The Referral of Neutrality Questions to the Supreme Court
Editorial Note

The number and complexity of questions about what constituted neutral behavior by the United States with respect to the warring nations of Europe grew rapidly in the summer of 1793 in the face of Edmond Charles Genet’s persistent challenges to American neutrality policy. With its energies increasingly tied up in the resolution of proliferating appeals by foreign diplomats, especially British minister George Hammond, and by its own citizens, for intervention against alleged French violators of American neutrality, the federal executive resolved to appeal to the Supreme Court for guidance in correctly interpreting existing treaties and the law of nations and in eliminating any ambiguities in the positions set forth in the Proclamation of Neutrality and Jefferson’s 15 May 1793 letters to Hammond and Jean Baptiste Ternant, Genet’s predecessor as minister of France. Jefferson and his formidable rival at the Treasury Department united to draft a set of questions stating the full range of knotty issues on which the government’s stance was or could be expected to be disputed by the belligerent powers. When the justices declined to intervene, obliging the Washington administration to enforce neutrality without their guidance, the Court set an important negative precedent.

Beginning early in May 1793, when Hammond presented the Secretary of State with a series of complaints against hostile acts committed on behalf of France by Americans and French nationals which compromised American neutrality, the Washington administration had been repeatedly called upon to resolve disputes which hinged on the correct interpretation of the law of nations and of American treaties with France. Hitherto the President had decided each question piecemeal after discussion in the Cabinet, and in May he had been advised by Alexander Hamilton that the judiciary was not competent to determine a question concerning the restoration of prizes because such a matter must be “settled by reasons of state, not rules of law” (Memorials from Hammond, 2, 8 May 1793; Hamilton to Washington, 15 May 1793, Syrett, Hamilton, xiv, 459). However, in the immediate aftermath of the crisis over the arming of the Little Sarah as a French privateer, in which Genet’s refusal to obey the administration’s ban on fitting out such ships in American ports nearly led to the outbreak of hostilities, Washington and the three Cabinet members then in Philadelphia met on 12 July and unanimously decided to summon the justices of the Supreme Court to the capital on 18 July in order to seek their legal advice on the obligations of the United States as a neutral power. Jefferson immediately dispatched the summonses and notified the British and French ministers that seven vessels whose status had been disputed would be detained until the judges could be consulted (note to Cabinet Opinions on the Little Sarah, 8 July 1793; Cabinet Opinion on Consulting the Supreme Court, 12 July 1793; Washington, Journal, 194; Circular to the Justices of the Supreme Court, 12 July 1793; TJ to Genet and Hammond, 12 July 1793).

The decision to seek formal legal guidance from the Supreme Court was based on Anglo-American precedents. In England, the monarch and House of Lords were entitled to obtain opinions from the judges of the highest courts, and the Massachusetts and New Hampshire constitutions echoed English practice by giving the governor or legislature recourse to the state supreme court for advisory opinions. Although a similar provision had been proposed but not adopted at the 1787 Federal Convention, Chief Justice Jay had himself supplied Washington with a legal opinion during the 1790 Nootka Sound war crisis and until as late as April 1793 advised Washington and Hamilton on other legal and political matters (James B. Thayer, Legal Essays [Boston, 1908], 42–54; Opinion of the Chief Justice, 28 Aug. 1790, in Vol. 17: 134–7; Jay to Washington, 23 Sep. 1791, DLC: Washington Papers; Jay to Hamilton, 28 Nov. 1790, 8 Sep. 1792, 11 Apr. 1793, Syrett, Hamilton, vii, 166–7, xii, 334–5, xiv, 307–10). The neutrality questions posed by the Washington administration, however, were addressed to the entire Court.

Although Jefferson began the work of preparing questions for the justices on 13 July 1793 by digesting the issues already debated within the administration, the Cabinet deferred final discussion and preparation of the document for the Court in the hope that Attorney General Edmund Randolph would return from a trip to Virginia in time to participate. He had not arrived by the evening of 17 July, when Chief Justice John Jay asked the President when the object of the summons would be made known to the members of the Court. Washington was obliged to admit that nothing was ready as yet, and early the next morning he asked the Secretary of State to prepare a general statement for the judges, so that they could begin considering the preliminary question of whether they could with propriety give legal advice to the executive. Jefferson immediately complied (Notes on Neutrality Questions, 13 July 1793; Washington to TJ, 18 July 1793; TJ to the Justices of the Supreme Court, 18 July 1793).

The Cabinet convened on the same day to consider specific questions for the justices drafted by Hamilton, Jefferson, and Secretary of War Henry Knox (Washington, Journal, 203). The Treasury Secretary’s list (Document i below) was probably considered first, perhaps because it was the most detailed and made the greatest effort to address all of the subtle legal points involved. Of the twenty-two questions Hamilton submitted, the Cabinet rejected only the final one, but he had emended his draft so heavily that Jefferson later experienced considerable difficulty in deciphering his interlineations when making a fair copy of the questions approved by the Cabinet (see Document v below). The Cabinet approved seven of Jefferson’s fourteen questions (Document ii below), the next six having been rendered redundant by analogous questions in Hamilton’s draft. Jefferson’s final question, about the extent of the President’s authority, which the Treasury Secretary had not posed, presumably failed of adoption because Hamilton and Knox had fewer doubts about the limits of executive authority. Since the substance of all the points Knox raised had already been covered by Hamilton and Jefferson, none of his formulations (Document iii below) were used. After Jefferson submitted a fair copy of the approved questions (Document iv below), together with the Hamilton and Knox drafts, in a covering letter to Washington (Document v below), he added at the President’s request a final question asking whether armed vessels could pursue enemy merchantmen as soon as they left American ports, a query evidently prompted by Genet’s earlier missive on the subject (Genet to TJ, 15 June 1793).

On 19 July 1793 Washington instructed Jefferson to submit the questions to the justices (Washington, Journal, 204). Having received verbal assurances from the Secretary of State on the same day that an answer to his letter of 18 July was not urgently required, the four justices then in Philadelphia advised Washington and Jefferson on 20 July that they were prepared to respond to the general question of their willingness to advise the government on legal questions but would prefer to postpone answering until their absent colleagues arrived (TJ to Washington, 19 July 1793; Justices of the Supreme Court to TJ, 20 July 1793, and enclosure). Jefferson drafted the President’s response agreeing to such a postponement, but apparently becoming convinced that the Court would decline to intervene, the Cabinet completed a set of neutrality rules on 3 Aug. 1793 before the justices could respond (Washington to the Justices of the Supreme Court, [22 July 1793]; TJ to Washington, 22 July 1793; Notes of Cabinet Meeting on Neutrality, 29 July 1793; Rules on Neutrality, 3 Aug. 1793). Five days later the Court concluded that it would be improper to answer the executive’s questions. In a letter to Washington signed by every justice except William Cushing, the jurists explained 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 Judges of a Court in the last Resort—are Considerations which afford strong Arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments” (Justices of the Supreme Court to Washington, 8 Aug. 1793, DNA: RG 59, MLR). Disappointed by this response, Jefferson suggested to Randolph that a bill be drafted to create a body to advise the executive on neutrality matters. Unhappy with Randolph’s counterproposal that this responsibility be annexed to the Attorney General’s office, Jefferson evidently let the matter drop (TJ to James Madison, 11 Aug. 1793).

Compilation of the questions for the Supreme Court no doubt helped the Cabinet develop a more coherent and unified vision of the legal problems associated with maintaining neutrality and thus served as a useful prelude to the administration’s promulgation of new regulations. The scope and complexity of the issues, however, were guaranteed to make the justices ponder the constitutional precedent they would be setting if they rendered an advisory opinion. The Washington administration’s exercise ultimately proved self-defeating when it came to eliciting a response from the Court, whose refusal set a timehonored precedent against official advisory opinions by federal jurists (Thomas, Neutrality, 146–50; Charles Warren, “The First Decade of the Supreme Court of the United States,” University of Chicago Law Review, vii [1940], 645–8; Charles G. Haines, The Role of the Supreme Court in American Government and Politics 1789–1835 [Berkeley and Los Angeles, 1944], 143–5).