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Neutrality during the European Wars of 1792-1815: America's Understanding of Her Obligations1

Published online by Cambridge University Press:  04 May 2017

Charles S. Hyneman
Charles S. Hyneman*
Affiliation:
School of Citizenship and Public Affairs, Syracuse University
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Extract

The year 1792 marks the beginning of the long European struggle which started as the French Revolution and culminated in the Napoleonic Wars. The first notice that a state of war existed reached the Government of the United States August 2, 1792, when the French Minister at Philadelphia, M. Jean Temant, informed Thomas Jefferson, the American Secretary of State, that the French Government had declared war against Hungary and Bohemia. The Secretary of State, in reply to this notice, assured the French Minister that the United States would remain friendly to France “and render all those good offices which shall be consistent with the duties of a neutral nation.” This expression of Mr. Jefferson seems to be the only direct acknowledgement by President Washington or his Cabinet that the United States had been placed in the position of a neutral state.

Type
Research Article
Information
American Journal of International Law , Volume 24 , Issue 2 , April 1930 , pp. 279 - 309
Copyright
Copyright © American Society of International Law 1930

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Footnotes

1

This article is intended to present, in summary form, only the essential features of thepractice of the United States during its first period of neutrality. The study is confined to neutral obligations;the American attitude toward, or understanding of, its neutral rights is not under observation. The article takes no account of events occurring after the date at which the United States entered into war with Great Britain, June 18,1812.

References

2 Jefferson to the Minister of France, Aug. 27,1792, The Writings of Thomas Jefferson, ed. by H. A. Washington (Philadelphia, 1869-71), III, 458.

3 The Writings of Thomas Jefferson, ed. by Ford P. L. (New York, 1892-99), VI, 212.

4 The questions are in Writings of George Washington, ed, by Ford W. C. (New York, 1889-93),XII, 280.

5 Treaty of Alliance, concluded Feb. 6, 1778, Treaties, Conventions, International Acts, Protocols and Agreements between the United States and Other Powers, compiled by Malloy W. M. (Washington, 1910), I, 479.

6 Cabinet opinion, April 19, 1793, Writings of Jefferson, ed. Ford, VI, 217.

7 The proclamation is in American State Papers, Foreign Relations (Washington, 1833), I, 140. It may also be found in Messages and Papers of the Presidents, 1789-1897, ed. by J. D. Richardson (New York, 1896-99), I, 156. Formal notification had not been received by the American Government as late as April 23d, the day after the issuance of the proclamation. Jefferson to the Ministers of the belligerent Powers, April 23,1793, The Counter Case of Great Britain as laid before the Tribunal of Arbitration convened at Geneva (Washington, 1872), 514. At pages 511 to 654 of this volume appears much of the correspondence between the British Minister to the United States, George Hammond, and the American Secretaries of State.

8 Jefferson to James Madison, June 23, 1793, Writings of Jefferson, ed. Ford, VI, 315; Jefferson to James Monroe, July 14, 1793, ib., VI, 346.

9 Letters to George Wythe, April 27, 1793, ib., VI, 218; to Madison, April 28, 1793, ib., VI, 232; to Monroe, May 5, 1793, ib., VI, 238; and to Thomas Pinckney, May 7,1793, ib., VI, 242.

10 Letters to Gouvemeur Morris, April 20, 1793, ib., VI, 217; to Temant, Aug. 27,1792, Writings of Jefferson, ed. Washington, III, 458; and to Thomas Pinckney, April 20, 1793, ib., III, 541.

Jefferson found little to praise in the proclamation of April 22d. Letter to Madison, April 28, 1793, Writings of Jefferson, ed. Ford, VI, 232.

11 On his arrival at Philadelphia in the spring of 1793 the French Minister, Edmond Charles Genet, announced that his country wished only friendship, not military support, from the United States. See Jefferson to Madison, May 19 and June 9,1793, Writings of Jefferson, ed. Ford, VI, 260-61, and 291; and Jefferson to Monroe, June 4, 1793, ib., VI, 281.

12 Message to Congress, Dee. 3, 1793, Am. State Papers, For. Rel., 1 ,140; or Messages and Papers of the Presidents, I, 139.

13 Am. State Papers, For. Rel., I, 168.

14 For the letter quoted above see ib., 1 ,150. The adjudication and sale of prizes, and the activities of American citizens outside the territory of the United States receive some attention below. In his International Law: Chiefly as Interpreted and Applied by the United States (Boston, 1922), II, § 844, pp. 692-95, Professor C. C. Hyde discusses the basis for or explanation of the decision of President Washington and his Cabinet to pursue an impartial conduct.

15 See, for example: Cornelius van Bynkershoek, Quaestiones juris publici (1737), lib. I, c. 9; Emmerich de Vattel, The Law of Nations or the Principles of Natural Law (1758; trans. by C. G. Fenwick. Washington, 1916), Book III, § 104, p. 268, § 126, p. 276; Charles Molloy, De jure Maritimo el Navali: or a Treatise of Affairs Maritime and of Commerce (7th ed. London, 1722), Book I, ch. 12, IX, p. 177; Jean Barbeyrac, Notes to S. Pufendorf, Le droit de la nature & des gens (trad, par J. Barbeyrac. 5e éd. Leide, 1759), II, 558; and Martens, G. F. de, Précis du droit des gens modeme de I’Europe (1788; 2e éd. par Ch. Vergé. 2 t. Paris, 1864), II, § 306, p. 301.Google Scholar

16 For citations see Redslob, R.,Histoire des grands principes du droit des gens (Paris,1923), 244-45;Google Scholar and Hall, W.E., A Treatise on International Law (8th ed. by A. P. Higgins. Oxford,1924), 695 and 701.Google Scholar See also Art. 5 of a treaty of May 22, 1762, between Prussia and Sweden, in Martens, G. F. de, Recueil de traités condus par les puissances de l’Europe (2e éd. 8 t. Gottingen, 1817–35),I, 41.Google Scholar

17 These executive proclamations of neutrality, issued during 1778, 1779, and 1780, are printed in Martens, op. cit., III, at the following pages: Tuscany, p. 24; King of Two Sicilies, p.46; The Pope, p. 52; Sweden, p. 60; Genoa, p. 64; Venice, p. 74; Portugal, p. 157; and Russia, p. 208. The writer believesthat he has carefully combed the published source material of the first American neutrality. Nowhere has he found any evidence that any president, cabinet member, or other person prominent in American public life from 1792-1812, was acquainted with the content of these neutrality proclamations or with the neutral practice of the governments which issued them. When oneconsiders the eagerness with which American Secretaries of State searched for precedents upon the various problems of neutrality, it may be assumed that the absence of any reference to these edicts is almost conclusive evidence that they were unknown.

18 For a general discussion of the relations between belligerent and nonbelligerent states prior to the American neutrality, see Hall, International Law, pp. 691-705.

19 This doctrine that the neutral must abstain altogether from allowing certain privileges to the belligerents seems not to have been stated in cottcise language during the first period of American neutrality, but one can easily see in certain statements of Jefferson that he understood this to be required of any nation presuming to occupy a status of neutrality. See his letter to Gouvemeur Morris, Aug. 16,1793, Am. State Papers, For. Rel., 1 ,168; and letter to Genet, June 5,1793, ib., 1 ,150.

20 Treaty of Amity and Commerce, concluded Feb. 6, 1778, Treaties, ed. Malloy, I, 468.These special favors concerned the treatment which should be accorded in American ports to the armed vessels and prizes of France and her enemies

21 One may well be surprised at the unanimity with which officials of the United States expressed or clearly implied a belief that treaty obligations, entered into prior to the outbreak of war, ought to take precedence over the general requirement of impartiality. For some of these statements see: Paper signed “ Pacificus,” by Alexander Hamilton, Secretary of Treasury, June 29, 1793, The Works of Alexander Hamilton, ed. by H. C. Lodge (New York, 1885-86), IV, 137; Jefferson to Thomas Pinckney, United States Minister to Great Britain, May 7, and Sept. 7, 1793, Writings of Jefferson, ed. Ford, VI, 243, and 414; Jefferson to Morris, Aug. 16, 1793, ib., VI, 378-81, or Am. State Papers, For. Rel., I, 168; Jefferson's opinion on the Little Sarah, May 16,1793, Writings of Jefferson, ed. Ford, VI, 257; Edmund Randolph, Secretary of State, to George Hammond, British Minister to the United States, April 13, 1795, Domestic Letters, VIII, 128 (This is a manuscript collection of letters sent from the office of the Secretary of State of the United States. They are to be found in the archives of the Department of State at Washington); Randolph to J. A. Joseph Fauchet, French Minister to the United States, May 29, 1795, Am. State Papers, For. Rel., I, 611; Washington to Thomas Sim Lee, Oct. 13, 1793, Writings of George Washington, ed. Ford, XII, 336-37; C. C. Pinckney, John Marshall, and Elbridge Gerry, American envoys to France, to the French Minister of Foreign Affairs, Jan. 27,1798, Am. State Papers, For. Rel., II, 170; John Jay, Chief Justice of the United States Supreme Court, in a charge to a grand jury, May 22, 1793, Correspondence and Public Papers of John Jay, ed. by H. P. Johnston (New York, 1890-93), III, 482; debate in Congress during the winter and spring of 1794, Annals of the Congress of the United States (42 vols. Washington, 1834-1856), 3d Cong., 1st Sess., 745-57; and Report of a Senate Committee to the Senate, June 23,1809, Am. State Papers, For. Rel., I l l, 297. Jefferson, while Secretary of State, went so far as to say that for a nation, when it becomes a neutral, to refuse to comply with the obligations which it had made in time of peace with one of the belligerent Powers, would amount to a breach of neutrality, an act which would give the injured belligerent cause for war and make the supposed neutral an associate on the other side. Opinion on the French treaties, April 28, 1793, Writings of Jefferson, ed. Ford, VI, 226,231. This argument is closely akin, to that advanced by the French Minister Fauchet when he questioned whether neutrality could be said to exist when a nation which claimed to be neutral could no longer fulfill its treaty obligations. To Randolph, May 2, 1795,Am. State Papers, For. Rel., I, 609. There seems to be on record no statement refuting the idea that prior treaty engagements ought to be fulfilled even though of particular advantage to one of the belligerents.

The acquiescence of George Hammond, British Minister to the United States during the first years of American neutrality, m the doctrine referred to above, seems to have been more than merely tacit. See his letters to Jefferson, May 8, and June 7, 1793, Counter Case of Great Britain before Tribunal at Geneva, 519, and 524.

22 During the years 1797 and 1798 the United States suffered so much ill treatment at the hands of France that the American Government resorted to hostile reprisals which differed little from a state of open war. French vessels were taken as prize by American war vessels and privateers; even the public war ships of the two republics engaged in combat. At the same time American ports were closed to French vessels of all types except in case of distress. Again American endurance was pushed to the limit by the highhanded acts of the British fleet, bo that in the summer of 1807 the President of the United States issued a proclamation which barred British vessels from American ports, and forbade citizens of the United States to render any aid to British vessels which might come into American waters contrary to that proclamation. The statutes requiring reprisals against France are in Publick Statutes at Large of the United States of America, ed. by R. Peters (Boston, 1845-48), I, 561, 565-66, 574, 578-80, 582, 813-16, II, 7-11,39. Instructions putting these statutes into practice are in Am. State Papers, For. Rel., II, 367-68. The proclamation concerning British vessels is inAm. State Papers, For. Rel., III , 23.

In respect to the acquiescence of the belligerents in the reprisal measures of the United States, see George Canning, British Minister of Foreign Affairs, to James Monroe, American Minister at London, Sept. 23, 1807, Am. State Papers, For. Rel., III , 200. But compare with this a statement accredited to Canning by William Pinkney, who succeeded Monroe at London, in a letter of Jan. 23,1809, from Pinkney to Secretary of State James Madison, in H. Wheaton, Some Account of the Life, Writings and Speeches of William Pinkney (New York, 1826), 420. Note the interpretation which is placed on Pinkney's report of Canning's words, in E. Channing, The Jeffersonian System, 1801-1811 (New York, 1906; Vol. 12 of The American Nation, a series edited by A. B. Hart), 194.

23 In order to understand the importance of the American practice as a factor in the formation of rules of international law, one should compare the action and the expressions of the United States with the requirements of international law at that time. The writer has attempted to collect the precedents, in the practice of nations and in the expressions of writers, for the conduct of the United States during the period of study. Lack of space prevents the presentation of that material here.

24 The speech which Monroe made on the occasion of his reception expressed great admirationfor France but probably would have excited little comment in itself. But Monroe's speech was followed by an exhortation from the President of the National Convention, Merlin de Douai, which ended with the following challenge: “ I am impatient to give you the fraternal embrace, which I am ordered to give in the name of the French people. Come and receive it in the name of the American people, and let this spectacle complete the annihilation of an impious coalition of tyrants.” Commenting on this occurrence, Hildreth says, “ At this word Monroe stepped forward, and received and returned Merlin΄s national embrace, thus publicly responding and assenting to the speech by which it had been introduced.” Hildreth, R., The History of the People of the United States of America from 1788 to 1821 (Rev. ed. New York, 1874–1875), I,653.Google Scholar Monroe's reception in Paris is recorded in Am. State Papers, For. Rel., I, 673-74.

For Randolph's reproof, see his letter to Monroe, Dec. 2, 1794, Am. State Papers, For. Rel., I, 689-90. Washington thought Monroe's conduct unwise. Letter to Jay, Dec. 18, 1794, Writings of Washington, ed. Ford, XII, 503.

25 The Connecticut Courant for Oct. 12, 1803, gave the following paragraph which it had taken from a London newspaper as a quotation from Livingston's memorial: “ This union of sentiment and interest rests upon principles which ought to form the maritime code, and deliver the universe from the tyranny of Great Britain, which she maintains, and which will never be combatted with success, until the other powers, by uniting, will abridge her means, by transferring to nations more moderate, a part of her commerce.”

Madison, Secretary of State, gives an account of the British protest in a letter of March 31, 1804, to Livingston, The Writings of James Madison, ed. by G. Hunt (New York, 1900-10), VII, 138. It is clear from this letter that Madison considered the British protest, delivered by George Merry, British Minister at Philadelphia, a legitimate one. It is noteworthy, if Madison related correctly to Livingston his conversation with the British Minister, that both Madison and Merry considered the seriousness of the offense to be affected by the intent or lack of intent of the American Minister to publish the paper. Madison urged ivingston to spare no efforts which delicacy would permit to secure the withdrawal of the memorial from the press.

26 To Temant, Feb. 23, 1793, Writings of Jefferson, ed. Ford, VI, 189.

27 Genet to Minister of Foreign Affairs, July 25,1793, Correspondence of the French Ministers to the United States, ed. by Turner, F.J. in American Historical Association, Annual Report, 1903, II (Washington, 1904), 221.Google Scholar Cf. Anas, Writings of Jefferson, ed. Ford, I, 235-37. Professor Channing's conclusion seems fair. “How far Jefferson was cognizant of Genet's plans for the seizure of Louisiana and Florida is not clear from his published or unpublished papers; but it is inconceivable that a man of Jefferson's resources and one so well acquainted with the politicians of Kentucky and Tennessee should not have had some inkling of what was going on.” Channing, E., A History of the United States (New York, 1905-25),IV,133.Google Scholar

Although officials of state importance found it necessary to bridle themselves, popular feeling in the United States was uncurbed. Both France and England were praised and damned in turn. Apparently no one considered a question of neutrality to be involved. Jay wrote from London in 1794: “ It should not be forgotten that there is irritation here as well as in America, and that our party processions, toasts, rejoicings, etc., etc., have not been calculated to produce good-will and good-humor. The government, nevertheless, distinguish between national acts and party effusions..” Letter to Hamilton, Sept. 17, 1794, Correspondence of Jay, ed. Johnston, IV, 114.

28 See, particularly, despatches from the envoys, C. C. Pinckney, John Marshall and Elbridge Gerry, to the Secretary of State, Oct. 22 and 27, 1797, and March 9, 1798, Am. State Papers, For., Rel., II, 158, 161-62, and 186-88. See also Gerry to Talleyrand, July 20,1798, ib., II, 220. Timothy Pickering, Secretary of State, supported the envoys in their refusal to advance a loan. “ In no event,” he wrote, “ is a treaty to be purchased with money, by loan, or otherwise. A loan to the republic would violate our neutrality.” Letter to American envoys, March 23, 1798, ib., II, 201.

29 Letter to Jefferson, Sept. 18, 1793, ib., I, 173.

30 The schedule for the repayment of the amount loaned by France to the United States was arranged in a treaty which was concluded Feb. 25, 1783, between the two countries. Treaties, ed. Malloy, I, 487. Certain amounts of interest and principal were specified as falling due annually, the whole of the debt to be repaid in 1802. But when the French Minister, M. Jean Temant, Genet's predecessor, shortly after the United States learned that France was at war with Hungary and Bohemia (though before Great Britain entered the arena), applied for anticipation of these debt payments, President Washington's administration responded so liberally that Hamilton was able to report to the President in November of 1793 that the payments already made to France were equal or nearly equal to the amount falling due in the course of the year 1794 (Works of Hamilton, ed. Lodge, IV, 249). M. Fauchet, who succeeded Genet as the French representative at Philadelphia in 1794, was also granted anticipations on the debt. Provision was made for him to draw in advance on sums planned to be paid in the fall of 1794 (Report to Senate, June 6,1794, Am. State Papers, For. Rel., 1,468), and in January of 1795 Congress passed an act making it possible for the French Minister to obtain in advance the sum due in the fall of that year (Statutes at Large of U. S., I, 409). By the end of 1795 the United States had, according to Pickering, Secretary of State at the time, paid off the whole of the debt to France, the last installments of which according to the treaty were not due until 1802. Letter to C. C. Pinckney, Jan. 16, 1797, Am. State Papers, For. Rel., I, 573.

It seems probable that the rules of international law in existence in 1793 did not require that the government of a non-belligerent nation abstain from making loans to the countries at war. The American colonies, during the war for their independence, seemed to assume that neutrality would not deter continental European governments from furnishing ships, arms, and money to the struggling nation. Silas Deane went to France in 1776 with high hopes of obtaining direct and substantial aid from the Governments of France, Spain, and with the help of the former, from the Netherlands (T respondence of the United States, ed. by F. Wharton. Washington, 1889, I, 371-72, note. Deane to Committee of Secret Correspondence, Dec. X, 1776, ib., II, 209). Perhaps the fact that the Governments of France and Spain found it advisable to disguise their assistance to the rebels by the illusory Rodrigue Hortalez and Company might be cited as weighty evidence that these two countries considered the laws of neutrality to forbid more direct aid. A more cogent explanation of the effort at evasion may be found in their longstanding fear that Great Britain was awaiting only a pretext to launch an offensive against these two continental rivals, and the consequent necessity of their obtaining a disguise which would avert the catastrophe of an attack at an inopportune moment, yet permit them to thrust a sword into the British Hon. During the eighteenth century it was common for European nations to contract in time of peace to furnish troops to another nation for the prosecution of its future wars. (See, for representative cases, Martens, ,Recueil de traités, V,401,422,448,492,506,524,620; ib., VI, 245; ib., VII, 47,54.Google Scholar) This practice, however, due to the current understanding of the relation of previous treaty agreements to the customary obligations of international law, might be explained as not involving a question of neutrality. It was the opinion of Francis Wharton that while the aid given to the revolting American colonies by France and Spain through Hortalez and Company was “ on the face of this transaction ” not contrary to international law, in substance it amounted to as much (Revolutionary Diplomatic Correspondence of the U. S., I, 370, 455). With this statement one should compare the assertion of Vattel that it is not illegal for a neutral state to make a loan to one belligerent while refusing that favor to the enemy, so long as the tending state was impelled in its action by its own best interests (Law of Nations, Book III, § 110, p. 270

31 The proof of this statement is to be found in a comparison of several documents: Art. 19 of treaty of 1778 between the United States and France, Treaties, ed. Malloy, I, 475; Art.17 of the Treaty of Peaoe wad Commerce between the United States and the Netherlands, concluded Oct. 8,1782, ib., II, 1238; Art 18 of treaty between the United States and Prussia, concluded Sept. 10,1785, ib., II, 1482; Jefferson to Hammond, and to Van Berckel, Minister from the Netherlands to the United Slates, Sept. 9,1793, Am. State Papers, For. Rel., 1 ,176; and number 7 of the instructions to the collectors of customs, Aug. 4, 1793, ib., I, 141.

32 Jefferaon to Hammond, and to Van Berekel, Sept. 9,1793, Am. State Papers, For. Rel., 1176.

33 Art. 17, Treaties, ed. Malloy, I, 475.

34 Randolph to Fauchet, Sept. 7,1794, Am. State Papers, For. Rel., I. 601; Randolph toHammond, April 13, 1795, Domestic Letters, VIII, 123; and Randolph to Governor Henry Lee of Virginia, May 8,1795, ib., VIII, 176. The last mentioned letter is printed in Calendar of Virginia State Papers and other Manuscripts (Richmond, 1875-93), VII, 338.

35 Arts. 17, 19 and 22, Treaties, ed. Malloy, I, 474-75.

36 Arts. 24 and 25. Ib., I, 604.

37 Art. 25 of the. Jay Treaty so provided.

38 Act of July 7, 1798, Statutes at Large of U. S., I, 578.

39 Evidence of the truth of this statement is too elusive to be found in any one or a few documents. Compare, however, the fact that the treaty of 1800 between the United States and France did not repeat the provisions of Arts. 17,19 and 22 of the treaty of 1778, with the statements in a letter from certain French Ministers to the three envoys of the United States who negotiated the later convention. The letter, dated Aug. 25, 1800, is in Am. State Papers, For. Rel., II, 335. The convention of 1800 is in Treaties, ed. Malloy, I, 496 ff.See also Jefferson to Albert Gallatin, Secretary of Treasury, Aug. 28,1801, Writings of Jefferson, ed. Ford, VIII, 86.

40 This rule is printed in Counter Case of Great Britain before Tribunal at Geneva, 584. In the letter to Hammond in which the rule was inclosed, Randolph characterized the rule as “ being reasonable in itself, and conformable to the law of nations.”

In 1797 two French cruisers, Medusa and Insurgent, were penned up in the waters at Norfolk by a British vessel. On the complaint of the French Consul-General, the Secretary of State, Timothy Pickering, advised the Governor of Virginia to see that the twenty-for hour interval rule was observed. The instruction seems to have been fulfilled to the satisfaction of all parties concerned, the British vessel putting to sea first. See Thomas Mathews to Governor Wood of Virginia, July 10,1797, and enclosures, Calendar of Virginia State Papers, VIII, 439-40; Pickering to Robert Liston, British Minister at Philadelphia, and to Governor Wood, June 6, 1797, Domestic Letters, X, 55-56.

41 Genet brought with him to the United States at least two hundred fifty blank commissions or letters of marque which he was instructed to give to the commanders of vessels who might be willing to enter the service of France. Many of these letters were issued to vessels found in the ports of the United States before the American Government turned its attention to the practice. Genet to Minister of Foreign Affairs, Oct. 7, 1793, Correspondence of French Ministers, ed., Turner, (Report Am. Historical Assoc., 1903, II),253.Google Scholar

42 Genet to Minister of Foreign Affairs, April 16,1793, ib., 211. See also Minnigerode, M.,Jefferson, ,Friend of France, 1793 (New York,1928), 208.Google Scholar

43 Letter to Jefferson, May 8, 1793, Counter Case of Great Britain before Tribunal at Geneva, 518.

44 Jefferson to Ternant, May 15, 1793, Am. State Papers, For. Rel., I, 147; and Genet to Jefferson, May 27, 1793, ib., I, 149. Ternant was not officially succeeded by Genet as French Minister to the United States until May 18th.

45 Ib., I, 150. This letter also advised the French Minister that the distribution of commissions while within the United States was an infringement of American sovereignty which the chief executive could not tolerate. Three months later, Sept. 7th, a circular was sent out to the various consuls and vice consuls informing them that anyone of them who should undertake “ to give commissions within the United States,” would forfeit his exequatur and become liable to prosecution. Ib., I, 175. In Talbot v. Jansen (1796), 3 Dallas, 133, 154, 1 L. Ed. 540,549, Justice Paterson stated that a letter of marque issued in the United States by a foreign consul would have no validity.

46 Letters to Jefferson, June 8 and 17, 1793, Am. State Papers, For. Rel., I, 151, 155.

47 Am. State Papers, For. Rel., I, 141

48 Oliver Wolcott, Secretary of Treasury, to collectors of customs, Oct. 6,1794, ib., III , 339; and April 8, 1797, ib., II, 78.

49 JudgeBee, Thomas, in Moodie v. The Betty Cathcart (1795), Fed. Case 9,742;Google Scholar Secretary of War Henry Knox to Governor Lee of Virginia, Aug. 5, 1793, Calendar of Virginia State Papers, VI, 472; Wolcott to collectors of customs, Oct. 6, 1794, cited in note 48.

50 Wolcott to collectors of customs, Oct. 6, 1794, cited in note 48.

51 Cf. Willis Wilson, Commandant, City of Norfolk, tp Governor Lee, Sept. 19, 1793, Calendar of Virginia State Papers, VI, 539; John Hamilton, British consul at Norfolk, to Lee, Sept. 20, 1793, ib. VI, 539; and Hamilton to Lee, Sept. 27, 1793, ib., VI. 551.

52 Judge Bee's decisions are: Moodie v. The Betty Cathcart (1795), Fed. Case 9,742; and Salderondo v. The Nostra Signora del Camino (1795), Fed. Case 12,247. Judge Washington's decision is: U. S. v. Grassin (1811), Fed. Case 15,248

53 As to swivels, see Salderondo v. The Nostra Signora del Camino, cited in note 52; as to new masts, see Moodie v. The Brothers (1796), Fed. Case 9,743; and as to new oars, see Wolcott to collectors of customs, Oct. 6, 1794, Am. State Papers, For. Rel., Ill, 340.

54 Hammond's letter is in Counter Case of Great Britain before Tribunal at Geneva, 518; Jefferson's letter of June 5th is in Am. State Papers, For. Rel., I, 150.

55 See Jefferson to Genet, June 17, 1793, ib., I ,154; Jefferson to Morris, Aug. 16, 1793, ib., I, 170; Pickering to C. C. Pinckney, Jan. 16, 1797, ib., I, 567; Hammond to Jefferson, July 10 and Aug. 30, 1793, Counter Case of Great Britain before Tribunal at Geneva, 531, 532; and Phineas Bond to Lord Grenville, Aug. 17, 1794, Letters of Phineas Bond, British Consul at Philadelphia, to the Foreign Office of Great Britain, 1790-94, ed. by J. F. Jameson, in American Historical Association, Annual Report, 1897 (Washington, 1898), 547. Cf. Genet to French Minister of Foreign Affairs, Oct. 7,1793, Correspondence of French Ministers, ed. Turner, (Report Am. Historical Assoc., 1903, II), 246.Google Scholar

56 See Jefferson to Genet, Aug. 7, 1793, Am. State Papers, For. Rel., I, 167; Jefferson to Hammond, Counter Case of Great Britain before Tribunal at Geneva, 540; and Jefferson to Hammond, Sept. 5, 1793, Am. State Papers, For. Rel., I, 174. Hammond seems to have made no protest against the President's decisions concerning restoration and compensation, but he did indicate that he believed a legitimate complaint could be made against the decision not to restore or compensate for prizes brought in prior to June 5th. Letter to Randolph, May 22, 1794, Counter Case of Great Britain before Tribunal at Geneva, 569.

57 Jefferson to Hammond, June 13,1793, Counter Case of Great Britain before Tribunal at Geneva, 528; cf. Knox to Governor Lee of Virginia, Aug. 21, 1793, Calendar of Virginia State Papers, VI, 491

58 (1794), Fed. Case 2,504.

59 (1794), 3 Dallas, 6, 1 L. Ed. 485.

60 Treaties, ed. Malloy, I.

61 Genet to Jefferson, Sept. 14, and Nov. 29,1793, Am. State Papers, For. Rel., 1 ,184,185.

62 Governor George Clinton of New York to Genet, Nov. 21,1793, ib., 1 ,186; and Genet to Jefferson, Sept. 14, 1793, ib., I, 184.

63 Cf. Orders of the Committee of Public Safety, Oct. 11,1793, Correspondence of French Ministers, ed. Turner, (Report Am. Historical Assoc., 1903,II), 287-88;Google Scholar Instructions to commissioners, ib., 289; Randolph to Washington, March 29, 1794, Domestic Letters, VI, 141; Randolph to Fauchet, April 6, 1794, ib., VI, 167; and Randolph to Fauchet, June 30, 1794, ib., VII, 8-9.

64 Correspondence of Jay, ed. Johnston, III, 483. Associate Justice James Wilson of the Supreme Court made a charge to the same effect at Philadelphia, July 22, 1793. Wharton, F.,State Trials of the United States during the Administrations of Washington and Adams (Philadelphia, 1849), 64.Google Scholar The Attorney General, Edmund Randolph, announced the same conclusion in an opinion which he gave May 30,1793. Am. State Papers, For. Rel., I, 152. This opinion is not included in the Official Opinions of the Attorneys General of the United States.

65 An act in addition to the act for the punishment of certain crimes against the United States, Statutes at Large of U. S., I, 381-84.

66 U. S. v. Guinet (1795), 2 Dallas, 321, 1 L. Ed. 398.

67 Ternant to Minister of Foreign Affairs, May 1, 1793, Correspondence of French Ministers, ed. Turner, (Report Am. Historical Assoc., 1903,II),196-97;Google Scholar and Hammond to Jefferson, May 2, 1793, and accompanying affidavits, Counter Case of Great Britain before Tribunal at Geneva, 515-17.

68 Jefferson to Ternant, May 15, 1793, Am. State Papers, For. Rel., I, 148; and Genet to Jefferson, May 27, 1793, ib., I, 150.

69 Jefferson to Bichard Harrison, attorney for the district of New York, June 12, 1793, Writings of Jefferson, ed. Ford, YI, 297; and Jefferson to Hammond, June 13, 1793, ib. VI, 298.

70 (1793), Fed. Case 4,790.

71 See Jefferson to Washington, Oct. 3, 1793, Writings of Jefferson, ed. Ford, VI, 434.

72 Am. State Papers, For. Rel., I, 183.

73 Jefferson to Hammond, Nov. 8,1793, Counter Case of Great Britain before Tribunal at Geneva, 554-56.

74 Jefferson to Hammond, June 21, 1794, ib., 582.

75 The most flagrant case of violation of American waters by the British was the violent search of the American packet Peggy for the person and papers of the French Minister Fauchet in the summer of 1795. See the documents in Am. State Papers, For. Rel., I, 662-67.

76 On May 31, 1793, Genet wrote to his government that one of his privateers alone hadbrought in eight prizes. Correspondence of French Ministers, ed. Turner, (Report Am. Historical Assoc., 1903,II),216.Google Scholar For further and abundant evidence of the use of American ports as bases of operations by the French, see Mangourit, French consul at Charleston, to Genet, April 24, 1793, The Mangourit Correspondence, ed. by Turner, F.J., in American Historical Association, Annual Reports, 1897 (Washington, 1898), 576-77;Google Scholar Thomas Newton, Jr., and William Lindsay to Jefferson (?), in Wharton, State Trials of U. S., 50; Hammond to Jefferson, June 14, Sept. 4, and Dec. 29,1793, Counter Case of Great Britain before Tribunal at Geneva, 528, 544-45, and 563; Benjamin Moodie, British vice consul at Charleston, to Miller, British consul, Nov. 28,1793, ib., 589; and Christopher Gore, federal attorney for the Massachusetts district, to Rufus King, Aug. 1 ,1793, The Life and Correspondence of Rufus King, ed. by C. R. King (New York, 1894–1900), I, 487-88.

77 For complaint, see Fauchet to Randolph, Jan. 31, and May 2, 1795, Am. State Papers, For. Rel., I, 605, and 609.Cf. Commissioners to Committee of Public Safety, May 6,1795, Correspondence of French Ministers, ed. Turner, (Report Am. Historical Assoc., 1903,II), 684.Google Scholar

78 Domestic Letters, VIII, 132. Apparently no such letter was sent to the representatives of France.

79 Randolph to governors, Am. State Papers, For. Rel., I, 608. This circular appears, under date of April 16, in Domestic Letters, VIII, 138, but a slightly different text, addressed to the Governor of Virginia under date of April 15, appears at p. 135.

80 See Pickering to Monroe, Sept. 14,1795, Am; State Papers, For. Rel., I, 667; Pickering to Adet, June 13, 1796, ib., I, 652; De la Croix, French Minister of Foreign Relations, to Monroe, March, 1796, ib., I, 658; Fauchet to Commissioners of Foreign Relations, Oct. 26, 1795, Correspondence of French Ministers, ed. Turner, (Report Am. Historical Assoc.,1903,II), 719;Google Scholar Thomas Barclay, British Consul-General in theUnited States, to Lord Hawkesbury, British Secretary of State for Foreign Affairs, July 8, 1801, Selections from the Correspondence of Thomas Barclay, ed. by G. L. Rives (New York, 1894), 129.

81 Letters of April 14,17, and 23, 1795, in Notes of the British Legation, I A. The Notes are a collection of the communications from the representatives of Great Britain in the United States, to the Secretary of State. They are bound but unpaged and are kept in the archives of the Department of State at Washington.

82 Letter to Jefferson, May 8, 1793, Counter Case of Great Britain before Tribunal at Geneva, 519.

83 Letter of May 15, 1793, Am. State Papers, For. Rel., I, 147.

84 To Jefferson, May 27, 1793, ib., I, 149.

85 Writings of Jefferson, ed. Ford, VI, 353-54, note.

86 Chief Justice Jay and associate justices to Washington, Aug. 8,1793, Correspondence of Jay, ed. Johnston, III, 488.

87 Am. State Papers, For. Rel., I, 175.

88 Cited in note 59.

89 3 Dallas, 6, 16, 1 L. Ed. 485.

90 It seems probable that a prize which was brought into Charleston in 1796 by the French privateer, Leo, was condemned by the French consul at that port. There appears to be no evidence that the exequatur was withdrawn from the offending consul. Adet to Pickering,Oct. 12, 1796, Am. State Papers, For. Rel., I, 654; Pickering to Adet, Nov. 15, 1796, ib., I,655.

91 To Jefferson, May 27, 1793, ib., I, 149.

92 Randolph to Hammond, June 2, 1794, ib., I, 465; See also the message of President Washington to Congress, Dec. 3, 1793, Messages and Papers of the Presidents, I, 139; and remarks of Mr. Samuel Smith in the House of Representatives, May 11, 1796, Annals of Congress, 4th Cong., 1st Sess., 1346.

93 Annals of Congress, 3d Cong., 1st Sess., 68, 745-57.

94 Treaties, ed. Malloy, I, 604.

95 June 30, 1796, Am. State Papers, For. Rel., III , 340.

96 Pickering to Adet, July 19, and Nov. 15, 1796, ib., I, 653, and 655.

97 May 8, 1793, Counter Case of Great Britain before Tribunal at Geneva, 518.

98 May 15, 1793, ib., 520, and Am. State Papers, For. Rel., I, 147.

99 Letter from Jefferson to Madison, Aug. 11 (?), 1793, in J. C. Hamilton, History of the Republic of the United States as traced in the writings of Alexander Hamilton and his cotemporaries (New York, 1857-60), V, 345. This letter appears to be in none of the published collections of Jefferson's writings.

100 The case is reported at length in Wharton, State Trials of U. S., and in briefer form as Henfield's Case, Fed. Case 6,360.

101 See Wharton, op. cit., 1-2, and 89; and Conway, M.D., Omitted Chapters of History Disclosed in the Life and Papers of Edmund Randolph (New York,1889), 183 Google Scholar

102 Commissioners to Minister of Foreign Affairs, May 20, 1794, Correspondence of French Ministers, ed. Turner, (Report Am. Historical Assoc., 1903,II),345.Google Scholar Cf. Mangourit to Genet, Nov. 3,1793, and Feb. 27,1794, Mangourit Correspondence, ed. Turner, (Report Am. Historical Assoc., 1897), 603, and 621;Google Scholar and Mangourit to Fauchet, March 31, 1794, ib., 648.

103 Report and Resolution of the South Carolina House of Representatives, Dec. 6, 1793, Am. State Papers, For. Rel., I, 309; Proclamation of the Governor of South Carolina, Dec. 9, 1793, ib., I, 310.

104 See General Anthony Wayne to Governor Isaac Shelby of Kentucky, Jan. 6, 1794, Knox to Governor St. Clair of the Northwest Territory, Nov. 9, 1793, and Knox to Wayne, March 31, 1794, ib., I, 458. Professor C. R. Fish states that, by occupying a strategic position on the Ohio, Wayne divided Clark΄s forces and brought about their disruption. American Diplomacy (New York, 1915), 105.

A valuable source of information for the study of these western expeditions is Correspondence of Clark and Genet, ed. by Historical Manuscripts Commission, in American Historical Association, Annual Report, 1903, II (Washington, 1904).

105 Cabinet opinion, March 10, 1793, Writings of Jefferson, ed. Ford, VI, 198.

106 Anas, ib., I, 235-37.

107 Jefferson to Governor Isaac Shelby, Aug. 29, and Nov. 6, 1793, Am. State Papers, For. Rel., I, 455

108 Messages and Papers of the Presidents, I, 157-58.

109 Act of June 5, 1794, Statutes at Large of U. S., I, 381.

110 See Randolph to Jaudenes, Spanish Commissioner to the United States, Dec. 6, 1794, Domestic Letters, VIII, 1.

111 Don Carlos Martinez de Yrujo, Spanish Minister to the United States, to Pickering, March 2, 1797, Am. State Papers, For. Rel., II, 68.

112 Letter of March 11, 1797, ib., II, 68.

113 Letter of April 28, 1797, ib., II, 69. The federal attorney for the Georgia district, Charles Jackson, was instructed to investigate the activities of Clark, and, if he should discover any “ designs to violate our neutral duties,” to take “ the most proper and effectual measures for frustrating such designs; and if the same shall be manifested by any overt acts, to cause the offenders to be arrested and secured, that they may be brought to condign punishment,” the state and federal militia to be at his call if necessary. Letter of April 27, 1797, ib., II, 71. See also the letter sent by Pickering to the Governors of North Carolina, South Carolina, Tennessee and Georgia, Aug. 3, 1797, Domestic Letters, X, 1 (Mr-05, and to the federal attorneys in the same states, Aug. 3, 1797, ib., X, 105-07.

114 Perhaps the most that was done to dissuade the filibuster was a statement of Madison, Secretary of State, that inasmuch as the United States was “ in amity with Spain and neutral in the war,” it could lend no assistance to the project, this assertion being accompanied by a warning to the Spaniard that he must not run foul of the Act of June 5,1794, prohibiting the organization of hostile expeditions on American soil. Related in a letter of Madison to John Armstrong, American Minister to Spain, March 15, 1806, Writings of Madison, ed. Hunt, VII, 202. This was lip service to American neutrality, perhaps, but little more, and the record of President Jefferson and his Cabinet is hardly relieved by the admission, once Miranda and his cohorts were well out to sea, that their departure was an affront to the neutral obligations of the United States. See the letter from Madison to the French Minister, Turreau, Feb. 10, 1806, quoted in part in W. S. Robertson, Francisco de Miranda and the Revolutionizing of Spanish America, in American Historical Association, Annual Report, 1907, I (Washington, 1908), 372, note a. Samuel Ogden and Colonel William S. Smith, citizens of the United States who had aided in raising troops and military equipment for Miranda, were tried before the federal circuit court at New York for violation of the Act of June 5, 1794, but, due largely no doubt, to the popular belief that the President and his Cabinet were in sympathy with the expedition, the men were acquitted. See Robertson,op. cit., 374. The trial is reported in four cases,U. S. v. Smith and U. S. v. Ogden (1806),Fed. Cases 16, 341a to 16, 342b.

115 Hammond to Jefferson, May 8, 1793, Counter Case of Great Britain before Tribunal at Geneva, 519

116 Jefferson to Hammond, May 15, 1793, ib., 520, or Writings of Jefferson, ed. Ford, VI, 252-53

117 To Pickering, Jan. 12, 1796, Am. State Papers, For. Rel., I, 645.

118 Letter of Jan. 20,1796, ib., 1,645-46. Pickering's reply was based on an opinion issued the same day by the Attorney General. Opinions of Attorneys General of U. S., I, 61.

119 The Writings of John Quincy Adams, ed. by W. C. Ford (New York, 1913-17). II, 4-5.

120 Domestic Letters, VII, 89. See also the statement as to Hammond's respect for American neutrality in W. K. Woolery, The Relation of Thomas Jefferson to American Foreign

121 Domestic Letters, VII, 344-45.

122 A proclamation, July 2, 1807, Am. State Papers, For. Rel., Ill, 23, or Messages and Papers of the Presidents, I, 422.

123 Quoted in Phillimore, R., Commentaries upon International Law(3d ed. London, 1879-89), III, §CXLVII, p. 242.Google Scholar

124 Hershey states: “ The theory of neutral rights and obligations was formulated by Bynkershoek, Galiani, Hubner, De Martens, and Vattel in the eighteenth century, but it was first put into actual practice by the United States during the Washington administration.”

The Essentials of International Public Law and Organization (Rev. ed. New York, 1927), 665-66. Mr. Coleman Phillipson makes a very similar statement in his International Law and the Great War (London, 1915), 263. Oppenheim says that the attitude of the United States toward neutrality from 1793 to 1818 was the “ most prominent and influential factor” in the “ development of the rules of neutrality during the nineteenth century.” He lists three other factors, but nowhere even mentions the Italian codes. International Law (4th ed. by A. D. McNair, London, 1926), II, 462. For other examples of high praise by competent observers, see: P. C. Jessup, American Neutrality and International Police (Boston, 1928. Vol. 7, no. 3 of World Peace Foundation Pamphlets), 7; W. G. G. V. V. Harcourt, Letters by Historicus on Some Questions of International Law (London, 1863), pp. xi-xiii; L. B. Evans, Leading Cases on International Law (2d. ed. Chicago, 1922), 785; G. Bemis, American Neutrality: Its Honorable Past, Its Expedient Future (Boston, 1866), 27; and C. G. Fenwick, The Neutrality Laws of the United States (Washington, 1913), 27-28. The latter writer seems to refer to the Italian codes as “ temporary.” It is interesting to note that by an edict of March 1, 1795, the Grand Duke of Tuscany announced the intention “ to observe scrupulously the law of neutrality published by his august father, in the month of August, 1778 as the fundamental law of the grand-duchy.” Martens, Recueil de traités, VI, 8.

125 International Law, 707. Jessup, referring to this paragraph by Hall, calls attention to the fact that Hall's well known bias against the United States gives more weight to his praise. Op. cit., p. 7, note 2.