John Jay (1745-1829)

Revolutionary, diplomat, jurist, and statesman, John Jay ranks among the top tier of American founders. Jay began and ended his public career in New York, where he sat on various revolutionary committees, drafted the state’s first constitution, served as New York’s first chief justice, its second governor, and was a chief advocate of adoption of the Constitution at the state’s ratifying convention. Jay was also a leader in the national councils, serving as president of the Continental Congress, minister designate to Spain, peace commissioner in Paris, secretary for foreign affairs under the Articles of Confederation, first chief justice of the United States, and special diplomatic envoy to Britain. Unrivalled for the variety and importance of the offices he held for a quarter century, Jay was also the most conservative of the leading founders.

Early Years to Independence

Born on December 12, 1745 in New York City, Jay was the seventh child of Peter Jay, a successful merchant of French Huguenot descent and Mary Van Courtland, whose family was among the landed Dutch patroons. A precocious child, John was sent to private school at nearby New Rochelle, where he received the rudiments of a classical education. Exhibiting a gift for learning, he continued his studies at home under a private tutor and later entered King’s College (now Columbia University). Upon graduating in 1764, Jay embarked on a course of legal studies under a New York barrister, completed his apprenticeship, and was admitted to the bar in 1768. His thriving practice ended abruptly in the spring of 1774 when the conflict with Britain and its colonies intensified. From that time until his retirement in 1801, he would be fully immersed in public life.

Prior to America’s declaration of independence, Jay alternated between serving in New York and representing its interests in the Continental Congress. At home he was charged with enforcing trade restrictions on the British, while in Philadelphia he supported resistance measures, but sided with the moderates who still hoped for reconciliation. After the outbreak of hostilities in spring 1775, Jay continued to serve in both New York and Congress, which elected him president in late 1778. An office with few powers, Jay was the most active and effective of the presidents of the Continental Congress. In fall 1779 he was appointed minister plenipotentiary to Spain, which had recently allied with France against England. Failing to obtain Spanish recognition of America, Jay departed for Paris in May 1782, where he helped negotiate the treaty that officially ended the war with Britain in 1783.

Diplomat-in-Chief

Prior to his return to America in July 1784, Jay was appointed secretary for foreign affairs, a position merited by his experience and performance overseas. From December 1784 to the end of the Confederation, Jay acted as a kind of first minister at a time when Congress was weak and inactive. With the assistance of only a few clerks, Jay submitted more than one hundred reports to Congress and penned some five hundred official letters on topics ranging from routine consular matters to trade with China and piracy. Under the new Constitution, he continued to serve as interim secretary of state until Thomas Jefferson assumed the office in March 1790.

Violations by the states of the compensation provisions of the peace treaty (upon which Britain justified its failure to evacuate forts on U.S. soil) supplied a persistent difficulty during Jay’s tenure as foreign secretary. In addition to drafting instructions for John Adams, who was dispatched as minister to Great Britain, Jay digested various state laws on the recovery of debts owed to British creditors and the property-rights of former loyalists, for what would be the most significant report of his five-year term. Submitted to Congress in October 1786, it firmly asserted the sovereignty of the Confederation in foreign policy and the supremacy of treaties over state laws, anticipating similar provisions in the Constitution that would later be affirmed by the Jay Court. Finally adopted in April 1787, the report’s recommendations encouraged compliance on the part of some states, but underlying issues remained unresolved until the 1790s.

Jay was also bedeviled by the Barbary corsairs, who had seized American ships and sailors off the coast of North Africa. Until a navy could be built, he advised making treaties with the “piratical states,” but Congress failed to authorize construction, and a lack of funds for ransom condemned American seaman to prolonged confinement. Jay did conclude a treaty with the Emperor of Morocco, but the Barbary menace persisted intermittently until after the War of 1812.

Unresolved issues with Spain also occupied much of Jay’s time as foreign secretary, particularly Spain’s closure the mouth of the Mississippi River to American navigation in 1784. Negotiations with the Spanish envoy, Don Diego de Gardoqui, dragged on for months, until Jay sought to sacrifice navigation of the Mississippi for twenty-five years in exchange for a favorable trade agreement. News of the effort in Congress set off a protracted sectional debate that scuttled the treaty and damaged Jay’s reputation among southern interests that depended on access to the Mississippi. Another victim of the acrimony was a series of amendments proposed by Congress that if adopted by the states would have strengthened the Articles of the Confederation, and thereby blunted the movement for a constitutional convention. Jay’s years as secretary for foreign affairs were not notable in terms of positive achievements, but in light of the constraints of the office – a miniscule staff, a moribund Congress, a skeleton army, and a non-existent navy – he deserves credit for providing direction and continuity to an otherwise ineffectual and rudderless government.

Nationalist and Federalist

Even before the Articles of Confederation were ratified in 1781, Jay recognized that the national authority was inadequate to the purposes of union. His experience at home and abroad reinforced his belief that the “federal government is incompetent to its objects” and required additional powers. Declaring it “the duty of [America’s] leading characters to cooperate in measures for enlarging and invigorating it,” Jay placed himself in the vanguard of nationalists such as Washington, Madison, and Hamilton. While his duties as foreign secretary precluded his attendance at the Federal Convention in Philadelphia, Jay did play an indirect role in shaping the Constitution by fostering nationalist views among his wide circle of contacts. It is likely that his letter to Washington inspired the provision in Article II that limits eligibility for the presidency to natural-born citizens.

Like Hamilton, Jay had doubts about the Constitution, but joined him in actively supporting its ratification. Asked to contribute to the Federalist papers, written to promote ratification in New York, Jay penned Nos. 2-5 – before falling ill in late 1787 – and No. 64 in March 1788. Drawing on his extensive diplomatic experience, he underscored the perils of disunion and the necessity of a strong national government for defense and the conduct of foreign affairs. Far more influential was Jay’s Address to the People of the State of New York, which was praised by contemporaries (including Washington) for its success in blunting Antifederalist opposition. Jay’s biographer has called it “the single most persuasive paper in a blizzard of paper produced in New York about the Constitution.”

Such efforts were not, however, sufficient to prevent voters from electing a large Antifederalist majority to the New York ratifying convention in spring 1788. Along with Hamilton and Robert R. Livingston, Jay led the Federalist minority in an uphill struggle for ratification in Poughkeepsie. Outnumbered and fearful of outright rejection, Jay and the Federalists adopted a strategy of delay, while working behind the scenes to separate individual Antifederalists from the fold. News that Virginia had ratified the Constitution, however, proved the turning point, as Antifederalists were now faced with the prospect of New York’s isolation outside the union. In the end, the Empire State adopted the Constitution by a vote of 30 to 27. Hamilton received much of the credit, but Jay was recognized by his colleagues as the principal agent of victory.

Chief Justice and Diplomatic Envoy

Under the new Constitution, President Washington appointed Jay chief justice of the United States in 1789. The most important case decided by the Jay Court was Chisholm v. Georgia (1793), the only Supreme Court decision directly overturned by a constitutional amendment. In Chisholm, the Court ruled that a South Carolina plaintiff could sue the state of Georgia in federal court, a literal reading of the Constitution but contrary to the hallowed principle of sovereign immunity, whereby a state could not be sued without its consent. The decision was met with wide-spread protest and shortly led to the adoption of the Eleventh Amendment (1795), which bars private suits against states in federal court.

A far more enduring legacy of the Jay Court was its response to the State Department’s request for an advisory opinion on the constitutional status of his Neutrality Proclamation, issued in 1793 by President Washington to avoid entanglement in the war between revolutionary France and Great Britain. Jay and the sitting justices declined to issue an opinion, citing separation of powers, the Court’s function as a forum of “last resort,” and the constitutional provision limiting its jurisdiction to actual “Cases” and “Controversies.” Jay’s refusal to provide an advisory opinion helped establish the judiciary’s independence and set a lasting precedent for future justices.

Despite its efforts to maintain neutrality between France and Britain, the Washington administration was beset by mounting abuses on both sides. While agents of France outfitted privateers in U.S. ports, the British seized American vessels, confiscated cargoes, and in some cases impressed sailors. As war clouds gathered, Washington appointed Jay – still serving as chief justice – envoy to Great Britain in an effort to reduce tensions, resolve outstanding issues, and obtain a commercial agreement. With few bargaining chips at his disposal, Jay was pressed to grant additional concessions, drop certain demands, and accept arbitration on others. He did extract a pledge to evacuate British soldiers from U.S. territory, thus ending a humiliating slight to American national honor.

The treaty, signed in late 1794 and received by Washington the following spring, was kept secret until ratified by the Senate in June 1795. Publication of “Jay’s Treaty” unleashed a storm of protest that fueled the burning controversy in America over the French Revolution. Critics of the treaty condemned it as an unholy alliance with monarchical Britain and a betrayal of republican France. Jay himself was highly vilified by the opposition, but the treaty was probably the best that could be obtained and served to prevent a ruinous war the United States was ill-prepared to fight.

Final Years

Jay’s return from England coincided with his election as governor of New York, an office he assumed in July 1795 after resigning as chief justice of the United States. When a yellow fever epidemic broke out in the city, Jay’s active measures helped halt its spread, but its return in 1798 claimed some 2,000 lives. As governor Jay contributed to the gradual abolition of slavery, prison reform, and the strengthening of New York’s defenses. When war fever swept the nation in response to the XYZ affair in the spring of 1798, he persuaded the legislature to appropriate large sums for military preparations and prevailed upon Hamilton to oversee defensive planning.

On the national stage, Jay continued to offer advice on foreign affairs and reviewed a draft of Washington’s Farewell Address. In the elections of 1796, most New Yorkers voted Federalist, a tacit vindication of Jay’s Treaty. In 1800 he rejected Hamilton’s plan to block Jefferson’s election as president, refusing to change New York’s electoral system after the people had voted. Shortly thereafter Jay refused a second appointment as chief justice of the United States, which cleared the path for the appointment of John Marshall. After finishing his second term as governor in June 1801, Jay retired to his farm in Bedford, New York. Possessing neither the brilliance of Hamilton, the versatility of Jefferson, nor the ingenuity of Franklin, Jay’s reputation as a leading founder rests on the quieter qualities of intelligence, dedication, patience, integrity, and a marked capacity for compromise and conciliation.