Year LI, 2009, Single Issue, Page 66



John Jay (1745-1829), author of five Federalist Papers, is also one of the founding fathers of the American federation without whom, in the words of the second President of the United States, John Adams, “this country would never have been independent; Washington would not have been commander of the American army; three hundred millions of acres of land which she now possesses would have been cut off from her limits; the cod and whale fisheries… would have been ravished from her; the Massachusetts constitution, the New York constitution… the Constitution of the United States would never have been made”.[1] In the light of these remarks, it is worth reading the fourth federalist paper, written by Jay in 1787[2]and reproduced in this section of our review.
A brief look at the key stages in John Jay’s political career is all that is required to understand the reasons for Adams’ view and to gain an idea of how, as a federalist, Jay influenced American history.
John Jay was a delegate to the First Continental Congress in 1774, representing New York State.He served as President of Congress from 1778 to 1779, before being sent as an envoy to Spain and France. In Paris, together with Benjamin Franklin and John Adams, he negotiated a peace treaty with Great Britain. On returning to New York in 1784 he took up his new position as the United States’ Secretary of Foreign Affairs (now known as the US Secretary of State), remaining in this role until 1789. His appointment, in 1791, as the first Chief Justice of the Supreme Court of the United States coincided with another short period spent representing the United States abroad, this time as an envoy in London, striving to prevent a new war with Great Britain andestablishing the transit and trading rights, in North America, of the other European powers. In 1795, having completed this mission, he was made governor of New York State, and went on to serve two terms. Finally, in 1800, having turned down a second mandate as Chief Justice of the Supreme Court and the possibility of running for the presidency of the United States, as the federalist candidate against Jefferson, he retired from political life and settled in a suburb just outside New York.
Clearly, these many high-profile roles are justification enough for remembering John Jay as one of America’s founding fathers. But to highlight the particular part he played in the struggle to found history’s first federal state, it is worth dwelling briefly on several key stages in his political career — moments that emerge as emblematic both of the historical period in which he lived, and of the remarkable clarity of vision with which, together with other federalists, he succeeded in setting American politics on the road to peace and prosperity.
When John Jay became drawn to politics, through his involvement in the life of the institutions, both the continental ones and those of his own state, his hope, shared by most Americans prior to the Declaration of Independence, was that the differences with Great Britain would, as in previous decades, be resolved quickly and peacefully, and that ultimately a profitable union might be established between the two sides of the Atlantic. Indeed, as clearly shown by the “Address to the British People” (a sort of appeal for brotherhood and collaboration between the Americans and the British, written mainly by Jay), this was the prevailing sentiment among the delegates to the Continental Congress of 1775. However, in the space of just a few months this hope was destroyed by the intransigence of the British Crown and Parliament, which had absolutely no intention of granting the colonies any powers of taxation or self-government. Many years later, Jay, reconstructingthese historical events, would recall this moment as the point at which the Americans were forced to stop merely talking about their independence and start fighting for it in earnest. That Jay and the people of New York State underwent a sudden change of attitude, replacing cautious reluctance to engage in armed struggle with a revolutionary stance, is shown by a resolution, drafted by Jay himself and approved unanimously by the provincial Congress of New York in 1776. In this document, the New Yorkers, lamenting the cruel necessity “which had rendered the Declaration of Independence unavoidable”, made clear their endorsement of the reasons “for declaring the United Colonies free and independent States” and their determination “at the risk of our lives and our fortunes” to support such a declaration.[3]
In subsequent years, particularly during his time as President of Congress, Jay was able to see for himself how extremely weak the cooperation between the colonies was; he also saw that the Union’s institutions lacked the power to conduct the war. Later on, he would further witness the effects of this fragility and impotence while serving as American envoy to Spain where, sent without adequate funding for the mission from the confederation, he was not even received by the representatives of the Spanish Crown. Indeed, Spain, although an ally of France against Great Britain, had no desire to support and legitimise the North American colonies’ demands for independence. Moving on to Paris, Jay quickly realised the naivety behind the mandate that Congress had given him, which was to negotiate peace with the British, but without upsetting the French government, whose collaboration was, instead, to be actively sought. In this difficult situation it was only thanks to the help of Franklin that Jay managed to find the funds and secure the guarantees necessary for the mission to continue. Furthermore, with Adams’ help he managed to form a realistic picture of the international situation — a picture far more accurate than the perception formed on the other side of the Atlantic. Contrary to what was believed in New York, Spain was not an imperial power still on the rise. And what America’s French allies actually wanted, without upsetting Congress, was to exploit the American War of Independence to gain military and commercial advantages at Great Britain’s expense. Moreover, Britain’s diplomats were well aware of the colonies’ growth potential — more so than the colonies themselves —, and had even gone so far as to formulate projections of North America’s demographic and commercial growth as far ahead as the mid-1800s. Jay, Adams and Franklin also realised that, in view of the increasing costs it was sustaining in quelling the “rebellion” of the American colonies, not to mention the military defeats it was suffering, Britain (the Crown more than Parliament) had reached a point at which it was willing to negotiate an agreement with the Americans.
All this convinced Jay of the need to get round the mandate conferred on him by Congress, which, after all, was too far removed from the reality of the situation, tended to send contradictory messages and was, basically, ill-informed about what was happening in Europe. With Adams’ accord, Jay established, for the American delegation, a series of essential premises for negotiating with Britain. First, there could be no sitting down at the negotiating table with any subject that had not, first, recognised the independence of the United States (this, in fact, ruled out the participation of Spain, which did not want to give its own colonies a pretext to rebel); second, the outcome of the Treaty had to be considered a matter separate from the need to reach prior agreements with France; and third, it had to be acknowledged that the Americans’ main interlocutor could only be the British government.[4]
Following the signing of the Paris Peace Treaty in 1783, the Americans initially hoped that their future now depended on the maintenance and strengthening of the common institutions provided for by the Articles of Confederation. But this hope, too, initially shared by Jay and by most federalists, soon vanished. Once again it took only a matter of months for attitudes to change. At the end of 1784, Jay, in a confident frame of mind, wrote to Franklin, saying “the current Congress promises well, because there are many respectable members among whom federal ideas seem to prevail greatly”. In another letter he told Lafayette “federalist ideas begin to thrive in this city”. Later, in March 1785, Jay remarked that “even though much remains to be done, yet we are gradually advancing towards system and order”. However, by the end of that very same year, in correspondence with Adams, his tone was different. He wrote “our federal government is incompetent to its object” and stressed the need for cooperation over “measures for enlarging and invigorating it”. Then, at the start of 1786, he wrote, in despair, to Jefferson, saying that “the Confederation certainly is very imperfect, and I fear it will be difficult to remedy its defects until experience shall render the necessity of doing it more obvious and pressing”. And in another letter to Jefferson he concluded that “our federal government is fundamentally wrong”.[5] The reasons prompting Jay to say these things were manifold and included the impotence of Congress, growing unrest in the former colonies, economic and financial problems, unresolved sources of tension with Great Britain, and the fear of new wars. Not even the convening of the Philadelphia Convention seemed sufficient to steer the United States away from the chaos towards which it was moving. Yet the Convention was, most people believed, perhaps one of the last chances to reverse the tide of events. This is why Jay did everything he could to convince George Washington to take part in it and, through his authoritative presence, to direct it. For the same reason, in 1787, he wrote Washington a letter setting out his concerns and trying to outline a basic programme for the meeting (Washington actually brought a copy of this letter with him to Philadelphia). Basically, the questions were: what should and could be done? How and through what institutions might it be possible to create a true American government founded on the will of the people and the states?[6] The problem was that even though the weaknesses of the Union’s government were clear to see, there was enormous resistance to the idea of overcoming them. One need only recall that the New York legislature did everything in its power to get Jay excluded from the state’s delegation to Philadelphia, and succeeded. However, the New York anti-federalists’ boycotting of Jay did absolutely nothing to diminish his popularity and friendly relations with almost all the delegates to the Convention, who had known him for years, went to his home, regularly asked him for advice, and respected his moral authority as well as his legal and political expertise. Thus, he was kept constantly informed of proceedings in Philadelphia and even participated, indirectly, in the formulation of several key articles of the new Constitution, such as article 6, which introduced the supremacy clause, a provision which Jay particularly wanted to see included.[7]
With the Constitution written, the next step was to secure its ratification in enough states to guarantee its entry into force. Jay, aware that this was an opportunity for the Americans to alter the course of their history,[8] embarked on a determined battle. He immediately accepted Hamilton’s invitation to support the propaganda campaign in favour of ratification of the Constitution, contributing the series of articles that would go on to be included in the famous Federalist Papers. Then, by writing an “Address to the People of New York, he helped to undermine the position of the anti-federalists who insidiously favoured delaying ratification of the Constitution, or at least wanted its ratification submitted to a second convention. Finally, in the convention held in his own state, Jay played a key role, together with Hamilton, in transforming the anti-federalist majority, which had been elected by the people of New York and was opposed to ratification of the Constitution, into the narrow majority that ultimately did ratify it.[9]
Having won this crucial battle, the priority was to start consolidating the federal system of government that had been created and also, in Jay’s view, to affirm the new state’s sovereignty in the areas in which this had been conferred upon it by the Constitution, the first being foreign policy and the administration of justice in conformity with federal laws and no longer in accordance with the interests of the single states. Here again, the contribution made by Jay, this time in his dual capacity as first Chief Justice of the Supreme Court and overseas envoy, was to prove fundamental. In foreign policy, he was well aware that any US intervention in the new tensions that were growing between Great Britain and revolutionary France would have disastrous consequences for America, both commercial and military, and thus he supported the policy of neutrality pursued by Congress and President Washington against those, such as the then Secretary of State Thomas Jefferson, who wanted the Court to decide in favour of intervention. Jay simply dismissed their appeals as “abstract questions”. On the domestic front, he made it clear, through several famous judgements, that under the new Constitution, the states were no longer the sole legislators and administers of justice, and also that they would have to accept that their standing in the eyes of the law was the same as that of single citizens, and annul any legal provisions conflicting with the federal constitution.[10]
This, of course, was only the beginning. The interpretation given to the role of the Court, the Constitution and the supremacy clause has frequently been called into question in the course of US history, both by those wanting to see sovereignty restored to the single states and by those fearful, sometimes with reason, of possible abuses of federal power. Defended or attacked, it has provoked heated debates, attempts (successful and unsuccessful) to amend the Constitution, profound splits, and even a Civil War. What cannot be disputed, however, is the fact that the principle and exercising of popular sovereignty in the new federal state through the system of government and the checks and balances that Jay helped to introduce and get started, was to remain deeply rooted in American political life and, for better or worse, to determine its course.
To the People of the State of New York:
My last paper assigned several reasons why the safety of the people would be best secured by union against the danger it may be exposed to by just causes of war given to other nations; and those reasons show that such causes would not only be more rarely given, but would also be more easily accommodated, by a national government than either by the State governments or the proposed little confederacies.
But the safety of the people of America against dangers from foreign force depends not only on their forbearing to give just causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to invite hostility or insult; for it need not be observed that there are pretended as well as just causes of war.
It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people. But, independent of these inducements to war, which are more prevalent in absolute monarchies, but which well deserve our attention, there are others which affect nations as often as kings; and some of them will on examination be found to grow out of our relative situation and circumstances.
With France and with Britain we are rivals in the fisheries, and can supply their markets cheaper than they can themselves, notwithstanding any efforts to prevent it by bounties on their own or duties on foreign fish.
With them and with most other European nations we are rivals in navigation and the carrying trade; and we shall deceive ourselves if we suppose that any of them will rejoice to see it flourish; for, as our carrying trade cannot increase without in some degree diminishing theirs, it is more their interest, and will be more their policy, to restrain than to promote it.
In the trade to China and India, we interfere with more than one nation, inasmuch as it enables us to partake in advantages which they had in a manner monopolized, and as we thereby supply ourselves with commodities which we used to purchase from them.
The extension of our own commerce in our own vessels cannot give pleasure to any nations who possess territories on or near this continent, because the cheapness and excellence of our productions, added to the circumstance of vicinity, and the enterprise and address of our merchants and navigators, will give us a greater share in the advantages which those territories afford, than consists with the wishes or policy of their respective sovereigns.
Spain thinks it convenient to shut the Mississippi against us on the one side, and Britain excludes us from the Saint Lawrence on the other; nor will either of them permit the other waters which are between them and us to become the means of mutual intercourse and traffic.
From these and such like considerations, which might, if consistent with prudence, be more amplified and detailed, it is easy to see that jealousies and uneasinesses may gradually slide into the minds and cabinets of other nations, and that we are not to expect that they should regard our advancement in union, in power and consequence by land and by sea, with an eye of indifference and composure.
The people of America are aware that inducements to war may arise out of these circumstances, as well as from others not so obvious at present, and that whenever such inducements may find fit time and opportunity for operation, pretenses to color and justify them will not be wanting. Wisely, therefore, do they consider union and a good national government as necessary to put and keep them in such a situation as, instead of inviting war, will tend to repress and discourage it. That situation consists in the best possible state of defense, and necessarily depends on the government, the arms, and the resources of the country.
As the safety of the whole is the interest of the whole, and cannot be provided for without government, either one or more or many, let us inquire whether one good government is not, relative to the object in question, more competent than any other given number whatever.
One government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the Union they may be found. It can move on uniform principles of policy. It can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. In the formation of treaties, it will regard the interest of the whole, and the particular interests of the parts as connected with that of the whole. It can apply the resources and power of the whole to the defense of any particular part, and that more easily and expeditiously than State governments or separate confederacies can possibly do, for want of concert and unity of system. It can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the Chief Magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent companies.
What would the militia of Britain be if the English militia obeyed the government of England, if the Scotch militia obeyed the government of Scotland, and if the Welsh militia obeyed the government of Wales? Suppose an invasion; would those three governments (if they agreed at all) be able, with all their respective forces, to operate against the enemy so effectually as the single government of Great Britain would?
We have heard much of the fleets of Britain, and the time may come, if we are wise, when the fleets of America may engage attention. But if one national government, had not so regulated the navigation of Britain as to make it a nursery for seamen — if one national government had not called forth all the national means and materials for forming fleets, their prowess and their thunder would never have been celebrated. Let England have its navigation and fleet — let Scotland have its navigation and fleet — let Wales have its navigation and fleet — let Ireland have its navigation and fleet — let those four of the constituent parts of the British empire be under four independent governments, and it is easy to perceive how soon they would each dwindle into comparative insignificance.
Apply these facts to our own case. Leave America divided into thirteen or, if you please, into three or four independent governments — what armies could they raise and pay — what fleets could they ever hope to have? If one was attacked, would the others fly to its succor, and spend their blood and money in its defense? Would there be no danger of their being flattered into neutrality by its specious promises, or seduced by a too great fondness for peace to decline hazarding their tranquillity and present safety for the sake of neighbors, of whom perhaps they have been jealous, and whose importance they are content to see diminished? Although such conduct would not be wise, it would, nevertheless, be natural. The history of the states of Greece, and of other countries, abounds with such instances, and it is not improbable that what has so often happened would, under similar circumstances, happen again.
But admit that they might be willing to help the invaded State or confederacy. How, and when, and in what proportion shall aids of men and money be afforded? Who shall command the allied armies, and from which of them shall he receive his orders? Who shall settle the terms of peace, and in case of disputes what umpire shall decide between them and compel acquiescence? Various difficulties and inconveniences would be inseparable from such a situation; whereas one government, watching over the general and common interests, and combining and directing the powers and resources of the whole, would be free from all these embarrassments, and conduce far more to the safety of the people.
But whatever may be our situation, whether firmly united under one national government, or split into a number of confederacies, certain it is, that foreign nations will know and view it exactly as it is; and they will act toward us accordingly. If they see that our national government is efficient and well administered, our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment. If, on the other hand, they find us either destitute of an effectual government (each State doing right or wrong, as to its rulers may seem convenient), or split into three or four independent and probably discordant republics or confederacies, one inclining to Britain, another to France, and a third to Spain, and perhaps played off against each other by the three, what a poor, pitiful figure will America make in their eyes! How liable would she become not only to their contempt but to their outrage, and how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves.
(edited by Franco Spoltore)

[1] A recent biography of John Jay, the first important text dealing with his life in over half a century, has helped to rekindle interest in the role played by this statesman. Adams’ remarks appear in this biography. Walter Stahr, John Jay: Founding Father, New York, Hambledon and London, 2005, p. 386.
[2] This is an essay in which James deals with the crucial question of the United States’ international position and the need for a single foreign and defence policy at federal level.
[3] Op. cit., p. 62.
[4] Jay was quick to grasp the evil nature of power relations between states, and he never tired of reminding his fellow citizens of it, as indeed he did in a speech written, in collaboration with Hamilton, for George Washington: “There can be no greater error than to expect or calculate upon real favors from nation to nation. It is an illusion, which experience must cure, which a just pride ought to discard” (extract from Washington’s farewell address of 1796),
[5] Op. cit., p. 241.
[6] “…The situation of our affairs calls not only for reflection and prudence, but for exertion. What is to be done? is a common question; but it is a question not easy to answer.
“Would the giving any further degree of power to Congress do the business? I am inclined to think it would not… The executive business of sovereignty, depending on so many wills, and those wills moved by such a variety of contradictory motives and inducements, will, in general, be but feebly done. Such a sovereign, however theoretically responsible, cannot be effectually so, in its departments and officers, without adequate judicatories.
“I therefore promise myself nothing very desirable from any change which does not divide the sovereignty into its proper departments. Let Congress legislate; let others execute; let others judge.
“Shall we have a King ? Not, in my opinion, while other expedients remain untried. Might we not have a Governor-General, limited in his prerogatives and duration? Might not Congress be divided into an upper and a lower House; the former appointed for life, the latter annually; and let the Governor-General (to preserve the balance), with the advice of a Council, formed, for that only purpose, of the great judicial officers, have a negative on their acts? Our Government should, in some degree, be suited to our manners and circumstances, and they, you know, are not strictly democratical.
“What powers should be granted to the Government, so constituted, is a question which deserves much thought. I think, the more the better; the States retaining only so much as may be necessary for domestic purposes, and all their principal officers, civil and military, being commissioned and removable by the National Government. These are short hints. Details would exceed the limits of a letter, and to you be superfluous.” (John Jay, letter to George Washington, 7 January 1787),
[7] “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” (Art. VI, parag. 2 of the Constitution of the United States). This wording was based on the explanatory and application notes to the Peace Treaty drafted by Jay, Op. cit., p.246.
[8] In essay 64 of the Federalist Papers, Jay, paraphrasing Shakespeare in Julius Caesar, “There is a tide in the affairs of men”, warns about the risk of squandering the opportunity to ratify the new federal Constitution: “They who have turned their attention to the affairs of men, must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure”,
[9] “There is much reason to believe that the majority of the convention of this state will be composed of anti-federal characters; but it is doubtful whether the leaders will be able to govern the party. Many in the opposition are friends to union, and mean well, but their principal leaders are very far from being solicitous about the fate of the Union.” (From Jay’s letter to Washington written just before the announcement of the names of the delegates to the New York Convention), Op. cit., p.225.
[10] See, in this regard, the judgement Chisholm v. Georgia (1793)

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