The Life of George Washington, Vol. 5 / Commander in Chief of the American Forces During the War / which Established the Independence of his Country and First / President of the United States

by John Marshall

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 infringement of national sovereignty to the prejudice of a third party, in which the government was to demand a reparation, with the double view of vindicating its own rights, and of doing justice to the suffering party.

They, therefore, were of opinion that, in the case stated for their consideration, restitution ought to be made.

On the point respecting which his cabinet was divided, the President took time to deliberate. Those principles on which a concurrence of sentiment had been manifested being considered as settled, the secretary of state was desired to communicate them to the ministers of France and Britain; and circular letters were addressed to the executives of the several states, requiring their co-operation, with force if necessary, in the execution of the rules which were established.

The citizen Genet was much dissatisfied with these decisions of the American government. He thought them contrary to natural right, and subversive of the treaties by which the two nations were connected. In his exposition of these treaties, he claimed, for his own country, all that the two nations were restricted from conceding to others, thereby converting negative limitations into an affirmative grant of privileges to France.

Without noticing a want of decorum in some of the expressions which Mr. Genet had employed, he was informed that the subjects on which his letter treated had, from respect to him, been reconsidered by the executive; but that no cause was perceived for changing the system which had been adopted. He was further informed that, in the opinion of the President, the United States owed it to themselves, and to the nations in their friendship, to expect, as a reparation for the offence of infringing their sovereignty, that the vessels, thus illegally equipped, would depart from their ports.