bonds that had been weakened by the monarchy’s willingness to limit Britain’s territorial concessions to the United States during peace negotiations in 1782.19 Finally, they authorized him to inform the United States that France would not invoke the treaty of alliance’s territorial guarantee by asking the United States to defend French possessions in the Americas, but instructed him to insist on strict enforcement of certain provisions of the Franco-American treaty of commerce of 1778. These articles denied enemies of France the right to outfit privateers or sell prizes in American ports and denied their privateers admission to American ports except in case of emergency. Problematically, Genet assumed that denial of these rights to enemies conferred them on themselves, thereby allowing the French to use American ports as bases for their own privateering activities.20
Washington received Genet on 18 May, two days after his arrival, in a manner that was correct but without the enthusiasm to which Genet had become accustomed.21 Four days later, Genet announced commercial concessions France was prepared to make to the United States and then requested the United States to immediately pay off the remainder of its debt to France by supplying American provisions needed by France in Europe and in its West Indian colonies.22 Emboldened by popular enthusiasm for the revolutionary cause and by gratitude for French support for the American cause during the war for independence, Genet ignored Jefferson’s repeated attempts to restrain his behavior within diplomatic norms.
The court at Richmond, Virginia, provided Jay with an opportunity to render an official opinion on issues the cabinet had debated and Genet had raised: the role of the people in a republican government, executive powers, and the force of treaties. Jay had apparently begun drafting his charge in April, but substantially revised it prior to the opening of the court in Virginia, refocusing it entirely on the neutrality question. In face of the organized campaign to galvanize public opinion in favor of unqualified support for France, Jay opened his charge to the jury by noting that one of the most important objects of a free government was to “restrain men from violating the Rights of Society & of one another.” In a republican government, he asserted, the people expressed its will by freely electing men to make and execute the laws that regulated society, “regular and exact obedience” to which was to be “expected, required, and rendered.” He then specified three classes of laws violations of which the grand jury was called upon to address. They were, in order of priority, treaties, which could not be vacated or modified at discretion and which the Constitution had declared the supreme law of the land; the Law of Nations, on which basis doubts with regard to treaties were to be settled; and finally, the Constitution and the Statutes of the United States.
Citing Vattel, Jay declared that sovereigns were obliged to prevent their subjects from injuring a foreign nation, “either in its Body or its members,”23 and governments were obliged to see that all laws were respected and obeyed, not only by their own citizens but by foreigners living in their territories. Having laid this foundation, Jay informed the grand jury that the Neutrality Proclamation, which he quoted in its entirety, was “exactly consistant with and declaratory of the Conduct enjoined by the Laws of Nations.” Therefore, he concluded, the United States was in a “State of neutrality relative to all the powers at war,” and that it was the grand jury’s “Duty, their Interest, & their Disposition” to maintain it by prosecuting and punishing all offenses against it.24
In his draft proclamation of 11 April, Jay had noted the damage that partisan discussion of issues related to the war could cause and expressed hope that the president would exhort printers to be prudent about what they published. In his proclamation, Washington declared that “the duty and interest” of the United States required it to pursue a policy that was friendly and impartial toward the belligerents. He then exhorted and warned Americans “carefully to avoid all acts and proceedings whatsoever” that might “contravene” a disposition of neutrality. Jay raised the same issue in his charge to the Virginia Grand Jury, where he noted that it was natural for men to allow “partialities” to become inflamed and to lead them to “say and to do Things that had better have been omitted.”
Eight days after Jay presented his charge to the Richmond grand jury, the first of four essays25 sharply critical of Washington’s proclamation and policies appeared under the pseudonym “Veritas” in Philadelphia’s National Gazette. The pieces set off a full-blown press war whose battlefields were precisely those Jay had addressed in his proclamation to the grand jury: the role of the people in a republican government, the executive’s right to issue a neutrality proclamation, and the equal value of the peace treaties signed with all four belligerents.26
“Veritas’s” opening salvo warned Washington that he was “merely” the country’s “first magistrate” and should realize he was accountable to its citizens for his official conduct. He then faulted Washington’s proclamation for failing to mention the Franco-American treaties, suggesting that they were now to be considered “as of no obligation.” This, he argued, was inconsistent with America’s duty and interest and disgraceful to the American character. “Veritas” continued these themes in his second piece, adding that Washington had aped the tyrannical government of Britain “in direct opposition to the will of the nation,” which was “firmly attached to the cause of France.” He then criticized Washington for suggesting that Britain, the “tiger” that had recently shed the blood of thousands of Americans, should be treated “with as much impartiality, and equal friendship as France.” Washington, he advised, should not be led by “the aristocratic few,” and their “contemptible minions, of speculators, tories, and British emissaries,” but should listen to the “exalted and general voice of the American people.”27 The third “Veritas” essay, dated 6 June, responded to a cabinet memorandum approved on 1 June that gave American courts the right to determine the legality of prizes brought to American ports by French privateers. This, “Veritas” declared “an intermeddling expressly prohibited by treaty.” He then asked Washington whether he considered himself “vested with legal powers to annul solemn treaties by proclamation.”28
The Richmond grand jury adjourned on 8 June. Jay reached Philadelphia on 15 June and left for New York two days later, evidently without providing anyone there with a copy of his charge to the grand jury.29 He returned to Philadelphia on 17 July in response to Washington’s request to all the Supreme Court Justices, transmitted by Jefferson, to consider whether they could render official opinions on legal questions raised by Genet’s activities that presented themselves under “circumstances which do not give a cognisance of them to the tribunals of the country.”30 In their reply to Washington of 20 July, the justices reported that the question “whether the public may with propriety be availed of the advice of the Judges on the Questions alluded to,” was of so much difficulty and importance that they were reluctant to decide without the advice and participation of the absent judges. They asked if their answer could be postponed until the regular sitting of the Supreme Court. On 23 July Washington agreed to their request.31 In the interim, Washington and the cabinet formulated 29 questions that had arisen about neutrality regulations and treaty obligations to France.32 Anticipating that the justices might refuse to offer formal opinions on the questions submitted to them, the cabinet held a series of meetings between 29 July and 3 August in which all members agreed on what actions by belligerents and their vessels were consistent with the preservation of American neutrality and treaty obligations.33 On 8 August, the justices notified Washington that they considered it improper for them to offer opinions “extrajudicially” on the “questions alluded to” since the Constitution did not specify that the president could call on the court for opinions.34 Its decision brought Jay’s official involvement in questions of neutrality temporarily to an end.
Meanwhile, Genet continued to run privateers out of American ports and to recruit American citizens to participate in operations against the Spanish in Louisiana. His utter disregard of American protests against these activities convinced all members of the cabinet to request his recall, though they disagreed on the manner of doing so.35 Despite his concern about using the press to inflame the public mind, on 12 August, Jay would find himself drawn as an individual into a controversy with Genet.36
1. See , 25: 415–16, 435, 518. Several years before the French Revolution and prior to the outbreak of hostilities in Europe, but anticipating their likelihood, JA, TJ, and Lafayette independently discussed how the United States should comport itself if confronted with a European war. JA recommended that it should “take the coolest Precautions,” while fulfilling its engagements honorably, to maintain its Neutrality “inviolate.” Lafayette reported that France would expect American harbors to offer to shelter French ships and provide them with opportunities for repair, resupply, and a market for their prizes, “all which, Being Consistent with treaties,” would give “No Ground of Complaint.” He further stated that France would expect Americans to supply provisions to the French West Indies colonies, and contended that privateering, if carried out under French colors, would do no harm. France might claim “more decisive Measures,” he thought, but would not hurry the United States into war but would be satisfied with “a friendly, Helping Neutrality.” TJ doubted that Britain would permit the United States to preserve its neutrality. It would, he stated, “find subjects of provocation in various articles of our treaty with France which will now come into view in all their consequences, & in consequences very advantageous to the one & injurious to the other country.” See JA to JJ, 22 Sept. 1787, TJ to JJ, 8 Oct. 1787, and Lafayette to JJ, 15 Oct. 1787, , 4: 546–47, 556–59, 565–67.
2. JM was among those who thought that the Franco-American treaty ought to make “some sort of difference” between France and Britain, and suggested that the term “impartial” in GW’s proclamation was stronger than was necessary or proper. See , 25: 688–89. In his Charge to the Grand Jury, Circuit Court, District of Virginia, 22 May 1793, below, JJ advised that “Strict Impartiality is our Duty in all Cases except in Cases where prior Treaties do not stipulate ^for^ Favors.” On the evolution of neutrality doctrine and neutrality declarations as a function of nation states and in conjunction with the expansion of commerce; on Washington’s neutrality proclamation as consistent with the executive’s obligation to preserve the peace; and on the Neutrality Act of 1794, see 4–30.
3. For the argument that the Washington administration’s prescription of strict neutrality and its criminalization of violations of it was far in advance of international law as practiced at the time, see 11, 13–20, 23–27.
4. For GW’s request to AH and TJ, and for the 13 questions GW submitted to the cabinet for discussion, see , 12: 447–49, 452–54. TJ asserted that the questions were designed to lead to a “declaration of the Executive that our treaty with France is void”; both TJ and ER concluded that the questions were based on a “prepared chain of argument” in a “language” that was AH’s, and expressed doubts regarding the treaty with France that were “his alone.” See , 25: 569–71, 665. For similar questions AH had raised with JJ, see AH to JJ (two letters), 9 Apr. ([1], [2]) above.
5. For previous instances in which GW and AH informally asked JJ for his opinions on public matters pertaining to the executive branch, see GW to JJ and the Heads of Departments, 27 Aug. 1790, and notes, above. On GW’s later request for the Supreme Court justices’ opinions on legal issues related to neutrality and the American treaties with France, see TJ to the Justices of the Supreme Court, 18 July 1793, and the enclosed Questions, and the Justices of the Supreme Court to GW, 8 Aug. 1793, below.
6. Although they differed on the nature of the neutrality, GW and all members of his cabinet agreed that since the United States was totally unprepared for war it was the only option.
7. See JJ to AH, 11 Apr., below.
8. Although GW’s proclamation avoided the word neutrality, it quickly became referred to as his “Neutrality Proclamation.” Rufus King wished that the word “neutrality” had been used so that everyone would have understood and felt the force of it, but he did not agree that the situation justified suspending the treaties with France. RK to AH, 24 Apr., , 14: 335–37. For the contention that GW regarded it as a “proclamation of neutrality” from the beginning, see , 25: 571.
9. For the text of GW’s proclamation, see the copy embedded in JJ’s charge to the Grand Jury of 22 May 1793, below.
10. Despite JJ’s assertions that de facto governments ought to be recognized and that a nation was obliged to keep faith with its treaties regardless of the character of the nation that was its treaty partner, AH continued to insist that the United States had grounds to consider its treaties with France suspended. See JJ’s Charge to the Grand Jury, the Circuit Court for the District of Virginia, 22 May 1793, below; and “Pacificus, No. III,” , 15: 65–68.
11. TJ’s notes on the meeting state that it was agreed by all that a proclamation should “issue, forbidding our citizens to take part in any hostilities on the seas with or against any of the belligerant 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 towards those at war.” TJ subsequently informed JM, however, that he had only voted to approve the proclamation because it was “not expedient to oppose it altogether” for strategic reasons, explained in his letters to JM of 23 and 29 June. See , 25: 570; 26: 346, 403–4; , 14: 328–29.
12. For TJ’s opinions, see , 25: 597–619. In his letter of 23 June, TJ explained to JM that “a declaration of neutrality was a declaration there should be no war, to which the Executive was not competent,” an objection, he said that GW had respected so far as to avoid inserting the term “neutrality” in the proclamation. For TJ’s, JM’s, and James Monroe’s contention that the president was no more entitled to declare peace than to declare war, a power the Constitution reserved to Congress, see , 25: 571, 603; and 26: 346, 382–85; and , 15: 29.
13. For AH’s response, see , 14, 367–97. Knox cosigned the opinion submitted by AH. TJ remarked that Knox’s opinion was “never thought worth offering or asking for” (, 25: 665–66). For ER’s opinion, see , 12: 537–48. Although TJ often disagreed with ER’s opinions and was especially unhappy with his vote in favor of the proclamation, he noted that in this instance ER’s opinion concurred with his own. See , 25: 666–67.
14. See , 25: 667–68, and 26; , 15: 168–69; 178–81; and , 12: 511–12. For AH’s instructions of 4 Aug. 1793 to customs collectors, see , 15: 178. The cabinet had decided on 10 May, before JJ left Philadelphia, that enforcement of the neutrality proclamation would be in the hands of the district attorneys and the courts. See GW to JJ, 12 May, below; and , 12: 511–12.
15. JJ informed the grand jury in Virginia of its duty “to enquire whether any and what Infractions” of the laws had been committed “in this District, or on the Seas by Persons in or belonging to it,” and “to present such as either have, or shall come to your Knowledge.” If the jury should experience Difficulties, “the attorney General, and if necessary, the Court will assist You.” See his charge to the Grand Jury, 22 May 1793, below.
16. For the cabinet’s discussion about the legality of French privateers operating out of Charleston under Genet’s direction, and for TJ’s opinion that, since the United States could not permit France’s enemies to fit out privateers in American ports under Art. 22 of the treaty of commerce, it should not allow France to fit them out either, “the treaty leaving us free to refuse, and the refusal being necessary to preserve a fair and secure neutrality,” see , 26: 50–52, 71–73, 155–56. For reports of privateers being fitted out in Virginia, see , 12: 494. For ER’s memorandum of 14 May describing the capture of the Grange by the Embuscade, the frigate that had brought Genet to the United States, see , 26: 31–36; for AH’s memorandum of 15 May complaining about Genet’s activities, see , 14: 451–60; and , 12: 577–84.
In his charge to the Virginia Grand Jury JJ incorporated Vattel’s dictum that foreign recruiters could be severely punished, even by hanging, and that if they acted under the orders of their government, the offense could warrant a declaration of war by the offended sovereign.
17. See , 200–201; and , 335–36.
18. See , 26: 38–40.
19. Genet was also instructed to announce that France supported American claims to the East Louisiana territory and to navigation of the Mississippi River; he was also directed to enlist western settlers to “liberate” Spanish Florida and Louisiana. See 466–67; Wesley Campbell, “The Origins of Citizen Genet’s Attack on Spanish Louisiana: A Case Study in Girondin Politics,” French Historical Studies 33, No. 4 (Fall 2010): 515–44; and De Conde, Entangling Alliance, 198–200. On France’s contrary policies regarding Spain during the Rayneval mission of 1782, see , 3: 95–99.
20. For Genet’s instructions, see Frederick J. Turner, ed., “Correspondence of the French Ministers to the United States,” American Historical Association, Annual Report, 1903 (Washington, 1904), “Supplement aux Instructions Données au Citoyen Genêt, Ministre Plenipotentiare de La Republique Française Pres des Etats Unis de L’Amerique,” 2: 208–9; and , 25–29.
Art. 19 [17] of the Franco-American Treaty of Amity and Commerce allowed the warships and privateers of one party to enter the ports of the other party with their prizes without payment of duties to admiralty officers. These prizes could not be arrested, seized, or searched to determine their lawfulness. The warships and their prizes were to be free to sail at any time. The article further provided that prizes taken by the enemies of either party would not be admitted to the ports of the other except in case of emergency. Art 23 [21] forbad the citizens of one of the treaty partners to arm privateers for or accept commissions on privateers of a nation that was the enemy of the other. Art. 24 [22] made it unlawful for privateers commissioned by a nation enemy to either partner to be outfitted or allowed to sell captured cargo or to trade in the ports of the other party to the treaty. The article numbers found in the original treaty were renumbered after articles 11 and 12 were rejected and suppressed; the numbers in brackets represent the renumbered articles in the final treaty. See , 2: 16–20, 32–33. For rebuttal of Genet’s interpretation of the treaty articles, see TJ to Gouverneur Morris, 16 Aug. 1793, , 26: 700–706.
Uncertainty as to whether the United States was implicitly obliged to allow France the privileges denied to nations at war with her figured in the Questions Proposed to be Submitted to the Justices of the Supreme Court, [18 July 1793], below. In the trial of Gideon Henfield, held later that month, Justice James Wilson asserted that the United States was not so obliged. See , 63–64.
21. On Genet’s arrival in Philadelphia, his reception on 17 May by the people of Philadelphia, planned by prominent Philadelphia “republicans” to impress GW with the public’s affection for France, on his reception by GW on 18 May, and on subsequent festivities in his honor, see , 26: 46–48, 61–62; Ammon, Genet Affair, 54–58; and , 342, 817n111.
22. See , 26: 82–87. The United States had been discharging the debt by making scheduled payments on it and, in 1792, had advanced 4,000,000 lt. for the relief of French refugees from Santo Domingo. See Samuel Flagg Bemis, “Thomas Jefferson,” in Bemis, ed., American Secretaries of State and Their Diplomacy (New York, 1927), 2: 71–75. Previously, JJ had recommended to GW that, if the American budget showed a surplus, he might discharge the American debt to France more rapidly in recognition of French aid during the American war of independence. Such an advance, JJ said, would recognize the French struggle for liberty and provide aid at a time when the “Derangements incident to Revolutions” would make it all the more welcome. See JJ to GW, 23 Sept. 1791, above. For questions raised in France by William Short, Gouverneur Morris, and the Dutch bankers who held the funds about the appropriateness of paying the debt after the monarchy was overthrown on 10 Aug. 1792, see , 320–22, 324–66. For the cabinet’s discussion about how to manage Genet’s request for payment of the debt in its entirety, see , 26: 174–84.
23. AH’s memorandum to GW of 15 May uses arguments derived from Vattel also used by JJ in his charge to the grand jury of 22 May (below) about a government’s obligations to prevent its citizens from injuring a foreign nation and its citizens and about foreign recruiting as a violation of a nation’s sovereignty. This suggests that AH and JJ may have conversed about how to respond to Genet’s activities while JJ was in Philadelphia earlier in May on his way to Richmond. See , 14: 455. Henry Knox’s memorandum to GW of 16 May 1793 also invokes the same citation to Vattel. See , 12: 596.
24. See JJ’s Charge to the Grand Jury, Circuit Court for the District of Virginia, 22 May, below. By quoting the neutrality proclamation in full, JJ implicitly rejected the description of it as a “declaration of peace,” affirmed its constitutionality, and described it as fulfillment of the executive’s obligation to inform citizens about the law and to enforce it. For the argument that the proclamation was generally well received, because most Americans realized that the United States was incapable of waging or benefiting from war, see , 356. For the argument said to have been widely disseminated by Virginia newspapers, none of which have been identified, that the neutrality proclamation was “highly reprehensible and not authorized by the constitution or justifiable by policy,” see John Dawson to James Monroe, 12 July, , 2: 630–31.
25. Three essays addressed to GW were dated 30 May, 3 and 6 June and appeared in the National Gazette (Philadelphia) on 1, 5, and 8 June; , 12: 647–49; 13: 17–19, 35–37. A fourth “Veritas” essay praising Philadelphia republicans for their critique of the monarchical manner in which GW had proclaimed neutrality appeared in the National Gazette on 12 June. On 10 June, Dunlap’s American Daily Adviser (Philadelphia) carried a defense of the Neutrality Proclamation by “A Friend to Peace” in response to the first two “Veritas” essays.
The National Gazette was an Antifederalist paper edited by poet, essayist, and polemicist Philip Freneau, who was also working as a translator in the State Department. TJ reported a conversation with GW on 23 May in which GW displayed irritation with Freneau’s publications and led TJ to believe GW wanted Freneau removed from his position as translator. During this period, however, Genet’s communications were all translated by George Taylor Jr. See , 26: 102.
The identity of “Veritas” has never been established. Genet thought it was TJ, who suggested it was a Federalist trying to turn public opinion against Americans who supported France. The themes “Veritas” espoused were common Republican themes. On 13 June, GW received a letter from “G. H.” suggesting that “Veritas” was a “Stockdon” who lived near Richmond and had arrived in Philadelphia about 20 May. See , 13: 67–68; , 26: 267; and , 821n157.
26. It is unlikely that JJ’s charge to the Richmond grand jury, given orally only eight days previous to the first “Veritas” essay, was known to its author. The likely trigger of “Veritas” was the arrest of Gideon Henfield, an American who had enlisted to serve on the French privateer, Citoyen Genet, commissioned by Genet shortly after his arrival in Charleston. GW’s cabinet had already unanimously decided to test the validity of the Neutrality Proclamation’s ban on American citizens enlisting with belligerents by prosecuting Henfield, who had arrived in Philadelphia as master of the William, a prize taken in the Delaware river. Genet protested his arrest in a memorial of 27 May. On 15 May TJ directed William Rawle, U.S. attorney for the district of Pennsylvania, to set the case against Henfield in motion. Rawle in turn wrote JJ to ask him to summon a special session of the Circuit Court for the District of Philadelphia (letter not found). JJ apparently handed the case over to James Iredell who, on 29 May, ordered the court to convene on 22 July 1793. The case raised questions as to what laws Henfield could be considered to have violated, since no law of Congress banned such enlistments while the United States was at peace. See , 26: 40–41; 130–31; and , 14: 509–10; and Christopher J. Young, “Connecting the President and the People: Washington’s Neutrality, Genet’s Challenge, and Hamilton’s Fight for Public Support,” Journal of the Early Republic 31, no. 3 (Fall 2011): 435–66. For James Wilson’s charge to the Grand Jury, see , 2: 393–94, 414–24.
JJ’s charge to the Richmond grand jury was published in the newspapers on 26 July, the day before Henfield was indicted by a grand jury in Philadelphia. Henfield was, however, acquitted, reportedly because of the lack of positive federal law on which to prosecute the case and because he was unaware that his actions were unlawful. Francis Wharton published JJ’s charge with the records of the Henfield case, arguing that “This charge, though not delivered to the particular Grand Jury by whom the bill against Henfield was found, was prepared for the purpose of settling the law generally as applying to the class of offenders, of whom Henfield was one, and in this light is here introduced.” See , 49–89, esp. 59n.
27. See “Veritas” I and II, 30 May and 3 June, , 12: 647–49; 13: 17–19. TJ shared “Veritas”’s sentiments. On 4 June, he remarked to Monroe that: “The old tories, joined by our merchants who trade on British capital, paper dealers, and the idle rich of the great commercial towns, are with the kings. All other descriptions with the French.” , 26; 190.
28. See “Veritas” III, , 13:34–37, where the editors note the conflict between “Veritas”’s interpretation of Art. 22 of the Franco-American treaty and the interpretation advanced by JJ in his charge to the Virginia grand jury. The Washington administration had previously decided that the treaty did not privilege French privateers that had been fitted out in American ports. TJ had issued orders to that effect in mid-May. See , 26: 155–56. For responses to “Veritas” see, for example, “A Friend to Peace,” 11 June, and “Verior Hac Veritate,” 15 June, both in the Federal Gazette (Philadelphia); and “A Friend to France and America,” supplement to Dunlap’s American Daily Advertiser, 15 June 1793. For a defense of “Veritas,” see “Observator,” National Gazette (Philadelphia), 19 June 1793.
29. JJ informed AH that the Richmond court intended to have it printed, which it apparently did, as copies were advertised in the Virginia Gazette, and Richmond and Manchester Advertiser on 1 July, but no copies of this printing have been found. See JJ to AH, 24 June, below; and , 2: 392.
30. See TJ to JJ, 12 July, and TJ to the Justices of the Supreme Court, 18 July, and JJ’s draft of the Justices to GW, 20 July, all below; the editorial note “The Referral of Neutrality Questions to the Supreme Court,” , 26: 524–37; and , 25: 110–16.
31. See , 13: 270.
32. For the questions, which may never have been actually presented to the justices, see Questions Proposed to be Submitted to the Justices of the Supreme Court, [18 July], below; the editorial note “The Referral of Neutrality Questions to the Supreme Court,” , 26: 524–37; and , 25: 110–16.
33. On the cabinet’s deliberations, which began on the day on which Gideon Henfield was acquitted, see , 26: 579–81, 588, 607–10; , 15: 139–42, 168–71; , 13: 325–29.
34. See Justices of the Supreme Court to GW, 8 Aug., below. AH had already argued, in “Pacificus No. I” (29 June 1793), that the Judiciary Department could only interpret treaties in litigated cases. See , 25: 38. While a member of the Constitutional Convention, James Wilson had argued in favor of allowing the executive to consult the court, but the convention did not approve his recommendation. See , 2: 73–83, 341–42; and, for the convention’s decision to allow the president to call for written opinions only from the heads of departments, , 2: 542–43.
35. The cabinet decided to request Genet’s recall on 1 Aug. See , 26: 598, 601–3, 685–715; and 463–88. JJ’s Charge to the Grand Jury, Circuit Court for the District of Virginia, 22 May, was included in the documentation sent to the French government to justify the request.
36. See the editorial note “John Jay and the Genet Affair,” below.