Thomas Jefferson Papers
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To Thomas Jefferson from John Jay, 24 April 1787

From John Jay

New York 24th. April 1787

Dr. Sir

Since my last to you of the 9th. February I have been honored with yours of the 27th. October, 12th. November, 31st. December, 9th. January and 1st. and 8th. February last, all of which together with the Papers that accompanied them have been communicated to Congress; but neither on them nor your preceding ones have any Instructions been as yet ordered, so that this Letter like many others will not be very interesting.

It is greatly to be regretted that Communications to Congress are not kept more private. A Variety of Reasons which must be obvious to you oppose it; and while the fœderal Sovereignty remains just as it is little Secrecy is to be expected. This Circumstance must undoubtedly be a great Restraint on those public and private Characters from whom you would otherwise obtain useful Hints and Information. I for my part have long experienced the Inconvenience of it, and in some Instances very sensibly.

The Death of Count De Vergennes, of which Major Franks informs us, is to be lamented; and the more so as the Talents, Industry and Disposition towards us of his Successor are uncertain. Who will take his place is an important Question to us as well as to France.

The Convention of which you have been informed will convene next Month at Philadelphia. It is said that General Washington accepts his Appointment to it and will attend. I wish their Counsels may better our Situation; but I am not sanguine in my Expectations. There is Reason to fear that our Errors do not proceed from Want of Knowledge, and therefore that Reason and public Spirit will require the Aid of Calamity to render their Dictates effectual.

The Insurrection in Massachusetts is suppressed, but the Spirit of it exists and has operated powerfully in the late Election. Governor Bowdoin whose Conduct was upright and received the Approbation of the Legislature, is turned out, and Mr. Hancock is elected. Many respectable Characters in both Houses are displaced and Men of other Principles and Views elected. Perhaps the Accounts are exagerated—perhaps Mr. Hancock will support his former Character, and that the present Legislature will be zealous to maintain the Rights of Government as well as respect the Wish of the People. Time alone can ascertain these Matters—the Language however of such Changes is not pleasant or promising.

For your information I enclose a Copy of certain Resolutions of Congress relative to Infractions of the Treaty of Peace. How they will be received, or what Effect they will have I know not. Some of the States have gone so far in their Deviations from the Treaty, that I fear they will not easily be persuaded to tread back their Steps, especially as the Recommendations of Congress like most other Recommendations are seldom efficient when opposed by Interest. A mere Government of Reason and Persuasion is little adapted to the actual State of human Nature in any Age or Country.

One of our five Indiamen, Vizt. an Albany Sloop, returned a few Days ago in four Months from Canton; and I heard last Evening that one or two Vessels are preparing at Boston for a Voyage to the Isle of France. The Enterprize of our Countrymen is inconceivable, and the Number of young Swarms daily going down to settle in the Western Country is a further Proof of it. I fear that Western Country will one Day give us Trouble—to govern them will not be easy, and whether after two or three Generations they will be fit to govern themselves is a Question that merits Consideration. The Progress of Civilization and the Means of Information is very tardy in sparse and separate Settlements. I wish our Differences with Spain in that Quarter were well settled; but the Maxim of festina lente does not suit our southern sanguine Politicians.

The English are making some important Settlements on the River St. Lawrence &c. Many of our People go there; and it is said that Vermont is not greatly inclined to be the fourteenth State. Taxes and relaxed Governments agree but ill.

I have the Honor to be &ca.,

John Jay

FC (DNA: PCC, No. 121). Dft (NK-Iselin). Recorded in SJL as received 11 June 1787.

Jay did not enclose merely a copy of certain resolutions of congress as they were adopted on 21 Mch. 1787 but the printed circular to the states that Madison had supposed he would send (Madison to TJ, 23 Apr. 1787; TJ to Carmichael, 14 June 1787). The latter, which was an argument calculated to justify the position that “treaties and every Article in them…are and ought to be … binding on the whole Nation,” was submitted to Congress on 6 Apr. and adopted on 13 Apr. (JCC description begins Journals of the Continental Congress, 1774–1789, ed. W. C. Ford and others, Washington, 1904–1937 description ends , xxxii; 177–84). An edition of 20 copies of this Address, with the text of the resolutions embedded in Jay’s explanatory comment, was printed. On the proposition that treaties were the supreme law of the land, TJ was more closely in agreement with Jay’s report than he was with the dictum that a mere government of reason and persuasion is little adapted to the actual state of human nature in any age or country. The first of the resolutions reported by Jay faced the constitutional issue squarely. By it Congress declared “That the Legislatures of the several States cannot of right pass any Act or Acts for interpreting, explaining or construing a national treaty or any part or clause of it, nor for restraining, limiting or in any manner impeding, retarding, or counteracting the operation and execution of the same; for that on being constitutionally made, ratified and published they become in virtue of the confederation part of the Law of the Land, and are not only independent of the will and power of such Legislatures, but also binding and obligatory on them” (JCC description begins Journals of the Continental Congress, 1774–1789, ed. W. C. Ford and others, Washington, 1904–1937 description ends , xxxii; 124–5, 181). This was a position that TJ and others had consistently supported; in the debate in Congress on 21 Mch., Madison noted that the resolution “declaring the Treaty to have the force of a law and denying the Right of any State to contravene it, was agreed to without dissent and almost without observation” (Madison’s “Notes of Debates,” JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxxiii, 727). But Congress could only recommend, and Jay’s able argument demonstrating the consequences that would ensue if the states continued to construe and contravene treaties by legislation was deprived of its full force by the tide of events: even as he wrote, delegates were preparing to assemble at Philadelphia for the Convention that wrote into the Federal Constitution the clinching words of Article VI which gave permanent force to the validity of his words.

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