The Life of George Washington, Vol. 5 | Page 8

having survived her husband two and a half years.
Courtesy Herbert L. Pratt]
Admitting the case to be of sufficient importance to require reprisal, and to be ripe for that step, the power of taking it was vested by the constitution in congress, not in the executive department of the government.
Of the reparation for the offence committed against the United States, they were themselves the judges, and could not be required by a foreign nation, to demand more than was satisfactory to themselves. By disavowing the act, by taking measures to prevent its repetition, by prosecuting the American citizens who were engaged in it, the United States ought to stand justified with Great Britain; and a demand of further reparation by that power would be a wrong on her part.
The circumstances under which these equipments had been made, in the first moments of the war, before the government could have time to take precautions against them, and its immediate disapprobation of those equipments, must rescue it from every imputation of being accessory to them, and had placed it with the offended, not the offending party.
Those gentlemen were therefore of opinion, that the vessels which had been captured on the high seas, and brought into the United States, by privateers fitted out and commissioned in their ports, ought not to be restored.
The secretaries of the treasury, and of war, were of different opinion. They urged that a neutral, permitting itself to be made an instrument of hostility by one belligerent against another, became thereby an associate in the war. If land or naval armaments might be formed by France within the United States, for the purpose of carrying on expeditions against her enemy, and might return with the spoils they had taken, and prepare new enterprises, it was apparent that a state of war would exist between America and those enemies, of the worst kind for them: since, while the resources of the country were employed in annoying them, the instruments of this annoyance would be occasionally protected from pursuit, by the privileges of an ostensible neutrality. It was easy to see that such a state of things could not be tolerated longer than until it should be perceived.
It being confessedly contrary to the duty of the United States, as a neutral nation, to suffer privateers to be fitted in their ports to annoy the British trade, it seemed to follow that it would comport with their duty, to remedy the injury which may have been sustained, when it is in their power so to do.
That the fact had been committed before the government could provide against it might be an excuse, but not a justification. Every government is responsible for the conduct of all parts of the community over which it presides, and is supposed to possess, at all times, the means of preventing infractions of its duty to foreign nations. In the present instance, the magistracy of the place ought to have prevented them. However valid this excuse might have been, had the privateers expedited from Charleston been sent to the French dominions, there to operate out of the reach of the United States, it could be of no avail when their prizes were brought into the American ports, and the government, thereby, completely enabled to administer a specific remedy for the injury.
Although the commissions, and the captures made under them, were valid as between the parties at war, they were not so as to the United States. For the violation of their rights, they had a claim to reparation, and might reasonably demand, as the reparation to which they were entitled, restitution of the property taken, with or without an apology for the infringement of their sovereignty. This they had a right to demand as a species of reparation consonant with the nature of the injury, and enabling them to do justice to the party in injuring whom they had been made instrumental. It could be no just cause of complaint on the part of the captors that they were required to surrender a property, the means of acquiring which took their origin in a violation of the rights of the United States.
On the other hand, there was a claim on the American government to arrest the effects of the injury or annoyance to which it had been made accessory. To insist therefore on the restitution of the property taken, would be to enforce a right, in order to the performance of a duty.
These commissions, though void as to the United States, being valid as between the parties, the case was not proper for the decision of the courts of justice. The whole was an affair between the governments of the parties concerned, to be settled by reasons of state, not rules of law. It was the case of an