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♦ ♦ ♦ 

Tkb b an authorized facsimile of the original book, and was 
pioduoed in 1968 by microfilm-xerography by University 
Mmfilms, A Xerox Company, Ann Arbor, Michigan, U.SJK. 

* * * 


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AU rigkU futrv$d. 

KlMCMijpMl uMl Priiatod bj U. O. Iloug htca A OoB|Mr. 


The public life of John Jay was so active and 

varied that it is almost iin|X)8sible to cotupress 

the essential facts in a small compass without 

losing^ much of their interest and sugg^estiveness, 

^Moreover, lie Wiis by dis|)osition so reticent and 

unimpulsive, so completely self-controlled, that 

there is scarcely any material for eonstructin^^ 

a history of his inner private life. He was 

singularly free from tliose faults wluch, trivial 

or serious, attract men*s love by exciting their 

sympathy or pity. Conscientious, upright, just, 

and wise, Jolui Jay, like Washington, survives 

in the popular imagination as an abstract type 

^ of propriety ; and his fair fame has been a con- 

^ i spicuous iuark for all who are offended by hear* 

. ing an Aristides always called the Just, or who, 

,< from an a priori notion of history, believe that 

>. statesmen have always been as corrupt, civic 

virtiM as tainted, and politics at denioralixhig 
as they are in our tiuM). In this belief there b 
undoubtedly much trutli, — but there are exGe|>- 
tion» to most rules, or rather wlmt is true of a 
generation in tlie average is never true of every 
individual eomprisod in it, — and a careful 
study coufirius the iHiutcMuporary opinion that 
the character of Jay was, unfortunately for 
mankind, exceptional. 

Any life of John Jay niUHt, of course, be 
based on tlie two volumes of his Life and Ijctters 
by his son. Judge William Jay ; but an undiie 
sense of tlie sanctity of domestic life prevented 
then tlie publication of anything not clmrly of 
a public, almost of an oflleial, natura. Subse- 
quently, as the Works and Letters ap|>eaix*d 
of Washington, John Adiuus, Madison, JelTer- 
son, Fisher Ames, and the other lievolutionaiy 
patriots, and the gleanings of Sparks and others 
from the government paiiers, mora light was 
thrown on the motives and movements of the 
time, and Jay*s life was rewritten by Flanders, 
who dispellcil, almost for the first time, the 
odium, begotten by partisanship of ignorance. 

iliat to loug Mmiled tlio memory of the early 
FederaliiiU. Certaiu popuiar prejudices still 
survived from the duys when Uiud devotion to 
Fmuoo, a veritable ^' love f rensy,** was a test of 
party fealty, and tlietie prejudices obiMsured any 
clear view of tlie |)eace negotiations of 1782. 
Sparks, editing oflieial docuuients, interjected 
with uuHletuIing |K>M!tivenesM a note tlmt Jay*s 
suspicions of Fnince were unfounded, —and 
this suggestion, itself unfounded, has until re- 
cently been foUowcil implicitly by historians, 
even by Mr. Kaucroft. A hundred years after 
the event, ))ai>ers from the French archives pub- 
lished by De Cireourt, the cori*cM|Mmdenee be- 
tween Vcrgennes and Luzerne, FitzhcrlHsH and 
Fox, Oswald and Shelburne, in the *' Stevens 
MSS.** and the revelations in Fitzinaurice*s 
^^Life of Slielbume,** enabled the Honorable 
John Jay to prove the absolute correctness of his 
grandfather*s oonviotions, and the consequent 
ueccHsity of the course of action he adopted. 
This new information has not yet been incor|M>- 
ratod into any life of Jay. 

Within the last year the thirtl volmne has 


bean pabludied of Domol*s ^ La partioipatioii de 
la France dans rdtablissement de Find^pendance 
des £taU-Unie«'* whidh contains the official doc- 
uments relating to the treaty of Aranjues, eluei- 
dating with extreme fullness the relations be- 
tween the courts of Parb and Madrid in the 
critical years of 1778, 1T79. The ** Jay MSS./* 
from which a selection b now preparing for pub- 
lication, and an elaborate digest, with quota- 
tions, of the *^ Stevens MSS.," liave also been 
studied with minute care ; and to these sources, 
and to the constant valuable suggestions and 
eritteisms of my uui*Io, the 1 loaorablo John Jay, 
is due whatever of now or original uiuy be found 
here. GiiX)HU£ Pkllkw. 

Kkw YoaK, March 1, 160a 


I. Toinn. 1745^1174 . • . .1 

IL COKMBTATITB WbIO liBaOEW, 1174-1176 . 23 

HI. RKTOLpnowABV Lbaimbb,. 1770*1779 • • .59 
IV. CovirmuGTiTB Statesmjoi, 1778^ 1779 • 76 

V. PRKMDBMT OK COMUHBM, 1779 , . , .10} 

VI. MiNiMTKR TO SfAiN. 1779-1782 . . . riO 
VII. NKtioTiAtoH or Pkacr: Tub Attitvob or 

KuANCK iw 1782 144 

VIII. Tus Nkootiationis 17^2, 17S3 . . ItW 

IX. Skcketahy roE FoaEUiw Affaiui, 1784-1789 • 229 

X. Ciiisr JusTioK or tub Umitbd Sjtatbb, 1789- 

1705 ........ 2U2 

XI. 8PKCIAL Envoy to Great fiEiTAUf. 179i» 179S 2M 
XII. QovKRMOR or New York. 1795-1801 . . 318 

XUI. Isf Rktiremrkt, 1301-1829 . • . . S40 




1746-1774. • 

John Jat, the eighth child and lixtli son of 
Peter Jay and Mary, the daughter of Jaoobua 
Van Corthindti was born in the city of New 
York, on the 12th of December, 1745. His 
father was a wealthy merchant, who retired 
from business at the ago of foiiiy to live at a 
country house and farm at Rye in Westchester 
County. The family was of French descent; 
the great gnimUather, Pierre Jay, a Huguenot 
merchant of La Itochelle, left France on the 
revocation of the Kilict of Nantes, when tlie 
greater part of his i>ro|Kn*ty was confiscated, 
and died in England. The gnimlfather, Augus- 
tus, after many hazardous adventures, settled 
in New York in 1G86, where he married Anna 
Maria Bayard, a descendant of a Protestant 


profesior of tlieobgy at Paris, who had Uke- 
wiso chosen to leave his country for religion^s 
sake, making his home in lloUand. Through 
his wife's relations, the Buyartts and Stuy ve- 
sants, and his brother-in-law, Stephen Peloquin, 
a merchant of Bristol, England, Augustus Jay 
soon formed a large business connection. From 
Bristol came invoices of kerseys and mohairs, 
hats, gloves, and beer; to the Barbadocs he 
shipped flour, bi*cad, iK>rk and hams, receiving 
in returil cargoes of sugar and rum ; and occa- 
sionally his ships made adventures to Surinam. 
Peter Jay soon became a partner with his father ; 
in 1740 his name ap|)ears as one of the alder- 
men of the city of New York; and the family 
was allied with the manorial families of Van 
Cortlandt and Philipse, to which was soon to be 
added the most influential of all, the family of 

From Peter Jay, who seems to have been a 
typical New York merchant of the last century, 
^ a gentleman of opulence, character, and repu- 
tation,*' ^ his son John inherited many marked 
traits of character, as is testified by the now yel- 
lowing pages of the old merchant's letter book. 
In letters to his son James,' in England, even 

» Jonoa, Hirtor^ of New York, iL 223. 
* Aftorwardt knii^hted for hit lucceu in raiMiiff fundi in 
England for King's CoUcge, now Columbia CoUego, a member 


10 tli0 brief bnaineM-Iike notioet of the death of 
relations, is shown the piety of the man and of 
the family : *^ Let us endeavor to adhere to the 
worship of God, and, observing his holy ordi* 
nances as the rule of our lives, let us disregard 
the wicked insinuations of libertines, who not 
only deride our most Holy Religion and the 
professors of it, but also endciwor to gain prosi- 
litos to their detestable notions, and so rob the 
Almighty of the honour and adoration that is 
due to him from his oreaturos/* ^ 

Now and then a casual sentence opens a tiny 
ehink through the shutters that close so tightly 
round that little family circle. ^^When you 
come home," his father reminds James, ^^ don^t 
forget to bring me Bishop Patrick's Devout 
Christian, a book you doubtless well remember, 
as it contains the family prayers we always 
use.'* ' ^^ I desire you," he says a few months 
later, **to make me a present • . • of a box 
with five or six groce of neat long pipes, but 
not very long and weighty, and to your mother 
an oval tortoise shell snuff box, with a joint to 
the lid, the length of the box not exceeding six 

of the New York Sonata, and a pliytlcianof diailnction in N«w 

> To Jamea Jay, Deoetnbor 7, 1751, LeUer Book of PtUr 
Jay^ lii. 

3 .September 2, 1754. 

4 . JOBS J AT. 

inches.** * One wonders whether Jainc«i when 
he returned after many years, did reuieni]i)er 
that snuff box so minutely described, and 
whether it was the reooUection of tho^e ^ neat 
long pipes ** that made John Jay always so fond 
of long ^* Church wardens.*' 

'Occasionally politics are mentioned. There 
is, however, nothing but loyal enthusiasm for the 
success of the troops during the French War, 
honest regard for the successive governors, and 
regret for their mistakes and mischances, csi)e- 
cially for the fate of Sir Dan vers Osborne, ^^our 
late new Governor," who ^ very unhappily com- 
mitted a violence ujMn himself, and was found in 
a melancholy situation fastened with his hand- 
kerchief.**' But from the date of the Stump 
Act and the nieasuivs ruHtrieiivo of trade, that 
were passed simultaneously with its re])eal| the 
tone gradually changed. ^^ Our colonists cannot 
digest the hard measure they are. dealt with in 
Parliament at home, when at the same time 
they think the sugar islands are greatly in- 
dulg*d to their prejudice. . • • The political 
views of the great, in measures in ^i&favour of 
the Colonyes, are to me impenetrable ; they may, 
for aught I can conceive, tend to very satisfactory 
ends, but they are considered here by the most 

> NoTcniber SO, 1754. 

* To David Peloquiii, Oetober 24, 1753. 

rouTM. 6 

jttdioioas in a very different ligfatt M the un- 
happy oooasion of malcing very bad impressions 
on the minds of the people, and tlie kybg a 
foundation for much trouble, that will sooner or 
later be the inevitable consequence of too harsh 
usage. In my situation in life, the measures 
complained of can very inconsiderably affect 
me, and thus far they give me no concern, but 
nevertheless I can't help liaving a feeling for 
the great numbers who are likely to suffer by 
them.*' ^ Tlie hard times that followed are 
noticed briefly : ^^ The reasonableness of a gen* 
ei-al coinphiint of the dilBcult times in these 
Colonyes by tlie great restrictions lay*d on trade, 
etc., begins to manif«;st itself by frequent fail- 
uix's, and by a shocking general bad pay among 
the ))eoplo ; ** ' and as the year advances to its 
close, tiio langimgo becomes stiHinger, and the 
keen-eyed merchant iiegins to see pretty clearly 
the meaning of what is taking place. ^^The 
general and spirited resentment that prevails in 
the Colonyes,*' he writes on November 25, 1765, 
^* gives reason to expect that the enforcing the 
Stump Act will be op]x>sed at all events, and 
then England as well as the Colonyes may both 
have reason to^ curse the first promoters of it, 
who by this imiK>litick act have effectually 

1 To Darid Peloqain, May 7, 1705. 
S To tanitt, Juuo 4, 1705. 


united the Mforal Colonyea into the etrongeit 
tyes of mtttttal intereat and friendship, which 
poliUcal measures of former Ministrys, we al- 
ways thought, tended to prevent.'* ^ 

Peter Jay, then, was a sound Whig from the 
beginning, and his son naturally took the same 
independent standi When the final appeal 
to arms came, Peter Jay remained true to his 
Whig principles, though no extremist. **6od 
grant," he wrote to John, in the spring of 1776, 
^^ that all attempts of the ministerial troops may 
be frustrated, and be the means of a happy 
reconciliation,**' a curiously illogical wish, but 
one tliat reflected closely the Whig popular 
opinion of a few months earlier, and which was, 
even then, the wish of both father and son, and 
of a majority of the Congress. 

One letter more may be quoted, full of char- 
acter, and of character tliat did not die with 
the writer. It was written in 1771, to his son 
John, and is about a dispute with a neighbor, in 
itself unimportant : — 

**Dear Johnny, — Your brother tcUt*roo Mr. 
BayArd and you liuve agreed about the ruod. The 
settlement of our iott never was an object to me, and 
had tliat gentleman condescended to ask me for a 
road as a matter of favour he should have luul it. 

* To DaTid PeloqtttB. 

s April 18, 1770, /ay MSS. 

rouTM. 7 

Hii aUenipl to draw ma into tho moMiiN bjr rogsid 
to mjr own interest, wm a little {neee of art which I 
wat determined thould not tneeeed. • • • Design it 
not hb talent, he had better act with candor and 
openness. His threats of an Act of Assembly and an 
Application to the CorporatioOi wore better calcu- 
lated to excite ridicule tlian fear. I have nothing to 
ask or fear from any man, and will not be compelled 
into measures. The truth of his former pretences 
appears now from his consenting to pay so dearly for 
a road ; tell him he may have his land and a road 

Piety, independence, and a keen sense of jus- 
tice were natural birthrights in the Jay family ; 
to these several generations of successful bust* 
ness men had added the more worldly virtues 
of prudence and perseverance, while from hia 
father John Jay seems to have inherited a firm- 
ness of character which, in excess, would have 
been obstinacy, and a strength of feeling seldom 
suspected because united with unusual self-con- 
trol. It is also noticoablo that of Jay*8 great 
grandparents not one was English, three were 
French and five Dutch, so that he was one of 
the few men of the Revolution who could say, 
as he did in 1790, ^'not being of British de- 
scent, I cannot be influenced by that tendency 
towards their national character, nor that par* . 
1 To Jolui Jay, 1771, Ja^ MS8. 

8 joav JAY. 

tiality for it» which might otherwise he tuppoeed 
to he not unoatural." This fact in itself, com- 
hined with the hatred of interference traditional 
among merchants, maj have had no little iniiu* 
ence in making John Jaj a leader in the Amer- 
ican Revolution without his ceasing to be, or 
rather because he was, a conservative. 

The jear of his birth he was taken. to Bye, 
and there his early childhood was passed in the 
old Jay house, which at that time was *^ a long 
low building, but one room deep,*' extended, as 
the family increased, by some eighty feet in 
length.^ After surviving an attack of sore 
throat, of which a younger sister died, and es- 
caping the dreaded smallpox that left his brother 
Peter and his sister Nancy totally blind, he was 
taught by his mother *^ the rudiments of Eng- 
lish, and the Latin grammar." *^ Johnny is of 
a very grave disposition and takes to learning 
- exceedingly well,'* wrote his father, when the 
boy was nearly seven years old ; '' ho will be 
soon fit to go to a grammar school ; '* ' and to a 
grammar school he acconlingly went the next 
year. *^My Johnny gives me a very pleasing 
prospect,*' wrote Mr. Jay again in the autumn ; 
^ he seems to be endowed with a very good ca- 
pacity, is very reserved and quite of his brother 

1 Scharf, Wtt of Wtttchtsttr Co., iL 072. 
< To JaoMMi Jay, July 8, 1752. 

rouTM. 9 

James*! diipotitioii for books.** ^ The sehool 
WM kepi by the Rot. Peter Stoope» the pestor of 
the French Hogoeiiot Church, then Litely joined 
to the Episcopal Communion* at New Rochelle. 
He was by birth a Swiss, an eccentric man, rery 
absent-minded and wholly devoted to mathe- 
matics, so that the parsonage was allowed to fall 
into decay, and the boys were half-starved under 
the management of his wife, *^ who was as pe- 
nurious as he was careless.** To keep the snow 
off his bed in winter, John used to stuff the 
broken iKines of his window with bits of wood. 
But the plain food agreed with him, his health 
was excellent, and he used to recall afterwards 
the pleasure he liad in the woods picking nuts, 
which ^*he carried home in his stockings.*' 
French was spoken generally at the parsonage 
and by the people of the village, who were, as 
its name suggests, chiefly descendants of French 
refugees ; thus he easily and early learned the 
language that was to prove so useful to him. 
At New Rochelle he stayed for three years, 
when he was taken home to Rye, and prepared 
for college by a tutor, Mr. George Murray. 

Jay entered King's (now Columbia) College, 

in 1700, when he was but a little over fourteen 

years old. For admission he was required to read 

^^ the first three of Tully*s orations, and the six 

1 To MeMn. D. ^ L. P^loqain, Oct. 24, 1753. 


first books of Vtrgirs JEneids into English, and 
tlie ten first obaptcrs of St John's Gospel into 
Latin/* to be well versed in Latin grammar, 
and to be ** expert in Arithmetick as far as Bo- 
duction/* Ai that time the college was under 
its first president, the learned and pioUs Dr. 
Samuel Johnson, an old friend of I^Ir. Peter 
Jay, whose eldest son Augustus had studied 
reading and writing at the doctor's parsonage 
at Stratford. Dr. Johnson was a gentle, studi« 
ous man, who had been one of the first gradu- 
ates of Yale College to desert Cougregational- 
ism for the Church of England. Single-handed 
at first, then with one and afterwards two aHsist- 
ants, ho instructed the few students of Kiiig*s 
College, and was just gaining some success, when 
ho resigned on the death of his wife of the 
miall|K>x, which for some years had been epi- 
demic in New York, and for fear of which be 
scarcely ever ventured out of doors.^ Young 
Jay early won his regard, and on Dr. Johnson's 
resignation in 1763, he learned from his father 
that the doctor wished to hear from him. ^^ I 
would have you gratify him with a letter, which 
he lias a right to exjiect from you, and, although 
I believe things go well in the college now,-' 
Mr. Jay suggested with characteristic caution, 
*^yet I would not Imve you write more than 

^ Bttird, Lift of Dr. SatiHttl Juhmon. 

rOUTB. 11 

may b« eomnittnioated out of college.^ ^ The 
boy wrote eoeordingly, and the late pieetdent 
answered promptly, incidentally showing how; 
early, with its unfamiliar strains of wild ro- 
mance, McPherson's bombastic Ossian charmed 
the fancy even in America : ^ I gave Brooks a 
much better and more correct copy of what I 
had added to Ossian*s Address to the Sun than 
what you had before, from which I wish you 
and all of them would exactly transcribe for the 

Of Jay^s college life little is known. During 
the first two years he lodged at the house of 
Lawrence Homer, a painter, at ^^ the corner of 
Yerlcttcnburgh Hill and Broadway,*' and the 
last two years he had rooms in the college. 
He set himself at once, of his own accord, to 
curing certain defects of utterance and rapid 
reading, and he made an enthusiastic study of 
English composition, a study that bore fruit in 
the graceful and easy, but at the same time 
often laconic style for which he was noted, and 
which in the first Continental Congress at once 
placed him in ^ the little aristocracy of talents 
and letters" with William Livingston and 
Diekiusou.' ^^ 3^Iy son John has now been two 

> Auffuat, 1763. Jay MSS, 

s From Rttv. Dr. S. Johnaom Oct 27, 17C3, Jay IISS. 

• John AdamM'M Workt, x, 7U. 


yean at ooUege/* wrote Mr. Jaj, ia 1785, 
** where he proseoutet hU etudyee to latiafae- 
tton. He is indued with very good natural parti, 
and it bent upon a learned profession. I be- 
lieve it will be the law.'^^ In bis last year at 
college, Jay, then ** a youth remarkably sedate 
and welklisposed ** * as his father called him, de- 
termined on the law as his profession, and is 
said to have begun his preparation for it by 
carefully reading through Grotius *^ De Jura 
Belli et Paeis,'* and its discussion of inter- 
national law and so-called natural rights may 
have seemed to have a bearing on the perplex- 
ing and pressing problems of the day. His de- 
cision to study law was apparently the result of 
thought and deliberation^ as Mr. Jay wrote to 
him on hearing of it : *^ Your observations on 
the study of the law I believe are very just, and 
as it *s your inclination to be of that profession, 
I hope you*ll closely attend to it, with a firm 
resolution that no difficulties in prosecuting 
that study shall discourage you from applying 
very dose to it, and, if possible, from taking a 
delight in it" « 

In 1763, Dr. Johnson was succeeded as pres- 
ident by Dr. lilyles Cooper, ^^a wit and a 

> John Adam$'$ Worh9, April 14, 1763. 

* To Darid Peloqiiin, Letter Book, May 10, 1703. 

• Augwt 23, 1703, Jay MSS, 

XOffTM. 18 

■oholar/* said Verplanok, ^whoM letming and 
aooompliahmeiito gave him personal popularity 
and respect with his pupils, and of course added 
authority to his opinions, and tliose were tlie 
o)iinions and prejudices of the high-toned £ng« 
lish University Tory of the lust century.*^ ^ 
Twelve years later, to escape a mob, this good 
gentleman was forced to leap over the college 
fence with an undigntlled precipitation little be- 
fitting a poet and a Fellow of Oxford, and ha 
sailed forthwith for England; but at this ear- 
lier time he was not unpopular, and he was al* 
ways spoken of resiicctfully by Jay, who might 
naturally have resented wluit he then deemed 
a moat unjust punishment in the following 
matter. One day a number of students in the 
College Ilall began to break the table,-— such 
at least is the traditional description of their 
nefarious enterprise. The president heard the 
noise, went in, and asked one student after an* 
other : *^ Did you break the table ? '* *^ Do you 
know who did?" All answered **No,** until he 
came to Jay, who was the last but one. To the 
first question Jay answered like the others, to 
the second question : ^^ Yes, sir.'* *^ Who was 
it ?*' asked Dr. Cooper. ^^ I do not choose to tell 
you, sir,*' was the stuiily reply; and the next 

* Guliaa Verplaack, AddrtiM be/ore CoUtge Soacfici, Augiwt 


^jX boy answered m Jay dUl These two 
^ere called before the professors, when Jay ar- 
gued tDgeoioosly and reasonably enough that, 
as informalton against fellow-students was not 
required by the College Statutes, they were not 
techuieally guilty of disobedience in not inform- 
ing; but the professors were uneonvinocd, and 
Jay was rusticated only a short time before ho 
was to graduate. Mis term of 8U8])cn8iou over, 
he returned to college, and at the Commence- 
ment held in May, 17G4, in the presence of 
General Gage, his majcsty*s council, and other 
notables, delivered a dissertation on the bless- 
ings of peace, and received his bachelor's degree. 
Two weeks after leaving college. Jay en- 
tered, as a student, tlie ofHee of lieujamiu Kis- 
sam, a barrister ^ eminent in the profession,** ^ 
binding himself an apprentice, on the payment 
of X200, to serve for (ive years, with liberty to 
apply the last two years to the study of the law, 
and to visit the sessions with only occasional 
attendance then at tlie oilice. This arrange* 
ment was a happy ending of much anxiety on 
the part of Mr. Peter Jay, for the lawyers of 
New York had a few years before made an 
agreement to take no one as clerk who pro- 
posed to enter the pt*ofession, and a new and 
more liberal agreement ^^ under such restrie- 
i Utter Book, May 15, HiM. 

rouTB. 15 

tioni,** however, **m will greatly impede the 
lower olass of the people from ereeping m/*^ 
was made only in time to prdvent Jay from 
starting for England to get a profesaional 
education there. 

""The office duties of clerks at that period/* 
according to Potor Van Schaaek, who three 
years later was studying under William Smith 
of the same bar, ^^wore immensely laborious; 
everytliing was written, and the drudgery of 
copying was oppressive. Printed blank forms, 
which are now used by the profession with so 
nmch economy of time and labor, were then un* 
known. £ven the argument of questions of 
law before the Supreme Court was conducted 
in writing.*' ' The law books of the time were 
the )K>ndcrous tomes of reports and digests that 
precedetl Blackstone*s Commentaries, which did 
not reach America till the third year of Jay*s 
apprenticeship. In this drudgery Jay had as 
companion for a while Lindlcy Murray, after* 
wards the famous grammarian, who was soon 
struck by the unusutil qualities of his fellow- 
student, qualities which, as he then noted them, 
were charaeteristio of Jay throughout a long 
life. *^ lie was i*onmrkablo,*' said Murray, 

> Lener Jiook, Maf 15, 17(M. 

* Lift rf Ptttr Van Sckaack^ bj Ikmy Yah SoluuMsk, pp. 

16 ' JOBS JAT. 

^for strong reasoning powers, oompreliensire 
views, indefatigable application, and uncommon 
firmness of mind.'*^ With Mr. Kissam Jay, 
though very young and only a clerk, was be fere 
long on terms of intimacy. Many years after- 
wards, he had the ])leasuro. of introducing Kia- 
6am*s son to John Adams, with the remark, that 
the father was **one of the best men I have 
ever known, as well as one of the best friends 
1 have ever had." ' 

In the sixties the must of the Revolution was 
already fermenting, but {Kilities were apparently 
ignored by both master and elerk except so fur 
as concerned ^their legal bu.sineH.4. In April, 
17GG, Mr. Kissam proposes going *^on a jaunt** 
to Philadelphia, if the news of the repeal of the 
Stimp Act does not arrive in the mean time; 
for as, ho writes, *^ on the Kepeal of the Stamp 
Act we shall doubtless have a luxuriant harvest 
of law, I would not willingly, after the long fam- 
ine we have had, miss reaping \\\y part of the 
harvest • • • As soon as it reaches you, I beg 
you *11 come down, and bo ready to receive all 
business that offers." ^ Kissam, while absent, 
wrote to' ask about the conduct of the oirice, and 
Jay replied in a letter tliat was, as he expressed 

* Autobioyraphg of Lindlry }f array, 

< To John Ailtttim, Kb. U), 17SS, Jay MSS, 

* To John Jay, AprU 25, 1700, Jay MSS. 

TOUTB. 17 

it, ** free enough in all conscience : *' ** If by 
wanting to know how matters go on in the 
ofiice, you intend I shall t4*ll you* how often 
your clerks go into it, give me leave to remind 
you of the old law maxim, that a man's own 
evidence is not to be admitted in his own cause. 
"Why? Because 't is ten to one he does violence 
to his conscience. If I should toll you that I 
am all the day in your ofllco, and as attentive 
to your interest as I would bo to my own, I 
8UH|)cet you would think it such an impeach* 
ment of my moilcsty us would not o^K^rate very 
j)o\vcr fully in favor of my veracity. And if, 
on the other hand, I should tell you that I^ 
mako hay while the sun shines, and say unto 
my soul, ^Soul, take thy rest, thy lord is 
journeying in a far country,* I should bo much 
mistaken if you did not think that the confes- 
sion looked too honest to bo true.*' ^ The fun 
of a lawyer of twenty-one in 17CC does not, per- 
Imps, bear quoting, but it shows the familiar, 
pleasant I'clationship ho had already esUiblished 
with his '* master," and tho boyish gayety that 
was so soon, pi*rforeo, concealed by an acquired 
or natural gravity. It was about this time, too, 
that Jay by a diplomatic, though not insincere, 
reply got his father's leave to keep a horse* 
**John, why do you want a horse?" "That 
1 Jat, Lifr o/ JuAn Jg^ L la 

18 JQBH J4r. 

1 nay have II19 vmam, sir, of viMtisg yoo tr^ 
qiienUy.** The fgot^wM that then, m in after 
yeara. Jay suffered from ill health, eipeeially 
from dyspeptia, and found his best medioine in 
regidar exercise. 

In 1768 he was admitted to the bar, and be- 
came almost immediately suceessful, forming at 
first a temporary partnership with llobcrt li. 
Livingston, afterwanis Chancellor of the State, 
and Secretary for Foreign Affairs. Uciijamin 
Kissam, when unable to attend to his own busi- 
ness, would often ask Jay to act for him, and a 
letter of his shows the nature of the cases: '* One 
is about a horse race, in which I suppose there 
is some cheat ; another is about an eloped wife ; 
another of them also ap|)ertains unto horse 
flesh. • • • There is also one writ of Inquiry." 

The practice of a country lawyer to-day could 
scarcely be less interesting. Indeed, before the 
Bevolution, so far as can be gathered, the chief 
law business, even in New York, consisted in 
suing out writs of ejectment, and in collecting 
debts due to English mercliants. It was seldom 
tliat a ease arose like that of Zwcnglcr, involving 
principles of constitutional law, and establishing 
the reputation of the victorious counsel. One 
cause only of some consequence is mentioned, in 
which Jay was engaged, tliat of a contested elec- 
tion in Westchester County, in which the right 

rouTB. 19 

of suffrage wat disoussed^ and queationt of ovi« 
denoe of more than usual intricacy arose. On 
this occasion Jay was opposed by his friend Gou- 
vernour Morris, In 1770 Jay sfieaks of going to 
Fairfield to try two causes ; ^ and in 1774 he is 
addressing a jury at Albany. lib practice, then* 
was varic<l, though he was engaged in no great 
cases, and was at no time noted for brilliant or 
*^ niagnetio *' oratory. In after years his ^* quiet, 
limpid style, without gesture,** attracted the at- 
tention of the younger Hamilton during the 
great debates on the ratilieation of the Consti- 
tution in the New York Convention, and, as 
a young lawyer, ho must have been unusually 
clear-lu^uded and tactful. ^^ All the causes you 
have hitherto tried,** >vrote Kissam in 1769, 
*^ have been by a kind of inspiration.** ^ These 

* two still continued great friends, though some- 
times engaged on opjjosite sides. On one such 
occasion Kissam, in a moment of embarrassment, 
complained that he had brought up a bird to 

. peck out his own eyes. ^ Oh, no,** retorted Jay, 
^^ not to peek out but to o}>en your eyes.** 

In November, 1770, a number of lawyers in 
New York formed ** The Miwt,'* a club that met 
the first Friday of every month for the discus- 
sion of disputed ]K>ints of law. Jay was one of 

1 To l>r. KiHHam, March ]« 1770, Jay MSS, 

> From Uiiiiaiuin KinMin, Nov. 0, lH3i\ Ja$ MSS. 

20 JOHN jAr. 

the younger members, together with his eoUege 
friends, Egbert Benson, in due time Judge of 
the New York Supreme Court ; Robert R. Liv- 
ingstoo, Jr. ; James Duane« Jay*s colleague in 
the Continental Congress, and first mayor of 
New York after the Revolution ; Gouverneur 
Morris, as yet without that wooden leg which he 
brandished with such happy effect in the face of 
a Paris mob; and Peter Van Scliaack, whom 
Jay was to exile from the State, but who loved 
him to the end, and wrote an epitaph on him ; 
while among the older lawyers, wlio attended 
occasionally, were William Smith, wlio later bo- 
came Chief Justice of Canada, after having been 
confined in Livingston ^lanor, and banished as 
a Tory sympathizer ; Samuel Jones, the Chief 
Justice, whoso ofiice was to bo the training 
school of De Witt Clinton ; John Morin Scott, 
the popular orator of the Liberty Uoys, lawyer, 
patriot, and general ; William Livingston, and 
Benjamin Kissam. Tlte decision of the club on 
a matter of practice is said to have been followed 
by the Su|)erior Court; and its sessions must 
have been invaluable to the younger members. 
Party politics of the province were a forbidden 
topic at the meetings, which were long remem- 
l>ered with delight ; ** a recollection," wrote Van 
Schaack to Jay before many years had passed, 
^* of those happy scenes, of our clubs, our moots. 

rouTB. SI 

and our Brotdway •veniugSi fills me with {deat- 
tng melancholy refleotiona* -^fulmuM Troe$^fuit 

In tlie mean time the young lawyer's practice 
steadily increased, and in the autumn of 1771 
he was able to write to Dr. Samuel Kissam, a 
college friend in business at Surinam : ^ With 
respect to business I am as well circumstanced 
as I have a right to expect ; my old friends con* 
tribute much to my happiness, and upon the 
whole I have reason to be satisfied with my share 
of the attention of Providence."' Not many 
lawyers of twenty-six can say so much to^lay. 
Two years later his oflieial or public life began 
with his appointment, February 17, 1773, as 
Secretary to the Royal Commission, to determine 
the disputed boundary between New York and 
Connecticut The following year, April 28, 
1774, at patriotically named *' Liberty HalV* 
Elizsibeth, New Jersey, he married *^ the beauti- 
ful Sarah Livingston,*' the youngest daughter of 
William Livingston, soon to be tlie famous rev- 
olutionary governor of New Jersey, and already 
well known for countless literary and political 
poems, letters, and essays. Li the notices of the 
wedding, Jay, young as ho was, could be de^ 
scribed as ^' an eminent barrister," ' — the same 

1 Xi/f •/ Ptttr Yarn Schaaek, p. 100. 
« Auirast 27. 1771, Jag MS3, 
• Stuf Ytrk GoMtte, May 9. 1774. 


pbiate that wm applied to him a month or two 
later by Lieutenant OoTernor Golden. 

With this spring closes the first third of Jay*t 
life, of which, as curiously happened, the second 
third of twenty-eight years was spent wholly in 
the public service, and the last third wholly in 
retirement. So far as can be gatheit^d from the 
meagre records extant, his tiventy- ninth year 
found him a studious, quiet lawyer, devoted to 
his profession and but little excited by tlie poli- 
tics of the day. As a boy ho was not precocious; 
no brilliant-winged creature like Hamilton, but 
a lad *^ remarkably sedate.** His' college life 
won him no sudden reputation like that of so 
many English statesmen from Pitt to Gladstone, 
but it did win him the love and esteem of many 
friends that continued till his death. Carefully 
and well nurtured, in the comfortable society of 
honorable relations aud friends, occupied in the 
profession of his choice, successful in the love 
of his heart, he was now a slender, graceful man, 
with refined, handsome, serious face; whose 
slowly matured character had rii)ened to well- 
balanced wisdom unconsciously and apparently 
unsus|)ected. By family traditions he was inde- 
I)endent of England, and a Whig ; and now by 
marriage ho was connected with the great Whig 
family of Livingston, which had for generations 
contested the province with the Tory De Lan- 



1774 -177e. 

^Thhouqhodt America the eonttitaiieM 
favored individuality. Under the eareleae role 
of Great Britain, habits of personal liberty had 
taken root, which showed themselves in die 
tenacity wherewith the people clung to their 
habits of self-government ; and so long as thoie 
usages were respected, under which they had 
always lived, and which they believed to be as 
well established as Magna Charta, there were 
not in all the King's dominions more loyal sub- 
jects than Washington, Jefferson, and Jay.*' ^ In 
1778, Jay was as loyal as any man ^ in all the 
King's dominions ; " in 1776, as chairman of a 
secret committee, lie was punishing with impris- 
onment and exile many men whoso only crime 
was retaining the opinions he himself bad held 
three years before. Yet, in the meanwhile, Jay's 
priuciplcs of conduct and his mental attitude 

^ Brooks Admmi, Tie Emaneipotion of MasMehuutis^ pp, 


were nnehanged. IIow such eould be the eate 
11 worth inquirj ; especially as Jay, rather than 
impulsive men like Adams, or quick-witted men 
like Hamilton, was typical of the generation that 
fought the Revolution. 

In 1773 the tax on tea was imposed. On 
October 25th the Mohawks of New York, a 
band of the Sous of Liberty, were ordered by 
their old leaders to bo on the watch for the tea 
ships ; ^ and it was merely the chances of time 
and tide that gave the opiK>rtunity of fame first 
to the Mohawks of Boston. December 15th, 
soon after the Boston tea party, there was re- 
vived the old organization of the Sons of Lib- 
erty, which had first been formed to put down 
the Stamp Act, holding together after the repeal 
of that measure to oppose such acts of Parlia- 
ment as the Mutiny Bill, and which, as late as 
1770, established a committee to enforce non-im- 
portation.^ An *^ association *' was now circulated 
for signatures, engaging to boycott, ^^ not deal 
with, or employ, or have any connection with *' 
any persons who should aid in landing, or ^^ sell- 
ing, or buying tea, so long as it is subject to a 
duty by Parliament ; " ' and December 17th a 
meeting of the subscribers was held and a com- 


> Leak«, Life of John Lamb, p. 70. 

< Jbid., pp. 2, OU. 

• Niw York Jtfyrna/, Doo. 10, 1773. 


mittoe of fifteen ebosen as a Committee of Cor* 
respondeoce that was soon known as the Vigi* 
bnce Committee. Letters also were exchanged 
between the speakers of many of the houses of' 
assembly in the different provinces; and Jan- 
uary 20» 1774, the New York Assembly, which 
had been out of touch with the people ever since 
the Stamp Act was passed in the year after its 
election, appointed their Speaker, with twelve 
others, a standing Committee of Correspondence 
and Enquiry, a proof tluit the interest of all 
classes was now excited. April 15th, the Nancy 
with a cargo of tea arrived off Sandy Hook, 
followed shortly by the London. The Commit* 
tee of Vigilance assembled, and, as soon as Cap- 
tain Lockyier of the Nancy landed in spite of 
their warning, escorted him to a pilot boat and 
set him on board again, while the flag flew from 
the Liberty Pole, and cannon thundered from 
the ''Fields.*' April 23d, the Nancy stood out 
to sea without landing her cargo, and with her 
carried Captain Chambers of the London^ from 
which the evening before eighteen chests of tea 
had been emptied into the sea by the Liberty 

The bill closing the port of Boston was en- 
acted March 31st, and a copy of the act reached 
New York by the ship Samuon on the 12th. 
i L«Ake, Lift nfJithn Lamb, pp. 81-M. 


Two days, later Uie Committee of Vigtlanoe 
wrote to the Boston Committee nMNmiimmding 
yigorous iiK'aHiiroB an tlio iiumt efTeetiiaU and 
aAfturing them that tlieir courne wouki be heart- 
ily Bupiiortod by their brethren in New York.^ 
So rapid had been the march of events that not 
till now did the merehauta and renponsible eiti« 
sens of New York take alarm. Without their 
ooncurrenee or even knowledge they were being 
rapidly compromised by tlie unauthorized action 
of an irresponsible committee, composed of men 
wlio for the most part were noted more for enthu- 
siasm than judgment, and many of whom had 
been not unconcerned in petty riots and demon- 
strations condemned by tlio better part of the 
community. The one wen|M}n in which the Sons 
of Liberty trusted was ^' Non-iui[>ortationy" a 
prohibition of trade with Knghind, and this was 
a measure whicli injured the meivhants of New 
York more tiuin any others, and had been aban* 
doned in 1770 as a failure. ** The men who at 
that time called themselves the Committee," 
wrote Lieutenant Governor Coldcn the next 
month, ^^ who dictated and acted, in the name. of 
the people, were many of them of the lower 
ranks, and all the warmest zealots of those 
called the Sons of Liberty. The more consid- 
erable merchants and citizens seldom or never 
1 Leake, Life of John LanA, p. 87. 

eoNasRVATire wma hcadkm, 27 

appaared among tlioin. • « .'Tho principal 
inhakitantii, \mng now afraid tlmt thoao Init- 
hoaclod luon might now run tlio city into dan- 
gerous moaiurca, apiioarod in a connidcraUe 
Ixxly at the first mooting of tlio people after the 
Uoston Port Act was published hero.*' ^ This 
mooting, convoked by advertisement, was held 
May lOtlif at the house of Samuel Francis, ^ to 
consult on the measures pro]>er to be pursued.** 
It was pro|)osed to nominate a new committee 
to supersede the Committee of Vigilance, au- 
thorized to represent the citizens. A committee 
of fifty, Jay among thorn, instead of one of 
twenty-five as at first suggested, was nominated 
** for tlie approbation of the public,** *^ to cor- 
res|K)nd with our sister colonies on all matters 
of moinont.** Throe days later these nomina- 
^ tioiis wore confirmed by a public mooting hold at 
the CoiToe I louse, but not until a fifty-first mem- 
ber was addeil, Francis Lewis, as a representa- 
tive of the radical party which had boon as much 
as possible ignored. The chagrin of the Sons 
of Liberty at the conservative composition of 
the committee was intensified by the exultation, 
unfounded though it proved, of the Tories. ^* You 
may rest assured,** wrote Rivington, the editor 
of the Tory newspaper, to Knox, then a book- 
seller in Boston, and afterwards Secretary for 
> Am, Anhiptt, 4th Seriei, L 872. 


AVar, ^ no non4m- nor non-exportation will bo 
agreed upon, either here or at Philadelphia. 
The power over our erowd is no longer in the 
hands of Scars« Lamb, and such unimportant 
persons who have for six years past been the 
demagogues of a very turbulent faction in this 
city ; but their power and miHcluovous oapaeity 
expired instantly upon the eleet'um of the ('om* 
mitteo of Kifty-one, in whieh there is a majority 
of inflexibly honest, loyal, and ])rudent eiti/ens/* 
At the CoiTeo House again, on il^Iay 28il, the 
Committee of Fifty-one uiet and organized ; they 
repudiated the letter to I Boston from the Com* 
mitteo of Vigilaneu as unoilieial ; ^ a letter from 
Philadelphia was read; Paul Revere, the ^^ex* 
press" or confidential messenger from l^ston, 
attended with a letter dated Slay 13th, recpiest* 
ing concurrence with the resolves of the Hostun • 
town meeting of that day ordering non-im])orta- 
tion from (ireat Hritain and diseontinuaneo of 
trade with the West Inilia Islands; and Mo- 
Dougall, Low, Duane, and .lay were appointed 
a sulM'ouunittee, to report the same evening a 
draft of an answer to this hist. The draft, 
as re|>orted, is believed to be by Jay. It urged 
that '' a Congress of Deputies from the Colonies 
in General is of the utmost moment," to form 
^some unanimous resolutions . . • not only re* 

1 Leake, Lift of John Lamb, p. Sd. 


8i)ccting your [lesion's] deplorable cirouni* 
stances, but for tlie security of our couuuon 
rights ; " aud that tho advisability of a non-iin* 
port:ition agreement should bo left to tho Con- 
gress. This i-eport was unanimously agreed to, 
a copy was delivered to Paul Itevere, and an- 
other copy to a messenger for Philadelphia.* 
The importance of this letter can hardly bo ex* 
nggerated, for it was the first sericms authorita- 
tive suggestion of a tJeneral Congress to con- 
sider ** the eonunon rights *' of tho etdonies in 
general. The ])eoplo of Boston in tlio indigna- 
tion of the moment were preoccupied wholly 
with their private local wronjjs, for which they 
were ready to involve the continent in a war of 
commercial restrictions. The Sons of Liberty 
in New York and elsewhero were equ:Uly in- 
capable of any broader views. Tho resolutions 
about the same date, some a day or two earlier, 
some a day or two later, of ineotings in Provi- 
dence and Phihulelphia, and of tho Burgesses 
of Virginia, wore all deficient cither in being 
unoiVicial or as limiting the object of tho Con- 
gress to the (piarrol of Boston.*'' It was tho 

* SiW York Jounudt May 21, 1771. In Lf^uko's Life of 
Lambt |>. 88, tho dutu of ihU iuuctiii|; U erruuvoiuly i^iv^n 
M May 20. 

* ** Tho first, or one of the first, to olaim that the particular 
grievances of Boston were not the only ones to be considered •— t 
though the Committee of Philadelphia, in the letter forwarded 

80 J0MM JAT. 

oowmmtvf^ merebantt of New York alono wlio 
were at the tiuie calm, olear-headed, and farw 
sighted enough to urge the postponement of 
violent measures, which would then almost cer^ 
tainly have been only sporadic and abortive, 
to the discretion of a Congress concerned with 
the welfare of all. The advice of New York 
was followed gradually by the other colonics, 
but even before a Continental Congress was a 
certainty, the Committee of Fifty -one, with 
singular confidence, resolved that delegates to 
it should be chosen, and called a meeting for 
that puriK>so for July 19th. 

Meantime tiio Committee of Vigilance was 
dying bard. It still tried to 4'nforee tlie Bos- 
ton resolutions, by a system of espionage and 
threats. The cliairman of a committee of 
merchants complained to the Fifty-oiu) of these 

with tbu to Boston, ha4 adoptod lomewhAt the ume tone — 
and tho fint to propoM n Conveution of all the Culoniet to 
tako eoneertod aetion on all their grievanoea ; for the recom- 
BMndation of the town of ProYidence, May 17, only requested 
their delegates hi the approaching General Asseinhly to use 
their efforts to tliat end, and the Committee of Philadelphia, . 
May 31, merely mentioned the suggestion witliout urging it.*' 
The Committee of Correspondence of Connecticut concurred 
with tho New York recommendation, June 4 ; the General 
Assembly of Rliode Island, June 15 \ tlie General Court of 
Massoohusetts, June 17, and Phihidelphia at a meeting of tho 
eitiiens, June 18. Dawson, Wtsichttier Co, during the liev^* 
/itfioR, p. IS. 


persons inquiring ^ into their private bosiness«** 
and the Fifty-one promptly denonnced them. 
This was more, than Lamb, the leader of the 
old committee, could stand. In the words of 
hi9 biographer: ** Satisfied of the intentions of 
the Fifty-one to paralyze the energies of the 
people, . • . they resolved to frustrate their 
designs,"^ and by an unsigned advertisement 
called for the evening of July Gth what was 
afterwards known as the *^ Great meeting in the 
Fields/' now City Hall Park. Alexander Mo. 
Dougall presided, and strong resolutions were 
pasiicd and pledges made in favor of non-impor- 
tntiun. Tliose pniecedings were promptly disa- 
vowed the next day by the regular committee 
as *^ evidently calculated ... to excite ground* 
less • • . suspicions, ... as well as disunion 
among our fellow-citizens;*' and a sulMsom* 
mittee was chosen to draw resolutions. Low, 
Lewis, Moore, Sears^ Remsen, Shiaw, McDou« 
gall, and others refusmg to attend, a new sub* 
committee was appointed, July 18th : Low, Jay, 
Thurman, Curteuius, Moore, Shaw, and Bache, 
. who ro]K>rted resolutions: ^^That it is our great- 
est Happiness and Glory to have been born 
British Subjects, and that we wish notliing 
more ardently than to live and die as such;*' 
that ^* the Act for Blocking up the port of Bos- 

1 Leako, life of Lamb, p. 02. 


ton U • • • tttbVenive of eveirj idea of British 
Liberty;** and that it should be kft to the pro- 
posed Congress to determine the question of 
non-importation, which would be justified only 
by ^ dire necessity."^ 

The resolutions were adopted, and Philip lay- 
ingston, John Alsop, Isaao Low, James Duane, 
and John Jay were nominated as delegates to 
be submitted to the public meeting, July 19tlu 
The people met accordingly at the Coffee House, 
and after a stormy debate elected the commit- 
tee's candidates in spite of a strong effort to 
substitute for Jay, McDougall, the hero of the 
Liberty lV>ys since his imprisonment in 1769 
for libel on tlie Tory Assembly. But they re- 
jected the proposed resolutions, which had been 
violently denounced by Lamb, that brave but 
turbulent spirit, for humility, ambiguity, incon- 
sistency, and aversion to non-importntion. Jay, 
with fourteen others, was directed to draft 
amendments. On motion of Jay, too, a commit- 
tee was appointed to relieve the distress of Bos- 
tcm. The next day Livingston, Alsop, Low, and 
Jay refused to accept their election, on the 
grounds that the meeting was not representative, 
and that they agreed in the main with the re- 
jected resolutions, so determined were they, even 
in such quasi . revolutionary proceedings, tliat 

1 Stw Yi^k Journal, July 14, 1774. 


nothing should be done except decently, and in 
order. It is known that the popular party 
wished to have the nominations referred for 
approval to the Committee of Mechanica, a 
trade organization which now, like every other, 
began to take part in politics, and which pro- 
fessed to represent, and to some extent was the 
sole representative of, the unenfranchised and, 
as ever in times of excitement and in cities, ex* 
tremely radical masses ; while the majority of 
the Committee of Fifty -one wished the nomi* 
nations submitted to the Freeholders and Free* 
men, as at ordinary elections.^ A compromise 
was happily effected. Polls were ordered by 
the committee to be opened July 28th for the 
election of delegates in each ward under the 
superiutendeucy of the aldermen and members 
of the Coiimiittee of Fifty-one and of the Me- 
chanics* Committee.' In answer to letters from 
the latter tlie candidates stated that they be- 
lieved at the moment in the propriety of non- 
im|)ortation, but were determined to hold them* 
selves free to act, if elected, as should seem 
best in tlie Congress. In this concession the 
mechanics, meeting at the house of Mr. Mar* 
iner, acquiesced.^ At the election Jay and his 
colleagues received a unanimous vote. 

> Leaka, Life of Lamb, p. 04. 

s Livingston, Gaxtttt, July 28, 1774. 

• N. Y. Journal, Anguit 4, 1774. 


Tbaa, fortunately, at the ?erj inoeptton of 
tho ReToltttion, befcuro tho faintest ektter of 
arms, the popular moTement was placed in 
charge of the Patricians as tboy were called, 
rather than of the Tribunes^ as respectively 
represented by Jay and McDougall. *^The 
former were com|)osed of the merchants and 
gentry, and the latter mostly of^ mechanics. 
The latter were radicals, and the former joined 
with- the Loyalists in attempts to check the 
influences of the zealous democrats.** ^ At the 
meeting on May 19th, which ratified the elcc< 
tion of the Committee of Fift3'-one, Gouvemeur 
^lorris was present, and remarked with uncasi* 
ness the successful attempt of the minority to 
control the more numerous but less skillful 
party. For at the moment a reaction seemed 
imminent ; and the next day he wrote with some 
bitterness, ^ I see, and I see it with fear and 
trembling, that if the disputes with Britain con* 
tinue, we shall be under the worst of all passi- 
ble dominions. AVe shall be under the domina- 
tion of a riotous mob.** ' As it happened, the 
Tribunes succeeded in modifying to suit them- 
selves the resolutions adopted, and the Patri* 
ciana succeeded in sending the delegates of 
their choice unpledged to the Congress. 

« Ltmung, Wit. o/X. Y. Ciijf, i. IV2. 

' Goaverneur Morria to Pcnn, May 20, 1771, Sparlu, G. 
Mcrrii, i. 25. 


On Monday, August 29th, Jay set off for 
Philadelphia alone, and without announcing hia 
departure, though he joined hia father-in-law, 
Wiiliain Livingston, at Elizabeth, thus avoiding 
the oompliincntary farewell with which the peo- 
ple t|)oeiled hi« fellow-delegates. *^ Mr. Jay is 
a young gentleman of the law, of about twenty* 
six [in fact, twenty-uine], Mr. Scott says, a hard 
student and a good speaker,** is the entry in the 
diary of John Adams, jotted down a few days 
earlier, as he, too, was riding on to Philadel* 

There the Congress met at Carpenters* Hall, 
on September 5th, and the delegates sat stead* 
ily day after day, for six weeks, from eleven till 
four o'clock.' Here for the first time were gath- 
ered together from the different colonies repre- 
sentative men of every shade of opinion, whose 
reputations and very names were as yet for the 
most part unknown to one another. ^^To draw 
the character of all of them,** wrote John Adams, 
after the lapse of half a century, *^ would require 
a volume, and would now be considered a cari- 
cature print, — one part blind Tories, another 
Whigs, and the rest mongrels."' It was nat- 
ural enough that such should be the case, for the 

1 JchnAdamit WwhsMX^, 

' Sparks, iiouvtrntur Morris^ i. 217* 

* John Adam$'M M'orkM, z. 78, 70. 


Congrew was not a revolutionary body in tho 
senae in which the phrase oonld be applied to 
the provincial congresses and conventions of the 
next few years. In its origin and organization 
it itsnrped no illegal authority, but was a purely 
consultative assembly, like those that had met 
occasionally in times of emergency earlier in the 
centur}'. ^ The powers of Congress at first were 
indeed little more than advisory/' said Judge 
Iredell of the United States Supreme Court; 
^^but, in proportion as the danger iuei*eu8ed, 
their powers were gradually enlarged.'* ' So 
great was Jay's sense of the diversity of opinion 
that when it was moved to o|K'n the first meet- 
ing with prayer, he objected, though as devout 
a man as any present, ^ because," said Adams, 
^ we were so divided in religious sentiments." * 
StiU, in spite of this caution, a eliaplain was 
appointed, whose prayers, though lie afterwards 
joined the royalists, excited no dissension. 

The first regular business of Cougress was to 
appoint a comiuittee ^* to state the rights of the 
Colonies in general." Jay was a member of the 
committee, and; when a debate arose on the 
source of the rights of the Colonies, he stated 
the views that finally prevailed. ^* It is neces- 
sary," he said, ^*to recur to the law of nature 

< 3 Dull. 01. 

* John Adautii M'orici, z. 70. 


and tlie Brittah Constitutioa to asoertaia our 
rights. The ' Conatitution * of Great Britain 
will not apply to some of the charter rights.** ^ 
In this reference to ^the law of nature** may be 
detected a suggestion of revolutionary methods, 
which at the moment was doubtless not traced 
to its logical conclusion. The discussion, on the 
contrary, was practical rather than theoretical, 
and ** the great state pa})crs of American lib> 
erty,** of which Jay wrote so many, *^ were all 
pre4Hcated on tlie abuse of chartered, not of ab- 
stract rights.** ^ This was indeed the chief dis- 
tinction between the beginnings of the American 
and the French revolutions, and was one cause, 
and not the least efficient, for the permanent re- 
sults of the first 

The question of voting in Congress had next 
to be determined. Patrick Henry, urging vot- 
ing by delegates without regard to the State 
as a unit, made the famous speech in which 
he declared, ^'I am not a Virginian, but an 
American. • • • I go uiH>n the supposition that 
government is at an end. All distinctions are 
thrown down. All America is thrown into one 
mass.** '* Could I supiKwe,** Jay replied, ** that 
we came to frame an American constitution, 

> John Adamt'i IVorltM, \l 370. 

* Gibbs, liiitorjf of tK$ Adminiitrationi of WoMkin^om aitd 
Adam$t I. 3. 

88 JOttS JAY. 

instead of endeaToring to eorreot tho faults in 
an old one, I can*t yet think that all govern- 
ment is at an end. Hit measure of arbitrary 
power is not yet fulU and I think it must run 
over^ before we undertake to frame a new eon- 
etitutionJ^ ^ In this last sentence is found the 
principle of Jay's oonduct throughout the early 
revolutionary period, before the Declaration of 
Independence. It was at once the path of duty 
and of prudence; for only in tliis way could 
the people be compelled by the logic of facts as 
well as of argument into something like una- 
nimity. In tlie matter of voting, Jay's party 
prevailed, and it was decided that each colony 
should have one vote, but that this decision 
should not be made a precedent. When the 
discussion arose which ended in the adoption 
of tiie non-im]M>rtation resolution on September 
27th, Jay also expressed the opinion of tlie ma- 
jority, unwisely according to nineteenth century 
notions of political economy, but most wisely 
in tiie light of those days and in tl&o }K>litical 
emergency of tlie moment. >^ NogoiiatiiHi, sus- 
pension of commei*ce, and war," he said, ^ are 
the ouly three things. War is, by gifiieral con- 
sent, to be waived at present. I am for negotia- 
tion and susi)ension of commerce." ' On Sep- 

> John Adamt'i Workt, U. 307, 308. 
* Ibid., u. 386. 



teiuber 28tb a motion was introduced that 
proved the extreme oonservatism of the Con- 
gress. Joseph Galloway, of Pennsylvaoia, made 
a proposition which Adams condensed as foU 
lows : ^ The plan« two classes of laws : 1. Laws 
of internal policy. 2. Laws in which more than 
one colony is concerned — raising money for war. 
No one act can be done without the assent of 
Great Britain. No one without the assent of 
America. A Brititth*American Legislature.** In 
otlier words, all affairs in which more than one 
colony was interested, or which affected Great 
Britain and the colonies, were to be regulated 
by a pi*csidcnt general apiK>intod by the crown, 
and by a grand council of delegates from tlie 
various assemblies. Tlie motion was defeated 
only by vote of six colonies to five, though it 
was afterwards ordered expunged from the min- 
utes ; but Jay spoke for it. ^^ I am led to adopt 
this plan,** he said. ^^ It is objected that this 
plan will alter our constitution, and therefore 
cannot bo adopted without consulting constitu- 
ents. Does this plan give up any one liberty, 
or interfere with any one right ? " * 

Jay was then placed on a committee to draft 
an address to the |)eople of Great Britain, and a 
memorial to the people of British America ; and 
tlie former was assigned to him. The key-note 

1 JnhH Adam$'$ Work*, U. 369. 

40 JQBH J AT. 

of ihe address was : ^ W« consider ourselves, 
and do insist that we are and ought to betas 
free as our fellow-subjects in Britain, and that 
no power on earth has a right to take our prop- 
erty from us without our consent. • • • You 
have been told that we are seilitiousi impatient 
of government, and desirous of iiulependence. 
Be assured that these are not facts, but calum- 
nies. • • . Place us in . the same situation that 
we were at the close of the last war [1763], and 
our former harmony will be restored.*' Jay shut 
himself up in a room in a tavern to write the ad- 
dress. It was at once reported favorably by the 
committee and adopted by Congress, and Jeffer- 
son, while still ignorant of the authorship, de- 
clared it ^a production certainly of the finest 
pen in America.** ^ After a session of some six 
weeks, Congress dissolved, recommending the 
appointment of local committees to carry out 
the non-importation association. 

The action of the Congress won popular favor, 
and the New York delegates on their return 
were presented by their former critics, the Com- 
mittee of Mechanics, with an address acknowl- 
edging their ^^ readiness in accepting and fidel- 
ity in executing the high and important trust *' 
reposed in them ; and in their answer the dele- 
gates showed themselves equally free from par- 

' Jejftr90H*s Writings, L 8. 


titaniiltip : ^ Let us all, with one heart and Toice, 
endeavor to oultivato and olierish a spirit of 
unanimity and mutual benevolence, and to pro- 
mote that internsd tranquillity which can alone 
give weight to our laudable efforts for the 
preservation of our freedom* and crown them 
with success."^ Jay was at once elected one of 
a committee of sixty, called a Committee of In* 
spection, that superseded the old Committee of 
Fifty-one, and that was specially charged with 
promoting non-importation. It is not surprising 
tliat in this familiar business the Committee of 
iVIechanies cooperated heartily.^ The coumiittee 
for the relief of Boston, of which Jay was also a 
meml>er, was likewise not unoccupied. On one 
day, December 23d, for instance, they received 
*^for Boston, from the |)eople of Hanover, 
twelve barrels of fine, eight of common, and five 
of cornel flour, and £17 17«. in cash, and from 
the precinct of Shcngouk, thirteen barrels of 
flour and three of com.*' ' The Committee of 
Inspection was variously eng:iged, searching 
ships for imported goods, examining captains 
and boatmen, selling confiscated property at 
public vendue, warning the people of, for in* 
stance, the scarcity of nails^ and recommending 

» Jay MSS, 

* Leaktt, Life of John Lamb, p. OS. 

• New York Journal, Dw, 2V». 1774. 


that none thould be exported, or oontnulioiiog 
false statements published by the loyalist editor, 

The time now eame for the election of dole* 
gates to the second Continental Cougressi which 
was to meet May 10th, 1775. The Couimittee 
of Inspection ordered tlmt delegates should be 
chosen by the counties, to meet in New York 
City, and select from among Uiemselves rcpre* 
sentatives for the province. A meeting of the 
citizens of New York, called for the purpose, 
marched to the Exchange. ^^Two Standard 
Bearers carried a large Union Flag, with a Blue 
Field, on which were the following inscriptions : 
On one side ^ George III. Rex, and the Liber* 
ties of America. No Po))ery.' On the other, 
*Tho Union of the Colonies, and the Measures 
of Congress.* ** ' This time, instead of confu- 
sion being created by the radicals or ^^ Tribunes,'* 
the meeting was interrupted, but ineiTcctively, 
by Tories, who had purposely met the same 
morning at die house of the Widow de la Mon- 
taigne, and adjourned the hour of the meeting to 
the Exchange, where, with clubs, they got for a 
time the better of the argument until the Whigs 
plundered a neighboring cooper*s yanl, and 

1 New Yitrk Journal, MurcU 23, April 13, 1775. 
* IM,, JiAtck 9, 1775. 


drove tliem off the ground with pieces of hoop 


Many of the oounoilon and auemblymen, in^ 
eluding the speaker,' attended ' the meeting at 
the Exchange, a further proof of the march of 
pnblio opinion. There Jay was elected to the 
Provincial Convention, as it was called, tliongh 
its functions were purely electoral and it sat 
only a few days. By this body he was chosen, 
with his former associates (except Low who 
declined and subsequently turned royalist), and 
five others, a delegate to the second Continentxil 
Congress. To their delegates the people now 
granteil authority incomparably greater than 
that legitimately possessed by the first Congress, 
intrusting specifically ^*full power to them or 
any five of them to concert and determine upon 
such measures as shall be judged most effectual 
for the preservation and establishment of Amer- 
ican riglits and privileges, and for the restora* 
tion of harmony between Great Britain and the 

Meantime, as the confusion of the country 
increased, while all regular constitutional gov« 
ernment had practically ceased to exist, the 
Committee of Inspection found their powers too 

> GordoD. Hist. o/N. r.. i. 306, 

* Memorandum id Jay MSS, 

* Jomnala of Prov, Congren, Ate., i. £2, 7S. 


limited} tliey therefore reoomineiided the elee- 
tion of a oommittee of one hundred, with author* 
ity adequate to the emergoucy, to conduct the 
government, to enforce the association, and to 
elect deputies to a Provincial Congress to meet 
in New York, Iklay 22d. Tlie old Colonial 
Assembly dissolved on April S, 1775, never to 
meet again; and on April 28th, the new com* 
mittce was elected, usually known as the Coni« 
iuittce of Observation, but in reality a revolu- 
tionary committee of safety. Jay and his next 
younger brother, Frederick, were members. Tlie 
new committee at once drew up for general cir- 
culation an Association engaging to obey the 
committees and Congress, and to oppose every at* 
tempt by Parliament to enforce taxation. They 
hisid the streets patrolled at night to prevent the 
exportation of provisions, and called on the citi- 
sens to arm. May 5th, a letter to *^ The Lord 
Mayor and Magistrates of London,** drafted by 
Jay, was signed by him and eighty-eight mem- 
bers of the committee. ^ This cit}*/* the letter 
ran, ^* is as one man in the cause of Liberty. • . • 
While the whole continent are ardently wishing 
for peace on such terms as can be aeeeilcd to by 
Englishmen, they are iudefat!g:iblo in prepar- 
ing for the last appeal ; ** ^ a brave statement to 
publish, when the committee knew that the city 
» New Ywk Jyurnal, >Uy Uo, 1775. 


«» absolutely defonwlm. »»A that troope bad 
already been ordered thither and were on their 
way. On May 10th the second Cont'nental 
Congresa assembled at Plub«lelphia. The shot 
had been fired at Lexington. The measures 
before Congress were o£ necessity warlike. 
An address to the inliabitants of Canada was 
drafted by Jay, reportcl from »««»""'"<?»"» 
which he was associated with bamiicl Adams 
and Silas Deane, and on wloption was ordered 
to be translated into French for circulation 
across tho boinler. The address warned the 
Canadians that the measures urged against the 
An.ericans may be turned against them, and 
concluded: "As our concern for your weUaro 
entitles us to your friendship, we presume you 
will not, by doing us an injury, reduce us to 
the disagreeable necessity of treating you as 
enemies." Jay was a member of the comjiitte. 
which prepared the Declaration, published July 
6th, "setting forth the causes and ^^^^^^^ 
their taking arms." " Against violence actu:a^y 
offered, we have taken up arms. We shall Uy 
them down when hostilities sliaU cease on the 
part of the a«gi.ssors, and aU ^V-^e-J ^^^T. 

LingLiiewedshall ^ '--^-^'f^^'^J^Z^^ 
In spite of strong «pi>osiUott, J*y persuwic 

ful second petition to tlio Iving. ^ 

46 JMH JAT. 

indudwg himielt was appointed to draft it| but 
it was aetually written by Dickinaon« and on 
July 8th the petition was signed by the members 
of Congress individually. It was necessary, to 
quote Jay's words of a year before, *^that the 
measure of arbitrary power • . • must run over/* 
An address to the people of Jamaica and Ire- 
land was also agreed to by Congress, and was 
written by Jay, at the request of William Liv* 
ingston. ^^ Though vilified as wanting spirit, we 
are determined to behave like men ; though in- 
sulted and abused, we wiuh for reconciliation ; 
though defamed as seditious, we are ready to obey 
the lawa« and though charged with rebellion, will 
cheerfully bleed in dufeiiHO of our sovereign in 
a righteous cause ; '* but the main object of the 
addi'ess was to exphiin and excuse, as unavoida- 
ble, the cessation of trade. *^ I never bestowed 
much attention to any of those addresses," wrote 
rugged old John Adams to Jefferson toward the 
close of his life, *^ which were all but repetitions 
of the same things ; the same facts and argu- 
ments ; dress and ornaments, rather than body, 
soul, a substance, • • . I was in great error, no 
doubt, and am ashamed to confess it, for these 
things were necessary to give popularity to the 
cause, both at home and abroad." ^ 
Jay*s position in urging the second petition to 

1 John Adamii Workt, x. 8a 


the King beoomei ttill more olear* when wo litten 
to hit 8])eech to tlio Assembly of New Jersey 
in December, when Congress sent him with two 
others to dissuade them from a similar petition. 
He argtied, said a member present, that ^wo 
had nothing to ex])cct from the mercy or tho 
justice of Britain. That petitions were not now 
the means ; vigor atid unanimity the only means. 
That the petition of United America, presented 
by Congress, ought to be relied on ; others unneo- 
essary ; and hoped the House would not think 
otherwise." ^ ^* Before this time,*' wrote Jay in 
1821, ** I never did hear any American of any 
class, or of any description, express a wish for the 
indeiiendenco of the Colonics,** and this stute- 
moiit was confirmed by JctTcrson and Adams. 
Indited, in a pa^KT, undatinl, but writU^n proba- 
bly at this time, the autunm of 1775, Jay quotes 
paragraph after paragraph^ from the Journal 
of Congress, to prove ^Uhe malice and falsity** 
of the ^^ ungenerous and groDndless charge of 
their aiming at independence, or a total sepa- 
ration from Great Britain." ^* From these testi- 
monies,** Jay concludes, *^ it appears extremely 
evident that to charge the Congress with aim- 
ing at a separation of these colonies from Great 

1 Hare, Archivtt, 4th Scr., iv. 1874, lS7r». 
^ The )LS. pa^^es citeil arc pajires 51), 03, 04, 84, 87, 140, 
150, 155, 103, i(W^, 172, etc., Ja^ MSS, 

> JAY. 

^iiarge them falsely and withoot a 
^ ^rk of evidence to support the aecnia- 

' It is much to be wished that the peo* 

pie would read the proceedings of tlie Congress 
and consult their own judgmentSf and not suffer 
themselves to be duped by men who are paid for 
deceiving them.** It was, then, the rejection of 
the petition, as events sliowed, which, as much 
as anything, suggested and justified the idea of 
independence to the minds of the people. 

Jay was one o( a committee of four which re- 
ported upon a request from Massachusetts for 
advice, and recommended the semi -revolution- 
ary step of electing a new Assembly, but accord- 
ing to the customary manner. Ho was also one 
of a committee of five whicli drafted the declar- 
ation for Washington to publish on his arrival 
before Boston. In many of the debates in 
Congress he took part, and not always on the 
popular side. It was pro]N>sed to close the cus- 
tom-houses throughout the country, so as to 
place New York, North Carolina, and Georgia 
on the same footing as the other provinces. 
** Because the enemy has burnt Cliarlestown,** 
said Jay, ^^ would gentlemen have us bum New 
York? • • . The question is, whether we shall 
have tradid or not ? And this is to introduce a 
• • • scheme which will drive away all your 
sailors, and lay up all yoiir ships to rot at the 


whmrves*'* In November Jay was appointed 
with Franklin, Harrison, Johnson, and Dickin- 
son, a secret comuiittee to correspond ^ with our 
friends in Great Britain, Ireland, and other 
parts of the vporhV^ ^ In this capacity Jay had 
more than one promising but fruitless interview 
with the first of the secret emissaries of the 
French Court, Bonvouloir, and these apparently 
harmless interviews were conducted with almost 
fantastic mystery. ^ Each comes to the place 
indicated in the dark,*' wrote Bonvouloir, in one 
of his reports, ^^ by different roads. They have 
given me their confidence as a friendly individ- 
ual.'*' In the autumn the committee sent Si- 
las Deane to France, who, until his recall, held 
frequent correspondence with Jay by fictitious 
letters with the wide margins written upon with 
invisible ink. 

Queens County, New York, having refused 
formally to send delegates to the Provincial 
Congress, William Livingston, Jay, and Samuel 
Aduuis were apiM>iutcd a committee to consider 
the present state of the colony. The report, 
which Jay is said to have drawn, urged the 
arrest of certain disaffected persons, and that 
those who had voted against sending delegates 
should be prohibited from leaving the country. 

> JowrnaU o/CoHgretSt 177\ pp. 272, 273. 

* Duntnt, New JiattriaUfw History of American l?ev..l, 6. 


Tte Now York Congress had applied for sol- 
diery to disarm the latter unfortunate persons, 
and, the oommittee assenting, the disarmament 
was effected forthwith by Col. Nathaniel Heard, 
and Lord Stirling's battalion. 

Jay was also placed on a committee to draw 
up a declaration justifying the determination 
of Congress to fit out privateers against the 
commerce of England. He was on committees 
to devise means for supplying medicines for 
the aruiy; to inquiro into the dinpute between 
Pennsylvania and Connecticut ; to examine into 
the qualifications of generals ; to purcliase pow- 
der for the troops ■ besieging Boston ; to recom- 
mend the proper dis|K>sition of the tea then in 
the colonies ; aud to ascertain the truth of a re- 
port that Governor T170U, of New York, liad 
made ^^ the passengers in the late packet swear 
not to disclose anything relative to American 
affairs except to the Ministry." His time, then, 
was fully occupied in anxious and laborious 
work. But even the Continental Congress some« 
times enjoyed a holiday. ^* The Congress spent 
yesterday in festivity,** wrote Jay to his wife, 
September 29, 1775.^ ''The Committee of 
Safety were so polite as to invite them to make 
a little voyage in their Gomlolas as far as the 
fort, which is about twelve miles from the city. 
^ Jag MSS. 


Each Omlley bad its oompany« and eaeh com* 
pany entertaiDed with variety of mudc^eto. We 
proceeded six or eight mikt down the river, 
when, the tide being spent and the wind nn- 
favoraUe, we backed about and with a fine 
breeze returned, passed the city, and landed six 
miles above the town at a pretty little place 
called Paris Villa. • • • I wished you and a few 
select friends had been with me. This idea, 
though amidst much noise and mirth, made me 
much alone. Adieu, my beloved.*' 

At first there was some difficulty in getting 
the colonies to make any provision for the dele- 
gates. New York finally allowed them four 
dollars per day, though ^*the allowance,'* says 
Jay, ^^ does by no means equal the loss.'* As 
Christmas approached. Jay asked for leave of 
absence, but was refused, since, with two of the 
five New York delegates away on leave, the 
province would otherwise be nnrepresented. 
** Don't you pity me, my dear Sally ? " writes 
the young husband. ** It is, however, some con* 
solation that, should the Congress not adjourn 
in less than ten days, I have determined to stay 

with you till ^ and, de])end upon it, nothiug 

but actual impriMonment will be able to keep me 
from you." * 

in the mean time Jay was not uuobscrvant of 
1 To Mn. Ja7, D«e. 23, in5, Jo^ MiiS. 


•vMti in New York. In Novembor th* preM of 
Rif ington^ the Tory printor, bad been destroyed 
by a party of light honemcn from Conneotiout, 
who also seized Bishop Scabary and others who 
had protested against the doings of the Congress, 
Jay*8 comments show a rather complicated state 
of mind, **For my part I do not approve of 
the feat, and tliink it neither argues much wis- 
dom nor much bravery ; at any rate, if it was to 
have been done, I wish our own people, aiul not 
strangers, had taken the liberty of doing it I 
confess I am not a little jealous of the honor of 
the province, and am persuaded that its reputa- 
tion cannot bo maintained without some little 
spirit being mingled with its pnidcnee.** ^ To 
Alexander McDougall, in the New York Con- 
vention, he writes, urging them ^ to iin)X)se light 
taxes rather with a view to precedent than 
profit** McDougall now had become an inti- 
mate friend. A month earlier ho had been the 
means of Jay*s making the only application for 
office he ever m;ule in his life. McDougall 
wrote, complaining of the reluctance of men of 
position to take commands in the provincial 
militia, and at once Jay applied for ap]x>int- 
ment, and was appointed colonel of the second 
regiment. New York City Militia.' For the 

* To Colonel WowlhuM, Nov. 'JO, 1775. Ja^ MSS. 
< Ootober, 27. 1775. 


next jear or two hit niuiie appears aa Colonal 
Jay in tlie Journal of tlie New York Congress 
and conventions. Jay was also urged by Ham- 
iltoui the aatutest politician of nineteen years 
tliat ever lived, to frustrate the Tory scheme to 
issue writs for a new Assembly, by becoming, 
with Livingston, Alsop, and Lewis, a candidate 
for New York County. ^ Hie minds of all our 
friends will naturally tend to these,*' he added, 
^ and the opiK>Hition will of course be weak and 
contemptible ; for the Whigs, I doubt not, con* 
^titute a largo majority of the (leoplc/'^ 

In April, 1776, Jay luid been elected a dele- 
gate to the Now York Provincial Congress, 
which met at the City Hall on May 14th. Four 
days before the day of meeting, the Continental 
Congress had passed a resolution recommending 
the colonies *^ to adopt such government as shall, 
in the opinion of the representatives of the peo- 
ple, best conduce to the happiness and safety of 
their constituents in pai'ticular, and America in 
general.'* Jay was at once sununoned to lend 
his counsel in the emergency, without vacating 
his seat in the Continental Congress, though the 
New York Provincial Congress forbade his 
leaving ^^ without further orders.*' For this 
reason it was that Jay*s name is not among those 
of the Signers of the Declaration of Independ- 

1 From AUjuui«Ur UamUtoo, Deo. 31, 1775, Jay JdSS. 


•not. Obedient to the call of hit colony, Jaj 
mounted liorse and started forthwith for New 
York, where he waa twom in and took hU seat 
in the local congress on May 25th. lie was at 
once placed on one committee to draft a law re- 
lating to the peril tlie colony is expoacd to by 
^ its intestine dangers,'* ^ and on aiioihor to 
frame into resolutions the rtt})ort of the com- 
mittee on the recommendation by Congress of 
a new form of government^ Accordingly, on 
June 11th, certain important resolutions on tlie 
subject of independence were moved by Jay and 
agreed to: ^ That the good people of this Colony 
have not, in the opinion of this Congress, au- 
thorized this Congress, or the delegates of this 
Colony in tlie Continental Congi*ess, to declare 
this Colony to be and continue independent of 
the Crown of Great Britain.** 

This action of Jay*s was not due to any doubt 
in his own mind as to the necessity of the pro- 
posed change, but simply to his conservative ad- 
herence to constitutional metliods. Duane, his 
colleague in Congi*ess, wrote urging delay: 
**The orators of Virginia with Colonel Henry 
at tlieir head are against a change of govern- 
ment. • . • The late election of deputies for the 
Convention of New York sulBciently proves tlmt 

> JournaU o/Prov, Cong., I. 401. 
< Ibid., I 402. 


those who assumed excessive fervor and gave 
h&ws even to the Convention and Comniitteea 
were unsupjMrted by the iieople* There seems, 
therefore, no reason that one Colony should be 
too precipitate in changing the present mode of 
govemmont I would first be well assured of 
the opinion of the inhabitants at large. Let 
them bo rather followed than driven on an oc- 
casion of such moment.*'^ ^*So great are the 
inconveniences,** replied Jay, ^* resulting from 
the pi*eaent mode of government, that I believe 
our Convention will almost unanimously agree 
to institute a better, to continue until a peace 
with Groat Britain may render it unnecessary.*' ' 
Further reflection, however, convinced him that 
the unmistakable assent of the people was the 
only safe foundation for a new government, and 
|)erhaps, too, that the existing Convention was 
less Itcpublican than he supposed. *^Our Con- 
vention,** he wrote to Livingston, ** will, I be> 
lieve, institute a better government than tlie 
present, which, in my opinion, will no longer 
work anything but mischief ; and although the 
measure of obtaining authority by instructions 
may have its advocates, I have reason to think 
that such a resolution will be taken as will open 
a door to the election of new or additional mem* 

1 Pram Jaroei Diuwe, lUy 18, ITTa 
'^ To Duiuie, BUy 2U, 1770. 

66 joas JAY. 

bert.**^ Il shouUI be reiueiiibered» too, that 
only the preooding December the last Provincial 
Congress had resolvedi ^Uhat it is the opinion of 
this CSongress, that none of the people of tliis 
Cdony have withdrawn their, allegiance from 
his Majesty." ' Such being the ease in Decem- 
ber, it was surely prudent in June to refer again 
to the people before announcing their independ- 

The Declaration of Independence, that was 
now signing at Philadelphia, was a turniug-poiut 
in Jay*s public life. In tlie Committee of Fifty- 
one he was apparently the representative of the 
well-to-do merchants who had confidence in the 
son of Mr. Peter Jay. Judicious and prudent, 
rather than emotional, Jay*s dis{)ositiuu was at 
the time eminently conservative. With the ex- 
ample of Boston before them, with excited Sons 
of Liberty declaiming in every tavern, ringing 
bells, parading with banners, and threatening 
loyal business men with letters signed ^^ Com- 
mittee on Tar and Feathers,*' there was grave 
danger that order might be destroyed by mob 
violence, and trade ruined by ill-considered re- 
strictions. The only safety was in deliberation 
and caution. The colonies, as yet, were united 
neither by sentiment nor interest, and in every 

> To a R Unngston, May 29, mO, Jay MSB, 
< Htw Yurk Journal, D^. 21. 1775. 


oolonjr, esiiooially in New York, tlia {lartiet of 
Whig aud Tory, the nulicals atid conservatiyes, 
were, in aggregate wealth and influence, nearly 
equally divided. Of Jay, and of every man of 
that day like him, it may bo said, though in a 
different sense from that of the old Roman, that 
cunctando restituit rem^ by delay ho created a 
nation. Conservative though not Tory, he saw 
that the struggle was to preserve and continue 
liberty t!ioy hud always i)osscssed, rather than 
to win liberty. The Kovolutiou, as he was fond 
of saying, found us free as our fathers always 
were ; therefore it is false to suggest that wo 
were ever eumneipated. For this reus4m was the 
result of the war to be permanent, since it was 
the work of evolution, rather than of i*evolution« 
It is often said that the action of Jay and Dick* 
inson, in promoting j^ctition after petition to tho 
King in terms of almost undignified concilia- 
tion, lost the op|)ortunity for successful action 
and protnicted the war. It is forgotten, per* 
Imps, that at that early period the only action 
possible would have been spusiuoilio, and far 
from unanimous; and that, even if successful, 
a sudden and short war would have left un* 
changed tho di.s|)osition of half the ))cople, which 
even the long years of the Kevolution changed 
but slowly. The reaction which followed in the 
distracted days of the Confederation, and which 


nearly wrecked Uie infant state, would otherwise 
surely have resulted in thirteen sealous and dis- 
united colonies, instead of one great nation. 

To this end did tlie work of Jay tend, con* 
sciously or unconsciously. To this end was the 
long succession of state papers that he prepared 
as draftsman, so to speak, of the Continental 
Congress. To this end was his work in New 
York, reconciling the conservative merchants 
and the radical mechanics, keeping tlio favor of 
the less bigoted i*oyaIi8t8, and winning gmdually 
the confidence of the Sons of Liberty. 

Time soon decideil the matter. The old gov- 
ernment was dead beyond resuscitation. An- 
archy threatened, the revolutionary committees 
were essentially local and temporary expedients. 
The war might last for years, and a more stable 
government was essential. ^^ I see tlie want of 
government in many instances,"* wrote McDou- 
galL ^* I fear liberty is in danger from the li- 
centiousness of tlie ]ieople on the one hand, and 
the army on the other. The former feel tlieir 
own liberty in the extreme.*' ^ A significant ad- 
mission from the old Son of Liberty. It was the 
course of wisdom to establish a new form of gov- 
ernment, and it was only the circumstances of 
the moment that required it to bo based on a 
Declaration of Indepenileuce. 

1 From AUx. McI>ou^, Mai«b 20, 1770, Jq$ MSS, , . 




Trb mw Provincial Congress of Now York 
met at White Pkiina on July 9th« and at onee 
refenWi to a oonunittee a copy of the Declara- 
tion of Independence, just received from Phil- 
adelphia. From this committee, on the same 
afternoon. Jay, as chairman, reported a resolu- 
tion of his own drafting, wliich was unanimously 
adopted: *^That the reasons assigned by the 
Continental Congrass for declaring the United 
Colonies free and inde))endent States are cogent 
and conclusive; and that while we lament the 
cruel necessity which has rendered that measure 
unavoidable, we approve the same, and will, at the 
risk of our lives aud fortunes, join with the other 
colonies in sup|)oi-ting it.*' ^ The New York del- 
egsites in Congress were aeconlingly authorized 
to sign the Declaration, which they had hitherto 
refrained from doing on the ground of lack of 
power. The next day the style of the House 

> Joumali of Provincial Congresst p* &1S* 


wag ohaiig^ to the ** Convention of the Hepre« 
sentativea of the State of New York.'* firitUh 
abipa of war were at this moment at Tarrjrtowni 
within aix miles of White Plains. 

Jay^tad been a member of the committee that 
reported to the old Convention, Juno 6th, a purely 
fonnal acknowledgment of the Virginia Resolu- 
tions of Independence ; a report which the Con« 
vention agreed to keep secret till after the elec- 
tions of dek^gates ^^ to, establish a new form of 
government." But his course in moving the 
Declaration of July 9ih was not therefore incon- 
sistent, ^^ most rcBucd deceit," as it is termed 
by one writer.^ For the old convention was not 
authorized to commit itself upon the question, 
while the new convention was so authorized S{)e- 
cifieally. His action of June Cth and 11th was 
identical in spirit with that of Duaue at Phila- 
delphia, who pledged New York to independ- 
ence, at the same time declaring that he could 
not legally vote on the question until further 
instructions were received from his constitu- 
ents.- Of the wisdom of the measure, even with 
regard to its effect on European politicians, Jay 
was now thoroughly convinced ; and it was on 
this ground that the op|)osition rested in Con- 

> DawMm, Wutchttn Co. in fAc Am, Hep., 180, 187, 100^ 


gross. ^ This most oertainly," he wrote to Lewis 
MorrtSi ^ will Dot be the last eampaigiif and in 
my opinion Lord IIowe*s operations cannot be 
so successful and decisive as greatly to lessen 
the ideas which foreign nations have conceived 
of our importance. I am rather inclined to 
think that our declaring Independence in the 
face of so powerful a fleet and army will impress 
them with an opinion of our strength and spirit; 
and when they are informed liow little our ooun« 
try is in the eneniy*s possession, they will unite 
in declaring us invincible by the arms of Brit- 


»» 1 

Almost immediately a short but sharp dissen* 
sion arose between the Convention and Congress. 
The latter body issued a colonel's commission to 
a major in the New York militia, who liad distin* 
guished himself in the Canadian campaign^ and 
ordered him to raise and officer in New York a 
battalion for the Continental service. Though 
Jay had urged at Philadelphia in the spring the 
wisdom of removing from colonial control all 
the militia so soon as they were ordered out on 
active duty, the contrary pmetice still prevailed; 
and this sudden discrimination in the case of 
New York tilled him and the Convention with 
indignation, as an arbitrary exercise of power ; 
and in a sharp report, which the Convention 

i Sept, 1T76, Jay MSS, 


moderated, he oondemiied the exouae of ^ the 
neeeieity of the case,** as a fruitful Diother of 

New York otty was now oconpted by; the 
enemy, and the British fleet in the bay was 
daily expected up the river. Warned by Wash- 
ington of the danger of the passes being seized 
between the Hudson and Albany^ the Conven- 
tion appointed Jay with five others a secret 
military committee ^^ to devise and carry into ex- 
ecution such measures as to them shall appear 
most efiFectual for obstructing the channel of Hud- 
son's River, or annoying the enemy's ships;*' 
and the next day authorized them to impress 
^ boats, • • . wagons, hoi*8es, and drivers • . • 
as well as to call out tho militia, if occasion 
should require." ^ Tho committee held its first 
meeting at the house of Mr. Van Kleeck, at 
Poughkeepsie, and at once sent Jay to the 
Salisbury Iron Works in Connecticut for can- 
non and shot. He found himself obliged to 
obtain permission from Governor Trumbull at 
Lebanon, and the governor had to consult his 
council ; but finally Jay procured several small 
cannon which he transported safely to Hoffman's 
Landing and tlience to Fort Montgomery.' 
Jay was not a man of war; his duties as 

* Jowrnah of Provincial Congress, \. 520. 
2 R«port bj Jaj, Aug. 7 (?), Jay MSS. 


Mlonel wore apparently purely formal ; but from 
his connectioa with the secret committee and 
other military committees he was in constant 
communication with the generals at headquar- 
ters, with MoDougall and Troup, and later with 
Washington, Clinton, and Schuyler. To Jay, 
MoDougall commended his son, a prisoner in 
Canada, ^^lest he should in the exchange of 
those prisoners be forgot. ... If I should do 
otherwise than well, I pray remember this boy.*' ^ 
^^ You always were my benefactor,** wrote Troup, 
^^ and I hope will continue so as long as I walk 
in the line of prudence^ and prove myself a lover 
of American liberty. *' ^ And it was to Jay that 
Schuyler, embittered by the partisan charges 
that were provoked by the evacuation of Ticou* 
deroga, intrusted the defense of his reputation. 
On the eve of an expected engagement with the 
British troops he wrote sadly : ^ I may possibly 
get rid of tlie cares of this life, or fall into their 
hands ; in either case I entreat you to rescue my 
memory from that load of calumny that everfoU 
lows the unfortunate.** ' Of the details of the war 
Jay kept himself unusually well informed, and 
his private agents were reputed as being, with 
those of Generals Clinton and Heath, and Gov« 

> From Oen. McDougall, Dec. 2, 1770, Jay MSS, 

* From Gen. Troup, July 22, 1777, Jay MSS. 

* From Gea. Schuyler, July 27, 1777, Jay MSS, 

64 JOB If JAY. 

enior l4viiigiloii« among tlie nuMt bteUigent in 
that service.^ Hit opiniong, then, on tlie military 
meafturea that should have been adopted are 
worth noting, though they were not followed, 
and are quoted by Mahon merely on aeeount of 
tiieir severity. lie bcltuved,' and urged in vain,* 
that the city of New York and the whole of the 
State below the mountains shoukl bo desolated, 
the Hudson shallowed at Fort Montgomery, the 
southern p^ses fortified, and the army stationed 
in the mountains on the east of the river with a 
large dctadmient on the west. Thus, he added, 
*^ the State would be absolutely impregnable 
against all. the world on the sea side, and would 
have nothing to fear except from the way of the 

In view of the dangers menacing the State, tlie 
. eonsideration of a new form of government was 
postponed till August. 1st, when, on motion of 
Gouverncur Morris, seconded by Mr. Duer, the 
Convention appointed a committee to prepare 
and report a plan for the organization of a new 
form of government. Jay was made chairman, 
and bis associates iucludod men of eminent abil- 
ity : (iouverneur Morris, Kobert It. Livingston, 

> Hag. Am, Hist,, si. 60l 

* FuTM, Am. Archivtt, 5th Ser., iL 051. To G. Morrk, 
Oet 0, 1770. 

• ToQes. Schuyler, Dec 11, 1776, Jug MSS. u. 17. 


William Doer, Abraham and Itobert Yates, 
General Scott, C<donel Broome, Mr. Hobart, 
Colonel De Witt, Samuel Townsend, William 
Smith, and Mr, Wisner. The committee was 
directed to report on August ICth. The Con- 
vention notified Jay and two o{ his associates 
on the Secret MiliUiry Committee of their new 
appointment, and commanded their attendance. 
Jay was still occupied in fortifying West Point, 
and on the 12th the Convention summoned them 
still more imperatively unless they were *^ abso- 
lutely necessary in the secret Committee.'* But 
General Clinton refused to let them go. To- 
wards the end of the mouth the increasing dan- 
ger from excursions of the enemy forced the 
Convention to move from White Plains to Har- 
lem, whero they sat in the church, and after- 
ward met successively at Kingsbridge, at OdclFs, 
in Philipse*8 Manor, then at Fishkill, Poughkeep- 
sie, and Kingston. 

Outside of the city of New York there was 
no overwhelming {lopular sentiment for iude* 
pcndence in that State. A local aristocracy had 
been fouuded by the Dutch East India Com- 
pany, and had been fostered by the English 
governors. Many of the fii-st families of the 
province were ainlent royalists, connected by 
blood or long association with England ; on the 
large manorial estates the tenant farmers in- 


clined to be either indifferent to politics or acU 
herents df their landlords; while, with an £ng« 
lish army in the city and an English fleet on 
the riTer, there were thousands who naturally 
deemed neutrality to be tlie only wisdom. The 
upper part of the State was already cut off from 
the lower, and but little organized treachery 
would have sufficed to place the whole State 
at the mercy of the British. Meantime the 
fate of the continent seemed for the moment to 
hinge u^ion New York; and to the pati*iotio 
Convention it api^earod esscntisd to the common 
welfare to rid the State, still within their control, 
of the disaffected, and of all who were secretly 
but none the less actively hostile. On motion 
of Jay, the Convention had already, on Juno 
16th, declared guilty of treason, with the pen- 
alty of death, all persons inhabiting or passing 
through the State who should give aid or com- 
fort to the enemy ; ^ a resolution whicli, in spite 
of its harshness, was almost identical witli that 
adopted about a week lat^^r by the Continental 
Congress. Fortunately the law may be said 
to have been ^^ merely buncombe, meaning noth- 
ing ; " ' but it may have been none the less a 
useful bit of policy. lu the middle of June, 
when Forbes, the gunsmith, was charged with 

* jownalt ^f Provincial Congrtss^ I. o20. 

• Dawson, WtiichesUr Ca. in the Am, iiVu.. p. 210. 


eonapiring against the life of Waahingtoii,^ tbe 
late eonyention had in great haste appointed 
Livingston, Jay» and Goayemear Morris^ as a 
secret committee to examine disaffected persons. 
Wlien, after ten days' labor, their sessions were 
interrupted by the panic that was caused by 
Lord Howe's arrival, there were twenty-seven 
prisoners in the City Hall, and forty-three (in- 
cluding the mayor) in the new jail.' How 
many, like Thomas Jones, the historian, were 
exAHiined and banished for disaiTection, is un» 
known.* This was the last that is heartl of wliat 
was known as the committee to examine disaf- 
fected persons. 

The new Convention found itself fallen upon 
days still more evil. Governor Tryon, from his 
refuge on board ship, seemed as active and om- 
nipresent as the Prince of Evil; ^^so various, 
and, I may add, successful have been the arts 
of Governor Tr}''on and his adherents," wrote 
Jay, ^^ to spread the seeds of disaffection among 
us, that I cannot at present obtain permission 
to return to Congress." ^ On September 26th, a 
secret committee was appointed, on motion of 
Duer, consisting of Jay and three, subsequently 

> Foive, Am. Ankivet, 4t&S«r., tix. 1178. 

* Dawson, Wtsichettn Co, in the .Im. Rev,, p. Ill, 

• Jonos, nut. of New York, il 205. 

« To R. MorrU, Oct 0, 1776, /uy MSS. 


iiX| othortb It was termed ^% oommittee for 
inquiriag into, deteoting, and dofoating oonspir- 
acies • • • against Uie liberties of America,'* 
and was empowered **to send for persons and 
papers, to call out detachments of the militia 
in different counties for suppressing insurrec- 
tions, to apprehend, secure, or remove persons 
whom they might judge dangerous to the safety 
of the State, to make drafts on tlie treasury, to 
enjoin secrecy u]x>n their members and the per- 
sons they employed, and to raise and officer two 
hundred and twenty men, and to employ them 
as they saw fit" This committee organized, Oc- 
tober 8th, at Conner's tavern at Fishkill, with 
Duer in the chair. Their minutes for 177G are 
in the handwriting of Jay, who, besides acting 
as secretary, after the first few meetings sat 
permanently as chairman. Day after day the 
local county committees of safety sent to Fish* 
kill batches of prisoners under guard, men, 
women, and girls, upon charges of receiving 
protection from the enemy, corresi)ouding with 
the enemy, refusing to sign the association or 
oath of allegiance to the Congress, or simply 
with disaffection to the cause. Those who sub- 
scribed to the association were usually dis- 
missed; but all who refused were subjected to 
punishment, confinement in jail, transportation 
to another town or colony, residence at Fishkill 


under porol **to remain wiikin three mike of 
the etone ohuroh," or, in loss eortone oaies« to 
residenoo at homo under parol not to go eix 
miles away, Peter Van Schaack, Jay's friend 
and elassmate, was sent with his brother David 
to Boston, ^^ under the care of a discreet officer/' 
at ^^ their own expense • • • there to remain on 
their parol of honor," because they ^^ have long 
maintained an equivocal neutrality in the pres- 
ent struggles and are in general supposed un- 
friendly to the AmerioftQ cause." ^ One lot of 
prisonera was sent to New Hampshire, and the 
committee wrote at the same time to the New 
Hampshire Legislature, desiring that such as 
were not directed to be confined, and not in 
circumstances to maintain themselves, be put to 
labor and comi^elled to earn their subsistence.' 
One James McLaughlin, for being *^ notoriously 
disaffected," was ordered to be ^^ sent to Captain 
Hodges of the Ship of War Montgomery, at 
Kingston," and Captain Hodges was directed 
^^ to keep him aboard the said ship, put him to 
such labor as he may be fit for, and pay him as 
much as he may earn." ^ These sentences were 
often ingenious, but, however painless, they wero 

> Minutes, Doo. 21, 1770. 

* To the GeMral Court of Nov IlampahiM, Oet 81, 1770, 
/ay MSS. , 

• Minutest Jaa. 4, 1777. 


unqnettioiiftUy levero to people of position ; for 
all were lo worded as to be indefioite in dnnir 
tion, ^tiU further orders from this Committee, 
or tho Convention, or future Legislature of this 
State.'* Sometimes Jay and Morris were the 
only members present, but tlie committee did 
not on that aoeount ncgloot its businots. On 
February 27, 1777, it was dissolved by onlor of 
the Convention,^ and in its stead comuiissioners ' 
were appointed under instructions drawn by 
their predecessors. 

It is, perhaps, not surprising that Jay's con- 
spicuous position on this extra-legal despotic 
tribunal should have excited against him the 
bitter enmity and vituperation of the royalists, 
^ In imitation of the infamous Dudley," said the 
^^lioyal Gazette," he *Miad formed and enforced 
statutes that destroyed every species of, private 
property and repose." ^ But the times demanded 
prompt and stem measures; under military rule, 
in days of civil war, which the Ke volution was 
in New York, suspected traitors are generally 
shot with short shrift ; aud if any man less cool- 
headed and humane than Jay h:ul been in con- 
trol, it may be doubted whether imprisonment 
would have been substituted for death. *^ Can 
we subsist, did any State ever !4ubsist^ without 
exterminating traitors?" wrote Major Ilawley 
1 JuDuory 23, 1770. 


of tlie Massaoboaetts Provincial Congreas to 
Elbridge Gerry. ^ It ia amasiogly wonderful 
tliati having no capital puniBhmeut for onr in* 
teatine enoiuica, wo have not been utterly ex* 
toruiinatcd before now. For Gotl*i sake, let 
us not run such rinks a day longer.** ^ In New 
York the times were even more critical than in 

Jay's oillcial conduct towards the royalists was 
throughout inspired by a sense of duty and by 
rigid impartiality. *^ In the course of the pres- 
ent troubles," he said, referring to his action on 
the Secret Committee, ^^ I have adhered to cer- 
tsiin fixed principles, and faithfully obeyed their 
dictates witliout reganling the consequences of 
my conduct to my friends, my family, or my- 
Sitlf.'* ' The uprightness of his motives was in- 
deed admitted by those wiio suffered most from 
his official actions. Van Seliaiu^k, the friend 
whom Jay had exiled to Boston for ^^neutral- 
ity,** was allowed to return the next year under 
parol. His wife, who was dying, longed for the 
sea breezes and familiar siglits of New York, 
but Jay refused her the necessary permission 
to visit the city merely, and return. ** I never 
doubted your friendship,** wrote Van Schaack 
in some natural depression of spirits, ^*yet I 

> Life ofEiMtlge Qerr^, I 207. 

• To P«tttr You Sclviack, 1782, Life of Van Schaack, p. HOU 

72 jonn JAY. 

own that was not the ground upon which I ex- 
pected to sueceed* • • • As a man I knew you 
would espouse the petition, if public considera- 
tions did not oppose it ; and if they did, I knew 
no friendship could prevail on you to do it.'* ^ 
** Though as an iudependent American/* Jay 
declared to Van Schaack when a refugee in 
England in 1782, ^^ I considered all who were 
not with us, and you among the rest, as against 
us ; yet be assured that John Jay did not cease 
to be a friend to Peter Van Schaack." < To 
Colonel James Delancey, who had t:ikcn a royal 
commission and was at the time a prisoner of 
war in Hartford jail, Jay wrate recalling his 
early friendship: ^^IIow far your situation may 
be comfortable and easy, I know not ; it is my 
wish and shall be my endeavor that it be as 
much so as may be consistent with the interest 
of the great cause to which I have devoted every 
thing I hold dear in this world;" and he sent 
him a hundred pounds. 

Very different was his treatment of Colonel 
Peter Delancey, who commanded a cor{)s of law- 
less spirits known as Delancey's Boys, the cow- 
boys of Cooper's " Spy," the murderers of Colo- 
nel Greene. ^^ When peace was made, Mr. Jay 
was desirous to allay animosities, and he readily 

* Lift o/Petfr Van Schaack, p. lOa 


renewed hia aoquaintanoe with the royalists who 
had been induced by principle to join the Eng- 
lish, but he refused to profess any regard for 
the perfidious and the crueL Among the latter 
he considered Colonel Delancey, and therefore 
when ho met him in London he would not know 
him.'*^ Many of Jay's relations and friends, 
indeed, were either Tories or perplexed as to 
their duty. Many of the Philipses, a family 
with which Mrs. Jay was connected by descent, 
and her husband by adoption, were decided 
Tories and in. due time refugees, A friend, Dr. 
Ifevcrly Uobiuson, anked Jay to take cai*e of his 
family while he consulted Colonel Philipse on 
his proper course of action. ^^ The information 
you gave me when I was before the Committeo 
. . • that every persoA, without exception, must 
tike an oath of allegiance to the States of Amer* 
ica, or go with their families to the King's army, 
has given me the greatest concern. I cannot 
as yet think of forfeiting my allegiance to the 
King, and I am unwilling to remove myself or 
family from this place, or at least out of this 
country,"' Some years later, a cousin. Miss 
liebccca Ikyard, wrote on behalf of her brother 
and his family to expedite their passage to New 
York, They had a pass from General Gates 

^ Judge William Jay, Ja^ MSS, 

< From Dr. Befurly Robuuon, Maioh 4, ITH, Jag SiSS^ 


and a promiM from CltntoD, then goTenuHTf bot 
were stopped on the way.^ The answer was 
kind, but firm, that it was decided to pass no 
persons except on publio business. Jay even 
thought fit to warn Gouverncur Morris: ^* Your 
enemies talk much of your Tory connections in 
Philadelphia. Take care. Do not expose your- 
self to calumny." ^ 

By the end of December, 1770, Westchester 
County had been abandoned to the British ; the 
attack on Canada had failed, and Washington 
was retreating through New Jersey. ^ In this 
moment of gloom and dismay,** Jay prepared an 
address from the Pi*ovincial Convention to their 
constituents: ^* What are the terms on wliich 
you are promised ])cace? Have you heard of 
any except absolute, uifconditional obedience 
and servile submission? . . • And why should 
you be slaves now, having been fi-eeuien ever 
since the country was settled? ... If success 
crowns your efforts, all the blessings of freedom 
shall be your reward. If you fall in the contest, 
you will be happy with God in Heaven.** The 
address was favorably received, and Congress 
at Philadelphia ordered it to be translated and 
printed in German at the public expense. The 
meagre minutes of the Secret Committee, when 

> From MiM Rebecca Ilayard, June 28, 1778, Ja^ MSS, 
' Tu QuttY. MorrU, Jan., 1778. 


retd between the linee, suggett an uninspected 
extent of Taoillation and disaffection throughout 
the State, especially in Westchester County; 
and a late writer, whose facts are as often exact 
as his comments on them are perverse, has 
proved that the farmers no less than the gentry 
wore infinitely perplexed and puzzled by the con- 
flicting claims of the King and the State.^ In 
this short period immediately following the Deo- 
laration of Independence, Jay showed the prompt- 
ness and boldness and the indefatigable, unhesi- 
tating energy which the critical days demanded. 
^ OawMB, WutcketierCo* indie Amer team Rewlution, passim. 



DuBOro the spring of 1777 Jay was engaged 
PQ the committee to frame a now form of gov* 
emment *^For this ptv*po8o/* said his sooi 
^ he retired from the Conveution to some place 
in the country* Upon reflecting on the char^ 
acter and feelings of the Convention he tliought 
it prudent to omit in the draft several provisions 
that appeared to him improvements, and after-, 
wards to propose tliem sei^lrately as amend- 
ments. • • . It is probable that tlio Convention 
was ultra-democratic, for I have heard him ob- 
servo that another turn of the winch would have 
cracked the cord.** * 

The Constitution thus formed was singukrly 
expressive of the conservative instincts of the 
men of the American Bevolution, and of the 
unflinching common sense characteristic of the 
Dutch-IIuguenot merchants of New York, of 
whom Jay was a natural leader. It is said, in- 
deed, that as ^ there were few models to follow 
1 Jiidg« William Jay, Jay MSS. 


and improTO, the work of framing a funda- 
mental law for the State may fairly be said to 
have been undertaken in an almont unexplored 
flold.** ^ Hut such a statement needs much qual- 
iRcation before it ecascs to be misleading. John 
Adams had an explanation of the origin of the 
New York Constitution that is ei|uully inado* 
quate. lie wrote in his old age to Jefferson,^ 
that, according to Duane, Jay had gone home 
having Adams's letter to Wythe ^ in his pocket 
for his nioilel and founiLition.*' But the letter to 
Wythe contained only the most meagre sketch 
of a plan of government, amounting to little 
more th«'yi the suggestion that legislative, exe- 
cutive, and judicial i)o\vers should be balanced ; 
that there shouKl bo a representative assemblyi 
a council chosen by the assembly, and a gov- 
ernor appointed by the assembly and council; 
the governor to appoint all ofiBcers by and with 
the consent of the council ; and judges to hold 
ollice during good behaviur.' The letter to 
Wythe did not propose, as Adams did later, as 
an alternative, the election of the governor by 
the people, and of the council by the freehold- 
ers.^ The fact is, that the Constitution of New 

1 J. It Dougherty, '* Constitutiona of the Suto of N. Y.,** 
Political Science Quarterly, Supt. 1S88, p. 4U0. 
* S«pt 17, 182:), John Adami*9 Wwki, z. 4ia 
» Ibid,, IV. lai. 
« To John Ptiiui, IbiJ,t iv. 203. 


York was a spocial adaptation of the proYincial 
govenunent, with as few modifications as the 
circumstances required, and those rchiefly sug- 
gested by the history of the province.^ In the 
same sense, the Fedend Constitution is, in the 
words of Sir Henry Maine, ^* in reality a version 
of the British Constitution.** > 

^* We have a government, you know, to form,** 
Jay wrote; *^and God knows what it will re- 
semble. Our politicians, like some gi^ests at a 
feast, are perplexed and undeti^rmiued which 
dish to prefer.'* This confusion of mind was, 
perha))s, reflected by tlie choice of ^* State ** as 
the title of the new government, a ^orless. 
word, Uiough used to designate the government 
of England under CromwcU.^ 

^*A11 ))ower whatever in the State hnth re- 
verted to the people tliercof," is the recitation 
in the preamble ; and the first section ordained 
that no authority stiould be exercised over the 
])eople of the st:ite but such as should bo derived 
from and granted by the people ; a statement of 
a fact and its logical corollary. Although, nom- 
inally, the old Provincial legislature had con- 
sisted ouly of a single house, the council excr- 

> R. Im Fowlur, **CoiMliiuiiuii of tho SitprviiM Court of 
N. Y.." Mhitn^ I^w Juurmil, Deo. 18, 1880, p. 480. 

* Maiim, Papular Govtrnment^ p. 207. 

* Fowler, Mban^ Law Journal, Julj 21, 1870, p. 400 ; Dm. 
18, 1880, p. 480 n. 


e!a«d powers of a legislative ebaraetor^ and this 
eounoil, rather than the English House of Lords, 
may have been the model of the State Senate.^ 
As has* been well said : ^ The bieameral legitda- 
ture, the power of the legislative houses to be 
the sole judges of their own memberships, the 
method of choosing the presiding officer o| the 
more popular branch, the parliamentary common 
law, the veto on legislation, the bill of rights, 
the judicature, the jurisprudence, and the f ran- 
cbisos, were all Provincial institutions, continued 
after the Revolution by virtue of the Constitu« 
tion, and because they were associated with all 
that was wisest and best in the previous history 
of New York. The Uevolution was not a war 
against these things ; it was a war for tlicso 
things — the common pro^x^rty of the Anglican 
race.** ' rroi)erty qualifications were acconlingly 
required as before ; electors of the govcnior and 
senators must enjoy a freehold worth XlOO 
(^250) a year; electors of assemblymen must 
have a freehold worth X20 (f 50), or a tenancy 
wortli 40j ('i^o) a year, and must ])ay tuxes. It 
was ^^ a favorite maxim with Mr. Jay, that those 
who own the country ought to govern it/* ^ But 
before condemning such a maxim and its appli- 

1 Albany Law Journal, Deo. 18, 18S0, p. -ftST 
« Jbid., p. 4^a. 


catioii in the ConBtitulion M^aristooratio»^ as 
modem speakers are prone to do« it is well to 
remember that in 1769 the Provinoe of New 
York had nearly 89,000 freeholders and bur* 
gessos entitled to vote, a number in proportion 
to population far greater than existed in Eng- 
land before the Reform Bill ; that there was as 
yet no organized demand for tlic franchise by 
tlie unqualified masses, and that before the 
French Itevolution an absolute democracy was 
but the draain of a theorist. 

As to the i>owers to bo given to the governor, 
ex]>erieuce with the royal governors naturally 
suggested a jKiIicy of jealous restriction ; al- 
though the success of the prei'ogative party in 
the past liad been due not so much to guberna- 
torial power as to the occasional subserviency 
of the provincial Assembly, which body, through 
the small number of representatives, not over 
twenty-seven at the time of the Kcvolution, and 
also by reason of the jn^dtracted sessions, at first 
septennial, and finally iudelinite in duration, 
hail naturally soon ceased to be really repre- 
seuUitive. The governor, wlio was ap)Kunted 
for three years, a term to which, after a change 
to a two years' term, New York returned in 1874, 
was held in cheek by two siiecially devised coun- 
cils, the Council of Appointment and the Coun- 
cil of Itevision. The former consisted of the 


gOTemor and om tenator, ohoaen annuftlly (rom 
eaob of the five great districts into which the 
State was divided for the election of senators, 
and had the ap|K>intnient of practically all the 
officers in the SUite, except those of tlio towns* 
Tlie Council of Uevision, coui]K>sod of the gov- 
ernor, the cliancellor, and the judges of the Su- 
preme Court, had the sole power of veto, subject 
to reversal by a two thirds vote in each house. 
In this way the governor became little more 
than a mere figure-hciul, without rcs|K>n8ibility 
for cither api>oiiitments or vetoes ; in the Coun- 
cil of Appointment partisatiship had free oppor- 
tunity to confirm its corrupt bargains ; and both 
councils were promptly abolished by the Con- 
stitutional Convention of 1822, which gave the 
sole power of veto to the governor. Jay him- 
self, when governor, had reason, as will appear, 
to regret his suggestion of the Council of Ap- 
pointment ; which, in part, may have originated 
in the old Council of the Province, Had, how- 
ever. Jay's construction of the language of the 
Constitution been followed, by which the gov- 
ernor had sole power of nomination, these evils 
would have been avoided. Against the Council 
of Uevision, which hud its analogue in the veto 
on provincial Acts possessed by the king in 
Privy Council, no such objections could bo 
raised, and its abolition, after 128 out of 6,590 


biUs had bera vetoed, was doe chiefly to the 
growing jealousy on the part of the democracy 
of any anpreme non-elective body. 

Especially conservative were the framers of 
the Constitution in all that concerned the courts 
of law and the legal customs of the colony. 
Socage tenure, practically allodial, had been 
introduced under the Duke of York*s govern- 
ment a century before. Tlie continuation of the 
Supreme Court by mere incidental mention, and 
of trial by jury *^ in all cases in which it hath 
heretofore been used in the colony of New 
York ; '* and the clause moved in convention by 
Jay, that ^ the legislature • . . shall at no time 
hereafter institute any new court or courts, but 
such as shall proceed acconling to the course of 
the common law," were reassertions of the claims 
of the popular party in opposition to the pro>pre- 
rogative men during the contest over the estab- 
lishment of a Court of Equity in 1734, and dur- 
ing the later debate over the case of Cosby v. 
Van Dam, when the justices of the Supreme 
Court attempted to hold a Court of Exchequer.^ 
. The limitation of the tenure of the judges *^ dur- 
ing good behavior, or until they shall have 
respectively attained the age of sixty years,*' 
jierpi'tuatcs also the memory of the controversy 
with Lieutenant (iovcrnor CoKlen, over the i-e* 

> Albany Law Jourmil, May 17, M\\ p. 102. 


tentioQ in office of the tenile Justice Ilonroan* 
den. The only new court created was the Court 
of Errors and Impeachment, to which the jus- 
tices of the Supreme Court were nominated, sit- 
ting for the occasion with the senators. In form* 
ing this, what may now seem extraordinary tri- 
bunal. Jay and his fellow-members on the com- 
mittee had doubtless before their eyes not the 
House of Lords with its special judicial powers, 
but the Council of the Province which possessed 
supreme appellate jurisdiction. Of this Counci] 
too, as of the new Court of Errors, the judges 
and chancellors were members, with power to 
argue, though not to vote, on appeals from their 
own judgments.^ Finally, few of the guaran- 
tees of popular rights embodied in the Constitu- 
tion had a lineage of less than a hundred years ; 
for most of them are found in the ^^ Charter of 
Libertys and Privileges,*' the first act of the 
first Assembly of the Province, in 1683, which 
was signed by the governor, though disallowed 
by the king. Towards the end of March, 1777, 
the draft of the new Constitution, in Jay's hand- 
writing, was reported by Duane from the com- 

After the dispiriting battles of Khode Island, 
and Washington's masterly retreat, came tlie 
mortifying afTair at Kip's Day, the hasty re- 
^ Albany Law Journal, Deo. 18, 18S0, p. 489. 

84 JOBJi JAT. 

treat of Putnam*! forces from New York ; then 
followed tlie battle of Harlem Plains, reviving 
the spirit of the Amorioan troops, and that of 
White Plains, and Washington's retreat to tlie 
Hudson and into New Jersey. The Convention, 
therefore, was transacting its business under the 
stress of unparalleled disadvantages. ** In fact, 
such was the alarming state of affairs, that at 
certain periods the Convention was literally 
driven from pillar to post, while it had alter- 
nately to discharge all the various and arduous 
duties of legislators, soldiers, negotiators, com- 
mittees of safety, committees of ways and means, 
judges and jurors, fathers and guardians of their 
own families flying before the enemy, and then 
protectors of a beloved commonwealth.** * Only 
a few days before, it had been necessary to allow 
members to smoke in the convention chambers, 
^*to prevent bad effects from the disagreeable 
effluvia from the jail below.'* ' 

The Constitution, as drafted, was discussed 
section by section, and passed with but few mod- 
ifications or additions ; and of these Jay moved 
a hirge proportion. A section proyiiling for 
voting by ballot was struck out on motion of 
Gouverneur Morris^ but some days later Jay car- 
ried an amendment which ordered that so soon 

1 Proceed ingg and Dehatei of Count. Conv. </lS21, p. 002. 
* Journal* o/Prov. Cong., «t«. i. 642. 


M praoiieable after tho war all olootions slioalil 
be by ballot^ tliough the legulature iiii|;hl at 
any time after a fair trial renew tlio praetiee of 
viva voce voting.^ It was under thin elaitae tliat 
tbo fir»t law was framed in New York, authoris- 
ing a aeeret ballot in 1778, and so succesHf ul did 
it prove that nine years later it was cxtei\dod to 
all elections of state offieers. Such a measure 
was certainly never proposed in the interest of 
aristocracy ! 

The most prolonged debate of the session was 
ui)on the question of religious toleration, over 
the important clause that ** the free toleration of 
religious profession and worship witliout dinu- 
nution or preference shall forever hereafter be 
allowed witliin the State to all mankind." This 
charter of freedom of conscience was one of the 
priceless heirlooms bequeathed to New York by 
New Netherland, whieli, almost alone among tho 
colouics, had never listened to the denunciations 
of fanaticism, hod never lighted the fires of per- 
secution. In Jay the old Huguenot blood still 
ran hotly, thrilling him with memories of Pierre 
Jay driven from La Rochelle, of Bayards and 
Philipses seeking refuge in Holland and Bohe- 
mia from the long arm of the Papacy. The 
power of the Church of Home he knew and 
feared ; he urged, accordingly, amendment after 
^ Joumal$ of Prop, Cony., L 800. 


amendmenli to exeept Roman Catholict till they 
should abjure the authority of tlio Pope to 
absolve eitizenfl from their allegiance and to 
grant spiritual absolution* The result of his 
objections was the adoption of a proviso, ^* that 
tlie liberty of conscience hereby granted shall 
not be so construed as to excuse acts of licen* 
tiousness or justify practices inconsistent with 
the safety of the State.*' ^ When the question 
of naturalization came up for discussion, Jay 
renewed the same fight, and secured the amend- 
ment, sufficient for public security though less 
stringent than he desired, that before natut*aliza- 
tion all pei*sons sliall *^ abjure and renounce all 
allegiance to all and every foreign king, prince, 
potentate, and state, in all matters ecclesiastical 
as well as civil.** * The wording of this clause 
brings out, perhaps, Jay*8 motive in this contro* 
versy. With him it was not a religious but a 
political question. It was not Komanism as a 
religion tliat he feared, but Komanism as an 
imperium in imj>erio. That he was not a bigot 
was shown dearly when in July, 1775, the Pro- 
vincial Congress forwarded to their delegates in 
the Continental Congress a ^ plan of reeoncilio- 
tion,** protesting, among other things, ** against 
tlie indulgence and establishment of popery [by 

> Jowrnah ofProv, Cong., 1 80a 


the Quebec Act], all along their interim con- 
fines.** '(o the answer of the delegates to the 
Provinoial Congress Jay added this significant 
clause : tliat they thought best to make no refer- 
ence to the religious article, preferring to bury 
** all disputes on ecclesiastical points, which hare 
for ages liad no otlier tendency than that of 
banishing peace and charity from tlio world.** ^ 

Tlie Council of Ap]K>iutment was constituted 
on Jay*s motion s but though the credit or mis- 
fortune of its creation is attributed to him, tho 
measure was really a compromise, the extremists 
on one side pro]K)sing that the governor should 
have sole power of apjMiutment, — a sound prin- 
ciple, but obnoxious to tlio democratic Conven- 
tion, — while those on the other side insisted 
ui)on confirmation by the Legislature.* 

That acts of attainder (which were limited to 
offenses committed before the termination of the 
war) shouUl not work corruption of blood ; and 
that the State should assume the protection of 
the Indians within its boundaries, were humane 
provisions due to Jay. And just before tlie final 
vote, he moved a f uitlier clause that was adoptcil, 
the significance of which has been explained,^ 

^ Tbo<K Roosevelt, Lifi </ Ootivermur MarrU, pp. 42, 43. 
s JoumaU o/Prov, Cong., i. 377 ; To R. R. Liviiigst4m and 
QoaYerneur Morris, April 2U, 1777, Ja^ MSS. 
' Supra, p. 82. 

88 JOUH J 47. 

prohibiting the institution of any court ^but 
such as shall prooeecl aooording to th^ course of 
the conunon law/* ^ 

On April 17, 1777| his mother died, and Jay 
hastened to FisbkiU to attend the funeral and 
comfort the family. During his absence, on a 
Sunday, the Constitution was adopted ; it was 
hurriedly printed, and published April 22d by 
being read from a platform in front of the court> 
house at Kingston. Like all the early constitu« 
tions, except that of Massachusetts, it was never 
submitted to the people ; the election of dele- 
gates for the express puqH>so of framing a con- 
stitution being deemed a ratification in advance. 
Jay was at once placed on a committee for or* 
ganizing the new form of government. Under 
the plan of organization, fifteen persons, iuclud* 
ing Jay, were created a Council of Safety ^^ with 
all the powers necessary for the safety and pre« 
servation of the State, until a meeting of the 
Legislature," and with instructions to admin- 
ister the oath of office to the governor, when 
elected. Robert R. Livingston was appointed 
ohancellor, John Jay chief justice, and others 
were appointed judges, sheriffs, and clerks, to 
act pro tempore^ till the institution of the new 
government, a period, as it happened, of some 
six months. An act of grace was drafted by 

^ JifUnaU qfProv. Cong., I 8S2. 


Jay in conmiittee, granting full pardon to any 
delinquent or traitor on his produoing beforo 
tlia Council of Safety or the governor a certi- 
ficate of subiicription to the oath of allegiance. 
On further motion of Jay, the resignation by 
General Clinton of his coninuind of the militia 
was not accepted. The thanks of the Conven- 
tion were then voted to the New York delegates 
in Congress ; and the Convention dissolved, May 
13th, ordering the Council of Safety to assemble 
at the same place *^ to-morrow morning at nine 
o'clock.'* ^ This was the close of tliat memora- 
ble Convention, whose deliberations, said Chan- 
cellor Kent, " were conducted uiider the cxcite- 
. mont of groat public anxiety and constiut alunn ; 
and that venerable instrument, which was des- 
tined to be our guardian and pride for upwards 
of forty years, was produced amidst the hurry 
and tumult of arms." ' In all this turmoil Jay 
and his fellow-f ramers of the Constitution were 
calm and collected ; inspired by the practical, 
precedent-regarding spirit of the common law, 
they retained all that experience had approved, 
and adjusted what they added of new to har- 
monize with the old ; therefore it was that the 
Constitution remained in force for over forty 

» Journal* of Prop, Cong., I. 031. 

* Kent, Ditcouru be/ore the N. T. Uift. Soe., Dm. 6, 
1828, p. 5. 

90 JoaM JAY. 

yoart, and then, ^ with Mome minor modifloa* 
tioos, the extension of suffrage and the eou« 
ountratiun id more power in the governor, • • • 
continued subetantiuUy uuolmnged until 1846/' 
Subiiequent olmnges have been in the direction 
of limiting the jiower of the legislature, and 
providing for the new problems presentcil by 
' the sudden development of cities. One obvious 
defect was the failure to make provision for 
constitutional amendment^ Many things were 
omitted, which Jay especially regretted: a di- 
rection that all officers should swear allegiance ; 
a prohibition of domestie slavery ; and a clause 
** for the support and encouragement of litera- 
ture."* "I wisV he wrote to Morris, April 
14, 1778, *^yott would write and publish a few 
civil things on our Constitution, censuring, how- 
ever, an omission in not restraining the Council 
of Appointment from granting offices to them- 
selves/' ' In spite of defects, however, the Con- 
stitution received general praise* ^^ I believed 
it would do very well," ^ was John Adams's cold 
expression, which meant, however, much more 
than it said. *^ Our constitution," Jay wrote to 
Gansevoort, ^ is universally approved, even in 
New England, where few New York productions 

^ Dougherty. Po/. ScUpm QmoH., Sept, 1888, p. 404 itpatnm. 
* Jay*»Ju^lOO. •JagUSS, 

« Jukm Adam'$ Wurkt, x. 4ia 


lia¥6 eredit But unlttas the government be eoni- 
niitted to projier bands it will be weak and un- 
stable at home and oontomptible abroad.'* ^ It 
wan at tirnt time ^gunondly regarded as the 
moat exeelleut of all the American constitu- 
tions," > of which it was the fifth to be adopted ; 
and by a writer whose knowledge of tlie early 
constitutional history of the country gives weight 
to any statement of his, however unsusceptible 
of proof, it is asserted to have been essentially 
tlie model of the national government under 
which we live. * 

For the next six months the government of 
the State was in the hands of the Council of 
Safety. They directed the release or confine- 
ment of sus{)ected persons ; regulated the pris- 
ons ; conferred with the Continental Congress on 
measures of defense ; and provided for the com- 
ing elections. Jay prepared a commission for 
holding courts of oyer and terminer ; rejiorted 
from a committee rules for the reorganisation 
oC the Fleet Prison ; drafted letters to the New 
York delegates at Philadelphia concerning the 
revolt in the northeast, and was forthwith added 
to the Committee on Intelligence to discuss with 

» Jane 6. 1777, Jag MSS. 

* John Alex. JamMoa, Congtimionai CoRPcnfton, 4tli ed., 
f 152. 

* JuUo Auitiii Stevens, Mag, Am. Uitt., July, 1878, p. 387. 

92 Joa}f JAT. 

General Schuyler at headquarters the measures 
requisite for its suppression.^ 

Jay was asked more than once to become a 
eandidate for governor ; but ho steadily refused, 
for the reasons which ho stated as early as May 
IGth : ''That the ofltco of tlie first magistrate of 
this State will bo more resi)octablo as well as more 
lucrative, and consequently more desirable than 
the plaee I now fill, is very apparent But • • • 
my object in the courae of the present great con- 
test neither hiu been, nor will be, either rank 
or money. I am pci'suaded that I can bo more 
nseful to the State in the ofTice I now hold than 
in the one alluded to, and therefore think it 
my duty to continue in it.** General Schuyler 
seems to have been the candidate of the Council 
of Safety, as he certainly was Jay*s; but on 
July 9th the people elected the burly, magnetic 
less aristocratic Clinton. *'I ho])e,** Schuyler 
magnanimously wrote to Jay, *' General Clinton's 
having the chair of government will not cause 
any divisions amongst the friends of America, 
although his family and connections do not en- 
title him to so distinguished a predominance; 
yet he is virtuous • and loves his country, has 
abilities and is brave, and I ho})e he will ex- 
]H3ri4»uce from every ])atriot what I am resolved 
he shall from me, sup|)ort, countenance, and com- 

^ JourmUi of the Prov. Cony., I 048-1010. . 


fort** ^ All New York at tliis time, outside the 
Britiflh pale, waa Whig ; but, as this letter shows, 
there was already a divergenoe between the 
more demooratie and the less demooratio Whigs, 
though all were equally patriotio and republican. 
The Council at once resolved that they were not 
*^ justified in holding and exercising any powers 
vested in them longer than is necessiiry,'* and 
requested General Clinton to ap]K'ar and take 
the oath of oflloo. lUit the governor elect was 
hokling Fort Montgomery and ex|)eeting a sud* 
den attack. *^Tlio enemy have o|)encd the ball 
in every quarter,*' wrote Schuyler to Jay a few 
days earlier. '^ It is pretty certain that they will 
pay us a visit from the westward as well as from 
the north. I am in much pain about Tioonde- 
roga ; little or nothing has been done there this 
Spring." ' The evacuation of Ticonderoga fol« 
lowed swiftly. *^I dare not speak my senti- 
ments,** wrote Schuyler again, July 14th, from 
Fort Edward. *^ In the Council of Safety, to 
your secrecy, I con confide them. They are, 
that it was an ill-judged measure, not warranted 
by necessity, and carried into execution with a 
precipitation that could not fail of creating the 
greatest panic in our troops and inspiriting tlio 

> July 14, 1777. Jag MSS. 
s June 30, 1777, Jug MSS. 

94 Joan /at. 

enemy.** ^ For tlie moment, as Bnrgoyne con- 
tinned his southward marohi the war was closed 
indeed. Jay's family was alarmed, especially his 
father. «' General Sullivan with 2,000 Conti- 
nental troops are now encamped in the town of 
Fishkill," is the news sent by Frederick Jay, 
July 18th* ^ This affair makes the old gentle- 
man imagine that the enemy will certainly at- 
tempt the river. I could wish he was as easy 
about the matter as myself.*' * Qiute as easily, 
but less cynically, Mrs. Jay had described just 
such an alanii in Klarch, at Pcekskill: *^This 
very moment the doctor camo into the room, 
his lookk bes})eaking the utmost diseom]K>suro. 
*Bad news, Mrs. Jay.* *Aye, doctor; what 
now?* *Tho regulars, madam, are landed at 
Pcekskill ; my own and other wagons are pressed 
to go instantly down to remove the stores,* 
Wherever I am, I think there are alarms ; how- 
ever, I am determined to remember your maxim : 
prepare for the worst and ho\}Q the best." * 

The Legislature was summoned by the Coun« 
cil to convene at Kingston on the 1st of August 
It is curious to notice, in the light of subsecpicnt 
history, that Jay '^casually hinted at holding 
the first session of the Legislature at Albany,'* 

> Jay MSS. 

* To JuUu Jay, MokU 23, 1777, Jay MSS. 

• Jbitt 


bot found ^a general dinnoHnation to it** 
•"Sooio objeet,** he wrote to Schuyler, «^ to the 
expense of liYing there, as most intolerable, and 
otheiB say that, should Albany succeed in having 
both the great officers, the next step will be to 
make it the capital of the State/' ^ On July 
Slst, the day before tliat set for the meeting of 
the Legislature, General Clinton, in the pres- 
cnce of the Council o£ Safety, took the oath of 
office, **elothciI in the uniform of the service, 
and sword in hand, standin ▼ on the top of a bar- 
rel in front of the Court-liouso iu Kingston.*' ^ 

A hurricil cxiKnlition was made by Jay with 
Gouverneur Morriii, by order of the Council, to 
the headquartom of Washington, to consult aliout 
the means of defense, and to urge the necessity 
of providing garrisons for the forts in the High- 
lands, as the term of the militia stationed there 
was about to expire. Soon after his return, on 
September 9th, he opened the first session of the 
Supreme Court of the State at Kingston. From 
a letter of Jay's, it appears tliat this was not the 
first official function of the judicature, since the 
ailoption of the constitution. ^A court is di* 
rcctctl to bo held in Dutchess," he wrote to Mrs. 
Jay, Juno Gth, ^ and I expect the like order will 
be given for the other counties, so that should 

• Joha A. StovcM, Afd^. Am. Uitt., Jvly, 187S, p. 887. 

96 jonN JAt. 

you not bear from mo so frequontly aaoribo it to 
my ftbaenoe from bore.*' ^ The Supremo Court, 
as has been said, was merely the old provincial 
Supreme Court continued. **The minutes of 
this term appear in the same old volume in use 
under the crown. Between the minutes for 
April term, 1776, and those for September term, 
1777, are a few blank leaves, but there is no 
written indication of the change of government 
that had taken place. Indeed, it would be im* 
possible to learn from the records of the Se))- 
tember term what had happened in the interval, 
were it not for the title of the first cause on the 
docket: the party plaintiff is *The People of 
the State of New York,' and no longer ^ Pom- 
iuus Ilex.* In all other rcs})ects the minutes 
disclose no immediate change in the procedure, 
pi*actice, or administration of the Court.*' ' At 
Kingston, September 9th, Jay, as chief justice 
pro temj}ore^^ delivered an address to the grand 
jury of Ulster County, which for many years 
afterward was regarded as one of the classics of 
the Ke volution. *^It affords me, gentlemen," 
was the impressive oi)ening, ^* very sensible pleas« 
ure to congratulate you on the dawn of that 

> Jay MS3. 

* Fowlor, '' Coast, of th« SupronM Court,** ^1/6. Law Jour- 

' His furiual commUaioo as chief jusiico utulur Uto CoasU- 
tiitioa was aot aiaUtt out till a f«w days laUir. 


free, mild, and eqiud government wbioh now bo- 
gios to break and rise from amid those clouds of 
anarcibyt confusion, and licentiousness which the 
arbitrary and violent conduct of Great Britain 
had spread, in greater or less degree, through- 
out this and the other. American States. • . • 
Vice, ignorance, and want of vigilance will be 
the onlj enemies able to destroy it Against 
these be forever jealous.*' At that moment, Bur* 
goyne was approaching Albany and had already 
reached the Hudson, while New York city and 
the whole southern tier of counties, New York, 
Westchester, liichmond, and Long Island, the 
richest and most populous in the State, were in 
ahnost undisturbed possession of England. The 
extreme nortlieastern counties, Gloucester and 
Cumberland, also, were in half-<lcclared revolt 
Within the British lines Judge Ludlow still ex- 
ercised the jurisdiction of tlie Supremo Court of 
the Province ; and these two governments con- 
tinued till the evacution, November 25, 1783. 
It naturally followed that the Supreme Court 
of the State, during Jay's term as chief jus- 
tice, had little important business. During the 
Kevolution the court never sat in banc. As, 
moreover, no rei)orts are published of the deci- 
sion* for the first twenty-two years of its exist- 
ence, scarcely anything can be safely said of Jay 
as chief justice of Now York. 

98 JO UN JAY. 

^I am now engaged,*' he wrote to Morris, 
April 29, 1778, "^ in the most disagreeable part of 
my duty, trying oriminab. Tliey multiply exceed- 
ingly. Robberies become frequent ; the woods af- 
ford them shelter, and the Tories food* Punish- 
ment must of oourse become certain, and mercy 
dormant, — a harsh system, repu^uuut to my 
feelings, but nevertheless necessary." ^ In those 
days the inconveniences of life were many even 
for a judge at Albany. ^^ Had it not been for 
fish,'* according to Jay, ^ the people of this town 
would have suffered for want of food, occasioned 
by the refusal of the farmers to sell at the stip- 
ulated prices. The few goods there were in the 
town have disap|)cared. I have tried, but have 
not been able, to get a pair of shoes made.'*^ In 
the summer he seems to have been much with 
the governor, assisting him in official corre- 
s)K>ndenco, and was conbtautly a]>plied to, but in 
vain, to exert his influence with him in behalf of 
Tories or their friends who wished pass|K)rts to 
New York. In the autumn Juy retiretl to the 
farm at Fishkill for a little much needed rest. 
*^I have not been witliout the bounds of tlio 
farm since my return to it,** he wrote his wife in 
August, ^Vand to tell you the truth, were you 
and our little boy here, I should not even wish 

« Jay'.Ja^. U. 23. 

> To Mm. Jiiy, April t), 1778, Jag MSS, 


to kafijt it this year, provided it woald be aU 
that time exempted from the fisitation of both 
arniies. This respite from care and basinese ii 
extremely grateful. .. • • Its duration, however, 
will probably be short, as the number of per- 
sons elmrgcd with capital offenses now in con* 
flnoniout requires that courts for their trial be 
specilily held. Delays in punishing crimes en- 
courage the commission of crime. The more 
certain and speedy the punishment, the fewer 
will be the objects.** ^ While stiU at Fishkill 
Mr. Jay received General Washington, whom 
his father had entertained three years before at 
Uye, and with whom in the service of the State 
he had himself conferred frequently on militaiy 
matters. The object of the visit was to discuss 
a plan, then before Congress, for the invasion of 
Canada with the aid of France, and both agreed 
in disapproving it. Hero, too, tlio chief justice 
probably wrote the paper, signed ^^ A Freehold- 
er," on the abuses of impressment by the mili- 
tary, *^ without any law, but that of the necessity 
of the case^ which cloaks as many siiis in |>olitics 
as cliarity is s:iid to do in religion.** *^ These 
impresses,** was the concluHion, ^* may, I think, 
easily be so regulated by laws, as to relieve the 
inhabitants from reasonable cause of complaint, 
and yet not retard or embarrass the service.'* 
> Avffu«i.% 1778, Jay IfSS. 


As chief justioe, Jay was ex officio a member 
of the Coancil of 'Revision, wbioh sat from time 
to time at Poughkeepsie, and i^faioh this springy 
on objections drafted by him, vetoed many anti- 
tory bills, and bills perpetuating revolutionary 
methods. The first of these bills was ^* an act 
requiring all persons holding offices or places 
nnder the government of this State to take the 
oaths herein prescribed and directed ; " and a 
new law was subsequently passed so as to avoid 
Jay's objections.* A number of members of 
the Legislature had formed themselves into a 
Council of Safety, and declared an embargo 
against the exi)ortation of flour and grain from 
the State. A bill to continue this embargo 
was vetoed, because it recognized the Council of 
Safety, *^when in fact all Legislative power is 
to be exercised by the immediate representa- 
tives of the people in Senate and Assembly in 
the mode prescribed by the Constitution; for 
though the People of this State have, hereto- 
fore, been under a necessity of delegating their 
authority to Provincial Congresses and Con- 
ventions, and of being governed by them, and 
Councils, and Committees of Safety by them 
from time to time appointed, yet • • • these 
were mere teimporary expedients to su)>ply the 

> P«b. 3, 1778, Alfred B. Street, Tht CommciV of RevUion, 



want of a mora regular government, and to 
oease when that prescribed by the Constitation 
should tako plaoe/' ^ March 25th, the Council 
vetoed a sweeping bill to disfranchise and dis- 
qualify for oflice any one who since July 9, 
177C, had before any committee of safety, or 
conspiracy* acknowledged the sovereignty of 
Ureat Britain, or denied the authority of this 
or any former government of this State, or 
given aid or comfort to the enemy, etc. The 
reasoning of the Council was strong and con« 
cise: the bill is unconstitutional, ^^ because the 
Constitution of this State liath expressly or- 
dained that every elector, before he is admitted 
to vote, shall, if required • • • take an oath • • • 
of allegiance to tlie State, from whence . • • it 
clearly follows that every elector who will take 
such oath, has a constitutional right to be ad- 
mitted to such vote, and therefore that the Leg- 
islature have no power to deprive him thereof, 
more especially for acts by him done prior to 
the date of the said Constitution, which was the 
20th day of April, 1777, of which acts the Con- 
vention, by whom that Constitution was made, 
had ample cognizance/' • • • ^^ Because the said 
disqualilicutions • . • savor too much of resent- 
ment and revenge to be consistent with tlie dig- 

> Fttb. 20, 1778, Siraet, 7%e Council of Beoitioit, pp. 203, 
201. Th« biU paiMttd fiiiaUy with sUi^bi aiuvuduMDU. 

102 JOBH JAT. 

nity «r good of a free people. Beoauae the ndd 
dUqualificationa (supposing tliem to be consti- 
tutional and proper) are not limited to take 
place only on the conviction of the offenders in 
due course of law/* ^ Such, however, was the 
intensity of party feeling, that this bill was 
passed over the veto. 

The same day the Council vetoed a bill ^ for 
raising moneys,** by which traders and manufact- 
urers were to bo taxed X50 on every. £1,000 
gained in their occupations since September 12, 
177G. This was held unconstitutional, as violat- 
ing ^ the equal right to life, liberty, and prop- 
erty,*' because **the public good requires that 
commerce and manufactures be encouraged,** 
and because it is *^ repugnant to every idea of 
justice thus, witliout any o|)en charge or accu- 
sation of offense, and without trial, indiscrimi- 
nately to subject numerous bodies of free citi- 
sens, distinguished only by the appellation of 
traders or manufacturers, to large penalties not 
incurred on conviction of disobedience to any 
known law, and couched under the specious 
name of a tax.'* ' As late as November 5th, a 
similar bill was vetoed, giving the assessors au- 
thority to tax at discretion those wlio, *' taking 
advantage of the necessities of their country, 

> Stroot, The Council iffRtvitioH, pp. 210, 2U. 
• Ibid., pp. 212, 2ia. 


hftTOi in proMcmting their private gain, amaMed 
large. aanis of money to the great prejudioe of 
the pablio," Jay's objeotiona were baaed on 
broad oonstitutional grounds : ^ An equal right 
to lifot liberty, and property is a fundamental 
prineiple in all free societies and states, and is 
intended to be secured to the people of this State 
by the Constitution thereof; and tlierefore no 
member of this State can constitutionally or 
justly be constrained to contribute more to the 
support thereof than in like proportion to the 
other citizens, according to their resjiective es* 
tates and abilities.*' • • • *^To tax a faculty is 
to tolerate it, vice not being in its nature a sub- 
ject of taxation.** • , • ** By the principles of 
tlie Constitution, • • • exeejit in cases of attaind- 
er, .. . no citizen is liable to be punished by 
the State but such as have violated the laws of 
the State. • • • Supposing, therefore, that the 
persons aimed at in this bill have acquired 
riches immorally» yet if they have acquired them 
in a manner which the Legislature has not 
thought pro])er to prohibit, they are not obnox- 
ious to human punishment, however much they 
may be to divine vengeance. But if, on the 
other hand, these persons liave acquired riches 
in a manner prohibited by the law of the land, 
tliey ought to be tried and punished in the way 

104 JOUN JAT. 

dirooted by these laws, and not mibjeoted to 
double pttnisluneiit** ^ 

Those words, so full of reasonablenessi love 
of legality,, and hatred of injustice may well 
close our account of the period that is here 
rougldy termed that of Jay's constructive 
statesmanship. Years are to pass before we 
find him again in the service. of his State; but 
from that day to this. New York has borne upon 
its fundamental law the deep impression of his 
character. . 

* Street, 71^ Couhdl qfBevUhnt pp. 214» 21S. 




Fob muiy years the boundaries between New 
York, New Hampshire, and Massachusetts had 
been a source of controversy and confusion. 
The inhabitants of the disputed territory were 
unusually liardy and independent, and as early 
as 1772 and 1778 there wore riots in Gloucester 
and Cumberhind oountics against claimants of 
land under title from New York. Agents were 
sent to England with petitions to tlie Crown, 
and the ease on behalf of New York was pre- 
pared by Duane and included in an elaborate 
report to the Assembly. The breaking out of 
the Revolution prevented any settlement of the 
question at that time. But the Declaration of 
Independence was utilized by Etlian Allen and 
his followers as a good opportunity to declare 
the independence of the territory which they 
now began to call Vermont. In January, 1777, 
Vermont declared itself a free aiid independ- 
ent State, and a convention of delegates met 

106 JOBif JAY. 

at Windsor, July Sdt to frame a conatitutioiL 
Ethan Allen wrote a vigorous pamphlet vindicat- 
ing the right of Vermont to statehood. ^ There 
is quaintness, impudence, and art in it,** wrote 
Jay to Morris.^ ** Strange,'* replied Morris, 
^ strauge that men in the very act of revolting, 
should so little consider tlio temper of revolt- 
ers«** ^ The process of New York courts ceased 
to run in the northcoHU^rn counties. Trooits 
were dispatched to quell the outbreak, but met 
with DO success. The New York Convention at 
last applied through their delegates to Congress, 
which appointed a committee upon the letters 
from the Convention, and a petition from the 
inhabitants of the New Hampshire Grants, as 
they were technically described. On the report 
of the committee, it was resolved that the De- 
claration of Independence in no way justified 
Vermont in separating from New York, and 
that Congress, representing the thirteen States, 
could not countenance anything injurious to the 
riglits of any one of them. 

Burgoyne's expeilition was taken advantage 
of by the Vermonters to coerce the States by 
coquetting with the enemy ; and for a time the 
situation was full of menace. *^ General Ilur- 
goyne," wrote II. B. Livingston to Jay, June 

1 Sparks, Morrii, L 2ia 
« Ibid., L 212. 


ITth, ** has sent a auminons to the people of the 
Grants to meet Governor Skene at Castletovnit 
to be there acquainted with the terms on which 
tlioy sluill lu>I<l tlieir property, and threatening 
with immediate death all who refuse their at« 
tendance. General Schuyler, in answer to this, 
has sent a proclamation declaring that those 
who comply with Burgoyne*s summons shall be 
punished as traitors. Many have taken protec- 
tion. Those who are discovered aro committed 
to gaol.*' ^ Wliat was originally merely an agra- 
rian rising against claimants under legal tides 
from a distant and disputed government was 
thus rapidly becoming a serious political ques- 
tion. Finally the New York Legislature re- 
solved that there existed **a s^iccial case,** in 
the sense of the CoAstitution, that would justify 
the appointment of Jay to Congress without 
vacating his scat on the bench. He was accord- 
ingly charged with the special mission of urging 
on Congress a settlement of the territorial claims 
of his State, and tlms returned to the scene of 
his early labora. 

In Congress, at the moment, the conduct of 
Silas Deane, recently recalled from France, 
was the subject of long and vehement debate. 
Among other questions involved was tliat of the 
contracts for war material with the versatile, 

^ Jag MSS. 

108 JOBS JAY, 

welMispoaed, but devious BeaumarohaU. Aiw 
thur Lee, Deane's fellow-commissioner, misled 
by the secrecy adopted by the French govern- 
ment to avoid complications with England, al« 
Icged incorrectly that the arms were the free 
gift of France, and attacked Deane*s integrity. 
^^ Many persons whom you know are very liberal 
of illiberality,** Morris had written to Jay in 
August **Your friend Dcane, who hath ren- 
dered the most essential services, stands as one 
accused. The storm increases, and I think some 
one of the tall trees must be torn up by the 
roots." > ** I think our friend D.," wrote Robert 
Morris, ^has much publie merit, has been ill 
used, but will rise superior to his enemies.'* ' 
Deane was a gentleman of breeding and educa- 
tion, with easy diplomatic manners, wlio, at the 
beginning of the Revolution, was Chairman of 
the Committee of Safety in Connecticut, and a 
member of the first Continental Congress. When 
he was sent abroad as agent of the Secret Com- 
mittee, it was with Jay that he regularly cor- 
responded. In Paris he found himself ^^ with- 
out intelligence, without orders, and without re- 
mittances, yet boldly plunging into engagements 
and negotiations, hourly hoping that some- 
tiling will arrive from America.*' The truth 

1 O. MorrU to Jay, Aug. 10, 1778, Ja^ M33. 


of hifl aooount of his dealings with Beattnuar- 
ohaia ia now fully proved. Itwaa then inoon- 
aiatently oharged that the articles sent were of 
poor quality, and that they were fj^ifts of France 
not intended to bo paid for. But Deane hatl 
written at the beginning, ^^ Mens. Beaumarchais 
has been my minister in effect, as this court is 
extremely cautious, and I now advise you to at- 
tend carefully to the articles sent you as I could 
not oxaniino them hei*o. I was promised they 
should bo good, and at the lowest prices.** ^ 
Only a year before Captain Nicholas Itogers, in 
transmitting to Jay some of Deane*s letters, in- 
cidentally gave testimony to Dcane*s worthiness 
at that time. **You will use a certain liquid 
(that Mr. Deane told me you had) upon the 
margin of the printed sheets so as to make leg- 
ible what l^ir. Deane has wrote ; should it not 
have its projier effect, which I am afraid of, as 
the letters were put into a tin box in a barrel of 
rum which was eat tlirough, and I am afi-aid has 
damaged them, the enclosed letter is of tlie same 
contents. ... I liv*d at Paris in the same house 
with Mr. Deane and hact the Pleasure of being 
particularly intimate with him. ... I should 
be hap])y to inform you and answer you any 
questions concerning the most of Mr. Deane*s 
transactions the last summer, which he i)erform*d 
> Tu Jay, Dee. 3, 1770. 

no JOOif JAY. 

with the wanath of the most aealous of Patri- 
ots.*' ' That Deane subsequently^ embitterecl« 
perhaps, by perseeution, became, in Jay*s opin- 
ion, a traitor to his country, ought not to be 
allowed to affect one's juclgiuent of his antece- 
dent conduct. Certainly, with the knowledge 
that he possessed at the time, Jay was in honesty 
bound to defend and sustain his friend, and he 
did so ; thus winning unawares the approbation 
of the French envoy, who was personally and 
officially interested in the same cause. 

To the outspoken attacks of Leo, Deane at 
last res|)onded by a bitter article in a ncwspa|)er 
commenting on the character of Lee and the 
delay of Congress. In Congress and o\u of it 
the article created intense excitement. ^ Mr. 
President Laurens brought tlie newsimper with 
him to tlie IIoukc, and from the Chair proiMsetl 
that it should be read, in order tluit it might 
become the subject of certain resolutions. The 
House not thinking it projicr to come into that 
measure, he resigned the Chair, saying that he 
could no longer hold it consistent with his honor. 
They were disgusted and adjourned. The next 
day his friends attempted to replace him, but did 
not succeed. A new President was elected.'* > 
Such is the colorless description of the stormy 

1 Juno 4, 1777, Jay a/S5. 
« Jay A/6'.S. 


•oene given by Jay^ who wm ohoieii the new 

Among the many oongralulationa Jay received, 
that from his wife, though touched with wo- 
manly regret, must have pleased him most : *^ I 
had the pleasure of finding by the newspapers 
that you are honor*d with the first office on the 
Continent, and am still more pleased to hear 
this appointment affords general satisfaction. 
• . • I am very solicitous to know how long I am 
still to remain in a state of widowhood : upon 
my word I sincerely wish three months may 
conclude it ; however, I mean not to influence 
your conduct, for I am convinced tliat, had you 
consulted me as some men have their wives 
almut public measures, I should not have been 
Jiomun matron enough to have given you so 
entirely to the public." * " Sally ! " was the old- 
fuHhtoned rc])ly, with sedate words still pulsating 
with love and longing for home; ^^ Sally t the 
charms of this gay city would please me more if 
you partook of them. I am afraid to think of 
. domestic hapjiiness ; it is a subject which pre- 
sents to my imagination so many shades of de» 
parted joys, as to excite emotions very impro))er 
to be indulged in by a person in my station, 
determined at every hazard to persevere in the 
11 Doc. 28, 1778, Joy MS3. 

112 JOBH JAT. 

poTSttit'of tbat great object to which wc hare 
sacrificed so much.'* ^ 

The histofy of Jay's presidency of Congress 
Is too much that of the country to be written 
here. It is necessary to refer only to affairs 
especially intrusted to him. The condition of 
the currency was such as to cause the gravest 
anxiety. *^ Our moueyi" wrote B. R. Living* 
ston to Jay in October, 1778, ^^ is so much de- 
preciated as hardly to be current, and, as a 
necessary consequence of this, our expenses 
have increased beyond all conception. Accord* 
ing to a calculation which I have made it costs 
as much to maintain the army two months now, 
as it did to maintain them for the whole of the 
year 1776. It is absolutely necessary that we 
should get out of this war soon.'*^ Accord- 
ingly, as one of his first duties, Jay was directed 
to write a letter to the States exiJaining the ac- 
tion of Congress in limiting the issue of paper 
money, and calling on the States for funds to 
meet current ex|)enscs. If the letter hardly 
showed a thorough knowhnlge of the principles 
of finance, it nniHt lie romeniliered that few 
statesiiicn of that day had such knowliHlgc, and 
it at least answered the purposes of the moment. 
It stated simply the causes oE depreciation, 

1 Jan. 3t, 1770, Jay MSS. 
« Oct. 8, 1778, Jay MSS, 


whioh WM held, in this oaae, to be aH(/Eeiaf » or 
due to laek of confidence in the government, 
and not natural^ due to excessive issue. The 
rest of the letter aimed to restore public con- 
fidence by affirming the honest intentions of 
Congress to fulfill thoir engagements, and prov- 
ing their ability to do so by reference to the 
enormous uudovoloped wealth of the country 
and the indefinite increase of population to be 
expected from immigration. It b easy to no- 
tice now that the amount of paper then issued 
was far in excess of what could possibly be 
maintained at par in the natural course of busi- 
ness. But a bankrupt in need of money cannot 
affoni to be logical, and an appeal to an opti- 
mistic patriotism was then the only resource. In 
later life, to Jay, as to many other Federalists, 
the future of the country seemed dark and un- 
promising; but now the optimistic close of his 
letter to the States only expressed his own 
serious confidence that the evils of tlie present 
wore temporary, and that dawn was soon to 
break. *^ Cuini repose and the sweets of undis- 
turbed retiromont," he wrote to Washington, 
^^api)car more distant than a peace with Brit- 
ain. It gives me pleasure, however, to reflect 
that the period is approaching when we shall be 
citizens of a better ordered state, and the spend- 
ing of a few troublesome years of our eternity 

114 JOBN JAT. 

in doing good to this and future generations ii 
not to be avoided or regretted. Things will 
come rights and these States will be great and 
flourishing. The dissolution of our goYernment 
threw us into a political chaos. Time, wisdom, 
and perseverance will reduce it into form. . . . 
In this work you are, in the style of one of your 
professions, a master-builder, and God grant 
that you may ever continue a free and accepted 



The matter of Vermont was, of course, Jay*s 
especial charge, and this proved extremely diffi- 
cult of adjustment Congress was reluctant to 
intervene in any local territorial dispute, how 
ever important There were many different 
interests to reconcile, and all the members of 
Congress were not disinterested. ^^ There is as 
much intrigue in this State House,'* wrote Jay 
to Washington, ^ as in the Vatican, but as little 
secrecy as in a boarding-school."' For the 
greater part of a year there was no progress 
to report At length, in August, 1779, he ad- 
vised the legislatures of New York and New 
Hampshire to authorize Congress to settle the 
line between them, and the Legislature of New 
York, in addition, to emi)owcr Congress to ad- 
just their private controversy with the people of 

> April 21, 1770. Ja^ MSS, 
* April 2«. 1770, J<iy MSS, 


Yornumt^ Thii done. Jay moved and earned 
roflolutums submitting the dlspnted boundaries 
to arbitration by commissioners representing 
New York, New Hampshire, and Vermont 
This explicit recognition of the new elaimant 
to statehood was a surrender of the technical 
chiims of New York, which he justified with 
characteristic common sense in a letter to Gov- 
ernor Clinton: ^In lAy opinion it is much better 
for New York to gain a permanent peace with 
her neighbors by submitting to these inconven- 
iences, than, by an impolitic adherence to strict 
rights, and a rigid observance of the dictates of 
dignity and pride, remain exposed to perpetual 
dissensions and encroachment/*' Almost the 
last official act of Jay as delegate was the draft- 
ing of bills embodying resolutions of Congress 
that met the assent of all three States ; and his 
task was apparently accomplished. But the 
Congress had no power of coercion, and the 
dispute remained oi)en till after the ratification 
of the Constitution, when it was settled for- 
ever, somewhat ignominiously, by the transfer of 
$^30,000 from the ti-easury of Vermont to the 
treasury of Now York. 

Jay was coiitiuucd in Congress by special 
vote of the New York Legislature till October 

> To Governor Clinton, Aiig, 27, 1710. 
* Jay's Jay, I 02. 

116 JOMH JAY. 

15th; but he was already contemplating rottce- 
ment frpm public life, so neglected had been 
his private affairs, so necessitous had become 
the oondition of his family. On August 10th 
he gave in his resignation of the chief justice- 
ship of New York and insisted on its accept- 
ancci simply remarking : ^* I shall return to pri« 
vate life, with a determination not to shrink 
from the duties of a citizen. During tlie con- 
tinuance of the present contest I considered the 
public as entitled to my time and services,** 
Now that our victory is assured, was perhaps 
the innuendo, I may be honorably discharged, 
" Popularity," he repeated a few days later to 
Clinton, ^* is not among the number of my ob- 
jects. A seat in Congress I do not desire, and 
as ambition has in no instance drawn me into 
public life I am sure it will never induce me to 
continue in it Were I to consult my interest 
I should settle here and make a fortune ; were 
I guided by inclination I should now be attend- 
ing to a family who, independent of other mis- 
fortunes, have suffcrcil severely in the present 
contest.'* ^ So dangerous was the country about 
Fishkill that Peter Jay, at a hint of a visit from 
his son, urged him not to come : for ^^ gangs of 
villains make frequent excursions from our 
neighbouring mountains for prey,** and might 
1 Aue. 27, 1770, Jay MSS. 


find Ui ^ poraou too teuipting an aoquisition to 
be neglooteJ/* ^ The old mcrcluuit woa bdeed 
much broken and in no little diatreas : **I am,** 
he lamented, ^ unfortunately too much riaduocd 
to attend effectually to buainesa. • • • I *ve not 
yet got an inch of ground plowed for wheat • • • 
I have no prospect yet of getting any salt for 
salting my beef and pork this fall, nor have I 
anybody to look out for me. Hard times!**' 
His sister Eve had married a cleigyman, who 
died soon afterwards, leaving her in extreme 
poverty ; and she and her son, Peter Jay 
Munro, were taken entire care of by Jay, at 
a time when he was complaining to Governor 
Clinton that the New York delegates were ^^ not 
allowed suftieicnt to maintain, or rather subsist, 
themselves.'* ' Her gratitude was adequate, and 
must have been overwhelming to Jay: ^^Give 
me leave, Sir, to tell you that you are not only 
a kind brother, but a very affectionate father 
and husband to me, and a most tender father to 
my poor son.** ^ Public duty, however, obliged 
him to leave to his brother's, Frederick and Sir 
James, tlie care of tho family. 

Politicians have occasionally beei^ known, per* 

1 Jay MSS. 

< Sept. 1, 1770, Jay MSS, 

• Aug. 27, 177l», Jag MSS. 

« Fnmi Mn. Mttun>, Oct. 18, 1770. 

118 Joaw JAT. 

haps, to avow a preferenoe for a quiet homo life 
in the oountiy, with an over-keen desire to bo 
taken at their word. But the sentiment was 
often on Jay*s reticent but truthful lips at 
every period of his life; and ho proved his sin- 
cerity by his thirty years of voluntary retire- 
went. The same story of simple tastes and 
strong affections is told by his letters written 
while president of Congress to his wife. She 
was at Persipiuey, New Jersey, with her father, 
when Jay sat one night thinking of her in his 
room. ^ It is now nine o'clock, my fellow- 
lodgers out, and, what seldom hap]>ens, I am 
perfectly alone, and pleasing myself with the 
prospect of spending the remainder cf the even- 
ing in writing a letter to you. As it rains and 
snows there is less probability of my being in- 
terrupted, and for that reason I prefer it to 
moonshine or starlight.'* What a charming 
introduction, one might think, to a little vol- 
ume of priceless gossip and coniidonces! But 
no, the letter is only to say tliat he loves her, 
and is lonely without her; prudence forbids 
any anecdotes, any news, for have not two of 
his letters just fallen *^into the enemy's hands 
at Elizabeth Town/' ^ *^I esteem it a bless- 
ing," he writes again, *^ that (when absent from 
you) solitude is so far from being irksome, tliat 

> To Mm. Jay, Murvli &, ITtU. 

FMMaiDMT or coNOMxaa. 119 

I often oonrt and enjoy it. Ilenoo it ia- that, 
altlio' few are more foud of society, I oftener 
walk and ride without than with oompany. 
There ia a kind of aatisfaetion in being able, 
without any breach of politeness, to pursue oue*a 
own inclination, to ride as fast or as slow, to 
stop, as short or as long, to take this or that 
road, as may be most agreeable. . . • In this 
unfriendly month [of March}, Nature, you 
know, appears in a rude and dirty garb; so 
that as yet I must be silent about Monely de« 
vious walks* thra* * verdant fields' or ^ shady 
groves ; ' nor would it be in season to say a 
word of * gentle breezes,' * melodious birds,' or 
* the hum of bees inviting sleep sincere.' " ^ 

It was, however, more tliau twenty years be- 
fore his modest wishes were gratified, and then 
she whom he loved so could not share his pleas- 
ure. Now a new and unsought appointment 
was bestowed on him, full of new trials and 
not unezpeeted disappointments ; and on Octo> 
ber Ist Jay resigned the chair of Congress, re- 
ceiving a vote of thanks ^ in testimony of their 
approbation of his conduct," as he was passed 
on to labors in a new field. 

I To Mn. Jay, Marali 17, 1T70. 




Tos tfeatf es with Franoe, ooneladsd Febmaiy 
6, 1T78» reoognixecl American iadependeiioe, and 
provided that in case England should deokre 
war against France, the two powers should make 
common cause, and that neither of them should 
conclude a truce or pence until the indejiendence 
of the United States had been secured. Though 
Vergennes had declared three months before that 
no such treaty could be made without the con<- 
sent of Spain, on account of the obligations of 
the Bourbon Family Compact, and the necessity 
of a Spanish alliance in the event of the war 
likely to be precipitated, the treaty was not, in 
fact, communicated to Spain till after its sign- 
ing ; but a secret clause was inserted providing 
for her accession to its terms. England, as was 
expected^ regai\Ied the treaty, long denied with 
a brazen face by the French minister at London, 
as an act of war, and for the next two years 
France was fighting England single-handed so 

MiNiaVEM TO BPAiM. 121 

far as Buropean allioa were eonoerned. Tha aid 
of Spain was eaaential, aad to gain this Var- 
gonncs, through his minister, Montmorin, at 
Madrid* bent all his powers of artifioe and per- 

Charles III. of Spain hated the idea of an« 
other war, and wished^ only to end his days in 
peacoJ He was a conscientious nian and da* 
voted to his family, and Louis XV. was his 
nephew; but he was haughty, suspicious, and 
stubborn; he was piqued at being thought a 
tool of France, and the abrupt ending of the 
last war made him fear that, without a special 
guarantee, France, after dragging him into tliis 
new struggle, might again conclude a se{Kirate 
peace, i*cgardlcss of the interests of Spain.^ His 
minister, Florida Blauca, indignant at the Amer- 
ican treaty, hindered in every way the early 
French naval expeditions, cleverly avoided ex- 
planations, and finally suggested that the only 
way to induce Spain to declare herself was by 
agreeing not to make peace without securing the 
restitution of Gibraltar, Florida, and Jamaica. 
In the meanwhile, with the notion of deceiving 
England till the time should bo ripe for a sud- 
den blow, he was playing the part of a mediator, 
and Lord Weymouth was coquetting with him 
with dissimulation as deep as his own. 

* Ver^ennes to Montmorin, Oct 24, 1778, Duniol, iU. 24. 

* Montiuorin to V«r(jpuBu«s, Douiol, uL 41^, A\yi. 

122 JOBH JAT. 

This negotiation revealed the actual wishes of 
the two eourts. France submitted, as her low* 
est terms, the political and territorial indepen- 
dence of the United States, tlio withdrawal of 
the English commtssionership from Dunkirk, a 
fair partition of the Newfoundland fisheries, ac- 
cording to the treaty of Utrecht, and, if possible, 
a modification of the navigation laws.^ Spain 
proposed in addition that England should keep 
Canada and Nova Scotia, but that Spain should 
take so much of Florida as was necessary for 
the monopoly of the navigation of the Gulf of 
Mexico.* The Spanish court, as Montmorin 
thought, exaggerating the prosperity and pro- 
gress of the United States, deemed it essential to 
leave ^^ seeds of division and jealousy between ** 
them and England.' That court was not only 
perfectly indifferent to the claims of the United 
States,* but was convinced that in no long time 
they would become her enemies, and was, there- 
fore, bent on keeping them from the iVIississippi, 
and as far from her own colonies as possible. 
As neighbors, the Americans would be as objec- 
tionable as the English. When read in the 

1 Vergennet to Montiuorin, Oct 13, 1778, Doniol, UL &51. 

s Montniorin to Vi»rg«}im««, Oot 15, 1778, Doniol, iii. 550, 

> Houtmoria to Vtfrgouiiei,' Oct. 19, 1778, Doniol, iu. 558, 

« Doniol, iil 575. 

MINiaTEB TO aPAiS. 123 

light of these intentioiiBt the word Florida be* 
comes indefinitely comprehensive. Even the 
independence of America was objected to, and 
France was blamed for having guaranteed it 
Would not a truce serve the purpose ? It was 
obvious that Spain was holding off till France, 
no longer able to do without her, would, at the 
dictation of Spain, submit to any terms of alli- 
ance, even tlie sacrifice of the sovereignty of the 
United States. Franco liad now to modify her 
views, or to risk losing Spanish coo})eration al* 
together.^ TJie terms of Spain, by changing the 
objects of the war, might prolong it indefinitely ; 
but Vergennes had to accept even so hard a bar- 
gain, and, while complaining bitterly of the 
*^ gigantic pretensions*' of Spain,^ he signed 
the treaty of Aranjuez, April 12, 1779. 

In this treaty is to be found the key to the 
political situation in 1779 and during the three 
years following. By it Spain agreed to make 
no treaty with or concerning the United States 
witliout the participation of Fmuce; if France 
should conquer Nova Scotia the fisheries were to 
be shared between them ; and neither party was 
to lay down arms till Gibraltar was secured to 
Spain, and to France the abolition of the £ng« 

1 Doniol, iii. 570. 

' V«rg«imeii to Uio King, Douiol, iii. 588. 

124 JoaH JAY. 

lish comiuisaionerahip al Dunkirk, or whatever 
other benefit ahe might ehooso instead.^ 

While the attitude of Spain remained Rtill 
undetermined, the state of publio opinion in 
America was of course to France a matter of 
the first importince. If Congress should insist 
on the Mississippi, Florida, and the western 
territories, all which were included in the Span- 
ish conception of Florida, they ruined the 
possibility of either a satisfactory peace or a 
suecessfid war, for Spain would then refuse to 
act either as mediator or ally. As President 
of Congress, Jay was present at the numerous 
meetings of tlie Committee on Foreign Affairs, 
when Udrard urged the necessity of moderating 
their claims to meet the views of Spain. Soon 
after Jay*s installation Gdrard gave him a din- 
ner, and for two hours. with Mirales, the Span- 
ish envoy, and several members of Congress, he 
smoked and listened to Gdrard*s argument that 
policy required ^^a permaiieut line of se|)ara- 
tion'* between Spanish and American posses- 
sions, and that only by so limiting themselves 
could the States remove the European belief 
that they were naturally turbulent and ambi- 
tious like their English fathers. Jay diplomatic- 
ally suggested that France was as much interested 
in this arrangement as Spain, and G(!rard, see- 
> Uv Circourt, p. 335. 

MiHi8T£M TO BPAiN. 125 

ing that no definite propositions were following, 
dropped the subject with the reply that that was 
all the more reason for adopting it^ Then and 
at other times Gtfrard urged the danger to the 
colonics of too extensive boundaries, and fancied 
that Jay assented to the idea of bounding the 
colonies as they were at the beginning of tho 
Revolution.' That would exclude the Missis^ 
sippi ; and Gdrard argued, according to his in- 
structions, that a claim to the navigation of the 
Mississippi or to the western territory beyond 
it was absurd, and was opposed to tho policy of 
France and Spain, since the United States could 
not be held to succeed to the claims or rights of 
Great Britain, wliieh were still open to be con- 
quered by Spain. But for such a purpose France, 
he said, would certainly not continue the war.' 
^Similar opinions Gdrard expressed to Jay often 
in his own rooms as the evening deepened to- 
wards midnight, and Jay has left a record of his 
views at the time which concurred closely with 
Gerard's : that we had no right to the Floridas, 
and that the Mississippi *'we should not want 
tills age."* Of Jay, accordingly, G^irard had 
tho highest opinion: ^'ho is a man of enliglit- 

1 Do Ciroourt, pp. 200, 201, Gerard tu Vorffeiiues, Dec. 22, 
^ De Ciraourt, p. 2<t0, Qonrd to Vergeniics, Jaa. 28, 1770. 
• D«i Circourt, p. 2(VI. . 
« Jay*! Jay, i. 1)5, lOa 

126 JoaH JAY. 

ened uoderttanding/* he wrote to Vergennes, 
^ free from prejudioe, capable of broad views ; 
be 18 sineorely attached to tlie alliance and an 
enemy of the English. He takes infinite pleas* 
ure in the idea that this triumvirate* as ho calls 
it, of France, Spain, and America, will defy the 
forces of the whole world. Ho talks with frank- 
ness and good faith, and yields willingly to the 
good arguments one presents to him. I am much 
mistaken if we shall not liave reason to regret 
if his presidency is as short as it seems likely to 
be.*' ^ Jay was at all times an excellent listener, 
and to this useful and amiable trait may be due 
not a little of G(;rard*s enthusiasm. It was, 
however, not a wholly one-sided bargain at this 
stage in the war to secure a triple alliance be- 
tv^Tcn France, Spain, and the United States, 
with a recognition of independence, in exchange 
for the western wilderness and waters. lUit 
when Jay found that Spain had declared war 
for her own pur|K>ses witliout regard to Amer- 
ica, the whole situation appeared changed, and 
thereafter in his opinion there remained nothing 
worth the sacrifice even of part of the Missis- 

Gerard had long urged Congress to come 
to some understanding with Spain ; suggesting 
that on these lines they might obtain from tliat 

1 0ft Circoiut, p. 2C3, Gerard to Vergcnncs, Dee. 22, 1778. 

MHiiST£B TO aPAiN. 127 

oountrj an aoknowledgment of their indejien- 
denoe and a treaty of oomiueroe. At length, in 
September, 1779, Congress voted on the ap- 
pointment of a minbter to treat with Great 
Britain. On the first two ballots, six States 
voted for John Adams, five for Jay, and the vote 
of one State was divided. New England was 
staunch for Adams, to champion the claim to 
the fisheries, though Adams was obnoxious to 
France; while Jay was the candidate of New 
York. The next day the nomination for a min- 
ister to Spain was opened, and the friends of 
Adams, the pro-Knglish party, so called among 
them, declared for Arthur Lee, the enemy of 
Deane and Gdrard ; finally, Adams was ap- 
pointed peace commissioner to Great Britain, 
and Jay minister to Spain. The choice of Jay, 
Ci(5rard informed Vergonncs, ** leaves nothing to 
bo desired. To great intelligence and the best 
intentions, he unites an engaging and concilia- 
tory mind and character.** ^ Jay was well aware 
cf the satisfaction of 6<5rard, and also of the 
Spanish envoy, Mirnles. ** I have reason to 
think,** was his dry comment, ^Uhat both of 
tlieni entertained higher opinions of my docility 
than were well-founded." ^ 

It was not an attractive position, — that of an 

1 Gdrard to Verjccnnes, Sept 27, 1T79, Stevtn* MSS, 
a JayVJa^,!. 100. 

128 JOBS JAY. 

anreoognueed mroj of a ooontrj little known 
and less liked, begging money at a haughty and 
penurious oooii. Franklin, who had been ap- 
pointed to Spain, January 1^ 1777, had .post- 
poned his journey, merely inclosing to Aranda 
the resolution of Congress which offered S)iain 
liclp in reducing Pcnsuoola,— an offer that was 
never properly acknowledged ; and Arthur Lee, 
who succeeded Franklin, had left Spain in dis- 
gust, having succeeded in wringing from re- 
peated promises of millions only a meagre hun- 
dred and seventy thousand livres; unable to 
negotiate a loan, much less a treaty.^ Never- 
theless, Jay accepted at once, tliough with mod- 
est expectations. On October IGth, ho received 
his instructions, — to induce Spain to form a 
commercial treaty similar to that with Franco, 
to acquire a port on the Mississippi in Spanish 
territory, and to obtain a loan of five millions, 
or at least a subsidy, in exchange for the Flori- 
das. The navigation of the l^Iississippi was to 
be preserved at all hazards. Four days Inter 
Jay set sail in tlio Confederacy^ the govern- 
ment fri*^uto that iiad been ordered to take Ots 
ninl b:u;k to France, on the arrival of his suc- 
cessor, Luzertio, With Jay wont his wife, to 
the distraction of okl Governor Livingston ami 
his wife, wlio h:id no time to bid their daughter 

1 Bullet, Finamial Jliti. of tht U. S,, p. 246 b. 

MiNiaTEM TO gPAIN. 129 

good-by; hh nephew* Peter Jay Manio; his 
brother-tn-law, Colonel Livingston, afterwards 
Judge of the United States Supreme Court, as 
his private secretary; and Mr. Carmichael, a 
member of Congress, as his public secretary. A 
violent storm disabled the ship and forced the 
captain to make for Martinique, where on De- 
cember 18th, they cast anchor in the harbor of 
St. Pierre, narrowly escaping an English fleet, 
which captured on the same day nine French 
merchantmen off Port RoyaL Some indiscreet 
attempts on the part of Gerard to discover Jay*s 
instructions had created a coolness between the 
two diplomats, which was increased by a di£Fer- 
ence of opinion on the proper course to be taken 
after the storm. But Adams certainly exag« 
gerated greatly when he thought this petty dis- 
sension led Jay to a general distrust and dis- 
like of Frenchmen. At Martinique, the officers 
of the Confederacy naturally fraternized with 
French officers who chanced to be on shore, and 
Jay, finding the Americans distressed for lack 
of money, characteristically advanced them a 
hundred guineas. The idea of their being 
^'obliged to sneak • • . from the company of 
French offieera," he wrote, " for fear of running 
in debt with them for a bowl of punch, was too 
humiliating to be tolerable, and too destructive 
to that pride and opinion of independent equal- 

180 JOBN JAT. 

ity which I wish to see iufluenoe all our offi- 

Ten days were lost at Martbique; then, on 
a frigate lent by the governor, the party reem- 
barked for Toulon, and January 22, 1780, dis- 
embarked unexpectedly at Cadiz, whither they 
were driven by English men-of-war. Jay was 
now, as he expressed it, ^ very disagreeably cir- 
cumstanced,*' without letters of credit or recom« 
memlation to any one there, with no money even, 
except what he borrowed through the courtesy 
of a fellow-passenger.* He at once sent Mr. 
Carmichael to Madrid, with instructions to sound 
the sentiments of the court, and discover how 
far their relations to the United States were in- 
dependent of France, — a significant direction. 
Meanwhile, Mr. and Mrs. Jay were cordially en- 
terUiincd by the Governor of Andalusia, Count 
O'Keilly, who gave Jay a confidential account 
of the politics of the court, and of the personal 
character of those who composed it, not except- 
ing the king, — accounts which Jay afterwards 
found to be ])erfectly accurate. When the spring 
came they mo veil to liladrid, to be near the Rrst 
Secretary of State, Count Florida Blanca; a 
man of whom Montmorin said : ^' At times cold 
and phlegmatic, at times violent, he is in these 

Way's Jay, I. 105. 

* Sparka, Diitlgmatic Cormp. o/Ainer, Rtv^ yii. 220. 

MiSiaTMM TO BPAtJi. 181 

opposite moods equally self-opimonatiYe. • • • 
By the bent of his mind, too* he b inclined to 
dissimulation.'* ^ 

At Madrid, Jay reooived no official leeogni- 
tion ; that, Count Florida Blanca declared, was 
to depend ^on a public acknowledgment and 
future treaty.*' Consequently he could not at- 
tend the court, and was neglected by the nobles 
and officials. Some time was spent at first in 
answering elaborate inquiries about the social 
and military condition of the States ; and then 
came a long and, as it seemed at the time; an 
imi)ortant interview with the minister at Aran- 
jucz : some money was promised, and the one 
obstacle to a treaty was said to be ^ the preten- 
sions of America to the navigation of the Mis- 
sissippi ; " but Count Florida Blanca hoped that 
*^some middle way might be hit on.'" Jay's 
sense of diplomatic honor was now severely 
tested: he had promised the French minister, 
ilontmorin, to inform him of the course of the 
negotiations ; but this conversation was oonfiden- 
tial. ** I was reduced," Jay confessed, *' to the 
necessity of acting with exquisite duplicity, — a 
conduct which I detest as immoral, and disap- 
prove as impolitic, — or of mentioning my diffi- 
culties to the Count, and receiving his answers/' 

> Montmorin ta Vorgennes, Duo. 7, 177)^, IXmiol, iii. 010 B. 
* S|»iirk»» Di'iJ, Corr, of Amer, Rtv.t vii. 250. 

132 JOBN JAY. 

Ho toU the Count, il need not be sud, and was 
allowed to keep his promiBO.^ Suoh frauknesa 
must have seemed naive, perliapa amusing, to 
the clever young diplomat, who, at that very mo- 
ment, held locked in his own breast tlie all im« 
portant secret of the treaty of Aranjues. 

The question of the navigation of the Missis- 
sippi was a novelty in international diplomacy. 
The United States was the first |x>wer to insist 
on the right of a people who live along a river 
to sail through the dominion of other powers to 
its mouth ; ' they also claimed the same right 
under the reservation to Great Britain in the 
treaty of Paris of the right of navigation. But 
it was the mediaeval policy of Spain to keep 
the Gulf of ilexieo a closed sea from Florida 
to Yucatan. Florida Blanca, indeed, in Septem- 
ber, went so far as to say that the exclusive 
navigation of the ^lississippi was the principal 
object of the war, and more important than tlie 
capture of Gibraltar.' Spanish obstinacy is pro- 
verbial, and on this point was as invincible as 
Cumberland (the English agent sent to draw 
Spain into a separate i)cace) found it to be on 
the question of the cession of Gibraltar. The 
credit of the United States was, moi-eover, seri- 

> Sparkfl, Di>/. Corr. of Amer, Rev., vii. 2:»fl. 

* ScbuyUir, ^-Iwcricaii Diplomacjft pp.*J4l5, 2<H). 

• Sparlu, Dipl, Corr, of Amtr, Htv/, tU. 4M. 


When affairs were onoe more in good traim 
•▼erything waa mined by the newt of the Ion 
of Charleston, the effect of which on the timid 
court was, in Jay*s words, **m visible the next 
day as that of a bad night*s frost on young 
leaves.*' So matters were again for months at 
a standstill. Meantime, no news had come 
from friends in America, the letters being inter- 
cepted or supprcHiHxl ; and his own despatches 
Jay had to send down by his secretary to the 
sea-board to be given personally to the captain 
of any casual American vessel. His only child 
had been left in America, and a baby, bom in 
Spain, lived scarcely a month. Jay had to fol« 
low the wandering court from town to town, to 
Madrid, to Aranj acz, to San Ildefonso, and trav- 
eling was so expensive that Mrs. Jay had gener- 
ally to be left behind at the capital. When his 
letters do come they contain little to cheer. 
Secretary Thompson writes that by Marcli, 
1780, the pajter dollar hail fallen to a penny in 
value,^ a depreciation by which tlie Jay family 
suffered severely: and his brother Frederick 
tells how a party of " De Uelancey Boys *' broke 
into his father's house, stole money and plate, 
and slightly wounded Mrs. Frcilerick Jay with 
a bayonet.' Though greatly straitened. Jay 

1 From ChM. ThomiNOB, Oct. 12, 1780, Jay ^fSii. 
s From Frad. Jay, Not. 8, 1781, Jag MSS, 

186 JOBH JAT. 

lent home gifts of tho most useful things lia 
could think of, and found tinu) to discuss and 
provide for tho old family servants* 

In his official family also there was unhappi- 
ness: his secretary proved untrustworthy, and a 
young man in his charge, from a perverse spirit 
of malignant mischief, increased the discord. A 
letter from Jay to Franklin, introducing Prince 
Masserana, gives a glimpse of the lonely life he 
had at Madrid : ** I am much indebted to the 
politeness of this nobleman, and except at his 
table have eaten no Spanish bread that I have 
not paid for since my arrival in this country." ^ 
As discomforts multiplied. Jay became more 
and more proud and reserved. *^I never find 
myself,** he confessed to Franklin, *Mess dis- 
posed to humility or improper compliances than 
when fortune frowns.*' The Marquis d*Aninda 
complained of Jay, indeed, in a private letter 
that was quoted, ** qu^il parait toujour^ fort 
boutonne^** — a curious complaint to come from 
a Spanish noUeman. In fact. Jay had a great 
admiration for the nuin and the statesman, call- 
ing him the ablest Spaniard he had met : ** I 
think it probable,'* was his characteristic acknowl- 
edgment of the marquis*s criticism, *^ we shall bo 
yet on more familiar terms, for thougli I will 

* To FrankUn, Oet 25, 1780» IIol*, /*rajiil7iii in Franett I 

MiliiMTMM TO BPAiN. 187 

never eourti yet I shall with plemire enltiYite 
hie aequaintanoe*** ^ Delay in the payment of 
hie salary helped to make the unfortunate en- 
voy's situation seem at times intolerable: ^to 
be obliged to contract debts and live on credit 
is terrible/' ' is a painful cry« wrung from the 
heart of a man like Jay. Some distractions 
there were of course, though we do not know 
whether Jay continued his sight-seeing so vig« 
orously as during the first summer in Spain. 
Then, in July, he went with BrockhoUt Living- 
ston to a bullfight, when ** one of the knights 
who fought on horseback was killed and two 
woundtid;'* and every evening that summer 
there was a comedy,' which they doubtless occa- 
sionally attended. 

In the spring of 1781 the French ambassa- 
dor surprised Jay by suggesting that the nego- 
tiations failed because Florida Blanca expected 
further overtures about the Mississippi, and l)e- 
lieved Jay*s discretion to be greater than he 
admitteil.^ What was meant did not become 
clear till some weeks later, when directions came 

1 To FraakUn, Fab. 21, 1781, Hal«. Franklin in Franet, 
I 422. 

' To Franklin. April 1. 1781, Halo, Franklin in Ftana, I 

• J. B. LiTini^ton to Got. Livingaton, Julj 12, 1780, Ma§, 
Am. Wat., iii. 512. 

« Sparlu, Dijd, Cmt. ofAmgr. Btv^ tiL 450, 457. 

188 JOHN JAY. 

from CongreM to insist no longer on the free 
navigation of the Mississippi below the thirty- 
first degree of latitude. A month more and 
Jay^s instructions were still further modified, 
permitting him to negotiate without reference 
to the treaties with France. The Southern 
States chiefly interested in the fate of the Mis- 
sissippi, Virginia, Qeorgia and South Carolina, 
had indeed changed their policy radically, — 
partly persuaded by the infinitely various argu« 
ments of Luzerne, partly because English suc- 
cesses in the South made them fear a jicrnianent 
loss of territory if Spain did not help them, or if 
a peace were suddenly negotiated on the basis 
of uti possidetis^ before the British troops had 
withdrawn. Jay disapproved of these new in- 
structions, and said so. Spain, he argued, was 
now at war for her own pur|K>ses, and would be 
induced by no cession to be more liberal or to 
figlit harder. He tried, however, to renew ne- 
gotiations. Better wait for a general peace, was 
the reply he got. Pressure of business was 
also a standings excuse. At last he was asked 
to draft propositions with a view to a treaty 
of alliance between Spain and the States, and 
he did so instantly. But the abandonment of 
the right to navigate the Mississippi he care- 
fully made void if the alliaiiee were jiostponed 
to a general peace. To these propositions no 


Answer was ever given. *^This oourti** Jay 
wrote to Franklin in Notembor, 1781, ^ contin- 
ues to observe the most profound silence, • • . 
Heretofore the minister was too sick and too 
busj; at present his secretary is much indis- 
posed/' ' In the autumn of 1781 a person was 
appointed to treat with Jay, but when applied 
to he never had instructions. In the spring of 
1782 Jay proposed to demand a categorical 
answer, but was dissuaded by the French am* 
bassador.' He determined to go to the Escurial 
and urge his business, but again the French 
ambassador bade him ** wait with patience.*' * 
Thus month after month was wasted, as Jay 
gloomily expressed it, in ** expectation, suspense, 
and disap])ointmeDt.*' Political disturbances in 
the Spanish colonies might account for some 
coolness towanls the American envoy at the 
close of 1781, but the real explanation of Jay's 
ill-treatment was the positive unfriendliness felt 
by Spain for the Americans, — detestation of 
them as republicans, and jealousy of them as 
territorial rivals. In such circumstances a treaty 
such as Jay was intrusted to make was out of 
the question. 

The mediation proffered about this time by 

1 Not. 21, 1781, Jay IfSS, 

• Sparlu, Vipl, Cwr, ^Amer. JRep.^ tUL 11. 

• Ibid., p. 3J. 

140 JOHN JAY. 

the Empreas of Russia and the Emperor of Qerw 
many was, in Jay*s opinion, unlikely to be ef- 
fectual ; indeed, he thought as did Vergennes, 
tliat those powers were more friendly to Kng«. 
land tlian to France.^ What he wished was a 
close defensive allianee between France, Spain, 
and America, an alliance that Holland might 
probably be induced to join. Then a vigorous 
campaign ^* would give us a peace worth our 
acceptance." At tlie moment, he saw that Spain 
wanted Gibraltar and Jamaica, and was far 
from being tired of the war ; and he anxiously 
sounded Iklontmorin as to the steps France was 
taking to influence Spain towards an American 
alliance. On this point Montmorin, though 
** well attached to the American cause," showed 
a ** mysterious reserve.** Yet Jay still had ^^ full 
confidence in the friendship of France ; ** though 
be was gradually learning to take an inde])en* 
dent stand. ** In |)olitics,'* he explained to 
Franklin, *^ I depend upon nothing but facts, 
and therefore never risque deceiving myself or 
others by a reliance on ^professions which may 
or may not be sincere.*'^ In reality, France 
was indignant at the neglect of America by 
Spain, at her indifference to American credit, at 
her unwillingness to compromise. Spain ought 

> To B. FrankUn, Aug. 20, 1781, Jay MSS, 
* /6i J., kw. cit 


to try mora to gain tbo friendship of tlia Ameri- 
cans, said Montmorin in June, 1782, for fear of 
their considering a separate peace, espeoially if 
their independence is assured and a peace comes 
to be hindered only by the demands of Spain. 
But, he added, this court of Simin thinlis of 
nothing but the chance of winning Gibraltar.^ 

The hands of France, however, were tied by 
the treaty of Aranjucz. France was committed 
to a continuation of the war till Spain should 
get Gibraltar, and meantime American indcpen* 
dcnce became a subsidiary object *^ Simiu knew 
her own business and interest, and France had 
no right to press her on such points ; ** such was 
Vergenncs* final answer to Jay through ilont* 
morin. At last Jay told the latter openly that 
he thought England would be the first nation 
to acknowledge American independence, for 
France did not wish ** to see us treated as inde- 
pendent by other nations until after a peace, 
lest we should become less manageable in pnK 
portion as our dependence upon her shall di- 
minish ; ** and the count waived the subject. 

In May, 1782, Jay was invited to dinner by 
Count Florida Blanca, but the invitation was 
s4K>n explained to have been a mistake, and 
when renewed to Jay *^ as a private gentleman ** 
was very pro))crIy declined. This was the last 

' Montmorin to Vorgennet, June 8, 1782, De Circourti iii. 4&. 

142 JOUM JAY. 

mortification Jaj was destined to suffer from 
tiie Simnisli court* 

Franklin and Jaj had long been intimate 
friends in spite of the difference of forty years 
in their ages. In the spring of 1781, when 
Franklin, in a moment of discouragement, sent 
to Congress his resignation, he urged Jay to take 
his place at Paris, and suggested his writing to 
his friends ^* accordingly." ^ But Jay thought 
the change impolitic, wrote home to tliat effect, 
and Frauklin*s resignation was not accepted.' 
In the following sunmier Jay, whom the influ- 
ence of Luzerne had retained in Spain when 
Congress thought of recalling him, Franklin, 
Laurens, and Jefferson, had been joined with 
Adams as commiHsioncrs for a general i)cace; 
and now in April, 1782, while Laurens was a 
prisoner on parole, Adams at The Hague, and 
Jefferson still in America, Franklin summoned 
Jay to his assistance : *^ here,'* he wrote in Paris, 
*^you are greatly wanted, for messengers begin 
to come and go, and there is much talk of a 
traaty proi)osed; but I can neither make nor 
agree to propositions of peace without the as- 
sistance of my colleagues. • • . You would bo 
of infinite service.'*^ Jay at once asked the 

1 Fram B. Franklin, April 12, 1781, Joy MSS. 

« To B. Franklin, Aug. 20. 1781, Ja^ MSS. 

• Fram B. Franklin, April 22, 1782, Jayi Jay, il 04. 


advioe of Iklontniortn, wlio, on oonsuIUng Flor- 
ida Blataca, mado no objoction : Jay oould treat 
with Aranda, tlien the Spanish ambaasador at 
Paris, and, in any case, Mr. Cariuichael might 
stay behind and act in Jay^s stead. ** Jay has 
doubUesa made up his mind/* l^Iontmorin eon- 
eluded, ^* to leave Spain, which ho dislikes ex- 
tremely, and whicli, as a matter of fact, must 
have been very disagreeable to him for more 
than two years past.*' ^ Without delay Jay 
shook from his feet the unfriendly dust of 
Madrid, and started for Paris. ^Irs. Jay fell 
sick on tlio journey with fever and ague, and 
as ^^the jMsthorses at the different stages had 
been engaged for the Comte du Nord,** who had 
left Paris with a great retinue, ^^ they did not 
reach their destination till Juno 23d.^ 

^ Montmorin to Vergvunos, May 5, 1782, Do Cirooiirt, UL 
> Sparlu, Dipt. Can. o/ilawr. Rev., yUL 113. 



FEANOE IN 1782. 

The instniotions to the Amertoan eommtt- 
sionens appointed to treat with Great Britaioi 
were baied on the theory that, without the ao* 
tive cooperation of the French court, the States 
would be at the mercy of England, that France 
was engaged to procure them the best terms 
obtainable, and that gratitude and iiolicy alike 
neceHsituted ubaoluto confidence in tiie Count de 
Vcrgcnnes, French minister for foreign uiTuirs. 
For the successful conduct of the negotiations 
it was essential for the commissioners to deter- 
mine whether this theory of Congress was cor- 
rect The facts now known show us that it was 

Franco, by her treaty with Spain, had formed 
oldigatious ineonsistent with the interests of 
the States. I)y it the object of the war luul 
been changed from securing independence for 
N America to winning Gibraltar for Spain, from 
that which was already witliin the graH]i of the* 


alliM to that wUoh was, in any caM| a lenota 
oontingenoy, and was* as it happened, an inipoa> 
sibilitjr; and all this had been brought about 
without the knowledge of the oountry most 
vitally interested in the war, tlie one eoontry 
whose existenoe as a nation was at stake. The 
treaty was very possibly unavoidable, as is 
urged by the latest, best informed, and most 
voluminous a])ologi8t of France, M. Doniol.^ 
But whether such was the case or not is im* 
matcri:il from the American point of view; so 
long as the facts were withheld from Congress 
the conduct of Voi*genncs was disingenuous, and 
tlie American ministers, so far as they suspected 
or knew the facts, were no longer justilled in 
intrusting to him the fortunes of their country. 

It was, however, not merely regartl for the 
prejudices, or even the *^ gigantic pretensions ** 
of Spain that made France an inefficient friend 
to America in reaping the fruits of the Revolu- 
tion; her attitude in 1782 was perfectly con« 
sistent with what had been the secret }X)licy of 
her govornuieut since before the Declaration 
of IiiiloiHiudeneo. Those matters may be dis* 
euAOil now without tlie bitterness and partii«an 
feeling which the discussion excited in 1783 
and in 1708. We no longer confound the 

' La Pariieipation </« /a Franrt tiant t^tablisifment dt Cim- 
HqHHdamt lia i'Uali Unit, Parit, 1783. 

146 JOBM JAY. 

mondity of a people wiih the policy of iti gov- 
eruinenti— •even in a democracy ; and such con« 
fusion would be still more unjust in the case of 
a non-representative government of the eight- 
eenth century, above all in the France of Louis 
XVI. Jay himself made no such error; but 
carefully discriminated between the French peo- 
ple and the French government: *Mt is true,** 
he said, ** that I returned from that country to 
this, with opinions unfavorable to tlieir court ; 
but not only without a wish unfriendly to them, 
but, on the contrary, with sentiments of good 
will and regard.*'^ **It is not,*' he added, 
*^from the clmracters of this or that adminis- 
tration or prevailing party in the government 
tliat the character of a nation is to bo in- 
ferred.*' ^ Even though the ofiieinl conduct of 
a nation, in international negotiations, is crudely 
scUiKh, and the language of its ministers is an 
effectual concealment of the truth, neither ])eo- 
plo nor ministers are necessarily blamable ; for 
the first duty of a nation is self-preservation, 
and the first duty of a negotiator is to his own 
country, as is a lawyer's to his client. It cer- 
tainly can hardly be said that now, after the 
lapse of a hundred yearo, controversies between 
nations are ever adjusted on altruistic princi* 

> To R. Q. Ilurper, IXki. 21, 1705, Jay*g Ja^, U. 203. 
* Jay*i Ja^, U. 202. 


plet, from nuitiTea purely of gratitado and af« 
feotioQ ; and if such it the fact, it it no longer 
possible honestly to take a senUmental view of 
the poaoe negotiations of 1783* 

As early as 1775 M. Malouet, the French 
minister of the navy, was told that the people 
wished France to interfere in behalf of the col- 
onies ; and he at once replied in the true spirit 
of the old regime, that it was as illogical as 
it was dangerous for an absolute monarchy to 
place itself at the head of a democratic revolii* 
tion,^ Such, too, was the opinion of the king, 
who was afraid of the effect njion his own sub- 
jects of a bad example;' and in his |K>licy of 
neutrality ho was Hup|)orted by Maurepas and 
Nccker, If Vorgennes thought otherwise, it 
was certainly from no love of republican in- 
stitutions, of the sentiment of liberty, or of the 
Americans personally. ** With res|}ect to prin- 
ciples,'* wrote Tom Paine, before he became a 
hireling of I^uzerne, *^ Vergeunes was a despot.** * 
He was the steady opponent of the more liberal 
ministers of the king, Choiseul, Turgot, and 
Necker; he hated such revolutionary ideas as 
liberty of the press, liberty of speech, and par- 
liamentary government, and accordingly he de- 

> mmoirn, iii. 335. 

• SuulaTie, Lmit XV., uL 40Q. 

• Higkti of Man, 17UI, I. W. 

148 J OHM JAY. 

tested the Americane m ** rebels.**^ Bat the 
deepest feeling in the mintster*8 heart was hos^ 
tility to England, and a patriotic longing to 
wipe out tlie disgraoe of the treaty of 1708. 
** The inveterate enmity of that power to us," 
he wrote in a memoir to the king in 1775, 
** makes it our duty to lose no op)x>rtunity for 
weakening it. The independence of the insure 
gent colonies must therefore be encouraged.** 
^^ I hope to live long enough,** he said again a 
little later in private, ^^ to see England humil- 
iated and American independence acknowl- 
edged.*** The profession of faith he made to 
Montmorin was doubtless perfectly honest: 
^^My country*8 good is dear to me. I am no 
less devoted to that of Spain ; to contribute to 
the one and the other, that is all my ambi- 
tion ; ** and his regard for the interests of Spain 
may well have come from a belief in the im- 
portance of the closest union between the two 
branches of the House of Bourbon,- without that* 
personal motive, wliich lias been suggested, that, 
not being of noble lineage, he was ambitious to 
die a grandee of Spain. 

The policy of France was much discussed in 
secret memoirs and letters to the king, but 

' TraUlievaky, La France et CAUemagm tout Limit XV L^ 
* Mwdttur Univtrui, 1780, 1 45 a. 


alwftyB> ▼•'7 natarally, with a single eye to 
French interests. Turgoti early in the Befoln- 
tion, in an elaborate paper, urged that the best 
thing for France would be a long English- 
American war ending in victory for England, 
because nothing could be more enfeebling to a 
military power than to try to govern by force 
so distant a country. The worst event for 
France would be a speedy ending of the war, 
no matter who won, for that would leave the 
troojis of England free to be turned against 
her European foes. Such was tlie state of 
affairs, when, after having received vague en- 
couragement from this French emissary, Bon- 
vouloir, the Secret Committee for Foreign Af- 
fairs in Congress sent Dcaue, a gentleman of 
means and education, disguised as a merchant, 
to sound the inteiftious of the court, and to pro- 
cure money and arms. Deane engaged the ro- 
mantic imagination and ingenious pen of Beau* 
marehais, wiio, by a series of adroitly worded 
memoirs, and seconded by the good will of de 
Vergcnnes, persuaded the king that peace could 
be preserved only by preventing the complete 
triumph of cither Euglaud or the colonies, and 
that, to effect this, sufficient aid must be given 
the Americans to *^ put their forces on an equal- 
ity with those of England, but nothing be- 

160 JOBfi JAY. 

yoiid.*'^ From that time the king was oon- 
vinoed, but against his will, or rather against 
his instincts and his conscience, and whenever 
documents relating to the war that followed 
were given him to sign, he is said to have com- 
plained pathetically, ^^Must I sign, for reasons 
of state, what I don*t think right ?'*^ By 
secret grants from the treasuries of France and 
S|)ain, on the suggestion of de Vergeuues, Bcau« 
marohais was enabled, thi*ough the fictitious 
firm of Uodrigue, iIoi*talez ct Cie., to supply the 
colonies with nmch needed war material in ex* 
change for promised cargoes of tobacco, which, 
however, never came ; and within a year he 
even succeeded in sending them ships of war 
and ofiicers. 

After the Declaration of Independence, Deane, 
Franklin, and Arthur Lee were commissioned 
to attend to the affairs of the United States 
in Europe. In December Franklin landed at 
Nantes, to the great excitement of the popu- 
lace, and his entry into Paris was like a royal 
triumph. Then he retired to Passy, and there 
lived a life so happy in winning and keeping 
public affection, that it was well described by 
Cabanis as ^\ a masterpiece of art'* 

In February, 177.7, the commissioners agreed 

1 Feb. 20, 1770. De Lom4me, Lift of Beaumarchaii, Bi. 122. 
* Monittur Univtrtd, HSU, L 45 n. 


to teparatei and Franklia remained attaehed. to 
tho oourt of France^ whoie vaoillation was 
■oddenly ended by tlie unexpected events of 
the war in America. It had been doubted 
whether tlie colonies could withstand a serious 
campaign. But the capitulation of Burgoyne 
was a complete answer to all doubters^ and 
with the prospect of success France saw her 
chance for intervention. When it was known 
that Knglaud was proiiosiiig terms of reconciK 
iation, though it was pardon only tliat I^i*d 
Howe had to offer, and not redress of griev- 
ances, de Vergennes could wait no longer. 
The terms proposed were, as he thought, so 
clearly hostile to France, — though it is not 
obvious how, — tliat no time was to be lost in 
preventing their acceptance. American inde- 
pendence moreover, he was convinced, would 
be useful to France. For these various rea- 
sons, as he explained to M. G^rard,^ the minis- 
ter opened negotiations at Paris for a treaty 
of amity and commerce, and for a treaty of 
eventual alliance. The treaty of commerce 
recognized the United States as indei)endent 
in fact, but, except for its friendly reciprocity, 
was not historically important; the treaty of 
alliance, however, provided for the war with 
England that was sure to be forced or pre* 

1 Instraotions to Gerard, De CinMmrt, iii. 255, 250. 

162 JOBS JAt. 

cipitated by the acknowledgment of indepen* 
dence. The end of the alliauoe« said the treaty, 
is to maintain the independence of the United 

These treaties were for years afterwards re- 
ferred to by France as a singular instance of 
generosity to the helpless, friendless colonists. 
And for years it seems to have been a general 
opinion that the treaty of alliance bound the 
United States to France by ties unusually con- 
fidential, close, and permanent. It did, indeed, 
result in America receiving, to promote tlie 
common cause of France, Spain, and the coU 
onics, active help from France in men and 
money, at a time when threatening bankruptcy 
and despair made such hel]) priceless. l)y sucli 
timely aid France may be said to have in fact 
enabled the States to win what they did win at 
the peace ; and all this aid, comfort, and good 
will may well have been an expression, far 
truer than the officiid French chicanery during 
the negotiations, of the feelings, the vague senti- 
ments and longings of the French people, dumb 
as yet and not self-conscious, but who cheered 
when they saw the white head of Fi*anklin, and 
in a few years* time made Europe ring with 
watchwords in part caught from him. The 
final benefit, however, guarantecil to the col- 
onies by the ti*caty was curiously meagre : ^^ the 


tiMty/' Mill de Vei^nnot, **onljr gaaranteet 
[ike] independenoe [of the Amerioaiia] and 
their eventual conquests $ " ^ and in return for 
this the Americans promised not to make peace 
with England without securing their indepen- 
dence* This was the quid pro quo ; ' and these 
were all the mutual covenants of the two na> 
tious, so far as they had actual reference to the 
making of a peace. Such certainly was the 
French interpretation of the spirit and words 
of the treaty. Independence was insisted on, 
because de Vergennes thought with Lord Chat- 
iiam and George III., that its acknowledgment 
wouUl bo the begiuning of the end of the Brit« 
ish empire. Yet even iude|>eudence need not be 
expressly acknowledged; a tacit recognition of 
it would satisfy both the terms of tlie treaty and 
the interests of France.' 

If the French government Imd allied itself to 
the struggling colonics from sympathy with their 
motives and pity for their wrongs, it would nat- 
urally take a friendly interest in their ambition 
and effort to establish themselves so as to secure 
a great and peaceful future. But even in the 
instructions to G^*rard, the first French minister 

^ Vvn^nnea to Liuwme, Sept 25, 1770. 

* Montnoria to Florida UlttBca, Oot 15, ]778» Dooiol, }SL 

• Qdnutl to Coiifrrou, July 14, 1770, 8, /..U. 108; Ver- 
fvnutts to LuMriM, 2i)i)i. 25, 1770. 

164 J09H JAY. 

to the StateSi de Vergennet explAina and em* 
phasifet the indifference^ or rather the opposi- 
tion« of France to every chum which our people 
really believed just, and which events have 
proved to have been essential to their welfare. 
The principle of French policy was that, tlie in- 
dependence of the States once establishedi they 
should be so hemmed in by foreign powersi and 
so limited in size, that fear of English aggres- 
sion should keep them permanent dependents on 
France. For this reason England was to retain 
Canada.^ The Floridas were to go as S|iaiu 
should choose ; and as to tlie navigation of the 
Mississippi, if Spain should insist, the Anicri^ 
cans were to be discreetly prepared to give it 
up,^ and to trust to the ^^ magnanimity *' of the 
king of Spain.' Luzerne was, indeed, directed 
to ^* encourage Congress to confulo in Spain,** 
and this long after the treaty of Aranjuez, when 
de Vergennes knew that Spain cared for nothing 
in the war but her own selfish interests, which 
she regarded as op)>osed to American claims, 
even to American welfare. There was also no 
necessity, G^*rard was instructed, for the Amer- 
icans to reach as far north as the fisheries of 

1 De CiMourt, iiL 235, 310. 

s V«rg«iiiw« to Gerard, Ang. 20, 1T78, Doniol, iU. 500, 
> VafgeiiMa to LoMnui, Sept 25, 177tf. 


Newfoundlancl. *' Tlw fishery along the ooMt,*' 
wrote de Vergennes to Luaernet ^ belopga ... 
exduBively to England^ Franoo partioipating by 
il)ecial treaties. Tiie Americans have forfeited 
their share in British fisheries by declaring tlieir 
iiide])endcnce of Eughuul. . • • Tlie United 
States should • • • not grudge France the slight 
ailvautige of extending her fisheries.'* ^ France 
and England, Luzerne very naturally suggested 
some years later, should guarantee the fishery to 
each other.' The selfish motive here disclosed 
leads one to wonder whetlicr the readiness with 
wliich Fmnco yielded all the western territory 
to Spain was not half justified by a secret con- 
sciousness that, if desirable, a cession of it might 
later bo induced by projier pressure, as was in 
due time the cession by Spain to Fi'once of 

France, then, had many purposes concerning 
America to effect at the eventual peace, — - pur- 
poses the precise op|)osite of the claims dearest 
to the Americans themselves, her allies. This 
|)olioy was tortuous aud difficult, and imposed 
upon France, so far as possible, the task of con- 
trolling the selection of the American commis- 
sioners, and of dictating their instructions. In 
a word, it was necessary for France to conti*ol 

^ Ver|f«iiiMM to Luxerno, Sept 25, 177(). 
* LmoriM itf Veivoniwii Jab. II, 1732. 

156 JOBS JAY. 

completely the negotiations for peaoe. To thin 
end, G^nurdy Marbois, and Luzerne employed 
all the arts of the European diplomacy of the 
period, dissimulation, flattery, what Flossan calls 
the ^ metiBonge polUique^*^ and what de Ver- 
gennes refers to as ^^ donaiifiC* and M. de Cir« 
court as ^ kicoura temporaires en argent.** ^ His 
Majesty," wrote do Vergennes to Luzerne, "fur- 
ther em|)owers you to continue the donations 
which M. Gerard has given or promised to va- 
rious American authors, aiul of which he will 
surely have huudod you a list** This list has 
not yet been diselosed, and the topic is 'one 
which even M. de Circourt shows a desire to 
avoid. " This delicate subject,** he says, " has 
been even in my time the subject of criticisms 
and controversies into which we need not en- 
ter/* » 

These methods met with a success that can be 
explained only by the surprisingly facile cluirao- 
ter of some members of Congress, and the almost 
incredible simple-mindedness and creilulity of 
others. Congress, in tliose early days, as pic- 
tured in the private corresi)ondence of the 
French a«(cnts and ministers, does not altogether 
represent tliut Amphictyonio Council of honora- 
ble unselfish patriots into which it has now be- 
come transfigured by the magic consecration of 
> Do Circuurt, iii. 283. 

KMoariATOM OF Peace. 157 

tinM. Some thirty years afterwardifGoaveniear 
Morris was sitting over the polished mahogany 
at Bedford with John Jay, when he suddenly 
ejaculated through clouds of smoke, ^^ Jay, what 
a set of d d scoundrels we had in that second 
Congress," "Yes," said Jay, "tliatwe had," 
and he knocked the ashes from his pipe.^ "The 
tone of Congress,*' says ]Mr. C. F. Adams, in 
his review of the situation, " had gradually be- 
come lowcrcil. The jieople were suffering from 
exhauHtioii by the war, especially in the Southern 

It thus became possible for the accomplished 
envoys of the French court gradually to create a 
party devoted wholly to French interests. " I 
can do what I please with them," wrote Bon- 
vouloir of the members of Congress in 1775.' 
Gcranl, also, so soon as he was appointed in 
1778, set himself to persuade the public of the 
disintercstcilness of France by suggesting suita- 
ble arguments to writers for the newspapers who 
signed themselves often by such names as Gallo* 
Americanus and Americanus.* Tom Paine was 
engaged for a thousand dollars a year to inspire 
" the jieoplo with sentiments favorable to France 

' FaniUy traiUtion. 

< \VorLio/JohnAtiamt,l^h 

* Dtintiiil, p. 10. 

* Q6ntd to Vvrg«niM«, April 11, S«pt 1, 1178; lUy 29^ 
1770, StrvtHs M:>S, 

158 JOBN JAT. 

and tlie alliaiioe/' ^ and Paine was then eeore- 
tary to the Committee on Foreign Affairs, In 
BO long time Luzerne was a power in the house. 
In the autumn of 1781 R. U. Livingston was 
elected to the new secretaryship for foreign af- 
fairs. ^ He is not ignorant,** wrote Luzerne to 
de Vergonnes on November 1st, *^ of the ]mrt I 
took in his election.** ' 

Before Adams was chosen to treat for peace 
with England, his instructions were carefully 
adapted to suit the views of Luzerne. The first 
defiuite stutemont of the boundaries claimed by 
the States, as rei>ortcd by a committee of Con- 
gress, February 23, 1779, was : Northcrhj^ the 
ancient limits of Canada to Lake NcpisHiug, 
thence W. to the Mississipin; Wc^tcrly^ the 
Mississippi. The boundaries specified in the 
vltimata adopted March 19th were substantially 
the same, that on the south, and for the moHt 
part that on the north, being identical with those 
actually acquired at the peace. The instructions 
to Adams, resolved uiK>n August 14, 1774, were 
to the same effect. But Luzerne was alert and 
energetic and did not let them long remain un- 
changed. In January, 1780, he presented to 
Congress the views of Spain ; that the United 

^ Dnnnd, p. 137. 

* LuieriM to VorgouMt, Uay 14, Auff. 27, 1778, Sttvtni 



States aliottld extend no fniiher to the wettwnrd 
thnn lettlementa were allowed by the Proolamv 
tion of 17C3 ; that they should ha?e no territ6rj 
on the Alississippi, and therefore no right to 
navigate it; wliile even lands east of the river« 
in which settlements were prohibited, are held 
to be still British possessions. In February and 
l^Iarch he urged the same and similar argu- 
ments.^ The chief position now pressed was the 
im))ortance of conciliating the court of Madrid. 
But the Southern States resented extremely any 
sacrifice of their claims ; for Virginia was reach- 
ing out towards the Mianissippi and the foun- 
dations of Kentucky were laying. So between 
those two fires Congress long delayed precise 
instructions. June G and* 7, 1781, there was a 
long debate on the boundaries. So many were 
in favor of taking the Ohio for a boundary, 
wrote Luzerne to do Vergennes, that it would 
only have depended on him to get such a motion 
passed, but ^^ it seemed to me that circumstances 
might arise in which it would be necessary to 
withdraw the boundaries still further."' The 
matter of boundaries is dependent on the events 
of the war, was de Vergennes* comment, and 
Congress is wise in not defining them..' The 

^ LuierM to Vergennes, Feb. 11, Mareh 13. 
' Luzerne to Vei^nnoe, June 13, 1781. 
* Vergeiuie« to Luxvruo, Sept 7, 1781. 

160 JOUm JAY. 1 

filial instmottomi to the oommitBioiien referred 
them to these former inatracttoiiB, but omitted 
to tie them by absolute directions. By a seoret 
article, howeyeri they were ordered to try to get 
the boundaries as stated* It is not surprising, 
perhaps, that on November 23il, Luzerne com- 
municated to Congress the satisfaction felt by 
France with the discretion left to the ministers. 
Luzerne was equally successful in the matter 
of the fisheries ; after long debates, and in spite 
of the ceaseless efforts of Elbridge Gerry and 
the delegates from ^lassachusetts, — at times the 
New England party succeeding, at times the 
French, — a share in the fisheries, so far from 
being an ultimatum, appeared in the final in- 
structions only as a condition precedent to a 
treaty of commerce with Great Britain in case 
any such should be negotiated. The wishes of 
Congress are subordinated to French conven- 
ience, was Luzerne*s cry of delight to de Ver- 
gennes.^ . It is true that ^larbois assureil Con- 
gress that in regard to the fisheries the king 
would do his best to procure every advantage 
for the United States.' But M. Marbois was 
in this matter, to say the least, curiously misin- 
formed. The question is simply this, said Lu- 
zerne, discussing the fisheries with Mr. Thomp- 

> Jane 3, 1780. 

* Marboii to Vergoiinet, July 11, 1781. 


ton, ft member of CongreM: Has Congiete ft 
right to insist on Franoe procuring for them 
this advantage? One has only to read the 
treaty to see that France is only bound to secure 
indui)endonoe for America.^ The subject may 
bo closed with this curt remark of de Vergennes : 
^^The Americans doubtless do not flatter them- 
selves that in the last analysis we will let the 
peace doi)cnd on the. greater or less extension 
that may be granted to them as to the fish- 
eries.'* * 

Wlicn in the autumn of 1779 the election 
came on of a minister to negotiate forpeacci 
the Now England party chanced to be strong 
enough at the moment to elect the champion of 
the American fishermen, John Adams. Already 
suspected and disliked by France, Adams soon 
niudo her detest him by his independent man- 
ners; and Franklin conveyed to Congress the 
disapprobation felt for his fellow-countryman by 
de Vergennes, an act, perhaps, hardly justified 
by diplomatic propriety. In the spring of 1781 
de Vergennes tirged on Luzerne the policy of 
having Adams iuHtructed to take no step witliout 
tlio king's consent, --> as the next best thing to 
. having him removed for good.* Luzerne, ao- 

' LuicriM to Vergfennet, Jaa. 5, 1782. 

* Vergeonci to Luunie, March 23, 1782. 

* Vorgvmiea to LuzttrtM, Much 0, 1781, April 10, 1781. 

162 JOHN JAY. 

oordiagly, ipoke oonfideiitiftlly to the presideiit 
and varioas memben of Congress about the 
danger of Adams losing for America an opporw 
tunitj of making peace <m reasonable terms. As 
a resulti be hoped two associates would be sent 
him, or directions to govern himself by de Yer- 
gennes* advice.^ He labored earnestly with the 
committee on instructions as to the folly of leav* 
ing the negotiation to Adams*s sole discretion. 
It was, he said, the affection of France for the 
United States that made her so anxious in the 
matter.' Now the committee was charged to 
draw up a resolution, of which article 4 provided 
that the American minister should be guided by 
the advice of France. The article, as drafted, 
required the utmost confidence in the French 
ministers, and forbade concluding peace without 
consulting them. That was not enough, ex- 
claimed Luzerne to the chairman, it was neces- 
sary that Adams should have to follow the ad- 
vice of France, if she thought it essential.* 
Accordingly, June 8th, the instructions were 
amended so as to read : '* You are to make the 
most candid and confidential communications 
\\\Miu all subjects to the ministers of our generous 
ally, the King of France ; to undertake nothing 

> Launie to VttixonnM, Jom 1, 1781. 

s LuxArne to Vergvnnea, June 8, 1781. Cf. S. J., ii. 438. 

* Liuorno to Venfonnet, Jum U, 1781. 


ill the negotiatioiui for peace or tn^e without 
their knowledge or eonearrenoe ; and nltiinatelj 
to goYom yourself by their advice and <q[nnion.'* 
At last Luieme was satisfied. **I regard in 
effect,** he said, **ihe negotiation as being act- 
ually in the hands of the king, with the excep- 
tion of the question of independence and the 
treaties." ^ The resolution had- passed with but 
three States against it, a happy result which he 
attributed chiefly to the absence of Samuel Ad* 
ams, and to the rupture of the New England 
League for which he was indebted to his old 
pensionary, General Sullivan. The success of 
his schemes almost turned Luzeme*s head with 
joy, for elsewhere he speaks of the ^^ unlimited 
confidence ** placed in France.* Yet it is to be 
noticed that these most unwise instructions were 
passe<l not for the benefit of France, but purely 
for the sake of America, because it was believed 
that in such way the best terms could be pro- 
cured at the peace. Luzerne had previously 
disclaimed that France had any selfish object 
in the matter ; now, when complaints arose, Lu- 
seme urged Congress to reconsider their deci- 
sion, and hinted that '^ France would be glad to 
bo relieved of the responsibility if she consulted 
her own interest.** * 

' Lnzerne to VergvniMs, Jone 11, 1781. 
' Lusemo to Vei^nnet, June 13, 1781. 
' Luaerne to Vei^ennet, June 2-'), 1781. 

164 JOBK JAY. 

WlieQ doubts of the honesty of France were 
expressed, Luxeme was directed to discredit 
them by assurances that were but repetitious 
of these earlier statements, which must have 
had no small share in effecting the purposes of 
France. You may assure tlicm, said de Ver- 
gennes, that, **far from wishing to abuse the 
influence he might have on the negotiations of 
the American ministers, the king will employ it 
only for the best advantage of the United States ; 
and that if he does not succeed in procuring 
them all the terms that each of them individ- 
ually might wish, the fault will certainly not be 
his, but due to circumstances.'* ^ A more defi- 
nite pledge of faith it would be hard to draft, 
•—and yet Rayneval seems to have forgotten 
it when he discussed the American claims with 
Shelbume in London. 

These instructions — of which there was so 
much unnecessary talk when the preliminary 
articles of peace reached America, and which 
assume such sanctity even in the imagination of 
M. Doniol — ^^were not founded on any treaty obli- 
gation, but were enacted under a mistake of fact 
for the purpose of gaining f i*om England, by the 
good offices of France, terms which, as ap})cars 
by the official correspondence of de Vergenucs 

> VorffennM toLuwrne, Sept. 7, 1781;. Nov. 23, 1781, 8, /., 

UMaOTiATOM or P£ACM, 165 

and hit diplomatio agents Franoe had leeretlj 
determiBed to oppose. The attitude of France 
in 1782, as sketched in that correspondence, 
was not that presented by Luzerne and credited 
hy Congress ; and no treaty satisfactory to the 
United States could possibly have been negoti- 
ated except by one who saw the facts as they 
were, and was bold enough to act accordingly, 
Adams may have been such a man, but his tem« 
perament was that of a fighter rather tluin of a 
diplomatist^ and, suspected as he was by France 
of unfriendly prejudice from the beginning, ho 
could have had but slight opi)ortunity of suc- 
cess. Now to tie his hands still more, follow- 
ing up Luzcrne*s suggestion to give Adams 
^^ two ad joints,** Jay,^ Franklin, Jefferson, and 
Laurens were added to the commission. As for 
the peace negotiations, wrote Luzerne, they will 
depend henceforth on his colleagues as much as 
on him. *^^Ir. Jay is the one whose reports in 
the course of the negotiation will make most im- 
pression on Congress, because he passes as be- 
ing the least violent either for or against us, and 
I am very sure that his accounts will have much 
influence on the opinion Congress will form of 
our conduct at the peace." ' 

* Jaj being named fint 

* Luxerno to Veri^ennet, Sept 25, 1781. 




When Jay reaobed Paris on June 28, 1782, 
tlie negotlatioiit, strietly qioaking, hact not yet 
begun. AU the boUigorent {Hewers, except 
Spain, were eager for peace; the ministry of 
Lord North had been driven from power in 
March by a series of votes of ** want of confi- 
dence/* and the Rockingham ministry had taken 
office only on condition tliut the king wouhl not 
veto the concession of uule|)cudcnce to Amer* 
ica ; while France was convinced of the neces- 
sity of entering into direct negotiations at Paris 
in order to forestall the intervention of the im« 
perial courts of Austria and Russia, whose of- 
fers of mediation were half accepted by Eng- 
land in whose favor they seemed unfairly pre- 
judiced.^ Franklin had opened unofficial inter- 

1 ** ObferratioiM relativt to Pacification (Franoh), Juno 20, 
1782/» Stevenu MSS, ; Vergonnci to Moutmorin, June 22, n«2, 
Siewnt MSS. ; Moutmorin to Vers^cnnei, Auff. 22, 17^2, Ste* 
vetu MSS. 


foune with the miuistry, through Oswald, ^ a 
|iAoifical man/'^andGronville, **a aeiuible, jo- 
dicioufl, intelligonti good • tempered, and well 
iniiiructod young luan,** ' the former being the 
]ior8onal envoy of Shelburne, Secretary of 
State for Home and the Colouieii, and the latter 
the personal envoy of Fox, Secretary of State 
for Foreign Affairs. Each of these ministers 
was endeavoring to secure the American ne- 
gotiations for his own department. Qrenville 
hud received suecesHivuly several oonuuiitsions, 
but only to treat with France and not technio- 
ally including America; while as yet Oswald 
had no commission at all. In these prelimi- 
nary overtures, however, some suggestions had 
been made by Franklin which proved useful: 
that tlie only engagements America Imd with 
France were comprised in the Treaty of Com- 
merce and the Treaty of Alliance, and that so 
soon as England conceded the independence 
of America, ^*the treaty she had made with 
France for gaining it ended.** ' De Vergennea 
had pro|K>8ed that the negotiations of France 
and America should be separate, though they 
were to moy^ pari passu and the two treaties 
were to be signed simultaneously;^ and this 

» FruMinU Workt, U. 207. 

• Ibid., Tiu. 35. 

• GMiiville to Fox. Maj 14, 1782, 8te9en$ MSS. 

• Bancroft, x. 540 ; FrankUn*9 M'urki, is. 2U9. 

168 JOM JAY. 

idea Franklia oommunicated to Greovillei wlio 
acceded to it gladly.^ The proposition that 
France should aeeept the grant of indepen- 
dence as her full compensation de Vergenues 
rather scornfully rejected.' For ** even admit- 
ting America to be the sole object of France iu 
the war, there still remained Spain to satisfy, 
and that power had never bad anything in com- 
mon with America, whose independence she had 
not yet recognized ; ** ' a frank admission that 
France might prolong the war for objects in 
which, in the words of Fox, ^it is not even 
pretended that America has any interest either 
near or remote/' ^ It seems then to have been 
agreed that America should negotiate with Eng- 
land directly, not through do Vcrgcnncs or the 
meiliating courts, and separately, by hcrsulf, 
without further counuuuicuiion with Franco than 
was required by comity, *^ biensdauce,'* to use 
Franklin's term, and by the interpretation the 
American minister should, in their discretion, 
put upon their iustructions. These instructions, 
so far as they imposed confidence in France, 
were not at tliat time construed by Franklin 
literally, for he did not communicate to de 

1 GrtBTiUt to Fox, May SO, 1782, Sttvtnt lfS8. 

• GrenrUlo to Foi, Maj 10, 1782, Steven* MSS, 

• Gre&TUIe to Fox, May 80, 1782, Stevens MS8. 
« Fox to QnBfillo, May 20, 1782, Stevent JI8S. 


VorgenoM the one important suggestion which 
he nuule with regard to the terms of peace; 
namely, the cession of Canada, a suggestion 
that ho would hardly have included even in hin 
iutormal ^^ notes for conversation'' had he been 
aware that it was opposed equally by England, 
France, and his own government So early as 
1778 it was the settled design. of France and 
Spain **to keep the English in the possession 
of Nova Scotia and of Canada,** ^ and Gerard 
was instructed to dissuade Congress from their 
plan of conquering Canada, as the king thought 
the possession of it by England would be a use- 
ful means of keeping America dependent uiK>n 
France,* The English ministry declared the 
cession of Canada to Ix) ^^ out of the question,*' ' 
and Washington considered its possession to bo 
undesirable. Such was the state of affairs when 
Jay arrived on the scene. 

The first letter he wrote to America testified 
to his reganl for Franklin : ^^ I have endeavored 
to get lodgings as near to Dr. Franklin as I can. 
lie is in )X)rfect gootl health, and his mind 
apix^ars more vigorous than that of any man of 
his age. I have known. He certainly is a valu« 

1 Venrennei to Gerard, Deo., 1778, D* Circourt, Ui. 201. 

* VerguniiM to Gerard, Deo. 1778, De CirooaH, til 255. 

• Fitzmauriee, Li/« ofShdhnm^y Ui 183-180. 

170 JOHN JAY, 

able minisier and an agreeable ooropanion.'* > 
The next daji writing to Montroorin, he showed 
how far he was from any prejudice againat the 
French : ^ What I have seen of Franoo pleases 
me exceedingly. Doctor Franklin has received 
some late noble proofs of the king's liberality in 
the liquidation of his accounts^, and the terms 
and manner of paying the balance due on them* 
No people understand doing civil things so well 
as the French. The aids they have afforded us 
received additional value from the generous and 
gracious manner in which they were supplied, 
and that cii*cumstanco will liave a proportiona- 
ble degree of influence in cementing the connec- 
tion formed between the two countries." ' 

Jay lost not a moment before setting about 
tlie business of his mission. The entries in his 
diary run : ^ 1782, 23d June. Arrived in Paris 
about noon. Spent the afternoon at Passy with 
Dr. Fi*anklin. lie informed me of the state of 
the negotiation, and that he kept an exact jour^ 
nal of it. 24th. Waited ujiou 1^1. Yergunnes 
with the Dr.' The count road us his answer 
to the British minister. 25th. Wrote to Count 
Aranda. Wrote to the secretary for foreign af- 
fairs. 2Gth. After breakfast with the Dr. met 

> Jay to UfingiioB, June Sft» 1782, Di>l. C^,, riU. 114, 115. 
' jAy to Montmoria, Jium 20, 17b2, Jay*i Ja^, u. lOU. 
• Dr. Fraaklia. 


with Mr. Oreoville/' * The paper that de Ver. 
gennes read to Jay and Franklin waa presom* 
ably a copy of the verbal answer he had niaiie 
to Gronville on the 21»^ which, to quote his 
own words to Moutmorin, ** was drawn up solely 
with the view of prolonging the negotiation 
to gratify our denires and the oonvcuience of 
our allies. In fact tlie four points on which I 
ask for arrangements would take up quite six 
montlis.*' ' June 29th Jay and Franklin called 
upon Aranda, the Spanish ambassador, who had 
been authorized to continue the negotiations at- 
tempted at Madrid. A suggestion of the ne« 
cessity of neutral concessions was made by the 
ambassador, but nothing of importance was trans> 
acted immediately, as the next day Jay fell ill, 
and was unable to take any part in affairs for 
several weeks. 

During Jay's illness another change of min- 
isters occurred in England. Rockingham died 
on July 1st, and the next day the king offered 
tlie vacant ofRce to Slielburne ^^ with the fullest 
political couflilonee.** The Whig party at once 
objecteil to what was unquestionably a consti- 
tutional exercise of the prerogative, and Shel- 
burue's acceptance was followed by the resigna- 
tion of Fox, Uurke, Sheridan, and others of 

1 Jiiy*i Jay, i. 136. 

> V«rg«nnet to Montmorin, July 20, Sttvem MS3. 

172 JOHN J4T. • 

Fox's intiiuate friends. Pitt beoame Chancellor 
of the Exchequer, Townthend, Home and Colo- 
nial Secretary, and Lord Gnuitham, Secretary 
for Foreign Affairs. This was, indeed, a minis- 
try, to use the king's phrase, ^ on a broad bot- 
tom,'* but decidedly liberal. In the House of 
Lords Shelbume stated that his views on tho 
subject of American independence were still the 
same as heretofore^ that it would be a fatal mis- 
fortune to England, but that now he was obliged 
to yield to necessity. Ho would, however, make 
every exertion to prevent tho court of France 
from dictating the terms of {leace ; the suu of 
England would set with tho loss of America, but 
he was resolved to improve the twilight and pre- 
pare for the rising of that luminary agaiu.^ On 
the 11th Parliament rose, and Shclburno was 
pre)nired to give his whole attention to conclud- 
ing the negotiations before it should reassem- 
ble in November. He at once sent Benjamin 
Vaughan, the })olitical economist, to Paris to 
assure Franklin, who was an intimate friend, 
that there was to be no change of policy ; and 
to Oswald he wrote : ** I beg him to believe that 
I can have no idea or design in acting towards 
him and his associates but in the most liberal 
and honorable manner." ' 

> FiUm«urlc«, Life ofSheiburite, lU. 2^0, 241. 
* SUtflburim to OnwalJ, Juim «)0, FiUiuuurice, L{fe of Hktl* 
fturiir, Ui. 243. 

ran MsooTtATiONa. ITS 

On July 9th, m an interview with Oswald, 
Franklin drew up a aeries of artioles to be eom- 
munioated to Sholbume, aa a baaia for negotiap 
tion. The articles marked necessary were : (1) 
Independence, full and complete, in every aense, 
and the withdrawal of all troopa ; (2) A aettle* 
ment of boundariea ; (3) A coufmement of the 
boundaries of Canada to at least what they were 
before the Quebec Act ; (4) A freedom of fish- 
ing on the banks of Newfoundland and else- 
where for fish and whales. The articles marked 
adciHitlJe were : (1) An iiuleiiniity to many 
lieople who luul beeii ruincil by the dentruction 
of towns ; such an indemnity, Franklin said, 
^* might not exceed five or six thousand |)ouuds ; ** 
(2) Some acknowleilgment of the error of Eng- 
land in distressing the country ; (3) American 
ships and tnule to have the same privileges in 
the United Kingdom as British ships and trade ; 
(4) Tiie cession of Canada and Nova Scotia.^ 
At the close of this interview Franklin withdrew 
his suggestion, maile in his ^* notes for convei-sa- 
tion ** in April, that the royalists might be com- 
l^ensated by the sale of waste lands in Camida ; 
and declared that, owing to the inability of Con* 
grcss to control the particular States, the claims 
of tlie royalists could not bo cousidercd. Oswald 
concluded his ro|X)rt with the remark, ^* I could 

> Kitzmaurico, Lift of Stulburntf iii. 2ia, *2U. 

174 JOMN JAY. 

nol peraeive tliat he meant that tlie progress and 
oonoluftion of their treaty was to have any oon« 
nection or would be iniluonoed by what was do* 
ing in the treaties with other powers/' ^ 

When Fox resigned, Grenvillo thought fit to 
resign alao» and was succeeded by Fitzherbert, 
the English minister at Brussels. But before 
leaving Paris, Fitzherbert alarmed Franklin by 
spreading a report that Shelbume had no inten- 
tion of granting independence. The report was 
instantly denied by Shelburne : ^^Tiiere never 
have been two opinions/* he assured Oswald, 
^ since you were sent to Paris, upon the most 
unequivocal Acknowledgment of American In- 
dependency ; *' and he promiscil him a commis- 
sion, with instructions from Townshend ^^to 
' make the Independency of the Colonics the 
Basis and Preliminary of the Treaty/' ^ Tliis 
language seems at first sight unequivocal ; but 
it has misled some historians into supi)osing that 
wliat was intended was an acknowledgment of 
independence, without reference to a treaty, — 
an acknowledgment as absolute as was subse- 
quently extorted by Jay through the representa- 
tions of Vaughan. . The language of Shelburne, 
however, on this occasion differs little from the 

> OiwAld to Shttlbunie, Julj U. 

* Shelburne to Oiwald, July 27, 1782, Hole, Franklin in 
France, u. 90. 

rn NEoaruTiONB. 175 

vote of Um Cabinet, May 28J, on tlia molioa of 
Fojc, ^to propoM tho tndependenoy of Amerioa 
in Iho first instance, instead of making it a con- 
dition of a general treaty;**^ a motion which 
Shelbume and a majority of the Cabinet con- 
strued to mean that independence was proposed 
merely as ^ tho price of peace,** as a basis to 
treat upon.' As to the articles drawn up by 
Franklin, Shelbume hoped tliat those *^ called 
advisable will be dropped, and those called ne- 
ctttary alone retained as the ground of discus- 

On August Cth a copy of tho promised com- 
misHion arrived, empowering Oswald to treat and 
conclude with tho commissioners of ^Uhe said 
oolonies or plantations,** etc. The next day Os- 
wald called U)x>n Franklin at Pussy, who read 
the commission and suid *^ ho was glad it was 
come,'* and ^ that he hoped we shou*d do well 
enough and not be long about it.*' Thus Os- 
wald remarks in his journal, having in mind 
Franklin's earlier suggestion that on the grant- 
. ing of indejx^udenoe the treaty with France camo 
to an end. ^^ That could not but be very agree- 
able to me,** he continued, ^^ if my expectations 

> June 30, Hale, Franklin in France^ U. 61 «. 
* FiUmaurice,Li/eo/*^'Af/6urM, iU.*iia 

> Shelburne to Onwald, June 27, 1782, Hnle, FttuJdin in 
France^ it. 00. 

176 . JOUN Jir. 

had not been so aoon after dampt by the • • • 
unpleasant reception from Mr. Jay/* Thk con- 
versation with Jay, which occurred the follow- 
ing day, is, perhaps, of siiffieient interest to 
justify free quotation from Oswald's journal. 
Jay, he wrote, ^*'is a man of good sense, of frank, 
easy, and polite manners. lie read oTcr Uie 
copy of the Commission • • • and then said: 
By the quotation from the Act of Parliament in 
the commission he supposed it was meant that 
Independence was to be treated upon, and was 
to be granted, perhaps, as the price of peace; 
that it ought to be no part of a Treaty ; it ought 
to have been expressly granted by Act of Parlia- 
ment, and an order for all troops to be withdrawn, 
previous to any projiosal for Treaty ; as that was 
not done, the king, ho said, ought to do it by 
Proclamation, and order all garrisons to be evac- 
uated, and then dose the American war by a 
treaty.** Then, after mentioning ^^ many things 
of a retrosi)cctive kind," Jay added that *Hhe 
great point was to make such a |X!ace as should 
be lasting.** Oswald noticed the expression 
wliieh he had often heard from de Verg(?nnes 
and Franklin, and was curious to know wliut 
meaning Jay attached to the words. ** What 
security,** he asked, *^ could be given for a con- 
tinuance of peace, save a treaty, which, like the 
Treaty of Paris, was apt to prove very inade- 


qaate teoarity?*' Jay replied, ^He woiild aol 
give a farthing for any parchment security what* 
ever, lliey had never signified anything tinee 
the world began, when any prince or statOi of 
either fiide« found it convenient to break through 
them. But tlie peace he meant was such, or so 
to be settled, tliat it should not be the interest 
of either party to violate it/' As to France, he 
said that by their treaty the Americans could 
not make ]jeace but in concurrence with the 
English settlement with France ; that the inde- 
])cndence of America was not a sufficient indem- 
nity to France, and, if granted as such, would 
put them under a greater obligation to France 
than tlicy inclined to, as if to her alone they 
were indebted for their independence. The 
treaty of alliance with France must bo fulfilled ; 
for ^^ they were a young liepublio just come into 
the world, ami if they were to forfeit their char- 
acter at the first outset, they would never be 
trusted again, and should become a proverb 
among mankind.*' Jay s|)oke ^^ with such a freo^ 
dom of expression and disapprobation of ourcon« 
duct at home and abroad respecting America,'* 
concluded Oswald, ^* as shews we have little to 
expect from him in the way of indulgence. And 
I may venture to say that, although he has lived 
till now as an English subject, though he never 
has been in England, he may be supposed (by 

178 JOBN JAT. 

anything I oou'd perceive) as wnch alienated 
from any })artieular regard for England as if he 
had never heard of it in his life. . . • I sincerely 
wish I may be mistaken, but think it proper to 
remark, as Mr. Jay is Dr. Franklin^s only coU 
league, and being a much younger man and bred 
to the law, will of course have a great share of 
the business assigned to his care.** 

On the 10th Jay and Franklin consulted, by 
appointment, with doYergennes, to whom Frank- 
lin had sent a copy of the commission. De Ver^ 
gennes advised them to proceed under it, as soon 
as the original should arrive. Jay observed that 
^it would be descending from the ground of in- 
dependence to treat under the description of 
colonies,** — by which phrase the States were 
described in tlie commission. De Vergennes re- 
plied that an acknowledgment of independence, 
instead of preceding, must in the natural course 
of things be the effect of the treaty, and that it 
would not be reasonable to expect the effect be- 
fore the cause. On the whole, the French court 
considered that the American ministers should 
accept the commission on condition that Eirg- 
land should accept tlicir own commissions as 
miule out by Congress.^ To Montmorin and 
Luzerne, de Vergennes subsequently expressed 

> "^ ReflectioiM (Ftanck) oa ih« bill of July 25, 1782/' 
SUpttu MSS. 

TffS NECariATIONB. 179 

•imilAr opinions.^ Jay's theory of da Verganiiet* 
motives be ezplmined fully to Franklin : He 
thought that the French minister wished to post- 
pone the aeknowledgroent until the objeets of 
Spain had been secured* ^because, if we once 
found ourselves standing on our own legs, our 
independence acknowledged, and all our other 
terms ready to be granted, we might not think 
it our duty to continue in the war for the at- 
tainment of Spanish objects. I could not others 
wise account for the minister's advising us to 
act in a manner inconsistent with our dignity, 
and for reasons which he himself had too much 
understanding not to see the fallacy of. The 
Doctor imputed this conduct to the moderation 
of the minister, and to his desire of removing 
every obstacle to speedy negotiations for peace. 
He observed that this court had hitherto treated 
us very fairly, and that suspicions to their disad« 
vantage should not be readily entertained. He 
also mentioned our instructions as further rea- 
sons for our acquiescence in the advice and opin- 
ions of the minister.*** Jay, indeed, hod di- 
vined, with an accuracy hard to surpass, the 
fears of the court of Spain, which by the treaty 
of Aranjucz Vcrgcnncs was compelled to regard. 

1 To MoutnioriB, Aug, 22; to LaieriM, Sept 27, 8teven$ 
* To B. R. Uviiigstoa, Sept. 18, 1782. DiiJ, Con., fiil. UK>. 

180 JOBN JAX. 

^yfhmx onoe iiulepemlenoo has been definitely 
offered to the United StatoA,*' Montmorin wrote 
from Madrid, August 12tli, expressing his own 
opinion and that of Florida Blanca, ^^ if it is not 
followed immediately by peace it will not be 
difficult to persuade them that the continuation 
of the war has an entirely different object from 
their interests.*' * That de Vergennes had an 
ulterior motive was, indeed, obvious enough, 
from the inconsisteucy of his present argumout 
that independence should be tlie effect of tlie 
treaty, with his previous assertion to Grenvillc, 
in Franklin's presence, that it was no favor to 
France, since independence existed in fact bo- 
fore France interfered, and with his still earlier 
refusal, inspired possibly by Adams, to accede 
to the Russo-Austrian plan of mediation, be- 
cause it contemplated an English negotiation 
with the States as colonies, and not as an in- 
dependent power of equal rank with the others. 
Franklin, however, was unconvinced by Jay's 
reasoning ; for on the morning of August 11th, 
Sunday, he told Oswald that ^^ Mr. Jay was a 
lawyer, and might possibly think of thiugs that 
did not occur to those who were not lawyers. 
And he at last spoke as though he did not see 
much difference ; but still used such a mode of 
expression" that Oswald could not positively 

^- MoDtiiiuriii to Voivvnuoi, Aag. 12, 1782, Stcvtnt MSS, 


■ay thai he would not insiit ^oo Mr. Jay's prop- 
oftition, or toiuo praviout or leparato aoknowl- 
odj^ment*' ^ 

There was, however^ no room to mistake Jay's 
meaning. ^ I urged upon Oswald," he wrote, 
^ in the strongest terms the great impropriety* 
and consequently the utter iiuiKMsibility, of our 
ever treating witli Great Britain on any other 
than an equal footing, and told him plainly that 
1 would have no concern in any negotiation in 
wliieh we were not considered as an independent 
I)cople ; " and witli Oswald's approval he drew 
up a declaration, recognizing the colonies as in- 
dependent States, which, after being submitted . 
to Franklin, was delivered to Oswald on the 
15t)i. They consented, however, to waive the 
declaration, when the Englishman showed that 
he was instructed to grant indeix^ndence if the 
eommiHsioners refused to treat otherwise, and 
they agreed to accept a stipulation of indepen* 
deneo in a separate pi*eliminary article. On An- 
gust 17th Oswald communicated these demands 
to the ministry, tliough his commission under 
the gi*eat seal liad arrived the day before, and 
Franklin and Jay were discussing it with de 
Yergennes who repeated his previous argu- 
ments. ^^ Ui)on the whole," wrote Oswald, 
*^tliey would not treat at all until their inde- 

» Hale, Franklin m France, ti. 112. 

182 JOBN JAY. 

pendenoe was to acknowledged aa thai they 
should have an eqnal footing with us and might 
take rank as parties to an agreement.** ^ ^ The 
American commissioners,** he wrote again, ** will 
not move a step until independence is acknowl- 
edged ; until the Americans are contented, Mr. 
Fitzlicrbort Cannot ])roeGed.** ' 

Jay also preiKired a letter explaining the at- 
titude of the commissioners. ^^If Parliament 
meant to enable the king to conclude a jieaco 
with us on terms of inde|)cndence, they neces- 
sarily meant to enable him to do it in a manner 
compatible with his dignity, ami consequently 
that he should previously regard us in a ]K)iut 
of view that would render it proper for him to 
negotiate with us. As to referring an acknowl- 
edgment of our inde[)endence to the first article 
of a treaty, permit us to remark that this im- 
jilies that we are not to be considered in that 
light until after the conclusion of the treaty, 
and our acquiescing would be to admit the pi'o- 
priety of our being considered in another light 
during that interval. It is to be wished tiiat 
his ^lajesty will not permit an obstacle so very 
unimportant to Great Britain, but so essential 
and indispensable with respect to us, to delay 

> To SkelburM, Aug. 17, 1782, Strpem MS8. 
• To SItelbunie, Aug. 18, 1782; Ovwaia to TowiulieiMl, 
Aug. 18, SttvtM Mas. 

TBE N£aOTiATiON8, 188 

the lecttabliahment of peace." ThU letter was 
oonsidered too poiitive by Franklin, who, more- 
over, as Jay wrote to Livingston, ** aeenied to be 
inuoli porploxed and fettered by our instruo* 
tions to bo guided by tlie advice of tbis eourt. 
Neitlior of tlieso oonsidemtions had weight with 
mo ; for as to the first, I could not eonccivt of 
any event which would render it proper, and 
therefore possible, for America to treat in any 
other character tlian as an independent nation ; 
aiid as to the second, I could not believe tliat 
Congress iutended we should follow any advice 
which might be rcpugnaut to their dignity and 
interest/* Fitzherbci*t, writing on August 17th, 
informed Grantham of de Yergennes' attempt 
to excite new jealousies and misunderstand-^ 
ings between England and America, which con- 
viuccd him tliat the grant of American inde- 
pendence at the moment would not be agreeable 
to France, ^^as the baud between them would 
tliereby be loosened before the conclusion of a 
peace.*' But so averse was the ministry to ao> 
ceding to the terms of Jay, that they offered to 
waive the clainis of British creditors for debts 
prior to 1775, and of the refugees for compensa- 
tion, ^'for the salutary purposes of precluding 
all further delay,** as Townshend expressed it. 

At last, however, Oswald was instructed, tliat, 
if this concession would not sufRce, ^^ in the very 

184 JOUN JAY. 

last resort " lie might inform the commissionen 
that the king would recommend Parliament to 
enable him to acknowledge independence ** abso- 
lutely and irrevocably, and not depending u)M>n 
the event of any other part of a treaty. But 
u|M>n the whole, it is his Majesty's express com- 
mand that you do exert your greatest address to 
the purpose of prevailing ui)on the American 
commissioners to ]>roeccd in the treaty, and to 
admit the article of iudc})cndence as a part, or 
as one oidy of the other articles/* ^ In other 
wonls, the Cabinet had determined to reject Os- 
wald's proposal.^ On September 5th Oswald 
sent Franklin an extract from this letter of 
Grantham*s, and a day or two later made an- 
other vain attempt to persuade Jay to rest sat- 
isfied with his commission in its present form. 
On the 8th Fi*anklin fell ill with a serious at- 
tack of the gout.^ 

In the meanwhile important events had oc- 
curred which convinced Jay that the French 
court was opposed to American claims in other 
matters tlian that of independence. When, in 
July, Jay renewed his negotiations with Aranda, 
the latter stated the Spanish claims with great 

* Townshciiid to OiwAld, Sept 1, 1782, ritamaurice, Lift of 
Stulburne, Ui. 255, 250. 
3 Fitunaurice, Life ofShJburne, lU. p. 254. 
> Fratikliu't WurLs, U 40;M05. 


deflniteneMi and aubaoqiiontly seul him a map of 
Iho bouiuUriea propoied.^ Aranda argued that 
tho western territory, no far aa it was not still in 
the possession of tho Indians, belonged to Spain 
by virtue of her conquest of West Florida and 
Iier posts on tho Mississippi and tlie Illinois. 
Jay pro])osed for discussion a boundary east of 
the Mississippi, running from, a lake near tho 
confines of Ciuorgia to tho confluence of the Ka- 
nawha with the Ohio and thence to Lake Erie ; 
and on August 10th he left with do Ycrgeunea 
a map nuirked according to tiicse vieWs« Do 
Yenicnnes I withheld his opinion, but Kaynevtd, 
the minister's coiiiideutial secretary, said that Le 
thought the Americans claimed too much, and 
Franklin seemed to agi*co with Rayneval.* On 
August 2Gt)) Jay and Aranda held another con- 
ference on tlie boundaries, and Aranda asked 
Jay to state his views in writing.' On Septem- 
ber 5th, upon an invitation from Kayneval, Jay 
t:ilked over tho matter with him at Versiiilles ; 
and on tho 6tii Kayneval sent Jay a paper stat- 
ing his personal idcas.^ 

The argument of Kayneval was simple in its 
logic but startling in its conclusions, America's 
only claim to tho western territory was uiuler 
the rights of Great Britain, but in 1775 £ng- 

» Dipl. Corr., vui. 150. « Ibid., viii. 152. 

• Ibtd.f viii. 154. * /W</., viii. 155. 

186 JOHN JAY, 

laud bad admitted that Ohio bolonged to Franoa, 
aud in 1761, 1763, and 1775 that the lands weal 
of the AUeghanies were Indian territory. He 
therefore proposed that lands to the nortli of 
the Ohio should belong to England, lands to the 
south of latitude 31° north to S]min ; also that 
a lino sliould bo drawn along the Cherokee and 
the Cuinberlund to the Ohio, aud that the In- 
dians to the west of this line should be under 
the protection of Spain, and those to the east 
under the protection of the United Stati's.^ ^^ It 
was not to be believed,** Jay wrote, ^* that the 
firHt and confidential secretary of the Count do ^ 
Vergenncs would, without his knowleilge and 
consent, declaro such sentiments and oiler such 
pro|)ositions, and that, too, in writing;** and 
John Adauis,^ and, in a simihir case, Fitzher- 
bert, reached the same conclusion.^ De Ver- 
genncs disowned all responsibility for the paper 
in 1783 : ^ ^4t might be considered as non-exist- 
ent in relation to the king*s ministers.** But 
a year earlier, when the matter was still fresh, 
his tone to Luzerne was diffei*ent : ^^ A confiden- 
tial note has been sent to Mr. Jay, in which it 
is ahnost j)roved tliat the boundaries of the 

1 Dipl. Corr., tiU. 154, 150. 

« JbiJ., vii. 08. 

> Tu GrauUiam, Aug. 2)), 17^2, Stevem MS8, 

* To LuMnw, July :21, 1783, 6tt»etu MSS, 

tum NsaoruTiona, 18T 

United States south of tlie Ohio aro confined to 
the mountaiiiB, following the watershed*'* ^ Jay 
oould not have forgotten that arguments similar 
to I{ayneval*s had been made to him repeatedly 
in the summer and autumn of 1779 by Lu- 
xorne. Then sacriBcos were to be made to Spain 
to induoo her to join in tlie war; now similar 
siu^riHccs were pro))osed to induce her to end it. 
^^ The policy of Spain at this moment amounts 
to this/* wrote Montmorin on July 8th, ^^ to ne- 
gotiate, if it is absolutely imiKissible to avoid 
it, • , • but to delay as long as {lOdHible the mo- 
ment for explaining herself, in the hope that the 
siege of Gibraltar will be favorable. . • • One 
cannot disguise from one*8 self the fact that, in 
view of this state of things, it is almost wholly 
for Spain that we continue the war. I hope tliat 
this truth may not be too obvious to the Amerw 
ieans, who have no reasoli to be interested in 
satisfying that power, and who would soon be 
wearied of the war if it had only this object." * 

That summer in the month of June two jiapers 
wore prepared in the French department for for- 
eign affairs.^ Tlie first of these urged the im- 
portance of limiting the United States, so as 

1 To Luzerne, Oct 14, 1782, De Ciraourt, ill 200. 

* Steven* MSS, 

* So stated by Mr. Bancroft, who ieleoted these papers for 
publication. To lion. John Jay, Ueo. 11, 1602. 

188 JOUN JAY, 

to restrain them so long m possible from ambi« 
tious projects ; England must renounoe Georgia, 
and Florida must be ceded to Simin. ^ We re- 
gard it as necessary for the solidity of the future 
peace,*' is the conclusion, ^ to separate the Eng- 
lish absolutely fram this part of the continent. 
The ambitious views they have shown in wish- 
ing to have the Mississippi for a boundary, the 
extension they have hastened to give to their 
oomnieree in this part of the world, the coui- 
niunications tluit tliey have established with New 
Mexico, are sources of discord that must bo 
eliminated.'* ^ 

On September 10th an intercepted letter to 
de Yergcuncs from Marbois, Luzerne's secretary 
at Philadelphia, was transmitted to Jay through 
English hands. He s|)caks of the op|M>sitiou 
which Samuel Adams is raising in Massacliu- 
setts to any terms of ))eace that do not preserve 
American rights to the fisheries; and Marbois 
suggests that the king should intimate to Con- 
gress or the ministers ^^his surprise that the 
Newfoundland fisheries have been included in 
the additional instructions; that the United 
States set forth therein pretensions without pay- 
ing regard to the king's rights," etc. *'*' It is re- 
marked by some," the letter concludes, *^ that as 
England has other fisheries besides Newfound- 

> D« Circouit, iU. 3^. 


land, the may perhapa ejadeavour that the Abmiw 
ioana sliould partake in that of the Great Bank, 
in order to conciliate their affection, or procure 
tliem some compensation, or create a anbject of 
jealousy between them and us ; but it does not 
seem likely that she will act so contrary to her 
true interest ; and were she to do so, it will be 
better to have declared at an early period to the 
Americans, that their pretension is not well 
founded, and that his majesty does not mean to 
support it.** ^ Franklin doubted whether this let- 
ter reflected tlio opinions of the French ministry.* 
^ The channel ought to be sus|KH*ted,** he wrote 
to Liviugsitun. ^^ It may have received additions 
and altenitions; but supiMsiug it all genuine, 
the forward, mistaken seal of a secretary of 
k'gation should not be imputed to the king.** 
De Vergcnues vindieateil himself in similar 
terms : ^ The letter, by a forced interpretation, 
was designed to render us suspected in regard 
to the flnheries. In the first place, the opinion 
of M. de Marbois is not necessarily tluit of tlie 
king ; and in the next place, the views indicated 
in that despatch liave not been followed.*^* 
As a matter of fact this opinion of M. de Mar- 
bois was identical with that of the king, and it 

> Jay'a/a^,L-ltX>,401,4(U. 

* Vergvniet lo Liucme, Sept 7, 178S. 

190 JOBM J At. 

waa not followed because ciremnstanees made it 
impracticable. The authenticity of the letter 
was confessed by Marbois himself to Edward 
Bancroft, when they wcra returning on the same 
ship together after the peace,^ and subsequently 
to ^Ir. W, B. lAwrence. 

That America had no right to the fisheries 
after becoming independent of the crown of 
Great Britain had been the familiar theme of 
Gerard and Luzerne, and was stated and re- 
stated with almost wearisome iteration iif their 
correspondence. Luzerne's understanding about 
the matter is shown by a letter of August 15th 
to de Vergcnnes. lie reports that returning 
prisoners bring news that England fears that 
tlie ambition of France and Spain may put a 
stop to the negotiation, and is prepared to offer 
America independence on condition that she re- 
mains neutral during the rest of the war ; that 
several members of Congress assured him tliat, 
though ^' Spain and Holland might have sjiecial 
interests to discuss, it was not for the Ameri- 
cans to examine their nature and basis, but ... 
though the pretensions of the belligerent powers 
should be as exorbitant as England asserted, 
that the United States ought not to lay down 
their arms till we had procured to all our allies 
the satisfaction they might wish.'* ^^ I took this," 

' yjohn Adam»*B Works^ i. App. p. 074. 


eonlinnad the discreet Luzerne, '^ m being meant 
to show that Holbnd and Spain were boond in 
their turn to continue the war to procure the 
fishories for America. I replied that they could 
reckon on the moderation of the powers at war 
witli England/* ^ The opinions of Rayneval cer- 
tainly coincided singularly with those of Mar- 
bois. Fitzherbert, about this time, just before 
Marbois*s letter reached Jay, happened to ^ drop 
something " to M. de Rayneval about the Amer- 
ican claim to the fisheries. ^^Ile [Rayneval] 
signified to me/' Fitzherbert wrote to Grantham, 
*Mn pretty plain terms that nothing could be 
further from the wishes of this court than that 
the said claim should be admitted, and more- 
over that we, on our part, were not only bound 
in interest to reject it, but that we might do so 
consistently with the strictest principles of jus- 
tice." « 

On September 0th Jay heard that Rayneval 
had loft VcrHailles for England, traveling under 
an assumed name. Only a few days before 
ILiyneval had explained to Jay his intended ab- 
sence by saying that he was going into the coun- 
try for a few days. Knowing tlie confidence de 
Vergennes had in his secretary, and having con- 
clusive reasons now for distrusting the policy of 

' > Luieme to Vergennes. Aug. 15, 1783, Sterens MSS, 
* Fitzlierbert to Oroothjiin, Aug. 20, 1782, Sievens MSS. 

192 JOBN JAY. 

France, Jay assumed that the object of RayD«* 
val*8 misftiou was to suggest such a divbion of 
the Western Territories as would be satisfactory 
to Spain^ and a partition of the fisheries between 
Finance and England. The next day Jay decided 
to urge Yauglian to go to England to expi<ess the 
American view to Shelbume in opposition to 
Bayneval; for Vaughan was still in Paris as 
Shelburne*s unoflicial personal agent, and had 
full knowledge of all that had been passing. 
Vaughan at once consented, and wrote to Shel- 
burne asking him to concUulo nothing with Itay* 
neval till his own message had been heard, and 
on the 11th he too left Paris. ^^ It would have 
relieved me,'* Jay wrote to Livingston, ^^from 
much anxiety and uneasiness to have concerted 
all these steps with Dr. Franklin ; but on con- 
versing with him about M. KaynevaFs journey, 
he did not concur with me in sentiment res])eet* 
ing the object of it, but appeared to mo to have 
great confidence in the Count [Vergennes], and 
to be nmeh embarrassed and constrained by our 

The mission of Rayneval was primarily sug- 
gested by certain informal proposals which Ad- 
miral do Gi*asse, then a prisoner on ])arol, liud 
communicated to do Vergennes as from Lord 
Shelburne. Montmorin, to whom de Vergennes 
hud inclosed them with remarks indicating some 


donbtt of their authenticity, wrote that he and 
Florida Blanca were astounded at the English 
propositions, and that the king and ministry 
** approve of your determination, and thmk it 
suitable that some one should be sent to Ebgland 
to assure himself of the intentions of Lord Shel- 
bume and his colleagues.** ^ 

^* My instructions were as simple as they were 
laconic/* wrote Kayneval many years af terwanls. 
** They asked that I should demand the admis* 
sion or disavowal of the note communicated to 
M. de Grasse. The first article of the note con- 
cerned the independence of America. • • • Noth« 
ing was prescribed in relation to the other con- 
ditions to be made with the American commis- 
sioners.** * And he further said that when the 
English minister introduced other American 
questions, he referred to his ignorance and lack 
of instructions, and in what he did say strength- 
ened rather than weakened the demands of the 
Americans. One conference, with the arguments 
he used, Rayneval describes in the notes of his 
mission: ^^At last came the turn of America. 
My Lord Shelburne had warned me that they 
would have much difTicuIty with America about 
the boundaries as well as about the fishery of 

^ Montmorin to Vergennes, Au(^. 25, Sttven$ MSS, 
' lUynoval to Monro«, Nov. 14, 1705 ; Kivea, Madiwn^ U 
055, App. O. 

194 JOHN JAY. 

Newfoundland ; but he hoped the king would 
not support them in their demands. I answered 
tluit I bad no doubt of the eagerness of the king 
to do what depended on him to restrain the 
Americans within the limits of justice and rea- 
son. And my Lord wishing to know what I 
thought of their pretensions, I answered that I 
was ignorant of those eonecrning tlie fishery, but 
that, whatever they might b(% it seeuicd to me 
that there was a safe principle to follow in this 
matter, namely: that the fishery in tlio high sea 
is rrs nuliius^ and tliat tlio fishery along sliore 
belongs of right to the owners of the shctrcs, so 
far, at least, as there are no limitations by 
treaty. As to the extent of the boundaries, I 
siip]M>sci1 the Americans would tiike that in their 
charters, that is t4> say, they would wish to reach 
from the Ocean to the Pacific. My I^ord Shcl- 
burne treated the charters as absunl, and the 
discussion did not last longer because I did not 
wish either to sustain or deny the American pre- 
tension ; I only said that the English minister 
would find in the negotiations of 1754, relating 
txi the Ohio, the boundaries that England, then 
the Hovcrcign of the United Static thought right 
to assign them.** ^ This, perhaps, was the con- 
versation mentioned briefly but significantly by 
Lonl Edmotid Fitzmauricc, in his ^* Life of Shel- 

> I)« Cinourt, iii. 40. 


bunie.** ^ They then proceeded to speak about 
Amerioa. Here Kayneval played into the hands 
of the English ministers by expressing a strong 
opinion against the American claims to the New- 
foundland fishery, and to the Valley of the 
Mississippi and the Ohio. These opinions were 
carefully noted by Shelbume and Grantham.** ^ 
Almost simultaneously with Kayneval Vaughan 
arrived in London, instructed by Jay to im- 
press upon the ministry that, as every idea of . 
conquest had l>ocome absurd, nothing remained 
for Knj;;land luit to make friends with tlioso 
whom hIio could not subdue ; and that the way 
to do this was by liberally yielding every poiut 
in the ne^rotiation essential to the interest and 
happiness of Ameriea ; of which the first was that 
of treating on an equal footing. With independ- 
ence granted, too, America would bo at liberty 
to conclude |)cace so soon as France was satisfied, 
without regard to Spain. As to the terms of 
peace, admission to the fisheries was essential ; 
the charters proved the right of the Americans 
to extend to the Mississippi; and the [Ksace 
should be so free from seeds of distrust or jeal- 
ousy that Ameriea would find no need to form 
uHianccs witli other nations. Finally it was ne- 
cessary for ministers to take a decided and manly 

I D« Circourt, iii.'JtW}. 

' Jay to Iavin);»ti>n, Dipt, Corr,, vitt. 166. 

196 JOUS JAT. 

So effeetive was tliis reaaouing, that the real 
iDeaoing of the situation was perceived at once. 
Vaughan, as he said nearly fifty years after- 
wards, was asked but a siugle question: ^L. 
[Lansdownci for such at that time was Lord 
Shelbume^s title] only asked me, ^ Is the new 
Commission necessary ? * and when I answered 
Yes, it was instantly ordered, and I was desired 
to go back with it, which I did, carrying the 
messenger who had charge of it in my chaise. 
The grant of the Commission showed how things 
stood, and I departed joyfully.** ^ The feelings 
of the ministers are explained by FitzmauricCi 
in the ^^ Life of Shelburne.'* ^^ It became clear 
to the Cabinet,** he says,/^ that a profound feud 
had sprung up between the Americans and their 
European allies, and that all they had to do was 
to avail themselves of it. They at once decided 
to accept tlio American pro|)osition as to the 
terms of the commission to Oswald. Lord Ash« 
burton gave it as his opinion that it came within 
the terms of the Knabliiig Act. Tlie now com- 
mission was then nuule out at once and dis- 
patched to Paris by Vaughan."* Tliat A'^aughan's 
mission had effected a complete change of policy, 
that the signing the new commission was part of 

1 BeQJMniii Vaugluui to P«Ur A. Jay, Jan. 14, 1830 ; Jay, 
Addrtu btfort N, Y, UUt. Sor., p. 50. 
« FiUmaurice, Liff of Shelburne, iii. 2^Yl. 


the new plan, not a continuation of the old, as is 
supposed bjr some writers, are facts shown con- 
clusively by Sli«lbumo*s letter to Oswald, an- 
nounoing it: *^ Having said and done everything 
which has been desii*od, there is nothing for me 
to trouble you with except to add that we h*4ve 
put the greatest confidence, I believe, ever placed 
in man, in tlie American Commissioners. It is 
now to be seen how far they or America are to 
be depended u|x>n. I will not detain you by 
enumerating the difficulties which have occurred. 
There never was a greater risk known ; I hope 
the public will be the gainer by it, else our heads 
must answer for it, and deservedly." ^ 

To persons not versed in public affairs the 
wording of a commission may seem a matter 
of minor importance. What difference could it 
make whether Oswald was empowered to treat 
with the colonics as such, or with the United 
States, so long as iiide|)endcnce was to be 
gnuiti'd absolutely by the first clause of the 
treaty ? The differeuco was, tliat in the first 
case indoiK'ndence still remained something to 
be bargained for; also, most imiK>rtant of all, 
that the States were technically colonies of 
Great Britain till the treaty was signed, and 
could claim the fisheries, or the AVestern Terri- 

> Shelbunio to Oswald, S«pU 23, 1782, Fitzniaarice, Lift of 
Slulbumt, iu. 2U7, 20S. 

198 - JOHN JAY. 

tory M tuch, ouly by virtiie of their clmrterfi, or 
by established eustom. But, as de Vergennes 
repeatedly stated, these elaiius oould not be log« 
ieally sustained by the oolouies as against Eng* 
land, since their rights were derived througli 
their connection with the crown. The ^^ United 
States,** however, treating for }>eace with (Jrcat 
liritain, were in an entirely dilTereut |>osition. 
The two powers were on an equal footing ; the 
only question was how to make a permanent 
jieaee between them. The coUmial claims, well 
founded or not, became unimportant ; instead of 
a treaty of mora or less grudging concession 
from a su|>erior power to its revolted colonies, 
the treaty became one of territorial partition 
between equals seeking a }K'rmanent basis of 
conciliation. Indeed, the preliminary grant of 
independence may be said to have carried with 
it a grant of the AVestern Territory. 

The mission of Vaughan nmrked also a com* 
plete change of |)olicy on the part of the Amer- 
icans. Heretofore their attitude was that of sus- 
picion towards England and reliance on Franco ; 
now mutual confidence was established between 
the English ministry and the American commis- 
sioners, and both ])arties were anxious to arrange 
siitisfactory terms of )>eace as siieedily as possi- 
ble, without further reference to France or her 
ally, Spain. The bold, prompt decision of Jay, 


reached without cunsuUiug even liU iiugle col- 
league in Paris, growing out of his clear percep> 
tion of the facts as they really were, by his 
rej(H)ting all compromises, though thereby the 
negotiations with France aiul Spain should be 
brought to a 8to|i, liad at last resulted in plao* 
ing the American negotiations in a condition in 
which a satisfactory conclusion on all points 
was now little more than a matter of detail to 
be settled by a few frank conversations. 

'' On tlie 27th of September/* wrote Jay to 
Livingston, ^ Mr. Yauglian returned here from 
England with the courier that brought Mr. Os» 
wald*s new commission, and very happy were 
we to see it. . • • Mr. Vaughan greatly merits 
our acknowledgments."* ^ Tlie day before, in 
the anteroom of de Vergennos at Versailles, 
Aranda had made a final attempt to induce Jay 
to discuss a treaty with Spain without a com* 
nmnieation of his powers, as Spain had not ac- 
knowledged the inde|)endcnce of the United 
States; and Jay had declared that both the 
terms of his commission and the dignity of 
America forbade his treating on any other than 
an equal footing? De Vergennes, happening 
to interrupt them, again op|K>sed Jay's argu« 
ment, but to no pur|K>8e. On the same day 

< Ibid,, TuL 2XrJ. 

200 JOBS JAY. 

Jay met Bayiioval, who sjioke iii favor of bit 
coticUiat&ry lint^ and by his oonversation gavo 
rUe to tbo suspicion that Spain had been re* 
oently confirmed in her claims by French ad- 
vice.^ This was the hist attempt at negotiation 
with Spain in Europe. From first to last she 
had refused to acknowledge the independence of 
the United States, and had pursued a policy 
which, even in tlie eyes of do Vcrgennes, was 
ungenerous and unwisely selfish. 

Under the new commission progress was rapid, 
though some delay was caused by the illness of 
Frauklin. **Upou my saying,*' wrote Oswald 
on October 2d, ^^ how hai*d it was that France 
should pretend to saddh) us with nil their pri- 
vate engagements with Spain, he [Juy] replied : 
* We will allow no such thing. For we shall 
say to France: The agreement we made with 
you we shall faithfully perform ; but if you have 
entered into any separate measures with other 
people not included in that agreement, and will 
load the negotiation with their demands, we 
shall give ourselves no concern about them.* ** ' 
Accordingly on October 5th, without consulting 
de Vergennes, Jay handed to Oswald a plan of 
a treaty, to the terms of which three days later 
Oswald assented, and which he transmitted at 

I Jttj, Tke Feace Neffotiationt, p. 127, n. 2. 
* Ovwiaa to TuwiMhviul, Out 2, Stevtng MUS. 


oDOO to Englaucl. This plan proposed forUio 
Dortlioasiern bouiulary the rivers St John and 
the Madawaska ; tlie ^^ northwest angle *' of Nova 
Sootia, so-called, to be detertninedv and the line 
drawn thonce according to the treaty of 17G3. 
This and the otiier boundaries were settled in 
the first article, Oswald not ^asserting the 
cbims of the English Crown over the ungranted 
domains, deeming that no real distinction woidd 
be drawn between them and the other sovereign 
rights, which wei'e necessarily to be ceded.** ^ 
Tliese other articles provided for a ])eri)etual 
peace, secured the right to the fisheries, inoliid« 
ing a liberty to dry fish on the sliorcs of New* 
foundlauil, and established the navigation of tho 
Mississippi, to which Jay added a clause for 
reciprocal freedom of commerce.^ No provision 
was made for debts contracted prior to 1775, 
nor for compensation to the royalists, both 
Franklin and Jay refusing to yield in either re- 
si)ect, while Oswald was authorized not to in- 
sist on them.^ *' Mr. Jay said to me last night,'* 
wrote Oswald on the 8th, ^* once we have signed 
this treaty we shall have no more to do but to 
look on and see what people are about here. 
They will not like to find we are so far ad« 

> Fitzmaurice, lAfe q/ Shelburntf iii. 209. 

« /6;j.; Difd, Corr., x. 8S, UJ. 

* FiUiiuiurMM», Lift o/ShiiburM, iU. S09, 281. 

202 JOUN JAY. 

vaneed.*' ^ And to a desira to keep tlie negotia* 
tion leparate and conclude it before France was 
ready, Oswald attributed his own seeming haste 
in agreeing to Jay*s terms. ^ I knew/' he wrote 
in explanation, ^^ it hath always been the wish 
of the ministry of this court that the Ameri- 
cans should go no faster in tlieir treaty than 
they do themselves, and, indeed, that the main 
question regarding America should not be too 
quickly determined. On this account I thought 
it best to assent to the propositions as offered, 
in this general way.*' ' *^ I look ujmu the trea- 
ty,** he said, " as now closed.** 

But meantime news was received in England 
of the great victory at GibralUir, when Lord 
Howe succeeded in relieving the fortress in spite 
of the combined fleets of France and Spain, 
after a siege of thi-ee years. The ministry at 
once determined to resist the denmnds which de 
Vergennes had formulated on October Gth, and 
to try to modify the American demands as well, 
considering that the feud between the allies was 
already established, and that in no case would 
the Americans continue the war for purely 
Spanish pur|)oses. To strengthen Oswald and 
relieve him of the responsibility of making new 
demands, Henry Strachey, at one time secretary 

1 OtwalJ to Slielbume, Oct. 8, 1782, Stevtna MSS, 
* Oswald tu Ttfwiiah«ud, Oct 11, 1782, Stevens MSS. 

THE N^QQTiATiQNa, 208 

to Clive and to liord Howe*t oommission, aiM} 
now Under Seorctary for Foreign AffairSi was 
ient to hU assistance. IIo was instructed to 
urge the French boundary of Canada, and the 
claims of England to the lands between the Mis- 
sissippi and the western boundaries of the States, 
with a view to securing compensation for the 
refugees : ^ to confine the Americans to a drift 
fisihery, without the right of drying fish, and to 
omit the clause respecting freedom of commerce. 
Above all, the claims of the refugees were to be 
secured, and the payment of tlie debts prior to 
1775 ; ^^ honest debts must be honestly paid and 
in honest money.** 

While Strachey was on his way, armed with 
books and pajHsrs relating to the nortliern bound- 
aries, Jay met Kayneval at dinner at Dr. Frank- 
lin's, and the secretary again contested the 
American claims to the baeklands and to the 
fisheries. But fortunately the man who had 
the most accurate knowledge of the fishery 
claims and of the boundary of Massachusetts, 
John Adams, was also hurrying to Paris at Jay*s 
summons, and arrived there on October 26th. 

Adams at once called on an old friend and 
couiitr}'^man, Ridley, who, as Adams noted in his 
diary, was ^^fuU of Jay*8 firmness and inde- 

^ Fitimaurice. Lift of ShelburM, iU. 280, 281, 282 ; SheU 
bum* to Oswald, Oct 21, 1782. 

204 JOHN JAY. 

pendeiiGe; Jay has taken upon himself to act 
without asking . advice, or even eoinmunicating 
with the Count de Vergennes, and this even in 
opposition to an instruction/' which, interjected 
Adams, ** has never yet been communicated to 
me. • • . Jay declares roundly, that he will never 
set his hand to a bad peace. Congress may ap- 
point another, but he will make a good peace or 
none."^ Adams expected to call on Franklin 
on Sunday, but heard that ho had ^^ broke up 
the practice of inviting everybody to dine with 
him *' that day ^ at Passy ; that he is getting 
better ; the gout left liim weak ; but he begins 
to sit at table." » Qn Monday, October 28th, 
Jay wrote: ^*Mr. Adams was with me three 
hours this morning. I mentioned to him the 
progress and present stite of our negotiation 
with Britain, my conjectures of the views of 
France and Spain, and the part which it ap- 
peared to me advisable for us to act. He con« 
curred with me in sentiment on all these 
points.'* ^ But Jay does not mention hero or 
elsewhere the discomfort and distress which did 
not escape the keen eyes of his kind-hearted 
visitor. ** I found Jay," Adams wrote, " in very 
delicate health, in the midst of gi*eat affairs, and 

1 John AdanuU W<rk$, ui. 209, 300. 

« Ibid,, 29tt. 

* Jay's Jag, L 152. 


without a elerk. He told me ho had leareely 
strength to draw up a statement of the negotia> 
tion hitherto, but that he must do it for Con- 
gress. I offered him the assistance that Mr. 
Thaxter eould afford him in copying, which he 
accepted/* ^ In their opinions on the state of 
European affairs at the moment, they were in 
perfect harmony : ^^ Nothing that has happened 
since the beginning of the controversy in 1761," 
were Adams*s strong words, ^^has ever struck 
me more forcibly or affected me more intimately 
than that entire coincidence of , principle and 
opinion between him and me.'* 

Franklin's private views were still widely di* 
vergent from those of his colleagues. In July 
of the following year ho made the definite state- 
ment to Livingston : ^* With respect to myself, 
neither the letter from M. Marbois, handed in 
through the British negotiators (a suspicious 
channel), nor the conversation concerning the 
fishery, the boundaries, tlie royalists, etc., re- 
commending moderation in our demands, are of 
weight sufficient in my mind to fix an opinion 
that this court wished to restrain us in obtaining 
any degree of advantage we could fairly prevail 
on our enemies to accord ; " ' and long after the 

> AdMum to JonathM Jacluon, Not. 17, 1782, John Ad» 
amii'9 Warktt is. 514. 
s July 23, 1783, Dipl. Corr., it. 138, 139. 

206 JOBHJAt. 

preltminary aUtidea were signed, he was fond of 
saying that M. de Vergennes had never deceived 
him. Yet he apparently did not resent Jay*s 
independent action in sending Vaughan to Shel- 
bume, though he was now a man of seventy-six, 
while Jay was only thirty^seven years of age. 
The friendship between the two was never 
strained, far less broken; throughout the fol- 
lowing spring and suiuiucr they lived together 
at Passy in the most affectionate intimacy, and 
within a year Franklin appointed Jay one of his 
executors.^ Never a wonl was said by cither 
reflecting on the character or the wisdom of the 
other. It is, then, strange that the biographers 
and admirers of Franklin should have thought 
fit, without regard to facts, to disparage the ser* 
vices of the man whom Franklin himself ever 
loved and esteemed. Mr. Sparks took this tone, 
remarking : ^^ In vain did Dr. Franklin essay to 
remove these groundless impressions from the 
mind of Mr. Jay ; ** ^ the groundless impressioi^s 
being that France and Spain were opposed to 
the American claims. Elsewhere referring to 
Jay*s refusal to accept do Vergennes* advice to 
treat under the designation of ^* colonies,*' the 
same writer speaks of Franklin groaning *^ dur- 
ing the month wasted vpon thU nonsense.** 

I Sept. 11. 1783. 

> Sparks, Franklin, p. 182. 


More recently Mr. Henry Cabot Lodge has me- 
lerted that ** the negotiations seemed almost con* 
eluded, when Jay appeared on the scene at 
Paris.'* ' While Jay, 'MUliking and mistmsU 
ing Spain, and believing Franklin too ready to 
yield to France, checked the negotiation, which 
was prospering so well with Shelburne.*' * And 
finally one of the last of Franklin's biographers, 
the Rev. Edward E. Ilale, refers to the word- 
ing of Oswald's commission as ^^ a poiat which 
bo [Franklin] rightly thought of minor import- 
ance," and then, s])caking of Vaughau's mission, 
says: *Mt seems also ini|)ossiblo to decide just 
what credit should be assigned to Mr. Jay. It 
must be acknowleilgcd that he acted in a man- 
ner contrary to his instructions. It must also 
be acknowledged, that matters turned out very 
much according to his mind. But that settles 
nothing. The question must be, * Did Vaughan's 
mission decide Shelburne to accede to the desires 
of America ? ' And this can never be certainly 
known." * 

The conduct of Franklin during the negotia- 
tions can surely be explained without any dis- 
paragement of his colleagues. The Adams fam- 
ily, in throe successive generations, have offered 

' Lodge, i/i«l. of the English Colonitt in America, 51S. 

« Ibid, 

* Hale. Franklin in France, ii. 146. 

208 JOBS J At. 

three liioh explanations, each of them adequate. 
If that of John Aclamn is rejeoted, ai the per> 
baps hasty and exaggerated expression of that 
blunt, eccentric man, and that of John Quincj 
Adams as also colored possibly by unconscious 
prejudice though stated with classic elegance, 
one may accept without offense the explanation 
so fairly offered by Charles Francis Adams: 
that Franklin was, in the first place, minister to 
the court of France, and that ho was only sub- 
sequently and secondarily a negotiator of the 
peace, and that in his primary capacity, with the 
grave rcM|)ontiibilities it imposed, he could nei- 
ther with propriety, nor with advantage to this 
country, exhibit the boldness of Jay, wlto acted 
simply as a negotiator witli England unham|)ered 
by the obligation to the court of France, which 
affected Franklin. 

But whatever his private opinions may have 
l)een, they were not allowed by Franklin to in- 
fluence his public conduct, and from this time 
to the conclusion of the treaty he acted in ))er- 
feet harmony with his colleagues* On the 29th 
Oswald introduced Strachey, who had arrived 
the day before, to Jay, and then, after being 
joined by Adams, all went out to Dr. Franklin's, 
at Passy, and at botli those places Adams made 
his memorable suggestion that the questions of 
payment of the debts and of compensating the 

TifE MSaOTUTiONM. 209 

ToriM ware dUtinet.^ That evening, apparently, 
Adamt spent with Franklin. ** I told him, with* 
out reserve,** wrote Adams, ^ my opinion of the 
policy of this court, and of the principle, wisdom, 
and firmness with which Mr. Jay had conducted 
the negotiation in bis sickness and my absence, 
and that I was determined to support Mr. Jay 
to the utmost of my power in the pursuit of the 
same system. The Doctor heard me patiently, 
but said nothing. At the first conference we 
had afterwards with Mr. Oswald, in considering 
one point and another, Dr. Franklin turned to 
Mr. Jay and said, * I am of your opinion, and 
will go on with these gentlemcu in the business 
without consulting this court. * ** ' This may 
have been at tlie first regular meeting of the com* 
missioners, on October 30th, to examine books 
and pa)xsrs. It was doubtless on some earlier 
and more private occasion that the characteris- 
tic incident occurred, related by Trescott,' and 
quoted by Parton : * " * Would you break your 
instructions?* Franklin asked liim one day. 
*Yes,* replied Jay, taking his pipe from his 
mouth, *as I break this pipe;* and so saying 
Jay threw the fragments into the fire.'* The 
significance of tliis public acknowledgment by 

1 JohM Adam'$ irorU iii. 330. 
s Dijtiomacp of the (/. .S.. i. 121. 
• Parton, Li/f 0^ Franklin, ii 488. 

210 JOHN JAY, 

Franklin mutt not be overlookedi for thereby 
he became fully entitled to the credit* or die* 
credit, of breaking the instruction to act con* 
etantly by the advice of France^ wliich credit, 
or discredit, is usually reserved only for Jay 
and Adams. 

Adams's happy suggestion to separate the 
claims of the Tories from those of the British 
creditors struck *^&Ir. Strachey with peculiar 
pleasure. I saw it instantly smiling in every 
line of his face,*' wrote Adams in his diary. 
Franklin and Jay agreed to the payment of all 
just debts; and Straehcy at once wrote homo 
that he thought something might be gained.^ 
On. the SOth and 31st the northeastern bound* 
ary was dlHcussed. The Knglisli at first wanted 
the whole of Muiue, or ut Icsist the Peuobseot 
and Kennebec, but Adams convinced even tliat 
^^most eager, earnest, |)ointed spirit,'* as he 
called Strachey, by exhibiting official doeu* 
ments of former royal governors of ]Massachu« 
setts. The boumhiry of Maine was by a com- 
promise settled at the St. Croix, by which, as 
was afterward decided by the commissioners 
. appointed under Jay's treaty of 1794, was 
meant tlie Schoodic; and thence a choice was 
given for the northern boundary of the States 
between two lines, one along the forty-fifth 
> Octobtr 20, 1762. 


ptrallel, the other through the eentre of the 
luket to the souroe of the MitgiwippL The 
next daj, November 2d, the fisheries were die* 
cttsfledf and the Americans surrendered the right 
of drying fish, on condition that Nova Scotia 
should be substituted for Newfoundland; but 
Jaj and Adams both objected strongly to the 
English notion of separating the English and 
American fisheries. On November 8d compen^ 
sation to the royalists was urged by Strachey, 
but to no purpose. The greater part of No- 
vember 4th was spent by Adams and Jay at 
OswaUrs« with Strachey; ^^from 11 to 3, in 
drawing up the articles respecting debts, and 
Tories, and fi.shery;** the last article Adams 
drafted himself; and a suggestion was ao* 
cepted by Oswald that the claims of the royal- 
ists should be recommended by Congress to the 
States.^ In the evening, till near cloven o*elock. 
Jay and Adams were at Oswald's agdin with 
Strachey, ^^ as artful and insinuating a man as 
they could send/* said Adams ;^ and they agrceil 
to clauses concerning the debts and the confis- 
cation of lands belonging to Tories. The same 
day Strachey made a final appeal by letter for 
^^stipulations for the restitution, compensation, 
and amnesty,** to which the commissioners re- 

* John Adami'$ Wwkt, Ui. 3l)2. 
> Ibid., iii. :t03. 


plied : ** We tbould be aorry if the absolute im- 
poMibility of our eomplyiug further with your 
proposition should induce Great Britain to con- 
tinue the war for the sake of tliose who caused 
and prolonged it.'* On November 5th Strachey 
returned to England, taking with him a copy 
of the articles with a marked map; a copy 
which Jay com|)ared scrupulously with the 
original draft, allowing no alteration. *^ I did 
not exi>ect to find him so uncommonly stiff 
about the matter,** ^ complained Oswald ; while 
Strachey wrote: "You will see by the treaty 
all that could be obtained.** Jay was particu- 
larly anxious that this treaty should be ao- 
eepted. *^ He hoped,** wrote Oswald to Town- 
shend, on November 6th, ^' we would not let this 
op|K)rtunity slip, but resolve speedily to wind 
up the long dispute, so that we might become 
again as one people ; ** and he suggested that the 
American negotiators were now in a better sit- 
uation than when their instructions were given, 
and that if the business wore reopened they 
might claim compenmition for llritish depreda- 

During Strachey*s absence the commissioners 
received further light on the policy of de Ver- 
gcnnes, when Adams visited him for the first 
time on the 10th, and informed him that they 

1 Oitwald to Stnuihey. Nov. 8, 17S2. 


and the Eoglbh differed on two pwitt, the 
Tories, and the Penobscot De Vergennes and 
Rayneval both advocated the caose of the To- 
ries, with the object, as Adams suggetfied to 
Oswald's secretary, Whitefoord, of keeping np 
in America ^^a French party and an English 
party." ^ On the 15th, he discussed the ques- 
tion of the Tories again with Oswald, with the 
result that the next day Oswald urged through 
Vaughan that Jay should go to England, as he 
thought Jay could convince the ministry. But 
Jay replied that if he should go it must be either 
*^ with or without the knowledge and advice of 
this court, and, in either case, it would give rise 
to jealousies : he would not go.'* ^ Adams, how- 
ever, felt confident, ^^ because,** as he wrote to 
Living^itoii, ^^ I find Mr. Jay precisely in thee 
ssinie sentiments, after all the observations and 
reflections he has made in Europe, and Dr. 
Franklin, at last, at least appears to coincide 
with us. We are all three perfectly united in 
tlio affair of the Tories and of Sagadahoc, the 
only points in which the Ih-itinh miuister pre- 
tends to ditler from us. ** ' A few days later he 
discussed with Franklin the French policy of 
trying to deprive the United States of the fish- 

> John AdamgU Worki, iU. 307. 

< /W., iU. Si:i. 

• Nov. 11, /6i</., Tiii. 9. 

214 joas J AT. 

eriet and the MiMiiwippi, and Franklin agreed 
that the French were blind to their true inter- 
ests. ^ We must be firm and steady and should 
do yerj well/' said Adams: and Franklin re- 
plied, he ^^ believed we should do very well and 
carry the points.**^ The day before, de Ver- 
gennes had made another argument in behalf of 
the Tories, and three days later Lafayette gave 
Jay a message from Aranda tliat, ^^ as the lands 
upon the Mississippi were not yet determined 
whether they were to belong to England or 
Spain, he could nut yet settle that matter.'* ^ 

In the mean time Vaughuu had followed 
Straclicy and Kayneval to England, to explain 

. the American ]K)sition, and Oswald had written 
to Townsltcud, reporting a conversation with 

«Jay and Adams in which they said ^^that if 
peace with Great Britain was not to be had on 
any other terms than their agreeing to these 
provisions,*' relating to the Tories, ^ the war 
must go on, although it should be for seven 
years to come, and tliat neither they nor the 
Congress had any [lower in the matter." ^ But 
Shelburne was determined to make a final at- 
tempt to save the royalists, and drew up fresh 
instructions securing them indemnity ; he also 

> Jckn AdamU IIVU iU. 321. 
« Nut. n Ibid., iii. a:i7. 
• Nov. 10. 1762. 


•ou^t pAjuMot of debts aooroed suiMequentlj 
to 1776, and liiniUtion of tlie right of fishing 
to. a farther distance from shore.^ To eoeree 
the commissioners he suggested that their eausa 
would not gain, by being deferred till Parlia- 
ment should meet, on December 5th« the date to 
which the prorogation had been extended. Fita- 
herbert also, who was added to the commission^ 
was directed ^ to avail himself of France so far 
as he may judge it prudent from circumstances.** 
But tlie instnictions really meant much less than 
tlioy seemeil to; Sliolburno couhl not hoiie to 
ruuiuin in (tower if the uugotiution failed. ^^ It 
is our determination,** he h;ul written to Fitzlier- 
bert in October, ^^ that it shall be either war or 
ix)ace before we meet the Parliament ; ** ^ and 
accordingly Oswald was authorized to sign when- 
ever Fitzherbert, Strachey, and himself thought 
it expedient 

^^ The Tories stick ; Strachey is coming again, 
and may be expected to-<lay,'* said Oswald to 
Jay, as he read his despatches on the 22d.' On 
the 24th Strachey arrived in Paris, and the day 
following, all tlie commissioners met at Oswald's 
loilgings. Stnichey announced that the cabinet 
unanimously condemned the article respecting 

' Pitzmaurieo, Li/p of ^Ac/6Mrii«, iii. 208. 

« IbiJ., iii. '287. 

• Johm AJamii 11 VX«, ill 324. 

21G JOBN JAf. 

theTorief. *' The affair of the fisheries, too, was 
somewhat altered/* wrote Adams in his diary, 
^ They eould not admit us to dry on the coasts 
of Nova Scotia, nor to Aidi within throe leagues 
of the coast, nor within fifteen leagues of the 
coast of Cape Breton. The boundary they did 
not approve : they thought it too extended, too 
vast a country, but they would not make a diffi- 
culty. • • • I could not help observing that the 
ideas respecting the fisheries appeared to me to 
come piping hot from Versailles."* "The res- 
titution of the property of the loyalists,** was, 
however, '* the grand point on which a final set> 
tlement depended. Jay asked if this was the 
ultimatum of the ministry, and Strachey an- 
swered reluctantly ' No,' and admitted that Os- 
wald had absolute authority to conclude and 
sign.** Adams then, by ducumeuts, disproved 
the exclusive rights of the French to any part of 
the fishery ; he argued the deiiendcnce of New 
England on the fishery, and remarked that " if 
a germ of war was left anywhere *' it would 
most probably be in that article. The proposi- 
tion concerning the royalists was unanimously 
rejected, Franklin being especially emphatic. 
For the next four days, tlie discussion continued. 
On the 28th Adams drew up an article on the 
fisliery, and the same day Laurens arrived for 
1 John AdaM$*$ UVib«, iU. 827, 328. 


the first time, and inserted, ou tiie day of sign- 
iug, the ohiuse, which afterwards caused so much 
controversy, prohibiting the British troops from 
^ carrying away any negroes or other property 
of the inliabitants.** On the 29th Strachey 
endeavored to have the word ^^ liberty '* substi- 
tuted for ^ right *' in the fishery clause, but was 
boldly answered by Adams. Fitzherbert pro- 
posed sending a courier to London for advice 
before signing, but was met by the suggestion 
that, if so, the courier should take also a memo- 
rial for damages done by British troops. After 
consulting together, the English commissioners 
agreed to accept the American terms about the 
fisheries, and their ultimatum : tliat there should 
be no further persecution of the royalists, and 
that Congress sliould recommend the various 
state legislatures to restore confiscated estates 
of Cuglihh citizens and of Americans who luul 
not taken up arms.^ Notice of tlicir agreement 
was then communicated to de Vergennes.' ^ Are 
we to be hanged or applauded," wrote Strachey 
tluit evening, ^^ for thus rescuing you from the 
American war ? If this is not as good a peace 
as was ezi>ected, I am confident it is the best 
that could have been made." On November 
80th, the treaties were signed, sealed, and deliv- 

A Banoioft, z. 580. 

< FronklifCt Worki. U. 488. 

218 JOBH JAY, 

ered, and' all went out to Passy to dine with 
Dr. Franklin.^ It was merely provisional arti- 
cles that were signed as yet, but they were to 
constitute the treaty of peace between Great 
Britain and the United States so soon as a defi- 
nite treaty should be concluded between Great 
Britain and France. The government was to 
be bound only by wliat Oswald should sign ; 
and the commissioners were prompt to seize the 
happy moment. *^ We must have signed,** said 
Adams, *'or lost the peace. The peace de- 
pended on a day. If we had not signed, the 
Ministry would have changed.** ^ 

Relying perhaps on the instructions of Con- 
gress, and underestimating the ability of the 
American commissioners, de Vergennes had 
taken little pains to inform himself of the pro- 
gress of the negotiations. '^ It behooves us 
to leave them to their illusions,*' he wrote to 
Luzerne, in October, " to do everything we can 
to make them fancy that we share them, and 
unostentatiously to defeat any attempts to which 
these illusions may carry them if our coojiera- 
tion is required.** . • . They ^^ have all the pre- 
sumption of ignorance, but there is reason to 
expect that exjxirience will erelong enlighten. 

> Suach«y to Nopean, Not. 20, 1782, SUv€u$ MSS, 
* J(Jm Adanu't Witrk*, viu. 86. 


And improYd them.*'' On November 2Sd lie 
wrote again that the king was not obliged ^to 
prolong the war in order to sustain the ambi* 
tious pretensions which the United States may 
form in reference to the fishery or the extent of 
boundaries."' When the provisional articles 
were shown to him, de Vergcnnes wrote to Kay* 
neval that the English had rather bought a 
peace tlian made one, and tliat their concessions 
exceeded anything he had believed possible;' 
and liayneval replied that the treaty seemed to 
him like a dream. At the time no offense was 
expressed by the French court, not a word of 
reproach but only of congratulation by de Ver- 
gennes. It was not till more than a fortnight 
afterwards that a rumor, prevalent in England, 
that the preliminary articles were a final settle- 
ment, and a consequent fear that in such case 
the United States might join England against 
France, moved do Vergcnnes to write his sharp 
letter of December 15th to Franklin,^ and urge 
Luzerne to inform Congress of the irregular ac- 
tion of the couuuissioDers. But Franklin*s as- 
tute, diplomatic reply, pleading guilty of ^^ neg- 
lecting a ))oint of bieust^unce,** and hoping tliat, 

> Out 14, 1783, Stevent MSS. 

* V«f8«iiiieB to Luierne, IXi Ciroowt, ill. 291. 

* Due. 4, 1782, Sttvetu MSS. 

* S|>ark«, Franklin, U. 44U. 


to avoid gratifying the English^ "^ this little mis- 
understanding • • • will be kept a secret," to> 
gather with the passing of the tewporarj alarm, 
induced Vergennes to countermand his letter to 
Luzerne ; and in token of his good will he prom- 
ised Franklin a new loan of six million livres. 
It is certainly unnecessary to search for a cause 
of offense where de Vergennes so obviously 
found none. 

January 20, 1783, the commissioners pub- 
lished a formal declaration that so long as peace 
was not concluded between France and Eng- 
land tlie preliminary articles did not diange the 
relations between England and the United 
States. The same day preliminary articles of 
peace were signed at Paris between Great Brit- 
ain and France, and Great Britain and Spain, 
and a cessation of arms was proclaimed between 
Great Britain and the United States. From 
that day the provisional articles took effect. 

The opposition to the terms of jieace in Par- 
liament drove Shelburne from office, and in the 
interim of a month, which took place between 
his resignation and the accession •to power of 
the coalition ministry on April 2d, under the 
Duke of Portland, Oswald was recalled and re- 
placed by David Hartley, with instructions to 
secure amendments to the Provisional Articles 
and to negotiate a commei*cial treaty. Hartley 


proposed articlei in favor of the lojalist land- 
owners, and the Americans suggcfsted stipuhu 
tions for the payment of prisoners' expenses; 
while Franklin drafted an article protecting 
non-combatants in tlio event of a future war. 
But none of these were adopted. In commerce 
the Americans demanded perfect reciprocity, 
while Hartley was instructed by Fox ^ to insist 
on the admission of British goods into America 
while excluding American goods from British 
ports, especially from the West Indies. De 
Vergennes, wrote Fitzherbcrt, April 18th, de- 
sired to attract American trade to France, and 
Franklin concurred with him, while Adams and 
Jay would give the preference to England. ** I 
ho|)e,** wrote Jay in ^larch, ^ we sliall soon be in 
the full possession of our country and of peace ; 
and as we exj^ect to have no further cause of quar- 
rel with Great Britain, we can have no induce- 
ment to wish or to do her injury ; on tlie con- 
trary, we may become as sensible to her future 
good offices, as we have been to her former evil 
ones. A little good natured wisdom often does 
more in politics than much 8lipi)cry craft.** ' If 
Shelbumo had continued in office, a commercial 
treaty might have been arranged, but with his 

> April 10, 17K% Jay, Vtace Xtgotiathm, p. 103. 

> To Uoiijamin Vauglmii, March *i8, 178^, Jay^a Jay, tt. 

222 JOBN JAT. 

fall a reaction of feeling set in agabat America, 
and the niniatrtet that followed one anotkeri 
with shifting personalities and indefinite policies, 
thwarted the efforts of the commissioners. Fox 
doubted the autliority of Congress, and by a 
royal proclamation of July 2d tlie West India 
carrying trade was confined to British ships. 
Finally, on July 27th, the commissioners de- 
cided to drop all commercial, articles in our 
definitive treaty, and leave everything of that 
kind to a future si)ecial treaty. On September 
Sd, with the exception of the so-called separate 
article concerning the boundaries of Florida, 
which the events of war had made unnecessary, 
the provisional Articles were atloptetl as the 
final treaty between England and America, and 
wero signed at Paris in the morning. A special 
courier conveyed the news to de Vergennes at 
Versailles, whereuiK>n the definitive treaties be- 
tween France and Spain and Great Britain were 
signed in the presence of the ambassadors of 
the mediating imperial courts, an empty compli- 
ment in wliieh England refused to participate. 

By the treaty the United States gained more 
than Congress had ventured to proix>se or even 
hope for. ^* The boundaries must have caused 
astonishment in America,** do Vergennes had 
written in July to Luzerne. *^ No one can have 
flattered himself that the English ministers 


would go bejoml the head waters of the riven 
falling into the Atlantic.*'^ Territory was ao- 
quired to the extent of more tliau twice what 
was proi)09ed by France and Spain to England 
in the summer of 1782. In spite of the opppsi- 
tion of the powerful ally, on whose good offices . 
CongreHs relied to obtain any satisfactory terms 
at allt the right to the fisheries, the navigation 
of the Mississippi, and an unimpeded opening to 
the Pacific were secured. To Jay, more than 
to any other of the commissioners, bin contem* 
poraries awarded the credit for this diplomatic 
triumph. *'The New England people,*' wrote 
Hamilton, '^talk of making you an annual finh 
oiTering as an ackuowlcdgmcnt of your exertions 
for the participation of tlie fisheries.** ^^The 
prluci|ml merit of the negotiation was Mr. Jay*s,** 
said John Adams, whose praise was seldom ex- 
cessive : ^ and at the time he wrote: ^ A man and 
his ofllce were never better united tluin Mr. Jay 
and the commission for peace. Had he been 
detained in Madrid, as I was in Holland, and 
all left to Franklin as was wished, all would 
have been lost" ^ Fitzherbert, when Lord St. 
Helens, in 1838, added his testimony from the 

1 July 21, 17Ba, Sievtfu MSS, 

* John AdAnu to John Jay, Not. 24, 1800, Jay*! Jajr, L 418. 

* John Adama to Jonathan Jackaon, Not. 17, 1782, Johm 
Adam»'t Works, U. 516. 

224 J08S JAY. 

Eiiglitb point of view, that ^it was not only 
chiefly but solely through his [Jay*s] means 
that the negotiations of that period* between 
England and tiio Unitctl States, were brought 
to a suooessiful conchiHion/V ^ Nor is it without 
significance that do Vcrgenues should have coin* 
plained of '^ cliaraeters so little manageable an 
those of Jay and Adams." ' Fui-ther, it is worth 
noting that, though Jay had successfully opjiosed 
the policy of Franee, a Frenchman could appre« 
ciate his motives: ^* I do not credit him with 
gratitude to us/* wrote Luzerne to dc Vcrgcnncs, 
^ but he is incapable of preferring England to 
us ; he glories in being inde|)cndcnt, and his de- 
Hire to prove his attnehment to his country some- 
times makes him unjust* But wo need not fear 
from him any premeditated act prejudicial to 
the alliance."* 

In the autumn Mr. Jay*s family took a house 
at Chaillot, near Passy, on the rcKid to Paris, and 
there Mrs. Jay and the children sinnit several 
months, while Jay himself went to England to 
try the waters of Il:ith for his health, Imving 
first obtained from Congress s]>ecial leave of ab- 
sence. His wife wrote: ^* Everybody that sees 
the house is surprised it has remained so long 

1 Ix>rd St lUUtm to Ju«l|;« WiUiiim J»y, July 21), 183S. 

* Verponiioa to Lnzurno, Dihs. 24« HKi, Steven* MSi9. 

* Luzenie to Vcrj^ennet, Sept. 20, 178<% Slerem MSS, 


nnoooapied. It b lo gmy, ao livelj, iluit I mm 
■ore you *U be pleaiecl. Yesterday the wiodowi 
were open in my eabinet while I wm dressing, 
nnd it wm even then too wnrni. Dr. Franklin 
and his grandsons, and Mr. and Mrs. Coxe, and 
tlie Miss Walpoles drank tea with me, likewise, 
this evening, and they all approve of yonr choice. 
As the sky is very clear and the moon shines 
very bright, wo were tempted to walk from the 
saloon u)K)n the terrace, and wliik the comimuy 
were admiring the situation, my imagination was 
retracing tlie pleasing evenings that you and I 
have passed togetlier in contcmpkiting the mild 
and gentle rays of the mo<m.** ^ Dr. Franklin 
was a near neighbor, and sometimes enjoyed an 
old fricnd*s privilege of making fun of pretty 
^Irs. Jay*s devotion to her husband. *^Dn 
Franklin cliarges me to present you his oompli- 
meats** she says, ^^ whenever I write to you, but 
forbidH my telling you how nmch (Kiins he takes 
to excite my jealousy at your stay. The other 
evening, at Passy, he produced several pieces 
of steel ; the one he supposed you, at Chaillot, 
which being placed near another piece, which 
was to represent me, it was attracted by that and 
pn'sently united ; but when drawn off from me, 
and near anotlier piece, which the Doctor called 
an Engruh lady, behold, the same effect ! The 

» From Mrs. Jay. Nor, 6, 17S:J. 

226 JOBH JAY. 

eomjMUiy enjoyed it muoh, and urged me to re* 
Tenge; but aU oould not shake my faith in my 
beloved friend.** ^ ** It givea me jdeasure,** was 
Jay's reply from Bath, ^* to hear that the Doctor 
is in such good spirits. Though his magnets 
love society, they are nevertheless true to the 
pole, and in that I hoiie to resemble them.*** 

While Mrs. Jay was reading ** £velina|** which 
Miss Walpole lent to her, watching the ascent 
of a ** globe of Montgulfier^s,** exchanging re- 
partees with Dr. Franklin ami having the chil- 
dren inoculated, Jay was at Bath, having stayed 
only a few days in Loudon, and making but one 
short trip to Bristol to attend to a bequest in 
the will of his coutiin Peloquin. In London he 
found many Americans, and was most scrupu- 
lous in adjusting his behavior to them accord- 
ing to their patriotism. ^Mlaving been very 
well assured that the conduct of Judge Ludlow, 
Mr. WatU, II. White, and P. v. Schaaek had 
been perfectly unexceptionable,** he wrote to 
Egbert Benson, **and that they had not asso- 
ciated with tlie abominable Tory Club in Lon- 
don (which iilled the public pai)ers with tlio 
most infamous lies against us), I received and 
returned their visits. Yadill also made me a 

I From Mn. Jay, Nov. 18, 1783, Quttiu of Amtrican Society ^ 
p. 67. 
^ Ibid. 


▼Isiti bol I n6?6r returned it Reporte of the 
omeltiee practioed by my old friend Jaa. De 
Laneey of W. phester News also kept os wun* 
der. I wish theae reports may pro?e as ground* 
leM as he says they are. He was an honest 
friend to me, and I sincerely lament the eircum* 
stances which prevent my taking him by the 
hand as cordially as ever. I hare not seen any 
of Gen. De Lanoey*s family. J. once met Billy 
Bayaud on the street, but we passed each other 
as perfect strangers.'* ^ At Bath he saw much 
of the well "known Countess of Huntington. 
^She inquii-ed about you in a very friendly ^ 
manner, and is an enthusiast for America," he 
tells his wife. *^ Her heart is much set on the 
conversion of our Indians; she will find it a 
difficult task, but her wishes are laudable, 
though perhaps too sanguine.'** The waters, 
aided by rhubarb and much walking, cured his 
dysentery and sore throat, and he returned to 
Paris in January. 

Ho refused repeated offers of ah appointment 
to London or Paris, urging the propriety of 
making Adams the first minister from America 
to England, and declaring his intention to l)e- 
conio and remain a private citizen and a lawyer. 
After a long and unnecessary delay caused by 

> To E. Benaon, Dee. \\ nS3, Joy MSS, 
* Dec. 5, 1783, Jay MSS, 

228 Joan J AT. 

dilatorinett of his aeoretaiy Carmiohad in Mt- 
tlbg hU aoooQoU with Barclay^ the agent of 
Congress, he at length left Paris with his family 
on May 16th, for Dover, where he took ship for 
New York. ** Your public and private oliarao- 
ter,** wrote David Hartley in a farewell letter, 
^ has impressed me with unalterable esteem for 
you as a public and private friend ; • • • if I 
should not have the good fortune to see you 
again, I hope you will always think of me as 
eternally and unalterably attached to the prin* 
ciples of renewing and establishing the most 
intimate connection of amity and alliance be- 
twecn our two countries.*' John Adams wrote 
to Barclay : •* Our worthy friend, Mr. Jay, re- 
turns to his country like a bee to his hive, with 
both legs loaded, with merit and honor." ^ 
1 To Thoi. BarcUy, May 24, 17&4, UiH. Hag., 1800, p. 35a. 




Ov July 24, 1784« Jay was odm again in 
New York, after an aWnoe from the eountiy of 
•ome five years* lie was welcomed by the eity 
fathers with an address and the freedom of the 
otty in a gold box, ** as a pledge of our affection 
and of our sincere wishes for your happiness." 
He had intended to ^ become a simple citisen/* 
as he wrote from France to Van Schaack, and 
to take up again the practice of his profession ; 
but on landing he found that Congress had two 
months before appointed him Secretary for For> 
eign Affairs. This office had Wen established 
in 1781, and had been occupied by Chancellor 
Livingston till June, 1783, when he resigned, 
according to Luzerne,^ on account of the insuf* 
iieient salary. It then remained vacant till the 
following May, when Congress, hearing from 
Franklin of Jay*s expected return, elected him 
the same day on the motion of Elbridge Gerry. 
For some mouths Jay withheld his acceptance, 
> LuMriM to Vttrgenaet, May 19, 1782, SUotnt MSS. 

230 JOHN JAY. 

lui be was unwillbg, for reasons of private busi- 
aessi to be detained at Trenton, wbere Congress 
bad been in session and was to reassemble in 
September, and also because be was reluctant 
to assume sueb responsibility witliout tbe privi- 
lege of selecting his own clerks, a power which 
Congress had heretofore reserved to itself. 
Meantime he was elected a delegate to Congress 
by the state legislature ; but on December 2l8t| 
Congress having decided to adjourn to New 
York, and yieldiug in the matter of the api)oint- 
ments of his subordinates, Jay' accepted the seo- 
retaryship, and resigned his seat on the floor. 

Almost immediately afterwards he was tempted 
to become a candidate for governor ; but he re- 
fused to desert the federal service, saying : ** A 
servant should not leave a good old master for 
the sake of a little more pay or a prettier liv- 
ery.** To the more conservative Whigs, who 
were soon to be known as Federalists, the offi- 
cial conduct of Governor Cliuton liad become 
intensely objectionable, partly on account of his 
appointments to office of personal adherents, 
partly because he was the most vehement par- 
tisan of those harsh laws against the royalists, 
which Jay and Hamilton regarded as both un- 
just and impolitic. General Schuyler, who with 
Livingston was also named as an anti- Clin- 
ton candidate, urged Jay again and again, with 


MQguIar i^K - effaoemeat, to reoonuder hb re- 
fusalt sinoo lie was **the only nuui capable of 
stemining the torrent of otiI, whteb with aooeU 
erating rapidity was rolling to the goal of de- 
baaement** But to Jay the oecasion did not 
teem sufficiently critical, and even this fervent 
and florid api)eal was in vain. 

While Livingston had held the place, the 
Secretary for Foreign Affairs had been little 
more than a mere clerk of Congress, and Jay 
now applied himself to the reorganization of the 
department, having the papers filed for the first 
time in a methodical manner, and asserting and 
maintaining on every occasion the digni^ of the 
office. He protested earnestly and successfully 
against the impropriety of permitting foreign 
correspondence pertaining to his department to 
be communicated to Congress before being sub> 
mitted to bis scrutiny.^ He made frequent use 
of his privilege to appear on the floor of Con* 
gress, and to s^ak on questions of foreign 
policy ; and Congress constantly asked for and 
deferred to his advice. In a short time the se- 
cretaryship thus became the first office in conse- 
quence under the Confederation ; for through it 
was transacted the correspondence between the 
Federal Government and the several States as 
well as that with foreign nations. ^^ The polit- 

> MudiwnU HVXf, L 142. 

282 JOHN J AT. 

ical importanoe of Mr. Jay increaies daily/' 
wrote Otio to do Vorgennes in January, 1786. 
^ Congress seems to me to be guided only by his 
direotions, and it is as difficult to obtain any- 
thing without the eouperation of that minister 
as to bring about the rejection of a measure pro- 
posed by him." ^ Yet all this time the accom- 
modations provided for the foreign office were 
miserably insufficient. ** As late as 1788 there 
were, • • • besides the secretary and his assist- 
ants, only two clerks, or just enough, as may be 
inferred from a report of this date, for one of 
them to be in the office while the other went to 
luncheon* The quarters of the office, the report 
tells us, consisted of only two rooms, one of 
them being used as a parlor, and the other for 
the workshop.*' ' 

In the summer of 1785, the court of Spain 
appointed practically a resident minister to the 
United States, though under the modest title 
only of encargado de negocios^ Don Diego de 
Gardoqui, with a view to settle the controversy 
about the navigation of the Mississippi which 
had been guaranteed to the United States by the 
treaty of peace ; also to arrange a commercial 
treaty. The negotiations were at once intrusted 

1 Bancroft, ConaH, Iliai., pp. 479, 480. 

* J. P. JanMson, Eua^g on th§ Cotut. Hirt. of tht U, S , p, 


to Jay (wliom it had been preYtoudy decided to 
■end to Spain for that purpose)) with full power ; 
which, however, was limited later by the instruo> 
tton "^ to stipulate the right of the United Sutet 
to Uieir territorial bounds and the free navigation 
of the Mississippi • • • as established in their 
treaties with Great Britain." ^ In 1783 Count 
Florida Blanca, in conversation with Lafayette, 
had seemed to yield the Si^anish claims to the 
Western Territory, to which, indeed, Spain had 
^o valid title ; but Gardoqui now asserted that 
this understanding was a mistake. ^ In a word,'* 
wrote Jay to Lafayette, ^ they do not mean to 
be restricted to the limits established between 
Britain and us.*' ' Gardoqui was equally inflex- 
ible against yielding the free navigation of the 
MississippL But he was willing to conclude a 
commercial treaty on liberal terms, a matter of 
first importance to tlie Northern States, where, 
esjiecially in New England, grave oommercial 
distress existed, for which such a treaty was 
thought to be the only remedy. 

Jay was finally convinced that the crisis 
would justify a surrender of the naYtgation for 
a period of twenty-five or thirty years. August 
S, 1786, in a speech before Congress, he stated 
his reasons concisely: first, because no treaty 

» 5^«f««J«vMi2s,uL5SS. 

« Jm» is, i;^ Jay • jWf . i. ler. 

284 JOHN JAT. 

ean be made onleBs that quettion ia settled ; 
secondly, because the navigation of the Missis- 
sippi is not now important or likely to be so for 
many years ; tbirdlyy because, as we are not pre- 
pared for war, Spain can exclude tis from that 
navigation indeJfinitely. ^ Why, therefore,*' he 
oondmled, *^ should we not (for a valuable con- 
sideration, too) consent to forbear to use what 
we know is not in our power to use ? ** ^ These 
reasons were logical but inconclusive, since they 
disregarded the one decisive fact that the South* 
west was becoming rapidly )K)pulatcd by colo- 
nists who strongly insisted on the free naviga- 
tion of tlieir great river. ^^The act which 
abandons it,'* wrote Jefferson, *^is an act of 
separation between the eastern and the western 
country.** ' Jay, doubtless, was not unmindful 
of the instructions, which Congi*ess had sent to 
him in Spain only four years before, on the 
motion of the Southern delegates: to resign 
absolutely all claim to the Mississippi south of 
the thirty-first parallel. It was, indeed, due 
wholly to the sagacity which had been then 
shown by hiui that the Uniti^d States still ]k>s- 
scsH4*il any claims to the river to arbitrate. 
Now, however, the jiolitical situation had 
changed completely with the nmrch of events ; 

> Stcrtt JournaU, iv. 45, {>3. 

< To MaduioB, Jul. 30. 17c»7, Jefft^ton^s Workt, U. 87. 


**vliile CoDgreM was disousting the points cf 
the treaty a naticm was created/* > and a nation 
which could not be disregarded. Accordingly^ 
on August 28th, every Southern delegate save 
one voted to revoke the secretary's commission 
to negotiate. The motion was defeated, and the 
next day, by vote of seven States to five. Jay 
was again given unlimited power. *^It rests 
wholly with Jay," wrote Madison to Randolph, 
^hovr far he will proceed with Gardoqui, and 
how far he will communicate with Congress.** ^ 

The next month Jay reported that he had 
arranged* an article saving the right of naviga- 
tion, while suspending its use for the period of 
the treaty, but that the negotiation was ^ dila^ 
tory, unpleasant, and unpromising.**' Finally 
Congress revoked Jay*s powers, in view of the 
change of government about to take place by 
reason of the adoption of the new Constitution. 
Jay*s suggestion, discussed as it was only in 
secret session, and thought by the Soutliern 
statesmen to sauriflce the rights of the South 
to tlie convenience of the North, was the chief 
cause of tlie opposition of Kortli Carolina and 
Virginia to the ratiUoation of the Cimstitution ; 
and that it was an error of judgment was frankly 

1 Lyman, Diptomatg of the U. H., I 28.'S. 

• Maivh 11, 17vS7, MaJinm Paptn, U. 623. 

• Jay to Gardoqtu, Got. 17. 17SS, Jay USS. 

280 JOtlN JAI. 

admitted by Jay himielf in 1788A But he waa 
actuated by national, not leotional motives, in 
advising wlutt he knew to be a obpioe of evils ; 
and in the words of one of his severest critics : 
^In the game of applied politics, often a cal- 
culus of probabilities among contingent events 
and imponderable forces, a statesman may some- 
times show more wisdom in being fortuitously 
wrong as tlie event turns out, than in being for- 
tuitously right according to a drift and |)08ture 
of events which could not be foreseen.*' ' 

For some years the claims of Beaumarchais 
to compensation, now urged by the ;igents of 
Franco, were debuted in Cungri'ss, a discussion 
which was unfortunately dcHtiued to continue a 
long while yet before the end could be achieved. 
Jay had little to do with the matter, but his 
views were positive. ** There can be,*' he wrote 
to Jefferson in Paris, ^*but little clashing of 
interests between us and France. • . • These 
engagements, however, give me much concern. 
Every principle of honour, justice, and interest 
calls uiM>n us for good faith and punctuality, 
and yet we are uuliappily so circumstanced, that 
the moneys necessary for the purpose are not 
provided.** Indeed, though his political oppo- 
nents found it convenient to denounce Jay as 

> Stfrtt Journals, iv. 4:>2. 

• JauMt C. Wellliiff. Tht Laml PylUia of tkt U. S,, p. 19. 


n&f riendly to Fiunoe, hia official oonduot regard- 
ing her was that of a friend. In reporting on 
the complaints by French merchants of biws of 
Massachusetts and New Hampshire discriminat- 
ing against French vessels, be urged that Con* 
gross should recommend the repeal of such acts. 
**Tbe French/* he said, *^have extended liberty 
of commerce to the United States beyond what 
they were bound to do by the treaty, and it 
certainly would not be kind to repay their 
friendly relaxation*' by unnecessary restric- 
tions.^ ** But the commerce of the country," ha 
added, ** must suffer from partial and discordant 
regulations • • • until it is under one direction." 
Since 1782, a convoution defining the rij^hts 
and duties of consuls had also been in negotia- 
tion with France, but it came to nothing, though 
Jay clearly saw its necessity. ^The foreign 
consuls here," he said, *^ have no other authority 
than what they may derive from the laws of 
nations, and the Acts of particular States. The 
propriety of these Acts appears to be question- 
able, especially as national objects should be 
regidatcd by national laws.'* 

Jay was also anxious to effect a commercial 
treaty with France on the basis of perfect reci- 
procity. Iksidcs urging his views on Jefferson, 
the minister to France, ho wrote to Lafayette 
» Dipt. Con., 1783-80, 1. 170. 

288 JOBJi JAT. 

very freely: ^Without any attempt to dress my 
ideas d la nmh de Parii — have we any reason 
to flatter ourselves tliat you will encourage us 
to drink your wines by ])onnitting your islands 
to eat our brooil ? . • • Comniorciul privileges 
granted to us by France at this season of Ilrit- 
iflh ill humour would bo imrtieularly gratefuly 
and afford conclusive evidence against its being 
the plan of the two kingdoms to restrict our 
trade to the LilamU/*^ *^ Toleration in com* 
merce," he wrote a few years later to the same 
friend of America^ ^^ like toleration in religioni 
gains ground, it is true ; but I am not sanguine 
that either will soon take place to their due 
extent**' To Jay^ indeeil, the l)enc(tt of free 
trade seemed axiomatic. ^* How freely would it 
redound to the happiness of all civilized ])eople,** 
he exclaimed in a letter to Lord Lansilowne, 
•* were they to treat each other like follow-<!iti- 
sensl Each nation governing itself as it 
pleases, but each admitting others to a perfect 
freedom of commerce. The blessings resulting 
from the climate and local advantages of one 
country would tlien become common to all, and 
the bounties of nature and conveniences of art 
paHS from nation to nation without being im- 
])eded by the selfish mono))olie8 and restrictions 

> To Mar<ittia d« U Fajeiie, Jan. 10, 17^C^ Ja^ MSS, 
< To MartiuU d« la Fayette, April '^i\, 17^^, Jay MSS. 


with wliieh nanow policy oppoaet Uie exteiuiaa 
of dtvine beneToIence.** ' 

In the autumn of 1785 the Algorinet deehred 
wari OFi ratlieri resumed their piraoiei, on the 
ooiuuitiun of tribute. Tlio war Jay did not deem 
a great evil^ but rather liopod tliat it might bo> 
come ^* a numory for seamen, and lay the founda- 
tion of a rospeetable navy." * He recommended 
at once, but in vain, the organization of a board 
of admiralty, the building of five forty-ton ships, 
and the arming of American traders in the Med« 
iterranean at public expense. In 1787 he wrote 
to Lafayette : '* The great question, I think, ie 
whether we shall wage war or pay tribute ? I 
for my part prefer war."* But he only suc- 
ceeded in ])ersuading Congress to allow Jeffer- 
son, in 1788, to provide for the subsistence of 
American captives at Algiers out of the fund 
set apart for their reileniption.* 

Much complaint and public clamor arose from 
the retention by Groat Britain of the north- 
western iK>sts, in violation of the seventh article 
of the treaty of peace. But when John Adams, 
the American minister at London, formally pro- 
tested, tlio English government retorted that 

> April ^, 1780, Jay MS3. 

* To tha Prfsiaent off Con{ri«M, Oct 13, 1785. 

» Nov. 10, 1787. Jay MSS, 

« To the rivudeiit of Congrcw, Sept. 12, 17SA, Jay MSS. 

240 joas JAi. 

the fourth article, securing e?ery facility for the 
colleetioa of debts due to Engliahmeni was vio^ 
lated with equal openness by the United States, 
The corresiwndence was referred to Jay. ** The 
result of my inquiries into tlie conduct of tlie 
States relative to the treaty,** he wrote to Adams, 
^^ is, tliat there has not been a single day since it 
took effect on which it lias not been violated in 
America by one or other of the States ; *' ^ and 
thoHc conclusions were, with a candor rare in a 
public ofiiccr, onibodied with appropriate recom- 
mendations in his rc|)ort to Congress on Octo- 
ber 13th. *^ The amount of the report, which is 
an able one/* said Madison in a letter to Jeffer- 
son, ^ is, that the treaty should be put in force 
as a law, and the ex{)osition of it left, like that 
of other laws, to the ordinary tribunals.** ^ Con- 
gress passed resolutions accoi*dingly, and ordered 
them transmitted to the several States, together 
with a circular letter written by Jay, urging the 
re|)eal of all laws in contravention of the treaty ; 
but the States as usual paid little heed. 

Besides these more iui|)ortaut transactions 
there was much to occupy the time of the Secre- 
tary for Foreign Affairs. ThcTc were re]x>rts 
to make on individual claims against the govern- 
ment urged by M. Otto, the representative of 

I To John Adama, Nov. 1. 1766, Jay*s Jay, ii. 101. 
* MadUon Vaptrt, iL 2m. 


Frtnoe, or by Mr. Tem^de, who had been re- 
eeived as British eonsul, on Jay*t advioe» as a 
matter of comity. Ou the recommendation of 
Jay a consul was ap|K>iuted at Canton,^ with 
which port a promising trade was already be- 
gun. For reasons that do not appear, but ap- 
parently on Jay's suggestion that there should 
be some official supervisicm of the mails, Con- 
gress by a secret act, September 7, 1785, author- 
ized him in his discretion to o|)cn letters in the 
])OMt-oflice ;^ a singular grant of arbitrary power 
which he is said never to have exercised. 

Then, as now, heads of departments were be- 
set by applicants for office or favor; but in 
granting tliese Jay was unusually punctilious, 
lie refused curtly his brother Frederick's re- 
quest to ask Gardoqui to recommend him as a 
reputable merchant to sell a damaged cargo. 
He even declined to serve John Adams, by reo- 
ominending Adams's son-in-law, Colonel Smith, 
to succeed liim at London. ^* In other coun- 
tries," wiis Jay's answer, ^* it is not unusual to 
consult • • • the opinion of the Secretary for 
Foreign Affairs rcsjiecting the officers to be ap- 
pointed in that department. . . • But the case 
is different licre. Although Congress commonly 
refer the propriety of measures to my considera- 

> January, 1780. 

3 From SecreUrjr Thompaoii, Sept 8, 1785, Ja$ MSS. 

242 JOHN JAT. 

tion, yet tliey unifonnly forbear to oonanilt me 
about tbo perions to be appointed to any place 
or office however important • • • These oonsid* 
erations have led me to make a rule to keep 
within the limits of my department, and not to 
interfere or to endeavour to influence any elec- 
tions or appointments in Congress." ^ 

Jay had otlier business, not connected with 
the secretaryship. In 1785 he wa> appointed 
by the State of New York one of its agents to 
determine its controversy with Massachusetts 
concerning boundaries ; but be resigned early 
the next year. When a committee was ap- 
pointed by Congress on a plan for the govern- 
ment of future territories, he was requested to 
attend and advise. ^^Sliall the government,'* 
he wrote to James Monroe, *^ be upon colonial 
principles, under a governor, council, and judges 
of the United States, • • . and then ailmitted to 
a vote in Congress with the common right of 
the other States ; or shall they be left to them- 
selves until that event ? " ^ 

Under an act of New York for the gradual 
manumission of slaves, a society was formed for 
promoting it and protecting such as were freed. 
In 178G Jay was appointed by the society ono 
of the trustees for i*eceiving donations, and two 

> To Col. W. S. Smith, July 30, 1787, Joy USS. 
< Apnl 20, 1780, Ja$ MSS. 


jMurt later wm •leoted to its ptetidenoj wUeh 
be retained tillt being ehief jostieet be tbongbt 
proper to reaig^. 

Always a devout Episcopalian, be was a dele- 
gate from New York to the General Convention 
of the Churchf wbicb met at Pbiladelphia in 
June, 1786. There be drafted the letter sent to 
the English bishops, requesting ordination for 
the American candidates, while defending the 
alterations made in the liturgy. On its dissolu* 
tion the Convention honored him with a special 
vote of thanks.^ 

The Secretary for Foreign Affairs was ex* 
peoted to perform certain social duties. On 
returning from Europe he took a house in New 
York for a year, and began building one for 
biinisclf at No. 8 Broadway, which was finished 
the following spring. Here was naturally the 
centre of official entertainment so long as New 
York remained the capital. In Mrs. Jay*s 
«' Dinner and Supper List for 1787 and 1788,** 
appear the names of most of the well-known 
colonial families, and of the most noted states- 
men who were brought to New York by the 
Congress under the Confederation and the first 
Congress under the Constitution. *^Mrs. Jay 
gives a dinner almost every week," wrote Mrs. 
Smith to her mother, Mrs. John Adams, ^^be- 
» Jay MSS. 

244 JOHN JAY. 

sides one to the eorp$ diplomatique on Tnesday 
evening.** ^ On May 20, 1788, she wrote again : 
^ Yesteitlay we dined at Mrs. Jay's, in company 
with the whole corps diplomatique. l^Ir. Jay is 
a most pleasing man, plain in his manners, but 
kind, affectionate, and attentive ; benevolence is 
stamped on every feature. Mrs. Jay dresses 
showily, but is very pleasing on a first acquaint* 
ance. The dinner was a la Fran^ise^ and ex- 
hibited more European taste than I expected to 
Bnd.'*^ It was doubtless in a sini])ler style tliat 
^Ir. and Mrs. Adams were eutcrtaiucd there in 
the spring of 1789, for ^Irs. Adams, to judge 
from her letter thanking Mrs. Jay for her hospi- 
tality, was treated quite as one of the family. 
^Our mush and lemon brandy were of great 
service to us, and we never failed to toast the 
donor, whilst our hearts were warmed by the 
recollection. I hope, my dear Madam, that your 
health is better than when I left you, and this 
not for your sake only, but for that of your 
worthy partner, who I am sure sympathized so 
much with you, that he never really breakfasted 
the whole time I was with you.*' ' 

By the year 1788 the wheels of government 
had fairly stopped, the Confederation was little 

. ^ Quetm q/ American SocUijf, p, 76. 

* Ibid. 

* Feb. 1770, Jay MSS. 


mora thao a name, and the dutiea o( the Seort- 
tary for Foreign Affaire ooneieted mainly in proT* 
ing to Congrese the futility or absurdity of any 
action. For this reason the negotiations with 
Spiun were summarily closed; the treaty with 
England was incapable of enforcement; and 
when a loan was proposed, necessary as money 
was, he felt obliged to say: ^* Congress can make 
no certain dependence on the States for any spe- 
cific sums, to be required and paid at any given 
periods, and consequently is not in a capacity 
safely to pledge iU honor and faith as a bor« 
rower.*' ^ It was his own ezi)erience which he 
embodied in his analysis of the weakness of the 
government in his *^ Address to the People of the 
State." ^^Tlioy [the CongressJ, may make war, 
but are not empowered to raise men or money to 
carry it on. They may make peace, but without 
power to see the terms of it observed. They may 
form alliances, but without ability to comply with 
the stipulations on their part. They may enter 
into treaties of commerce, but without power to 
enforce them at home or abroad. They may bor* 
row money, but without having the means of re> 
payment They may partly regulate commerce, 
but without authority to enforce their ordi- 
nances. They may ap|)oint ministers and other 
officers of trust, but without power to try or 
> Lamb, If III. of .Yew York, U. 202. 

246 J9B9 JAY. 

pnniili them for niademeftiion. Th^ maj re- 
floWe, but cannot ezeeute, eitber with despatoh 
or with secrecy. In short, they may consult, 
and deliberate, and recommend, and make re- 
quisitions, and they who please may regard 

The national life was not secured by the 
treaty of peace, which only gave an opportunity 
for it; and the time between 1783 and the 
adoption of the Constitution of 1788 was,, per- 
hapsy ^ the most critical period of the country's 
history.'* ' The people were restless under the 
depression of trade and the depreciated cur« 
rency ; rioting threatened in many States, and in 
Iklassachusetts became rebellion. *^ I am uneasy 
and apprehensive,*' wrote Jay to Washington, 
^more so tlian during the war. Then we had a 
fixed object, and though the means and time of 
obtaining it were often problematical, yet I did 
firmly believe that we should ultimately succeed, 
because I did firmly believe that justice was 
with us." * The liberty so dearly won seemed 
about to be lost forever in the imminent anar* 
chy. **If faction should long bear down law 
and government," were his gloomy words to 

> Addn$8, p. e ; Fgcd, PamphUu on the Comtitutiou^ Brook- 
Ijn, 1888, p. e7. 
< TroMot, Diplomaiie HiBtor^t p. 9. 
• JwM 27, 1780. M«nLaU, Xi> of WoMhittgtoii, U. 107. 


AdAmti ^^tyranny may raise its head^ and tha 
inora sober part of the people may even think 
of a king.*' » 

The reasons for the failure of the CSonfeder- 
ation were obvious, and Jay laid his finger on 
those that were fundamental. ** To Test legis- 
lative, judicial, and executive powers in one and 
the same body of men, and that, too, in a body 
daily changing its members, can never be wise. 
In my opinion those three great departments of 
sovereignty should be forever separated, and so 
distributed as to serve as checks on each other." * 
This principle became the oorner-stone of the 
federal Constitution. Government by com* 
mittees was another chief cause of executive 
procrastination and inconsistency. ** In my opin- 
ion," Jay wrote to M. Grand in Paris, ^ one 
sui)erintendent or commissioner of the treasury 
is preferable to any greater number of them; 
indeed, I would rather have each department 
under the direction of one able man than of 
twenty able ones ; '* * and modem publicists have 
reached the same oonclusion. Finally, coercive 
power in the federal government was essential ; 
^^ a mere government of reason and persuasion,'* 

A To John AiUmi, May, 1780. 

* To Thos. Jeffenon, Att|r. 18. 1780, J«j't Ja$, L 256. 

• April 28, 1785. 

248 joas J AT. 

w$Mj%y% unwiUing testioumy, ^ is little adapted 
to the aotual state of human nature/' ^ 

Tlie remedy lay in securing a more centraltxed 
form of goverument« acting on the |)eople di- 
rectly and not merely through the States. Jay 
was in this sense a Federalist from the begin- 
ning ; a strong federal union he considered the 
real aim and spirit of the Kcvolution ; what was 
new was rather the doctrine of extreme State 
Rights of the so-called anti-Federalists. ^* It 
has, until lately, been a received and uncontra- 
dicted opinion/* he stated in the ^^ Federalist,'* 
^Hbat the proH|)erity of the ))eople of America 
de))ended on their continuing Hnnly united ; and 
the wishes, prayers, and efTorts of our best citi- 
zens have been constantly directed to that ob- 
ject. But politicians now apjiear who insist that 
this opinion is erroneous, and that instead of 
looking for safety and happiness in union, we 
ought to seek it in the division of the States 
into distinct sovereignties. However extraordi- 
nary this new doctrine may seem, it nevertheless 
has its advocates."' Even from France Jay 
had urged the necessity of centralization : ^^ I am 
perfei'tly convinced that no time is to be lost 
in raising and maintaining a national spirit in 
America. Power to govern the confederacy as 

> To Thai. JufTernon, April 24, 1787. 


io all general purpoBts should be granted and 
exereieedy ^ In hit geal for nationaliiy he was 
alnioiit extreme. ** It is my first wiili,** he wrote« 
May 10, 1785, to John Lowell, ''to see the 
United States assume and merit the character 
of one great nation, whose territory is divided 
into different States merely' for more convenient 
government and tlie more easy and prompt ad* 
ministration of ju&tieei just as our several States 
are diviiled into counties and towusiiips for the 
like pur|K>8es.** ' ''1 am convinced/' he wrote 
to John Adams in 178G, 'Uliat a national gov- 
ernment as strong as may be compatible with 
liberty is necessary to give us national security 
or respectability." * 

When, thei'cfore, in 1787, the question was 
put, '' What is to be done? *' and an answer was 
demanded. Jay could write to Wasliington with 
some definitcuoss. To increase the power of 
Congress would be ineffectual, for the- same rea- 
sons tliat always make a large conuuittoe a dila- 
tory and inconsistent executive. '' Let Congress 
leginlato, let others execute, let others judge. 
Shall wo have a king? Not in my opinion, 
while other exjiedients remain untriiHl. Might 
we not have a governor general, limited in his 

> To Qonvemettr MorrU, Sept. 24, 17S3, Jfty*i Jojr, ii. 132. 
s Jay*t Jay, i. ItKK 
• ibid.. May 4, i. 249. 

250 JOBS JAT. 

prarogatiTM and duration? Migbt not CSon- 
groM b« divided into an upper and lower houtOi 
the former appointed for life, the latter annu* 
ally, and let the govemor*general (to preserve 
the balanoe)| with the advice of a council formed, 
for that only purpose, of the great judicial offi« 
cers, have a negative on their acts ? • . • What 
powers should be grantcil to the government, so 
constituted? • • • I think the more, the iH^ttor ; 
the States retaining only so much as may bo 
necessary for domestic pur])08c>s, and all their 
principal officers, civil and military, being com- 
missioned and removable by tlie national govern- 
ment." » 

The convention which met at Annapolis in 
the autumn of 1780, to frame a uniform sys- 
tem of commercial regulations, dissolved without 
other result than recommending a convention of 
delegates from the several States to revise the 
Articles of Confederation. Such a convention 
Jay thought of doubtful constitutionality, as the 
legislatures from which the delegates were to 
derive their authority were themselves not au- 
thorized to alter con8titutions. He also feared 
the ciTects of delay, in case their report was to 
bo purely recommendatory, ino|)erative till rati* 
(led by the people. Instead, he suggestoil that 
Congress should recommend the election of state 

' Ufn Jay, I. M, 255. 


oonvtntioDft ^with the tolo and express power 
of appointing deputies to a general eonventton,*' 
whose oondttsions should have the force of kw. 
By this scheme^ it has been thought, the bitter 
partisan dissensions that attended the adoption 
of the Constitution might have been avoided ; ^ 
but it is doubtfid whether the same struggle 
would not have taken place o^er the election of 
the delegates, and whether many States might 
not have rufuMetl on such conditions to elect any 
delegates at all.' 

Of the Constitutional Convention, which was 
elected on the recommendation of Congress ^*to 
establish a firm national government,*' and which 
mot at Phi]uiIol|)liia in May, 1787, Jay was not 
a member; his api)ointmcnt was urged by Ham- 
ilton, was carried in the Assembly, but was de- 
feated in the Senate on the ground only of his 
well-known ultra-federal opinions. Of the three 
delegates from New York, two left the conven- 
tion, one of them, Lansing, declaring that the 
legislature would never have sent him had they 
8up|>osed its powers extended ^^ to the formation 
of a national government, to the extinguidlunent 
of their indopondeney,*' • 

Jay, however, was not idle in the cause of fed- 

> J«7*i Ja^, I 255. 

• J. A. StttYent, Mag. Am, iliKory, Joly 1S78, p. S94. 

• ElUott, Jkbattt, I 141. 

252 JOBS JAY. 

eralism. Between Oetober, 1787| and June, 
1788, the ^'Federalist'* was published serially 
in the New York journals, with the object of 
recommending the cardinal priDciples of the new 
form of government ; and '^ no constitution,** ac- 
cording to Chancellor Kent, ''ever received a 
more masterly and successful vindication." ^ " It 
was undertaken last fall,'* wrote ^ladison to Jef- 
ferson, August 10, 1788, " by Jay, Hamilton, 
and myself. The proposal came from the two 
former. The execution was thrown, by the sick- 
ness of Jay, mostly on the two others." ^ Jay 
was the author of the second, third, fourth, fifth, 
and sixty -third numbers. The first series of 
papers was a careful but concise argument to 
prove that a national government was essential 
to avert '^ clangers from foi*cign foi*ce and influ- 
ence. For all general jmrjioses we have always 
been one people ; as a nation we have maile 
peace and war, and formed alliances and com- 
pacts with foreign states. The first and every 
succeeding Congress were agreed that the pros- 
perity of America dei)ended on its union. Why 
should it be otherwise now ? ** ' 

The States bordering on Spanish and British 
territory ''under the impulse of sudden irrita- 

> Cammtntarif, L 241. 

* Jay*t secoiul l«lt«r to Dftwtoii, p. 21 

« Fidrraliti, No. 2. 


tiona, and a quick senM of apparent interest or 
injury* will be most likely by direct violence to 
excite war with those nations ; and nothing can 
so eCFectually obviate that danger as a national 
government, whose wisclom and prudence will 
not be diminished by tlie passions which actuate 
the parties immediately interesteil.*' ^ But what- 
ever our situation, whether united or split into 
a number of confederacies, foreign nations will 
know it and act accordingly. Independent and 
probably discordant republics, *^ one inclining to 
Britain, another to France, and a third to Spain, 
and perhaps ])layed oif against each other by the 
three,** wciuKl fall an easy prey to foreign inva- 
sion or enenmehmont. ^* How soon would dear* 
bought experience proclaim, that when a people 
or family so divide, it never fails to be against 
themselves.** In war, what armies could they 
raise or pay, and how? ^^ Who shall settle terms 
of peace? And in case of disputes, what umpire 
shall decide between them, and compel acqui« 
escence?*' By a national union unreasonable 
causes of war will be less likely to arise ; just 
causes will seldom be incurred ; and it will se- 
cure the safety of the States ^^by placing them 
in a situation not to invite hostility.** With 
France and Great Britain as our rivals in the 
fisheries and commerce, with Spain excluding 

» Ftdcraliai, No. 3. 

254 JOBS JAY. 

U8 (rom the MisaiBiippi, and Britoia kaeping at 
from the St Lawrence^ the postibilitjr of war 
must be oonsidered* ^ War may arise ; will not 
union tend to discourage it ? ** ^ With separate 
States making separate and perhaps inconsistent 
treaties with foreign nations, will not disunion 
certainly tend to encourage war?' The last 
number written by Jay, No. 63, was a vindica- 
tion of the treaty-making power vested in the 
Senate; and the original draft, which is still 
preserved, with its frequent alterations and in- 
terlineations, shows the extreme care with which 
these simply written, popular papers were pre- 

The ^Vgickness" which Madison speaks of, 
which interrupted Jay*s work on the *^ Federal- 
ist,*' was due to a wound he received in that 
singular riot known as *^The Doctors* Mob.*' 
In the spring of 1788 there were many com- 
plaints in the newspapers of the rifling of graves, 
one body being taken, it was said, from Trinity 
ChurchyanL These complaints were replied to 
with ridicule as showing ^* a di»ix>sition to inter- 
rupt the students of physics and surgery in tlieir 
pursuit of knowledge." On Sumlay, April 13th, 
some boys playing by the hospital declared that 

% FederaliMt No. i. 

« Ibid., No. 5. 

• Hist. Mag., May, 1807, p. 207. 


tliAy Mw a limb hanging out of a wmdow ; and 
a mob formed, broko into the building, and de« 
fttroyed lome valuable ooUections. The next 
morning the mob, two thousand strong, started 
to searob the houses of the susi)eotcd phyucians, 
who had taken refuge in tlie gaol for safety. 
An attack was made on the gaol ; the militia 
was called out, and the mayor and a body of 
armed citizens marched to its relief. ^* Among 
those who interjK)scd their })ersonal influence for 
the purpose [of restoring peace] was ]^Ir. Jay, 
the Secretary of Foreign Affairs to Congress. 
In proceeding to the scene of action he received 
a severe wound in the head from a stone thrown 
thro* the glass of bis chariot.** ^ Gradually the 
riots subsided, the ringleaders were arrested and 
indicted, but, in view of the excited state of pub- 
lic feeling, the prosecutions were not pushed. 

On February 1, 1788, the Legislature of 
New York renolved to submit the report of the 
Constitutional Convention to delegates to bo 
chosen by the people; and at the election in 
the city, late in April, out of 2,833 votes cast. 
Jay received all but 98.' With the exception, 
however, of New York city and one or two 
adjoining counties, the State was violently anti- 

' Wm. A. Duer, quotad with the newiiMiper accoualg ift 
Mtdical litgitter o/N, K.. N, J^ and Cww., nil 2«5. 
* Jfty*! Jag, i. 2(R 

256 JOBS JAY, 

Federalbt, and it was calculated that put of th« 
fifty-seYen delegates only eleven were favorable 
to the proposed Constitution. The crisig was 
extreme^ and Jay, so soon as he recovered from 
his wound, published anonymously an *^ Address 
to the People of the State of New York" ^ 

According to a contemporary, tliis simply- 
written, logical pamphlet had *^ a most astonish- 
ing influence in converting anti-Federalists to 
a knowledge and belief that the new Constitu- 
tion was their only salvation.'* ' The author was 
soon betrayed by "the well-known style," and 
Dr. Franklin urged him to sign his name to it, 
" to give additional weight at tliis awful crisis.** ' 
" If the reasoning in the pamphlet ... is sound,'* 
Jay replied, " it will have its effect on candid 
and discerning minds ; if weak and inconclusive, 
my name will not render it otherwise.** * The 
reasoning of the paper was eminently practical 
and cogent, and its appeal to the logio of the 
situation proved clearly enough the truth of the 
remark: that *^we were forced into confedera- 
tion by external, into union by internal, neces- 
sities.*' ^ *^ Our affairs are daily going from bad 
to worse," said Jay, " our distresses are accumu- 

> Ford, PampUfti on the Consli>Hf ton, Brooklyn, 1788, p. 67. 

a S. B. Webb, April 27, 17S8. 

• From J. Vaujjhan, June 27, 1788, Jay MSS. 

« To John Vauffhan, Juno 27, 178H, Ibid, 

» a. O. Taylor, Mag. Am. llitt, Dec, 1878, p. 72:J. 


hiing like eompoimd interest • • • Let it be 
admitted that tbii plan, like everything else 
deviled by man, has ita imperfections ; that it 
does not please everybody is certain, and there 
is little reason to exiiect one tlmt wilL It is a 
question of grave moment to you, whether the 
probability of your being able to obtain a bet- 
ter is such as to render it prudent and advis- 
able to reject this, and run the risque.*' ^^If 
this plan is rejected, and a new one fails or is 
long delayed, as it roust be, all government 
meantime coming to a stop, every band of 
union would bo severed. Then every State 
would be a little nation, jealous of its neigh- 
bors, and anxious to strengthen itself by foreign 
alliances against its former friends. • • • What 
in such an event would be your particular 
case?** The situation was indeed almost ab- 
surd, when Jay could report to Washington that 
^an idea has tiken on, that the southern part 
of the State will at all events adhere to the 
Union, and, if necessary to that end, seek a sep- 
aration from the northern.*' ^ 

On June 17th the Convention met at Phil- 
adelphia, the seat of government ever since 
the destruction of Kingston, and, in spite of 
the unpromising outlook. Jay was aide to fore- 
tell with fair accuracy the course of the opp<^ 

> May 20, 1788, /«y USS. 

258 JOBN JAY. 

ftition. ^^The greater number are, I believe, 
averse to a vote of rejection ; eome would be 
content with recommendatory amendments; 
others wish for expUnatory ones to settle con* 
structions which they think doubtful; others 
would not be satisfied with less than absolute 
and previous amendments, and 1 am mistaken if 
there be not a few who prefer a separation from 
the union to any national government whatever. 
They suggest hints of the importance of this 
State, of its cai)acity to command terms, of the 
policy of its taking its own time, and fixing its 
own price, etc They hint that an adjournment 
may be expedient, and that it might be best to 
see the operation of the new government before 
they receive it. The people, however, are grad- 
ually coming right, notwithstanding the singu- 
lar pains taken to prevent it** ^ It sliould bo 
remembered, too, tliat state pride had been 
grievously wounded by the separation of Ver- 
mont, and was all the more set against any f ur> 
ther diminution of its power and dignity. 

The Constitution was discussed section by 
section. The question of representation in the 
House of Representatives at once awoke the in- 
terminable duel between State Rights and Feder- 
alism, and Alexander Hamilton, the ^^ Colossus ** 
of the Convention, was opposed by Melancthon 
> To WaAhini^on, Jum, 1768. 


Smith, the most formidable of the anti-Fedeiw 
•lists. The debate was closed by Jay, who, 
aooording to a recent writer, ^with extreme 
tact • • • laid stress on the point that all sides 
agpreed that a strong, energetic government was 
necessary and practicable.'* ^ The formation of 
the Senate then became the theme of hot dis- 
cussion for many days, and the anti-Federalists 
were still urging a shorter term of office for 
Senators, when news reached Poughkeepsie that 
New Hampshire, the ninth State, had ratified, 
and the new goYcrnmcnt was already a fact. 
The time had come which Jay had anticipated 
in his Address, *^ Suppose nine Stitcs should 
. • • adopt it, would you not in that case be 
obliged either to separate from the Union, or 
rc»c^ind your dissent? Tlie first would not be 
eligible, nor the latter pleasant.*' The situation 
was changed on the instant ; it was no longer a 
question of ratification, but merely of the terms 
of ratification. 

The Fourth of July was spent by the dele- 
gates in a general celebration of the day. 
** Two tables,*' Jay wrote to his wife, " but in 
different houses, were spread for the CouYen- 
tion, the two parties mingled at each table, and 
the toasts (of which each had copies) were 
communicated by the sound of drum, and 
> J. A. Stovem, Mag, of Am. Iliit,, July, 1878. 

260 JOBH JAY. 

aisoompaniad bjr the dischaTge of cannon/*^ 
The next day the anti-FederalUts fetunied to 
their dying straggles. On July 11th Jay moYed 
the ratification of the Constitution and the reo- 
ommendation of any amendments that should 
be adopted. After four days' discussion Me- 
lahcthon Smith moved that the amendments 
relating to the service of the militia and the 
laying of direct taxes be conditional to ratiftca* 
tion. On the 19th other amendments were 
moved on similar terms. At length, on the 23df 
a test vote was had, under the influence of the 
news from Virginia ; and an expression of ^^ full 
confidence*' that the amendments would be 
adopted was substituted by a majority of two 
for the stipulation of any condition. The reser- 
vation of a right to withdraw from the Union if 
the amendments were not submitted to a general 
convention was voted down. Instead thereof 
Jay, in spite of his protest, was directed to pre- 
pare and transmit to the sevei-al state legisla- 
tures a letter recommending another general con- 
vention to consider the amendments, *^ a singular 
proof,*' says Stevens, *^ of the publio confidence 
in the probity and fairness of his judicial 
mind.*** Jay and Hamilton had to choose 
between the evils of a call for a second conven- 

> July 5, 1788, Jay MSS. 

< Mag. of Am UitU, July, 187S. p. 4(13. 


tioa and a rejactum of the Conititution by the 
State, and ohone wisely, for the call proYed na- 
gatory. *^ I did not, I eonf ess,** wrote Washing* 
ton to Jay, ** see Iiow it eould be avoided." ^ 

On Saturday, July 2Cth, after forty days of 
^an ordeal torture,** to quote the words of a wit- 
ness, by a majority of three votes only, the Con- 
stitution was ratified. The laurels of the victory 
were borne by Hamilton, but the work of Jay 
was such that Washington wrote from Mount 
Vernon: ^^ With peculiar pleasure I now con- 
gratulate you on the success of your labors to 
obtain an unconditional ratification.*' * In 1815 
John Adams bore similar testimony. Writing 
to James Lloyd about the early Federalists, he 
said : *^ I forbore to mention one of more im- 
portance than any of the rest, indeed of almost 
as much weight as all the rest. I mean Mr. 
Jay. That gentleman had as much influence 
in the prepai'atory measures in digesting the 
Constitution, and obtaining its adoption, as any 
man in the nation. Ilis known familiarity with 
Madison and Hamilton, his connection with all 
tlie members of the old Congress, have given to 
these writings [the ^ Federalist *] more consider- 
ation than both the other writers could have 
given them.** ' 

1 Wathington'i Workt, ix. 408. 

s Auif. 3, 1788, Jay** Jay, U. IM. 

• F«b. 0, 1815, John Adamit HVib«. x. 115. 




Jat ooatinued to act as Sooretary for Fop^ 
eign Affairs till Jofftii*8uii*8 return from Franoe 
in the spring of 1790« and as suoli took part in 
the inauguration of Washington. In forming 
the new government the President showed his 
regard and admiration for Jay by offering him 
the choice of the federal offices. Of the three 
departments^ the executive, the legislative^ and 
the judicial, all theoretically of equal dignity, 
and each equally independent, tliat of justice 
seemed at the moment of most importance. The 
violent opposition of the anti-Federalists to any 
strong national government foreboded bitter Con- 
tests over the construction of the Constitution ; 
and the only safeguard was the orgauisuition of 
a wise and powerful Supreme Court. For al- 
most every other provision of the Constitution 
there was some precedent either in the theory or 
practice of the English Constitution, or in the 


ioslitutioiis of aoine oolony or pronneo ; but the 
Supreme Coiirti at least in retipeot to its ori^nal 
jurisdiction, was apparently tfie nnpreoedented 
result of the requirements of the new system of 
government with its complex correlation of na- 
tional and eoufederato state sovereignties. For 
its only predecessors were the Judiciary Com- 
niiitcos of the CongrcsH under tlio Confedera- 
tion, whicli acted iutormittcntly as courts of ad- 
miruUy in cases of prize, and as boanls of 
arbitration in questions of state boundaries. 
To maintain its tlieoretical position as ^* the key- 
stone of our political fabric,** in the words of 
Washington, the court had to claim the dignity 
and win tlie |)opular respect inherited by other 
courts* Its |)ower as interpreter and guardian 
of the Constitution, that is to say the conserva- 
tion and peri)etuity of the Itepublio as estab- 
lished by its founders, de|icudcd upon the per- 
sonal res])ectability and wisdom of the members 
of its bench. Such thoughts must have been fa- 
miliar to Jay when, of all die great offices, he 
chose the chief justiceship. The court was cre- 
ated by tlie Judiciary Bill, approved on Septem- 
ber 24th, which provided for the appointment of 
a chief justice and five associate justices, and on 
the 2Gth Jay was nominatetl and confirmed by 
the Senate. ** In nominating you for the impor- 
tant station which you now fill,** wrote Wash- 

S64 Joan jAr 

ington, ^ I not only aoiod in oonformity with 
my best judgment, but I trust I did a grateful 
thing to the good eitisoui of tlieso United 
StaWs,'' * 

During Jay*8 sliort tenure of office few oausei 
came before the court, and with one exception 
the decisions are preserved only in the brief and 
dry minutes of the clerk. Yet three great facts 
were determined once for all: the dignity of 
the court was vindicated fraui onci*oachmeiit by 
the federal executive and legiHlative depart- 
ments ; its jurisdiction was CHtablished over the 
state govennnents ; and, iueidcntally. Jay an- 
nounced and determined that foreign ]M>liey of. 
the United States whieli has been accepted and 
followed from that day to this. 

On February 1, 1790, in the oUI Federal Hall 
in New York, Jay and two associate judges met 
and adjourned for lack of a quonim. On Feb- 
ruary 2d the court organized, the letters jiatent 
ap]iointing the several justices wero read, and 
a "cryer" was appointed. On the following 
days a clerk was sworn in, seals for the Supreme 
Court and the Circ4iit Courts were chosen, or« 
ders were adopted for the adniissiou of attorneys 
and counseloi*s, and many of the first lawyei*s 
in the country were admitted accordingly,-— 
Elias I^udinot, Egbert Benson, Fisher Ames, 

> Oct 5, 1780, WritingM of Wathington, x. 35. 


Uabuii Morrta, Kilwanl Liviiij^toii, Twice a 
year, aeconling to law, Cirouit Courts wore held, 
eai*k by two jiistioos of the Supreme Court ami 
a tliHtrict juilj^e, Juy*i oirouit imiUidoil New 
York and Ni^w Ku|;hiiid, ami in New York city, 
April 4, 171)0, he delivered \m first charge as 
a federal jud^o to the grand jury. ^* Lot it be 
remcmlwrcd,*' he said, ^^ that civil liberty cod« 
sists not in a riglit to every man to do just what 
he pleases ; but it oonsists in an equal right to 
all the citizens to have, enjuy, un«l do, in iM}ai*e, 
security, and witliout moleHtution, wluitevcr the 
c<]ual and eonMtitutionnl laws of the country 
admit to be eonniiiteut with the public giXHl.** ^ 
On adjtmrning the court in New York, Jay 
continued on eireuit tliri»u«;h New Kngland, hohU 
ing courts in Conncelieut April 22d, in Masna* 
chusetts May 4t.h, and in New Hampshire May 
20th. At the time of this first circuit, an eye- 
witness in UoHton gives the following account 
of the )x>rsonal api)earanco of the chief justice : 
^^ His height was a little less than six feet ; hia 
I)erson ratlier thin, but well formcil. His coui« 
plexiou was witliout color, his eyes black [they 
were really blue] and i^enetratilig, his nose 
acpiilinc, and his chin ])oiuted. His hair came 
over his foi*ehead, was tieil l)ehind, and lightly 
powdeix'd. His diH}ss black. The expression of 
1 J»y*i/(if, L270. 

266 JOHN JAY. 

hU face was exoeadingly amiable. When atand- 
ingf he was a little iiiclined forward, as ii not 
UQcommon with atudonts long accustomed to 
bend over a table. His manner was very gentle 
and unassuming.'* ^ Every wbon\ csjiecially in 
Massachusetts, he was received with enthusiasm. 
Invitations from friends ]X)ured in on him to 
stay with tlieni while holding court, but witli 
almost suiMsr-sensitive delicacy he decided that 
it would be more proper to lodge only at tlie 
public inns.' 

While at Boston he received a degree of Doc« 
tor of Laws from Harvard College, an honor he 
had received also with Adams and Franklin at 
the close of the peace negotiations from the 
University of Dublin, lie wrote a little later 
to his wife : ^^ I had two days ago a pleasant 
ride to Cambridge over the new bridge of which 
you have often heard. We extended our ox« 
cursion to some pretty scuts not far from the 
college, and among others Mr. Gerry's. On 
Wednesday next 1 pur|)ose, on invitation from 
Judge Cushing and General Lincoln, to visit 
them. This will take me thirty miles out of my 
way to Portsmouth, but having time enough, 
and my horses in go<Kl order, that circumstance 
is not very im|)ortaut. • • • Cold easterly winds 

1 SuUivan, Ltttert on i'u6/ic Ckaraiitrt, p. AO. 
• Jay's Jaif^ i. i77. 

cant* JUMTiCE Of tbk uhiteb mtatss. S67 

I to prevftil here ; I think our cliuiate a better 
one/* ^ In those days a judge must have needed 
couftiderable physical endurance to ride in two 
months through four States, and must havo 
si>ont far more time in the saddle than on the 
benoh« In the autumn hQ again rode the circuit 
and held courts at Boston, Exeter, Providence, 
Hartford, and Albany. In tlie winter John 
Adunis at Philadelphia begged for a visit, in 
clianicteriMtio phrase : ^^ As you are a Itomau the 
jus hoHpitii will not be disputed by you." But 
Jay deferred his visit till the February term, 
1791, when the court removed there with the 
shifting scat of government from New York. 
Then the first case was entered on the docket, 
Van Staphorst t\ the State of Maryland, but 
was discontinued on agreement by the parties to 
{lay their own costs. In August rules of prac- 
tice were declared, — substantially the rules of 
the King*s Bench and the Court of Chancery in 

In April the Circuit Court for the District of 
New York, with Jay presiding, agreed unani- 
mously to a protest against an act of Congress 
providing that applications for invalid pensions 
should be passed on by the judges of the Su- 
premo Courts in their respective circuits. Tlui 
protest declared that Congress could not assign 
» May 6, 17W, Jay MS3. 

268 JOHH J At. 

to the jtidioiftry ^any duties, but such as are 
properly judicial^ and to be performed in a judi- 
cial manner. That tlie duties asuigned to the 
Circuit Courts by this act are not of that de- 
scription, . • • iuasnuioh as it subjects the de- 
cisions of these Courts, made pursuant to tliose 
duties, first to the consideration and suspension 
of the Secretary at War, and then to the revi- 
sion of the Legislature ; whereas, by tlio Con- 
stitution, neitlier the Secretary at War, nor any 
other Executive ofiieer, nor even the Legislature, 
are authorized to sit as a Court of Krrors on the 
judicial acts or opinions of this Court." ^ Ao- 
coixlingly when tlie question came before the 
court on a motion for a mandamus in IIayburn*s 
Case, before a decision was given, the obnoxious 
act was repealed. Practically the court had 
declared for the first time an act of Congress 

On February IC, 1792, at a meeting of his 
friends in New York city. Jay was nominated 
for governor in opposition to Clinton, who had 
held that oirice continuously since June, 1777.' 
lie accepted the nomination, stipulating, how- 
ever, that he should not be retpiired to take 
any active part in the campaign. ^^ I made it 
a rule,*' he wrote to a friend, ^' neither to begin 

^ 2 DaU. 410 note. 

< N, Y. Journal, F«b. 18, 1792. 


eorretpondenGe nor oonvenation upon the lub- 
ject** The selection of the chief jnstice as % 
oaniHclate, and liis aoceptauoe, the virulence of 
the election and its fraudulent oonclusioni need 
a word of explanation ; more eaiiccially as those 
isAUCs were now, for the first time, clearly de- 
flaetl, which a few years later were to give rise 
to the Kepubliean psirty, 

Ikfore the Kcvoluticm the {mrties in the colo- 
nics were practically identical with the Whigs 
and Tories of the mother country, the Whigs or 
anti-prerogative men 8up|M>rting ever the cause 
of the ])eoplo against arbitrary or illegal acts of 
the governor or the council. In the early days 
of the Revolution the ultra Tories were gradually 
driven into the ranks of the enemy, until for 
a time it might he said that all revolutionary 
America h:ul become AVhig; the name Tory, 
however, was still applied to those who, though 
op))osiid to tlie usuqiations of George III., were 
averse to a final separation from England. The 
victorious party in a civil war always divides 
at its close on the question of terms to the 
vanquished, and so far as concerned American 
politics the Kevulution may be regarded as a 
civil war. In New York State, where the roy. 
alists had been tlie most united and the most 
irreconcilable, public feeling against them was 
intensely vindictive. To the majority of the 

270 JOBH JAY. 

people the Reyolotioii roeftnt only the local rev* 
olution in the State^ the guerrilla warfare in 
West Chester County, the Indian rftids on the 
border, the enemy's occupation and abandonment 
of the city ; so the return of peace found them 
excited by personal resentment, and eager for 
revenge. There were few men, even in public 
life, who had had experience outside of the 
State, and it was chiefly those who had such 
experience, like Jay and Hamilton, who could 
see the necessity of conciliation, the impolicy of 
alienating any citizens, however mistaken, who 
had honestly preserved their neutrality. Jay 
would exclude from the country only those roy- 
alists who had shown themselves perfidious or 
cruel, and was indigmmt at the violent acts of 
confiscation and disfranchiHement which the gust 
of popular hatred swept through thia legislature 
during the years immediately preceding and suc- 
ceeding the treaty of peace. The infamous 
Trespass Act, tlirough the fearless oratory of 
Hamilton, was declared unconstitutional, and one 
by one the other prescriptive acts were re)>ealcd 
in spite of the constant op]x>8ition of Clinton, 
the war governor of the State, that burly, mag- 
netic man, of north of Ireland stock, endowed 
with all the stubborn prejudices of his race. Pro- 
scription of the royalists sprang from unreflect- 
ing, local, personal feelings; it was forbidden 


alio by the treaty of peace and the recommeii- 
dation of Congress. So the Whigs were ahready 
dividing along lines of national and local poli- 

The survival of pre-revolutionary provincial 
modes of thought and feeling was, perhaps, the 
basis of anti-Federalism ; and as the majority of 
the people were farmers,^ slow to change, little 
moved by argument, the State was naturally 
anti-Federalist, save so far as it was affected by 
the excitement and necessities of the Revolu- 
tion, which made Federalists of the moi-e thought- 
ful leaders of the war. In 1783 Clinton and 
Ids friends brought about the repeal of the Act 
granting the duties of the port of New York to 
the United States, to be collected by federal offi- 
cers ; and they secured the appointment of the 
collectors by the State, an impracticable change 
which soon had to be amended. Before, then, 
the Federalist party, so-called, existed, Clinton 
and his adherents were virtually anti-Federalists. 
In the Constitutional Convention two of the 
three New York delegates left the Convention 
in accordance with the well-known views of the 
legislature, which desired only the amendment 
of the Articles of Confederation; and in the 
Constitutional Convention of the Stite, Clinton 
threw his great influence steadily against ratifi- 
cation, until longer resistance became imj)ossible. 


To the genonJity of tbo people, for many years 
to come, DO goyemment seemed legal but the 
state goverDment, aud the Congress at Phila- 
delphia loomed as remote and foreign as a Par- 
liament at London. Of Congress no slander 
was too gross to be believed, and the Cabinet of 
Washington was represented as ^* forging the 
chains of monarchy and aristocracy." The as- 
sumption of state debts by the national govern- 
ment was a clever device for enslaving the peo- 
ple ; the brilliant financiering of Hamilton was 
part of the same dishonest scheme. The year 
1791 was summarised as ^Uhc reign of specu- 
lators. A free gift of sixty per cent, added to 
the capitals of sjMiculators by means of the Bank, 
and other governmental douceurs. Banks, bub- 
bles, tontines, lotteries, mono|K>lies, usury, gam- 
bling, swindling, etc., aliound ; |>overty in the 
country ; luxury in the capitals ; corruption and 
usurpation in the national councils.*'^ Year 
after year was Clinton reelected without serious 
opposition; and in 1789 the Federalists dared 
attempt no more than to divide the overwhelm- 
ing majority by nominating Robert Yates, of 
the state Supreme Court, himself an anti-Feder> 
alist. Such was the state of affairs in New 
York when John Jay was nominated for the 

» .V. r. Jourml, July 4, Hie. 


From regard to popular prejudice the earn- 
paigD was conducted by the Federalists with 
extraordinary caution. Apparently no appeal 
was made to general principles; they simply 
argued that Clinton had been governor long 
enough, and urged the value of Jay 's services to 
the State and the nation. It was admitted even 
by the governor's friends that he had used the 
patronage of his office ^^ to strengthen his own 
popularity and to advance his own views in 
regard to questions of public policy."^ The 
Federalists therefore, considered themselves 
civil service reformers, but somewhat curiously 
contended that rotation in ofHoe was in itself 
desimble, as the best preservative of republican- 
ism and the safegimrd against undue influence;' 
while the anti-Federalists, unlike their modem 
representatives, sensibly replied that change of 
officers without cause was an absurdity.* Clin« 
ton, according to the Federalists, had been an 
admirable ^* military governor," but his special 
services had terminated with the war. Troubles 
with the Iroquois are threatening, was the reply, 
how can a man of peace deal with them ? ^ 

As election day drew near, it appeared that 

^ Jenkina, Governorg o/N. Y., p. 61. 

S N. y. Journai, March 7, Httt ; N, Y. Jwnd, UaNk 24. 

• Ibid., Feb. 29. 1702. 

• Ibid., March 7, 1702. 

274 JOBS JAY. 

tho indastrjr of manufacturing what w« call 
** campaign lies** was almost as active, and cer- 
tainlj as ingenious, then as now. The State 
owned vast tracts of public land towards the 
Canadian borders, and Clinton was accused of 
oonniving at the sale of a single estate of nearlj 
four million acres to Alexander McComb, with 
a view to connecting it with British* territory. 
Against Jay stories were circulated equally ab- 
surd. New York was then a slave - holding 
State, and it was asserted that Jay proposed '^ to 
rob every Dutcliman ** of his slaves. Jay was, 
however, even on the question of slavery no ex- 
tremist. As a statesman he considered eman- 
cipation, like other |)olitical questions, a matter 
depending on practical rather than abstract con- 
siderations. ^^ Every man, of every colour and 
description,** he wrote to a friend, *^ has a nat- 
ural right to freedom, and I shall ever ai'knowl- 
edge myself to be an advocate for the manumis- 
sion of slaves in such way as may be consistent 
with the justice due to them, with the justice 
due to their masters, and with the regard due 
to the actual state of society. These considera- 
tions unite in conviucing me that the abolition 
of slavery must necessarily be graduaL** ^ His 
enemies then published a statement that in con- 
versation with certain gentlemen Jay had said : 
» Feb. 27, 1702, Jay'i Ja^, L 285. 


** There ought to be in America but two aorta of 
people, the one very rich and the other terj 
poor/* The gentleman mentioned at once aigned 
a card to the public contradicting the ridiculoua 
alander ; * but ao long-lived waa it, and ao cred- 
uloua were the people of that day, that it waa 
repeated and had to be again contradicted with 
afBdavita three yeara later. To the mortifica- 
tion of Jay, hia old friend, Chancellor Living- 
aton, and othera of hia wife*a relativea, now de- 
aerted the President*a party, by reason of aome 
fancied neglect, as it waa believed, in the matter 
of appointments ; and the Chaneellor'a enthusi- 
astic zeal of a new convert was skillfully fanned 
by the publication of satirical letters attributed 
to Jay. This insinuation was also met by a 
prompt denial signed by Jay himself.^ 

To tlio ])eople. Jay and Clinton were sedu- 
lously represented as the aristocrat and the re- 
publicau ; Jay aa accuntomed to draw a large 
salary in the *^ luxury of aplondid courts,** and 
now sup|)ortcd by the ^* powerful landed inter- 
ent ** of tlio Van Rcnsselaers, while Clinton was 
the hardy son of toil. It was said that Jay was 
the nominee of the President and the Secretary 
of the Treasury, and that all the influence of the 
government was for him. ^* Do you not tremble 

» April 5, ni>2, Ja^ MSS. 
2 Jay's Jay, I 28(J. 

276 JOHN J AT. 

(or the bdependoDce of the State ?**i ''We 
are rioV* thundered ''Cato,** ''our cofiFen full, 
while thoae of the Union are empty, and by no 
means equal to the exigenoiea of government. 
I should not wonder at a projiosition from tlie 
Secretary of the Treasury to take on loan at ten 
per cent from this State all the unappropriated 
money in it • • • Could Mr. Jay discouutenaucu 
this, as coming from the government, which 
has been liis friend and sup]K>rt ? " ' State love 
was ap})ealed to by ^* Ciuehinatus,'* even from 
another side, to keep Jay where he was : *' It is 
of some importance to have a citizen of your 
State at the head of the judiciary of the United 

So the battle raged, but at the election it was 
soon discovered that the votes for Jay outnum- 
bered those for Clinton. But a retuniing board, 
a joint conunittee of the legislature of whom the 
majority were Clintonians, found tlie returns 
from tliree counties, which notoriously had gone 
Federalist, were technically defective. The law 
provided that the votes of each town should be 
transmitted in sealed boxes by the rcH|>eetive 
county slierifTs to the SccreUiry of SUite. Hut 
the ballots of Otsego County had been delivered 

> N. r. Jonriio/, MakIi 24, 1702. 

* /W.,MuroliaiJ702. 

* i6ic/., April IH, 171)2, 


by th« ax-«heriff, whoM term had just exj^nd^ 
the now sheriff not having qnalifled. Those of 
Tiogo were given by the sheriff to a special 
doputyi who was taken sick on the road and sent 
them on by his clerk; and those of Clinton 
were deliverctl by the sheriff to one who had no 
written deputation, but who returned them per- 
sonally.^ Aaron Burr and Kufus King wero 
askcil for legal opinions ; King, the Federall8t« 
advised that the returns from all three counties 
were legal ; Burr, the Republican, held that all 
were illegal, — a conclusion which he reached, 
as he said, ^ not without sensible regret, as no 
suspicion was entertained of the ' fairness of 
diese elections.'*' It was generally believed 
that the Federalist majority in Otsego County 
alone was sufficient to elect Jay ; and on general 
principles, as the ballots had been delivered to 
the ex-sheriff by the inspectors before the ar- 
rival of his successor,* and there was no other 
acting sheriff in the county on election day, his 
transfer of the Ixillots was undoubtedly legal; 
otherwise the i^eople were disfranchised abso* 
lutoly without any fault of their own.^ The 

> I)avU,i.i/r0//^urr,i.3a:i. 

* .Y. r. Journal, July 18, 1792, qwitlnf? Smithes owb lUt^- 
menu ill iIm Albany UaittU; N» Y, Journal^ Duo. 5, luttU 
niony uf ih«» dvrk uf Ohwi^i^q. 

« Hammond, iW. W»t. nfN, \\ 1 02-07. 

278 jOiiH JAY. 

Coutiitution provided for the anniiid appoint, 
uieiit of sheriffa, but as the Council of Ap]K>int* 
ment luet only wlien suniuionod by tlio govornor, 
it was customary for tlie sheriffs to hold over. till 
the qualification of their successors. Seventy 
such instances had occurred since 1777 ; in one 
case an ex-sheriff had executed a criuiinaM and 
their returns of votes as such had never before 
been seriously questioned. When it is reniem- 
bei*ed that the ius|>ectors were rcquii*ed to de- 
liver the ballots to the sheriff without delay, the 
unsoundness of 1Uirr*8 deci.Hiou becomes still 
more clear. Van Itenssehicr, a uieniber of the 
Council, was said to have urged the governor 
early in the year to a|)|M»iut a new sheriff in 
Otsego, and the governor had repli(*d, that it 
was unnecessary to do so, since the old one 
could liold over. Therefore, however " Brutus " 
and *^ Julius Caesar ** might argue it out in the 
newspapers, the decision of the Council was a 
foregone conclusion, even before Juno 12th, 
when they announced by a party vote of seven 
to four the election of Clinton, and oi*dcred the 
ballots to be burnt, though the custom had al- 
ways been to preserve them iu tlie office of the 
Secretary of State.* 

Jay, meanwhile, was leisurely riding his cir- 
cuit, apimrently indifferent to |)olitics. ^^I 

» Ja)*i Jay, I 25W. « JV. 1'. JuufHol, Aug. 22, n«2. 

CMtarJVsncn or tbk ositkd btatks. 279 

loarn," he writes to hit wife from New Ilftveiit 
** ilmt we shall have much business to do here* 
there being about forty actions. • • . On the 
road I met Iklr. Soderslieim. • • • lie told me 
Mr. McCpmb [tlie unpopular grantee of the 
3IeComb patent] was in gaol« and that cer- 
tain others had ceased to be rich. • • • Mrs. 
AlcConib must be greatly distressed. Your 
friendly attentions to her would be grateful and 
proi)er."^ Once Mrs. Jay made some remark 
about his liaviug no further use for his official 
robe as chief justiee« ~> that robe presumably 
with salmon colored facings whose origin has 
excited so much si)eculation« really the robe he 
had rcocived as Doctor of Laws, and hsul adapt* 
oil to the new puri>0He. ** My robe," he replied, 
*^ may become useless or it may not I am re- 
signed to cither event. He who governs all 
makes no mistakes, and a firm belief of this 
would save us from many.**' On the day of 
the final decision, *^ People are running in eon* 
tinually,*' wrote Mrs. Jay, ^^ to vent their vexa- 
tion. Poor Jacob Morris looks quite disconso- 
late. King says he thinks Clinton as lawfully 
governor of Connecticut as of New York, but he 
knows of no i*edresii.** ^ ^^Tlie reflection that 

« To Mn. Jay. April 24, 1792, Jay MSS. 

« Jay** Juy, I. 2S7. 

* Kn»iu Mn>. Jay, Jum 12, 1702, Jay MSS, 

280 JOBN JAY. 

the majority of electors were for me is a pleas- 
ing one/* waa Jay's pliiloiiopliieal answer from 
Ilurtforcl; ^^tliat injiiHtioe has taken place does 
not surprise uie, ami I lutpe will not afToet you 
very sensibly. The intelligence found mo per- 
fectly prepared for it. • • • A few years more 
will put us all in the dust, and it will then be 
of more importance to me to have governed my* 
self, than to have governed the State.** ^ 

From Vermont the chief justice returned home 
by way of Albany. As he drew near Lansing- 
burgh, on June 30th, the people met him and 
escorted him to the village, where a committee 
delivered an address, declaring that : ^^ Though 
abuse of power may for a time deprive you and 
the citizens of their right, we trust the sacred 
flame of liberty is not so far extiuguinhcd in tlie 
bosoms of Americans as tamely to submit to the 
shackles of slavery, witliout at least a struggle 
to shake them off.'' ' Public dinners, addresses, 
and Milvos of artillery were repeated at Albany 
and Hudson ; and eight miles from New York 
a body of citizens had assembled and escorted 
him to his house, ami another address followed 
from a committee of the Sons of Liberty. His 
answer was eminently conciliatory and conser- 
vative : '^ They who do what they have a right 

Way*! /ay, i.S80. 
« Ibid., I *J00, 2ei. 


to do» gtTO no jttftt OAuae of offense ; and» there- 
foroi every oonsideration of propriety forbtda 
tluit difference of opiiiicm resi^cctiii^f candidutee 
iihould stiH|ioud or iuterrii|it tlie mutual jgaoA-^ 
humor and bonovolonco which luirmoutxo iioi*ictyi 
and soften the asperities of human life.** ^ As 
the people of Otnego were threatening to march 
to New York, and there was some actual appre- 
hension of ^^ an apjKMil to arms,** ' the intensity 
of public feeling may be imagined. The signifi- 
cance of these eveuU as regards Jay is, that ioit 
the time the jxilitical outrage united the Feder* 
alists and the extreme anti-Fcileralists, who, be* * 
fore all things, were lovers of liberty ; and so 
made his reuomination and election sure, in 
spite of his opinions. On July 14th the anni- 
versary of the destruction of the Bastile was 
celebrated by the Itopublicans ^^ with nearly the 
same ardor and sincerity throughout the United 
States as the 4th.** ^ On that day at a large 
dinner in New York city Jay gave tlie toast: 
^^ May tlie |)eople always resjiect themselves, and 
remember what they owe to posterity ; *' and after 
he retired the company drank : *' John Jay, gov- 
ernor by the voice of the people.*' Also among 
the toasts at Mechanics' Hall, on the Fourth of 

> Jay*a Jag, i. 203. 

« N. V. Journal, July 13, 1192. 

» Ibid., July 21, 1702. 

282 ^OHN JAT. 

July, were these two* in eurious jnxtapoHttion : 
''The French Revolution/' and '« The Governor 
(of right) of the State of New York.** ^ 

In the United States Supreme Court the qnea- 
tion of the conflicting sovereignties of the States 
and the nation was grailually brought to an 
issue. Several suits were brought by individual 
States against citizens of other States, and by 
individual citizens against Stuti's, but the great 
question of the suability of a State remained 
unargued till the case of Chisolm, Executor, v. 
The State of Georgia came to a hearing.' The 
State refused to appear except to demur to the 
jurisdiction of the coui't. The chief justice in 
his opinion, which was in writing, began by as- 
serting that the States had never |K>sse88cd an 
independent sovereignty. Ik'fure the Revolu- 
tion ''all the people of the country were sub* 
jects to the king of Great Rritain. . • . They 
were in strict sense fellow-subjects, and in a 
variety of reR|NH;ts one i>eople.** In tiie estab* 
lishment of the Constitution " we see the peo- 
ple acting as sovereigns of tlie wliole country; 
and, in the language of sovercignt}', establish- 
ing a Constitution by which it was their will 
that the State governments should be bounil, 
and to which the State constitutions should be 
made to conform. . • . The sovereignty of the 

1 .V. r. Jourmd, July, 14, 1702. > 2 Dall. p. 415. 


nation is in tiie people of the nation, and the 
residuary eoyereignty of eai^h State is in the 
people of each State.** As one State may sue 
another State, ^* suability and State soven^ignty 
are not incompatible.*' Cases ^ in which a State 
shall be a party ** are by the Constitution within 
tiie jurisdiction of the Supreme Court. ^ Did it 
mean here party-plaintifl ? If that onit/ were 
meant, it would liave been easy to And words to 
express it** The court accordingly gave judg* 
ment against the State by default. The legis- 
lature of Georgia passed acts condemning to 
death any one who should attempt to serve the 
process of execution. But judgment was never 
executetl, for the next year an amendment to the 
Constitution was ]>assed to counteract the effect 
of the decision. Jay*s logic, however, remained 
uncontrovcrted. It establisheil the court as the 
supreme interpreter of the Constitution, and his 
words were long cited as dirtproving the extreme 
theory of State Rights. The imi)ortanco of the 
decision is shown by the fact that it was thought 
necessary to argue that it was of no authority 
^^ to determine the political duty of the citizen, 
in a crisis like that of 18G1.**'' It laid down 
the lines, indeed, that Marshall followed, in his. 
famous series of federal decisions, culminating 
in McCulloeh v, Maryland : ^* The government 

^ Hard, TUorn of our National Exittenctt p. 131. 

284 JOttN JAY. 

prooeecis directly from the people, ui ordained 
and established in the name of the people.*' ^ 
^After this clear and authoritative declaration 
of national supremacy/* said Judge Cooley, only 
last year, ^^ the power of a oourt to summon a 
State before it, at the suit of an individual, might 
be taken away by the amendment of the Con- 
stitution — as was in fact done — without impair- 
ing the general symmetry of the federal struct* 
ure, or inflicting upon it any irremediable injury. 
. . • The Union could scarcely have liad a valu- 
able existence had it been judicially determiucd 
that ]K)wers of sovereignty were exclusively in 
the States or in the |>eople of the States sever- 
ally. • . . Tlie doctrine of an indissoluble Union, 
though not in terms declared, is nevertheless in 
its elements at least contained in tire decision. 
Tlie qualiBed sovereignty, national and State, 
the suborilination of State to nation, the position 
of the citizen as at once a necessary component 
part of the Federal and of the State system, arer 
all exhibited. It must logically follow tluit a 
nation, as a sovereignty, is {lossessed of all those 
}K)wers of indc|)endent action and self-protection, 
which the successors of Jay subsequently de- 
monstrated were by implication conferred upon 

> 4 Wheat p. 310. 

' Conititutionai lligtorjf of the United StatUf M Men m tkt 
Ikvttopmeni of American Law, 1889, p. 40. 


In tho spring of 1793, before ehief justioe Jay 
mnd Jadgee Griffin and IredelU at Kichmond, 
Patrick Ilcnry made his famous argaroent in the 
second trial of Ware's Executors v. Ilylton, on 
the question wliether British creditors could re- 
cover against Virginia debtors by virtue of the 
treaty of i)eace, in spite of an act of Virginia 
to tlie contrary. Jay told Iredell thiit Patrick 
Ilcnry, as ho stood there an old decrepit man, 
was ** the greatest of orators/* As he spoke 
^ the color began to como and go in the face of 
the chief justice, while Iredell sat with his 
moutli and eyes stretched o|)en, in perfect won- 
der.** ^ At the ftnal deeiniou Jay was not pres- 
ent, though doubtless he would have concurred 
in the judgment of the court in favor of the 

The news of the capture of the Bastile was 
printed in the papers on the same day as Wash- 
iugton*s Cabinet nominations, and by this time 
the eyes of all the world were fixed on the rap- 
idly cuhninating scenes of the French Revolu- 
tion. The anti-Fcdoralists, or Republicans, who, 
in thpir opposition to a centralized government, 
had fallen back ou doctrines of State Rights, and 
fiiuilly on the new theorien of the rights of man, 
were in full sympathy with the Paris mob, and 
were forming throughout the land Dcmocratio 

> IliHorical Mag., Nov., 1873, p. 275. 

2^6 JOHN JAY. 

clubsi on the model of the notorious Jacobin 
Club. The report that a minister was on his 
way from France made it necessary for the guv- 
emment to define its position towards the new 
republic. *^Tbe king has been decapitated/* 
wrote Hamilton to Jay. ^^ Out of this will arise 
a regent, acknowledged and sup|K)rtcd by tlie 
powers of Europe almost universally ; in ca- ' 
pacity to act, and who may himself send an am- 
bassador to the United States. Sliould we in 
such case receive both ? If we receive one from 
the republic and refuse the other, shall we stand 
on ground perfectly neutral ? '* And the same 
day he wrote again : ^^ Would not a proclama- 
tion prohibiting our citizens from taking com- 
missions on either side be proi)er? Would it 
not be well that it should include a declaration 
of neutrality ? If you think the measure pru- 
dent, could you draft such a thing as you would 
deem proper ? I wish much you would." * Two 
days later Jay answered the question about re- 
ceiving a minister concisely but in conformity 
with modern international usage : ^ I would not 
receive any minister from a regent until ho was 
regent de facto ; ** and he inclosed a draft of a 
proclamation. ^^ It is hastily drawn,*' he added ; 
^^it says nothing about treaties; it speaks of 
neutrality, but avoids the expression, because 
> April 10, 1793, Jay's Ja|, i. 209, 0(0. 


in this oouQtry often atsooiated with others,** ^ 
This was, apparently, the first draft of the still 
more conoise proclamation issued by Washing- 
ton on April 22d ; which also avoided using the 
word ** neutrality.*' ^^ The murmurs and . dis> 
gust which this measure occasioned,*' it has 
been well said, ^* evinced its necessity and wis- 
donu*' The reason for not using the word ^* neu- 
trality '* was, probably, because at that time it 
was popularly taken to mean ^ non-intercourse,*' 
and so would have caused confusion.^ 

'' The duty and interest of the United States,*' 
ran the Prcsident*s proclamation, ^^ require that 
they should, with sincerity and good faith, adopt 
and pursue a conduct friendly and impartial to> 
wards the belligerent lowers. I have, therefore, 
thought fit • • . to exhort and warn the citizens 
of the United States carefully to avoid all acta 
and proceedings whatsoever, which may in any 
manner tend to contravene such disposition.** 
Very necessary was such a declaration when the 
friends of France were doing ever}'thing that 
private citizens could do to involve the country 
in the £uro|)can war, in which they could see 
nothing but a coalition of despotisms against 
republicanism. Events moved rapidly. Genet, 
the French minister, arrived at Charleston on 

> To Alex. Hamilton, April 11, 1703, Jay*! Jay, L 300. 
s Historical Mag., Feb., 1871, p. V20, and Ap. p. 137, b. 

288 JOBM JAY. 

April 8th« and at once began to compromise 
the neutralitj of the country by distributing 
naval and military commissions, fitting out pri« 
vateers in American ports and organizing courts 
of admiralty under the various French consuls 
for the coudcnmation of prizi*s. *^ The minister 
of France," said a Philadelpliia newspaper, su})- 
posed to be the organ of Jefferson, ^^ the minis- 
ter of France, I ho|)e, will act with firmness and 
spirit. The peojJe are his friends, or the friends 
of France, and he will have nothing to appre- 
hend, fur, as yet^ the people are the sovereign of 
the United States.** ^ Kmboldencd by his en- 
thusiastic reception, tlie minister usctl language 
of the gravest indiscivtion ; especially on one 
occasion, when the government, relying on his 
word, tried in vain to prevent the sailing of a 
privateer. Jay and Uufus King then thought it 
necessary to ])ublish their'testiniony to his words : 
'* A re|X)rt having reached this city [Now York] 
from Philadelphia, that !Mr. Genet, the French 
minister, had said he would appeal to the people 
from certain decisions of the Prc*sident, wo were 
asked on our return f i*om that place whether ho 
had made such a declaration ; we answered that 
ke had^ and we also mentioned it to others, au- 
thorizing them to say that we had so informed 
them.**^ This statement provoked the nnmeas- 

1 Jays Jagy i. 303. 3 /^/^., |. :]04. 


nred indignatioii of tha Republicsn proBB : *^ Is 
the PresidenC* asked one paper, ^ a oonaecrated 
eharaoter« tkat an appeal from hia deciaions 
roiiat be considered oriminal ? Or are the people 
in saoh a state of degradation, that to speak 
of consulting tlicni in an ofTense as great as if 
America groaned under a doniinion equally ty. 
rannieal with the old monarehy of Franco ? '* ^ 

Washington's proclamation would have been 
a deail letter, signifying nothing, unless its prin- 
ciples had been sustained by the courts. It fell 
to Jay to place it ujxin a legal basis, and to es* 
tablish what Sir Henry Maine recently asserted 
to be the distinctively American doctrine: that 
^ Internutional has precedence both of Federal 
and of Municipal Law, unless in the exceptional 
case where Federal Law has deliberately de- 
parted from it** ' In his charge to the grand 
jury at Uiclimond, Virginia, )Iay 22, 1783, the 
chief justice said : ** You will recoUeot that the 
laws of nations make part of the laws of this, 
and of every other civilized nation. They con- 
sist of those rules for n^guhiting the conduct of 
nations towanis each other, which, resulting from 
rigltt reason, receive their obligations from that 
principle and from general assent and practice. 
To this head also belong those rules or laws 

1 Jay*i Jay, i. 305. 

* Maine, InUrmUiomd Law^ p. 37. 

290 JOBM JAY. 

which, by. agreement, beoonie eatablished be- 
tween nationi. • • • We are now a nation, and 
it equally beoomee us to perform our duties at 
to assert our rights;** and he concluded accord- 
ingly that ^^ the United States are in a state of 
neutrality relative to all the powers at war ; • • • 
that, therefore, they who comuiit, aid, or abet 
hostilities against those |)owers, or either of them, 
offend against the laws of the United States, 
and ought to be punishe^l.** 

In accordance with this charge, one Gideon 
Ileuileld, a citizen of the United States, who 
had served as ofllcor on a French privateer 
which brought a British vessel as a prize into 
Philadelphia, was indicted, though no jury could 
be found to convict him. The importance of 
the charge, however, lay in tlie fact that, in- 
dependent of statutes, and in the face of vio- 
lent popular prejudice, it declared violations of 
neutrality to be criminally indictable at com- 
mon law, and that, with singular prescience, it 
defined the duties of neutrals in almost the ex- 
act words of the rules which, by desira of the 
United States, were afterwards included in the 
tri*aty of Washington. The proclamation of the 
President wiui implicitly held, to be simply de- 
elarat4>ry of existing law. This jiosition was 
sound, though criminal jurisdiction was ussunKMl 
by the Supreme Court at that time rather of 


iMoessity than of right ; but it was a position 
which no one would dare to take without a con* 
fidont knowledge of legal principles. Interna- 
tional law is imrt of tlie common law ; ^ by in« 
ternational law neutrality is presiuned to exist 
till a tacit or public declaration of war ; and a 
neutral, except so far as stipulated by treaty, 
must grant aid, neither by anus nor men^ to 
a belligereut.' By the treaty with France no 
such 8tipulation is expn'sscd, as even JefTerson 
notified Morris at Paris.' Finally, in becoming 
a nation, the United States becAmo amenable 
** to that systtMu of rules which reason, morality, 
and cust«>m had established among the civilized 
nations of Europe as their public law ; *' * these 
words of Chancellor Kent, which open his *^ Com* 
mentaries,** ai*e little else than a condensation of 
Jay*s charge at Kiehmond. To a certain extent, 
the })olicy then laid down for the United States, 
was a departure from that adopted in the treaties 
made during the Hevolution, which contemplated 
an active neutrality, so to s))eak, on behalf of 
the favored nation when at war. Such a policy, 
if continued, might, indeed must, liave involved 
the country in European quarrels with which it 

1 Kent, CoMmcfifariVc, ISth mI i. 1, boI« a. 

* l<evi, iMtrnntionai Lau\ p. Vt)4. 

» August tt» ntW, \Viulo» State Papert, I. 140. 

* Kent, Commtntorifi, i. t. 

292 JOHN J AX. 

had no oonoeni. In the Civil War the Alahama 
taught us the pi*actioal distinction between ac- 
tive and real neutrality; and the wisdom of 
Washington and Jay was never more clearly 
vindicated than by their most virulent critic of 
recent days, who declared that *^ France was tlio 
first victim, and Poland, and Ireland, and IIuu* 
gary followecl, in the sad proccsHion,** * The 
charge was printctl by tlie govcniiiient for dis* 
tribution abroad, in order to exphiin its {Misi* 
tion ; while the Democrats, with at least un« 
conscious misappreheusiou, demanded loudly, 
^ What law had been offended, and under what 
was the indictment supiK^rteil ? • • . Were they 
to be punished for violating a proclamation 
which liad not Wn published when the olTcnse 
was committed, if, indeed, it could be termed an 
offense to engage with France, combating for 
liberty against the combined desi)ots of Eu« 

Similarly, when the case of the sloop Betsey 
eame up for decision, in which the owners, Swed- 
ish neutrals, claimed restitution* in the District 
Court after the vessel had bc*cn condemned by a 
French prize court, the chief justice held, ^* that 
no foreign power can of right institute, or erect, 
any court of judicature of any kind within the 

1 Dawion, Hist, Mag., F«b. 1871, p. 130. 
> MttnhiUl, Life of Washington, ii. 273,274. 

CUIKF JUanCiC of tub OSitEi^ BTATBB. 293 

jurimliotioB of the United States, but such only 
ns may be ... in punuaiice of treaties. It ia 
therefore decreed and ailjudged that the adini* 
falty jurisdiotion, which has been exercised in 
tlie United States by the oonsuls of France, not 
lieing^ so warranted, is not of right** ^ 

Tins April session was the last which Jay at- 
ti»ndcd as chiof justice, though it was not till 
1795 that ho resigned. The causes bi*ought be- 
fore him were, iK'rhaps, not of a char4cter fully 
to test his professional ability, though Wharton 
s|K*aks of his *^ sound, wary, ex'|)crienced judg* 
nicnt,*'' and Story describes him as *^ equally 
distinguished as a rvvolutiouary statesman and 
a general jurist.** ' So far, however, as circuni- 
stanoes |)ermittcil, no o]>])ortuuity was lost of 
establishing the authority ot the court, and pro- 
moting the welfare of the country. 

' Glaa* €t a/, v. The Sloop Botaey H al., 3 DaU. pp. 6-15w 

< Wharton, StaU TriaU^ p. 88, note. 

* Stury, CoMw. on tkt Cuntiiiutiomt I f 210. 



17H 1795. 

The daily increasing ** love • frenzy for 
France/- and the intemperate language of the 
Democratic press, naturally emphasized in Eng- 
land that reaction against America wliich set in 
with the treaty of peace. On the other hand, 
the retention of the frontier posts in violation of 
that treaty was a thorn in tlio side of the young 
Republic. In the course of the war England 
had adopted, by successive Orders in Council, a 
policy ruinous to the commerce of neutral na- 
tions, espe<nally of the United States. In the 
admiralty courts of the various British West 
India islands hundreds of ships from New Eng* 
land were seized and condemned, for carrying 
French produce or bearing cargoes of provisions 
chartered to French ports. The New England 
fishermen and shii)owncrs were vociferous for 
war, and the Democratic clubs denounced every 
British insult and celebrated every French vic- 
tory. On March 26, 1794, an embargo against 


Brituli shi]M was proclaiuiod for thirty days* and 
tlien extoiidod for thirty days longer. The day 
aftor the ciiibargo waa laid, Dayton, of New Jer- . 
Moy, luovcil in Congretis to sequester all moneya 
due to Kritinh ereditora, and apply it towards 
indeuiiiifying shiiMwuers for losse* incurred 
through the Onleni in Council; and on April 
2Ut the Kepublicaus moved a resolution to sua- 
pend all commercial intercourse with Great 
Britain till the western posts should be given up, 
and indemnity be paid for injuries to American 
oommei*ce in violation of the rights of neutrals. 

The })a9sage of such an act meant war ; and 
for war the United States was never more 
unprepared. The resources of the people had 
been taxed in recovering f ram the ruin brought 
by the Revolution and in organizing a govern- 
ment. In spite of Jay's recommendation the 
Confedemtlon had left the country without a 
navy, and there was no army. The veterans of 
the Kevohition in their eastern homes, or in the 
near western colonies had been pauperized by 
the depreciation of the currency, and were 
among the discontented rioters who rebelled 
under Shays in Massachusetts and had threat- 
ened Congress at Philadelphia. Jealousy of 
military influence had prevented their organiza- 
tion into anything like the nucleus of an army, 
and jealousy of federal power had retarded the 

296 JoaH JAY. 

fonnatioii of a new one. Tlie union of tho 
States was too new to bear the strain of a war 
which to half the people would be repugnanti 
and the burden of whieh would fall chiefly on a 
few States. One ])oliuy only was open to a wise 
government, and that was the iH>lic*y of Wasli- 
iugton: ^^ Peace/' he declared, ^* ought to be 
pursued with unremitted zeal before the last 
resource, which has so often been the scourge of 
, nations, and cannot fail to check the advancing 
prosperity of the United States, is contem- 
pbted." » 

Peace could be secured only by immediate 
negotiation and at least a temporary settlement 
of the causes of neutral irritation, and for such 
a task tlie ministers at London and Washing- 
ton were incom})etent or unsuited. Mr. Pinck- 
ney^ the American minister at London, was, 
acconling to John Adams, a man of prejudices 
and strongly pro-GalHcan, while Hammond, the 
English minister at Washington, had little pru- 
dence or moderation/'^ In this crisis Washing- 
ton decided to send to England a spei'ial envoy. 
Hamilton was his first choice, but . I Ir.milton 
had excited bitter enmities ; Monroe warned the 
President against his nomination so soon as it 

* To ChrUtopher Gora, March 5, 17&4, Work$ of Fiiher 
Ames, i. 137. 


was raggiested, and it would doubtless hsTO 
failed of oottftrmation by Che Senate.^ llamiltoti 
then bimaelf proiiused ilio name of Jay : ^ Of the 
persons whom you would deem free from any 
ooustitutioual objei*tionti, Mr. Jay is the only 
man in whoso qiiulillcations for success tlwro 
would bo thorou^li oonfldcnce, and him alone 
it would bo advisable to send/*' Two days 
later Jay was nominateil ; and after three days 
of violent debate was confirmed by tlie Senate. 
*^You cannot imagine/* wrote Adams to hia 
wife the day of the final vote, ^^what horror 
some persons are in, lest peace should continue. 
The prospect of peace throws them into dis* 
tress. • • • The opposition to Mr. Jay has been 
quickened by motives which always influence 
everything in an elective government ... If Jay 
should succeed, it will recommend him to the 
choice of the people for President^ as soon as 
a vacancy shall happen. This will weaken the 
hopes of the Soutliorn States for Jefferson. This 
I believe to bo the secret motive of the oppo* 
sitiou to him, though other things were alleged 
as ostensible reasons; such as his monarchical 
principles, his indifference about the navigation 
of the Mississippi, liis attachment to England^ 

1 Madi'$oH*t Workt,ii.n. 

s To Washiofton, April 14, 17M, Hamilton^i Works, W. 


his averaioii to Franeei nona of which are well 
founded, and hit holding the office of chief jus- 

This month Jay was holding court in Phila- 
delphia. On April 9th he wrote to his wife: 
^^ Yesterday I dined with the President The 
question of war or ))eace seems to be as much 
in suspense here as in New York when I left 
you.*' ^ The next day he wrote again : ^ Peace 
or war apixsars to me a question which cannot 
bo solved. Unless things should take a turn in 
the mean time, I think it will be best on my 
return to push our affairs at liodfonl briskly, 
[where he pro|)osed building a country-house]. 
There is inucli irritation and agitation in this 
town and in Congress. Great Britain has acted 
unwisely and unjustly, and there is some danger 
of our acting intemperately.*' ^ When he heard 
that he might be sent to England, the question 
presented itself to Jay's conscientious mind 
merely as one of duty. He was not for a mo- 
ment misled as to the effect which his mission, 
however successful diplomatically, was almost 
sure to have on his reputation. The learned 
Dr. Camaluin, who became president of Prince- 
ton College in 1823, in his lectures on moral 
philosophy used to quote a conversation between 

> To Mn. Adanu, April It), 1704, Adam$U Letten, ii. l&O. 
« Jag MSS. • Jbid. 

MPeciAL esvor to omkat bmitais. 299 

Jaj And tome friendt at tbii time that was told 
bim by an ear-witness, as a striking instance of 
. oourageons patriotism : *^ Before tbe appoint- 
ment was made, tbe subject was spoken of in 
tbe presence of Jay, and Jay* remarked tbat 
such were the prejudices of the American peo> 
pie, tbat no man could form a treaty with 
Great Britain, however advantageous it might 
Ihj to the country, who would not by his agency 
render biui»clf so uni)opular and odious as to 
bhut all ho]K) of |M>rttical preferment. It was 
suggcHtiHl to Mr. Jay that he was the iwrHon to 
whom this odious oftice was likely to be offered. 
' Well,* replied Mr. Jay, ' if Wanhington shall 
thiuk fit to call me to perform this service, I 
will go and |)erform it to the best of my abili- 
ties, foreseeing as I do the consequences to my 
personal popularity. The good of my country I 
believe demands the sacrifice, and I am ready to 
make it.* " ^ In a similar spirit he wrote to his 
wife April 15th : ^^ The object is so interesting 
to our country, and the combination of circum- 
stances such, that I find myself in a dilemma 
between personal and public considerations.'* 
And again : ^^ Nothing can be more di^itant from 
every wish on my own account. • • • This is not 

> Extravt from Lecture VII., communicated from th« ori|H" 
Ml MSS. by thtt kiHdu«tM uf Mr. McDonald, a graudaou of Dr. 


of iny seeking; on the contrary I regard it as a 
measure not to be desired, but to be submitted 
to/* * His aoceptance he explained a few days 
later : ^ No appointment ever o})crated more 
unpleasantly upon me ; but the public consider- 
ations which were urged, and the manner in 
which it was pressed, strongly impressed me 
with a conviction that to refuse it would be to. 
desert my duty for the sake of my ease and 
domestic concerns and comforts." ' 

On May 12th Jay set sail in the ship Ohio^ 
with his sou Peter Augustus, and with John 
Trumbull, as secretary. On June 8th he landed 
at Falmouth. At the moment of his departure 
the New York Society, in an address to the peo- 
ple, began to fan the embers of that partisan 
virulence which was to flame into frenzy on his 
return. " We most firmly believe,'* it ran, ** that 
he who is an enemy to the French Itevolution 
cannot be a firm republican, and, therefore, 
though he may be a good citizen in other re- 
spects, ought not to be intrusted with the guid- 
ance of any part of the machine of govern- 

^^ The passage across the Atlantic was pleas- 
ant," wrote Trumbull in his ** Autobiography,** 
*^and on the 1st of June we must have been 

> Jay*a Ja^, L 310. 

« To Mn. Juy, April 10, Jay'i Jay, 1. 311. 


near, almott within hearing, of the decisive narnl 
bnlUe which was fought on that daj, between 
the Britinh and the French fleet; for on our 
arriral at Falmouth, a few days after, we found 
there a sloop of war just arrived with despatches 
from Lord Howe, • • • and we met the note of 
triumph at Bath, on our waj to London."' 
There, soon after his arrival, Jay was introduced 
to the cabinet ministers at dinner at Lord Gren- 
ville's, and a few days later lie dined with Lord 
Chancellor Loughborough and Pitt' 

The complaints to be adjusted between the 
two countries were numerous and complicated. 
Great Britain, on the one hand, had retained 
the western military posts in violation of the 
treaty of ])eace, and had made no comitensation 
for the negro slaves carried away by her officers ; 
on the other hand, several of the States had pro- 
vented the collection of debts to English mer- 
chants contracted before the llevolution. The 
boundaries of the United States on the west and 
northeast were unsettled. Great Britain, finally, 
complained of damage to her commerce by 
French privateers fitted out in American ports ; 
while the United States complained of similar 
damage through irregular captures by British 
cruisers. To avoid interminable discussion and 

> AMiMograpkjf of John Trumbull, p. 174. 

* To Alex. llamilUMi, July 11, Jay's Jay, ii. 228. 

302 JOBS JA7. 

hasten an aeoommodationi Jay, at hU first meet- 
ing with Lord Grenyille, the Secretary for For- 
eign Affairs, suggested that they should at first 
avoid written communications, and merely meet 
and converse informally, ^' until there should ap- 
pear a probability of coming to some amicable 
mutual understanding ; " that they should then 
exchange preliminary {mpcrs, which still should 
not be binding, and that in all this thoy should 
not employ secretaries or copyists, in order to 
escape the infiuence of public opinion and na- 
tional feeling as much as possible. They should 
always bear in mind, said Jay, ** that this was 
not a trial of diplomatic fencing, but a solemn 
question of peace or war between two peoples, 
in whose veins flowed the blood of a common 
ancestry, and on whose continued good under- 
standing might perhaps depend the future free- 
dom and happiness of the human race.*' On 
this broad statesmanlike basis was the negotia- 
tion conducted, and the secretaries had a holi- 
day till the treaty was almost ready for signing.^ 
^* I will endeavour to accomuuKlute rather than 
dispute,*' were Jay's woi*ds to Hamilton.' 

On August 5th Jay was able to write to 
Washington : ^'Our prospects become more and 
more promising as we advance in the business. 

* Autobiography of John Trumbull^ pp. 176, 177. 
< July 11, 171M, Jay*s Jay, il 228. 


• • • A treaty of oommeffoa is on tite carpet • • • 
TIm king obierred to me the other day, ^ Well, 
Sir, I imagine jon begin to eee that jroor mis- 
sion will probably be 8UGt*«s8f ul/ * 1 am happy, 
may it please your Majesty, to find that yon en- 
tertain that idea.* ^ Well, but don't you per- 
cteive that it is like to be so ?* * There are somo 
recent circumstances (the answer to my repre- 
sentation, etc.)t which induce me to flatter my- 
self that it will be so.* He nodded with a smile, 
signifying that it was to those circumstances 
that he alluded.'* ^ "^ If I should be able to con- 
clude the business on admissible terms," Jay 
wrote to Hamilton, the next month, ^* I shall do 
it and risque consequences, rather than, by the 
delay of waiting for . • • opinions and instruc- 
tions, hazard a change in the disposition of this 

On November 19th the treaty was signed: 
*^ Further concessions on the part of Great Brit- 
ain," wrote Jay to Oliver Ellsworth on the same 
«lay, ** cannot in my opinion be obtained. • • • 
Tlio minister flatters hiniself that this treaty will 
lie very acceptable to our country, and that some 
of the articles in it will be received as uncquivo> 
cal proofs of good will. We have industriously 
united our efforts to remove difficulties, and few 

1 Jay'a Ja^, iL 220. 

* To Alex. iIaiiiUt4Ni, Sept. U, 17H Jag MSS. 

804 JOBH J AT. 

men would haTa persevered in inob a drj, per- 
plexing business, with so much patienoe and 
temper as he has done.*' * A copy of the treaty 
was at once disimtohod to Congress by an Amer- 
ican soa captain tlien in Loudon, David Blaney ; 
but wind and wave delayed its arrival till the 
session was over. ^^ The winds blue oontinunlly 
from the westward,** is Hluney*s own account of 
tlio voyage, ** from the time tlie ship left Eng- 
land until wo cauie on the course of America. 
... I took a small flask of ruui** [an item, by 
the way, that the Secretary of the Treasury 
wished afterwards to have explained], ^^ to en- - 
courage the sailors to keep a better watch, and 
pay attention to the ship, and promiHcd them all 
small rewanls if the ship arrived at such a time ; 
but we could not alter the contrary winds. • . • 
I mentioned to you • • . the French oruscr boanl- 
ing us, and making mention of the treaty signed 
by you, he seroh*d every part of the ship; but 
such care was taken of the treaty it was impossi- 
ble for it to have been discovered. ... I landed 
at Norfolk at ten o*clock at night, hired horses 
and made all the dcspati^h I could to reach 
Phihulelphia ; my first horse foundered after 
getting to Uichmond, whioh I did in one day 
and part the night. ... In seven days from 
the time I landed in Norfolk I delivered the de- 


•pAtebM to £• Randolph, Esq. ; when I reaob*d 
PbilaAlelphU mj hand aa well as feot was f ros*d. 
f • • Unfortunately tlio Senato had rose as well 
as Conj^rcss three days before I roach'd the 

The main points tliat Jay liad been instructed 
to gniu wore cotuiteniiation for negroes, surren- 
der of the )HMts, and eoiii|HMisation for s|)olia- 
tions i in addition, a eotiiuiervial truaty was d^ 
sired. When Secretary for Foreign Affairs, Jay 
had arguctl that tlie negroes, some three thou- 
MUid in nuniWr, who, at the time of the evacu- 
ation, were within the Dritinh lincH, relying on 
pnx*luniutions timt offeivd fn'edoui« and who fol- 
lowed the troops to Knglund, came within tliat 
olnutiti of the treaty of peace, which provided that 
the army should be withdrawn witliout ^ carry- 
ing away any negroes or other pro|>crty.** ' Lord 
(Jrenville, however, insinted \\\wi\ refusing any 
coiii|)enHution. Once witliin the British lines, 
he said, slaves were free for good and all, and 
could no longer be regarded as pro^ierty for 
which eom))en8ation could be claimed ; and these 
reasons nuist have ap))ealed strongly to Jay*8 
ant i-tihi very convictions. From any jMint of 
view the matter was too insigitiAeant to wreck 
the treaty u|)on it, and Jay waived the claim. 

> From David BUney, Sopt 20, 1705. Jaf MSS, 
* Stent Journa/f, W. 185-2^7. 

806 joaa jAr 

As id the westem posts, it was agreed that 
they should be surrenderod by June 12, 1796. 
But oompensation for the detention was denied 
on the ground, that it was due to the breach of 
the treaty by the United States in permitting 
the States to prevent the recovery of British 

Where the collection of such bona fide debts 
incurred before tlie lievolution had been barred, 
or their value iiui>aired by ^^ legal im|)ediiacnts *' 
since the peace, it was provided that *^ full and 
complete oompensation '* should be made by the 
United States, to be ascertained by a board of 
five commissioners to meet, first, at Philadelphia. 
Similarly, the British government agivcil to make 
^ full and complete compensation ** to Amcricau 
citizens for losses sustained ^^ by reason of irreg- 
ular or illegal captures or condemnations under 
eolour of authority or commiHsions from 1 1 is 
Majesty,*' wherever *^ ailequate eom|)ensation ** 
eaniM>t Im bad at law ; the damages to be ascer- 
tained by a board of five commissioners to sit 
at Loladon. These claims should be decided 
*' according to tiie merits of the several cases, 
and to justice, equity, and the law of nations.*' 
TIm same commissioners were also to pass on 
claims of British subjects for losses by captures 
within the jurisdiction of the United States, 
which agreed to make compensation accordingly. 


It musl haTtt been a delicate nfatter to obtain 
enoh a eonoeMion from Great Britain, for it 
praotioally amonnted to an admiMion that the 
Orders in Council were in violation of neutrality, 
irregular and illegal, though the language was 
skillfully adapted to avoid wounding English 
suscoptibilitios. Under this clause American 
merchants received $10,845,000. Jaj wrote to 
Pickering ; ^ Perfect justice to all parties is the 
object of both tlie articles (vi., vii.), and the 
oomniissioners are empowered to do it, in terms 
as explicit and comprehensive as the English 
language affonls.** ^ 

The disputed questions of boundaries, arising 
from the constniction of the treaty of peace, 
were referred to joint commissioners : properly 
enough, as the confusion was due to ignorance 
of tlie geography of the Northwest 

British and American citizens holding lands 
at the time respectively in the United States and 
in any of the possessions of Great Britain were 
secured in their rights ; a clause much objected 
to in America, but which was obviously just. A 
still more important provision followed, a nov- 
elty in international diplomacy, and a distinct 
advance in civilization : that war between the 
two countries should never be made the pretext 
for confiscation of debts or annulment of con- 
> October 14, 17t)5, Jag MSS, 

808 JOUH JAY. 

traoto between individuab. In the War of 1812 
the United States happened for the moment to 
be the creditor nation, and the millions which 
this provision saved to her citizens it would be 
difficult to estimate, 

^* The commercial part of the treaty/' wrote 
Jay to Washington, ^ may be terminated at the 
expiration of two years after the war, and in tiie 
mean time a state of things more auspicious to 
negotiation will probably arise, especially if the 
next session of Congress should not interpose 
fresh obstacles.*' * It was the commercial arti* 
des which excited the most intense hostility in 
America ; . and one article was very properly re« 
jected. But it was apparently conveuicutly for- 
gotten at the time, that there was then no treaty 
of commerce at all with England, that England, 
according to the economicid notions of the day, 
had little to gain and much to lose by any such 
treaty, and that what privileges she did allow 
were, as Lonl Grcnvillo may well have thought, 
practically gratuitous. As it was, reciprocal 
freedom of commerce was established between 
the United States on the one side and British 
North America and Great. Britain on the other ; 
American vessels were atlmitted to trade between 
American j^rts and tlie East Indies, with cer- 
tain restrictions as to exportation in time of 
> SttpUmber 3, 1705, Ja^ MSS. 


war; and ABierioan tetiieLi of not over setenty 
tons* burden were admitted to earrj to the Brit- 
ish West Indies goods of American growth or 
manufacture, and to export to American ports 
only West Indian productSi on condition that 
*^tlie United States will prohibit and restrain 
the carrying away any molasses, sugar, coffee, 
cocoa, or cotton, in American vessels, either from 
his Majesty's Islands or the United States to 
any ]iart of the world except the United States, . 
reasonable sea-stores excepted.** It was this lat- 
ter clause that was so bitterly condemned. The 
explanation of it, however, is dear. The par* 
ticular articles mentioned were supposed to be 
peculiarly the products of the West Indies, and 
it was unsus{)ected by Jay that cotton was to 
be one of the groat staples of export from this 
country. Such lack of foresight was not sur- 
prising, since, only the previous year, 1794, 
when an Ameriean ship entered Liverpool with 
eight bags of cottou fibre as part of her cargo, 
it was coufiscated as an unlawful importation, 
*^on the assumption that so large a quantity 
could not have been the produce of the United 
States.** ^ Moreover, it seems that it was but a 
few years earlier that the cultivation of cotton 
had been attempted at all, for ^* a member from 
South Carolina observed, in the House of Kep« 

> The First Century o/tht RepuUic, N. Y. 1876, p. 103, 

810 JOBS J AT. 

reaentativies in *89| that tbe people of the South- 
ern States intended to oultivate ootton, and * if 
good Beed could be procured, he believed they 
might succeed.' " ^ 

Tbe remaining articles of the treaty dealt 
with the conduct to be observed by either nation 
when the other was at war. It was agreed that 
when a neutral vessel was captured on suspicion 
of carrying enemy's goods, it should be tried 
speedily at the nearest port, and only the en- 
emy's goods should be confiscated. ^^Contra- 
band" was defined. Privateers were required 
to give security not to injure the commerce of 
the neutral. Acts of reprisal for alleged in- 
juries should not be permitted until complaint 
made and compensation refused. l^Iutual ef- 
forts should be made to abolish piracy. Against 
this final series of articles the two chief objec- 
tions urged were, that they implied that the flag 
does not cover enemy's goods, and tliat provi- 
sions might become contrabaud. But both these 
positions were part of the iuteruatioual law of 
the time. As to enemy's goods, die law as stated 
was: ^^Les marchandizes neutres chargdcs par 
I'enemie sent libres ; mais le papillon neutre ne 
neutralize pas la marehandize encmie."^ And 
as to provisions, the clause in the treaty that 

> Dipiomae^o/tke CT. 8,, p. 2:2a 
* SchoeU, iv. 15. 

apkCUL MNVor to omsat mmitaih. Sll 

eonoerned them was, that whenorer any doubt- 
ful articlei, ^ which had become contraband un- 
der the existing law of nations/* should be 
seised, the neutral owners should receive full 
compensation. The principle then maintained 
by England and denied by the United States* 
that in certain cases — for instance, of imper- 
fect blockade — provisions became contraband, 
has since been generally abandoned even by 
England. But as late as the recent Franco- 
Chinese war the French government declared 
rice, conveyed by neutral vessels to North China 
]K>rts, to be contraband of war ; and when pro> 
visions are to be used in warlike operations, they 
are unquestionably contraband.^ It was finally 
provided that nothing in the treaty should be so 
construed as to conflict with existing treaties 
with other States. It was, therefore, a false 
])olitical cry to assert, as was asserted a thou- 
sand times, that the treaty was in violation of 
the treaties with France. 

It is true that Jay failed to obtain an article 
against impressments ; which then and the next 
year ' he urged on Lord GrenviUe as essential to 
preserve friendship between the two countries. 

> J. R. Soley, ** Th« Effect on AiiMrieatt CommerM of m 
Anglo -Continental War/* Scribner^t Magazine^ November, 

« To Lofd Granville, May 1, 1700, Jag MS3. 

812 JOHH JAT. 

Bat even the War of 1812 failed to aecim a 
formal renunciation of that evil. That negotia- 
tion should hare succeeded in effecting what war 
failed to achieve, was scarcely to be expected. 

To unprejudiced eyes after the lapse of a hun- 
dred years, considering the mutual exasperation 
of the two jieoples, the pride of England in her 
successes in the war with France, the weakness 
and division of the United States, the treaty 
seems a very fair one. Certainly one far less 
favorable to America would have been infmitely 
preferable to a war, and would probably in the 
course of time have been accepted as being so. 
The commercial advantages were not very con- 
siderable, but they at least served as ^* an enter- 
ing wedge,** to quote Jay*s expression, and they 
were pro tanto a clear gain to America. Some 
such thoughts may have been in Lord Shef¥ield*8 
mind, when, at tlie breaking out of the War of 
1812, he remarked: *^ We luive now a complete 
opportunity of getting rid of that most imi>olitio 
treaty of 1794, when Lord Qrenville was so per* 
fectly duped by Jay.** ^ And it is significantly 
admitted by the latest biograplior of the demo- 
cratic hero, Andrew Jackson, that *^ Jay*s treaty 
was a masterpiece of diplomacy, considering the 
time and the circumstances of this country.** ' 

i To Mr. Abbott, Nov. 0, 1812, Contipondtw of Lord Col^ 
eJusttr, ii. 4\JM. 
' SumiMr, Andrew Jackson ^ p. 12. 


TIm truth of the wWe matter was probably 
•zpresied as well aa ever by Lord GrenvUle to 
Jay, in 1796 : ** It U a great satisfaction to me, 
when, in the course of so many unpleasant dis- 
cussions as a public man must necessarily be en- 
gaged in, be is able to look back ui)on any of 
tbein with as much pleasure as 1 derived from 
that which procured me the advantage of friend- 
sliip and intercourse with a man valuable on 
every account • . • I, on my part, should have 
thought tliat I very ill consulted the interests of 
my country, if I had been desirous of terminat- 
ing the points in discussion between us on any 
other footing than that of mutual justice and 
reciprocal advantage ; nor do I conceive that 
any just objection can be stated to tlie great 
work which we jointly accomplished, except on 
the part of those who believe the interests of 
Great Britain and the United States to be in 
contradiction with each other, or who wish to 
make them so.*' ^ 

In England Jay made many friends: the 
Bishop of London, whose parents were Ameri- 
can born, Henry Dundas, Sir William Scott, 
Sir II<>nry Newenham, Edmund Burke, to whom 
ho afterwards sent cuttings of apple trees. Lord 
Chancellor Loughborough, who invited him to 

> From Lord OronviUe, March 17, 1700, Jay** Jay, il 207, 

814 JOttH J AT. 

atteiul the trial of the pyx« and sent him a braoe 
of grouse, Sir John Siuckiiri the President of 
tlte Board of Agriculture, who invited him to 
look at his flock of sheep and various mechan- 
ical inventions, of which he wrote a long ac- 
count to Judge Ilobart, Lord and Lady Morn- 
ington, Jeremy Bentham, Dugald Stewart, and 
William Wilberforce, with each of whom he 
kept up an occasional but most friendly corre- 
spondence for the rest of his life* In Wilber- 
berforce*s diary is tlie entry : *^ Dined at llauip- 
stead to meet Jay (tlie American envoy), his 
son, etc., — quite American — sensible. 1 fear 
there is little spirit of religion in America ; some- 
thing of French, tinctured with more tiuin Eng- 
lish simplicity of manners ; very pleasing, well- 
informed men. American Abolition of Foreign 
Slave Trade." » 

On May 28th Jay arrived in New York. As 
during the ])eriud of his mission he had con- 
tinued to hold the position of cliief justice, he 
refused any compensation except for actual ex- 
penses. The treaty was not published till July 
2d, the day after Jay's inauguration as gov- 
ernor, and then only by a breach of senatorial 
etiquette ; yet some mention must be made here 
of the excitiug scenes which followed. 

Even before its contents were known, letters, 

> Life of WUUam U'l/trr/urcf, ii. 57. 


■igMd ** Fraoklin,** appemred aiming the treaty ; 
and in Philadelphia an eflBgy of Jay was placed 
in the pillory, and finally taken down* guillo- 
tined, the clothes fired, and the body blown up.^ 
It was clear, tlien, that it was not this partietdar 
treaty, but any treaty at all with Great Britain, 
that excited the wrath of the Republicans. On 
July 4th toasts, insulting Jay or making odious 
puns on his name, were the fashion. Two days 
after a copy of the treaty reached Boston, a mass 
uieetiug was called, though there had been no 
time to consider it, and condemnatory resolu- 
tions were passed. In Now York, on tiie 18tli, 
similar action was had ; Hamilton tried to make 
hiutnelf heard, but was stop|)ed by a volley of 
stones ; and the ti*eaty and a picture of Jay were 
burnt on the Bowery. One effigy represented 
Jay holding a pair of scales, with the treaty on 
one side and a bag of gold on the other, while 
from his mouth proceeded this label, *^ Come up 
to my price, and I will sell you my country.'* 
James Savage, once President of the Iklossachu- 
setts Historical Society, told his grandson that 
he remembered seeing these words chalked in 
large white letters around the inclosure of Mr. 
Sobert Treat Paine : — 

^^Damn John Jay! Damn every one that 
won*t damn John Jay I ! Damn every one that 

^ McMiuter, Iliit, of tht People 0/ U. S., U. 213. 

816 JOBS JAY. 

won't pat lights in hia winclowi and tit np ftll 
night damning John Jay ! ! ! "^ 

On June 24th the treaty was ratified by Uie 
Senate, with the exception of ttie article about 
the West India trade. On August 15th it was 
signeil, with the same exception, by Washing- 
ton. The following spring, March 3, 1796, the 
treaty was proclaimed the supremo law of tlie 
land ; yet even then the Republicans, claiming 
that the House had an equal share with tho 
Senate in treaty-making, tried to defeat it by 
preventing the passage of laws necessary to carry 
it into effect ; and the honor of the. nation was 
saved only by the casting vote of Muhlenberg, 
the chairman, in committee of the whole, though 
he was a member of the Democratic Club, and 
in the House only by a majority of three. That 
the essays of Hamilton as ^^ Camillus,** and tiie 
famous speech of Fisher Ames contributed as 
much as anything to this happy issue, is too 
well-known to need more than mention of tho 
fact One may at least, however, receho Ames*s 
]>rayer : ^ Lord, send us peace in our day, that 
the passions of Europe may not inflame the 
sense of America I " * 

Throughout the storm of vituperation Jay 

^ Juku Jay, Stcond Letter on Dawtoii'f Federalitt, N. Y., 
1801, p. H». 
s Works qf Fishier Ame$, I lUO. 


hintelf remained calm and philoiophicaL ** At 
to my negotiation and the treaty/* he wrote to 
Judge Cusliing, ^ I left this country well con- 
Tinced that it would not receive anti-Federal 
approUation ; beftides, I had reatl the history of 
Greece, and was apprized of the politics and 
proceedings of more recent date.*' ^ ^^ Calumny,** 
he said again, ^ is seldom durable, it will in time 
yield to truth.** * lie had at least done his duty, 
though by so doing he very possibly lost the 
Presidency of the United States.' 

> To Judge Cttihinff, Julj 11, 1705, Jag MSS, 
s To John Paitenoii, Not. 17, 1705, Jag MSS. 
• UMmltoa, "* CajHiVK" Jnly 22, 1705, UVi*, tIL 179. 




Bbfoei hU return from Englaiidi and long 
before any detatlii of the treaty were publinheiU 
Jay was nominateil for governor of New York 
by a caucus of the FecloraliHts in the legislaturo, 
and in due time was elected. ^' It had been so 
decreed from the be^^inuing/* ^ wrote Egbert 
Benson ; it had at least been so decreed ever 
since the infamous counting out in 1792. ^^ God 
only knows," was Jay's reply, ** whether my 
removal from the bench ^ to my present station 
will conduce to my comfort or not. The die is 
cast, and nothing remains for me to consider but 
how to fulfill in the best manner the duties in- 
cumbent on me, without any regard to personal 
consequences." • 

One of his first acts as governor showoil his 
conservative adherence to legal customs, even 

1 June 12, na's Ja^ MSS. 

* Jay rvttitfDod Uie cUit»f justicoiihtp of the U. Si. 

* To Egbert UcnMU, Juno 27, m\ Jay MSS. 


when he had {uU diiioretioii. To a Tequeit from 
Gorernor IIiuitington« of Conneotiout, for the 
exiradttion of two eriniiiiali, in a ease where 
urgency aeeinod to justify the omission of lotiie 
of the usual paiwrs. Jay answered : ^* I do not 
think myself at liberty to dispense with the pre* 
else formalities prescribed.** ^ 

In the autumn the yellow fever broke out in 
New York, During the French and English 
war the price of iiecuMarios hiul risen t>nor^ 
monsly, out of ull pruix>rtion to the rise in 
wages; Iiouse rent had ahnost doubled; tho 
poorer ])eopK% mainly Irish immigrants, lived in 
damp ccllarSi and tho system of sewerage also 
was most im|)erfcct, if there could be said to be 
any system at all. In such conditions every* 
thing favoreil tho spread and continuance of 
epidemic diseases. In the autumn of 1701 there 
was an outbraak of yellow fever near Peek 
Slip, among tho boating ]K)pulation, while on 
tho west side intermittent fever was common. 
Occasional cases of the fever occurred during 
tho next few years, till in Aug;ist and Septem- 
ber, 1705, tlicre was a real epidemic. Tar waa 
burnt in tho streets. Tho stiulents left Colum- 
bia College. A member of the health commit- 
tee died of the fever, and one of tTay*s intimate 
friends, Mr. AVentworth, also died of it after 
> To Got. Iluntingtoo, July* n\K% Jag MSS, 

820 joan JAY. 

two days* aioknets. On August 14th Jay iiitued 
a proplamation {orbulding any vessel from the 
West Indies to approach nearer the city than 
Govemor^s Island till she had a health certifi- 
cate from the health officer of the port. •The 
alarm spread to other cities, and Governor Mif- 
flin, of Pennsylvauia, on August 81st, prt>hibited 
^^all intercourse" between Philadelphia and 
New York for a mouth; and intercourse was 
not resumed till October 21st The governor 
of Virginia also ordered all vessels from New 
York to perform quarantine. New York mer- 
chants were gn*atly inconvenienced, and jay« 
lifter consulting the Medical Society, the Ilctdth 
Conunittee, and the mayor, forwarded their re- 
l>orts to Governor MilKIu, urging that the dis- 
ease was strictly localized and under conti*ol, 
and tliat such violent preventive measures were 
unnecessary ; but the memory of the fever in 
Philadelphia in 1793 was too vivid for his words 
to have much effect.^ The French consul and 
his fellow-citizens invited Jay to a ^^ republican 
entertainment" on September 22d, but he de- 
clined, saying: ^^ While general anxiety and 
alarm'* pervaded his native city, it would not 
^^be in his |iowcr to command that degree of 

^ Davis, A Brief Account of the Epidemical Fever which 
latei^ prevailed im the cii^ of New York, N. Y., 17Uo. 


hOarity which beoomas tiieh oonrivial acenea.** ^ 
Throughout the whole period of danger Iia 
stayed in the city, as a matter of duty; and ro^ 
fused an invitation to visit for safety a friend 
in New Jersey, with the explanation : *^Onr sit> 
nation affords us considerable security against 
the disorder, and I think it best tliat my family 
should remain here, lest tlicir removal should 
increase tlio alarm whiuh is already too great. 
If, indeed, the danger should become very immi- 
nent, it would doubtless be right for Mrs. Jay 
and the children to leave mc, and go into the 
country.'*' With the return of cold weather 
tlio plague ceaned, and Jay issued a proclamation 
ap)>ointiiig Thursday, November 2Cth, a day 
for ^^his fcllow-citizcns throughout the State 
to unite in public thanksgiving to that Being 
through whose Providence the ravages of the 
yellow fever liad l>een stayed.*' This was the 
first Thanksgiving Day in New York, though in 
other States, on exceptional occasions, days for 
special thanksgiving had been similarly ap- 
pointed. But the innovation was thought by 
Jay's iM)Iitical enemies to be a stretch of execu* 
tive power, and few acts of his were more bit- 
terly censured than this innocent one of grati- 
tude and reverence. The fever of 1795 is now 

1 To the Consul, Sept. 10, 1195, Jay MSS, 
* To John BUnchard, Oct. », 17tV\ Jay MSS, 


ehiefly noteworthy bittorioally as Uie immedUto 
oaiue of tbo introdaction of an underground 
lyttem of j^weroge.^ 

On January 6, 1796, the legUlature oonvened 
with a Federalist majority in both bouses. It 
was then customary for the governor to open the 
session by a speech which was answered by an 
address. In bis S]>eech, Jay stated that he was 
determined **to regard all his fellow-citizens 
with an equal eye, and to cherish and advance 
merit wherever found ; '* he recommended that 
provision be made for the defense of the State 
in case of war; that the Chancellor and the 
judges of the Supreme Court should receive 
pensions on their superannuation; that a peni- 
tentiary be established for the employment and 
reformation of criminals ; and that some plan 
of internal improvements be adopted for facil- 
itating travel through the State; he also re- 
quested a settlement of the doubts that had 
arisen as to whether the governor had, under 
the Constitution, the exclusive right of nomina- 
tion in the Council of Appointment The legis- 
lature returned a most amiable answer: *'Tbo 
evidence," tliey said, *^ of ability, integrity, and 
patriotism which have been invariably afforded 
by your conduct in the discharge of the variety 
of arduous and important trusts, authorize us to 

1 Schooler, Uisl. of U, S., I 238. 

OOVMMNOM or NSW roMK. 828 

antietpato an adininistrati<m condnoiva to ihm 
wolfara of yoar oonstituents.** The word ** in* 
variably,** which Ilammond tennt ah ^instance 
of legiftlativa tyoophanoyy** > was inacrtod by the 
Sonato« by a Tote o{ eleven to six, on motion of 
Ambrose Spencer, the future chief justioe, who 
was so soon to become a Republican. 

No practical result immediately followed the 
governor's suggestions; and a bill to abolish 
slavery, introduced by an intimate friend of his, 
was defeated by the casting vote of the chair- 
man in committee of the whole. In the springy 
of 179G Jay thought fit to publish his views 
on the French Revolution, in tlie form of a 
letter to a friend, R. G. IIar|)er, who had de- 
fended him with rather undiscriminating zeal, 
asserting timt he always bad expressed ^^the 
utmost pleasure in the French Revolution.'** 
Many politicians would be only too glad to 
have their unpopular opinions discreetly ex- 
plained away or suppressed ; but such was not 
Jay's feeling. lie had from early life, he said, 
expressed ^^ strong dislike for the former arbi* 
trary government of France;" he rejoiced in 
the revolution ^^ which put a period to it," *^ the 
one which limited the power of the king, and re- 
storeil liberty to the people." ** The successors 

1 Hammond, Pol. HUu ofN, r.* p. 07. 

a Jan. 10. 1796, N. Y. Jovrnal, Feb. 2«, 1700. 

824 JOBS JAT, 

of that memorable assembly prodooed another 
revolutioii. They abolished the cotistittttioiial 
government which.had just been establisbedy and 
brought the king to the scaffold.'* That revo- 
lution did not give him pleasure, marked as it 
was by ^ atrocities very injurious to the cause of 
liberty, and offensive to liberty and morality.** 
Yet, as its overtlirow by the combined jiowers 
would be ^ an interference not to be submitted 
^ to,'* he wished success to the revolution so far 
as it had for its object the formation of a con- 
stitution adapted to the people of France, and 
^ not the disorganizing and managing of other 
States, which ought neither to be attempted nor 
permitted." This tenii)crate letter was violently 
attacked by ** An Enemy of Oppression," ^ by 
^Publius," in a series of articles,' and finally 
by ^^ Common Sense,*' the pseudonym of Thomas 
Paine.' Paine's argument was limited to assert- 
ing that, if John Jay had had his way, America 
would never have secured indeiiendence, and 
that Jay once said tliat the Senators should 
have been appointed for life. *^ These are the 
disguised traitors," including Wasliington and 
Adams, ^*that call themselves Federalists."^ 

I N. Y. Journal, Marah 8, 1700. 
s i6iJ.. Maivh 29, April 1, 5. ITtNK 
• Ibid,, April 15, 1700. 
« i6i</..Oct21, 1700. 


JajTt liowaver, wm a rerolatioiiist as trM aa 
Fdna waa, but iDftnitdy wiser* As \ud wrote to 
Vanghaii: ^^ Liberty and reformation may make, 
men mad, and madness of any kind is no bles^ 
ing* I nevertheless think, that there may be a 
time for change, as well as for other things ; all 
that I contend for is, that they be done soberly, 
by sober and discreet men, and in due manner, 
measure, and proportion. It may be said, that 
this cannot always be the case. It is true, and 
we can only regret it. We must take men and 
things as they are, and act accordingly; that is, 
circumspectly.'* ^ 

The governor incurred still further odium by 
refusing to order the flags to be hoisted on Gov- 
enior*s Island and the Battery on the anniver- 
sary of the Tammany Society; the reason he 
gave was, tliat " if such a compliment be paid to 
the Tammany, it ought not to be refused to any 
other of the numerous societies in this city and 

This year, as it is said, at Jay's suggestion, 
a penitentiary was built in New York, on the 
model of the one of which Philadelphia was at 
tliis time so proud. lie also advised the pur- 
chase of BciUoe's Inland for a lazaretto. At his 
suggestion, also, Governor Clinton's recommend* 

1 To Willittm Vaughan, May 20, 1706, Jay MSB. 
* Uttor of May 11, 1790, Ja$ MSB. 

836 JOBM JAY. 

ation of a reraion of tho ponal oode wm re- 
vived, and the number of offenses punishable 
by death was greatly diminished* His strict- 
ness, however, in exercising the right of pardon 
was ilkutrated by his refusal of a request from 
Governor Wofeott, of Connecticut, to intervene 
in behalf of a young gentleman of good family, 
convicted of forgery : ^ Justice • • • cannot look 
with more favorable eye on those who become 
criminal in spite of a good education and of 
good examples than of those other offenders who 
from infancy have lived destitute of those ad- 
vantages.*' ^ 

The seat of government was now changed to 
Albany, where the legislature held its first ses- 
sion, January 2, 1798. No provision was made 
for the governor's residence, so Jay lived in 
lodgings, and was not joined by Mrs. Jay till the 
following year. Again a bill to abolish slavery 
was introduced, but was lost in the Senate. A 
characteristic anecdote of Jay at this time is 
given by Hammond. When the Council of Ap- 
pointment voted on the nomination of a suc- 
cessor to the Secretary of State, who died in 
office. Jay's nominations were rejected time af- 
ter time by a Doctor White and other friends 
of lilajor Hale, of Albany. At last the governor 
reluctantly nominated Hale who was immedi- 
I To Got. Woluott, Oot 20, 1707, Jag M3S. 

aovMMiiOM or nhw tqmk. 82T 

ateljr ooo&nned. ^ The gorernor ioon beeama 
ponvineed that his oppMition to the appointment 
was eauied by erroueous impressioosi and when 
lo eonvinoed he lost no time in eommunicating 
to Doctor White and Major Hale his conviction 
that he was well satisfied that he was wrongs, 
and that the friends of Major Hale were right.'* ' 
In Aprils 1798, Jay was renominated and re- 
elected by the large majority of 2,380 votes, 
about one twelfth of all the votes cast, over the 
Kepublican candidate^ Clianccllor Livingston ; a 
personal triumph, as the Republicans made great 
gains in the legislature. Soon the news of the 
insolent treatment of the American envoys by 
the French government, and the famous X, Y, 
Z letters excited general resentment among the 
people. War with France was thought to be 
imminent In Juno committees of citizens of 
New York petitioned the governor to summon a 
special session of the legislature for the sake of 
passing measures for the better defense of the 
city and the port The mayor and council co- 
operated with the citizens' committees in raising 
money for defense. Jay accordingly by pro- 
clamation called an extraordinary session of the 
legislature to meet at Albany in August, giving 
as his reasons the fear of a war with France and 
the necessity of raising funds and making pre- 

1 UmuiuoimI, PU, UUt. iifX. Y,, pp. 112, 113. 

828 JOBS J AT. 

paralioDS for defense. ^ At thiB plaoei** wrote 
Peter A. Jay« from New York, ** the stream of 
publio opinion continues to run with increasbg 
rapidity in our favor. Several insults lately 
offered to the Cockade«^ and the^ of ^* Hail 
Columbia,'* contributed to accelerate it. A few 
eveniugs ago I was unluckily one of a company 
who received much abuse on account of the lat- 
ter.*' * The legislature, however, was still Fed- 
eralist, and unanimously voted an address to the 
President, pledging the support of the State in 
his endeavors to maintain the rights and honor 
of the nation. Money was also appropriated for 
the erection of fortifications and the purchase of 
arms at the discretion of the governor. 

The extra session adjourned till January 2, 
1799. During this session, in April, emancipa- 
tion was at last enacted. It was provided that 
all children born of slave parents after the 
ensuing 4th of July should be free, subject to 
apprenticeship, in the case of males till the age 
of twenty-eight, in the case of females till the 
age of twenty-five, and the exportation of slaves 
was forbidden. By this process of gradual 
emancipation there was avoided that question 
of compensation which had been the scyret of 

^ Th« FederalisU had aulopted a black oockade aa a diatino* 
liTa badge. 
* Fiom Peter A. Jay, Aug. 1, 1708. 


the failura of earlier bills. At that tine the 
Dttmber of aUrea was only 22*000, amall in pro- 
portion to the total population of nearly a mil- 
lion.^ So the ohange was effected peacefully 
and without ezeitement. Jay himself was a 
slave-holder, in a certain sense. ^ I have three 
male ami three female slaves,** he wrote in a 
return of his property to the Albany assessors, 
November 8, 1798 ; *^ Ave of them are with me 
in this city ; and one of them is in the city of 
New York* I purchase slaves and manumit 
them, at proper ages, and when their faithfid 
services shall have afforded a reasonable retri* 
bution.*** Perhaps the governor's practice in 
this respect may have suggested the practical 
manner of emancipation. 

Though the leginlature was still Federalist, 
and remained so even after the April elections, 
there were a number of members, elected as Fed- 
eralists, who acted in all except personal and 
minor matters with the Itepublicans.* Accord- 
iiigly amendments to the Constitution, proposed 
by the legislature of Massachusetts, increasing 
the disability of aliens, were rejected, in spite of 
the governor*8 favor. Also the House passed a 
Kepublican resolution, which was rejected by 

» RuberU» "^ N«w York,** Am, Comm. Seriu, U. 483, 4d4. 

s JaM MS3, 

• Hommottd, PU, UiM, of N, r., il. 12a 

830 Joas J AT. 

the Senate, for divUing the State into dUtriete 
for the eleetion, by the people, of presidential 

In the electoral college this year Jay received 
nine votes for the Presidency of the United 
States, viz. : those of New Jersey and Delaware^ 
iive out of Connecticut's nine votes, and one 
from lihode Island, 

In his message to the legislature, January, 
1800, the governor delivered *^ a short but grace- 
ful ** eulogy on Washington, who, to the sorrow 
of the country and the ** irreparable loss ** of the 
Federalists as a party, liad died in December. 
He recommended furtlier pravision for the pub- 
lic schools, and various amendments of the laws. 
In March the Republicans renewed the attempt 
to secure a dUtrieting of the State, but without 
success, the Fetleralists deehiring that such an 
act would be unconstitutional, and that it was 
essential that the State shouhl act as a body 
corporate in the choice of presidential electors. 

At the spring elections, contrary to general 
ex|)eetation, through the able |)olitieal nuuiago- 
luent of Ihirr, the Itepublieans triumphed 
throughout the State, wresting New York city 
from the Federalists, and returning a majority 
of twenty-eight to tho House, while the Senate 
was Federalist by only the small majority of 
eight. As it was admitted that the next clee- 


tioa for President would tarn on the Tote of New ' 
York, and New York would oertainly return Be- 
puUioan electors if they were chosen by the leg- 
islature in joint session, as was then the law, it 
was now the interest of the Federalists to ad- 
Tocate their election by the people in districts. 
Accordingly, disregarding the previous record of 
his party and their assertion of the unconstitu- 
tionality of the measure, Hamilton, on May 7th, 
wrote to Governor Jay urging him to call an 
extra session of the legislature to i>ass such an 
act before tlie expiration of the legislative year* 
on July 1st. Philip Schuyler wrote to the same 
effect, saying tliat Marshall was of the same 
opinion : '^ Your friends will justify it,** he con- 
tinued, ** as the only means to save a nation 
from more dinasters, which it munt and proba- 
bly will ex))eriende from the misrule of a man 
who has given such strong evidence that he was 
opiK>sed to the salutary measures of those who 
have been heretofore at the helm, and who is in 
fact pervaded with tlio mad French philoso- 
phy**' ^ Thoiio words well oxprcHsed the fears 
and frenzy of the Federalists. As a party, they 
had created a nation out of a confederation, 
and in tlie spirit of latter-day Kcpublicans who 
felt that they had saved the country from dis- 
membenuent, they were convinced that on their 
1 Ju$ MSS. 


eontiniuuKM in power depended tbe oontervation 
and prosperity of the State. A party whiok 
tacitly or openly holds such a belief will nat- 
urally justify any measure to secure itself in 
'power by the final appeal to national self-pre- 
servation; but such a party in control of the 
guvernuient is a menace to ]K>pular liberty, and 
in any healthy state of public opinion is dooniotl . 
to swift defeat, and, perha]>s, as hap])ened in 
this case, to exiincfion. Jay, though as ** stal- 
wart ** a Federalist as any, nevertheless did not 
believe that a good end ever justified bad 
means; and lie contented himself with simply 
indorsing on Haniilton*s letter the significant 
wonls : — ** Proposing a measure for party pur- 
poses which I think it would not become me to 

Oil the convening of the new legislature in 
November the governor, in his s|)eeuh, depre- 
cated the danger of undue |M)litical excitement 
and urged the suppressioii of partisan inflanuna- 
tory feeling. He alHO recoiumeiided the calling 
of a convention to restrict the number of sena- 
tors and assemblymen. His ap|>cal, however, 
was in vain ; and for tlie remainder of his term 
he was luirassed by the i>artisan attitude of the 
legislature.. Thus that body instantly pi'occedetl 
to elect a new Council of Api>ointmeut, of which 
only one member was * Federalist ; and the new 

eorMMjiOst or mew yomk. 88S 

Cooiioil, from the moneiit when it first met the . 
governor in the following February, began a 
oontrovemy which was settk)d only by an amend- 
ment to the Constitution. 

Before sepaniting, after adjournment on No> 
Tember 8th, the Itepublicans nominated Clin- 
ton as their next candidate for the governorship, 
and the Federalists, in a complimentary address, 
urged Jay to consent to be renoiuiuated. *^ The 
period is now nearly arrived,'* was Jay*s answer, 
^ at which I have for many years intended to 
retire from the cares of public life, and for 
which I have been for more tlian two years pre- 
paring ; not perceiving, after mature considera* 
tiou, that my duties requira me to |K>3tpone it, I 
shall retire accordingly.** ^ 

The contest between the governor and a ma- 
jority of the C(Hii)oil of Ap])ointmont must be 
moatioueil, thougli briefly. On February 11th 
tlie governor made a nomination for sheriff of 
Dutchess County ; it was rejccteil. Seven other 
nominations by him for tlio same oftiee were 
successively rejected. lie then nominated a 
llepublican who was eonilrmcil. On February 
24 til the governor made several nominations for 
slicritT of Sohoharie and sheriff of Orange, but 
all were rejected. Finally a member of the 
Council made a nomination, aud the governor, 

> Jiiy*s Ja$, i. 410, 420. 


instead of putting the qae8t!<ni« inad« nnotW. 
The iisoe was now defined, the governor insist- 
ing on the sole right of nomination, and the 
Council chiiming, for the first time, a eonour- 
rent right The governor never called the Coun- 
cil together again. In a special message to the 
legislature he referred to his first address as 
governor, when be bad requested a settlement 
of the question, ami now he again asked their 
directions. The legislature declined acting on 
a constitutional question. He asked the opinion 
of tlie judges of the Supreme Court and the 
chancellor ; but they refused to decide the ques- 
tion, as extra-judicial. On April Gth an act ^'as 
passed ^* recommending a convention *' to ascer- 
tain the construction of the disputed clause in 
the Constitution, and to consider the question of 
diminishing the number of senators and assem- 
blymen. The convention, which met after the 
election of Clinton as governor, upheld the posi- 
tion of the Council. In the later Constitutional 
Convention of 1821 Governor Tompkins, who 
ha<l voted against his party in the earlier body, 
declared that it was *^ assouibicd to sanction a 
violent construction of the Constitution. Then, 
the maxim was to strip the governor of as much 
power as possible. Now, gentlemen are for 
giving him more power.'* ^ It was, indeed, tlie 
1 lUmmoiM]. Pol. Ilitl. o/N, y., u. 155, VA, 100, 107. 

aorKMkoM or mew tou. SS5 

aDowlttf SMmben of ike Comdl, mmtmg vImmi 
WMO variom tenalons to ozoTBiae ike power of 
ooiaiMiiioB at well at of eonfinnatioii, tkal wtadm 
the Coaneil a bj-woid for political eorruptioii 
and favorittsni until popular contempt achicTed 
its abolition. 

In his first address to tbe legislature, as wo 
haYo seen. Jay had announced that he would 
seek out and advance merit wherever found; 
and there is no reason to doubt that, so far as 
the political complexion of the Council and the 
exigencies of the tiroes permitted, he endeav* 
ored to do so. For appointments, however, he 
was not solelj res|ionsible, and for removals he 
was not necessarily responsible at all, as a per* 
son might be removed from office on motion of 
any member of tlie Council by a majority vote. 
His son. Judge William Jay, says : — 

** During the six years of Governor Jay*s ad- 
ministration, not one individual was dismissed 
by him from office on account of his politics. 
So long as an officer discharged his duties with 
fidelity and ability, he was certain of being con- 
tinued, and lieneo his devotion to the public lie- 
came idcntided with his personal interest It is 
related that in the Council a member was urg- 
ing in behalf of a candidate his zeal and use- 
fulness as a Federalist, when he was intt^mipted 
by the governor, with : * That, sir, is not the ques- 

886 JOBS JAY. 

tion ; U he fit for the office ? ' *' ^ And it is tig- 
nificant that, in answer to this statementi Ham- 
moml, the Uepublioan historian of New York, 
could only point to two cases where the causes 
for removal might possibly have been political, 
but were not certainly so. Mr. Flanders cor- 
roborates Judge Jay, saying : — 

*^The practice of removing officers, on a 
change of administration, had not yet been in« 
troduced. Governor Jay dismissed no officer 
during the six years of his administration on 
account of his political opinions. On one oc- 
casion he was urged to remove a member of his 
own party, who had little- or no influence, to 
make room for one of the opposite party, who 
possessed a great deal, and would, if appointed, 
use it in favor of his new connections. * And do 
you, sir,* replied the governor to this unusual 
application, * advise me to sell a friend that I 
may buy an enemy ? ' " * 

In respect to the whole question under consid- 
eration Jay was sensitively conscientious. Thus, 
when Gouvemeur Morris asked him to recom- 
mend a nephew of l^Iorris's to the President for 
an appointment, the refusal, which I^Iorris said 
he had anticipated, was prompt: *^It appears 
to me,** said Jay, ^^that the President of the 

1 Jaj*t Jay, i. 302. 

» KlaiMlers, Chief Jtuiicet, i. 416. 

eovMMSOM or n£w rpMK. 88T 

United SUtei and the goTernors of indiTidiud 
States should forbear to interpose their official 
or personal influence with each the 
appointment of officers. It would open a door 
for reciprocal recommendations which would fre- 
quently prove embarnusing from the difficulty 
of always reconciling them to local circum* 
stances and public considerations.** ^ 

Jay*s determination to retire from public life 
was absolute and finaL He was unmoved even 
by the complimentary letter of President Ad- 
ams, announcing his unsolicited nomination and 
confirmation, a second time, as Chief Justice of 
the United States. ** I had no permission from 
you,** suid President Adams, ^* to take this step, 
but it ap])eared to me that Providence had 
thrown in my way an opportunity, not only of 
marking to the public the spot where, in my 
opinion, the greatest moss of worth remained 
collected in one individual, but of furnishing 
my country with the best security its inhabit- 
ants afforded against its increasing dissolution 
of morals.** > " I left the Bench,*' Jay replied, 
^^ perfectly convinced that under a system so de- 
fective it would not obtain the energy, weight, 
and dignity which was essential to its affording 
duo support to the national government; nor 

» To G. Moprk, Not. 26, 1700, Jag MSS. 

s John Adaiua to Jay, Deo. 10, 1800, J»y*t Jag, iL 421. 

838 Joan jay. 

acquire the publio confidence and respect wluch, 
as the last resort of the justice of the nation, it 
sliould possess. Hence I am induced to doubt 
both the propriety and the expediency of my re- 
turning to the licnch under the present system. 
... Independently of tliese consiidcnitious, the 
state of my health removes every doubt.'* ^ 

On January 13th the Federal Freeholders of 
New York passed resolutions commending his 
public services and regretting his retirement; 
and his answer showed how far removed he was 
from the violent partisanship of the day: ^^ I 
take the liberty of suggesting whether the patri- 
otic principles on which we profess to act do 
not call upon us to give (as fur as may de|>end 
upon us) fair and full effect to tlie known sense 
and intention of a majority of the people, in 
every constitutional exercise of their will, and to 
support every administration of the government 
of our country, which may prove to be intelli* 
gent and upright, of whatever party the ])4>rson8 
composing it may be.**' Theno certainly are 
not the words of a disappointed and embittered 
politician. In May the cori)oration of Albany 
presented him with the freedom of the city, ^^ as 
a further testimony of the high sense the Com- 

1 To Preude0i Adams, Jan. 2, 1801, Jay MSS. 
s Ja^ MS8, 


mon Coaneil entertain of your ezoelIeno]r*t ex- 
alted character,*' ^ 

Thus ends tUe public life of John Jaj. For 
twenty-eight ycani ho bad been continuously in 
office, his appointments not infrequently over- 
lapping one another. But public office had 
always been to him a public trust, or rather a 
public duty, and ho cared for neither its repu- 
tation nor its emoluments. 
1 Ja^ MS3. 



The time hud eome at last to wbidi Jay liad 
for years looked forward with so much eager* 
ness, when, reliovoil from ptiblio cares^ he might 
devote himself to those quiet country pursuits 
which he loved, to the society of his wife, and 
the education of his children. He had inher- 
ited a property of some eight hundred acres at 
Bedford, Westchester County, forty miles from 
New York, which had fallen to his mother*8 
share on the partition of the old Van Cortlandt 
estate. To this he had added by ' purchases 
from his brothers : here for some years he had 
been repairing and building additions to the 
dwelling-house, and now with his family he 
retired to th'.s new home, where he lived contin- 
uously for tiie remaining twenty-eight years of 
his life. 

No sooner, i«owcver, was the cup of happiness 
at his li])s tlmn \t was dashed to tlie ground ; 
for within a year he had to mourn the death of 


his dearly beloTed wife. Since their marriage 
they had been pained by constant Beparationa, 
but their love for each other had ever been so 
great as to provoke the gentle raillery of their 
friends, and to the day of her dt'ath Jay had not 
come to sink the lover in the husband. *^ Tell 
me/* he wrote to her not many years before, 
referring to her eyes that he had not gazed on 
for months, ^* tell me, are tliey as bright as 
ever?" and her letters to him were always what 
she was fond of calling tliem, *^ little messengora 
of love.** 

His loneliness, fortunately, was lightened by 
the presence of his children: Ann, who never 
married and in disposition was extremely like 
her father, now just growing into womanhood ; 
William, a serious, studious lad of thirteen 
years ; and Sarah, a pretty little girl, who was 
to die unmarried when only twenty-six years of 
age. In 180C an older daughter, Maria Banyer, 
joined the family group on her husbaud's death, 
bringing with her a charming little child, who 
also soon passed away. l^Irs. Banyer and Miss 
Jay lived afterwards a long, gentle life of quiet 
iK'ncvoleuce in New York ; there were few works 
of chanty in wliicli they had not a part ; and 
they were the fairy gcMlniothers of countless 
young nephews and nieoes. 

For a time the household at Bedford must 

842 JOBN JAY. 

bare been % somewliat sod one« but gradually 
Jay found content and hapiiinomi in the simple 
country life, with its regular and early hours, 
with experiments in farming and horticulture, 
with a little reading, frequent correspondence 
with Wilberforce in England, Lafayette and 
Vaughan in France, and Judge Peters in Phila- 
delphia, and occasional visits from old friends 
who lived within a few days' drive. " My ex- 
pectations from retirement,*' he was soon able 
to say, ^^bave not been disap|)ointed, and had 
^Irs. Jay continued with me, I should deem this 
the most agreeable part of my life. The post, 
once a week, brings me our newspapers, which 
furnish a history of the times." • . . *^ Atten- 
tion to little improvements, occasional visits, the 
history which my recollections furnish, and fre- 
quent conversation with the ^ mighty dead,' who, 
in a certain sense, live in their works, together 
with the succession of onliuary occurrences, pre- 
serve me from ennuL • . • Party feuds give me 
concern ; but they seldom obtrude upon me." 

** My farm," he wrote to Judge Peters, " was 
from its first settlement occupied *y tenants. 
They have left no trees fit for rails ; nor can [ 
obtain a supply in this neighborhood. The 
stones they could not destroy, and they are the 
only materials I have for fence. With some ex- 
l)ense I had collected and formed a flock [of 

/jr M£TiM£M£NT, S48 

fihoep] wliioh plcaiied met but the unoeaHiDg eara 
Mid trouble of keeping theiii« itiduoed me to sell 
them, and to buy what are here called otter 
■lieop. They have short, crooked legs, and are 
no beauties, • • .. but they are orderly and stay 
at home, and that is more than can be said of 
most beauties.**^ To Washington, at Mount 
Vernon, ho had written about the wisdom of in- 
troducing a breed of mules. With others he 
discussed a new kind of rye, and the novel use 
of plaster for manuring. *^A frost took my 
watermelons when they were about as largo as a 
marble," be wrote to Judge Peters, who, though 
still occupying the bench at au advanced age, 
shared Jay*s interest in agriculture. ^^Tliey 
turned black, and drop]KHl otf. The ends of the 
vines bi^gun to die, and continued, to do so for 
some days. I then had the vines cut below the 
mortified part, and the whole well sprinkled with 
plaster. They recovered, and brought some, 
though not much, fruit to perfection. I believe,** 
he continued, ^ that you and I derive more real 
satisfaction from attending to our vines and 
fruit trees than most conquerors from cultivat- 
ing their favourite laurels." * 

Many trees, elms and maples, he planted 
about Bedford ^ indeed, several years earlier, in 

1 Nov. 21, 1810. 

s i\h. 20, ISIO, Jay*a Jag, ii. S2S. 

844 JOUN J AT, 

sending tome mulberry trees to hit son Peter, 
he beeame almost euthusiastio over what lie 
called this *^ innocent and rational amusement.*' 
*^ It always gives me pleasure to see trees which 
I have reareil and planted,'* he said, ^* and there- 
fore I reconunond it to you to do tlie same, • • • 
My father planted many trues, and I never walk 
in their shade without deriving additional pleas- 
ure from that eircumstan(*e. The time will 
probably come when you will experience sbnilar 
emotions/* * 

lie was always fond of animals, and unusually 
kind to them. In 1783, amid the cares and 
anxieties of the negotiations, he was mindful to 
write to his son : ** If my old mare is alive, I 
must beg of you and my brother to take very 
good care of her. I mean tliat she shoidd be 
well fed and live idle, unless my brother Peter 
should choose to use her. If it should be neces* 
sary to advance money to recover her, I am eon- 
tent you should do it even to the amount of 
double her value." It was probably of another 
mare that ho wrote to Judge Petors, in 1811 : 
"There was a mare belonging to my father, 
which I rode as soon as I could ride. She was 
a favorite, and often carried me to and from 
school. Of her stock I have always had saddle 
horses. Those which I selected for that pur- 

» April 25. 1702, Jay USS. 

/jr METiMSMKHT. 843 

pote remabed mine as long Im they lived ; mud 
the femembranoe of them recalls that of agree- 
able clays and incidents. The one I now have 
is above twenty years old, and« though of little 
real value« has more of my imrticular care ami 
attention than any of the others of wliatever 
price. This kind of favoritism or predilection 
may not be philosophical, but it is innocent 
and pleasing, and I indulge it • • • It is a 
rainy afternoon, I have written a long letter, 
and should probably continue to amuse my« 
self in writing on to the next page, but it is 
now so dark that I can hardly read what I 

He was frequently written to for advice on 
public or scuii-publio questions, and always re- 
s|)ouded with habitual frankness and cHmimon 
sense* Williuni Willx^rforco re<|uestcd his views 
about the Uefonu Bill, which ho was agitating 
in Parliament. *^ Wise and good borough-hold- 
ers, like wise and good kings,** replied Juy, 
*^ doubtless wish and endeavor to make the best 
a]»pointnients ; but ought cither borough • hold- 
ers or kings to apiK>iut representatives for the 
nation ?'*> 

A company at Mamaroneck applied to the 
legislature for authority to increase its water 

1 Ool. 10,1811, /ay 3rSS. 

* Oct. 25, 1810, Jay*t Ja^, iL 331. 


supply by o?erflowing adjacent land oompulso* 
f ily on payment of damages. Jay indignantly 
asserted legal principles, which, perhaps, have 
been too little considered by subsequent legisla- 
tures. ^^ When a piece of ground is wanted for 
a use impoi^ant to the State, I know/* he said, 
^^ tlie State has a right to take it from the owner 
on paying tlie full value of it ; but certainly the 
legishiture has no right to compel a freeliohlor 
to part with his land to any of his fcUow-cit- 
ia^uns, nor to deprive him of tlie use of it, in 
order to uccommodate one or more of his neigh- 
bors in the prosecution of their particular triule 
or business. Such an act, by violating the rights 
of pro|>eriy, would be a most dangerous prec- 
edent." » 

The governor of Ohio submitted to him some 
plans for taxation: ^^ However extensive the 
constitutional power of a government to impose 
taxes may be,** was Jay*s reply, ^^I think it 
should not be so exercised as to imjiede or dis- 
courage the lawful and useful industry and ex- 
ertions of individuals. Hence, the prudence of 
taxing the proiluctH of bcnciicial labor, either 
mental or manual, up|K*ars to be at least ques- 
tionable. . • . Whether taxation should extend 
only to property, or only to income, are points 
on which opinions have not been uniform. I 

> Tu PttUr Jay Munroo, Miiroh 2, 1812, Jay J/55. 


Am inoliiied to think that both thould not be 
toxed.*' » 

A pamphlet was sent him on ** The MiMouri 
Quentioii/* in 1810, and in ackuowlodging it he 
expressed his own very decided opinion : ^^ Tiie 
obvious dictates both of morality and policy 
teach us, that our free nation cannot enoouruga 
the extension of slavery, nor the multiplication 
of slaves, without doing violence to their prin- 
ciples, and without depressing their i>ower and 
proHpcrity," ' 

In |)olitios Jay studiously avoideil taking any 
active part, though lie ])er formed his duties as a 
citizen with unosteututious punctuality, and con- 
tinued as ever to take keen interest in afPaim. 
^^Ile read the pa|)ers constantly,** said Judge 
AVilliam Juy, contradicting a report to the con- 
trary, *^ and at times took imperii of opposite pol- 
itics, that he might obtain more full information 
of passing events.** ' ^^ The proprieties attached 
to a situation like mine,** wrote Jay to Picker- 
ing in 1808^ ^^ assign certain limits to active 
intorferen(*es in political concents. I attend 
every election, even for town officers, and, hav- 
ing delivci*cd my ballots, return home, without 

^ To E. A. Diovn, Go?, of Ohio, April 30, 1821, Jay*! Jag, 
IL 420, 421. 

• To Daniel Raymond, Dee. 21, 1810, J«y*i Jag, U. 406. 

• Hanuiiuud, Pol, JJUt. ^/*.V, r., I. IW, nolo. 

848 JOHN JAY, 

having mingled in the crowd or participated in 
their altercations.*' ^ 

To Jay, as to most of the older Federalists, 
the War of 1812 seemed ill-advised. He said: 
*^In my opiuton, the declaration of war was 
neither necessary, nor expedient, nor reason- 
able; and I think that they who entertain this 
opinion do well in expressing it, both iudividu* 
ally and collectively ; " but he added this impor- 
tant qualification : /^ As tlie war has been con* 
Biitutlonally declared, the people are evidently 
bound to sup|K)rt it in the manner whicli consti- 
tutional laws do or shall prescribe.'*^ lie ao- 
cordin<>:ly for the time joined that section of the 
Federalists known as the Peace Party ; but ho 
was no partisan, and when the party nouiinatod 
for assemblyman, from Westchester County, a 
man of objectionable private character. Jay and 
his friends promptly joined in defeating him. 
In vindicating his action, he laid down the 
ethical rules that should determine obligation to 
one*s party, rules of general application, but 
which in these days would be stigmatized as the 
unpractical notions of a doctrinaire or ^^ Mug- 
wump." "We approve,*' lie said, "of the cus- 
tomary mode of nominating candidates, and have 
uniformly concurred in it ; that concurrence cer- 

> Dee. 24, ISOS, Jay MS3. 

s July 2S, 1812, Jay's Jay, i. 445. 


tainly iBvolfad our tftoit ansent to be bound by 
tbe nominations which sliould be lo made. Bat 
it it equally certain that such consent did, does, 
and ever will rest on the condition, trust, und 
oonfidenco that such nominations onlj be made 
as we could or can support, without transgress- 
ing the obligations we are under to preserve our 
characters and our minds free from humiliation 
and reproach, • • • Adherence to party has its 
limits, and they are prescribed and marked by 
that Supreme Wisdom which has united and 
associated true policy with rectitude, and hon* 
our, and sclf-re8|)cet** * 

In 1815 Jay became president of the West- 
chester Bible Society; the next year, on the 
organization of the American fiible Society, he 
was appointed one of its vice-presidents, and, on 
the death of Elias Boudinot in 1821, its presi- 
dent, lie was also a member of the Tract and 
Sunday-school societies, and of that for educat- 
ing pious youth for the ministry. In 1814, he 
was elected a member of the American Anti- 
quarian Society. 

Jay*s health had always been delicate: now, 
in his later years, ho was seldom free from 
attacks of rheumatism, or some disorder of the 
liver, but the most serious ailment of all was 
what ho termed ^^ tlie incurable '* one of old age. 
> Jay*a Ja^, I 440. 

850 JOBN JAY. 

In 1818 Gouvemear Morris asked htm to be- 
come godfather to his son : ^ True it is that you 
may not be able to perform the duties of that 
oi!ice ; but, my friend, should you be miugled 
with the dust, he shall learn from the history of 
your life, that a man must be truly pious to be 
truly great." ^ But Jay felt bound to decline 
on the ground of old age; ^^as I expect,*' he 
said, ^^to remove at a more early period to a 
distant country, where I shall not be in a capac- 
ity to attend to persons or things here.'* ' 

In 1814 he was invited by Rufus King to 
join their friends in the city ^* in the proposed 
celebration of the overthrow and repulsion of 
Bonaparte;" but he regretted that his health 
prevented his presence on ^* so joyful an occa- 
sion."^ In 1821 a note in the third volume of 
Franklin's Works, then just published, that the 
editor had consulted journals kept by Jay and 
Adams concerning tlie peace negotiations, leil 
the two old friends once more to exchange let- 
ters. The note was of course erroneous. There 
was, however, something touching in the greet- 
ing of these aged men. ^^ I too am feeble and 
confined to the house the greater part of the 
winter,'* wrote Adams, ^^ but I hone to crawl 

> Feb. 15, 1813, Jay'i /ay, U. S55. 

* Ibid,, p. 35«. 

• June 23, 1814, Jay MSS, 

MN it£TiM£MMNT. 851 

Otti like A turtle in the spring ; yonr ehirog* - 
raphy gi?ef me full assurance that joa will be 
on horsoback before that time/* ^ ^Tor twelve 
years past," wrote Jay* *^I have not had one 
well day. • . • It rarely happens that the mal* 
aclics and infirmities which generally accom* 
pany old age will yield to medical skill; but 
happily for us patience and resignation are 
excellent palliatives.*' * ** I hope," replied Ad- 
ams, *^you will be a member of the conven- 
tion in New York [for the revision of the Con- 
stitution]. It will want some such heart-of-oak 
pillar to support the temple.'*' But the old 
statesman was not called on to attend the con- 
vention, though his son, Peter Augustus, was a 

Occasional visits from friends to Bedford 
cheered Jay's declining years. Then, as he 
smoked his long clay pipe, he used to delight 
in telling anecdotes of the Revolution, the true 
history of which he often said never had been 
and never would bo written. Of such conversa- 
tions, unfortunately, there is but scanty record. 
His opinion of the Second Continental Con- 
gress, expressed to Gouverneur Morris, has been 
already quoted; and Fenimore Cooper was so 
impressed by hearing from his lips a story of 
his own experience as to make it the ground* 

» March a. 18-'l. « May 7» 1821. . • May 13, 1821. 

852 JOBS JAY. 

work of ^The Spy.** Jay was speaking of the 
heroism and patriotism shown during the Revo* 
hition by men in humble life and little learning. 
When on a secret committee to prevent the 
enlistment of troops in Westchester County by 
the British, he h«id occasion to employ a poor 
man, ^* but cool, shrewd, and fearless,** to act the 
part of a spy. ^^ It was his office to learn in 
what part of the country the agentb of the crown 
were making their efforts to emboily men, to 
repair to the place, enlist, appear zealous in the 
cause he affected to serve, and otherwise to get 
possession of as many of the secrets of the en- 
emy as possible.** He ran the risk not only of 
discovery by the English but of falling into the 
hands of his fellow-countrymen. Frequently he 
was arrested by the local authorities and once 
he was condemned to the gallows, and was saved 
only just in time by private orders to his jailer. 
** By the Americans in his little sphere he was 
denounced as a bold and inveterate Tory.** 
Thus he continued to serve his country in secret 
during the early years of the Ke volution. Jay, 
on being appointed to Spain, rejuirtcd an out- 
line of the facts to Congress and obtained an 
appropriation for his agent, without revealing his 
name ; and undertook to deliver the money per- 
sonally. They met in a wood at midnight. Jay 
praised his companion for his fidelity and adroit- 

W MgTiMMMMitT. S58 

and finally tendered the monejr; bat tiM 
i drew Ueck and refused to reeem it. ^TIm 
ooiintry has need of all its means*" he said; ^aa 
for myself, I can work, or gain a liToliliood m 
various ways." * 

In the spring of 1818 Peter Tan Schaaek and 
Judge Egbert Benson ^ went from Kinderhook 
to IknUord, in the Judge's one-horse wagon, • • • 
to visit their mutual and bosom friend, Mr. Jay. 
They were both, at this time, upwards of sev- 
enty."* •*A happy new year," wrote Van 
Schaaek, at the dawn of 1826. ""You have 
passed fourscore, and I am but a few months 
from it Benson is between us, and I shall 
soon be followed by Harrison, Watts, and Rut- 
gers. These I believe are all that survive of our 
college contemporaries. JVbs turba sumus,*^* 
Two years later, in an address before the New 
York Historical Society, Judge Kent referred 
to Jay as the sole survivor of those who sat in 
the First Continental Congress. The next year 
Jay joined the rest of that ^* memorable con* 

*^ For many months before his death he was 
unable to walk without assistance. During the 
day he imssed much of the time in his own 

> J. Pentmore Cooper, Introductica to The Spg» 

* Life of Peter van Schaaek, p. 451. 

• Ibid,, p. 4bS. 

854 JOHH JAY. 

room ; the oToniDgs were spent with bis children 
and guests, partly in conversation, and partly in 
listening to books which were read aloud by one 
of the family. Unable to attend church, he oc- 
casionally had the Lord's Supper administered 
to him in his cluunber.** In the night of May 
14, 1829, he had an attack of palsy, and on tho 
17th he died. In his will he remembered his 
servants, and gave his gold watch to his special 
attendant ; he directed that there should be ^^ no 
scarfs, no rings,'* provided at the funeral ; ** in* 
stead thereof I give two hundred dollars to any 
one poor deserving widow or orphan of this town, 
whom my children shall select." The funeral 
services were held at Bedford, but he was buried 
in the family graveyard at Kye. In New York 
the courts were in session, and brief eulogies 
were delivered by the presiding judges on news 
of the decease of the lute chief justice. ^ Few 
men in any country, perlmps scarce one in this," 
said chief justice Jones at the opening of the 
Superior Court, ^^ have filled a larger space, and 
few ever passed through life with such perfect 
purity, integrity, and honour." ^ 

Jay's principles of conduct were so unvarying, 

and his actions so consistent with them and with 

one another, that the most caraless reader of his 

life, if it has been fairly presented, must be al- 

> Mirror, May 30, 1820. 


ready fMniliar with the dignified and limple 
eharaoter of the man. ETerjrthing he did teems 
to have btai inspired by a keen tense of impeiw 
tonal moral duty. He might for a time he un- 
oertain at to what this duty wat, but the mo- 
ment it wat clear to him, he acted accordingly* 
promptly, fearlessly, without regard to personal 
considerations, undeterred by the consequences 
to his friends or his family. It was this single- 
ness and uprightness of pur|)ose, and the firm- 
ness with which he adhered to it, that made 
Adams call him ^^ a Roman/* In disposition he 
was more like an anciient hero, such as Cato, than 
he was like any of his contempoiaries; but 
where the Roman found moral inspiration in 
philosophy. Jay found both inspiration and great 
comfort and happiness in religion. It was one 
of his favorite remarks, that if men would never 
forget that the world was under the guidance of 
a Providence which never erred, it would save 
much UHcIcss anxiety, and prevent a great many 
mistakes. This optimistic fatalism, if one may 
so term it, produced in Jay a singular serenity 
of temper. When he had done what he con- j 

ceivcd to be his duty, he was satisfied that all 
was for the best and wos'undistracted by pop- 
ular applause or condemnation. 

Such complete self-dependence and self-con- 
trol are generally held by the world at large to 

856 JOBH JAT. 

be somewhat ttnamiable qualities; and many 
liuve doubtless deemed Jay« in consequence, a 
cold, austere man, with all the classic virtues, 
but also with much of classic remoteness from 
ordinary humanity. Such, however, is very far 
from truth. No man in his day had warmer, 
truer, or more constant friends. There were 
few who were nearer to the heart of Washing* 
ton. Hamilton from early youth admired and 
trusted him. He won even tlio affection of those 
who, like Alexander McDougall and John 
Adams, began by misunderstanding him. His 
friendship with Franklin was unaffected by their 
•lifferenees at the negotiation of tlic peace ; and 
his friendship with Peter van Schaaek seemed 
to be only sti*engthened by the sternness of his 
judgment in the Secret Committee. £ven Cap- 
tain Paul Jones wrote from Paris : ^* As there is 
no man who inspires me with more esteem than 
yourself, I beg you to accept my bust as a mark 
of my affection ; ** ^ and it must have been a 
lovable character, indeed, to whom Gouverneur 
Morris would have sent this brief note across 
the sea : — 

*^ Dear Sir, — It is now within a few min* 
utes of the time when tlie mail is made up and 
sent off. I cannot therefore do more than just 
^ F«k8,nsi,JaylfSS. 


joa of tlia MntimuuiM of my love. 
Adiou. * Yoan, Gouv. MosHia.**^ 

^ To tao thiagi u they are, to estimate them 
aright, and to aot aoeordisgly, is to be wise,** 
Jay once wrote to Wilberforce ; * and this say- 
ing he repeated again, with the addition : ^ to 
do this effeotually, self-command is absolutely 
indispensable. To look at objects through our 
passions is like seeing through colored glass, 
which always paints what we view in its own 
and not in the true color.*' ' **To avoid mis- 
takes,** he said again, ^it is necessary to see 
things as tltey really are. Miuuti» are often 
omitted, or imperfectly drawn in representations. 
Great part of the good within our reach dcjiends 
on minutia); they merit more attention than 
many apprehend.**^ Here is to be found the 
secret of Jay*s great success as a compromiser 
and negotiator. Without prejudice, he would 
proceed carefully to examine all the facts, and 
then it would seldom happen that they would 
not suggest a course of action at once obvious 
and mutually satisfactory. 

He was eminently prudent, discreet, wary, and, 

» Nov. 7. 1783, Jay MSS, 

* Not. 3. 1809, Jay'i Jay, ii 32a 

• J»fB Jay, il4'J9. 

« To B. Vaugluui, March 21, I7&t, Jay MSB, 

858 Joan jay. 

though oonaoientiottsly truthful, averse to say- 
ing more than was neoossary. Pnidenoe was a 
virtue inherited from his father, and he handed 
on the tradition to his children, **The longer 
we livoi and observe what pusses in the world/' 
ho said, ** the more we become sensible ot the 
value aud of the necessity of prudence.** ^ The 
lesson was verified by the misunderstandings of 
the factions at the beginning of the Uevolution, 
by the false constructions put on language by 
the anti-Federalist and Democratic demagogues 
and newspapers. As he became old the habit 
of reticence grew upon him ; but it had always 
been a i)er8onal characteristic, as is shown by an 
anecdote that Colonel Troup used to toll. ^^ ^ Let 
us ride over,* said General Gates to Troup, soon 
after the surrender of Burgoyne, * and see the 
chief justice * [who was thou at Flshkill] ; ^ I 
wish to learn his opinion of our late Saratoga 
Convention.* They went; and during a two 
hours* visit Gates labored in vain to draw from 
Mr. Jay some favorable opinion of that military 
mistake. Finding himself ever balUcd, he at 
length ventured upon the direct t|uesiion : * Pray, 
Mr. chief justice, do you not think the Sara* 
toga convention a good convention?* * Un- 
questionably, my dear general,* was the ready 
reply, ^provided you could not have made a 
^ From Letten to his Childnn, Jay*! Jay^ iL 428. 


bettor.* ^Come/ Mud the general to hit eoni* 
INtnUm, *it it time for ue to go.* **' Profeseor 
MoViokar, of Colombia College* whoee sister 
hod married William Jay, and who was ever a 
woleome visitor at Dedford, relates a similar ex- 
perience with Jay in his later years. Once, with 
some pertinacity, he pressed the old gentleman 
for an opinion on the authenticity of Washing- 
ton's Farewell Address. The discovery of a 
oopy of it among Hamilton's papers in his hand- 
writing, had raised tlie question of its author- 
ttliip, which, as a matter of fact, was settled by 
Jay's statement that the address had been sub- 
mitted to him and Hamilton for suggestions and 
amendments, and not wishing to s][X)il Washing- 
ton's fair manuscript, they had made their notes 
on a copy.^ "Wlion," said McVickar, "the 
slow-pufling jiipe and the deaf ear turned were 
no lonj^er an ajKilogy for not hearing, the an- 
swer came out with a quiet smile : ^ My opinion, 
my dear sir, you shall freely have. I have al- 
ways thought General Washington com|)etent 
to write his own addresses.' " ' 

With such a disposition Jay was inevitably a 
moderate man, choosing, whenever possible, the 
middle way between extremes, selecting the 

> ProfcMor John McVickar, in N. Y. Review, Oet« l&ll. 

• To Jud^ Ptttera, Maitsh 20, 1811, Jay'i Jag, u. ^4^^ 

• Ibid. 

860 JOBH JAY, 

oourae Uiat hin judgment oommeiMledi indepen* 
dent of the dogmas of creed or party, even in 
religious qucHtions. ^*In forming and settling 
my belief relative to the doctrines of Christian- 
ity,** ho wrote to a clergyinan, ** I adopted no 
articles from creeds, bat such only as, on care- 
ful examination, I found to Ite oonflrnied by the 
Bible.*' ^ Towards religious views diil'ercnt from 
his own he was very tolerant, but he had no tol- 
eration for atheists. At a (mily in Paris oneo 
the conversation fell on religion. ^' In the course 
of it,** said. Jay, ^^one of them asked me if I be- 
lieved in Christ? I answered that I did, and 
that I thanked God that I did. Nothing fur- 
tlier passed between me and them, or any of 
them on that subject.** Some time afterward 
an English physician, atteiuling one of the fam- 
ily, ** during one of his visits very abruptly re- 
marked, that there was no God, and he hoped 
the time would come when there would be no re- 
ligion in the world. I very concisely remarked 
that if there was no God, there could be no 
moral obligations, and I did not see how society 
could exist without them. He did not hesitate 
to admit that, if there was no Goil, there could 
be no moral obligations, but insisted that they 
were not necessary, for that society would find a 
substitute for them in enlightened self-interest 

1 To RttT. Samu«l MiUir, Febtttary 10, 1822, Jay MSS. 


I MMMi tnrned th« oonvenation to another topic, 
and Ihs probably peroeiving that his sentiments 
met with a cold reoeption, did not afterward re- 
sume the subject** ^ 

In ))olitics« as has been noted, Jay preserred 
his indei)ondenoe of action ; but his own declara- 
tion may bo worth quoting : ^* In the course of 
my public life I have chdiHivored to be uniform 
and indo|K'ndcnt, having, from the bi^ginning of 
it in 1774, never asked for an oflice or a vote, 
nor declined expressing my sentiments respect- 
ing such important public measures as, in my 
opinion, tended to pi*umote or retard the welfare 
of our country.*' ' Fi*equently such outsjioken 
opinions required no little courage ; but he did 
not hesitate to condemn the popular confiscation 
acts, to urge the abolition of slavery, and to de- 
clare his honest opinion about the French Revo- 
lution ; and yet, as has been seen, his opinions 
on all these questions were in no sense extreme, i 

The experiences that usually blind men*s eyes 
and prejudice their judgment left him clear- 
sighted and fair-minded. Even the throes of , 
the Ueyolation did not make him uujust to Eng- 
land. ** I view a return to the domination of 
Britain with horror," he wrote in 1778, " and 
would risk all for independence ; but that point | 

1 To John Bristed, April 23, 181 1, Jay*! Jag, ii. 340, 317. i 

« J»yU Jay, ii. 4iy, 


862 JOOM JAY. 

ceded, I would give tliem advantageous commer- 
cial terms. The destruction of Old England 
would hurt me ; I wish it well ; it afforded my 
ancestors an asylum from persecution.*' ^ 

His integrity, strength of character, and fair- 
ness made Jay admirably >uited to a judicial 
careen How painstaking he was to keep him- 
self wholly free from improi)cr influence is well 
seen in his letter to Trunibullf who had just 
been appointed a commissioner under the treaty 
of 1794. ^^ Firmness, ... as well as integrity 
and caution, will be requisite to explore and per- 
severe in the path of justice. They who, in fol- 
lowing her footsteps, tread on ])opuhir preju* 
dices, or crush tlie schemes of individuals, nmst 
ex|>oct clamour and resentment. The best way 
to prevent being perplexed by con udcrations of 
that kind is to dismiss them all, and never to 
permit the mind to dwell uiK>n them for a 
moment. . . . Although a judge may possess the 
best talents and the purest intentions, yet let 
him keep a jealous eye over his sensibilities and 
attachments, lest they imperceptibly give to 
error too near a resemblance to truth. Nay, let 
him even watch over that jealousy, for the 
apprehension of being thought partial to one 
side has a tendency to incline a delicate mind 
towards the other." * 

» To OottTerncur Morrii, April 2ft, 1778, Jay't Jay, li. 24. 
< Ttf Juhn Trumbull, Oct 20, 17^)0, Jaj/ MSS. 


Jay wu frequently aecused of being an ari*- 
toerat, of not being in full sympathy with dem- 
oeratie institutioT^s. The same charge was 
brought against ^I'ashington, Adams, and the 
Federalists generally, as a party. In the strict 
meaning of the words, perhaps, it may be ad- 
mitted that Jay was a republican but not a 
democrat; but in this he was in agreement 
with the majority of the thoughtful men of his 
generation. To the statesmen of the eighteenth 
century an absolutely denioeratio government, 
with manhood suffrage, aud with all power in 
the hands of tlie majority, was something un- 
known. What preoo<Ionts there were in the his- 
tories of Greece and Kome seemed to show that 
any approximation to such a government was 
full of danger to society, and never permanent 
for any length of time ; and contemporary events 
in France were not more reassuring. They 
were practical men, not theorists, and distrusted 
any principle, however pleasing, which had not 
been long tried and tested. It is from this 
point of view that many of Jay's opinions 
should be considered. ^vAs to the position that 
. * the people always mean well,* or, in other 
words, that they always mean to say and do 
what they believe to be right and just, — it may 
be popular, but it cannot be true. The word 
people . . . applies to all tlie individual iuhab- 

864 JOBH JAY. 

itants of a country. • . • That portion of them 
who individually mean well never was, nor 
until the niillenium will be, considerable.'*^ 
*^Pure democracy, like pure rura, easily pro- 
duces intoxication, and with it a thousand mad 
pranks and fooleries."' Such r.imarks, how- 
ever, are misleading, unless they are taken in 
connection with Jay's policy as a whole. For- 
tunately, he stated this concisely but comprehen- 
sively in a letter to Vaughan in 1797. ** To mo 
it appears important that the American govern- 
ment be preserved as it is, until mature expe- 
rience shall very plainly point out very useful 
amendments to our Constitution ; that we stead- 
ily repel all foreign influence and iutcrferonce, 
and with good faith and liberality treat all 
nations as friends in peace, and as enemies in 
war; neither meddling with their afTaira, nor 
permitting them to meddle with ours. These 
are the primary objocts of my palify. The seo- 
oudary ones are more numerous, such as to bo 
always prepared for war, to cultivate peace, to 
promote religion, industry, tranquillity, and use- 
ful knowledge, and to secure to all the quiet 
enjoyment of their rights by wise and equal 
laws irresistibly executed. I do not expect that 
mankind will, before the millennium, be what 

1 To Jud^e Peters, March 14, 1815, Jay*t Jay, &. 370. 
s To JuJi.^ Petera, July 24, IbOO, Jay MSS. 

IN MMTiMMM£JtT. 8d5 

Ihey ought to be ; and therefore, in my opinicNi, 
everj political theory which doea not regard 
tlM'm a« being what they are^ will prove abor- 
tive.** ^ Such a policy is certainly neither iiar* 
row nor illiberal, and when there is added to 
it the following declaration, it can hardly be 
termed aristocratic in any proper meaning of 
the word : ^ I wish to see all unjust and unne- 
cessary discriminations everywhere abolished, 
and that the time may come when all our inhal>- 
itants of every colour and discrimination shall 
be free and equal partakers of our political lib- 

The type of man that is now regarded as dis- 
tinctively American, and the watchwords, glit- 
tering and unscientific generalities for the mos^ 
part, which are often upheld as comprehending 
tlie whole doctrine of American policy, origi- 
nated rather in the ferment of the French Kev* 
olution than in that of which Jay was a leader. 
It is then, {lerhaps, not witliout interest to recall 
the simple, practical, sturdy, common-sense prin- 
ciples, based on fact and history, which ani- 
mated that earlier generation, and made their 
work permanent in a sense almost unexampled 
among the works of men. 

Even in the minor details of personal attire 

» Jay'« Jay, iL 232. 

< To Dr. Ruah, March 24, 1785. 


he used on principle n democratio simplioity. 
Once, for instance, in ordering a watch and 
chain for Mrs. Jay, through a friend, ho re- 
marked : ** In these as in most things we must 
be guided by the rules of propriety which one's 
situation and circumstances dictate. Neatness 
and utility is all I ought or wish to aim at in 
dress or equipage, and perhajis every citizen of 
a republic would do well to forbear going fur- 
ther." » 

1 To WUlUm FnaUin, April 1, 1781, Ja^ MS3. 


, Mm, 94. ». ae, «T. 129, 
IHO, IIM, Ml, 'J^V, 'iM, XS4, 3&3, 
3Qt!, »ai M to patilkma to Um 
kiuc, M; l»ttar to WvtiM, m to 
form of foym i— t, 77 ; «■ 11m 
Jiew York CooaCUutMH, 90 ; coia- 
MiMloaer to InMt for uoaco with 
KuglMid, 1-27, 142; luo iiutruc- 
tUMM, U8, Id ; dUikc^l by Francb 
■otcniiBi^at, 161, IGS; arrives in 
Paria, to SMiaC in nrgoUatioiM for 
peaca, 'JU3; intwnritfw witla Jay, 
VH; coainiauta oa Fraiikliii'a 
coiwluct, 'JOrt; ■ttffft4*atiaiM aa to 
dcbU and Turiaa, 'Ji8, '.'10, 'ill ; 
intorviowa witU FraiikliiH 'JfJ, 
214; action M to lUlieriea, *JII, 
2IU; latcnrlaw witU VerKeniu's, 
Sl'i; couiuieuta on treaty, 'J18; 
on Jay'a ahar« therein, '."JJ, '2^8; 
■tlnintar to Cu)ckuiii, '£SJ ; tribute 
to Jay in connertioM with tlie ' 
Coiiittilutian, 'JC.I ; DiKtor of , 
Uw a, Uublin Uutveraity, 'J(k: ; | 
lttvit«>a Jay, 'Ml ; on uotiiiuatitni ' 
of Jav for KiiKliith uilMlmi, 'Jli7; 
WiMiia iu«iuiiiat«< Jay chl4>f Ju»tU*i«, 
3:17 i corrv»|iuud«uc« with Jay, 

Adauia, Mra. John, 244. 

▲Uaiu.i, Joliu QuiiH*y, commenta on 
KraiikUu'a coutliict In iwaco u«go> 

▲daiiia, H.uuu«>l, 4A, 49, 1413 ; afforto 
ti> k«n>|) th«t HNhiTl«»t \M. 

Alftnaiidur, WiUiaiti. Bne tinausta, 

\ll4Mi, Kthau, iMrophlei on iho Ver- 
tiioiil Kr*»(«, 1"^>« 

A1m>|», Jiihn, d«leifato to Cong raaa, 

tieaty, S1& 

Aranda, Maroda 4\ 1 
Jv7l36. 170, 171; ^.^^ .^'mmm 
claima, 184, liift, 914; a^Unvom 
to indue* Jay to Inat, 199. 

▲ahburtoa. Lord, «■ th* mMUmg 
act, IMS. , 

Bancroft, EdwanL 190. 
Banyer, Un. Maria, ML 
Itayard, Anna Maria, I. 
liayard, Miaa Rebecca, to Jay, TS^ 
Ikiitttuiarchaia, Caron da, and Silaa 

Deane, 1U9; adriaea Louu XVL 

to aid tlie Sutea, 149; hia owa 

effort*, 120; claiana favored by 

Jay. 230. 
Beiiaoa, Egbert, 20, 204, 318, 353. 
B«tsey, caae of the aloop, 292. 
IUaney,.I>arid, acceunt of vojaM. 

304. ^ '^^ 

Bouvouloir, 49, 143 ; inAueJioa cvar 

uiciubera <rf Congreaa, 157. 
Buaon Port bill, 'i3, '.T, 31. 
Boudiuot, Kliaa, 'Mi, 349. 
Bun(oyne,tieiMral, 94, lUG, 107, ISt, 

Burr, Aaron, opinion aa to votoa 

cant for Jay in gov«ri.onihip cam* 

iKdgu, '.*«7, 'JTtt ; d«feaU Federal- 

1»U lu New York, 330. 

CaniUcharl, William, J^'t ■•«•> 

tary hi BtMiu, IJO, 143. 
Camaiian, Dr., atory of Jay, 398. 
Chauilifni, Captaiu, '25. 
CharU>a 111. of g|N«in, r«>lationa witk 

KraiH'u and tiie United Btatoa, 

ChiMdin V. Mate of OnorKla, *»1. 
CliniMtul, opiHisca aittiiig the Btatoa, 

Cirrourt. 8m Db Cibcovbt. 
Clinton, George, G3, tiO, 74, US, 116, 



S68, US, S33, S94{ •teetod gor- 
•nior, »i. n, M; wUiUry «i. 
gageoMBto, 93; Mvority WwanU 
royaliaU. 231), 270; eampaign 
Agunat Jay, *iU8, 273-'J78 ; opfKMM 
Coiutitutiaa, 271; repMlMl by 
rei'k»ct«d govornor, 272. 

Cliutoa. !)• Witt, SO. 

cure, Lord, 203. 

Cofcten, CMlwalUdar, 26, 8S. 

Cooley, JimIm, 2M. 

Coo|)er, J. Feuiiuora, wbA Um fltory 
of the Spy, 7'i, 3S1. 

Coi,yvx, Dr. MyWt; Freddtmt of 
Kiiig't CoUeKc, 12 : MiecdoiOi 13. 

Conby r. Van lliuii, VI, 

CiLUiUif , Ju«lg«i, 'iOt;, 917. 

Uavton, Jonatlian, motion againit 

liriliah rrtMlUura, '.1)5. 
iK-aiip, Kilu, 4.'>, V£l \ onvoy to 

FrMurr, 41), 140. 120; cbargva 

aitaiuMt liiiit, 11)7-110. 
Dp Circ«>urt, on French offorto to 

cuutrol CunfrroM, l!k>. 
1> (JruMfC, connimnirat«a bet worn 

B)iflbunM and VcrgeiUMa, 102, 

Delaiirey, Jamea, a Tory, Jay*a 

treatuit-nt of, 72, 227. 
DeUnrny, IVt«'r. Soveraly troatod 

by Jay, 7J, 73. 
*« iVlancf y lioy*,'* ravagea by, 13S. 
Du-kiniion, John, 11, 40, 67. 

|)Obl«>l, Krl. 

Duan<>, J;tni<«, 20, 2X, U ; delegaU 
to CuiiKreMi, 32, 33 ; pleili;«a Kew 
York tu imii-iieiMlfiuv, W\ aa to 
iJmnRft of );«iveniuivnt, &3, 77, bS; 
an<l tb« Vvnuout irranta, 10&. 

Duer, Williaiu, C4, (iJ^lltt. 

r^awoitli, OUvor, 303. 

♦• PtHlerall-t," th«, 2r.2-254. 

FiUlMrUrt, , 174. Itt!, 183,180 ; 

on the flMli«riea, 101 ; authority of, 
215, 217 ; fouunouta, 221 ; tribute 
to Jay, 223. 

Fitzninuri<'«. Lord Kdnond, **Lir« 
of Kli«>lUiriM<," 103; qur>t«>d, VM. 

FlaiiUttra, Henry, Livvaof Chief Jua> 
tict'M qiiot«*tl, 'JiMu 

Kluriila lilaiM'a, Cmint, 130 ; opi»oa«Nl 
lo Kniirli tnsity with iJniti^ 
Hlatc», r.'l i draniiKa with Jay, 
i:il : ri»n«««riiliiii Dm MiMiinai|»|ti, 
l.'VJ ; niiaiK'lMl dfiiliiiga of J^y 
«tlh, 13.1, 131 i eiiNHta overliirva 

•• to the Mlaalaalppi, tST. 138, 
233; Invitee Jay to dinner, 141 ; 
peruita Jay to leave, 143 ; virwa 
aa to peace ncgotiationa, 180, 103. 

Forbea, , oonapirea to kill 

Wanhingtoo, A*. 

Vox, Charlea, iC7, 1G8, 176 ; realgna, 
171, 174. 

Francia, Bamiiel, 27. 

rrankiiu, Ikmiaiuiu, 49, 128, 130, 
130, 140, ICl, 170, 171, 178, 3SG; 
raiaea nioury to utcet drafta of 
Cungreaa, 134 ; autunioiu Jay to 
Varia, 142; arrival in Vnuir<>, 
ISO; contniiaaioner to treat fur 
pence, li'i5 ; auKKt'ottoua aa to jm- 
aitiou of the blut^a, 1C7 ; iearly 
vii'wa aa to iiut^uctiuua, li!^.; 
auKKcata rcMiou of Caiia^la, KiO ; 
Juy'a ffding tuwarda bini, K'lO: 
frii^nd uf Lord Hbelburup, 172; 
initial |«ro|KMii;iona fur peai-e, 173 ; 
concerning 0«walU*a ci>utuiiw>iou, 
Yltt, 17H-IH1; ill. I8I,2UU; dvubU 
genuliM'nvaa of Marbuia letter, IK), 
'J(i&: dikUKreea Hilh Jay id>out 
llayneval'a uiiuiou, 102 ; refuare 
to acre*! to coniiwiiaatiug royal- 
iiit«, 'J(»l, 210; dithra from hie 
collragiifa, 2l'& ; couiuictit* of hia 
bi«»gru|*hrra thereon, 2(N>, 207 ; 
friinUly relationa with Jay, 2b.''* ; 
coiJinteiita of tlie Adanta family 
on hia conduct, 207 ; finally acta 
in hanuouy with hia cullcagiiva, 
2(Ki-210, 213, 214; )«'hU with Ura. 
Jay, 225; adtiaea Jay to aign ad- 
drcM on Conntitut ion, 2.'i4> ; I>u<-tor 
of Lawa, Dublin Uuiveraity, 2i;0. 

Oage, General, 14. 

Galloway, JtNM'ph, propoaition to 

Firat CungrcM, 30. 
OartltMini, Dun Dirgo de, S32, 233, 

23r., 211. 
GatcH. General, 73; viait to Jay 

after liurgoyne*a aurreuder, S&8. 
Genet, KtlniMid, arrival and li«lio> 

vior, 2h7, 26H. 
George 111., Interview with Jay, 

Georgia, State of, ClUaolm r., 282. 

Gi-rard, French envoy to the Uuiled 
Htatea, l&l. 1{*3, VA\ iuterviewi 
with Jay aa to |»roiHiM>i| aKr<(t- 
nuntaallh HHn. IJ4, Vi^r, thinka 
well »f Ja>, !;'.'• 127; urgea Coif 
grenaloagrer with H|Mln. 12(1; le- 
lurna to France, T.'h \ later rria* 



ry, '.^i uM rtH'vivlMir • iMiuUi«r 
IruM • KriNioli ictfvMl, mmI |ir«»* 
(UlMttiHf Nf|«lr«lll)r, '.'mil aUliM 

Mh Ml CtHK Ml IllllH UclM, '.'.HM I Ml*. 
t4tN« |N*i UlM'ltuM l»f ll«Ul|.tltly 

M U«, :»» .-t)J| Ih I •Mill fei..,.!! 
II U). .niii ii.i«u«Mi;iiM Jm»- 

liM.tli.l|.<| |..| l.f.rll h lui I .««, 

:.'. :«• .'•I. Ill I. If . li •! 

I l'»i t) i; il'.,r,--iN i'l.:«t!i|iJu;'J}Hi)iL 

iiriiMUL-s :■».', Mil Mil lm.r. Ja/, |vi.t, L 
*u« «itti itib kUkd. raoi «j<M '^ 

*lt^lMi| |{4vr'(iiur, 3J-!it J^^Uoea 
«4tritL|ili.j«i^ll|||; lirli4^lur .Ii.iriii^ 

HI*',, i^l jMiiHl. li |iittt|<||Vt, ,fii| ^ 
All. h..'.! Ai^kiiii rJ Ir (<<«! U||. Ut. 

J«»i, \i„ iuim. TKi, Al, 7.1, Hi, 111, 
111, UlUi |.*».|.».r»)|| r^M|, ;'J|' 

. ., to, 14. IT, Sft, 114, 
lurrfaittlta c*rr«ff, 'i; U*tl4,'J'7t 
• Wbiff, (ii WU«r to JoUu. U; 
•UMit John, 8 ; l«lt«r to J«lui m 
ttt prufdMittfii, 12. 

Jay, Wtor, Jr., 8. 

Jay, Peler AuciuUm, 300^ S28, SU. 

Jay, Xa«cy, «. 

J Ay, 8irah, 311. 

M- vi li at uin'iijut' ul ><<i;U!thir«, i jAtt William, 341 ; antcdoto Qiiotod, 
:SJ1 *, %irvf4 i*u t"tiia>-U twtuhitiuM, I Xta ; quut<Hl, 317. 
an \i2Zt, tvttkM'a. ta i^WuMi Tun- Jt'llt>r»4»ii, Tliixuaa, 40, -10,47, 142s 
Mauy anciMty, aj.l : r«cuiu:uciia*. i U&, 'jiW, jij, VKH, •."Jl, •.••J7; at 
tl<Mis, 3i.»i Ui».liiiea tu |Nir«l<>n, I to uatlgalioa ul Um UUviMimiL 

S.lii cunctirnliiir a|>|M>liitiuMiit uf 'JM, 

M^Jor lUf, 3.UI; «ka1u i«li«.t4Hl ! Jaliith.m, I>r. SaiaiMl, PriMkbat ol 

Sow*rtiur, Ml; a«iiou at tiuta uf I Kiiig'* C.4l.-,i.», lU; lattar to Jay, 
k I Z c«>rr*«|»Hi«l»iice, 327 ; a* a ' 11 ; retintniout, 12. 
aUv«tiuia«*r, 3J:I ; rwcvivna vutM ! JtNtt^a, Jolui l*aul, all«cti«a for Jay. 
liMP pr«*»taeuiy, XW; euln/y ou | 3M. 
Wa«l»iuKtoD, 330; ntfuw>a tu con- i Joim*«, Sunuel, 20. 
vriM k»Ki»Ulurtt to rtnlUricI Itio i Jouea, TiMMuaa, baaUhad, 07. 

Htatc, 3il ; nH'umiueutUcitMU lu 

aiNM>li to l««i;i-J4turi*, 3J2; «liw 

•liii«« renoiuiiMtiott, 333 ; f«>iitoi4 

with coiiiifil ovor iioiuiiiation uf 

ahrrilT, Xli i priut*i|>los vuti<i*rii> 

hiir a|>ti«Hiitiii«iit4 and ilUiiiiitoioMs 

for pulitical f4itMf«, :i35-oJ7 ; iltH 

rUnea to bv ag^io Chief Ju»tif«>, 

S^l i reply to c«>iupliiiHfuUry a4l- 

dr«M, 33H: rvtirua to IkstforJ, 

310 : h of wife, 340 ; chU Ireu, 

341; farnilitic iuttTtMtA, 342-341; 

foiidaeM (or auiinula, 34rl ; ou the 

rt* form biU, 315 ; coiut>riiiiit( j Kii^uiu, Ur. Samual, ktttor to, 21. 

rit(hta of dowaKe, 315; ou Uxm i Kuoi, lldiiry, 27. 

ti>»ii, 3l4i: oil tlio MiMourl (}u«)»> I 

tioii and al^vfrv, 317 ; di>Mp|irovt<a { Limb, John, 2:4, 31, 32, 2i\ 

W4r of IMJ, 3M; rirtiiiiMird with | Lui^hmua, Man|iiiauf. Am 

llihlit aiid uthar WMhtioa, 31*J; do- U'MXK. 

cliiiu* to iitiiid K«>«lf«tlu*r to Mur- Lui-%iuir, J.uuaa, 231. 

ri^*« child, 3'iO ; corr«»uoiiileHca | Laurt'iM, lluury. Irritated fai tho 

with Johu Adoiu*, 3'Mi; d«Mth atid Lee-D«»aii0 uattitr, reaiffua pceai* 

burial, 334 ; coiiunauto oa Ida i daucy of Congreaa, 110 ; dialta 

Kent, jAtitoa, 3.73; o« tho Xov 

York Coiutitiitioual Couveuiiou, 
lfi» : on the ** Federalist," 232 ; fok 
Iowa Jay*a charge to graud Jury, 

Kiuir, Ritfua, 3S0; opiuloa aa f 
votea CMt for Jay la guveruorahip 
campaigu, 277, 27^; al>twiaatit 
couccruing Qeiiet, 2Sj. 

Kianaia, Beujamin. 2U; takaa Jay 
luto Ilia oilica, 14 i reUtioua with 
Jay, lU-19. 



Anmm wftm kta* 131 1 Maml*- 
■ioiwr to lr«At ftir pMv«, 142, Itift {' 
.Lawreuctf, W. B., IW. 

Lm>, Arthur, MHUiiU SIIm Dmm, 
108, no, vn\ hMVM BpaUi Itt 
«li>j[ust, I'iH; cmiiinlMlmidl to 
Fraur*. ICO. 

Li*wi«, FniucU, 27, 69b 

** LiU^rty llovs," TU«, 30^ M,28, 27, 
tA).:rj, ».&(». 

UlMTty, wms uf. 8«« LiMfeTV Bova. 

Liiirtilii, Qvitrr*!, Uiiti. 

LitiiitfkluiH hrtukhoUt, I'.H, 137. 

LiviiiK>«tou, h!*lwarJ, 'i^'&, 

iJvliiK.UHi, 11. li., 13, lUU 

Li%iiiKBt<'". riiilip, (kksfftU It Con- 
grttna, 3ta!, Xi. 

LiviugUuo, RuWrt R., IS, 65, 
64; ctuutct'lliir, 88; coucwruiiiK 
fliiuice*, ir.'; ttliH-tioa aMimI by 
Lui<Tn«>, ir«8; MM-rrtary for fur- 
•iKii atTiiin, '.'-."J, 231 ; tUavrt* Jay 
for Cliutwn, '£li ; U«f«)»t«d liy Jay, 

LivitiKHton, Robert R., Jr.. 90. 

LitiiiK»tou, 8arah, Jay*a wifu, 31. 

LiviiiK-ioii. WilUam, 11, 20, *JI, 66, 
4(», 4l>, U. 

UoyJ, Jaui««a, 2lU. 

Lw-kyicr, CapUiit, 26. 

I^K«, 11. C, coiuui«nt«, 207. 

LuiidiHi, Tbo, tMk aUip, 26. 

LkmiU XVI., 140; op|m<mn1 to aiding 
tii« UuiteJ ht4U«, 147, lU). 

UiW, 1«.UM\ 31 ; (lwb>gat« to Con- 
IfnuK, :L', 33, 43. 

LoHfll. J.>tiu, -Jilt. 

LiiiiriHN Coiiut <1« la, 17H, IHK, 2?» ; 
ilitluiiliro u\vi roilKrt'Mi, l.'W, KmS; 
bmlruclittiutu, l&t, l<V*; intlu««m'« 
Ui AiiHTirtin atlwlra, IFiH- iViA, u|>iii- 
Itili uf Jnv, K'/i; VcrKt«itiM*a* k>U«<r 
to, alMiiii iMitiiiilrtrliw, liMI; a* la 
th«« tlibi'rIi'K, r.*';. «ti<w« aa lu \M' 
allltm uf tlwi HuUa, IW); iNiiu. 
utriita uu Jay, '.Jl. 

Mj<ll>H>tt, Jaiura, v:U,2IO; aiMi tlw 

" Fe.I*r:illi»t," U:.i. 
ll.tiiM*, Sir Hfury, 78 ; on Atuarlcau 

ttiit-triuw of lu'utrality, 2a)l. 
Uilouet, FkTm Yii-tor, opposoa 

KrfiK'b ai«l to tb* 8latea, 147. 
Marbula, llarauis, •Iturta to control 

CiuiKrtiita, ilA, Itki; hi* iut«r> 

ci*|iU«l U>U(>r, 18M I Ml, -.ttS. 
Marohall, Ji*bu, U.^3; a |M)Utlca] 

upiuiou, 331. 

MwylM4,lt«to of, MoCttUoeli #., 

llarybuid,8tato of, o. Van BUpbont, 

MaMHurana, IMnoo, fcliidnaaa to Jm, 

1311. ' 

Hauropaa, Count d«, op|Mia«4 to 

Frauuo alUtug tlia bUtas, 147. 
UeCoiiib, Al«<iaii(U<r, In gvvamor* 

abip eautiMilKii, 274, 270. 
MtCuUovU r. liitfto uf Maryland, 

MtlKMiKall, AWsatMlcr, 28, 31, 33, 
31, 'X*\\ fiiuiiiHy rtUtioiia with 
Jav, r/i, «;3; ciiiiiiga of ton* Ui 
piii'lltf iiiMtur*, &i. 

MvVickar, rri>(t!N»or, aucHxIut* aa to 
Wa»bi.i|{luu*a FarwwuU Addreaa, 

Mitlliii, Oovvmor, and yvUow fvver. 

, lllralea, R|MiiiUh envoy, 124, 127. 


, Muuroo, JaiiwH, '.'!'.', 2*.^. 
Mulitiuoriii, Count di>, Krenrh niln> 
Utir at M.ulrM, 121. 137, 148, 
170, 171, 178; vivwa of HiuiiUh 

Cilicy, 122; opiuion of Florida 
laiicA, IIH); coiuiuiailcatkiiMi w'itb 
Jiiy, 131, 137, lliU, tU), 141, 143; 
•w/^vmWtm* aa to |N*«fo iii'i;utia> 
tiouH, iMt; otitlio tMiliiv of Siwiii, 
1^7 ; would aouud Lord ttliulburue, 

» 51oot,** the, eatabllalMMl, 10. 
j liorria, (luuwriiuur, VJ, 2i», UO, 08, 
2'.^, 3'«1 ; fcarM uf d(^uto4i4lic con- 
trol, 31 ; on |*t4n fur or»:uni<iiii; a 
ut'W form of i;ovt<rmiii'hl, lil, M \ 
ou I'oniiiiilttv to PK iniintt dinaf- 
f«Hl«Hl iHTMina, 07, 70 ; h Arncd aa 
to TorylNUi, 71 1 vlniu Wwi«ltln|{> 
ttin*a i:tiui|t, li.'i ; ou \\u» Vi«rntoiit 
KrtuitM, lUi; in tbw niAtlvr uf Hi* 
U* lH<i4n«*, lu.4 1 i'ou'li'iuna t'hiir* 
actrr of i:iiiiKr««««, Ifi? . appllra. 
tion to .l.ty lur |Hi|iii««) a|>iMiinU 
nit'Ut, 31U> ; tUk* J.iy to »Und 
ir«KllAtluT, XO; alftfctiou for Jay, 

Morrii. U*wU. (!1. 

llorriN, UulMTt, 2C5; concemiiig 
HiIan m-ane, 10& 

llulili«nU*rir, I'tftur, aavaa Jay'a 
tnaty. 3ltt. 

Munro, IVlrr Jay, 117, 129. 

Murray, Gt-orK**. U. 

Murray, lUinlb-y, rcwarka ttpott 
Jay, bi bia youlii, 10. 



Hacker, JaniUM, ii| Hm < to Fniii 

■liliMff lbs lit»l««, 147. 
|lortl^ Lota, lUL 

0*IU4l|f, GgMrt, kto^MMt to Jmti 

Oiibunia, Mr l>MV«n, MrfcM*. 4. 

0«w«l.|, Rlrkanl, 1C7,1T2, 174, IM; 
initUi (UaliMtfa wilk rnuiklln, 
ItJ; qii(<ali«t« M la hl« rowiuie* 
•<uM, I7& 1H4, Ithi ; iviiMrka cmo- 
rrntlnf Juv, 177 { hi* new emu- 

iiaiMiPH, iii>, 1)17. Itrj; report ou 
rtifTTfM of u^KottAtloM, dW-'/O-i : 

iurtlMir noKotUthMM, •!«., 311- 

214 1 i«Mdl«4, 'J-JU. 

Pain^ lUlMtrt Tr«at, 315. 

fAliM, TliuiMM, oiiiiiioa of Y«r> 

K«>iiiMw, 147; In |«jr el Fnno*, 

l.'i? ; SM»ila Jay, 3JI. 
IVUittln, l>4vl«l, 4-C, 9, 13. 
iViik'luut, Stcpltcti, 2. 
lVt<-r«. Itiolianl, ni-i, SI3. 
t*ii k.riitK, Timolhy, :iii7, M7. 
l*iiH'liiM>y, ThoiuM, iuiiU»Ur to Buff* 


QiwbM Act, tho, ST. 

lUyncval, JoMtph, IM: on tho 

lK>un«l.U7 question, IMS, IM, 200, 

2tCI: on the Aahrrie*, 101, 'ilU; 

]uurii«>y to KiitfUtxt. lUl-l&S; com* 

mrnt* on trvAiy, '.'19. 
llMV«*ri>, I'aitl, ••'<. 'J9. 
RivliiKton, JinM««, th« Torv odUor, 

'.'7 \ lil» )trcM dcBtroyed, 52. 
|l4)liiu»on, l>r. Ikiverly, to J«y, M 

to alloglano<«, 7U. 
ltA*-kliiK'lt<>iu, Marquia, IM. 
Kotfcra, Ntcholaa, and lUUa l>MM, 

RiMlkM, LAwmOM, II. 

^«m«A«, lh«, S.'V. 

IU\AR(>, Jamra, 315, 

0ohii>K*r, George, CS, 03« 05* IffT, 

'^nu; rantlMate for frorfmorahlp, 

02 ; military anslMlfa, Vk 
Bcltuyler, Philip, adriwa Jay to 

couvrno lopiMaturc, to rwliatrict 

New York. .T3I. 
Arctt, John Morin, 20. 
I^eabury, Di«hop, .VJ. 
Kharp, Jainra, 'JlO. 
bheffielil, I^rd, criticiaM Jajt's 
■ troAty, 31.:. 

SMbvrM, Uf4, IM, IfTt primo 
■BlttUUr. 171 { flMrs «■ AjBttricjui 
bMbiwiiilMioo, 173, 174 ; ooacem- 
iMf rrattkUii*t MWRaiatioM, 173; 
doallni* wltk RaynovBl m4 
Vancl***« 1%2-lOT \ comniMnlcatra 
with do VarfvMMM, UroMKb do 
UruM, 192; odvbcatoa cauao o( 
T«wk«, '.'13, 314 ; iwolvod to mako 
treaty, 31a; drivM from oflco, 
331) ; (HMiae^inoneoa, 3'J3. 

fUitilh, M. iaiMtlMMi, 3:»i, 'JOOl 

gmilh, WUliaw, W 30. 

H|iarka, Jaivd, coiuinento, tM. 

t)|wiM'«r, AiubroMM, 323. 

Hump Aet, 4. 5. 10,34,29^ 

Mirltng, Lord, TA. 

Ktuoiv, Kev. iVka, & 

Htory, Joseph, un Jay, 29Qw 

Stnkhey, Heury, aeut to Pwto to 
treat, 302, 3(td: neffotUteo, 210, 
311; retuma to Rn^laad wUh 
dr^ft of treaty, 210; return to 
r4ri*, 315; further ncgoCUtioaa, 
316, 317. 

KulUvaii, John, MS. 

Kuiniier, I'rofeaJtir Wm. 0., qoolod 
aa to Jay*a treaty, 312. 

Tompkina, Daniel D., oo law to^* 
eriiUig nominatlooa la New Tork, 

Troup, Colonel, vlalt to Jay, 3M. 

TniinbuU, John, aaila with J^y M 
•ecretary, 'JiM. 

Truiubull, JouAthan, 63, 903. 

Tryon, tioveruor, fiO ; »i-tivitj af, 

Tursot, Appoeeo aldiiic the Maleo, 
147, 140. 

Van Cortlandt, Jarohua, t. 

Van D4in, C<Mhy r., «3. 

Van Kle.<«k. ir.*. 

Van K.i.4a(k, iVter, 15,20, 23«,290, 

:VM, y*\ ; baiilalied lor TonflMit 

tt), 71, 73. 
Van Htaphorat ». 8toU of MMyfawl, 


VauKlun, Benjamin, aool to Parla, 
173; intlucetl by Jay to fro to- 
lAndon to eounterart Rayaevnl, 
IW. IftTs lOTs IW, 1», 214, 

Vrreennea, Charle* Oravior, Count 
de, 13G, 170; conceminc treaty 
between the Statea and Kranre, 
IJO: dealinen with Kpain, 133; 
«tlvir«.a«tu H|>»ni«h po«ition, 1 11 ; 
coofldcuce of Con^et* in, 144 ; 



undMfBnrMl, 14ft ; roMoiw for «!•- 
•irliifl lo aia tlte But«a, U7» 148 ; 
uiukMk Irratim o( alUawv mm! 
of cuMMtfrt-*, Iftl ; liU cuuntrta** 
tUnl of tlieiii, l£l^ ; •|4U-i|*ali^ 
rum «.f KiirImiiI, 1S3 ; ob|M»M>a 
Anirrican cl«iin», IM, If^ ir4», 
Itil, h'A ; a«lvlM«« AiMi^rica U» vuu- 
Itittt In BiMiiti, IM ; f llorU to in- 
ttueiice Aiiu<rioau tiuUcy coiM-f rti' 
i»i; pMMO iieffottatluiis, 1(il ; |>n>* 
puitra M>iarate tifKotinlioua, 1(m, 
1<>8 ; ■l•lfl^h ii'ltuiiiiM, 111 ; ilrtiirf* 
• ** lA4tiug ** |H>ai-«, I'li i u]uiiiuii« 
M to triior uf OmwaM** coiuiui»* 
Mou, 178, 1841, IM ; •• to Itouiidii- 
rii'M of the Uiiit«<l Butca, ltv5, Ihti, 
'i'S'2 : (Jiituwii* llayncval*» utatt** 
uiriit on thia niatttT, 184* ; lflt«'r 
front UarlH>U to, 188, 18«J; Lu- 
icrii«*a k-ttcr to, about tbliwrii-a, 
ItiU ; comtuuiiiratiuuM of de Urawe 
to, IVi ; w oiild liwvi* Jay trvat « tth 
Aranila, I'M; Fraiiklin'a oitiiiioii 
of, liA ; further liicht on Itla tK>l- 
icy, '212 ; advocat^a caiue of To> 
rioa, 213 ; iuforuod of coucluaioa 

of trmtx, 217 ; arliMiM M to nn- 
gutiatioua, 218. '£il i comiuoaU 
tin n*ault, 21tf, in i and on Amer- 
ican uegotlatioua, 'SH. 

Warti'a Eiocutora v. llylton, SM. 

WaidjIiiKtoii, Cirorrt), doclamtion to 
army, 48, i'.', 13, K3. M, ttiV, tW, 
113, 114, -.Mi., 240. !J.'>7, !iGl, 2IV2, 

•.T'j, '.'8^ »rj, J(»8, av:4, 343, ar^;, 

8l'i3 ; rott>|ii(ary airaimtt, CT ; duM 
iMit «Uh ci>M>iuu of Caiiatla, iGtf; 
utukMi Jay Clilt'f JuMire, '.'('•3; |iro- 
tlaluia iH-utruUty, ^84^ '.'8!>« •Vi; 
polifv of |iu4u:«, 'JIM* ; keuda ouvoy 
to Ki>»:laud. 'J*.h; ; Juy'a riiltigy 

Ida Farewell Addrcaa, 

3J0i li 

! Whurton, Francia, on Jay, S93. 
> Wtl(H>rforrt«,Williaiu, rrtiiark* about 
I Jay, 314 ; corri*iiiKHKlcut, 34'J, 

j :ur.. 

Wytbo, George, 77. 

I Yatc««, Abraham, (ir». 
Yatea, Robert, liTi ; nominated for 
i goveruorahip, 273. 

American ^tatesimen. 

A Series of Biographies of Men famous in the 

Political History of the United Sutes. Edited by 

John T. Morse, Jr. Each volurae, i6nio, 

gilt top, 1 1.25; half morocco, ;^2.5a 

JOHN QUL\CY ADAMS. By Jv' i T. Afotsi, Jr. 
ALEXANDER HAMILTON liy Js nry Cabot Lodg^ 
JOHN C CAUiOl/N. By Dr. //. ' oh HoUL 
JOHN RANDOLPH By Henry Adams. 
JAMES MONROE. By D.C.Gil uxn. 
DANIEL WEBSTER. By Henry Cabot Lodge. 
ALBERT GALLA TIN By John Austin Stevens. 
JAMES MADISON. By Sydney Howard Cay. 
JOHN ADAMS, By John T. Morse, Jr. 
JOHN MARSHALL. By At/an B. Magruder. 
SAMUEL ADAMS. By James K. Hosmer. 
THOMAS H. BENTON. By Theodore Rooevelt. 
HENRY CLAY. By Carl Schuri. 2 vols. 
PA TRICK HENRY. By Moses Coit Tyler. 
GOUVERNEUR MORRIS, By Theodore Roosevelt. 
MARTIN VAN BUREN By Edward M, Shepard. 
GEORGE WASHINGTON. By Henry Cabot Lodgt. 

2 vols. 
JOHN JAY. By George Pellew. 

{In Preparation.} 
LEWIS CASS. By Andrew C. McLaughlin. 
Others to be announced hereafter. 


yOHN QUmCY ADAMS, '^^Z';.^^^.:^ 
be thoM of posterity we have very little doubt, and he han set an 
admirable example to hb coadjutors in respect o£ interestinj; 
narrative, just proportion, and judicial candor. — iWto Vifrk 
Ewuin^ Post, 

rrj \riF ThjV The biography of Mr. I^ge is calm and 
li^Mii^AfjiM. dignified throughout. He has the virtue 
— rare indeed among biographers — of imoartiality. lie has 
done his work with conscientious care, aiul the b'iographv of 
Hamilton is a book which cannot have too many readers. It is 
more than a biography ; it is a study in the science of govern- 
ment. — St. Paul Piotuer'Prts9, 

CALHOUN Nolhliig can exceed the skill with whirh th« 
* political career of the great South Carolinian 
is portrayed in these pagc<. The work is superior to anv other 
number of the series thus far, and we do not think it cm V- sur* 
passed by any of those that are to come. The whole discussion 
m I elation to Calhoun's position is eminently philosophical and 
just. — The Dial (Chicago). 

y ICJCSOV ^^^^^^"^^^^ Sumner has . . .all in all, made 
•^ • the juitcst long esiinialo of Jackson titat has 

had it.*eif put between llie covers of a book. — i\i7i^ York 
Tim ft. 

jn A jsjnnT Pir 'he book has been to me intensely inter- 
/K.iivj^Lfj^i Ji, ^,.jj|^g . . It is rich in new faci* and side 
li^hts, and is worthy of hs place in the already brilliant scries 
of monographs on American Statesmen. — - I'rof. Moshs CuiT 


MO y/iOE '" clearness of style, and in all points of liter- 
"* ary worknianshi|), from cover to cover, the 
volume is well*nigh perfect. There are also a calmness of judg- 
ment, a correctness of taste, and an ab^tcnce of partisanship 
which are too frequently w.inting in biographies and especiallv 
in |>olitical biographies. — Annrican Literary. Churchman (Bal- 

yEFFERSON, "^^^ ^iOK^i is exceedingly interesting and 
*^ * readable. The attention of the reader is 

strongly seized at once, and he is carried along in spite of him- 
self, sometimes protesting, soniet'mes doubling, yet unable to 
lay the book down. — Chicago Standard. 

WEBSTER '^ *^*^^ ^ ^^^^ ^y **"*^*"** of history; it will 
' ' be invaluable as a work of reference; it 
will be an authority as regards matters of fact and criticism ; it 
hits the keynote of Webster's durable and ever-growing fame ; 
it is adequate, calm, imp.irtial ; it is admirable. ^ y'^//<i</4'//>l/(/ 


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