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EDITED BY
JOHN T. MORSE, JR.
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5llmccican J>tatcj6inicn
JOHN JAY
GEORGE PELLEW
BOSTON AND NEW YORK HOUGHTON, MIFFLIN AND COMPANY HitiersitJc tiTamlinDg?
1890
Copyright, 1890,
By GEORGE PELLEW.
All rights reserved.
I
The Riverside Press, Cambridge, Mass., U. S. A.: Electrotyped and Printed by H. 0. Houghton & Company.
PREFACE.
- * -
The public life of John Jay was so active and varied that it is almost impossible to compress the essential facts in a small compass without losing much of their interest and suggestiveness. Moreover, he was by disposition so reticent and unimpulsive, so completely self-controlled, that there is scarcely any material for constructing a history of his inner private life. He was singularly free from those faults which, trivial or serious, attract men’s love by exciting their sympathy or pity. Conscientious, upright, just, and wise, John Jay, like Washington, survives in the popular imagination as an abstract type of propriety ; and his fair fame has been a con¬ spicuous mark 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
VI
PREFACE.
been published of Doniol’s “ La participation de la France dans I’etablissement de I’independance des Etats-Unis,” which contains the official doc¬ uments relating to the treaty of Aranjuez, eluci¬ dating with extreme fullness the relations be¬ tween the courts of Paris and Madrid in the critical years of 1778, 1779. The “Jay MSS.,” from which a selection is now preparing for pub¬ lication, and an elaborate digest, with quota¬ tions, of the “ Stevens MSS.,” have also been studied with minute care ; and to these sources, and to the constant valuable suggestions and criticisms of my uncle, the Honorable John Jay, is due whatever of new or original may be found here. George Pellew.
New York, March 1, 1890.
CONTENTS
CHAPTER PAGE
I. Youth, 1745-1774 . . 1
II. Conservative Whig Leader, 1774-1776 . 23
III. Revolutionary Leader, 1776-1779 . . . . 59
IV. Constructive Statesman, 1778, 1779 . . 76
V. President of Congress, 1779 .... 105
VI. Minister to Spain, 1779-1782 . . . 120
VII. Negotiator of Peace: The Attitude of
France in 1782 144
VIII. The Negotiations, 1782, 1783 . . . 166
IX. Secretary for Foreign Affairs, 1784-1789 . 229
X. Chief Justice of the United States, 1789-
1795 262
XI. Special Envoy to Great Britain, 1794, 1795 294
XU. Governor of New York, 1795-1801 . . 318
XIII. In Retirement, 1801-1829 .... 340
JOHN JAY.
- ».
CHAPTER I.
YOUTH.
1745-1774.
John Jay, the eighth child and sixth son of Peter Jay and Mary, the daughter of Jacobus Van Cortlandt, 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 age of forty to live at a country house and farm at Rye in Westchester County. The family was of French descent ; the great grandfather, Pierre Jay, a Huguenot merchant of La Rochelle, left France on the revocation of the Edict of Nantes, when the greater part of his property was confiscated, and died in England. The grandfather, Augus¬ tus, after many hazardous adventures, settled in New York in 1686, where he married Anna Maria Bayard, a descendant of a Protestant
2
JOHN JAY.
professor of theology at Paris, who had like¬ wise chosen to leave his country for religion’s sake, making his home in Holland. Through his wife’s relations, the Bayards and Stuyve- 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 Barbadoes he shipped flour, bread, pork and hams, receiving in return 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 appears as one of the aider- 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 Livingston.
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
^ Jones, History of New York, ii. 223.
“ Afterwards knighted for his success in raising funds in England for King's College, noAv Colunahia College, a member
YOUTH.
3
in the brief business-like notices 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 endeavor to gain prosi- lites to their detestable notions, and so rob the Almighty of the honour and adoration that is due to him from his creatures.” ^
Sow and then a casual sentence opens a tiny chink 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 Senate, and a physician of distinction in New York.
^ To James Jay, December 7, 1751, Letter Book of Peter Jay, iii.
September 2, 1754.
4
JOHN JAY.
inches.”^ One wonders whether James, when he returned after many years, did remember that snuff box so minutely described, and whether it was the recollection of those “neat long pipes ” that made John Jay always so fond of long “Churchwardens.”
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, espe¬ cially for the fate of Sir Danvers Osborne, “ our late new Governor,” who “ very unhappily com¬ mitted a violence upon himself, and was found in a melancholy situation fastened with his hand¬ kerchief.” ^ But from the date of the Stamp Act and the measures restrictive of trade, that were passed simultaneously with its repeal, 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 disfavour 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
^ November 26, 1754.
To David Peloquin, October 24, 1753.
YOUTH.
5
judicious in a very different light, as the un- happy occasion of making very bad impressions on the minds of the people, and the laying 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 having a feeling for the great numbers who are likely to suffer by them.” ^ The hard times that followed are noticed briefly ; “ The reasonableness of a gen¬ eral complaint of the difficult times in these Colonyes by the great restrictions lay’d on trade, etc., begins to manifest itself by frequent fail¬ ures, and by a shocking general bad pay among the people ; ” ^ and as the year advances to its close, the language becomes stronger, and the keen-eyed merchant begins 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 Stamp Act will be opposed 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 impolitick act have effectually
. ^ To David Peloquin, May 7, 1765.
2 To same, June 4, 1705.
6
JOHN JAY.
united the several Colonyes into the strongest tyes of mutual interest and friendship, which political 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 stand. When the final appeal to arms came, Peter Jay remained true to his Whig principles, though no extremist. “ God 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,” 2 a curiously illogical wish, but one that 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 that 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 Johnxy, — Your brother tells me Mr. Bayard and you have agreed about the road. The settlement of our lott never was an object to me, and had that gentleman condescended to ask me for a road as a matter of favour he should have had it.
^ To David Peloqiiin.
2 Aprd 18, 1776, Jay MSS.
YOUTH.
7
His attempt to draw me into the measure by regard to my own interest, was a little piece of art which I was determined should not succeed. . . . Design is not his talent, he had better act with candor and openness. His threats of an Act of Assembly and an Application to the Corporation, were better calcu¬ lated to excite ridicule than 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 too.” 1
Piety, independence, and a keen sense of jus¬ tice were natural birthrights in the Jay family ; to these several generations of successful busi¬ ness men had added the more worldly virtues of prudence and perseverance, while from his 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 noticeable that of Jay’s 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 1796, “not being of British de¬ scent, I cannot be influenced by that tendency towards their national character, nor that par-
1 To John Jay, Mil, Jay MSS.
8
JOHN JAY.
tiality for it, which might otherwise be supposed to be not unnatural.” This fact in itself, com¬ bined with the hatred of interference traditional among merchants, may have had no little influ¬ ence in making John Jay a leader in the Amer¬ ican Revolution without his ceasing to be, or rather because he was, a conservative.
The year of his birth he was taken to Rye, 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 hisArother 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 ; “ he will be soon fit to go to a grammar school ; ” ^ and to a grammar school he accordingly 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
^ Scharf, Hist, of Westchester Co., ii. 672.
^ To James Jay, July 3, 1752.
YOUTH.
9
James’s disposition for books.” ^ The school was kept by the Rev. Peter Stoope, the pastor of the French Huguenot Church, then lately joined to the Episcopal Communion, at New Rochelle. He was by birth a Swiss, an eccentric man, very 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 panes 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 had 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 1760, when he was but a little over fourteen years old. For admission he was required to read “ the first three of Tally’s orations, and the six
^ To Messrs. D. & L. Peloquin, Oct. 24, 1753.
10
JOHN JAY.
first books of Virgil’s ^Eneids into English, and the ten first chapters of St. John’s Gospel into Latin,” to be well versed in Latin grammar, and to be “ expert in Arithmetick as far as Re¬ duction.” At that time the college was under its first president, the learned and pious Dr. Samuel Johnson, an old friend of Mr. 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 Congregational¬ ism for the Church of England. Single-handed at first, then with one and afterwards two assist¬ ants, he instructed the few students of King’s College, and was just gaining some success, when he resigned on the death of his wife of the smallpox, which for some years had been epi¬ demic in New York, and for fear of which he 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 has a right to expect from you, and, although I believe things go well in the college now,” Mr. Jay suggested with characteristic caution, “ yet I would not have you write more than
^ Baird, Life of Dr. Samuel Johnson.
YOUTH.
11
may be communicated out of college.” ^ The boy wrote accordingly, and the late president 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 future.” ^
Of Jay’s college life little is known. During the first two years he lodged at the house of Lawrence Komer, a painter, at ‘‘ the corner of Verlettenburgh 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 Dickinson.® “ My son John has now been two
^ August, 1763, Jay MSS.
~ From Rev. Dr. S. Johnson, Oct. 27, 1763, Jay MSS.
® John Adams's Works., x. 79.
12
JOHN JAY.
years at college,” wrote Mr. Jay, in 1765, “where he prosecutes his studyes to satisfac¬ tion. He is indued with very good natural parts, and is bent upon a learned profession. I be¬ lieve it will be the law.” ^ In his last year at college. Jay, then “ a youth remarkably sedate and well-disposed ” ^ 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 Jure Belli et Pacis,” 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 close to it, and, if possible, from taking a delight in it.” ^
In 1763, Dr. Johnson was succeeded as pres¬ ident by Dr. Myles Cooper, “ a wit and a
^ John Adams'' s Works, April 14, 1763.
^ To David Peloquin, Letter Book, May 16, 1763.
3 August 23, 1763, Jay MSS.
YOUTH,
13
scholar,” said Verplanck, “whose learning and accomplishments gave him personal popularity and respect with his pupils, and of course added authority to his opinions, and those were the opinions and prejudices of the high-toned Eng¬ lish University Tory of the last century.” ^ Twelve years later, to escape a mob, this good gentleman was forced to leap over the college fence with an undignified precipitation little be¬ fitting a ^oet and a Fellow of Oxford, and he sailed forthwith for England ; but at this ear¬ lier time he was not unpopular, and he was al¬ ways spoken of respectfully by Jay, who might naturally have resented what he then deemed a most unjust punishment in the following matter. One dav a number of students in the College Hall 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 sturdy reply ; and the next
^ Gulian Verplanck, Address before College Societies, August 2, 1830.
14
JOHN JAY.
and last boy answered as eJay did. These two were called before the professors, when J ay ar¬ gued ingeniously and reasonably enough that, as information against fellow-students was not required by the College Statutes, they were not technically guilty of disobedience in not' inform¬ ing; but the professors were unconvinced, and Jay was rusticated only a short time before he was to graduate. His term of suspension over, he returned to college, and at the Commence¬ ment held in May, 1764, in the presence of General Gage, his majesty’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, the office of Benjamin Kis- sam, a barrister “ eminent in the profession,” ^ binding himself an apprentice, on the payment of c£200, to serve for five 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 the office. 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 profession, and a new and more liberal agreement “ under such restric-
^ Letter Look, May 15, 1764.
YOUTH.
15
tions,” however, “ as will greatly impede the lower class of the people from creeping in,” ^ was made only in time to prevent Jay from starting for England to get a professional education there.
“ The office duties of clerks at that period,” according to Peter Van Schaack, who three years later was studying under William Smith of the sapie bar, “ were immensely laborious ; everything was written, and the drudgery of copying was oppressive. Printed blank forms, which are now used by the profession with so much economy of time and labor, were then un¬ known. Even the argument of questions of law before the Supreme Court was conducted in writing.” ^ The law books of the time were the ponderous tomes of reports and digests that preceded Blackstone’s Commentaries, which did not reach America till the third year of apprenticeship. In this drudgery Jay had as companion for a while Lindley Murray, after¬ wards the famous grammarian, who was soon struck by the unusual qualities of his fellow- student, qualities which, as he then noted them, were characteristic of Jay throughout a long life. “He was remarkable,” said Murray,
^ Letter Book, May 15, 1764.
2 Life of Peter Van Schaack, by Henry Van Schaack, pp. 6,7. ‘
16
JOHN JAY.
“ for strong reasoning powers, comprehensive views, indefatigable application, and uncommon firmness of mind.” ^ With Mr. Kissam Jay, though very young and only a clerk, was before long on terms of intimacy. Many years after¬ wards, he had the pleasure of introducing Kis- sam’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 I have ever had.” ^
In the sixties the must of the Revolution was already fermenting, but politics were apparently ignored by both master and clerk except so far as concerned their legal business. In April, 1766, Mr. Kissam proposes going “ on a jaunt” to Philadelphia, if the news of the repeal of the Stamp Act does not arrive in the mean time ; for as, he writes, “ on the Repeal of the Stamp Act we shall doubtless have a luxuriant harvest of law, I would not willingly, after the long fam¬ ine w’e have had, miss reaping my part of the harvest. . . . As soon as it reaches you, I beg you’ll come down, and be ready to receive all business that offers.” ^ Kissam, while absent, wrote to ask about the conduct of the office, and Jay replied in a letter that was, as he expressed
^ Autobiography of Lindley Murray.
2 To John Adams, Feb. 16, 1788, Jay MSS.
* To John Jay, April 25, 1766, Jay MSS.
YOUTH.
17
it, “ free enouofh in all conscience : ” “ If bv
wanting to know how matters go on in the office, you intend I shall tell 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 tell you that I am all the da^ in your office, and as attentive to your interest as I would be to my own, I suspect you would think it such an impeach¬ ment of my modesty as would not operate very powerfully in favor of my veracity. And if, on the other hand, I should tell you that I make hay while the sun shines, and say unto my soul, ‘ Soul, take thy rest, thy lord is journeying in a far country,’ I should be much mistaken if you did not think that the confes¬ sion looked too honest to be true.” ^ The fun of a lawyer of twenty-one in 1766 does not, per¬ haps, bear quoting, but it shows the familiar, pleasant relationship he had already established with his “ master,” and the boyish gayety that was so soon, perforce, 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
^ Jay, Life of John Jay, i. 18.
18
JOHN JAY.
I may have the means, sir, of visiting you fre¬ quently.” The fact was that then, as in after years, Jay suffered from ill health, especially from dyspepsia, and found his best medicine in regular exercise.
In 1768 he was admitted to the bar, and be¬ came almost immediately successful, forming at first a temporary partnership with Kobert R. Livingston, afterwards Chancellor of the State, and Secretary for Foreign Affairs. Benjamin 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 appertains 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 Revolution, 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 merchants. It was seldom that a case arose like that of Zwengler, 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, that of a contested elec¬ tion in Westchester County, in which the right
YOUTH.
19
of suffrage was discussed, and questions of evi¬ dence of more than usual intricacy arose. On this occasion J ay was opposed by his friend Gou- verneur Morris. In 1770 Jay speaks of going to Fairfield to try two causes ; ^ and in 1774 he is addressing a jury at Albany. His practice, then, was varied, though he was engaged in no great cases, and was a# no time noted for brilliant or “ magnetic ” oratory. In after years his “ quiet, limpid style, without gesture,” attracted the at¬ tention of the younger Hamilton during the great debates on the ratification of the Consti¬ tution in the New York Convention, and, as a young lawyer, he must have been unusually clear-headed and tactful. “ All the causes you have hitherto tried,” wrote Kissam in 1769, “ have been by a kind of inspiration.” ^ These two still continued great friends, though some¬ times engaged on opposite 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 peck out but to open your eyes.”
In November, 1770, a number of lawyers in New York formed “ The Moot,” a club that met the first Friday of every month for the discus¬ sion of disputed points of law. Jay was one of
^ To Dr. Kissam, March 1, 1770, Jay MSS.
2 From Benjamin Kissam, Nov. 6, 1769, Jay MSS.
20
JOHN JA7.
the younger members, together with his college friends, Egbert Benson, in clue time Judge of the New York Suprem^ Court ; Kobert K. Liv¬ ingston, 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 Schaack, 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, who attended occasionally, were William Smith, who later be¬ came Chief Justice of Canada, after having been confined in Livingston Manor, and banished as a Tory sympathizer ; Samuel Jones, the Chief Justice, whose office was to be the training school of De Witt Clinton; John Morin Scott, the popular orator of the Liberty Boys, lawyer, patriot, and general ; William Livingston, and Benjamin Kissam. The decision of the club on a matter of practice is said to have been followed by the Superior 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¬ bered with delight ; ^^a recollection,” wrote Van Schaack to Jay before many years had passed, “ of those happy scenes, of our clubs, our moots,'
YOUTH.
21
and our Broadway evenings, fills me with pleas¬ ing melancholy reflections, — fuimus Troes.^fuit Ilium r ^
In the 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-day. Two years later his ofiicial 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 Hall,” Elizabeth, New Jersey, he married “the beauti¬ ful Sarah Livingston,” the youngest daughter of William Livingston, soon to be the famous rev¬ olutionary governor of New Jersey, and already well known for countless literary and political poems, letters, and essays. In the notices of the wedding. Jay, young us he was, could be de¬ scribed as “ an eminent barrister,” ^ — the same
^ Life of Peter Van Schaack, p. 100.
- Aug-ust 27, 1771, Jay MSS.
* New York Gazette, May 9, 1774.
22
JOHN JAY.
phrase that was applied to him a month or two later by Lieutenant Governor Golden.
With this spring closes the first third of Jay’s 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 gathered from the meagre records extant, his twenty -ninth year found him a studious, quiet lawyer, devoted to his profession and but little excited by the poli¬ tics of the day. As a boy he 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 and 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 ripened to well- balanced wisdom unconsciously and apparently unsuspected. By family traditions he was inde¬ pendent of England, and a Whig ; and now by marriage he was connected with the great Whig family of Livingston, which had for generations contested the province with the Tory He Lan- ceys.
CHAPTER II.
CONSERVATIVE WHIG LEADER.
1774-1776.
“ Throughout America tlie constitutions favored individuality. Under the careless rule of Great Britain, habits of personal liberty had taken root, which showed themselves in the tenacity wherewith the people clung to their habits of self-government ; and so long as those 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 1773, Jay was as loyal as any man “in all the King’s dominions;” in 1776, as chairman of a secret committee, he was punishing with impris¬ onment and exile many men whose only crime was retaining the opinions he himself had held three years before. Yet, in the meanwhile. Jay’s principles of conduct and his mental attitude
^ Brooks Adams, The Emancipation of Massachusetts, pp. 316, 317.
24
JOHN JAY.
were unchane^ed. How such could be the case is worth inquiry ; 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 hand of the Sons of Liberty, were ordered by their old leaders to be on the watch for the tea ships ; ^ and it was merely the chances of time and tide that gave the opportunity 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.2 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-
^ Leake, Life of John Lamb, p. 76.
^ Ibid., pp, 2, 69.
^ New York Journal^ Dec. 16, 1773.
CONSERVATIVE WHIG LEADER.
25
inittee of fifteen chosen as a Committee of Cor¬ respondence that was soon known as the Vigi¬ lance Committee. Letters also were exchanged
O
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 that the interest of all classes was now excited. April 15th, the Nancy with a cargo of tea arrived off Sandy Hook,
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 Boys.^
The bill closing the port of Boston was en¬ acted March 31st, and a copy of the act readied New York by the ship Samson on the 12th.
^ Leake, Life of John Latnb, pp. 81-84.
followed shortly
26
JOHN JAY.
Two days later the Committee of Vigilance wrote to the Boston Committee recommending vigorous measures as the most effectual, and assurins: them that their course would be heart- ily supported by their brethren in New Yorkd So rapid had been the march of events that not till now did the merchants and responsible citi¬ zens of New York take alarm. Without their concurrence or even knowledge they were being rapidly compromised by the unauthorized action of an irresponsible committee, composed of men who 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 the better part of the community. The one weapon in which the Sons of Liberty trusted was “ Non-importation,” a prohibition of trade with England, and this was a measure which injured the merchants of New York more than 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 Colden 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
^ Leake, Life of John Lamb, p. 87.
CONSERVATIVE WHIG LEADER. 27
appeared among them. . . . The principal inhabitants, being now afraid that these hot¬ headed men might now run the city into dan¬ gerous measures, appeared in a considerable body at the first meeting of the people after the Boston Port Act was published here.” ^ This meeting, convoked by advertisement, was held May 16th, at the house of Samuel Francis, “ to consult on the measures proper to be pursued.” It was proposed to nominate a new committee to supersede the Committee of Vigilance, au¬ thorized to represent the citizens. A committee of fifty. Jay among them, instead of one of twenty-five as at first suggested, was nominated “for the approbation of the public,” “to cor¬ respond with our sister colonies on all matters of moment.” Three days later these nomina¬ tions were confirmed by a public meeting held at the Coffee House, but not until a fifty-first mem¬ ber was added, Francis Lewis, as a representa¬ tive of the radical party which had been as much as ])ossible 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. Archives, 4th Series, i. 372.
28
JOHN JAY.
War, “ no non-im- nor non-exportation will be agreed upon, either here or at Philadelphia. The power over our crowd is no longer in the hands of Sears, 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 mischievous capacity expired instantly upon the election of the Com¬ mittee of Fifty-one, in which there is a majority of inflexibly honest, loyal, and prudent citizens.”
At the Coffee House again, on May 23d, the Committee of Fifty-one met and organized ; they repudiated the letter to Boston from the Com¬ mittee of Vigilance as unofficial ; ^ a letter from Philadelphia was read ; Paul Revere, the “ ex¬ press ” or confidential messenger from Boston, attended with a letter dated May 13th, request¬ ing concurrence with the resolves of the Boston town meeting of that day ordering non-importa¬ tion from Great Britain and discontinuance of trade with the West India Islands; and Mc- Dougall, Low, Duane, and Jay were appointed a sub-committee, to report the same evening a draft of an answer to this last. The draft, as reported, 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-
^ Leake, Life of John Lamb, p. 88.
CONSERVATIVE WHIG LEADER. 29
specting your [Boston’s] deplorable circum¬ stances, but for tlie security of our common rights ; ” and that the advisability of a non-im¬ portation agreement should be left to the Con¬ gress. This report was unanimously agreed to, a copy was delivered to Paul Revere, and an¬ other copy to a messenger for Philadelphia.^ The importance of this letter can hardly be ex¬ aggerated, for it was the first serious authorita¬ tive suggestion of a General Congress to con¬ sider “ the common rights ” of the colonies in general. The people of Boston in the indigna¬ tion of _ the moment were preoccupied wholly with their private local wrongs, for which they were ready to involve the continent in a war of commercial restrictions. The Sons of Liberty in New York and elsewhere were equally in¬ capable of any broader views. The resolutions about the same date, some a day or two earlier, some a day or two later, of meetings in Provi¬ dence and Philadelphia, and of the Burgesses of Virginia, were all deficient either in being unofficial or as limiting the object of the Con¬ gress to the quarrel of Boston.^ It was the
1 New York Journal, May 21, 1774. In Leake’s Life of Lamb, p. 88, the date of this meeting is erroneously given as May 26.
2 “ The first, or one of the first, to claim that the particular grievances of Boston were not the only ones to be considered — though the Committee of Philadelphia, in the letter forwarded
30
JOHN JAY.
conservative merchants of New York alone who were at the time calm, clear-headed, and far¬ 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 colonies, 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 purpose for July 19th.
Meantime the Committee of Vigilance was dying hard. It still tried to enforce the Bos¬ ton resolutions, by a system of espionage and threats. The chairman of a committee of merchants complained to the Fifty-one of these
with this to Boston, had adopted somewhat the same tone — and the first to propose a Convention of all the Colonies to take concerted action on all their grievances ; for the recom¬ mendation of the town of Providence, May 17, only requested their delegates in the approaching General Assembly to use their efforts to that end, and the Committee of Philadelphia, May 21, merely mentioned the suggestion without urging it.” The Committee of Correspondence of Connecticut concurred w'ith the New York recommendation, June 4; the General Assembly of Rhode Island, June 15 ; the General Court of Massachusetts, June 17, and Philadelphia at a meeting of the citizens, June 18. Dawson, Westchester Co. during the Revo¬ lution, p. 18.
CONSERVATIVE WHIG LEADER. 31
persons inquiring “ into their private business,” and the Fifty-one promptly denounced them. This was more than Lamb, the leader of the old committee, could stand. In the words of his biographer : “ Satisfied of the intentions of tlie 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 6th what was afterwards known as the “ Great meeting in the Fields,” now City Hall Park. Alexander Mc- Dougall presided, and strong resolutions were jDassed and pledges made in favor of non-impor¬ tation. These proceedings 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 sub-com¬ mittee was chosen to draw resolutions. Low, Lewis, Moore, Sears, Pemsen, Shaw, McDou- gall, and others refusing to attend, a new sub¬ committee was appointed, July 13th : Low, Jay, Thurman, Curtenius, Moore, Shaw, and Bache, who reported resolutions : “ That it is our great¬ est Happiness and Glory to have been born British Subjects, and that we wish nothing more ardently than to live and die as such ; ” that “ the Act for Blocking up the port of Bos-
^ Leake, Life of Lamb, p- 02.
82
JOHN JAY.
ton is . . . subversive of every idea of British Liberty ; ” and that it should be left to the pro¬ posed Congress to determine the question of non-importation, which iv^ould be justified only by ‘‘dire necessity.”^
The resolutions were adopted, and Philip Liv¬ ingston, John Alsop, Isaac Low, James Duane, and John Jay were nominated as delegates To be submitted to the public meeting, July 19th. 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 Boys since his imprisonment in 1769 for libel on the Tory Assembly. But they re¬ jected the proposed resolutions, wdiich had been violently denounced by Lamb, that brave but turbulent spirit, for humility, ambiguity, incon¬ sistency, and aversion to non-importation. 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¬ ton. 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, that
^ New York Journal, July 14, 1774.
CONSERVATIVE WHIG LEADER.
33
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 Mechanics, 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 superintendency of the aldermen and members of the Committee of Fifty-one and of the Me¬ chanics’ Committee.^ In answer to letters from the latter the candidates stated that they be¬ lieved at the moment in the propriety of non¬ importation, but were determined to hold them¬ selves free to act, if elected, as should seem best in the 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.
^ Leake, Life of Lamb, p. 94.
2 Livingston, Gazette, July 28, 1774.
® N. Y. Journal, August 4, 1774.
34
JOHN JAY.
Thus, fortunately, at the very inception of the Revolution, before the faintest clatter of arms, the popular movement was placed in charge of the Patricians as they were called, rather than of the Tribunes., as respectively represented by Jay and McDougall. “ The former were composed 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 elec¬ tion of the Committee of Fifty-one, Gouverneur Morris was present, and remarked with uneasi¬ 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 possi¬ ble dominions. lYe 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¬ cians succeeded in sending the delegates of their choice unpledged to the Congress.
^ Losaing, Hist, of N. Y. City, i. 32.
2 Gouverneur Morris to Penn, May 20, 1774, Sparks, G. Morris, i. 25.
CONSERVATIVE WHIG LEADER.
35
On Monday, August 29th, Jay set off for Philadelphia alone, and without announcing his departure, though he joined his father-in-law, Mdlliani Livingston, at Elizabeth, thus avoiding the complimentary farewell with which the peo¬ ple speeded his fellow-delegates. “ Mr. J ay is a young gentleman of the law, of about twenty- six [in fact, twenty-nine], 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¬ phia.^
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
^ John Adams s ii. 8o0.
Sparks, Gouverneur Morris, i. 217.
^ John Adams's iror/ts, x, 78, 79.
36
JOHN JAY.
Congress was not a revolutionary body in the sense in which the phrase could be applied to the ])rovincial congresses and conventions of the next few years. In its origin and organization it usurped no illegal authority, but was a purely consultative assembly, like those that had met occasionally in times of emergency earlier in the century. “ The powers of Congress at first were indeed little more than advisory,” said Judge Iredell of the United States Supreme Court ; “ bat, in proportion as the danger increased, their powers were gradually enlarged.” ^ So great was Jay’s sense of the diversity of opinion that when it was moved to open 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.” ^ Still, in spite of this caution, a chaplain was appointed, whose prayers, though he afterwards joined the royalists, excited no dissension.
The first regular business of Congress was to appoint a committee “ 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
1 3 Dali. 91.
" John Adams's Works, x. 79.
CONHERVATIVE WHIG LEADER.
and the British Constitution to ascertain our rights. The ‘ Constitution ’ of Great Britain
O
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 papers of American lib¬ erty,” of which Jay wrote so many, “ were all predicated on the abuse of chartered, not of ab¬ stract rights.” 2 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 upon the supposition that government is at an end. All distinctions are thrown down. All America is thrown into one mass.” “ Could I suppose,” Jay replied, “that w'e came to frame an American constitution,
^ John Adams's Works, ii. 370.
2 Gibbs, History of the Administrations of Washington and Adams, i. 3.
38 JOHN JA Y.
instead of endeavoring to correct the faults in an old one, I can’t yet think that all govern¬ ment is at an end. measure of arbitrary
power is not yet full ^ and I think it must run over^ before we undertake to frame a new con¬ stitution.'’'' ^ In this last sentence is found the principle of Jay’s conduct throughout the early revolutionary period, before the Declaration of Independence. It was at once the path of duty and of prudence ; for only in this way could the people be compelled by the logic of facts as well as of argument into something like una¬ nimity. In the 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 the non-importation resolution on September 27th, Jay also expressed the opinion of the ma¬ jority, unwisely according to nineteenth century notions of political economy, but most wisely in the light of those days and in the political emergency of the moment. “ Negotiation, sus¬ pension of commerce, and war,” he said, '•* are the only three things. W ar is, by general con¬ sent, to be waived at present. I am for negotia¬ tion and suspension of commerce.” ^ On Sep-
^ John Adams's Works, ii. 367, 368.
2 Ibid., ii. 385.
CONSERVATIVE WHIG LEADER.
39
teiiiber 28tli a motion was introduced that proved the extreme conservatism of the Con¬ gress. Joseph Galloway, of Pennsylvania, made a proposition which Adams condensed as fol¬ 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 British-American Legislature.” In other 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 president general appointed by the crown, and by a grand council of delegates from the various assemblies. The 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 be adopted without consulting constitu¬ ents. Does this plan give up any one liberty, or interfere with any one right ? ” ^
tlay was then placed on a committee to draft an address to the people of Great Britain, and a memorial to the people of British America ; and the former was assigned to him. The key-note ^ John Adams's Works., ii. 389.
40
JOHN JAY,
of the address was : “ W e consider ourselves, and do insist that we are and ought to be, as 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 seditious, impatient of government, and desirous of independence. 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 ” rej^osed in them ; and in their answer the dele¬ gates showed themselves equally free from par-
^ .Jefferson's Writings, i. 8.
CONSERVATIVE WHIG LEADER.
41
tisaiisliip : “ Let us all, with one heart and voice, endeavor to cultivate and cherish a spirit of unanimity and mutual benevolence, and to pro¬ mote that internal 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 that in this familiar business the Committee of Mechanics cooperated heartily.^ The committee for the relief of Boston, of which Jay was also a member, was likewise not unoccupied. On one day, December 23d, for instance, they received “ for Boston, from the people of Hanover, twelve barrels of fine, eight of common, and five of cornel flour, and <£17 17i*. in cash, and from the precinct of Shengonk, thirteen barrels of flour and three of corn.” ® The Committee of Inspection was variously engaged, 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
1 Jay MSS.
2 Leake, Life of John Lamb, p. 95.
^ New York Journal, Dec. 29, 1774.
42
JOHN JAY.
that none should be exported, or contradicting false statements published by the loyalist editor, Kivingtond
The time now came for the election of dele¬ gates to the second Continental Congress, which was to meet May 10th, 1775. The Committee of Inspection ordered that delegates should be chosen by the counties, to meet in New York City, and select from among themselves repre¬ 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 Popery.’ On the other, ‘The 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 ineffectively, by Tories, who had purposely met the same morning at the 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 yard, and
^ New York Journal, March 23, April 13, 1775.
^ Ibid., March 9, 1775.
CONSERVATIVE WHIG LEADER. 43
drove them off the ground with pieces of hoop sticksd
Many of the councilors and assemblymen, in¬ cluding the speaker,^ attended the meeting at the Exchange, a further proof of the march of public opinion. There Jay was elected to the Provincial Convention, as it was called, though 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 Continental Congress. To their delegates the people now granted 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 rights and privileges, and for the restora¬ tion of harmony between Great Britain and the Colonies.”^
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
^ Gordon, Hist, of N. Y., i. 306.
^ Memorandunj in Jay MSS.
® Journals of Frov. Congress, etc., i. 22, 75.
44
JOHN JA Y.
limited ; they therefore recommended the elec¬ tion of a committee of one hundred, with author¬ ity adequate to the emergency, to conduct the government, to enforce the association, and to elect deputies to a Provincial Congress to meet in New York, May 22d. The old Colonial Assembly dissolved on April 3, 1775, never to meet again ; and on April 28th, the new com¬ mittee was elected, usually known as the Com¬ mittee of Observation, but in reality a revolu¬ tionary committee of safety. Jay and his next younger brother, Frederick, were members. The 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 had the streets patrolled at night to prevent the exportation of provisions, and called on the citi¬ zens 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 city,” the letter ran, “ is as one man in the cause of Liberty. . . . While the whole continent are ardently wishi^^g for peace on such terms as can be acceded to by Englishmen, they are indefatigable in prepar¬ ing for the last appeal ; ” ^ a brave statement to publish, when the committee knew that the city
^ Neiv Yoik Journal^ May 2'), 1775.
CONSERVATIVE WHIG LEADER.
45
was absolutely defenseless, and that troops had already been ordered thither and were on their way. On May 10th the second Continental Congress assembled at Philadelphia. The shot had been fired at Lexington. The measures before Congress were of necessity warlike. An address to the inhabitants of Canada was drafted by Jay, reported from a committee in which he was associated with Samuel Adams and Silas Deane, and on adoption was ordered to be translated into French for circulation across the border. The address warned the Canadians that the measures urged against the Americans may be turned against them, and concluded : “ As our concern for your welfare 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 committee which prepared the Declaration, published July 6th, “ setting forth the causes and necessity of their taking arms.” “ Against violence actually offered, we have taken up arms. We shall lay them down when hostilities shall cease on the j)art of the aggressors, and all danger of their being renewed shall be removetl, and not before.”
In spite of strong opposition. Jay persuaded Congress of the propriety of a loyal and respect¬ ful second petition to the King. A committee
46
JOHN JAY.
including himself was appointed to draft it, but it was actually written by Dickinson, 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 wish for reconciliation ; though defamed as seditious, we are ready to obey the laws, and though charged with rebellion, will cheerfully bleed in defense of our sovereign in a righteous cause ; ” but the main object of the address was to explain 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
^ John Adams's Works, x. 80.
CONSERVATIVE WHIG LEADER.
47
the King becomes still more clear, when we listen to his speech to the Assembly of New Jersey in December, when Congress sent him with two others to dissuade them from a similar petition. He argued, said a member present, that “ we had nothing to expect from the mercy or the justice of Britain. That petitions were not now the means ; vigor and unanimity the only means. That the petition of United America, presented by Congress, ought to be relied on ; others unnec¬ 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 independence of the Colonies,” and this state¬ ment was confirmed by Jefferson and Adams. Indeed, in a paper, undated, but written proba¬ bly at this time, the autumn of 1775, Jay quotes paragraph after paragraph ^ from the J ournal of Congress, to prove “ the malice and falsity ” of the “ ungenerous and groundless charge of their aiming at independence, or a total sepa¬ ration from Great Britaii\.” “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
^ Hare, Archives, 4tli Ser., iv. 1874, 1875.
^ The Mis. paffes cited are pag’es 59, 63, 64, 84, 87, 149, 150, 155, 163, 165, 172, etc.. Jay MSS.
48
JOHN JAY.
Britain, is to charge them falsely and without a single spark of evidence to support the accusa¬ tion. ... It is much to be wished that the peo¬ ple would read the proceedings of the Congress and consult their own judgments, 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 showed, which, as much as anything, suggested and justified the idea of independence to the minds of the people.
Jay was one of 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. He was also one of a committee of five which 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 proposed 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 Charlestown,” said Jay, “ would gentlemen have us burn New II ork ? . . . The question is, whether we shall have trade or not ? And this is to introduce a . . . scheme which will drive away all your sailors, and lay up all your ships to rot at the
CONSERVATIVE WHIG LEADER.
49
wharves.” In November Jay was appointed with Franklin, Harrison, Johnson, and Dickin¬ son, a secret committee to correspond “ with our friends in Great Britain, Ireland, and other parts of the worlds ^ 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, wdio, until his recall, held frequent correspondence with Jay by fictitious letters wdth the wdde 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 Adams were appointed a committee to consider the present state of the colony. The report, wdiich Jay is said to have drawm, urged the arrest of certain disaffected persons, and that those wdio had voted against sending delegates should be prohibited from leaving the country.
^ Journals of Congress, ITTo, pp, 272, 273.
^ Durant, New Materials for History of American i?cu., 1, 5.
50
JOHN JAY.
The New York Congress had applied for sol¬ diery to disarm the latter unfortunate persons, and, the committee 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 army; to inquire into the dispute between Pennsylvania and Connecticut ; to examine into the qualifications of generals ; to purchase pow¬ der for the troops besieging Boston ; to recom¬ mend the proper disposition of the tea then in the colonies ; and to ascertain the truth of a re¬ port that Governor Tryon, of New York, had 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 Gondolas as far as the fort, which is about twelve miles from the city.
^ Jay MSS.
CONSERVATIVE WHIG LEADER. 51
Each Galley had its company, and each com¬ pany entertained with variety of music, etc. We proceeded six or eight miles down the river, when, the tide being spent and the wind un¬ favorable, 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 unrepresented. “ 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, depend upon it, nothing
but actual imprisonment will be able to keep me from you.” ^
In the mean time «Jav was not unobservant of ^ To Mrs. Jav, Dec. 23, 1775, Jay MSS.
52
JOHN JA Y.
events in New York. In November the press of Rivington, the Tory printer, had been destroyed by a party of light horsemen from^ Connecticut, who also seized Bishop Seabury and others who had protested against the doings of the Congress. Jay’s comments show a rather complicated state of mind. “ For my part I do not approve of the feat, and think it neither argues much wis¬ dom nor much bravery ; at any rate, if it was to have been done, I wish our own people, and 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 be maintained without some little spirit being mingled with its prudence.” ^ To Alexander McDougall, in the New York Con¬ vention, he writes, urging them “ to impose light taxes rather with a view to precedent than profit.” McDougall now had become an inti¬ mate friend. A month earlier he had been the means of Jay’s making the only application for office he ever made 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 appoint¬ ment, and was appointed colonel of the second regiment, New York City Militia.^ For the
^ To Colonel Woodhull, Nov. 26, 1775, Jay MSS.
^ October, 27, 1775.
CONSERVATIVE WHIG LEADER.
53
next year or two his name appears as Colonel Jay in the Journal of the New York Congress anti conventions. Jay was also urged by Ham¬ ilton, the astutest politician of nineteen years that 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. “ The minds of all our friends will naturally tend to these,” he added, “ and the opposition will of course be weak and contemptible ; for the AYhigs, I doubt not, con¬ stitute a large majority of the people.” ^
In April, 1776, Jay had been elected a dele¬ gate to the New 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 particular, and America in general.” Jay was at once summoned to lend his counsel in the emergency, without vacating his seat in the Continental Congress, though the New York Provincial Congress forbade his leavins: “ without further orders.” For this reason it was that Jay’s name is not among those of the Signers of the Declaration of Independ- ^ From Alexander Hamilton, Dec. 31, 1775, Jay MSS.
54
JOHN JAY.
ence. Obedient to the call of liis colony, Jay mounted horse and started forthwith for New York, where he was sworn in and took his seat in the local congress on May 25th. He was at once placed on one committee to draft a law re¬ lating to the peril the colony is exposed to by “ its intestine dangers,” ^ and on another to frame into resolutions the report of the com¬ mittee on the recommendation by Congress of a new form of government.^ Accordingly, on June 11th, certain important resolutions on the 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 the Continental Congress, 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 methods. Duane, his colleague in Congress, wrote urging delay : “ The orators of Virginia with Colonel Henry at their head are against a change of govern¬ ment. . . . The late election of deputies for the Convention of New York sufficiently proves that
^ Journals of Prov. Cong., i. 461.
^ Ibid., i. 462.
CONSERVATIVE WHIG LEADER. 55
those who assumed excessive fei’vor and gave laws even to the Convention and Committees were unsupported by the people. There seems, therefore, no reason that one Colony should be too precipitate in changing the present mode of government. I would first be well assured of the opinion of the inhabitants at large. Let them be rather followed than driven on an oc¬ casion of such moment.” ^ “ So great are the
inconveniences,” replied Jay, “ resulting from the present mode of government, that I believe our Convention will almost unanimously agree to institute a better, to continue until a peace with Great 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 perhaps, too, that the existing Convention was less Bepublican than he supposed. “ Our Con¬ vention,” he wrote to Livingston, “ will, I be¬ lieve, institute a better government than the 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-
^ From James Duane, May 18, 1770.
^ To Duane, May 29, 1770,
56
JOHN JAY.
bers.” ^ It should be remembered, too, that only the preceding December the last Provincial Congress had resolved, “ that it is the opinion of this Congress, that none of the people of this Colony have withdrawn their allegiance from his Majesty.” ^ Such being the case in Decem¬ ber, it was surely prudent in June to refer again to the people before announcing their independ¬ ence.
The Declaration of Independence, that was now signing at Philadelphia, was a turning-point in Jay’s public life. In the Committee of Fifty- one he was apj)arently 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 disposition 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
1 To R. R. Livingston, May 29, 1776, Jay MSS.
New York Journal, Dec. 21, 1775.
CONSERVATIVE WHIG LEADER.
57
colony, especially in New York, the parties of Whig and Tory, the radicals and conservatives, were, in aggregate wealth and influence, nearly equally divided. Of Jay, and of every man of that day like him, it may be said, though in a different sense from that of the old Roman, that cunctando restituit rein^ by delay he created a nation. Conservative though not Tory, he saw that the struggle was to preserve and continue liberty they had always possessed, rather than to win liberty. The Revolution, as he was fond of saying, found us free as our fathers always were ; therefore it is false to suggest that we were ever emancipated. For this reason was the result of the war to be permanent, since it was the work of evolution, rather than of revolution. It is often said that the action of Jay and Dick¬ inson, in promoting petition after petition to the Kino- in terms of almost undisfnified concilia- tion, lost the opportunity for successful action and protracted the war. It is forgotten, per¬ haps, that at that early period the only action possible would have been spasmodic, and far from unanimous ; and that, even if successful, a sudden and short war would have left un¬ changed the disposition of half the people, which even the long years of the Revolution changed but slowly. The reaction which followed in the distracted days of the Confederation, and which
58 JOHN JAY.
nearly wrecked the infant state, would otherwise surely have resulted in thirteen zealous and dis¬ united colonies, instead of one great nation.
To this end did the 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 the favor of the less bigoted royalists, and winning gradually the confidence of the Sons of Liberty.
Time soon decided 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 w^as essential. “ I see the want of government in many instances,” wrote McDou- gall. “ I fear liberty is in danger from the li¬ centiousness of the people on the one hand, and the army on the other. The former feel their 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 be based on a Declaration of Independence.
^ From Alex. McDougall, March 20, 1776, Jay MSS.
CHAPTER HI.
REVOLUTIONARY LEADER.
1776-1779.
The new Provincial Congress of New York met at White Plains on July 9th, and at once referred to a committee 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 draftinof, which was unanimously adopted : “ That the reasons assigned by the Continental Congress for declaring the United Colonies free and independent 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 and fortunes, join with the other colonies in supporting it.” ^ The New York del¬ egates in Congress were accordingly 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 ^ Journals of Provincial Congress, p. 518.
60
JOHN JAY.
was changed to the “ Convention of the Repre¬ sentatives of the State of New York.” British ships of war were at this moment at Tarrytown, within six miles of White Plains.
Jay had been a member of the committee that reported to the old Convention, June 6th, a purely formal acknowledgment of the Virginia Resolu¬ tions of Independence ; a report which the Con¬ vention agreed to keep secret till after the elec¬ tions of delegates “ to establish a new form of government.” But his course in moving the Declaration of July 9th was not therefore incon¬ sistent, “most refined 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 spe¬ cifically. His action of June 6th and 11th was identical in spirit with that of Duane 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.2 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 opposition rested in Con-
^ Dawson, Westchester Co. in the Am. Rev., 186, 187, 196, 197.
^ Lamb, Hist, of N. Y., ii. 83.
REVOLUTIONARY LEADER.
61
gress. “ This most certainly,” he wrote to Lewis Morris, “ will not be the last campaign, and in my opinion Lord Howe’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 how little our coun¬ try is in the enemy’s possession, they will unite in declaring us invincible by the arms of Brit¬ ain.” 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 had 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 practice still prevailed ; and this sudden discrimination in the case of New York filled him and. the Convention with indignation, as an arbitrary exercise of power ; and in a sharp report, which the Convention
1 Sept., 17T6, Jay MSS.
62
JOHN JAY.
moderated, he condemned the excuse of “ the necessity of the case,” as a fruitful mother of tyranny.
New York city was now occupied 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 effectual 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, horses, and drivers . . . as well as to call out the militia, if occasion should require.” ^ The 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 thence to Fort Montgomery. ^
Jay was not a man of war; his duties as
^ Journals of Provincial Congress, i. 526.
- Report by Jay, Aug. 7 (?), Jay MSS.
REVOLUTIONARY LEADER.
63
colonel were apparently purely formal ; but from his connection with the secret committee and other military committees he was in constant communication with the generals at headquar¬ ters, with McDougall and Troup, and later with Washington, Clinton, and Schuyler. To Jay, McDougall 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 Ticon- 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 the cares of this life, or fall into their hands ; in either case I entreat you to rescue my memory from that load of 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 Gen. McDoug’all, Dec. 2, 1776, Jay MSS.
From Gen. Troup, July 22, 1777, Jay MSS.
® From Gen. Schuyler, July 27, 1777, Jay MSS.
calumny that everfol-
64
JOHN JAY.
ernor Livingston, among the most intelligent in that service.! opinions, then, on the military ' measures that should have been adopted are worth noting, though they were not followed, and are quoted by Mahon merely on account of their severity. He believed,^ and urged in vain,^ that the city of New York and the whole of the State below the mountains should be desolated, the Hudson shallowed at Fort Montgomery, the southern passes fortified, and the army stationed in the mountains on the east of the river with a large detachment 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 lake.”
In view of the dangers menacing the State, the consideration of a new form of government was postponed till August 1st, when, on motion of Gouverneur 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 his associates included men of eminent abil¬ ity : Gouverneur Morris, Robert R. Livingston,
^ Mag. Am, Uist.^ xi. 59.
2 Force, Am. Archives, 5th Ser., ii. 95L To G. Morris, Oct. 6, 1776.
^ To Gen. Schuyler, Dec 11, 1776, Jay MSS. ii. 17.
REVOLUTIONARY LEADER. 65
William Duer, Abraham and Robert Yates, General Scott, Colonel Broome, Mr. Hobart, Colonel De Witt, Samuel Townsend, William Smith, and Mr. Wisner. The committee was directed to report on August 16th. The Con¬ vention notified Jay and two of his associates on the Secret Military 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 imjjeratively unless they were “ abso¬ lutely necessary in the secret Committee.” But General Clinton refused to let them go. To¬ wards the end of the month the increasing dan¬ ger from excursions of the enemy forced the Convention to move from White Plains to Har¬ lem, where they sat in the church, and after¬ ward met successively at Kingsbridge, at Odell’s, in Pliili])se’s Manor, then at Fishkill, Poughkeep¬ sie, and Kingston.
Outside of the city of New York there was no overwhelming popular sentiment for inde¬ pendence in that State. A local aristocracy had been founded by the Dutch East India Com¬ pany, and had been fostered by the English governors. Many of the first families of the province were ardent royalists, connected by blood or long association with England ; on the large manorial estates the tenant farmers in-
66
JOHN JAY.
dined to be either indifferent to politics or ad¬ herents of their landlords ; while, with an Eng¬ lish army in the city and an English fleet on the river, there were thousands who naturally deemed neutrality to be the 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 upon New York; and to the patriotic Convention it appeared essential 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 June 16th, declared guilty of treason, with the pen¬ alty of death, all persons inhabiting or passing through the Stiite who should give aid or com¬ fort to the enemy ; ^ a resolution which, in spite of its harshness, was almost identical with that adopted about a week later by the Continental Con gress. Fortunately the law may be said to have been “ merely buncombe, meaning notli- ing ; ” 2 it may have been none the less a useful bit of policy. In the middle of June, when Forbes, the gunsmith, was charged with
^ Journals of Provincial Congress, i. 520.
^ Dawson, Westchester Co. in the Am. liev., p. 210.
REVOLUTIONARY LEADER.
67
conspiring against the life of Washington,^ the late convention had in great haste appointed Livingston, Jay, and Gouverneur Morris, as a secret committee to examine disaffected persons. When, 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 examined and banished for disaffection, is un¬ known.^ This was the last that is heard of what 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 Tryon 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
1 Force, Am. Archives, 4th Ser., fix. 1178.
^ Dawson, Westchester Co. in the Am. Rev., p. 171, note.
* Jones, Hist, of New York, ii. 205.
< To R. Morris, Oct. 6, 1776, Jay MSS.
68
JOHN JAY.
six, others. It was termed “a committee for inquiring into, detecting, and defeating conspir¬ acies . . . against the 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 the treasury, to enjoin secrecy upon 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 Duel* in the chair. Their minutes for 1776 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, corresponding 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
REVOLUTIONARY LEADER.
69
under parol “ to remain within three miles of the stone church,” or, in less serious cases, to residence at home under parol not to go six miles away. Peter Van Schaack, Jay’s friend and classmate, was sent with 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 American cause.” ^ One lot of prisoners 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 compelled 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 were
1 Minutes, Dec. 21, 1T7G.
^ To the General Court of New Hampshire, Oct. 31, 1776, Jay MSS. ,
^ Minutes, Jan. 4, 1777.
70
JOHN JAY.
unquestionably severe to people of position ; for all were so worded as to be indefinite in dura¬ tion, “ till further orders from this Committee, or the Convention, or future Legislature of this State.” Sometimes Jay and Morris were the only members present, but the committee did not on that account neglect its business. On February 27, 1777, it was dissolved by order of the Convention, and in its stead commissioners 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 “Royal Gazette,” he “had formed and enforced statutes that destroyed every species of private property and repose.” ^ But the times demanded prompt and stern measures ; under military rule, in days of civil war, which the Revolution was in New York, suspected traitors are generally shot with short shrift ; and if any man less cool- headed and humane than Jay had been in con¬ trol, it may be doubted whether imprisonment would have been substituted for death. “ Can we subsist, did any State ever subsist, without exterminating traitors ? ” wrote Major Hawley
^ January 23, 1779.
REVOLUTIONARY LEADER.
71
of the Massachusetts Provincial Congress to Elbriclge Gerry. “ It is amazingly wonderful that, having no capital punishment for our in¬ testine enemies, w^e have not been utterly ex¬ terminated before now. For God’s sake, let us not run such risks a day longer.” ^ In New York the times were even more critical than in Massachusetts.
Jay’s official 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¬ tain fixed principles, and faithfully obeyed their dictates without regarding the consequences of my conduct to my friends, my family, or my¬ self.” ^ The uprightness of his motives was in¬ deed admitted by those who suffered most from his official actions. Van Schaack, 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 sights 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 of Elbridge Gerry, i, 207.
^ To Peter Van Schaack, 1782, Life of Van Schaack, p- 301.
72
JOHN JAY.
own that was not the ground upon which I ex¬ pected to succeed. ... 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 independent 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 J ames Delancey, who had taken a royal commission and was at the time a prisoner of war in Hartford jail, Jay wrote recalling his early friendship : “ How 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 corps 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. J ay was desirous to allay animosities, and he readily
1 Life of Peter Van Schaack, p. 100.
2 Ibid., p. 302.
REVOLUTIONARY LEADER. 73
renewed his acquaintance 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 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. Beverly Kobinson, asked Jay to take care of his family while he consulted Colonel Philipse on his proper course of action. “ The information you gave me when I was before the Committee . . . that every person, without exception, must take 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 Kebecca Bayard, 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, Jay MSS.
^ From Dr. Beverly Robinson, March 4, 1777, Jay MSS.
74
JOHN JAY.
and a promise from Clinton, then governor, but were stopped on the wayd The answer was kind, but firm, that it was decided to pass no persons except on public business. Jay even thought fit to warn Gouverneur 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, 1776, 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 Provincial Convention to their constituents : “ What are the terms on which you are promised peace? Have you heard of any except absolute, unconditional obedience and servile submission? . . . And why should you be slaves now, having been freemen 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 Miss Rebecca Bayard, June 28, 1778, e/ay MSS.
To Gouv. Morris, Jan., 1778.
REVOLUTIONARY LEADER.
75
read between the lines, suggest an unsuspected extent of vacillation and disaffection throufrbout the State, especially in Westchester County; and a late writer, whose facts arenas often exact as his comments on them are perverse, has proved that the farmers no less than the gentry were infinitely perplexed and puzzled by the con¬ flicting claims of the King and the Stated In this short period immediately following the Dec¬ laration of Independence, J ay showed the prompt¬ ness and boldness and the indefatigable, unhesi¬ tating energy which the critical days demanded.
^ Dawson, Westchester Co. in the American Revolution, passim.
CHAPTER IV.
A CONSTRUCTIVE STATESMAN.
During the spring of 1777 Jay was engaged on the committee to frame a new form of gov¬ ernment. “ For this purpose,” said his son, “ he retired from the Convention to some place in the country. Upon reflecting on the char¬ acter and feelings of the Convention he thought it prudent to omit in the draft several provisions that appeared to him improvements, and after¬ wards to propose them separately as amend¬ ments. ... It is probable that the Convention was ultra-democratic, for I have heard him ob¬ serve that another turn of the winch would have cracked the cord.^' ^
The Constitution thus formed was singularly expressive of the conservative instincts of the men of the American Revolution, 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
^ Judge William Jay, Jay MSS.
A coysrjiucr/vi: srATESj/AN. 77
and improve, the work of framing a funda¬ mental law for the State may fairly be said to have been undertaken in an almost unexplored field.” ^ But such a statement needs much qual¬ ification before it ceases to be misleading, John Adams had an explanation of the origin of the New York Constitution that is equally inade¬ 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 model and foundation.” But the letter to AVythe contained only the most meagre sketch of a plan of government, amounting to little more than the suggestion that legislative, exe¬ cutive, and judicial powers should be balanced ; that there should be a representative assembly, a council chosen by the assembly, and a gov¬ ernor appointed by the assembly and council ; the governor to appoint all officers by and with the consent of the council ; and judges to hold office during good behavior.^ 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
^ J. II. Dougherty, “Constitutions of the State of N. Y.,” Political Science Quarterly, Sept., 1888, p. 490.
^ Sept 17, 1823, John Adams's Works, x. 410.
« Ibid., iv. 193.
* To John Penn, Ibid., iv. 203.
78
JOHN JAY.
York was a special adaptation of the provincial jrovernment, with as few modifications as the circumstances required, and those chiefly sug¬ gested by the history of the province^ In the same sense, the Federal 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 giiests at a feast, are perplexed and undetermined which dish to prefer.” This confusion of mind was, perhaps, reflected by the choice of “ State ” as the title of the new government, a colorless word, though used to designate the government of England under Cromwell.^
“All power whatever in the State hath re¬ verted to the people thereof,” is the recitation in the preamble : and the first section ordained that no authority should be exercised over the people of the state but such as should be 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 only of a single house, the council exer-
^ R. L. Fowler, “Constitution of the Supreme Court of N. Y.,” Albany Law Journal^ Dec. 18, 1880, p. 486.
2 Maine, Popular Government, p. 207.
® Fowler, Albany Law Journal, July 21, 1879, p. 490 ; Dec. 18, 1880, p. 480 n.
A CONSTRUCTIVE STATESMAN.
79
cisecl powers of a legislative character, and this council, rather than the English House of Lords, may have been the model of the State Senate,^ As has been well said : “ The bicameral legisla¬ ture, the power of the legislative houses to be the sole judges of their own memberships, the method of choosing the presiding officer of the more popular branch, the parliamentary common law, the veto on legislation, the bill of rights, the judicature, the jurisprudence, and the fran¬ chises, 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 Revolution was not a war against these things ; it was a war for these things — the common property of the Anglican race.” ^ Property qualifications were accordingly required as before ; electors of the governor and senators must enjoy a freehold worth XI 00 ($250) a year; electors of assemblymen must have a freehold worth X20 ($50), or a tenancy worth 40s ($5) a year, and must pay taxes. 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-
^ Albany Law Journal^ Dec. 18, 1880, p. 487.
2 Ibid., p. 488.
* Jay’s Jay, i. 70.
%
80
JOHN JAY.
cation in the Constitution as “ aristocratic,” as modern speakers are prone to do, it is well to remember that in 1769 the Province of New York had nearly 39,000 freeholders and bur¬ gesses 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 the franchise by the unqualified masses, and that before the French Revolution an absolute democracy was but the dream of a theorist.
As to the powers to be given to the governor, experience with the royal governors naturally suggested a policy of jealous restriction ; al¬ though the success of the prerogative party in the past had 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 Revolution, and also by reason of the protracted sessions, at first septennial, and finally indefinite in duration, had naturally soon ceased to be really repre¬ sentative. The governor, who was appointed for three years, a term to which, after a change to a two years’ term. New York returned in 1874, was held in check by two specially devised coun¬ cils, the Council of Appointment and the Coun¬ cil of Revision. The former consisted of the
A CONSTBUCTJVE STATESMAN. 81
governor and one senator, chosen annually from each of the five great districts into which the State was divided for the election of senators, and had the appointment of practically all the officers in the State, except those of the towns. The Council of Kevision, composed of the gov¬ ernor, the chancellor, 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-head, without responsibility for either appointments or vetoes ; in the Coun¬ cil of Appointment partisanship 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 Revision, which had its analogue in the veto on provincial Acts possessed by the king in Privy Council, no such objections could be raised, and its abolition, after 128 out of 6,590
82
JOHN JA Y.
bills had been vetoed, was due chiefly to the growing jealousy on the part of the democracy of any supreme 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. The 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 according 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,” ])erpetuates also the memory of the controversy with Lieutenant Governor Colden, over the re-
1 Albany Law Journal, May 17, 1879, p. 492.
A CONSTRUCTIVE STATESMAN.
83
tention in office of the senile Justice Horsman- 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 Council 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¬ mittee.
After the dispiriting battles of Rhode Island, and Washington’s masterly retreat, came the mortifying affair at Kip’s Bay, the hasty re-
^ Albany Law Journal, Dec. 18, 1880, p. 489.
84
JOHN JAY.
treat of Putnam’s forces from New York ; then followed the battle of Harlem Plains, reviving the spirit of the American troops, and that of White Plains, and Washington’s retreat to the 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 large proportion. A section providing 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 Proceedings and Debates of Const. Conv. of 1S21, p. 692.
^ Journals of Prov. Cong., etc. i. 842.
A CONSTRUCTIVE STATESMAN. 85
as practicable after the war all elections should be by ballot, though the legislature might at any time after a fair trial renew the practice of viva voce voting.^ It was under this clause that the first law was framed in New York, authoriz¬ ing a secret ballot in 1778, and so successful did it prove that nine years later it was extended to all elections of state officers. Such a measure was certainly never proposed in the interest of aristocracy !
The most prolonged debate of the session was upon the question of religious toleration, over the important clause that “ the free toleration of religious profession and worship without dimi¬ nution or preference shall forever hereafter be allowed within the State to all mankind.” This charter of freedom of conscience was one of the priceless heirlooms bequeathed to New York by New Netherland, which, almost alone among the colonies, had never listened to the denunciations of fanaticism, had 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 Pochelle, of Bayards and Philipses seeking refuge in Holland and Bohe¬ mia from the long arm of the Papacy. The power of the Church of Pome he knew and feared ; he urged, accordingly, amendment after ^ Journals of Prov. Cong.,i. 8G6.
86
JOHN JAY.
amendment, to except Roman Catliolics till they should abjure the authority of the Pope to absolve citizens from their allegiance and to grant spiritual absolution. The result of his objections was the adoption of a proviso, “ that the 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 naturaliza¬ tion all persons shall “ 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’s motive in this contro¬ versy. With him it was not a religious but a political question. It was not Romanism as a religion that he feared, but Romanism as an imperium in imperio. That he was not a bigot was shown clearly when in July, 1775, the Pro¬ vincial Congress forwarded to their delegates in the Continental Congress a “ plan of reconcilia¬ tion,” protesting, among other things, ‘‘ against the indulgence and establishment of popery [by
1 Journals of Prov. Cong., i. 860.
2 Ibid., i. 840.
A CONSrjiD-CTIVB STATBSAfAJV.
87
the Quebec Act], all along their interior con¬ fines.” To the answer of the delegates to the l^rovincial Congress Jay added this significant clause : that they thought best to make no refer¬ ence to the religious article, preferring to bury “ all disputes on ecclesiastical points, which have for ages had no other tendency than that of banishing peace and charity from the world.” ^ The Council of Appointment was constituted on Jay’s motion ; but though the credit or mis¬ fortune of its creation is attributed to him, the measure was really a compromise, the extremists on one side proposing that the governor should have sole power of appointment, — a sound prin¬ ciple, but obnoxious to the democratic Conven¬ tion, — while those on the other side insisted upon confirmation by the Legislature.^
That acts of attainder (which were limited to offenses committed before the termination of the war) should 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 the final vote, he moved a further clause that was adopted, the significance of which has been explained,^
^ Theo. Roosevelt, L?ye of Gouverneur Morris, pp. 42, 43.
2 Journals of Prov. Cong., i. 377 ; To R. R. Livingston and Gouvemeur Morris, April 29, 1777, Jay MSS.
* Supra, p. 82.
88
JOHN JAY.
prohibiting the institution of any court “but such as shall proceed according to the course of the common law.” ^
On April 17, 1777, his mother died, and Jay hastened to Fishkill 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 purpose 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, includ¬ 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 chancellor, 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
^ Journals of Prov. Cong., i. 882.
A CONSTRUCTIVE STATESMAN.
89
Jay in committee, granting full pardon to any delinquent or traitor on his producing before the Council of Safety or the governor a certi¬ ficate of subscription to the oath of allegiance. On further motion of Jay, the resignation by General Clinton of his command 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 that memora¬ ble Convention, whose deliberations, said Chan¬ cellor Kent, “ were conducted under the excite¬ ment of great public anxiety and constant alarm ; 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-framers 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
^ Journals of Prov. Cong., i. 931.
^ Kent, Discourse before the N. Y. Hist. Soc., Dec. G, 1828, p. 5.
90
JOUN JAY.
years, and then, “ with some minor modifica¬ tions, the extension of suffrage and the con¬ centration of more power in the governor, . . . continued substantially unchanged until 1846.” Subsequent changes have been in the direction of limiting the power of the legislature, and providing for the new problems presented 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 domestic slavery ; and a clause “ for the support and encouragement of litera¬ ture.” ^ ‘‘I wish,” he wrote to Morris, April
14, 1778, “you would write and publish a few civil things on our Constitution, censuring, how¬ ever, an omission in not restraining the Council of Appointnient 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, Pol. Science Quart., Sept., 1888, p. 494 et passim.
2 Jay’s Jay, i. 09. ^ j(^y
^ John Adams’’ s Works, x. 410.
A CONSTRUCTIVE STATESMAN.
91
have credit. But unless the government be com¬ mitted to proper hands it will be weak and un¬ stable at home and contemptible abroad.” ^ It was at that time “ generally regarded as the most excellent of all the American constitu¬ tions,” 2 of which it was the fifth to be adopted ; and by a writer whose knowledge of the early constitutional history of the country gives weight to any statement of his, however unsusceptible of proof, it is asserted to have been essentially the 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 suspected 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 ; reported from a committee rules for the reorganization of 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
^ June 5, 1777, Jay MSS.
^ John Alex. Jameson, Constitutional Convention, 4th ed., § 152.
^ John Austin Stevens, Mag. Ain. Hist., July, 1878, p. 387.
92
JOHN JAY.
General Schuyler at headquarters the measures requisite for its suppression.^
Jay was asked more than once to become a candidate for governor ; but he steadily refused, for the reasons which he stated as early as May 16th : “ That the office of the first magistrate of
I
this State will be more respectable as well as more lucrative, and consequently more desirable than the place I now fill, is very apparent. But . . . my object in the course of the present great con¬ test neither has been, nor will be, either rank or money. I am persuaded that I can be more useful to the State in the office 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 J ay’s ; but on July 9th the people elected tile burly, magnetic less aristocratic Clinton. “ I hope,” 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 hope he will ex¬ perience from every patriot what I am resolved he shall from me, support, countenance, and com-
1 Journals of the Prov’ Cong., i. 948-1019.
A CONSTRUCTIVE STATESMAN. 93
fort.” ^ All New York at this time, outside the British pale, was Whig ; but, as this letter shows, there was already a divergence between the more democratic and the less democratic Whigs, though all were equally patriotic and republican. The Council at once resolved that they wereinot “ justified in holding and exercising any powers vested in them longer than is necessary,” and requested General Clinton to appear and take the oath of office. But the governor elect was holding Fort Montgomery and expecting a sud¬ den attack. “ The enemy have opened 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 Ticonde- 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 can 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 the
1 July 14, 1777, Jay MSS.
2 June 30, 1777, Jay MSS.
94
JOHN JAY.
enemy.” ^ For the moment, as Burgoyne con¬ tinued his southward march, 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.” ^ Quite as easily, but less cynically, Mrs. Jay had described just such an alarm in March, at Peekskill : “ This very moment the doctor came into the room, his looks bespeaking the utmo&t discomposure. ‘Bad news, Mrs. Jay.’ ‘Aye, doctor; what now?’ ‘The regulars, madam, are landed at Peekskill ; 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 hope 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 subsequent history, that J ay “ casually hinted at holding the first session of the Legislature at Albany,”
1 Jay MSS.
2 To John Jay, March 23, 1777, Jay MSS.
3 Ibid.
A CONSTRUCTIVE STATESMAN. 95
but found “ a general disinclination to it.” “ Some object,” he wrote to Schuyler, “ to the expense of living there, as most intolerable, and others 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 31st, the day before that set for the meeting of the Legislature, General Clinton, in the pres¬ ence of the Council of Safety, took the oath of office, “clothed in the uniform of the service, and sword in hand, standing on the top of a bar¬ rel in front of the Court-house in Kingston.” ^
A hurried expedition was made by Jay with Gouverneur Morris, by order of the Council, to the headquarters of Washington, to consult about 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 that this was not the first official function of the judicature, since the adoption of the constitution. “ A court is di¬ rected to be held in Dutchess,” he wrote to Mrs. J ay, J une 6th, “ and I expect the like order will be given for the other counties, so that should
^ June 20, 1777, Jay MSS.
2 John A. Stevens, Mag. Am. Hist., July, 1878, p. 387.
96
JOHN JAY.
you not Lear from me so frequently ascribe it to my absence from here.” ^ The Supreme 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 Sep¬ 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 ‘ Dom- inus Rex.’ In all other respects the minutes disclose no immediate change in the procedure, practice, or administration of the Court.” ^ At Kingston, September 9th, Jay, as chief justice pro tempore} delivered an address to the grand jury of Ulster County, which for many years afterward w^as regarded as one of the classics of the Revolution. “It affords me, gentlemen,” was the impressive opening, “ very sensible pleas¬ ure to congratulate you on the dawn of that
1 Jay MSS.
^ Fowler, “ Const, of the Supreme Court,” Alb. Law Jour¬ nal.
^ Ilis formal commission as chief justice under the Consti¬ tution was not made out till a few days later.
A CONSTRUCTIVE STATESMAN.
97
free, mild, and equal government which now be¬ gins to break and rise from amid those clouds of anarchy, 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 only 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, Bichmond, and Long Island, the richest and most populous in the State, were in almost undisturbed possession of England. The extreme northeastern counties, Gloucester and Cumberland, also, were in half-declared revolt. AVithin the British lines Judge Ludlow still ex¬ ercised the jurisdiction of the Supreme 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 Revolution the court never sat in banc. As, moreover, no reports are published of the deci¬ sions for the first twenty-two years of its exist¬ ence, scarcely anything can be safely said of J ay as chief justice of New York.
98
JOHN JAY.
“ I am now engaged,” he wrote to Morris, April 29, 1778, “ in the most disagreeable part of my duty, trying criminals. They multiply exceed¬ ingly. Robberies become frequent ; the woods af¬ ford them shelter, and the Tories food. Punish¬ ment must of course become certain, and mercy dormant, — a harsh system, repugnant 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 disappeared. 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¬ spondence, and was constantly applied to, but in vain, to exert his influence with him in behalf of Tories or their friends who wished passports to New York. In the autumn Jay retired to the farm at Fishkill for a little much needed rest. “ I have not been without the bounds of the farm since my return to it,” he wrote his wife in August, “and to tell you the truth, were you and our little boy here, I should not even wish
1 Jay’s Jay, ii. 23.
^ To Mrs. Jay, April 0, 1778, Jay MSS.
A CONSTRUCTIVE STATESMAN.
09
to leave it this year, provided it would be all that time exempted from the visitation of both armies. This respite from care and business is extremely grateful. . . . Its duration, however, will probably be short, as the number of per¬ sons charged with capital offenses now in con¬ finement requires that courts for their trial be speedily 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 still at Fishkill Mr. Jay received General Washington, whom his father had entertained three years before at Rye, and with whom in the service of the State he had himself conferred frequently on military 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. Here, too, the 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 sins in politics as charity is said to do in religion.” “ These impresses,” was the conclusion, “ 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.”
^ August 8, 1778, Jay MSS.
100
JOHN JAY.
As chief justice, Jay was ex officio a member of the Council of Revision, which sat from time to time at Poughkeepsie, and which 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 under 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 exportation 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 temporary expedients to supply the
^ Feb. 3, 1778, Alfred B. Street, The Council of Revision^
p. 201.
A CONSTRUCTIVE STATESMAN. 101
want of a more regular government, and to cease when that prescribed by the Constitution should take place.” ^ March 25th, the Council vetoed a sweeping bill to disfranchise and dis¬ qualify for office any one who since July 9, 1776, had before any committee of safety, or conspiracy, acknowledged the sovereignty of Great 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 hath expressly or¬ dained that every elector, before he is admitted to vote, shall, if required . . . take an oath . . . of allegiance to the 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 disqualifications . . . savor too much of resent¬ ment and revenge to be consistent with the dig-
1 Feb. 20, 1778, Street, The Council of Revision, pp. 203, 204. The bill passed finally with slight ameudnients.
102
JOHN JAY.
iiity or good of a free people. Because the said disqualifications (supposing them 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 be taxed <£50 on every £1,000 gained in their occupations since September 12, 1776. 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, without any open charge or accu¬ sation of offense, and without trial, indiscrimi¬ nately to subject numerous bodies of free citi¬ zens, 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 who, “ taking advantage of the necessities of their country,
^ Street, The Council of Bevision, pp. 210, 211.
2 Ibid., pp. 212, 213.
A CONSTRUCTIVE STATESMAN. 103
have, in prosecuting their private gain, amassed large sums of money to the great prejudice of the public.” Jay’s objections were based on broad constitutional grounds : “ An equal right to life, liberty, and property is a fundamental })rinciple in all free societies and states, and is intended to be secured to the people of this State by the Constitution thereof ; and therefore 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 respective 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 the Constitution, . . . except 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 thouglit proper 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 have acquired riches in a manner prohibited by the law of the land, they ought to be tried and punished in the way
104
JOHN JAY.
directed by these laws, and not subjected to double punishment.” ^
These words, so full of reasonableness, love of legality, and hatred of injustice may well close our account of the period that is here roughly 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, The Council of Revision, pp. 214, 215.
CHAPTER V.
PRESIDENT OF CONGRESS.
1779.
For many 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 hardy and independent, and as early as 1772 and 1773 there were riots in Gloucester and Cumberland counties against claimants of land under title from New York. Agents were sent to England with petitions to the Crown, and the case 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 Ethan 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 and independ¬ ent State, and a convention of delegates met
106
JOHN JAY.
at Windsor, July 2d, to frame a constitution. 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. 1 “ Strange,” replied Morris, “ strange that men in the very act of revolting, should so little consider the temper of revolt- ers.” ^ The process of New York courts ceased to run in the northeastern counties. Troops were dispatched to quell the outbreak, but met with no 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 rights of any one of them.
Burgoyne’s expedition 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 Bur- goyne,” wrote H. B. Livingston to Jay, June
^ Sparks, Morris, i. 210.
2 Ibid., i. 212.
PRESIDENT OF CONGRESS.
107
17th, “ has sent a summons to the people of the Grants to meet Governor Skene at Castletown, to be there acquainted with the terms on which they shall hold their 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 are committed to gaol.” ^ What was originally merely an agra¬ rian rising against claimants under legal titles 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 special case,” in the sense of the Constitution, that would justify the appointment of Jay to Congress without vacating his seat 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 thus returned to the scene of his early labors.
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 that of the contracts for war material with the versatile.
^ Jay MSS.
108
JOHN JAY.
well-disposed, but devious Beaumarchais. Ar¬ thur Lee, Deane’s fellow-commissioner, misled by the secrecy adopted by the French govern¬ ment to avoid complications with England, al¬ leged 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 Deane, 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 public 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, who, 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¬ thing will arrive from America.” The truth
^ G. Morris to Jay, Aug. 16, 1778, Jay MSS.
2 Sept. 8, 1778, Jay MSS.
PRESIDENT OF CONGRESS. 109
of his account of his dealings with Beaumar¬ chais is now fully proved. It was then incon¬ sistently charged that the articles sent were of poor quality, and that they were gifts of France not intended to he paid for. But Deane had written at the beginning, “ Mons. 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 examine them here. I was promised they should be good, and at the lowest prices.” ^ Only a year before Captain Nicholas Rogers, in transmitting to Jay some of Deane’s letters, in¬ cidentally gave testimony to Deane’s worthiness at that time. “ You will use a certain liquid (that Mr. Deane told me you had) upon the margin of tlie printed sheets so as to make leg¬ ible what Mr. Deane has wrote ; should it not have its proper effect, which I am afraid of, as the letters w^ere put into a tin box in a barrel of rum which was eat through, and I am afraid has damaged them, the enclosed letter is of the same contents. ... I liv’d at Paris in the same house with Mr. Deane and had the Pleasure of being particularly intimate with him. ... I should be happy to inform you and answer you any questions concerning the most of Mr. Deane’s transactions the last summer, which he perform’d
^ To Jay, Dec. 3, 1776.
110 JOHN JAY.
with the warmth of the most zealous of Patri¬ ots.” ^ That Deane subsequently, embittered, perhaps, by persecution, became, in Jay’s opin¬ ion, a traitor to his country, ought not to be allowed to affect one’s judgment of his antece¬ dent conduct. Certainly, with the knowledge that he possessed at the time, J ay 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 Lee, Deane at last responded by a bitter article in a newspaper commenting on the character of Lee and the delay of Congress. In Congress and out of it the article created intense excitement. “ Mr. President Laurens brought the newspaper with him to the House, and from the Chair proposed that it should be read, in order that it might become the subject of certain resolutions. The House not thinking it proper 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 June 4, 1777, Jay MSS.
^ Jay MSS.
PRESIDENT OF CONGRESS. Ill
scene given by Jay, who was chosen the new president.
Among the many congratulations Jay received, that from his wdfe,* 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 that, had you consulted me as some men have their wives about public measures, I should not have been Homan matron enough to have given you so entirely to the public.” ^ “ Sally ! ” was the old- fashioned reply, with sedate words still pulsating with love and longing for home ; “ Sally ! the cliarms of this gay city would please me more if you partook of them. I am afraid to think of domestic happiness ; it is a subject which pre¬ sents to my imagination so many shades of de¬ parted joys, as to excite emotions very improper to be indulged in by a person in my station, determined at every hazard to persevere in the
1 Dec. 28, 1778, Jay MSS.
112
JOHN JAY.
pursuit of that great object to which we have sacrificed so much.” ^
The history 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 money,” wrote K. 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 explaining the ac¬ tion of Congress in limiting the issue of paper money, and calling on the States for funds to meet current expenses. If the letter hardly showed a thorough knowledge of the principles of finance, it must be remembered that few statesmen of that day had such knowledge, and it at least answered the purposes of the moment. It stated simply the causes of depreciation,
1 Jan. 31, 1779, Jay MSS.
2 Oct. 8, 1778, Jay MSS.
PRESIDENT OF CONGRESS.
113
which was held, in this case, to be artificial, or due to lack 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 their engagements, and prov¬ ing their ability to do so by reference to the enormous undeveloped wealth of the country and the indefinite increase of population to be expected from immigration. It is 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 afford to be logical, and an appeal to an opti¬ mistic patriotism w^as 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 the present were temporary, and that dawn was soon to break. “ Calm repose and the sweets of undis¬ turbed retirement,” he wrote to Washington, “ appear 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
JOHN JAY.
in doing good to this and future generations is not to be avoided or regretted. Things will come right., and these States will he great and flourishing. The dissolution of our government 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 mason.” ^
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 jDrogress 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 empower Congress to ad¬ just their private controversy with the people of
1 April 21, 1770, Jay MSS.
2 April 26, 1770, Jay MSS.
PRESIDENT OF CONGRESS.
115
Vermont.^ This done, Jay moved and carried resolutions submitting the disputed boundaries to arbitration by commissioners representing New York, New Hampshire, and Vermont. This explicit recognition of the new claimant to statehood was a surrender of the technical claims of New York, which he justified with characteristic common sense in a letter to Gov¬ ernor Clinton : “ In my 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 open till after the ratification of the Constitution, when it was settled for¬ ever, somewhat ignominiously, by the transfer of $^30,000 from the treasury of Vermont to the treasury of New York.
Jay was continued in Congress by special vote of the New York Legislature till October
^ To Governor Clinton, Aug. 27, 1779.
* Jay’s Jay, i. 92.
116
JOHN JAY.
15th ; but he was already contemplating retire¬ ment from public life, so neglected had been his private affairs, so necessitous had become the condition of his family. On August 10th he gave in his resignation of the chief justice¬ ship of New York and insisted on its accept¬ ance, simply remarking : “ I shall return to pri¬ vate life, with a determination not to shrink from the duties of a citizen. During the 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 suffered 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 Aug. 27, 1779, Jay MSS.
PRESIDENT OF CONGRESS. 117
find his “ person too tempting an acquisition to be neglected.” ^ The old merchant was indeed much broken and in no little distress : “ I am,” he lamented, “ unfortunately too much reduced to attend effectually to business. . . . 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 clergyman, who died soon afterwards, leaving her in extreme povert}^ ; and she and her son, Peter Jay iVIunro, 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 sufficient 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 brothers, Frederick and Sir James, the care of the family.
Politicians have occasionally been known, per-
1 Jay MSS.
2 Sept. 1, 1770, Jay MSS.
8 Aug. 27, 1770, Jay MSS.
* From Mrs. Munro, Oct. 18, 1779.
118
JOHN JAY.
haps, to avow a preference for a quiet home life in the country, with an over-keen desire to be taken at their word. But the sentiment was often on Jay’s reticent but truthful lips at every period of his life ; and he proved his sin¬ cerity by his thirty years of voluntary retire¬ ment. 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 Persipiney, 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 happens, I am perfectly alone, and pleasing myself with the prospect of spending the remainder of 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 confidences ! But no, the letter is only to say that 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, that
1 To Mrs. Jay, March 5, 1779.
PRESIDENT OF CONGRESS. 119
I often court and enjoy it. Hence it is that, altho’ few are more fond of society, I oftener walk and ride without than with company. There is a kind of satisfaction in being able, without any breach of politeness, to pursue one’s 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 ‘lonely de¬ vious walks ’ thro’ ‘ verdant fields ’ or ‘ shady groves ; ’ nor would it be in seascm to say a word of ‘ gentle breezes,’ ‘ melodious birds,’ or ‘ the hum of bees inviting sleep sincere.’ ” ^
It was, however, more than 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 unexpected disappointments ; and on Octo¬ ber 1st 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.
1 To Mrs. Jay, March 17, 1779.
CHAPTER VI.
MINISTER TO SPAIN.
1779-1782.
The treaties with France, concluded February 6, 1778, recognized American independence, and provided that in case England should declare war against France, the two powers sliould make common cause, and that neither of them should conclude a truce or peace until the independence 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, regarded 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
MINISTER TO SPAIN.
121
far as European allies were concerned. The aid of Spain was essential, and to gain this Ver- gennes, through his minister, Montmorin, at Madrid, bent all his powers of artifice and per¬ suasion.
Charles III. of Spain hated the idea of an¬ other war, and wished only to end his days in peace.^ He was a conscientious man and de¬ 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 this new struggle, might again conclude a separate peace, regardless of the interests of Spain.^ His minister, Florida Blanca, 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 be 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.
^ Verg-ennes to Montmorin, Oct. 24, 1778, Doniol, iii. 24.
2 Montmorin to Vergennes, Doniol, iii. 495, 497.
122
JOHN JAY.
This negotiation revealed the actual wishes of the two courts. France submitted, as her low¬ est terms, the political and territorial indepen¬ dence of the United States, the withdrawal of the English commissionership 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 Mississippi, 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
^ Vergennes to Montmorin, Oct. 13, 1778, Doniol, iii. 551.
^ Montmorin to Vergennes, Oct. 15, 1778, Doniol, iii. 550, 557.
* Montmorin to Vergennes, Oct. 19, 1778, Doniol, iii. 558, 559.
^ Doniol, iii. 575.
MINISTER TO SPAIN.
123
light of these intentions, 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 Sj^ain, submit to any terms of alli¬ ance, even the sacrifice of the sovereignty of the United States. France had now to modify her views, or to risk losing Spanish cooperation al¬ together.^ The 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 without the participation of France; 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 Eng-
1 Doniol, iii. 57(5.
2 Vergenues to the King-, Doniol, iii. 588.
124
JOHN JAY.
lisli comniissionership at Dunkirk, or whatever other benefit she might choose instead.^
While the attitude of Spain remained still undetermined, the state of public opinion in America was of course to France a matter of the first importance. 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 successful 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 the Committee on Foreign Affairs, when Gerard urged the necessity of moderating their claims to meet the views of Spain. Soon after Jay’s installation Gerard 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 Gerard’s argument that policy required “ a permanent line of separa¬ 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-
^ De Circourt, p. 335.
MINISTER TO SPAIN.
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 Gerard urged the danger to the colonies 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 Gerard 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 the policy of France and Spain, since the United States could not be held to succeed to the claims or rights of Great Britain, which 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 Gerard 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 this age.” ^ Of eJay, accordingly, Gerard had the highest opinion : “ he is a man of enlight-
^ I)e Circourt, pp. 200, 261, Gdrard to Verg-ennes, Dec. 22,
n7K.
^ I)e Circourt, p. 2(i6, Gerard to Vergennes, Jan. 28, 1779.
* De Circourt, p. 2t>4. .
* Jay’s Jay, i. 95, 100.
126
JOHN JAY.
ened understanding,” lie wrote to Yergennes, “ free from prejudice, capable of broad views ; he is sincerely attached to the alliance and an enemy of the English. He takes infinite pleas¬ ure in the idea that this triumvirate, as he calls it, of France, Spain, and America, will defy the forces of the whole world. He 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 have 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 Gerard’s enthusiasm. It was, however, not a wholly one-sided bargain at this stage in the war to secure a triple alliance be¬ tween France, Spain, and the United States, with a recognition of independence, in exchange for the western wilderness and waters. But when Jay found that Spain had declared war for her own purposes without 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¬ sippi.
Gerard had long urged Congress to come to some understanding with Spain ; suggesting that on these lines they might obtain from that
^ De Cireourt, p. 263, Gerard to Vergennes, Dec. 22, 1778.
MINISTER TO SPAIN.
127
country an acknowledgment of their indepen¬ dence and a treaty of commerce. At lengtli, in September, 1779, Congress voted on the ap¬ pointment of a minister 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-English party, so called among them, declared for Arthur Lee, the enemy of Deane and Gerard ; finally, Adams was ap¬ pointed peace commissioner to Great Britain, and Jay minister to Spain. The choice of Jay, Gerard informed Vergennes, “ leaves nothing to be desired. To great intelligence and the best intentions, he unites an engaging and concilia¬ tory mind and character.” ^ Jay was well aware of the satisfaction of Gerard, and also of the Spanish envoy, Mirales. ‘‘ I have reason to think,” was his dry comment, “ that both of them entertained higher opinions of my docility than were well-founded.” ^
It was not an attractive position, — that of an
^ Gerard to Verg'ennes, Sept. 27, 177d, Stevens MSS.
^ Jay’s Jay, i. 100.
128
JOHN JAY.
unrecognized envoy of a country little known and less liked, begging money at a haughty and penurious court. 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 Spain help in reducing Pensacola, — 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, though with mod¬ est expectations. On October 16th, he received his instructions, — to induce Spain to form a commercial treaty similar to that with France, 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 Mississippi was to be preserved at all hazards. Four days later Jay set sail in the Confederacy., the govern¬ ment frigate that had been ordered to take Ge¬ rard back to France, on the arrival of his suc¬ cessor, Luzerne. With Jay went his wife, to the distraction of old Governor Livingston and his wife, who had no time to bid their daughter
^ Bolles, Financial Hist, of the U. S., p. 246 n.
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good-by ; his nephew, Peter Jay Munro ; his brother-in-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 bad created a coolness between the two diplomats, which was increased by a differ¬ 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 officers,” 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-
130 JOHN JAY.
ity which I wish to see influence all our ofii- . cers.” ^
Ten days were lost at Martinique ; 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¬ mendation 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¬ tertained 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 perfectly accurate. When the spring came they moved to Madrid, to be near the first Secretary of State, Count Florida Blanca ; a man of whom Montmorin said : “ At times cold and phlegmatic, at times violent, he is in these
^ Jay’s Jay, i. 105.
2 Sparks, Diplomatic Corresp. of Amer. Bev., vii. 220.
MINISTER TO SPAIN.
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opposite moods equally self - opinionative. . . . By the bent of his mind, too, he is inclined to dissimulation.” ^
At Madrid, Jay received no official recogni¬ 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 important interview with the minister at Aran- juez : 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, Montmorin, to inform him of the course of the negotiations ; but this conversation was confiden¬ tial. “ I was reduced,” Ja}^ 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 to Vergennes, Dec. 7, 1778, Doniol, iii. 610 n.
^ Sparks, Dipl. Corr. of Amer. Rev., vii. 256.
132
JOHN JAY.
He told the Count, it need not be said, and was allowed to keep his promised Such frankness must have seemed naive, perhaps amusing, to the clever young diplomat, who, at that very mo¬ ment, held locked in his own breast the all im¬ portant secret of the treaty of Aranjuez.
The question of the navigation of the Missis¬ sippi was a novelty in international diplomacy. The United States was the first power 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 Mexico 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 Mississippi was the principal object of the war, and more important than the 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 peace) found it to be on tlie question of the cession of Gibraltar. The credit of the United States was, moreover, seri-
^ Sparks, Dipl. Corr. of Amer. Rev., vii. 250.
® Schuyler, American Diplomacy, pp. 205, 2(30.
* Sparks, Dipl. Corr. of Amer. Rev., vii. 450.
MINISTER TO SPAIN.
133
ously hurt by Congress suddenly drawing bills on Jay and their other ministers abroad, to be met by loans to be begged from the various courts. Any chance of compromise was at once lost with the suspicious, selfish court of Spain.
The first bills to appear were drawn on Lau¬ rens, who was supposed at home to be at The Hague, but who, in fact, had been caught by an English cruiser, and w^as lying in the Tower. Then bills were presented to Jay for acceptance, drawn on himself ; and not until months had elapsed did the explanation come from the Com¬ mittee for Foreign Affairs, that, even before news came of his arrival, bills for $100,000 had been so drawn at six monjlis’ sight, and negotiated to raise money for the purchase of military stores ; and that so soon as his arrival was reported, still further bills for $25,000 more were also drawn. “ I would throw stones with all my heart,” wrote Jay, “ if I thought they would reach the com¬ mittee without injuring the members of it.” ^ But he tried to get this draft “ on the bank of hope,” as he called it, cashed by Florida Blanca, suggesting that the action of Congress showed their reliance on the friendship of Spain. All these bills, which for the next year and a half made Franklin and Jay sleepless and sick with mortification and anxiety, were accepted by them
* Sparks, Dipl. Corr. of Amer. Dev.^ vii. 304, 305.
134
JOHN JAY.
personally, and were paid in the end by France, with only trivial help from Spain. Florida Blanca insisted on some equivalent from the United States ; he suggested frigates to be built in America, and manned to attack East Indian convoys ; but, as J ay said. Congress had only the money it got from these bills to buy the frigates with. He argued rather shrewdly that the colonies ought to be assisted because they were in arms against the enemies of Spain and France for the sole purpose of winning an hon¬ orable peace for all three nations. But money was difficult to procure, even in Holland, the richest country in Europe ; for the long wars had exhausted every treasury, and “ if America was a beggar, England was a far greater.” ^ As Jay expressed it, “ the fact is, there is little corn in Egypt.” ^ The net result of his long efforts was the loan of 8150,000 ; and at length he was forced by promises, that were not kept, to suffer one batch of bills, not amounting to over 825,000, to be protested ; but in a month they were re¬ deemed, and American credit was restored by the successful importunity of Franklin and the wise generosity of France.
^ Bolles, Financial History of the U. S., 2d ed., pp. 256, 257.
2 Jay to Franklin, Sept. 8, 1780, E. E. Hale, Franklin in France^ i. 412.
MINISTER TO SPAIN.
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When affairs were once more in good train, everything was ruined by the news of the loss of Charleston, the effect of which on the timid court was, in Jay’s words, “ as 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 bad come from friends in America, the letters being inter¬ cepted or suppressed ; and his own despatches eTay 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, born in Spain, lived scarcely a month. Jay had to fol¬ low the wandering court from town to town, to Madrid, to Aranjuez, 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 March, 1780, the paper dollar had fallen to a penny in value,^ a depreciation by which the Jay family suffered severely : and his brother Frederick tells how a party of “ De Delancey Boys ” broke into his father’s house, stole money and plate, and slightly wounded Mrs. Frederick Jay with a bayonet.^ Though greatly straitened, Jay
^ From Chas. Thompson, Oct. 12, 1780, Jay MSS.
2 From Fred. Jay, Nov. 8, 1781, Jay MSS.
136
JOHN JAY.
sent home gifts of the most useful things he could think of, and found time to discuss and j)rovide for the 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, “less dis¬ posed to humility or improper compliances than when fortune frowns.” The Marquis d’ Aranda complained of Jay, indeed, in a private letter that was quoted, “ quHl parait toujours fort houtonnef — a curious complaint to come from a Spanish nobleman. In fact, Jay had a great admiration for the man 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 be yet on more familiar terms, for though I will
^ To Franklin, Oct. 25, 1780, Hale, Franklin in France, i. 410.
MINISTER TO SPAIN.
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never court, yet I shall with pleasure cultivate his acquaintance.” ^ Delay in the payment of his salary lielped to make the unfortunate en¬ voy’s situation seem at times intolerable : “ to be obliged to contract debts and Kve on credit is terrible,” ^ is a painful cry, wrung from the heart of a man like Jay. Some distractions there were of course, though w^e 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 Brockholst Living¬ ston to a bullfight, when “ one of the knights who fought on horseback was killed and two W'ounded ; ” and every evening that summer there was a comedy,® which they doubtless occa¬ sionally attended.
Ill the spring of 1781 the French ambassa¬ dor surprised Jay