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washingtonThe following essay is an examination of the Washington administration’s handling of the first major foreign policy crisis facing the United States under the new Constitution. It is an attempt to examine the “executive-in-action” with an eye to the kinds of constitutional questions that Professor Storing raised in his graduate courses on the presidency, in his introduction to Charles Thach’s The Creation of the Presidency: 1775-1789, and in his proposed program on the presidency which he submitted to the White Burkett Miller Center for Public Affairs at the University of Virginia.[1]

In light of the fact that Professor Storing studied with Leo Strauss at the University of Chicago, wrote on Blackstone, and had a thorough understanding of the founding generation’s indebtedness to the political theorists of their time, one might expect him to have begun his analysis of the American presidency by drawing on the writings about “executive power” found in such political thinkers as Locke, Montesquieu, and Blackstone. But he did not. Instead, Storing began by turning to history.[2] Relying in part on Charles Thach’s analysis of the fate of executive power in the decade following America’s independence from Great Britain, Storing traced the decision to create the presidency to the hard lessons Americans had learned about self-government in that period. To sum these up: In the states, weak governors faced powerful assemblies; the result: legislative excesses, unjust measures, and considerable political instability. And, at the federal level, the total absence of a distinct executive branch under the Articles of Confederation produced a government severely handicapped in the day-to-day management of its affairs. Combined, these two sets of experiences led many of the founders to reassess their revolutionary era animus toward executive authority and to see the institutionally independent executive as a requirement to check legislative usurpations of power, block passage of dubious public measures, and facilitate the systematic and decisive administration of the laws. Whatever useful reflections about executive power that could be gleaned from the writings of the liberal theorists of the era, it was the founding generation’s own experience that persuaded it that instilling “energy in the executive” was critical to any constitutional design that aimed to promote sound government.

But, as Storing’s analysis of the Convention’s deliberations also showed, the goal of establishing the energetic executive within the constraints of the republican form of government was not an easy task. When the Convention’s members turned to discussing the executive, they were stumped on how even to begin, and spent the vast majority of their time in the Convention working out the office’s structure—its number, the president’s tenure, and mode of selection. To the distress of future constitutional scholars (and the good fortune of many a constitutional lawyer), far less time was spent discussing the meaning of the particular powers that came to be vested with the president.

Further complicating the attempt to understand the presidency, Storing noted, were the lacunae in the Convention debates and the subsequent ratification process that left unanswered a number of questions that arose by implication from the founders’ decision to create the kind of executive they had. To note just three:

First, if the Constitution’s architects had created an office capable of checking the legislature, had they not also established an office with an inherent capacity (and almost unavoidable duty) to lead?

Second, if an independent and energetic executive is required for the sound administration of the nation’s laws, how would that discretionary energy play out in the one area—foreign affairs—where there is no rule of law to guide and contain it?

And, Third, in light of the potential for the president to take the lead both in domestic and foreign affairs, how was this executive to be reconciled with the republican sensibilities of the country?

It was this last and more theoretical issue (and Hamilton’s formulation of it in Federalist No. 70: “There is an idea which is not without its advocates, that a vigorous executive is inconsistent with the genius of republican government”) that Storing gradually moved his students to consider and that became the principal focus of much of his own work on public administration, the presidency, and the possibilities of American statesmanship.

As a scholar of the history of political thought and constitutional law, Professor Storing had a rare ability to pull from the everyday experiences of politics and bureaucracy—whether captured in history or even cases of administrative law—the underlying issues of American statecraft and constitutionalism. This was never done in a heavy-handed fashion. Rather, Storing had a knack for letting the facts speak for themselves—even as he subtly guided us toward those facts which were worth taking note of. My hope is that the following essay reflects in its own way that scholarly sensibility. I have no way of knowing of course whether Professor Storing would agree with my analysis of Washington’s actions, the debate it generated, or the nature of the precedent it set for subsequent exercises of executive power. But perhaps he would be pleased that the issues which are the essay’s ultimate concern are among those he pointed his students toward in his classes on the American presidency more than a quarter of a century ago.

The Strategic Setting

Whatever the United States’ long-term advantage in being separated from Europe by the Atlantic Ocean, the immediate problem the nation faced in the wake of independence was encirclement by the colonial possessions of two imperial powers: Spain and Great Britain. Through its North American possessions in the west and in the south, Spain controlled navigation rights on the Mississippi and, consequently, had a significant say over the commercial life of Americans living west of the Appalachians. Spain also held Florida and was asserting claims over large areas of what eventually would become parts of Alabama, Mississippi, Tennessee, and Kentucky. Concerned about possible U.S. plans to expand to the west and south, Madrid was not above supporting secessionist fires among disgruntled American frontiersmen. To the north, Great Britain retained control over Canada. From Canada, the British provided assistance to Vermonters conspiring to rejoin the empire and, with trade and aid, supported the Indians of the Northwest Territory in their effort to impede American settlers from moving into the region. In the east, London had closed its West Indian ports to U.S. trade. And, in retaliation for the Americans’ failure to carry out fully the terms of the peace treaty ending the Revolutionary War, Britain still manned strategically placed forts on U.S. soil in the Northwest Territory.

Accordingly, before the United States could enjoy its splendid isolation from Europe and the world’s great powers, it first had to address its encirclement in North America. But it had to do so, if possible, without getting itself involved in a war that it could not afford at this stage in its development. For American statesmen of the time, the central difficulty was that Great Britain, the country that posed the greatest threat to the United States, was also the nation’s largest trading partner. And it was on the back of that trade—and the federal revenues it generated—that the new government’s plans for the country’s fiscal stability and commercial prosperity rested.

French RevoFurther complicating America’s security was the turmoil and wars brought about by the French Revolution. Initially, most Americans were favorably disposed toward events in France, believing that the establishment of a second liberal republic in the world might lesson the United States’ own international isolation. In the years following 1789, however, American public opinion began to divide as the revolution took on a more radical cast and the French regime grew increasingly unstable. The division was essentially between those who retained some hope for what the revolution might eventuate in and those who dismissed it for what it had become.

The split in American opinion largely mirrored, and became a partisan touchstone for, the division between the Federalists who supported Secretary of Treasury Alexander Hamilton’s London-centric fiscal and commercial policies and the emerging party of Republicans, led by Secretary of State Thomas Jefferson and Congressman James Madison, who saw closer ties to France as a means to break the Anglophilia they thought animated the Washington administration’s policies. For Republicans, it was particularly significant that America’s only treaty-based alliance was with France. The treaty had been signed in 1778 with the ancien regime, and, under its terms, the United States had committed itself to defending France’s West Indian possessions in a time of war.

“Strict Neutrality”

Through this maze of strategic interests, treaty obligations, and domestic politics, it was not evident that the United States could stay clear of war. Matters were coming to a head in 1792. While France had suffered a spring and summer of disastrous military campaigns in its war with Austria and Prussia, the autumn brought a sudden reversal of fortune with success on the battlefield and the conquest of the Hapsburg-ruled Netherlands. Flush with success, the French government announced in November its willingness to support revolutionary efforts outside of France and promised assistance to any people trying to “recover their liberty” by toppling their monarch. Two months later, France beheaded its own king, Louis XVI. Then, on February 1, 1793, Paris formally declared war against its remaining monarchic neighbors: Spain and Great Britain, and Britain’s ally, Holland.

mount-vernonWord of these events made their way slowly across the Atlantic. By early April, Secretary of State Jefferson was convinced that the reports of a general war in Europe were true and so wrote the president at Mt. Vernon. Washington responded with notes to Jefferson and Hamilton, saying he was canceling his plan to stay in Virginia for the month and would make his way back to Philadelphia immediately. In his response, the president made it clear that he was especially worried that American ship owners and seamen would find the opportunity provided by the war to make large sums of money by privateering for either France or Great Britain—sums too attractive to resist. He insisted that the cabinet give prompt attention to determining what measures were needed “to prevent” U.S. citizens “from embroiling us with either of those powers.” His goal, he wrote, was to establish a policy of “strict neutrality” between London and Paris.[3]

As promised, Washington hurried back to Philadelphia, arriving on Wednesday, April 17. The next day, he circulated to his cabinet a list of thirteen questions whose answers, he indicated, would form “a general plan of conduct for the executive” in addressing the crisis at hand. On Friday, Washington and his cabinet met. It was “agreed by all” that a proclamation should be issued by the president “forbidding” U.S. citizens from undertaking any activities that might undermine U.S. neutrality between the two powers. Prepared by Attorney General Edmund Randolph, the proclamation declared that it was the United States’ intention to “pursue a conduct friendly and impartial towards the belligerent powers.” Washington signed and issued the proclamation the following Monday, April 22.[4]

Interpreting the Proclamation

Despite the unanimity within Washington’s cabinet over the desirability of issuing the proclamation, questions immediately arose about the proclamation’s precise character and, in turn, the president’s authority to issue it.

Many Republicans initially interpreted the proclamation as a binding declaration of U.S. policy that, they also believed, exceeded the president’s constitutional powers. Madison complained to Jefferson that the proclamation’s “unqualified terms” established America’s position as one of “unconditional neutrality,” a position that seemed to ignore the country’s existing treaty obligations with France. By “express articles,” the United States had guaranteed, Madison argued, French possessions in the West Indies. Yet, with his proclamation, the president had unilaterally determined that the United States was not bound to guarantee French possessions and would not be going to war to protect them. Madison did not think this was a matter the president could legitimately determine on his own. The “right” to choose between “war and peace,” he wrote Jefferson, was “vested in the Legislature” by the Constitution.[5]

Essays appearing in the Republican-leaning National Gazette in May and the early part of June 1793 made similar points. The president had assumed kingly powers, it was argued. Not only had Washington annulled existing treaty obligations on his own, he was also threatening, without the benefit of a duly enacted law, criminal proceedings against U.S. citizens exercising their “sacred rights” as free individuals to assist the French.[6]

It was in response to these public attacks that Secretary of Treasury Alexander Hamilton set out to defend both the president’s authority to issue the proclamation and the wisdom for doing so. Writing under the pseudonym “Pacificus,” Hamilton penned seven essays that appeared in Philadelphia in the Gazette of the United States from the end of June until late July. Pacificus argued that the president had in fact issued a formal and binding “Proclamation of Neutrality,” that he was within his constitutional powers to do so, and that, for solid reasons of state, the United States was not bound by its treaty with France to defend its island possessions from attacks by Great Britain.[7] The heart of the constitutional defense is found in the first and longest essay: Article II of the Constitution vests “the executive power” in the president, and this authority includes not only the power to execute the laws but also (following the analysis of the executive power found in the writings of Locke, Montesquieu, and Blackstone) the “federative power” to manage a country’s foreign affairs.[8] And, although the Constitution admitted exceptions to the executive power by giving Congress the right to declare war and the Senate a say in making treaties, these were merely exceptions to the wider compass of executive power and were not to be viewed as anything but. Accordingly, Pacificus argued, it was Washington’s constitutional prerogative, as the executive, to interpret and determine the country’s obligations under its existing treaties.[9] In the six essays that followed, Pacificus then set about cataloguing the arguments which justified Washington’s determination that, despite the terms of the treaty with France, the United States was not bound to become “an associate or auxiliary in the War.”[10]

Initially, then, both the defenders and critics of the proclamation interpreted it in a similar fashion: The proclamation was a formal declaration of U.S. policy that not only proscribed Americans from provocative activities but also announced to the world that the U.S. Government believed that it was under no obligation to come to France’s assistance in defending its West Indian possessions.

The proclamation’s critics, however, faced a particular political problem. Despite the existence of considerable sympathy for France within the American citizenry, most Americans seemed to favor a policy that would keep the country out of war[11] As a result, Republican essayists would often decry the fact that the administration was turning its back on France at a critical time but, then, typically, would go on to suggest that American assistance need not include U.S. military involvement in the war.[12] In short, although the proclamation’s critics disliked its reach and the assertion of executive authority it seemed to rest on, like the population as a whole they were largely in agreement with the proclamation’s basic goal.

Led by Jefferson, Republicans eventually attempted to square this circle by arguing that the proclamation was not in fact a formal “Proclamation of Neutrality.” To his friends, Jefferson pointed out that the proclamation did not actually use the term “neutrality” and it did not explicitly repudiate the treaty or the U.S. guarantee. Moreover, the United States had no military force capable of fulfilling the guarantee in any case. There was little chance, then, that France would force the issue by asking for American military help in protecting its possessions in the West Indies.[13] Jefferson’s position was that there was no reason for the Republicans to concede that the proclamation had formally determined an answer to a question that had not, and likely would not, be raised.[14]

Having found a way to save, at least nominally, the alliance with France, Republicans could turn their efforts to contesting the nature of the precedent that Washington seemed to be setting with the proclamation’s issuance. It was obvious that the president’s decision to issue the proclamation—and do so without Congress’ involvement—was an important precedent. The task at hand for Jefferson and the Republicans was to limit it by narrowing the grounds on which the president’s action could be constitutionally justified. By mid-summer 1793, the issue was no longer the president’s policy, but rather, Hamilton’s claims about what his actions meant constitutionally. It was with some urgency, then, that Jefferson wrote to Madison complaining, after the first three essays of Pacificus had been published, that “nobody answers him.” If left unchallenged, “his doctrine will…be taken for confessed.”[15]

With some reluctance it appears, Madison took up his pen in response. Writing under the pseudonym “Helvidius,” Madison produced five essays. The first was published in late August, and the last, in mid-September.[16] Ignoring everything but Pacificus’s claims regarding the nature of the president’s “executive power,” Helvidius argues that the president’s essential function—his “natural province” as the official vested with “the executive power”—is “to execute laws.”[17] From this it follows that Congress’ power to declare war cannot be read as an exception to a general grant of executive authority when, according to Madison, that power is properly understood as being limited in scope. In fact, the power to authorize war, along with the power to make treaties, is more akin to the legislative function of enacting laws than executing them. Hence, if Washington’s decision to issue the proclamation is to be justified constitutionally, it cannot rest on the exaggerated claims about the meaning of “the executive power.” Helvidius argues instead that it must rest on the implicit obligation of the president, as the nation’s chief executive, to maintain the country’s existing legal condition—in this case, a state of peace—until Congress has met and voted to declare war or not.[18]

Under the Constitution, as Helvidius reads it, power over war and peace lies with Congress, and it is the president’s duty, given the limited reach of “the executive power,” not to infringe on the exercise of Congress’ prerogative.[19] Properly understood, Washington’s decision to issue the proclamation was an example of executive deference, not presidential prerogative. The proclamation was not establishing new policy; rather, it was keeping the nation at peace until Congress determined otherwise.[20] Hence, the precedent being set by the proclamation’s issuance was, under Helvidius’s reading, considerably different from what Pacificus had claimed.

As for the president himself, Washington never explicitly clarified what his own views were about the proclamation’s reach or the constitutional grounds for issuing it.[21] On the one hand, Washington was more likely than not, in his correspondence, to refer to the proclamation as the “Proclamation of Neutrality,” terms suggesting a broad reading of what he had done.[22] On the other hand, when it came time to inform Congress in his “state of the Union” address in December 1793 of what he had done, he described the proclamation as “a declaration of the existing legal state of things” and noted that it was within Congress’ power “to correct, improve, or enforce” the rules subsequently issued by him in carrying out the proclamation.[23]

From the latter, Madison biographer Irving Brant has concluded that:

Washington’s address to Congress…left no doubt of the effect of Madison’s reply to `Pacificus.’ Jefferson, who wrote the passage on foreign affairs, was able to describe the neutrality proclamation merely as a declaration of the legal state of things, designed to prevent Americans from engaging in hostile acts. This was the same as saying that Hamilton (‘Pacificus’) had no warrant for calling it a denial of future obligations under the treaty of France.[24]

The House of Representatives’ reply, which Madison helped craft, attempted to seal this interpretation by declaring that “the maintenance of peace was justly regarded as one of the most important duties of the Magistrate charged with the faithful execution of the laws” and, as such, the proclamation’s defense of “the existing legal state of things” an appropriate measure taken by the president.[25]

However, Brant’s reading of this exchange is not definitive by any means. First, the Senate’s response to the president’s message was different from that of the House. The Senate described the proclamation as having declared “the disposition of the nation for peace…to the world,” suggesting a somewhat broader understanding of what the president had done.[26] Second, Washington’s use of the phrase “existing legal state of affairs” and his stated deference to Congress’ right to pass new legislation changing what he had done were not at odds with the views of any of his Federalist defenders, including Pacificus. No Federalist defender of the president denied Congress’ potential role in regulating these matters. Even though Pacificus believed it “advisable” to provide a “broad and comprehensive” constitutional justification for the proclamation’s issuance, even he argued at the end of the first essay that it was not “absolutely necessary to do so.” It is “entirely erroneous” that the proclamation’s critics have “represented [it] as enacting some new law.” Seen within the context of existing U.S. treaties (including a peace treaty with Great Britain) and the law of nations, Pacificus argues that the proclamation “only proclaims a fact with regard to the existing state of the nation, informs the citizens of what the laws previously established require of them in that state, and warns them that these laws will be put in execution against the infractors of them.” Accordingly, Washington’s duty under the Constitution to execute the laws was, Pacificus claims, sufficient to justify what he had done. In short, Washington’s description of the proclamation as “a declaration of the existing legal state of things” was one both Republicans and Federalists could agree on.[27]

This last point is significant. The initial reaction to Washington’s proclamation was partisan and heated, with much of the heat directed at Washington personally. By late fall 1793, however, the partisanship had given way to general support for the policy of neutrality, if not the precise grounds to justify it. The president had been inundated by resolutions from around the country—from areas controlled by Federalists and Republicans alike—which praised both him and his policies. With this new unanimity in hand, and still concerned about the level of partisanship within and outside his administration, Washington might have concluded that the most politically prudent course was to justify the proclamation’s issuance and the rules to carry it out in terms likely to generate the least debate. This was not the time to renew a fight. The Federalists were expected to lose control of the House in the next session of Congress, and Washington might well have thought it best not to put the new Congress in a mind to challenge him and his policies.[28] If this was Washington’s stratagem, it was successful, as both houses of Congress formally praised the president for the actions he had taken and, with minor exception, enacted into law the policies he had already put in place.

The Proclamation’s Administration

Washington was never forced to make a final choice between the arguments of Pacificus and Helvidius, and he did not. As divergent as the two sets of essays were on the fundamental question of the nature of “the executive power” vested by Article II, both provided the president with sufficient constitutional authority to issue the proclamation. And because Paris was unlikely to call on the United States to fulfill its pledge to protect France’s American possessions, there seemed to be no issue on the horizon that might force Washington to abandon his silence and assert the proclamation’s ultimate meaning. But the proclamation’s significance as a precedent for the exercise of presidential power did not begin and end with its issuance. Between April 1793, when Washington signed the proclamation, and the following December, when the Third Congress convened for the first time, the administration took a number of steps to ensure that the policy outlined in the proclamation was implemented. In carrying out the proclamation, the Washington administration exercised authorities that, in certain respects, revealed as much about the nature of the new executive office and its institutional capacity as the decision to issue the proclamation in the first place.

Edmond-Charles_GenêtTo start, shortly after Edmond Genet, the new French ambassador, had arrived in America, news reached the capital that French warships and newly commissioned privateers had seized a number of British merchant ships as prizes. When the vessels were brought into American ports, it was learned that most of the captures had taken place close to U.S. shores. George Hammond, Great Britain’s representative in the United States, immediately asked the administration to take the ships from French control and return them to their owners. Since the British ships had not been captured on the high seas as allowed by the laws of war, he argued that the seizures were illegal. But the problem the administration faced in responding to Hammond’s démarche was that the United States had never set its maritime boundaries. What constituted “U.S. waters” had not been formally established. Pushed by the necessity of giving the British ambassador an answer, the administration, after a bit of deliberation, fixed the country’s home waters at one sea-league (three maritime miles) from shore. That determination then became the binding rule used to determine future disputes over captures and claims of illegal seizures.[29]

In an effort to maintain the country’s neutrality, the Washington administration was also determined to prohibit U.S. citizens from enlisting in the service of any of the belligerents.[30] Without the benefit of any guiding federal statute, and in the face of complaints that he was exercising “despotic” powers in doing so, the president outlawed Americans from joining in the fray: There would be no U.S. citizens serving on board French privateers; no U.S. citizens joining British-sponsored expeditions against French West Indian possessions; and no United States citizens involved in French schemes to launch a military campaign from Kentucky aimed at the Spanish-held city of New Orleans.”

But of all the decisions taken by the administration to implement the proclamation, perhaps the most significant was its determination to prohibit France and its ambassador from outfitting privateers in American ports. Under the 1778 Treaty of Amity and Commerce with France, the U.S. had agreed to deny France’s enemies that privilege. The treaty was silent, however, on the question of whether Paris could use American ports as a base from which to commission its privateers. Read one way, the silence could be interpreted as implying a French right to use U.S. ports for that purpose. Moreover, there was a matter of America’s debt to France for allowing American naval captain, John Paul Jones, to use its ports to raid British shipping during the early years of the Revolutionary War—even before France had formally sided with the United States. Nevertheless, the president and his cabinet were unanimous in the view that the treaty’s prohibition against France’s enemies did not, in turn, imply a positive right for France. Although the French government had some expectation that the American government might allow—or at least turn a blind eye to—the outfitting of French privateers from its ports, the administration consistently operated under the assumption that the policy of neutrality required denying Paris that privilege.[32]

Like the decision to fix the country’s maritime boundaries, the administration’s ruling on French use of American ports arose in response to cases that followed pretty quickly in the wake of the proclamation’s issuance. By mid-summer 1793, Washington and his cabinet were convinced a more systematic and prescriptive approach to this and related questions was necessary. Over the second half of July, the cabinet crafted a relatively comprehensive code (“Rules Governing Belligerents”) that was intended to regulate the arming, repair, and equipping of vessels of the belligerent states in U.S. ports. Described as being “deductions from the laws of neutrality,” the Rules established, in effect, a kind of “administrative law of  neutrality.”[33]

Implementing the proclamation was a complex and, at times, difficult task. But the most potentially explosive problem facing the administration came in the person of Edmond Charles Genet, France’s ambassador to the United States. Buoyed by the enthusiastic public reception he received upon his arrival in the United States, and misconstruing Jefferson’s initial willingness to confide in him the comings and goings of cabinet politics, Genet was unwilling to accept the administration’s decisions when he thought they conflicted with either French interests or what he believed French rights were under existing treaties. By summer, Genet was not only taking steps to challenge the substance of many of Washington’s decisions, he was also questioning the authority of the president to make them. Again, acting unilaterally, the administration responded to Genet’s actions, in one case, by revoking the privileges of the French consul in Boston and, finally, by requesting that the French government recall Genet himself.[34]

As already noted, the efforts to implement the proclamation and request Genet’s recall could have been constitutionally justified by either the arguments of Pacificus or Helvidius. For Pacificus, this authority naturally followed from the president’s being vested with “the executive power,” understood broadly. For Helvidius, however, the president’s power fell into his hands by a kind of constitutional “back door.” In carrying out what Helvidius describes as an essentially ministerial role in maintaining the legal status quo, Washington was authorized to wield authorities that were themselves not simply ministerial, nor minimal.[35] Between the goal of maintaining “the existing legal state of things” and the actual establishment of a regime of neutrality, there existed considerable room for the exercise of executive discretion. And while this discretion was not without limits, it was considerable: So much so that the president appeared at times to be less engaged in executing the laws than in creating them. As the cabinet’s administration of the proclamation revealed, even Madison’s narrow account of executive power had the potential, under certain circumstances, to expand into an authority that was anything but narrow.[36]

Moreover, the possible consequences resulting from the proclamation’s administration were not of an order normally associated with the exercise of ministerial-like functions. Although a system of “strict neutrality” was adopted by the Washington administration, international practice at the time appears not to have required this degree of impartiality. A state might have retained its neutral status, and the privileges associated with that status, even while it provided material assistance of various kinds to the powers at war. This was especially true in those instances in which the so-called neutral was, by virtue of a treaty, in some sort of an alliance with one of the belligerents. Accordingly, for holding to its line of “strict neutrality” between France and Great Britain in every particular, Paris might have accused the United States of adopting a policy more favorable to the British than was necessary.[37] If it had been in France’s interest to do so, there were grounds for it to be offended by the administration’s decisions, and it could have used the request for Genet’s recall to end friendly relations between the two countries. Although unlikely, it was not inconceivable that Genet’s recall could have even led to hostilities between the United States and France.[38] As British Ambassador Hammond speculated in a note back to his own government: Should the French government “determine to support its minister—this order of things must issue in war between France and this country.”[39]

For a number of reasons, events did not unfold as Hammond conjectured they might. Nevertheless, we should not lose sight of the fact that Washington’s efforts to keep the United States from becoming involved in Europe’s war required him to make decisions that might have entangled the country in a major foreign policy crisis and, perhaps, even armed conflict. In such circumstances, a president, who understood his role as chief executive to be fairly circumscribed and believed his principal duty was to keep the country at peace until the Congress had met, would presumably have thought it was his constitutional duty to call Congress into session early in order to get from it a firm set of directives on what policy should be. In this instance, the Second Congress had closed its doors in March 1793—before word of the war in Europe had reached the United States—and the Third Congress was not scheduled to meet until December. Washington and his cabinet twice considered calling the new Congress into session early. But they made the decision not to.[40] For seven event-filled months, the Washington administration established and managed a system of neutrality on its own. The fact that Washington did not call Congress into session and no public outcry arose as a result strongly suggests that the administration’s assumption of leadership during the crisis was consonant with general expectations of the office.

Actually, the sharpest criticism of the administration’s decision not to involve the Congress more directly in these matters came from the French ambassador, and not members of the House or the Senate. Frustrated by Washington’s minimalist reading of the United States’ obligations to France, Genet told Secretary of State Jefferson that these were decisions that “ought not to have been made by the Executive without consulting Congress, and that on the return of the President [to Philadelphia from a visit to Mount Vernon] he would certainly press him to convene the Congress.”[41] According to Jefferson, his own reply was blunt: On questions related to the interpretation of treaties, “the constitution had made the president the last appeal.” “Our government,” he told Genet, had “divided the functions of government among three different authorities…each of which were supreme in all questions belonging to their department and independent of the others.” On those “questions” which had arisen between France and the United States, it was up to “the Executive department” to decide. Even “if Congress were sitting,” such issues “could not be carried to them, nor would they take notice of them.” When it came to these matters, Jefferson informed Genet, the president was “the highest authority.”[42]

Seeking Support

Having both a constitutional justification for taking the initiative during the crisis and the institutional capacity to do so did not preclude the administration from being uneasy as it began the business of implementing the proclamation. Political tensions were high. Pro-French sentiment among the public was considerable and “the republican interest” would, it was thought, be in control of the incoming Congress. Although the basic goal of staying free of the conflict was shared by most everyone, there was still plenty of room for debate about how to do so.

Moreover, Washington and his cabinet did not have the luxury of easing into the proclamation’s enforcement. Immediate disputes arose over the proclamation’s meaning and how it was to be applied in particular cases and circumstances. Handling each case as it arose was a considerable administrative and political burden. The cabinet quickly came to the conclusion that a comprehensive set of rules needed to be promulgated to put an end to some of the uncertainties that were producing this steady stream of mini-crises.

Crafting the “Rules Governing Belligerents” involved the administration in interpreting and applying existing treaties, and elements of international law and the common law. Given the nature of the task, Washington and his cabinet decided in mid-July to submit a list of twenty-nine questions to the Supreme Court (to those “learned in the laws”) for their opinion on various legal issues related to neutrality’s enforcement. In the letter accompanying the submission, Secretary of State Jefferson explicitly took note of the fact that the administration was asking the Court to involve itself in a matter outside their normal “cognisance.” There was no case to be decided in this instance. But, he suggested, the administration was also a bit at sea since the issues facing the president were “little analogous to the ordinary functions of the Executive.” By providing their expert legal opinions on these matters the Court was helping to protect the administration “against errors dangerous to the peace” of the United States. In addition, as Jefferson seemed to admit, the Court’s role as a nonpartisan body could be useful politically, should it decide to provide its advice. By connecting the reputation of the justices to the administration’s decisions, the administration was hoping to “ensure the respect of all parties” for the rules and, implicitly, the policy they rested on.[43]

In July, when the cabinet submitted its questions to the Court, there appears to have been little, if any, discussion about the possible precedent being set by the executive seeking an opinion about foreign affairs from the judicial branch. The matter had come up previously, however. In May, Hamilton had argued in a memorandum submitted to the president that, involving the Court in a dispute over the restitution of illegally seized British ships was to involve the justices in an issue they were not “competent” to decide. As the treasury secretary reasoned at the time, this was fundamentally an issue “between the Governments” and, as such, should be “settled by reasons of state, not rules of law.” Asking the Court for advice would inevitably invite questions about the president’s own constitutional authority to decide these matters. Once the precedent of involving the Court had been set, the president might be hard pressed not to defer to its judgment in future controversies.

Perhaps Hamilton did not raise any objections in July over the cabinet’s submission since he had already made the case against seeking such advice and because he was confident that the Court would not respond positively to the administration’s request in any case.” Moreover, none of the twenty-nine questions concerned the president’s own authority to issue or enforce the rules under discussion.[45] And, in fact, the administration acted as though it had never asked the Court for its guidance. Even before the administration had received official word from the Court rebuffing its request, the cabinet had already begun work on and completed the “Rules for Belligerents.”[46]

Hamilton may (or may not) have had serious reservations about seeking assistance from the Court and, implicitly, support from within the constitutional order for the administration’s policies. Surprisingly, he was apparently not shy about seeking support from outside it in the form of rallying public opinion to the president’s side. To understand Hamilton’s actions, one should begin by remembering that the war in Europe presented the new American government with its first major challenge. Many thought that the stability, prosperity, and even the existence of the country was at stake. The country could not afford mistaken or erratic policies. But most observers, including Washington and his cabinet, were unsure how the public would react in that spring and early summer to the administration’s policy decisions. Hamilton and other Federalists were keenly aware of both the favorable reception Genet had received from the public upon his arrival in the United States and were quite worried about the harsh and, from their perspective, Jacobin-like attacks on Washington and his policies.[47] They had never faced this kind of crisis before; they had never seen such bitter partisanship; and they were uncertain whether the public’s tacit support for the administration’s policy of strict neutrality would last.[48]

To the Federalists, good fortune, the increasingly impolitic behavior of France’s ambassador provided them with the opportunity to rally support for the president and his policies. Genet had not only publicly questioned the administration’s policies, but, as his frustration with the president’s decisions boiled over, he made the mistake of threatening to go over Washington’s head with an appeal to Congress and, if necessary, directly to the American people.[49] As soon as Hamilton and other Federalists found out about Genet’s threat, they believed they had a way of moving opinion in the administration’s favor. Once the French ambassador’s slights of Washington and the constitutional order were made public, they assumed that Americans’ pride in their president and new constitution would turn them against Genet and, at the same time, increase their sympathy for Washington’s efforts to maintain the country’s neutrality.[50]

This was not an opportunity Hamilton would let pass by, and, in Jefferson’s words, the treasury secretary “pressed” Washington to use this information and make “an appeal to the people” “with an eagerness I never saw before.” The president was apparently attracted to the idea initially but finally agreed with Jefferson that Genet’s behavior should first be taken up with the French through the normal diplomatic process. This did not stop the treasury secretary, however. Writing under the pseudonym “No Jacobin,” Hamilton catalogued Genet’s misconduct in a series of essays. He was joined in his effort by other Federalists, such as John Jay and Rufus King of New York. The cumulative impact was as they hoped: popular indignation toward the French ambassador and increased support for the president.[51]

But generating general support for the president was not enough. If it was to have an impact politically, especially on the members of the incoming Congress, a means had to be found to give that support an effective voice. To this end, the Federalists resurrected from the country’s revolutionary period the practice of calling mass meetings at which resolutions on public disputes would be debated and then voted up or down by the gathered crowd of citizens. Although the first of these town meetings was held in Boston before the No Jacobin essays appeared, the revelation of Genet’s threats generated dozens of similar meetings and the accompanying passage of resolutions of support for the president in cities throughout the Northeast and mid-Atlantic areas of the United States. The meetings and resolutions were reported on locally, and those stories, in turn, were reprinted by newspapers in neighboring cities and states. It soon appeared as though the whole nation was rallying around the president and his policies.[52]

And it was not just an impression. Jefferson himself admitted that there had been a real and substantial change in public opinion:

In New York, while Genet was there, the vote of a full meeting of all classes was nine out of ten against him, i.e., for the Proclamation….All the towns Northwardly are about to express their adherence to the proclamation and chiefly with a view to manifest their disapprobation of G[enet]’s conduct. Philadelphia, so enthusiastic for him, before his proceedings were known, is going over from him entirely.

The Federalists were even able to organize a public meeting in support of the president in Richmond, Virginia, normally a stronghold of Republican views.[53]

Stung by this avalanche of resolutions, Madison and James Monroe drafted their own model resolution, designed to reflect what they thought to be “the true and general sense of the people.” Hoping to generate meetings at which resolutions would be passed along the lines proposed by them, the two distributed copies of their draft to allies in various Republican strongholds.[54] A more resigned Jefferson, however, had warned them that Genet’s behavior made it imperative that Republicans “abandon” him “entirely.” And since the American public’s “desire for neutrality” was now “universal,” there was little room left for the Republican-styled resolutions to differentiate themselves from those that had already been passed. As Stanley Elkins and Eric McKitrick conclude: “Except for matters of shading and emphasis—on the Proclamation and on friendship for the French people—there was now little in substance to choose between Republican resolutions and Federalist resolutions, and Washington benignly welcomed them all.”[55]

With Hamilton’s encouragement, and possible direction, the Federalists won the “war of the resolutions.” By exploiting Genet’s behavior in this revolutionary era fashion, they were able to help shape and solidify public opinion in favor of the president and his policies. Although it is obviously impossible to measure with any precision the effects of this campaign, the short-term political result seems to have been a quiescent legislature. In spite of the fact that the incoming Congress was decidedly more Republican in its make-up than its predecessor, when it did convene in December 1793, it was fully supportive of Washington’s decisions.[56]

The long-term consequence, however, was to make way for a presidency tied to populist politics. With the exception of James Wilson, the Federalists had argued that insulating the chief executive from the tides of popular sentiment and creating an office of some independence was one of the new Constitution’s principal advantages. Putting distance between the office and the demands of popular politics allowed presidents to act, if necessary, against existing opinion for the greater and more permanent good of the country. But, by playing the public card as they had, Federalists were, in James Monroe’s words, “seiz[ing] a new ground whereon to advance their fortunes.[57]

Not all Federalists were sure they had done the right thing. As Rufus King, Federalist senator from New York and organizer of New York City’s own rally, reminded Hamilton, “We have with great trouble established a Constitution, which vests competent powers in the hands of the Executive.” By relying on such “irregular measures” as mass rallies to generate support for the administration, the administration’s friends were legitimating a political stratagem that over time could “destroy the salutary influence of regular government.” In particular, King worried that a reliance on these kinds of efforts had the effect of “render[ing] the magistracy a mere pageant,” implying as they did that the public should have some immediate say in judging the executive’s decisions. Despite his own role in orchestrating the public campaign on behalf of the president, King wondered whether what he had done was “altogether wrong.”[58]

Setting A Precedent

7815319_origThe war between France and Great Britain was the first major crisis faced by the country under the new Constitution. It was a test that the Washington administration helped the nation pass with flying colors. Lacking any congressional guidance, uncertain about public support, and facing unprecedented partisan opposition, the administration was still able to provide the kind of leadership that the Constitution’s architects hoped would result from the creation of an independent and unitary executive office. However, most presidential scholars, when they turn to Washington’s issuance of the proclamation, focus chiefly on the debate over the president’s powers between Pacificus and Helvidius. Given who was involved in the debate and the importance of the arguments themselves, this is certainly understandable. But, as a practical matter, the precedent Washington set by issuing the proclamation and establishing a system of neutrality has less to do with the various claims regarding the meaning of “the executive power” than with the exhibition of the inherent institutional capacity of the office itself.

Washington’s actual exercise of power settled little when it came to the president’s specific authorities. In part, this was because Washington never thought it necessary to provide an extended constitutional justification for his actions and, in part, because both Madison and Hamilton believed that Washington’s actions could be justified under their respective but divergent accounts of “the executive power.” At most, the controversy surrounding Washington’s decision to issue the proclamation generated not one but two “authoritative” interpretations of presidential power, setting a “precedent” of sorts for subsequent debates.

Yet, if no clear precedent was set with respect to the president’s powers, the two competing accounts of “the executive power,” when examined in the context of the politics and policies of the time, do highlight the latent paradoxical character of executive power itself. Madison depicts an executive whose formal authority appears quite limited but who, in certain circumstances and in supposed deference to Congress, can nevertheless wield extensive prerogatives in service of the narrow goal of maintaining the status quo. In contrast, Hamilton, when his words and actions are taken together, offers up a president who is formally powerful but seems weak politically.

Under Hamilton’s understanding of “the executive power,” the president retains broad formal authorities to initiate new policies and to do so without Congress’ sanction. Yet it was precisely Hamilton, the author of this position, who appears most concerned with bolstering the exercise of these discretionary authorities with extra-constitutional, popular support. The treasury secretary might have told himself that this was a one-time effort, which did not involve the president directly, and was justified by the extraordinary dangers and politics of the day. But, the fact remains, Hamilton and his Federalist allies helped open the door to a form of presidential politics that was never quite shut again. Although the attempt to use public opinion in this fashion was bound to happen sooner or later given the underlying republican character of the regime, the surprise is that this precedent was set so quickly and, interestingly, set first by the Federalists and not the Republicans.

Books on the topic of this essay may be found in The Imaginative Conservative Bookstore. Republished with gracious permission of The Political Science Reviewer (Fall 2000).


1. The last two items can found in Toward a More Perfect Union: Writings of Herbert J. Storing, ed. Joseph M. Bessette (Washington, D.C.: AEI Press, 1995), pp. 369-76, 392-94. In the same volume, see also, “The Presidency and the Constitution” (a speech delivered at Beloit College in March 1974), pp. 377-85; and “A Proposal for a President’s Commission on the Conduct of Government” (submitted to President Gerald Ford in 1975), pp. 386-91.

2. In doing so, Storing seemed to be following the lead of one of his other teachers at the University of Chicago, Leonard White, whose own work moved over time from a concentration on the science of public administration to historical studies of specific American administrations. As Storing noted about White, he “taught best by example rather than by systematic theoretical exposition.” “Leonard D. White and the Study of Public Administration,” in Toward a More Perfect Union, 351.

3. Papers of Thomas Jefferson, ed. John Catanzariti (Princeton, N.J.: Princeton University Press, 1992), vol. 25, p. 518; and Writings of George Washington, ed. John C. Fitzpatrick (Washington, D.C.: Government Printing Office, 1931-1944), vol. 32, pp. 415-16.

4. Papers of Thomas Jefferson, vol. 25, pp. 568-70; and Writings of George Washington, vol. 32, pp. 430-31.

5. Madison to Jefferson, June 13, 1793, in Papers of Thomas Jefferson, vol. 26, pp. 272-73; see also Madison to Jefferson, June 19, 1783, and James Monroe to Jefferson, June 27, 1793, ibid., pp. 324 and 382.

6. See, for example, “An Old Soldier” (May 22, 1793), “Veritas” (June 1, 5, 8, 12, 1793), and “Brutus” (June 6, 1793) in National Gazette. See also the unsigned essay written by Hugh Brackenridge, Pennsylvanian Republican, which, in addition to criticizing the proclamation, raised the question of whether it was “constitutional” for Washington to “declare the disposition of the people with regard to war” when the power to declare such resides “in the Congress” under the Constitution. Life and Writings of Hugh Henry Brackenridge, Claude Milton Newlin, ed. (Princeton, N.J.: Princeton University Press, 1931), p. 132.

For an overview of the opposition’s reaction to Washington’s decision, see Donald H. Stewart, The Opposition Press of the Federalist Period (Albany, N.Y.: State University of New York Press, 1969), pp. 147-49; and Stanley Elkins and Eric McKitrick, The Age of Federalism (New York: Oxford University Press, 1993), pp. 342 and 356.

7. Papers of Alexander Hamilton, vol. 15, pp. 33-43, 55-63, 65- 69, 82-86, 90-95, 100-06, 130-35. The essays were published in Philadelphia’s Gazette of the United States between June 29 and July 27, 1793.

8. Ibid., pp. 38-39. Pacificus eases his readers into this broad reading of “the executive power” by arguing initially that the authority to issue a proclamation of this sort cannot be said to belong to either the legislative or judicial branch since its substance is “foreign” to their normal activities: enacting laws and deciding cases. By default, then, the power must be the executive’s. In support of this view, Pacificus points to the fact that specific, widely accepted presidential tasks (such as, acting as the organ of intercourse with other states, or functioning as commander-in-chief) reflect this broader view of executive power, one consistent with the “general theory and practice” of separation of powers. Only after preparing his readers in this way does Pacificus conclude with his bolder argument about the extent of “the executive power” being vested with the president by the Constitution’s Article II.

9. Ibid., pp. 39-41. Pacificus admits that the judgment being exercised in this instance is “similar” to the one Congress would make in determining “whether the Nation be under the obligation to make war or not” as it exercises its own power to “declare war” or not. And because each branch is “free to perform its own duties” as it sees fit, the potential exists, Pacificus argues, for the president’s administration of the country’s foreign affairs to overlap and potentially conflict with Congress’ power to declare war. In certain instances, then, this “division of [the] Executive Power” between the president and Congress will give rise to a system of “concurrent authority” in matters relative to war and peace. Ibid., pp. 40-42.

10. Ibid. p. 36. Pacificus’ first argument rested on his contention that the 1778 treaty was wholly defensive in nature and that France, by declaring war on Great Britain and announcing its intent to help overthrow existing royal governments, had forfeited its right to call on the United States to help defend its island possessions. The focus of the remaining essays is on disputing the opposition’s claim that it was either in the United States’ interest to join France in an active alliance or the country’s duty to do so given the assistance Paris had provided the United States in its war of independence. For the actual terms of the treaty see, Treaties and Other International Acts of the United States of America, Hunter Miller, ed. (Washington, D.C.: Government Printing Office, 1931), vol. 2, pp. 35-41.

Although Pacificus became the most famous defense of the president’s proclamation, it was not first. In late April and early May, John Quincy Adams (writing as “Marcellus”) authored a series of essays for Boston’s Columbian Centinel. Marcellus argued that the United States guarantee to protect the islands was no longer binding given the fact that the treaty had been signed with a government that no longer existed and given the behavior of the new government. Marcellus also suggested that the United States was not bound by the treaty’s terms because to fulfill the guarantee would result in the U.S. exposing itself to possible destruction by the combined arms of France’s enemies, violating a “law of nature” that takes precedence over any prior “human legislation, or compact.” The Writings of John Quincy Adams, Worthington C. Ford, ed. (New York: Macmillan Co., 1913), vol. 1, pp. 135-46.

11. See Jefferson’s letters to Gouverneur Morris and James Monroe, Papers of Thomas Jefferson, vol. 25, p. 576, and vol. 26, p. See also, Edward Carrington’s letter to Alexander Hamilton about the “public mind of Virginia,” Papers of Alexander Hamilton, p. 347. Although these letters reflect nothing more than reasonable guesses about the state of public opinion at the time, the fact that Jefferson and others believed them to be generally accurate helps explain their behavior.

12. See, for example, the following essays published in the spring of 1793 in the National Gazette: “A Democrat” (May 22), “An Old Soldier” (May 22), and “An American” (June 12). Although the desire to avoid involvement in the war was prevalent among Republican writers, it was not universal. Hugh Brackenridge, for example, suggested in an unsigned essay (May 15), also run by the National Gazette, that the U.S. “assist” France by attacking Britain’s North American possession. Life and Writings of Hugh Henry Brackenridge, pp. 131-32.

13. In addition, both the French Government and many Americans argued that it was not in France’s immediate interest to have the United States enter the war on its side. By remaining a friendly “neutral,” the United States could serve as a reliable source of supplies to France during the war and a possible base of operations for French privateering against British shipping. On these and related points, see the essays published in the National Gazette cited above; Jefferson to Morris (April 20, 1793) in Papers of Thomas Jefferson, vol. 25, p. 576; Elkins and McKitrick, Age of Federalism, pp. 332-35; and Charles Marion Thomas, American Neutrality in 1793: A Study in Cabinet Government (New York: AMS Press, 1967), pp. 63-64.

14. See “Jefferson’s Opinion on the Treaties with France,” Papers of Thomas Jefferson, vol. 25, pp. 597-618; and Jefferson to Madison (June 23), Jefferson to Monroe (July 14), and Jefferson to Madison (August 11), ibid., pp. 346, 501, and 649.

Both supporters and critics of the proclamation complained that its language lacked precision. In a letter to Hamilton, Rufus King, New York Federalist senator, wondered whether the absence of the “word Neutrality—might not confuse the public and lessen the “force” of the proclamation. For the critic “Veritas,” however, the fact that proclamation made no mention of the treaties with France at all left open the possibility that Washington no longer considered the treaties in force. Jefferson wrote Madison that he thought the proclamation was “badly drawn” and, as a result, opened itself up to being read more broadly than was intended. See Life and Correspondence of Rufus King, Charles King, ed. (New York: G. P. Putnam’s Sons, 1894), vol. 1, p. 439; “Veritas” (June 1, 1793), National Gazette; and Jefferson to Madison (August 11, 1793), vol. 25, p. 649.

15. Jefferson to Madison (July 7, 1793), Papers of Thomas Jefferson, vol. 26, pp. 443-44. Jefferson asked Madison to “take up your pen, select the most striking heresies, and cut him to pieces in the face of the public.” However, Jefferson does not specify what “heresies” he has in mind.

16. Papers of James Madison, Thomas A. Mason, et. al., eds. (Charlottesville, Va.: University Press of Virginia, 1985), vol. 15, pp. 66-73, 80-87, 95-103, and 106-11. The Helvidius essays were published, like those of Pacificus, in Philadelphia’s Gazette of the United States. They appeared in the Gazette’s August 24, 31, September 7-11, and 14 editions.

Madison never offered an explanation of why he chose the pseudonym “Helvidius.” Marvin Meyers suggests that Madison was probably drawing on the “admiring portrait of [the Roman noble] Helvidius Priscus” by Tacitus. Helvidius was exiled by Nero, and, upon returning to Rome, he fought to resurrect some of the Senate’s lost authority, including the authority to regulate the affairs of the Treasury. The Mind of the Founder: Sources of Political Thought of James Madison ( Hanover, N.H.: University Press of New England for Brandeis University Press, 1981), p. 200.

17. Papers of James Madison, vol. 15, p. 69. Although Pacificus and Helvidius differ on the nature of “the executive power,” they agree that the vesting provision which begins Article II is a substantive grant of power.

After summarizing the argument of Pacificus on executive power, Helvidius asks, rhetorically, what possible sources Pacificus could have drawn on to support his views. In response to his own question, Helvidius suggests the “writers, of authority, on public law,” meaning Locke, Montesquieu, and Blackstone. But then Helvidius rejects their authority in this instance by claiming that their views of executive power had been “warped” by their attachment to the English model, and only Pacificus’s own attachment to that model could explain his willingness to equate, as the “British commentators” do, “royal prerogatives” with “Executive prerogatives.” [Ibid., pp. 68 and 72.] Instead, Madison argues that the “best guides” in these matters are “our own reason” and the text of “our own constitution.” And, under “our own reason,” he includes the work of those Americans who had some “influence in conciliating the public assent to the government in the form proposed.” Machson then concludes by quoting passages from The Federalist (No. 69 and No. 75, each authored by Hamilton) to support the case that the specific foreign affairs powers given the president (such as, the power to receive ambassadors and make treaties) do not reflect the broader notion of executive power put forward by Pacificus. Ibid., pp. 72-73, 97, and 109.

18. Ibid., p. 69. However, once the decision has been made to go to war, its execution resides with “the competent authority.” Just as the legislature enacts laws and the executive administers them, Congress may declare war and the president, as commander-in-chief, is responsible for its conduct. Ibid., pp. 69-71.

19. Since Helvidius does not consider the powers to declare war and make treaties to be executive in nature (and, hence, exceptions to the general grant of “the executive power” found in Article II) he rejects the idea of “concurrent” authorities put forward by Pacificus. To the contrary, “executive pretensions” “must narrow” once it is understood “that the powers of making war and treaty” are “substantially of a legislative, not an executive nature.” And because the power to declare war is different in nature and distributed to a distinct branch of government, this power and the judgments associated with its exercise reside “fully and exclusively” with the Congress. In matters of war and peace, then, it appears “the executive has no other discretion than to convene and give information to the legislature on occasions that may demand it.” Ibid., pp. 69, 86, and 108. See, however, note 36 below.

In rejecting the idea of concurrent authorities, Helvidius adopts a relatively rigid view of the doctrine of separation of powers and promotes, as a principal element in maintaining that separation, a presidential deportment that is defined by its overt deference to Congress. [Ibid., pp. 80-87, 106-07.] If Pacificus had chosen to respond to Helvidius, he might well have quoted passages from those Madison-authored essays of The Federalist ( Nos. 47-51) which suggest that a strict adherence to the doctrine is a unlikely and which, in turn, stress the head-butting between the branches as the key means for maintaining the Constitution’s own adoption of the doctrine.

20. Of course Helvidius’s constitutional argument had substantive policy implications. By crafting the argument as he had, Helvidius left open the status of the alliance between France and the United States. With expectations that the new Congress-scheduled to meet in December-would be more sympathetic to Republican concerns, it was important that its say in these matters be kept open. See Jefferson to Thomas Pinckney (December 3, 1793), Papers of Thomas Jefferson, vol. 25, p. 696; see also, Forrest McDonald, The Presidency of George Washington (Lawrence, Kans.: University Press of Kansas, 1974), pp. 106-07.

21. Washington never repudiated Hamilton’s defense of his actions. Jefferson, however, claimed that the president was “uneasy” with Pacificus’s arguments. But about precisely what Washington was uneasy is not known. Papers of Thomas Jefferson, vol. 26, p. 606; and The Complete Jefferson, Saul K. Padover, ed. (New York: Duell, Sloan, and Pearce, 1943), p. 1268. For other accounts by Jefferson of Washington’s intent with respect to the proclamation, see Papers of Thomas Jefferson, vol. 26, pp. 649-50; and Complete Jefferson, pp. 1266-67.

Much of what we know about Washington’s views on the proclamation are found in letters or memoranda drafted by Jefferson, especially in his notes (The Anas) of the cabinet meetings. But The Anas was not published until 1818, a quarter century after the proclamation had been issued. And, as Jefferson makes clear in his introduction, the decision to publish his notes was taken with a specific purpose in mind, correcting the inaccuracies of John Marshall’s The Life of Washington. Jefferson was especially concerned with correcting the Chief Justice’s account “of the period immediately following the establishment of the present constitution.” In his judgment, Marshall’s Federalist “party feelings had led him to misinterpret the official papers he had been given access to. By publishing his notes of the cabinet meetings, Jefferson hoped to rectify the record and provide the American public with a better understanding of the Republican Party’s origins and, in particular, the party’s effort “to preserve the legislature pure and independent of the executive…and not permit the constitution to be construed into a monarchy.” Before publishing his notes, Jefferson admitted that he had edited them and given them “a calm revisal.” See The Complete Jefferson, pp. 1204-05, 1211.

Jefferson’s own views about the proclamation are not free of ambiguity. At the cabinet meeting in which it was decided to issue the proclamation, Jefferson only records that it was agreed to unanimously. Unlike at other cabinet sessions in which serious disputes arose and were recorded by Jefferson, in this instance, his record makes no mention of a debate. The only evidence that a debate took place is found in letters Jefferson wrote to Madison and Monroe late in June and mid-July, two months after the proclamation had been issued and following letters from them complaining about Washington’s decision. In fact, prior to receiving Monroe’s letter, Jefferson had written Monroe a note which downplayed any notion that there was a serious split within the cabinet on policy. In addition, prior to receiving Madison’s letter, Jefferson had twice written him and described the administration’s policy as one of “neutrality.” Only after Jefferson had received Madison’s letter did he suggest that there had been a debate in the cabinet and that he, Jefferson, had fought to keep the word “neutrality” out of the proclamation. See Elkins and McKitrick, Age of Federalism, p. 338; Dumas Malone, Jefferson and the Ordeal of Liberty (Boston, Mass.: Little, Brown, 1962), p. 72; Papers of Thomas Jefferson, vol. 25, p. 619, vol. 26, pp. 25-26, 272-73, 323-24, 346, 381-82, 510, and 651- 52. Compare Jefferson’s letter to Madison (March 24, 1793), vol. 25, p. 442.

22. See The Journal of the Proceedings of the President, 1793-1797, Dorothy Twohig, ed. (Charlottesville, Va.: University Press of Virginia, 1981), pp. 117, 118, and 120. See also the letters Washington sent out to various cities and counties that had passed resolutions in support of his policies, in particular, letters to New Castle County, Delaware, and Chester County, Pennsylvania. [Writings of George Washington, vol. 33, pp. 60, 85-86.] See also Washington’s letter ( May 6, 1793) to Governor Henry Lee of Virginia in which the president describes the proclamation as “announcing the disposition of this Country towards the Belligerent Powers.” Ibid., vol. 32, p. 449. However, compare the above letters with the one sent by Washington to Frederick County, Virginia, in response to its resolution of support. Ibid., vol. 33, pp. 155-56.

23. Annals of Congress ( December 6, 1793) 4:138.

24. Irving Brant, James Madison: Father of the Constitution, 1787-1800 ( New York: Bobbs-Merrill, 1950), p. 386.

25. Ibid

26. Annals of Congress ( December 9, 1793), 4:17-18.

27. See Papers of Alexander Hamilton, vol. 15, pp. 42-43; and the series of essays by John Marshall—writing as “Aristides” and “Grachus,” and written in response to Monroe’s “Agricola” essays—that appeared in the Fall of 1793 in the Virginia Gazette. See, especially, October 16, 1793, edition of the Virginia Gazette.

28. For the political background to Washington’s decisions, see Elkins and McKitrick, Age of Federalism, pp. 341-52, 354-65; and Harry Amon, “The Genet Mission and the Development of American Political Parties,” Journal of American History, vol. 52 (March 1966), pp. 725-41; see also, Abraham D. Sofaer, War, Foreign Affairs and Constitutional Power: The Origins (Cambridge, Mass.: Ballinger, 1976), p. 116.

29. Thomas, American Neutrality, pp. 91-117.

30. The proclamation had warned U.S. citizens “to avoid all acts and proceedings whatsoever, which might in any manner tend to contravene” the government’s intention to pursue a policy “friendly and impartial towards the belligerent powers.” The proclamation then concluded by stating that the president had “given instructions” to the appropriate officials “to cause prosecutions to be instituted against all persons, who shall, within the cognizance of the Courts of the United States, violate the laws of nations, with respect to the powers at war, or any of them.” Writings of George Washington, vol. 32, pp. 430-31.

31. Genet, France’s ambassador to the United States, complained that the prohibition was unjustified in light of the fact that there was no law or treaty that specifically prohibited individuals from enlisting in the service of France or its ships. But the administration’s position was that the United States was, by treaty, at peace with several of the nations at war with France. Hence, it was a violation of U.S. law for U.S. citizens to engage in activities contrary to those accords. Chief Justice John Jay and Justice James Wilson endorsed the administration’s position in their charges to local grand juries who were reviewing cases in which individual citizens had accepted commissions aboard French privateers.

In one widely reported case (Gideon Henfield), the local jury ignored these instructions. It appears they did so out of general sympathy for the French cause and because they were not inclined to see Henfield go to jail for violating something that was, in their mind, less a law than an executive dictate. Despite this setback, the administration continued its efforts to enforce the prohibition on U.S. citizens enlisting in the service of any of the belligerents. See Thomas, American Neutrality, pp. 165-88; State Trials of the United States During the Administrations of Washington and Adams, Francis Wharton, ed. (New York: Burt Franklin, 1970, originally published, 1849), pp. 49-77, 83-88; and “Brutus” (June 8, 1793) in the National Gazette (August 31, 1793).

32. Thomas, American Neutrality, pp. 119-37.

33. See Charles S. Hyneman, The First American Neutrality (Urbana, Ill.: University of Illinois, 1934; Illinois Studies in the Social Sciences, vol. 20), pp. 77-82; and John Alexander Carroll and Mary Wells Ashworth, George Washington: First in Peace ( New York: Charles Scribner’s Sons, 1957), p. 111.

34. For an overview of these affairs, see Elkins and McKitrick, Age of Federalism, pp. 330, 334, 341-54, and 366-67; and Thomas, American Neutrality, pp. 125, 134-42, 167-70, 174, and 207-33.

35. Although Helvidius concentrates on distinguishing between “the executive power” and the power of Congress “to declare war” and the Senate “to make treaties,” he does not address the full range of authorities that lie between them. As Robert Scigliano has pointed out, after Helvidius presents his minimalist account of the president’s executive power, he “does not,” as one might expect, turn and “claim the powers of war and management of foreign affairs to be legislative in nature.” Helvidius only claims that the authorities to declare war and make treaties are “substantially” (which is, to say, not simply) legislative in character. And, from this, Scigliano argues, Helvidius “infers” only a moderate amount of additional power for Congress to wield: specifically, the “rights to judge the causes of war and to unmake or suspend treaties. What Helvidius leaves open is the allocation of the remaining national security authorities and the day- to-day management of the country’s foreign affairs. Robert Scigliano, “The War Powers Resolution and the War Powers,” in The Presidency and the Constitutional Order, Joseph M. Bessette and Jeffrey Tulis, eds. (Baton Rouge, La: Louisiana State University Press, 1981), pp. 129-30.

36. As Ruth and Stephen Grant have written, “Madison did not fear the strength of the president within his sphere as long as that sphere was properly contained.” However, as they also point out:

the executive function of administration has the potential for a dangerous expansion under certain circumstances. The executive function is circumscribed by law, but it also supplies the defects of law within those bounds by applying a general rule to particular circumstances. Its discretionary character in the ordinary conduct of executive business is not easily distinguishable in kind from expanded discretion under conditions where the variety, number, irregularity, or pressing character of the particulars render them ungovernable by a general rule.

Ruth Weissbourd Grant and Stephen Grant, “The Madisonian Presidency,” in The Presidency in the Constitutional Order, p. 53.

37. For an overview of the French government’s sometimes unrealistic and somewhat contradictory expectations about what role the United States might take during this conflict, as evidenced by its instructions to Genet, see Elkins and McKitrick, Age of Federalism, pp. 330-35. According to Jefferson, Genet held the view that America’s guarantee to defend France’s island possessions was not tied to a determination of whether the war was defensive or not. “His doctrine is that…the moment France was engaged in war, it was our duty to fly to arms as a nation.” Papers of Thomas Jefferson, vol. 26, p. 653.

38. A principal complaint by Helvidius about the broad claim of executive authority made by Pacificus is that it opened the way for a president in practice to interfere with, and perhaps even undermine, Congress’ authority to fully exercise its judgment about war and peace. Yet, as Helvidius notes, the president’s duty to maintain the status quo-in this case, peace-until Congress decides otherwise may also lead him to take actions that result in offending some other state. Avoiding war from one quarter, he admits, may “in some cases…incur war” from another. Papers of James Madison, vol. 15, p. 86.

39. Quoted in Thomas, American Neutrality, p. 229.

40. See Papers of Thomas Jefferson, vol. 25, pp. 569 and 607; and vol. 26, pp. 615 and 627.

41. Ibid., vol. 26, pp. 463-65. Genet’s belief that Congress was “the sovereign” was connected to his and the French government’s failure to understand how large a break the new American constitution was from the Articles of Confederation, a form of government that had no separate executive and only a governing congress. Hence, Genet was formally designated by Paris as minister to “Congrēs des Etats Unis de Amērique” and instructed to negotiate a new commercial accord with the “Ministres du Congres.” Ibid. , p. 686.

Jefferson probably reinforced this view when, in order to delay discussions about a new treaty, he told Genet negotiations would have to wait until the new Senate could meet. From this, Genet apparently gained the impression that Senate was ultimately in charge of foreign affairs, and the president a subordinate minister. In addition, Jefferson was perhaps too open with Genet about cabinet politics and Republican hopes to control the new Congress. As a result, when Genet first read Veritas’s attack on the proclamation and Washington in the National Gazette, he was convinced it had been authored by the secretary of state himself. See Elkins and McKitrick, Age of Federalism, pp. 343-44; and Papers of Thomas Jefferson, vol. 26, pp. 749-50.

42. Ibid., p. 465. Jefferson’s response to Genet about the president’s authority is not as sweeping as it first appears. According to Jefferson’s account of the exchange, he does not claim that the president retains a general authority over foreign affairs by virtue of his being vested with “the executive power.” A president’s preeminence in this instance rests on his constitutional duty to ensure the execution of all U.S. laws. According to Jefferson, regarding “all the questions which had arisen” over how the treaties between the two states were to be interpreted, Washington’s judgment was final since it was his responsibility to carry out the laws of the land which, under the Constitution, includes treaties.

But, as the secretary of state knew, not every question related to the treaties had arisen. Still outstanding was the question of America’s guarantee to France to protect its West Indian possessions. It is possible that Jefferson had this issue in mind when he admitted to Genet that, despite the president’s normal supremacy in these matters, there may be some points in a treaty’s execution—albeit “very few”—that Congress “could take notice of.”

See also Jefferson’s draft letter to Genet of mid-July, which attempts to instruct him on the president’s place in the constitutional order. The letter was never sent. Genet’s increasingly impolitic behavior forced the administration to turn from deliberating about how to educate him on the appropriate protocol for dealing with the U.S. government to requesting, instead, his recall by Paris. Ibid., p. 514.

43. See Papers of Thomas Jefferson, vol. 26, pp. 484-85, 520, and 524-31.

44. See Hamilton’s opinion to Washington (May 15, 1793) in Papers of Alexander Hamilton, vol. 14, p. 459. Given the small circle of government officials that characterized the early years of the new government, it is no surprise that the administration knew in advance that the Court’s answer would likely be no. Papers of Thomas Jefferson, vol. 26, pp. 537 and 607.

45. In Jefferson’s initial draft of the questions to be submitted to the, Court, his last was: “Which of the above prohibitable things are within the competence of the President to prohibit?” When the cabinet met to review Jefferson’s list, along with one drafted by Hamilton, it cut a number of Jefferson’s questions, including the last. [Ibid., pp. 525-26 and 531.] In addition, in the memorandum he prepared on the cabinet’s decision (July 12) to seek the Court’s counsel, his initial draft stated that the administration was asking the Court to “take into consideration certain matters of public concern.” In editing the memorandum, Jefferson cut the first three words (“take into consideration”) and replaced them with a new phrase (“give advice on”). The edit suggests a desire to maintain the view that the cabinet, in seeking the Court’s assistance, was not conceding any of its own authority. Ibid., pp. 484-85.

46. The Court formally responded to Washington’s request for advice on August 8. It argued that the “Lines of Separation drawn by the Constitution between the three Departments of Government—their being in certain respects checks on each other—and our being a Court of last Resort” precluded it from responding favorably to the president’s request. The Court also suggested that the provision in Article II allowing the president to demand opinions from his department heads evidenced a desire on the part of the Constitution’s architects to “purposely” limit such requests “to executive departments.” Papers of Thomas Jefferson, vol. 26, pp. 524-26.

47. As Donald Stewart has suggested:

Genet’s most lasting influence was to be found in the rise of the Democratic Societies, so suggestive to Federalists of those in Paris. These were by no means entirely the creation of the French minister, but it is significant that they sprung up almost simultaneously with his arrival and that they uniformly and enthusiastically supported him. They appeared suddenly, and Federalists who had been inclined to smile at popular manifestations of Francophile frenzy began to frown in worry or to protest harshly. Jacobin societies, not unlike these organizations, had come into being just prior to the uprising in France …. Clearly, [the societies] constituted a political threat of no mean import, and they talked of coordinating their efforts through correspondence committees as had American revolutionaries two decades earlier.

The Opposition Press, p. 169.

48. On this issue, see Forrest McDonald, Alexander Hamilton: A Biography ( New York, N.Y.: Norton, 1979), p. 282; Stewart, The Opposition Press, p. 151; Papers of Thomas Jefferson, vol. 26, pp. 601-603; and Harry Amon, “The Genet Mission and the Development of American Political Parties,” in Journal of American History, vol. 52 (March 1966), pp. 726-27.

Elkins and McKitrick argue in The Age of Federalism that the “Proclamation was by and large favorably received, for two fairly obvious reasons. One was the desire for peace was all but universal….[and] the other reason was the tremendous prestige of Washington. (p. 356). But this assessment was not widely understood to be the case by the president’s supporters in the days immediately following the proclamation’s issuance, as evidenced by the materials Elkins and McKitrick themselves provide in their account of this period.

49. See Papers of Thomas Jefferson, vol. 26, pp. 448 and 687-88. For an overview of the partisan debate associated with this incident, see Stewart, The Opposition Press, pp. 162-64.

50. As Madison wrote Jefferson, the plan of the Federalist “cabal” was “to drag before the public the indiscretions of Genet; and turn them & the popularity of the P[resident] to the purposes driven at.” See Papers of James Madison, vol. 15, p. 75.

51. Papers of Thomas Jefferson, vol. 26, pp. 598 and 652; Papers of Alexander Hamilton, vol. 15, p. 145. See also, Elkins and McKitrick, Age of Federalism, pp. 361-62; McDonald, Alexander Hamilton, pp. 280-81; Stewart, The Opposition Press, p. 162; and Ammon, “The Genet Mission,” pp. 728-29.

52. A resolution typically made three points: first, it condemned any effort on the part of a foreign state’s representative to involve himself in internal U.S. affairs; second, it expressed confidence in the president; and, third, it endorsed the policy of neutrality. See Ammon, “The Genet Mission,” pp. 729-30; and McDonald, Alexander Hamilton, p. 281.

53. Papers of Thomas Jefferson, vol. 26, p. 651. See also Ammon, “The Genet Mission,” pp. 730-32. Papers of James Madison, vol. 15, p. 79. Madison’s goal, he told Jefferson, was to generate “an authentic specimen of the Country temper.” Most of the resolutions up to that point had come from northern cities. Madison was concerned that they would be taken to represent public opinion in general. He thought the task at hand was “calling out the real sense of the people” by having additional resolutions passed along the lines drafted by him and Monroe. See also the editor’s note, “Resolutions on Franco-American Relations,” ibid., pp. 76-79; McDonald, Alexander Hamilton, p. 281; and Ammon, “The Genet Mission,” p. 732.

55. Papers of Thomas Jefferson, vol. 26, pp. 651-52; and Elkins and McKitrick, Age of Federalism, pp. 364-65.

56. See Sofaer, War, Foreign Affairs and Constitutional Power, p. 116.

57. Monroe to John Breckenridge (August 23, 1793), quoted in Ammon, “The Genet Mission,” pp. 733-34.

58. King to Hamilton (August 3, 1793), in Life and Correspondence of Rufus King, p. 493.

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Published: Apr 30, 2015
Gary J. Schmitt
Gary Schmitt is the co-director of the Marilyn Ware Center for Security Studies at AEI and the director of AEI’s Program on American Citizenship. Mr. Schmitt is a former staff director of the Senate Select Committee on Intelligence. He was executive director of the President’s Foreign Intelligence Advisory Board during President Ronald Reagan’s second term. Some of his books include Of Men and Materiel: The Crisis in Military Resources (AEI Press, 2007), to which he was a contributing author and editor with Tom Donnelly; Silent Warfare: Understanding the World of Intelligence (Brassey’s, 2002), coauthored with Abram Shulsky and now in its third edition; and U.S. Intelligence at the Crossroads: Agendas for Reform (Brassey’s, 1995), a coedited volume to which he is a contributing author.
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