Notes on France and England,

Editorial Note: Jefferson’s Opinion on the Treaties with France

Thomas Jefferson’s carefully qualified opinion in favor of the continued validity of the 1778 treaties of alliance and commerce with France was designed to resolve a neutrality question of fundamental importance raised by Alexander Hamilton in response to the arrival in Philadelphia early in April 1793 of reliable intelligence of the French Republic’s declaration of war on Great Britain and the Netherlands. This development gave a maritime dimension to a war that hitherto had been confined to the European continent and emboldened Hamilton to question whether continued adherence to the French treaties was compatible with the preservation of American neutrality.

In addition to his general antipathy to revolutionary France, Hamilton was concerned that three provisions of the treaties might lead to hostilities with Britain, an eventuality he dreaded because of the dependence of his financial system on the revenues generated by Anglo-American trade. Article 11 of the treaty of alliance obliged the United States to guarantee French possessions in America and thus might lead to a request from France for American assistance in defending the French West Indies against the British. At the same time, French efforts at sea against Britain and her allies stood to benefit immensely from two provisions of the commercial treaty—Article 17, which gave French warships and privateers the right to bring enemy prizes into American ports while denying this right to those of her enemies, except in carefully defined emergencies, and Article 22, which forbade nations at war with France to fit out privateers, sell prizes, or purchase more than a minimum amount of provisions in American ports without specifying whether France herself could exercise these rights (Miller, Treaties, ii, 16–17, 19–20, 39–40; Syrett, Hamilton, xv, 55–63, 65–9). Although Jefferson and Hamilton both resolutely opposed any American military involvement in the European conflagration, the debate generated by Hamilton’s criticisms of the French treaties exposed for the first time the enormous gulf between the two secretaries over the form American neutrality should take. Whereas Jefferson wished to honor the treaties with France while avoiding any of the provisions in them that might provoke British retaliation, Hamilton sought to avoid war with Britain by effectively nullifying the French treaties. This conflict between a policy that worked to the advantage of the French and one that favored the British remained at the heart of the recurring disputes between Jefferson and Hamilton over the conduct of American neutrality in 1793.

With characteristic boldness, Hamilton wasted no time in launching a frontal attack on the French treaties. On 18 Apr. 1793—only a day after hurriedly returning from Mount Vernon to Philadelphia in order to put the nation on a neutral footing in the face of the expanded European war—President Washington submitted to Cabinet members thirteen Hamilton-inspired questions on American neutrality that among other things asked them in effect to consider whether the United States could honor the treaties with France and still be truly neutral (Questions on Neutrality and the Alliance with France, 18 Apr. 1793, and note, enclosed in Washington to the Cabinet, 18 Apr. 1793). After deciding during a 19 Apr. meeting that the President should issue a proclamation of neutrality and receive the French Republic’s first minister to the United States, Edmond Charles Genet, the Cabinet turned its attention to the momentous issue raised by Hamilton. Dividing along sectional lines, it debated whether the President should receive Genet conditionally or unconditionally. Hamilton and Secretary of War Henry Knox supported a conditional reception, arguing that the downfall of the French monarchy and the uncertain future of the French Republic created a situation sufficiently dangerous to American interests to justify Washington in informing Genet at the time of his reception that the United States reserved the right to suspend or renounce the treaties with France. Unconditional reception, they maintained, would amount to an irrevocable decision that the treaties should remain in force and, further, be tantamount to forming a new treaty with a guarantee clause that would make the United States a belligerent. Jefferson and Attorney General Edmund Randolph, in contrast, contended that the treaties were valid and favored an unconditional reception of Genet. But Randolph wavered when Hamilton offered to produce a citation from that formidable authority on international law, Emmerich de Vattel’s Le Droit des Gens (1758), in support of his position that a treaty might under certain circumstances be suspended or renounced after a change of government by one of the contracting parties. The Attorney General thereupon announced that he wished to prepare a formal written opinion of his views on the status of the French treaties, and so the Cabinet adjourned without resolving the question. When it reconvened to consider neutrality again on 22 Apr. 1793, Randolph’s opinion was still not ready and the Cabinet again adjourned without deciding the treaty issue. It was probably either at this meeting or the one of the 19th that the President requested the other Cabinet members to follow Randolph’s suggestion and submit separate written statements of their views on this highly contentious question (Cabinet Opinion on Washington’s Questions on Neutrality and the Alliance with France, [19 Apr. 1793], and note; Notes on Washington’s Questions on Neutrality and the Alliance with France, [6 May 1793]; Washington, Journal, 114, 117; the President’s request for written Cabinet opinions is cited in the opening sentence of Document iv below).

Despite the two broadly divergent lines of argument in the 19 Apr. Cabinet meeting, in their written opinions Hamilton and Knox shared two assumptions with Jefferson and Randolph. The first, that the people of a nation are the source of authority and may change their form of government, was a postulate that Jefferson, with the President’s approval, had officially communicated to the American minister in London in December 1792 and affirmed to the American minister in France in connection with the resumption of debt payments to that country in March 1793 (Notes on the Legitimacy of Government, 30 Dec. 1792; TJ to Thomas Pinckney, 30 Dec. 1792; TJ to Gouverneur Morris, 12 Mch. 1793). They were also united in the assumption that the French treaties were agreements between nations rather than heads of state—that is, that they were, in eighteenth-century terms, real as opposed to personal treaties. To a significant degree, therefore, the question on which the President’s advisers divided was the extent to which the present situation of France satisfied the conditions under which Vattel and other authorities on international law would sanction suspension or renunciation of the treaties by the United States.

Jefferson was the first Cabinet member to submit a written opinion on the French treaties to the President. He prepared his rebuttal of Hamilton’s arguments in favor of suspending or renouncing these compacts with unusual care, as befitted the magnitude of the stakes involved. The French alliance was the cornerstone of Jefferson’s diplomacy, and it was highly unlikely that this partnership could survive an American suspension of the treaties at a time when the French Republic was engaged in a mortal struggle with most of the great powers of Europe. France, in Jefferson’s view, was America’s only reliable European ally, the only one she could count on as an effective counterweight to a British nation he deeply distrusted on ideological and diplomatic grounds. At the same time, he felt a profound affinity for revolutionary France, seeing in her the champion of republicanism and liberty and fearing that the triumph of her royalist and aristocratic enemies would further the allegedly monarchical designs of his own Federalist adversaries. Yet much as Jefferson hoped that France would triumph in the current war, he was unalterably opposed to any American military involvement in that conflict. He realized that it would be more advantageous for the United States to serve France as a neutral carrier of provisions than as an active belligerent and thus looked forward to the great economic benefits he expected American farmers, merchants, and shippers to reap by virtue of the nation’s neutrality. Hence he wished neither to risk war with France by nullifying the alliance nor to provoke Britain by fulfilling some of the more inconvenient provisions of the French treaties.

In order to present a carefully balanced argument to the President, Jefferson first made a rough outline of the principles he intended to invoke and the treaty obligations he would address in his opinion on the questions of neutrality and the treaty of alliance (Document I below) and then wrote a more detailed outline of the opinion itself, compiling the arguments that would sever link by link the chain of reasoning employed by Hamilton during the Cabinet meeting of the 19th (Document ii below). Only then did he write the opinion in its final form, dealing therein with both treaties, and submit it to Washington on 28 Apr. 1793 with a covering letter of that date responding to other neutrality questions the President had asked the Cabinet to consider ten days before (Documents iii and iv below; Washington, Journal, 124). The opinion is especially noteworthy for the vigor and cogency of its argument in favor of the proposition that the treaties with France remained in force despite the overthrow of the Bourbon monarchy and the establishment of the French Republic. Although Jefferson tacitly acknowledged Hamilton’s theoretical point that a change of government in France could justify the United States in renouncing or suspending the treaties if this alteration made continued adherence to these agreements extremely dangerous to American interests, he assembled evidence from authorities on international law to show that the doctrine held only in extraordinary cases—analyzing Vattel in particular to demonstrate that Hamilton had quoted the Swiss jurist out of context—and vigorously denied that matters had reached this critical point in France. In this connection, Jefferson’s opinion is also remarkable for its effort to minimize America’s treaty obligations by downplaying the likelihood that France would ever invoke the guarantee provision of the alliance treaty and by suggesting that Article 22 of the commercial treaty left the United States free to forbid France, as well as her enemies, to fit out privateers and sell prizes in American ports.

Hamilton and Knox were the next Cabinet members to submit a written opinion to the President. Whereas Jefferson feared that nullifying the French treaties would lead to war with France, they feared that adhering to them would bring on hostilities with Britain; and whereas Jefferson viewed France as the standard-bearer of republican liberty, they viewed her as the harbinger of political license and social chaos. Accordingly, in an opinion written and signed by Hamilton but jointly endorsed by him and Knox in a covering letter to Washington of 2 May 1793, one day before these documents actually reached the President, they advised him to receive Genet but at the same time to inform him that the United States reserved the right to suspend the treaties with France as circumstances dictated. Provisional suspension of the treaties, they argued, was justified on grounds of principle and national interest. Adducing the writings of Vattel and other authorities on international law, they contended that the law of nations gave the United States the right to judge whether circumstances attending the transition from monarchy to republic in France justified suspension of the treaties on the ground that the change in form of government could be highly dangerous and disadvantageous to American interests. The French Republic, they noted, had already set the precedent of repudiating certain treaty obligations entered into by the monarchy and had blemished the sacred cause of liberty with numerous crimes and excesses. By endorsing the treaties before it knew whether the forces of revolution or royalism would finally prevail in the highly unstable political and military situation of France and Europe, the United States would jeopardize its own character and reputation as a nation of “sobriety, moderation, justice, and love of order,” thereby implicating itself as an associate regardless of the outcome. Honoring the treaties, with their “stipulations of military succours and military aids in certain cases which are likely to occur,” they argued, would also constitute a serious breach of neutrality and might even bring the United States into conflict with France’s enemies, especially Britain. Suspending the treaties, on the other hand, would earn the United States the gratitude of France’s opponents and spare it the humiliation of having to plead military and naval weakness in case France tried to invoke the American guarantee of the French West Indies. Finally, they denied that the decision in March 1793 to resume debt payments to France implied an acknowledgment that the United States intended to fulfill the treaties under the present circumstances (Syrett, Hamilton, xiv, 367–96; Washington, Journal, 126). Despite their ostensible emphasis on the need for suspending the treaties until a stable government was established in France, it seems clear that Hamilton and Knox’s real objective was to break the alliance with France and draw the United States closer to Britain. Hamilton had been looking for such an opportunity since at least 1791, when France was still a monarchy, and as Jefferson and Edmund Randolph pointed out to Washington in their own opinions, the suspension of these agreements while the French Republic was battling for its survival would almost certainly have led to war between France and the United States (Syrett, Hamilton, viii, 43–4).

In the end, the Cabinet member who suggested the desirability of written opinions on the French treaties was actually the last to submit one to the President. Under prodding from Washington, who doubtless wished to settle this matter before Genet arrived in Philadelphia, Attorney General Randolph handed in his opinion on 6 May 1793, the day he completed it. Addressing all of the questions posed on 18 Apr., Randolph, like Jefferson, strongly endorsed the unconditional reception of Genet and the continued validity of the French treaties. A qualified reception, he argued, was not necessary because Genet’s claim to be received did not depend on the treaties and they gained no confirmation from his reception; neither was it expedient, for the right to renounce the treaties would not be impaired by “prudent forbearance” toward an issue that, if not prematurely provoked, might never arise. “Vigilance in government is undoubtedly wisdom,” Randolph advised the President, in an obvious criticism of Hamilton, “but it is equally wise not to create an evil for the gratification of subduing it.” Quoting Vattel at length, Randolph echoed Jefferson’s contention that the treaties could not be invalidated simply because France had changed its form of government, and that present circumstances and future eventualities were insufficient grounds for announcing their provisional suspension. Randolph also followed the Secretary of State in insisting that fidelity to the treaties would be consistent with American neutrality. In view of the naval and military weakness of the United States, Randolph predicted that France would prefer the United States to act as a reliable neutral trading partner rather than as an ineffectual ally. At the same time, he contended, the United States could justifiably refuse to carry out the guarantee provision of the treaty because the French-American alliance was entirely defensive in character, and compliance with this obligation would involve it in a war that would be overwhelmingly disadvantageous to American interests. Randolph also denied that honoring Articles 17 and 22 of the commercial treaty would lead to war with France’s enemies, noting that the United States had entered into this agreement more than a decade before the present European war began, that these articles had been recognized as valid in American commercial treaties with the Netherlands and Prussia (two countries presently at war with France), and that Britain had similar provisions in her own 1786 commercial treaty with France. In contrast to Jefferson, however, Randolph laid greater stress on the diplomatic and political aspects of the treaty question. Not only did he urge Washington to consider that France was America’s most reliable and only proper European ally, but he also warned him that the French cause was so popular in America that government opposition to the French treaties would produce serious internal divisions as well as war with France. The only substantive point on which the Attorney General and the Secretary of State differed was the meaning of Article 22 of the commercial treaty, which Randolph interpreted as inferentially allowing France to fit out privateers and sell prizes in American ports (Opinion of Randolph, 6 May 1793, DLC: Washington Papers; Washington, Journal, 127; the date Randolph submitted his opinion may be inferred from Notes on Washington’s Questions on Neutrality and the Alliance with France, [6 May 1793]).

With Randolph’s opinion in hand, and without consulting further with the Cabinet as a group or circulating all the opinions among its members, Washington informed Jefferson on 6 May 1793 that the treaties would remain in force and thus by inference that he would receive Genet unconditionally, as indeed he did twelve days later. At the same time, the President indicated to Jefferson that personally he had always accepted the continued validity of the French treaties, but it is difficult to believe that Hamilton had not caused him to have at least some temporary doubts (Notes on Washington’s Questions on Neutrality and the Alliance with France, [6 May 1793]; Washington, Journal, 143; Turner, CFM, 214, 245). In any case, Jefferson had little time to savor his victory over his great antagonist at the Treasury on the issue of the treaties, for on 8 May 1793 British minister George Hammond dispatched a series of memorials to him that forced the Cabinet to begin consideration of a new constellation of neutrality issues that was destined to bedevil French-American relations for the duration of Jefferson’s tenure as Secretary of State.