To Sir John Temple
New York, August 11th. 1790
Mr. Jefferson presents his compliments to Sir John Temple: he has paid due attention to the enclosed papers which he returns in the first moment in his power. The validity of the laws in question being purely a judiciary question, will, by our Constitution, be to be decided on by the Federal Court, before whom the parties interested will of course take care to bring it. He is happy to believe that the characters of the individuals who compose that Court are such as to leave no doubt in the mind of any party that right will be done.
FC (DNA: RG 59, PCC No. 120). Enclosures: Printed below.
TJ here more explicitly assumes for the federal courts the right of judicial review of state legislation than did Randolph, to whom he had submitted the papers relating to the action of Georgia on British debts (Randolph to TJ, 10 Aug. 1790). In this he was merely reflecting the natural and prevalent assumption. Even Phineas Bond, British consul at Philadelphia and commissary for commercial affairs in North America, had expressed this view some months earlier: “… whatever rules and regulations may have been heretofore adopted by the courts of the several states, the definitive treaty is acknowledged to be the law of the land‥‥ If therefore any British subject meets with injustice in the recovery of debts from the subjects of these states, or of the lawful interest due on the same, he may have justice done him by applying to the federal courts now established agreeably to the constitution.” A few weeks later Bond added: “The establishment of judiciary courts under the New Constitution promises some relief in the controul of local laws which press hard upon the interests of the British creditors and in correcting a system of delay which had been highly oppressive” (Bond to Leeds, 23 Sep. and 11 Nov. 1789, PRO: FO 4/7). The “system of delay” reflected in the enclosures to this letter showed what a long and tortuous road there was to the decision in Ware v. Hylton, but the implications of Article IV of the Treaty and of Article VI of the Constitution were clear. To the obstacles presented by inherent difficulties of the issue and by such legislation as that of Georgia was added the action of the federal government in ratifying the Treaty of 1794. It is ironic that John Jay, whose brilliant report of 1786 called upon the states to recognize the Treaty of Peace as “binding and obligatory on them,” should have negotiated that which removed the issue of British debts from the American judiciary where it belonged and where in 1790 it seemed certain to remain-an irony heightened by the fact that the negotiator was also head of the federal judiciary (see Vol. 14: 79–80; S. F. Bemis, Jay’s Treaty description begins Samuel Flagg Bemis, Jay’s Treaty: A Study in Commerce and Diplomacy, New Haven, 1962, revised edn. description ends [New Haven, 1962], p. 434–9; for a good account of the litigation over debts in Virginia, see Isaac S. Harrell, Loyalism in Virginia, p. 153–78; Monroe to TJ, 1 May 1792; for an account of the issue that places it in the context of imperial problems in the years between 1748 and 1764, see Lawrence H. Gipson, “Virginia Planter Debts before the American Revolution,” VMHB description begins Virginia Magazine of History and Biography, 1893- description ends , lxix [July, 1961], 259–79). It was not until TJ became President that the Convention of 8 Jan. 1802 annulling Article VI of the Treaty of 1794 and confirming Article IV of the Treaty of Peace restored the matter to its proper status as “purely a judiciary question” so far as the future operation of Article IV was concerned (TJ to Senate, 29 Mch. 1802).
The action of Georgia was protested by British merchants trading in that state as contravening the Treaty of Peace and as being “still more oppressive and unjust” than the numerous violations they had reported theretofore. On 11 Mch. 1790 the auditor of Georgia had summoned all persons indebted to British merchants to render an account of such indebtedness as confiscated under the act of 4 May 1782 and as further enforced by that of 10 Feb. 1787. The merchants therefore asked for protection in those rights under the Treaty they felt themselves “so fully and clearly entitled to, and … so manifestly guaranteed them” (John North and others to Leeds, 13 July 1790, PRO: FO 4/8). This and other appeals, particularly those protesting the South Carolina instalment act of 1788, led to Temple’s presentation of the Georgia situation to TJ. The Secretary of State had himself drafted the Virginia act of sequestration of 1779 (Vol. 2: 279–84). But he stood at the opposite pole from those who sought to interpose the authority of a state against the binding obligations of the Treaty. Some months before Jay made his report of 1786 TJ embodied its substance in a letter to Monroe. He suggested that “Congress … recommend a mode of executing that article respecting the debts, and send it to each state to be passed into law. Whether England gives up the posts or not, these debts must be paid, or our character stained with infamy among all nations and to all times. As to the satisfaction for the slaves carried off, it is a bagatelle which if not made good before the last instalment becomes due, may be secured out of that” (TJ to Monroe, 10 May 1786). Long before the complicated issue of the debts came before him as Secretary of State, TJ had determined to settle his own debts privately under principles of “exact justice … without needing any obligation but that of morality,” and he had in fact done so (TJ to Jones, 1 June 1789 and documents on his debt to Farell & Jones, Vol. 15: 642–77). Though shared by many in Virginia, this position evidently was not that of the majority in the state (see instructions to Caroline delegates in the House of Delegates affirming “the impolicy, injustice, and oppression, of paying British debts”; Pennsylvania Journal, 8 Nov. 1783).
Immediately on the adjournment of Congress and the day following this reply to Temple, TJ initiated the inquiry into state legislation on debts and other matters considered to be infractions of the Treaty of Peace, thus laying the foundation for his powerful reply to Hammond two years later (TJ to Harison, 12 Aug. 1790; TJ to Hammond, 29 May 1792).