1781.
This argument is not a fair one; it blends together what ought to be distinguished; a difference ought to be observed between the property of British subjects and British capitulants.—British subjects, not capitulants, may rightfully capture American property: Americans may rightfully capture their property; but British capitulants cannot capture American property; and therefore it is a perfect equality, that Americans shall not capture the property of capitulants.
But it is thought strange, that while French, Spanish, American, and British property should be liable to capture, the property of the capitulants should be exempted from it.
Let us advert for a moment to the peculiar situation of those capitulants. They are a conquered people and reduced to the government of France; they are by compact a neutral body; they have neither the power of war, nor peace; they commit hostilities against no nation; neither against France, nor Spain, nor America, nor Britain; where then is the strangeness in the doctrine, that the property of a people thus reduced, thus defenceless, and thus acting in the line of neutrality, should be protected from capture?
But the resolutions o Congress, with regard to Bermudas and other Islands, have been objected, and it is said that Count d’Estaing captured the vessels belonging to those Islands, though, by the resolve of Congress, they were exempted from capture; which, it is contended, shews that the agreement of one ally does not bind the other. The resolutions of Congress cannot be considered as a compact with the people of Bermudas and the other Islands; for those people were not in a capacity to make a compact; they were under subjection to the British Crown, and had no authority from the Crown to enter into engagements with America. The resolutions therefore of Congress were a mere voluntary suspension of the rights of war, with regard to those people, the continuance of which was perfectly optional with America.
If France was bound by these resolutions of Congress, she would only be bound in the extent that America was. America might say when she pleased, that those resolutions should not exist, and so might France.
But if France was bound to a neutrality with regard to Bermudas and those other Islands; then Bermudas and those other lslands were bound to a neutrality with regards to France: But those Islands were not bound, therefore France was not bound; and Count d’Estaing was well justified in the captures he made.
With regard then to the question, “whether the articles of capitulation bind America,” we are of opinion that they do.
