Without Precedent

by Joel Richard Paul

  With the inquest over, Marshall’s attention turned back to the national scene. In May, Marshall received a commission from Virginia’s governor as the commander of a newly formed Richmond regiment. The swelling support for Genet and the French revolutionaries threatened to drag the country into another war with Britain. The European war was becoming a domestic concern, and the bitter partisanship that Genet had brought to America would soon compel Marshall to take a leading role.

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  LIKE A GATHERING STORM, Genet slowly advanced toward Philadelphia. Washington anxiously called his cabinet together in April 1793 to discuss how to respond to the outbreak of war between France and Britain. The cabinet was locked in a bitter debate for two days over what would prove to be the most fateful decision in Washington’s presidency. Over Jefferson’s objections, the cabinet agreed that the United States should remain neutral, but the cabinet could not agree on what neutrality meant in practice. Treasury Secretary Alexander Hamilton and Attorney General Edmund Randolph favored Washington’s signing a proclamation of neutrality. Secretary of State Jefferson argued that the president did not have authority to issue a declaration of neutrality any more than he could issue a declaration of war; only Congress had that authority. Hamilton countered that there was a distinction between sending soldiers into battle and preserving the peace. After much wrangling, Washington ordered the attorney general—rather than Jefferson as secretary of state—to draft a neutrality proclamation for his signature.15

  Jefferson admonished his colleagues that despite the country’s neutrality, the Treaty of Alliance required the United States to provide arms to France. Hamilton replied that since the treaty was made with Louis XVI and no legitimate government had succeeded him, the treaty was suspended for the time being. The other cabinet members agreed that neutrality meant the rules would apply equally to France and Britain. But it would fall on Jefferson as secretary of state to enforce the neutrality he so fiercely opposed.16

  Finally, the cabinet debated whether the president should receive Citizen Genet as the proper representative of France. Hamilton advised Washington to receive Genet politely without acknowledging him as the official representative of a legitimate government. President Washington concurred that he would accord Genet the same honors as any other foreign diplomat but “not with too much warmth or cordiality.”17

  Relations between Jefferson and Hamilton were irreparably damaged over the question of how to deal with France, and their mutual disdain disintegrated into childish name-calling: Hamilton accused Jefferson of a “womanish attachment to France,”18 and Jefferson told Monroe that “Hamilton is panic-struck if we refuse our breech to every kick which Great Britain may choose to give it.”19 Jefferson felt disillusioned and betrayed by Washington and his cabinet. His frustration had reached a breaking point. “The motion of my blood no longer keeps time with the tumult of the world,” he confessed to Madison. He was worn down from a “desperate & eternal contest against a host who are systematically undermining the public liberty & prosperity . . . in short, giving everything I love, in exchange for everything I hate.”20

  Three days after the cabinet meeting, Washington, in his customary terse language, issued the one-page Proclamation of Neutrality. In it, Washington warned citizens not to engage in any conduct that would compromise the nation’s neutrality. He declared that the United States would not protect any citizen who was found guilty by another country of “abetting hostilities” in violation of the law of nations and that the United States would prosecute any citizen who attacked the vessels of either France or Britain.21

  As the commander of Richmond’s newly formed regiment, Marshall had a duty to enforce the Proclamation of Neutrality at the Port of Richmond. The small port on the James River was the least likely spot for French privateers to appear, but Marshall could not ignore the popular support for Genet and the French revolutionaries.22 Though Marshall remained sympathetic to the cause of the French Revolution, he read the newspapers with growing anxiety as Genet appeared to challenge the leadership of General Washington. He had no reason to suspect that the Genet affair would soon drag him into national politics.

  The Proclamation of Neutrality ignited a firestorm of protest. This was the first time that a president asserted primary authority in foreign affairs. Until then, it was widely assumed that all the power over foreign affairs was vested in Congress by Article I of the Constitution. Republicans reproached the president for acting without authority from Congress. Jefferson remained silent in public while stealthily prodding his lieutenant Madison to attack. Madison, writing under the nom de plume Helvidius, denounced Washington’s action as an unconstitutional violation of the separation of powers and America’s treaty obligations. When Washington questioned Jefferson over what Madison thought of his policy, Jefferson replied that Madison wrote to him only about farming and crop rotation.23 Washington may have suspected that Jefferson and Madison were undermining his neutrality policy, but he could not have anticipated what would happen next.

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  AFTER A MONTH of fevered anticipation, Citizen Genet reached Philadelphia on Thursday, May 16, 1793. He crossed the Schuylkill on the floating bridge at Gray’s Ferry, where he was greeted by a crowd of dignitaries and reporters who proceeded with him into the city center. Streets were lined with French flags. Jubilant crowds wearing floppy red “liberty caps,” popular among the French revolutionaries, burst into the Marseillaise, the rousing military anthem written the previous year after the declaration of war against Austria. Cannons thundered in tribute. A committee of Philadelphia’s most distinguished citizens signed a pledge opposing the Proclamation of Neutrality.24 Receptions celebrated Genet and the French revolutionaries with rhapsodies and toasts to Jean Paul Marat and Robespierre, whose cold-blooded vengeance surpassed the malevolence of any French monarch. Washington’s former aide-de-camp, Pennsylvania Governor Thomas Mifflin, called for war against England.25 Philip Freneau, a republican journalist working for Jefferson at the State Department, composed a song to the tune of “God Save the King,” which he sang at a dinner in Genet’s honor. The song concluded: “May France ne’er want a Washington.” Even to Francophiles, these lyrics must have sounded shockingly inappropriate coming from the mouth of a State Department employee.26 All this fuss was made to honor a thirty-year-old who had accomplished precisely nothing.

  Genet’s comely looks and rhetoric stirred revolutionary passions that had been dormant for at least a decade among Americans. In the wake of his procession up the coast, he left a trail of eleven republican societies that became the seedlings for a still unformed and unnamed political party. Some of these societies, as in Pennsylvania, were called democratic societies, but they were all inspired by French republicanism. Twenty-four more societies sprang up the following year.27 Federalists suspected that these societies would become breeding grounds for revolutionaries. As frenzied mobs of supporters paraded the narrow streets of Philadelphia, Vice President John Adams barricaded himself in his home with guns loaded, ready to defend his family. Perhaps exaggerating the danger, Adams later recounted how “ten thousand people in the streets of Philadelphia, day after day, threatened to drag Washington out of his house and effect a revolution in the government or compel it to declare war in favor of the French Revolution and against England.”28

  On the afternoon of May 18, Washington waited impatiently in the President’s House to receive the French diplomat. It was a flagrant breach of diplomatic protocol for a foreign diplomat to spend six weeks parading around the country, making public appearances, and issuing commissions and letters of marque without first presenting his credentials to the head of state. Genet’s conduct no doubt offended Washington, who was fastidious about etiquette. Gouverneur Morris, the U.S. minister to France, had warned the president that Genet was an opportunist with “the manner and look of an upstart.”29 Jefferson, as secretary of sta
te, accompanied Genet to the president, who received him on the second floor of his spacious mansion. Portraits of the late Louis XVI and Marie Antoinette hung prominently on either side of the fireplace. Genet presented his credentials and tried to romance the president. “We see in you the only person on earth who can love us sincerely & merit to be so loved,” he told Washington.30 The president responded to Genet with such formality and coldness that even Genet, a man dazzled by his own celebrity, could not have mistaken the president’s intention.31

  By contrast, Jefferson was enchanted by this Frenchman. Just a few weeks earlier, Genet’s ship, the Embuscade, had sailed into the port of Philadelphia on May 2 with a captured British merchant vessel, the Grange. The Embuscade had captured the Grange while it was anchored in Delaware Bay and now claimed it as a prize. This was almost certainly in violation of international law, but popular opinion was on the side of France. Jefferson rushed to the wharf to see thousands of Philadelphians cheering as they watched the Grange dock flying the British flag upside down beneath the French tricolor. The sight thrilled Jefferson as well.32 But his joy would be short-lived. Blinded by the cataracts of his ideology, Jefferson did not foresee the diplomatic crisis unfolding.

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  OVER THE COURSE of a few weeks, Jefferson and Genet met frequently at the comfortable house that Jefferson leased for the princely sum of thirty pounds (around four thousand dollars today) on the bend in the Schuylkill close to Gray’s Ferry. They dined outside in the thick shade of towering sycamores along the riverbank.33 Plants shriveled in the fierce stillness of summer, and the magnificent lawn was the color of burnt caramel after months of drought. While Jefferson and Genet talked, slaves would have ferried cool refreshments and plates from the kitchen. Though Pennsylvania had adopted a gradual abolition law in 1780, it permitted slaveholders from other states to bring slaves into the state if the slaveholder registered them with a county clerk. Jefferson evaded the registration requirement by cycling slaves back and forth to Monticello every few weeks.34

  Genet flattered Jefferson as a champion of liberty and equality. The Frenchman seemed indifferent to the apparent contradiction between Jefferson’s fine rhetoric and his ownership of so many Africans. He exceeded even his diplomatic instructions suggesting that “we ought in some sort to form one people.” Genet suggested that the alliance between America and France would be something like a republican version of the Family Compact that had united the Bourbon powers of France and Spain.35 Jefferson, who opposed centralized power and favored local government, was nonetheless fascinated by the possibility. Jefferson gushed later to Madison that Genet “offered everything and asks nothing . . . It is impossible for anything to be more affectionate, more magnanimous than the purport of his mission.”36 In fact, it soon emerged that Genet would ask a great deal.

  Jefferson and Genet forged a marriage of convenience over many hours. Jefferson wanted Genet’s help to elect a republican majority in Congress that would support an alliance with France. Jefferson shared confidential details of cabinet meetings with the French envoy. Jefferson made clear that his enemies—the federalists, particularly Adams and Hamilton—were France’s enemies.37 Only the republicans in France and the United States could save democracy from the federalist monocrats, he argued. From these conversations, Genet formed the misimpression that the president was irrelevant and that an appeal to Congress, or to the people directly, would be more effective.

  Genet wanted Jefferson to agree to remove tariffs on French imports and advance repayment of the entire U.S. war debt to France—an amount equivalent to more than one hundred million dollars today. Both would be impossible to deliver.38 High tariff rates had been levied to finance public projects, pay off the national debt, and protect America’s infant industries from European competition. Moreover, any tariff preference for French imports would violate the U.S. treaty with Britain. The United States simply could not afford to repay France, and a large payment to help France’s military would risk antagonizing Britain.39

  At the same time, Genet pursued plans to liberate Spanish Florida and Louisiana. Jefferson was privately sympathetic to France’s aim to start a war with Spain. Spain controlled the mouth of the Mississippi at New Orleans, and Jefferson thought that the ability to navigate the river would open up the interior of the continent. As secretary of state, Jefferson had tried to persuade Spain to cede Louisiana to the United States, and when Spain refused, Jefferson suggested that the United States should declare war on Spain.40

  Genet confided in Jefferson his plans to arm regiments in South Carolina and Kentucky to attack Spanish Florida and Louisiana, respectively. Jefferson proposed that Genet send André Michaux, a French explorer and botanist, as his agent in Kentucky to organize the military expedition. Without considering the consequences of plotting war against a friendly government, Jefferson drafted a letter of introduction for Michaux to the Kentucky governor, Isaac Shelby, explaining that Michaux was acting on behalf of the French minister. Jefferson also put Genet in touch with several Kentucky congressmen who could facilitate his plans. While Jefferson cautioned Genet that what he was doing would violate the Proclamation of Neutrality, he did nothing to warn the president of impending war with Spain.41 Jefferson was knee-deep in a foreign conspiracy to attack Spanish territory—the very crime he later accused Aaron Burr of committing.

  Jefferson’s relationship with the French envoy was ill-advised, probably illegal, and certainly disloyal to Washington. But it was politically expedient. Jefferson accused the proponents of neutrality of siding with the British: “The old Tories, joined by our merchants who trade on British capital, paper dealers, and the idle rich of the great commercial towns are with the kings.” He was confident that the rest of the country would support France and that the growing polarization would benefit republicans. He happily added, “The war has kindled & brought forward the two [political] parties with an ardour which our interests merely, could never excite.”42 Jefferson predicted that the division over Genet’s mission would sweep his party into power.

  While Jefferson shared Genet’s criticism of neutrality, he worried about the activities of privateers in U.S. ports. Genet continued to recruit numerous American privateers to attack British ships. Jefferson gently reminded Genet that the United States did not approve of privateering in its territorial waters, but he still winked at some French violations of neutrality.43 By late June, Jefferson began to worry that Genet “will enlarge the circle of those disaffected to his country.” Jefferson was less concerned about the harm Genet might do to the United States than the harm to republicans. Jefferson claimed that he was “doing everything in my power to moderate the impetuosity of his movements,” but that remained to be seen.44

  More trouble was brewing. In early July, Jefferson learned that the Embuscade had captured another British merchant vessel, the Little Sarah. The vessel was brought into Philadelphia where the ship was renamed the Petite Démocrate, recommissioned as a French privateer, and outfitted with fourteen guns. The president ordered that the ship remain docked in Philadelphia, but Genet defied the president and instructed the Petite Démocrate to set sail with a crew of 120 Americans and French into the open Atlantic.45

  Genet’s defiance of the president literally cast his fate upon the water. Jefferson felt humiliated knowing that the cabinet would blame him. Genet arrogantly informed Jefferson that if the executive did not honor its treaty commitments to France, he would go directly to Congress or the people.46 But the Frenchman had dangerously misjudged American politics.

  In the public’s mind, Genet personified the republican cause, and Jefferson feared that if Genet continued to defy Washington, the public would side with Washington against the republicans. In private, Jefferson had growing doubts about Genet’s fitness. “Never in my opinion was so calamitous an appointment made as that of the present Minister of F. here,” he wrote to Madison. “Hot headed, all imagination
, no judgment, passionate, disrespectful & even indecent toward the [President] in his written as well as verbal communications, talking of appeals from him to Congress, from them to the people, urging the most unreasonable & groundless propositions, & in the most dictatorial style . . . He renders my position immensely difficult.”47 Jefferson bristled at the young man’s “ignorance” of the law of nations and predicted that Genet would “sink the republican interest if they do not abandon him.”48

  Marshall, like most Americans, continued to support the ideals of the French Revolution. “If there be among us men who are enemies to the French revolution, or who are friends to monarchy, I know them not.” But Marshall was offended that Genet publicly criticized the president’s Proclamation of Neutrality and should “dare to pursue measures calculated to raise a party to oppose our government under his banners.” Marshall believed both in the soundness of neutrality as a principle of American foreign relations and in the authority of President Washington to pursue neutrality. Marshall applauded the “gallant people” of France “contending for the rights of human nature” against her enemies. But the United States also had treaties with France’s enemies that were “no less obligatory on us, than those with France.” Unless Congress declared war, it was the president’s duty, Marshall felt, to execute those treaties and preserve good relations with all the belligerent powers. Marshall was especially angered by the “most malicious charges” raised by Genet and the republican clubs against Washington. Marshall concluded that “however devoted we may be to France, we cannot permit her to interfere in our internal government.”49

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  THE GENET AFFAIR came to a head at a series of cabinet meetings at the President’s House beginning on July 23. The president and the cabinet agreed to request Genet’s recall. Secretary Hamilton seized the moment to accuse Jefferson and the republicans of threatening to overthrow the American government.50 Washington ordered Jefferson to produce any correspondence he had with the Frenchman, and Hamilton proposed they publish it to expose Genet’s scheming. (Of course, it would also have the convenient effect of embarrassing Jefferson.) Jefferson warned that this would damage relations with France. “Friendly nations always negotiate little differences in private,” he pleaded.51 At one point, Secretary of War Henry Knox waved a pamphlet lampooning the president in Washington’s face. It featured a drawing of Washington on a guillotine—proof, he asserted, that the republicans threatened his government.