The one we have made already is ample, to wit, a pointed disapprobation of the transaction, a promise to prosecute and punish according to law such of our citizens as have been concerned in it, and to take effectual measures against a repetition. To demand more would be a wrong in Great Britain; for to demand satisfaction beyond what is adequate, is wrong. But it is proposed further to take the prize from the captors and restore her to the English. This is a very serious proposition.
The dilemma proposed in our conferences, appears to me unanswerable. Either the commission to the commander of the privateer was good, or not good. If not good, then the tribunals of the country will take cognizance of the transaction, receive the demand of the former owner, and make restitution of the capture; and there being, on this supposition, regular remedy at law, it would be irregular for the government to interpose. If the commission be good, then the capture having been made on the high seas, under a valid commission from a power at war with Great Britain, the British owner has lost all his right, and the prize would be deemed good, even in his own courts, were the question to be brought before his own courts. He has now no more claim on the vessel than any stranger would have who never owned her, his whole right being transferred by the laws of war to the captor.
The legal right then being in the captors, on what ground can we take it from him? Not on that of right, for the right has been transferred to him. It can only be by an act of force, that is to say, of reprisal for the offence committed against us in the port of Charleston. But the making reprisal on a nation is a very serious thing. Remonstrance and refusal of satisfaction ought to precede; and when reprisal follows, it is considered as an act of war, and never yet failed to produce it in the case of a nation able to make war; besides, if the case were important enough to require reprisal, and ripe for that step, Congress must be called on to take it; the right of reprisal being expressly lodged with them by the Constitution, and not with the Executive.
I therefore think that the satisfaction already made to the government of Great Britain is quite equal to what ought to be desired in the present case; that the property of the British owner is transferred by the laws of war to the captor; that for us to take it from the captor would be an act of force or reprisal, which the circumstances of the case do not justify, and to which the powers of the Executive are not competent by the Constitution.
XXXVIII.-Opinion on the proposition of the Secretary of the Treasury to open a new Loan.
June 5, 1793.
Instructions having been given to borrow two millions of florins in Holland, and the Secretary of the Treasury proposing to open a further loan of three millions of florins, which he says "a comprehensive view of the affairs of the United States, in various relations, appears to him to recommend," the President is pleased to ask whether I see any objections to the proposition?
The power to borrow money is confided to the President by the two acts of the 4th and 12th of August, 1790, and the monies, when borrowed, are appropriated to two purposes only: to wit, the twelve millions to be borrowed under the former, are appropriated to discharge the arrears of interest and instalments of the foreign debt; and the two millions, under the latter, to the purchase of the public debt, under direction of the trustees of the sinking fund.
These appropriations render very simple the duties of the President in the discharge of this trust. He has only to look to the payment of the foreign debt, and the purchase of the general one. And in order to judge for himself of the necessity of the loan proposed for effecting these two purposes, he will need from the treasury the following statements:—
A. A statement of the nett amount of the loans already made under these acts, adding to that the two millions of florins now in course of being borrowed. This will form the debit of the trust.