E 
 
 302, 
 
O ' 
 
 .^^^ 
 
 
 
 ,0^ ,<■ 
 
 
 
 A-^' .- 
 
 .v< 
 
 >:^'"^. ^BS 
 
 V^^ C»^ 
 
 ^ %.^' i 
 
 \' s^ 
 
 ^-Mfy^^ .<^:% 
 
 
 
 V "It-, 
 
 .x^'"\ 
 
 
 . '^-: 
 
 A^ .... </-7^.^^\cy 
 
 r^ .^ri:\% '^^^\o^.-"'^ % '" 
 
 x^^ v. 
 
 
 \ 
 
 >^ 
 
 '<>• '?.^- 
 
 >%. 
 
 
 ■^ ,0^ 
 
 y. 
 
 
 .5*' 
 
 '*,. 
 
 , ■<?. ' • • ^ ' <" , , . ^/. ' „ . V « .A ^ '/, 
 
 
 
o ' 
 
 ^^ - vfe^'^T . ^ ^ ^-r^'W^s %^ 
 
 
 
 A qX 
 
 X * jf. > 
 
 
 <> .A^ 
 
 
 0^ 
 
 
 
 
 %:^-o\/\..o.^ ^-^^ v>^s 
 
 
 ■of -^M^.'^^^ :mm^'- -"o" 
 
 ?^ ./ \. =>X^'^:^ '^^'^^ ' 
 
 cP^. 
 
 
 
 \' ^ 
 
 ^'r. C,- * ^"f\ ^e //^^ c '^ .a" 
 
 ^ .x^^^ -^ 
 
 .^ ^, 
 
 - ^>^ ^^:^'#^^'.^ 
 
 
 
 
 O ^0 
 
 
 
 
 
 v: 
 .^^ 
 
 
 w/K% %,^^^- :m-^ 
 
 
John Jay 
 
John Jay 
 
The Earthly 
 
 Pilgrimage 
 
 — OF— 
 
 John Jay 
 
 -BY 
 
 John Henry Zuvcr 
 
 A TOME OF THE EARTHLY 
 PILGRIMAGES OF THE CHIEF 
 JUSTICES OF THE UNITED 
 STATES SUPREME COURT. 
 THE ASSOCIATED LAWYERS' 
 PUBLISHING COMPANY, BAT^ 
 TLE CREEK, MICHIGAN, MCMIV 
 

 LiEHAHY of OOWQRrss 
 Two Copies Rece';vert 
 
 JUN 27 190^- 
 
 Copyrjf ht fcntr? 
 
 CLJASS 0^ xxc. ^<c 
 
 ^\^ ^ 
 
 COPY 8 
 
 ^ 
 
 /i/' 
 
 V 
 
 COPYRIGHT 1904. BY 
 THt ASSOCIATED LAWYERS' PUBLISHING COMPANY 
 
®f John 5a^. 
 
 IHE INK which marked President 
 Washington's approval of the 
 Federal Judiciary Act of 1789 
 was scarcely dry, when that func- 
 tionary sent to the United States 
 vg^ii Senate the following names: For 
 l^^^fj Chief Justice, John Jay; for Asso- 
 ciate Justices, John Rutledge, James V/ilson, Wil- 
 liam Gushing, Robert H. Harrison, and John Blair. 
 At the same time the nam.e of Edmund Randolph 
 was proposed for Attorney General. Two days 
 lajter, on Septem.ber 26, the entire slate was con- 
 firmed, and John Jay was assigned the page in 
 history devoted to the first Chief Justice of the 
 United States Suprem^e Court. 
 
 At that time he was forty-four years of age, 
 and well known throughout the New Republic as 
 a good citizen, a loyal patriot, an able lawyer, an 
 honest politician, a far-seeing statesman, and a 
 skillful diplomat. The opportunity was here af- 
 forded him to demonstrate his qualifications as a 
 jurist. 
 
 He embraced the opportunity, history tells us, 
 even in advance of his appointment, having been 
 tendered by Washington his choice of the Federal 
 offices, because of the high regard in which the 
 
2 EARTHLYPILGRIMAGE 
 
 first President held him. He chose the Chief Jus- 
 ticeship, and it was given him, because neither the 
 President nor the Senate feared that he would 
 " hesitate a moment to bring into action the tal- 
 ents, the knowledge, and integrity which were so 
 necessary to be exercised at the head of that de- 
 partment, Vv'^hich must be considered as the key- 
 stone of our political fabric/' 
 
 OHN JAY entered this life at the city of 
 New York, on the twelfth day of Decem- 
 ber, Anno Domini, one thousand seven 
 hundred and forty-five. The first thing 
 he did was to start for the grave, a direction in 
 which he traveled throughout his earthly pilgrim- 
 age, which endured for eighty-three years, five 
 months, and five days. Then that peaceful retreat 
 was opened to receive him at Bedford, in York 
 State, — forty miles distant from the point of his 
 birth, — where he was delivered into its bosom from 
 an attack of palsy, on May 17, 1829. 
 
 Between the hour of his birth and the hour of 
 his death were transacted those deeds of life which 
 made John Jay famous, — save, perhaps, the influ- 
 ence of heredity and the accretions of history. He 
 was the youngest of a family of eight children, 
 and the sixth son. Peter Jay was his father, and 
 Mary Jay his m.other. The father was of French 
 descent, and the mother was of Dutch extraction. 
 The father was wealthy, and the mother was rich. 
 The father inherited v/ell from the grandfather, 
 Augustus Jay, and by thrift and industry increased 
 the inheritance greatly. The mother was the 
 
OF JOHN JAY 3 
 
 daughter of Jacobus Van Cortlandt, of manorial 
 prominence, from whom, through her, the first 
 Chief Justice inherited the estate of his retire- 
 ment, where he spent his declining years — after 
 a long and valuable public service. 
 
 Peter and Mary intended John for the law from 
 the start, and he was doubtless given the best pre- 
 paratory education that the times and location af- 
 forded. For though the older Jay dealt in beer 
 and rum, as well as in kerseys, mohairs, hats, 
 gloves, and sugar and hams, he was reputed as a 
 " gentleman of opulence and character," a zealous 
 churchman, and advocate of schools and wider 
 knowledge. Thus we have it that, after surviving 
 an attack of sore throat, of which a younger sister 
 died, and escaping a dreaded smallpox, which left 
 his brother, Peter, Jr., and his sister, Nancy, blind, 
 he was taught by his mother the "rudiments of 
 English, and the Latin Grammar." Johnny had 
 a grave disposition, and took to learning exceed- 
 ingly well, so saith his father's diary, on his en- 
 tering the gram^mar school at New Rochelle, at the 
 age of eight. 
 
 French was usually spoken throughout New 
 Rochelle, which, as the name suggests, was peopled 
 chiefly by descendants of French refugees, and thus 
 the young Jay learned early and easily the lan- 
 guage which was to prove so useful to him during 
 his then unanticipated career as a diplomat. 
 
 For three years Johnny remained at the gram- 
 mar school, which was conducted by the Rev. Mr. 
 Stoope, and was then taken home, and there pre- 
 pared for college by a private tutor, Mr. George 
 Murray. He entered King's (now Columbia) Col- 
 
4 EARTHLYPILGRIMAGE 
 
 lege at the age of fourteen, having passed an ex- 
 amination that would do credit to many of that 
 institution's modern graduates. 
 
 For admission he was required to read three of 
 TuUey's orations, and six books of Virgil into Eng- 
 lish, and the first ten chapters of St. John's Gospel 
 into Latin. A candidate for college who can do 
 that successfully nowadays is considered a prodigy, 
 and the graduate who can do it, a fit candidate for 
 a lunatic asylum. But Jay found this knowledge 
 useful, indeed indispensable in his career. There 
 are such exceptions to the rule of to-day. 
 
 F Jay's college life but little is known. At 
 that time the institution was under its 
 first president, the learned and pious Dr. 
 Samuel Johnson, who had been one of the 
 first graduates of Yale College to desert Congre- 
 gationalism for the English Church. Single-handed 
 at the outstart, and then with a pair of assistants. 
 Dr. Johnson set King's College agoing, and was 
 just gaining some success, when our subject was 
 enrolled; and v/e have it from the college presi- 
 dent's own pen, that " he set himself at once, and 
 of his own accord, to curing certain defects of utter- 
 ance and rapid reading, making an enthusiastic 
 study of English composition," which no doubt 
 bore fruit in the graceful and easy, and ofttimes 
 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." 
 
OF JOHN JAY 5 
 
 But in 1763 the old doctor resigned, through 
 fear of smallpox, which had taken away his wife, 
 was an epidemic in New York, and of which he 
 was sore afraid; and he was succeeded as presi- 
 dent by Dr. Mayles Cooper, " a wit and scholar," 
 says Gulian Vanplank, " whose learning and accom- 
 plishments gave him personal popularity, and of 
 course added authority to his opinions, which were 
 the opinions and prejudices of the high-toned Eng- 
 lish University Tory of the Eighteenth Century." 
 Under the tuition of Dr. Cooper, John Jay finished 
 his college course. He v/as already in his senior 
 year, and an incident that occurred shortly after 
 the new president was installed will throw some 
 light on how well Jay was by nature adapted to 
 the course in life which he later chose to pursue. 
 
 One day a number of students in the College 
 Hall began to break a table, — a typical senior trick. 
 The doctor heard the noise, went in, and asked 
 one student after another, " Did you break the 
 table? " " Do you know who did? " All answered, 
 " No," until John Jay was asked, and he was the 
 last but one. To the first question Jay answered 
 the same as the others, but to the second inquiry, 
 his answer was, " Yes, sir." " Who was it? " asked 
 the doctor. " I do not choose to tell," was the 
 sturdy reply of the future Chief Justice, and the 
 next and last boy of the class answered in the 
 same manner. These two were then called before 
 the faculty, where Jay argued his first case. Ad- 
 mitting all the facts, he contended ingeniously and 
 reasonably enough that, " as information against 
 fellow students was not required by the college 
 statutes, they were not technically guilty of dis- 
 
6 EARTHLYPILGRIMAGE 
 
 obedience in not informing; that such information 
 was not customary with students, and in the ab- 
 sence of statute making it mandatory, there could 
 be no offense." He admitted ignorantia legis non 
 excusat, but in this case there was neither legis 
 scriptae nor legis non scriptae on which a knowl- 
 edge could be based. " Our fellow students," he 
 said, " who answered * no ' to both questions are 
 within the maxim Ignorantia Facit Excusat, it is 
 true. Are we to be punished for entertaining a 
 secret, and holding it sacred, which neither the cus- 
 tom of students nor the college statutes forbid? " 
 But the professors, who thought themselves the 
 injured parties, were also the judges, and were 
 not to be convinced by any such ingenuity, hence 
 Jay and his fellow criminal were rusticated only a 
 short time before they were to graduate. 
 
 It appears, however, from the college records 
 that Jay must have continued his studies at home, 
 for his suspension over, he was enabled to return 
 in time to pass an exceptional examination, and at 
 the commencement held May 17, 1764, sixty-five 
 years previous to the date of his death, he delivered 
 a dissertation on " The Blessings of Peace," and re- 
 ceived his bachelor's degree. 
 
 Twelve years later, at the outbreak of the Revo- 
 lution, Dr. Mayles Cooper, the " wit and scholar," 
 whose " opinions and prejudices " were of the 
 "high-toned English University Tory," was forced 
 to leap over the college fence to escape a mob of 
 " Liberty Boys," eager for American independence, 
 and determined to repeal the " authority " of " his 
 opinions " by hurrying him away to the England 
 that enjoyed his sympathies, and thus ended his 
 
OF JOHN JAY 
 
 college presidency in a manner but little befitting a 
 poet and Fellow of Oxford. 
 
 BOUT that time the bar of the city of New 
 York had a severe attack of supercilious 
 fear that there was to be a great influx of 
 applicants for admission, and to avoid it, 
 the then practising lawyers agreed upon a resolu- 
 tion " to take no one as clerk who proposed to 
 enter the profession." Accordingly Jay began to 
 make preparations to start for England to get a 
 professional education there, but an amendment 
 to the aforesaid resolution was finally acceded to 
 by the lawyers, in the proviso, that " no one shall 
 be employed as clerk who proposes to enter the 
 profession, except under such restrictions as will 
 greatly impede the lower class of people from 
 creeping in." 
 
 This was a happy ending of much anxiety for 
 Mr. Peter Jay, and John at once entered the office 
 of Benjamin Kissam, a barrister " eminent in the 
 profession," by binding himself as an apprentice 
 on the payment of £200, to serve for five years, 
 " with the liberty to apply the last two years to 
 the study of law, and to visit the sessions, with 
 only occasional attendance at the office." 
 
 Printed blank forms, typewriting machines, 
 stenographers, and such modern conveniences, 
 were not known in the law offices of those days, 
 and Jay's duties as a clerk were immensely labori- 
 ous. Everything was written, and the drudgery 
 of copying was oppressive. Even the argument 
 
g BARTHLYPILGRIMAGE 
 
 of questions of law before the Supreme Court was 
 conducted in writing, in longhand, a system which, 
 with all its bunglesomeness, nevertheless had its 
 advantages for the law student, for what a man 
 has to write down and copy, he usually remem- 
 bers. The hand thus feeds the mind as well as 
 the body. 
 
 The must of the Revolution was already fer- 
 m.enting, but at that tim.e more as a matter of pol- 
 itics than of patriotism, both being apparently ig- 
 nored by the lawyer and the student, except in so 
 far as concerned their legal business. Thus, in 
 April, 1766, Mr. Kissam proposed a "jaunt" to 
 Philadelphia, if the news of the repeal of the Stamp 
 Act did not arrive meantime ; for, as he wrote, " On 
 the repeal of the Stamp Act we shall doubtless have 
 a luxuriant harvest of law, and I would not, after 
 the long famine v/e have had, willingly miss reap- 
 ing my share of the harvest." 
 
 But the Stamp Act v/as not thus repealed, and 
 Kissam while absent wrote to inquire about the 
 conduct of his office, to which Jay characteristic- 
 ally replied, as he expressed it, " Free enough, in 
 all conscience." "A man's own evidence is not of 
 much account in his own defense, I beg to remind 
 you," he wrote his master, " hence if you mean to 
 ask me how your clerk is acting, I know hardly 
 how to answer. If I tell you I am all day in the 
 office, and as attentive to your interests as I would 
 be to my ov/n, I suspect you would think it such 
 an impeachment of m.y m.odesty as would not op- 
 erate very powerfully in favor of my veracity. On 
 the other hand, should I say to you that I am 
 making hay while the sun shines, and say to my 
 
OP JOHN JAY 9 
 
 soul, * Soul, take thy rest, thy lord is journeying 
 in a far country,* I should be much mistaken if 
 you did not think the confession looked too honest 
 to be true." 
 
 As this correspondence would indicate, Mr. 
 Kissam, the eminent barrister, and Mr. Jay, though 
 but twenty-one and only a clerk, were on terms 
 of intimacy, such as permitted an occasional diver- 
 sion to merriment. It was about this time, too, 
 that the future peace envoy of the American Revo- 
 lution, John Jay, by a diplomatic, though not in- 
 sincere reply, got his father's leave to keep a horse. 
 
 " John, what do you want of a horse ? " asked 
 his father. " That I m.ay have the means, sir, of 
 visiting you frequently," was the diplomatic reply, 
 and John, whom his father loved dearly, was soon 
 sporting a fine horse — at his father's expense. 
 
 John Jay was admitted to the bar in 1768, and 
 became almost immediately successful. At first, 
 a temporary partnership was formed with Robert 
 R. Livingston, under the firm name of Livingston 
 & Jay, barristers, advocates, etc. Benjamin Kis- 
 sam, when unable to attend to his own business, 
 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 
 appertains to horse flesh gone astray, and there is 
 also one writ of inquiry." 
 
 The practise of the country lawyer then, as 
 now, and the city of New York then was not as 
 large as the Greater Nev/ York of to-day, consisted 
 chiefly in making collections, settling line fence 
 disputes, suing out writs of ejectment, — especially 
 
10 EARTHLYPILGRIMAGE 
 
 for the young attorney whose practise was limited 
 at the best. Only one cause of any consequence 
 is mentioned in which Jay was engaged, namely, a 
 contested election in Westchester County, in which 
 the right of suffrage was discussed, and questions 
 of evidence of more than usual intricacy arose. On 
 this occasion Jay was opposed by his friend, Gou- 
 verneur Morris, and Jay v/on. In 1770, Jay speaks 
 of going to Fairfield, to try two cases, and in 1774 
 he addressed a jury at Albany. His practise then 
 was quite varied, though he was engaged in no 
 great cases, like that of Zenger, involving prin- 
 ciples of constitutional law, and establishing the 
 reputation of victorious counsel, and he was at no 
 time noted for brilliant or " magnetic " oratory. 
 "All the causes you have hitherto tried," v/rote 
 Kissam about that time, " have been a kind of in- 
 spiration," which shows that they still remained 
 close friends, though sometimes engaged on oppo- 
 site sides. On one such occasion, Kissam, in a mo- 
 ment of embarrassment, complained that he had 
 brought up a bird to pick out his own eyes. " Oh, 
 no," was Jay's retort, " not to pick out, but to open 
 your eyes." 
 
 Instead of New York being the financial center 
 of the Western Hemisphere in those early times, 
 it was the home of the " Moot Court," an idea orig- 
 inated by John Jay in November, 1770, and now 
 in vogue in practically all the law schools of the 
 country. This club met the first Friday of every 
 month for the discussion of disputed points of law 
 — but party politics were strictly forbidden. Un- 
 like the modern Law School Moot Court, however, 
 this club was composed of lawyers, and its deci- 
 
OFJOHNJAY 11 
 
 sions on matters of practise are said to have been 
 followed by the Superior Court in its sessions. 
 Among its members we note the name of John 
 Jay, first Chief Justice of the United States Su- 
 preme Court; Egbert Benson, Jay's college friend 
 who with him said "yes," but wouldn't tell, and 
 who in due time became Judge of the New York 
 Supreme Court; Robert R. Livingston, Jr., son of 
 Jay's law partner; James Daune, Jay's colleague 
 in the Continental Congress, and first Mayor of 
 New York after the Revolution ; Peter Van Schaack, 
 whom Jay, as chairman of the Council of Safety, 
 was later to exile from the State for being a Tory, 
 but who loved him to the end, and wrote a glowing 
 epitaph upon him; and Gouverneur Morris, not yet 
 possessed of that v/ooden leg which he later bran- 
 dished with such patriotic effect in the face of a 
 Paris mob; while among the older lawyers who 
 attended now and then were William Smith, who 
 later became Chief Justice of Canada, after having 
 been confined at Livingston Manor by Jay's com- 
 mittee, and banished as a Tory sympathizer; Sam- 
 uel Jones, not the preacher, but the Chief Jus- 
 tice whose office was to be the training school of 
 De Witt Clinton; John Morin Scott, the popular 
 orator of the " Liberty Boys ; " and then, there v/as 
 Benjamin Kissam, Jay's tutor, and W^illiam Liv- 
 ingston, his future father-in-law, the future Revo- 
 lutionary Governor of New Jersey, and already 
 well known for countless literary and political 
 poems, essays, and letters. 
 
 On April 28, 1774, at patriotically named " Lib- 
 erty Hall," in Elizabeth, New Jersey, John Jay 
 was united in holy wedlock to the " beautiful Sarah 
 
12 EARTHLY PILGRIMAGE 
 
 Livingston," youngest daughter of William Liv- 
 ingston, and in the notices of the wedding. Jay, 
 young as he was, was described as an " eminent 
 barrister," much after the fashion of the press of 
 to-day, which refers to the newly married young 
 lawyer as " a rising young attorney." 
 
 And thus endeth the first third of Jay*s life, 
 which naturally was divided into three thirds; but 
 curiously, the second third — of twenty-eight years 
 — was devoted almost wholly to public service, and 
 the last third was spent in retirement. His day 
 as a lawyer in practise is now quite done, the tide 
 of the times having drawn him into the vortex of 
 politics. 
 
 [HE average human head, like an egg — 
 or a crock of baughnaughclaughber — ab- 
 sorbs the flavor of its surroundings, and 
 up to the beginning of Jay's public life 
 there seems but little to indicate that his head was 
 very far above the average. Thus we have it that 
 " John Jay was a Whig." By family traditions he 
 was a Whig; most of his associates had been 
 Whigs, and now he was connected by marriage 
 with the great Whig family of Livingstons, which 
 had for generations contested the province with the 
 Tory De Lanceys. 
 
 Notwithstanding his youth, this traditional 
 Whig became one of the most active and influ- 
 ential spirits of the early Revolutionary period. In 
 1774, shortly after his marriage, he was sent as a 
 delegate to the First Continental Congress, a dis- 
 tinction which must have been looked upon by the 
 
OFJOHNJAY 13 
 
 new Mrs. Jay with considerable pride. That Con- 
 gress assembled in Philadelphia, and there Jay 
 found himself, with the single exception of Edward 
 Rutledge, the youngest member of that august 
 body. He possessed none of the headlong impet- 
 uosity or fiery zeal of Rutledge, hov/ever, or of 
 Henry, or of Adams, and prudently abstained from 
 any vain attempt to compete with these notorious 
 orators; but it was John Jay who was the author 
 of the "Address to the People of Great Britain," 
 and he at once won world-wide renown by it, — a 
 paper which drev/ forth encomium^s even from the 
 Earl of Chatham by its able and dignified state- 
 ment of the rights of the colonists, and the glowing 
 portrayal of the wrongs which they endured. 
 
 Most of the delegates of the First Continental 
 Congress were conservative and loyal subjects to 
 the British Crown, and Jay was the leader of this 
 conservative element. Indeed, so conservative was 
 he, that some thought to class him among the 
 Tories. His position was that the safest and most 
 dignified position for the Congress to take, would 
 be that of a convention called to petition His Maj- 
 esty the King for a redress of grievances. He ad- 
 vised deliberation and caution. " If we can get 
 what we want, — our rights as British subjects, — let 
 us remain true to the home-land across the sea," 
 he said in one of his speeches, " and it is worth 
 while to petition and try before radical measures 
 are resorted to." And Jay's course was pursued. 
 Otherwise, the " facts submitted to a candid world," 
 as in the Declaration of Independence, sent forth 
 two years later, could not have been followed by 
 this sympathy-inspiring announcement : — 
 
14 EARTHLYPILGRIMAGE 
 
 " In every stage of these oppressions we have 
 petitioned for redress in the most humble terms: 
 our repeated petitions have been answered by re- 
 peated injury. A prince whose character is thus 
 marked by every act that may define a tyrant, is 
 unfit to be the ruler of a free people." 
 
 Of Jay, then, as of every man in that day like 
 him, it may be said, though in a different sense 
 from that of the old Roman, that " by delay he 
 created a nation," for at the time of the First Con- 
 tinental Congress, the colonies were, as yet, united 
 neither in sentim.ent nor interests, and the parties, 
 Whigs and Tories, Liberals and Conservatives, 
 v/ere, in the aggregate of wealth and influence, 
 nearly evenly divided. By promoting petition after 
 petition to the king, sometimes in terms of almost 
 undignified conciliation, and with no effect, as in 
 the Declaration of Independence set forth, a unity 
 of sentiment was established, and a common cause 
 made, in which all — worth mentioning — pledged 
 their lives, their fortunes, and their sacred honors. 
 
 Jay knew that in union alone there is strength, 
 and foresaw that with the colonists divided in sen- 
 timent and without common cause, a war for inde- 
 pendence would be a miserable failure, with con- 
 ditions worse than ever for their pains. 
 
 Jay also served as a member of the Committee 
 of Correspondence, and is said to have v/ritten the 
 reply to the Boston Address, in which the project 
 of nonintercourse was opposed. He also wrote 
 the Address to the People of Canada, and one to 
 the Inhabitants of Ireland. He continued in Con- 
 gress until May, 1776, when he was recalled to 
 assist in framing a government for New York, 
 
OF JOHN JAY IS 
 
 and thus narrowly missed the earthly immortality 
 which glorifies the names of the signers of the 
 Declaration of Independence, — a fev/ years since 
 proved to be, as one of our modern generals 
 ascribed it, " a damned incendiary document " in 
 the hands of the Filipinos. 
 
 But then the Filipinos never petitioned for re- 
 dress of grievances, as our colonial fathers did. In- 
 deed, they had no grievances to redress, had they 
 only known it, but misinformed, they were right 
 there, and ready to fight, just as so many erratics 
 in the First Continental Congress were, only in 
 the case of the Filipinos, there was no John Jay 
 to counsel moderation, and no Dickinson to second 
 the motion. 
 
 N Jay's return to New York, he drafted a 
 Bill of Rights, and took a leading part in 
 framing the Provincial Constitution; in 
 fact, he is said to be the author of it, a 
 document in many respects the same as the con- 
 stitution of New York State to-day. 
 
 One of these respects is worthy of notice. It 
 pertains to religious liberty. Read on : " The free 
 toleration of religious profession and worship 
 without diminution or preference shall forever be 
 allowed v/ithin the State to all mankind." This 
 priceless heirloom of freedom of conscience was be- 
 queathed to New York by New Netherlands, which, 
 almost alone among the colonies, had never listened 
 to the denunciations of fanaticism or lighted the 
 fires of persecution. 
 
16 EARTHLYPILGRIMAGE 
 
 In Jay, the author of it, the old Huguenot blood 
 still run hotly with traditional memories of his 
 great-grandfather, Pierre Jay, driven from La Ro- 
 chelle; of his other great-grandfathers' families, 
 the Bayards and Phillipses, seeking refuge in Hol- 
 land and Bohemia from the strong arm of the 
 Papacy, and he defended the proviso with all the 
 zeal of an Ezra and the eloquence of a Nehemiah. 
 For the power of the Church of Rome he knew 
 and feared, and accordingly urged a further amend- 
 ment, to " except Roman Catholics until they should 
 abjure the authority of the Pope to absolve citizens 
 from their allegiance, and to grant absolution." 
 
 It is needless to say that a fierce debate fol- 
 lowed this proposition, for there were Catholics 
 present, and they could point v/ith some degree 
 of scorn to the persecutions by the Church of Eng- 
 land, of which Jay was a member; to how it had 
 driven the Pilgrims hither, and how even the pious 
 Pilgrims had been guilty of persecuting dissenters. 
 The result was the adoption of a proviso, that the 
 " liberty of conscience hereby granted shall not be 
 so construed as to excuse licentiousness or justify 
 practises v/hich are inconsistent vvith the safety of 
 the State." 
 
 But Jay was not satisfied with this, and when 
 the question of naturalization cam.e up, he renewed 
 his fight, and secured the adoption of an amend- 
 ment, sufricient for public safety, but less " stren- 
 uous," perhaps, than he desired; that before nat- 
 uralization 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." 
 
OFJOHNJAY 17 
 
 This wording, perhaps, shows Jay's motives in 
 the controversy, that it was not a religious but a 
 political question; that it was not Romanism as a 
 religion that he feared, but Romish imperialism in 
 the affairs of state. For John Jay was not a bigot. 
 So great was his sense of the diversity of opinion, 
 both religious and political, that when it was moved 
 to open the sessions of the First Continental Con- 
 gress with prayer, he objected, though as devout a 
 man as any present, " because," as John Adams has 
 written, "we were so divided in religious senti- 
 ments." And, when the New York Provincial 
 Congress, in later years, forwarded to him and his 
 colleagues a "plan of conciliation," protesting, 
 among other things, " against the indulgence and 
 establishment of Popery (by the Quebec Act) all 
 along their interior confines," Jay's answer was that 
 they "thought best to make no reference to the 
 religious article, prefering to bury all disputes on 
 ecclesiastical points, which have for ages had no 
 other tendencies than that of banishing peace and 
 charity from the world." 
 
 In spite of Jay's caution, however, the First 
 Continental Congress was opened with prayer. A 
 chaplain was found whose prayers (though he 
 afterward joined the Royalists, and v/as banished 
 by Jay's Council of Safety) excited no dissension 
 at the time* 
 
 As chairman of the Council of Safety, this 
 worthy — or unworthy — chaplain was not the only 
 man Jay countenanced should be sent abroad for 
 colonial protection. Some of them were his very 
 friends. Men who as Royalists continued, after 
 the outbreak of the war, to advocate the same doc- 
 
18 EARTHLYPILGRIMAGE 
 
 trines of conciliation as Jay himself had cham- 
 pioned in the Continental Congress, v/ere banished 
 or imprisoned as traitors. Here Jay justified his 
 conduct — clever politician that he was — by point- 
 ing out that things said in times of peace might 
 have a different aspect when reuttered in time of 
 war. " It is different than when we v^ere all Brit- 
 ish subjects. The United States have declared their 
 independence, and we are fighting England to main- 
 tain it. Should we tolerate her emissaries right 
 here in our midst? Let those who favor the Brit- 
 ish take refuge in Britain. To us they are traitors. 
 It is a military measure," he said. 
 
 But to return to the Provincial Constitution 
 drafted by Jay for New York. Another item will 
 bear special notice. It pertains to the qualification 
 of voters. It v/as Jay's theory that all voters should 
 be taxpayers ; that " the people who own the coun- 
 try should run it." It is needless to say that the 
 Constitution of York State does not recognize that 
 feature in these piping times,— much to the chagrin, 
 perhaps, of some streets in Jay's native city, the 
 inhabitants of which would like to have it reasserted 
 not only in the Constitution of New York, but of 
 the United States as well. 
 
 N September, 1776, John Jay was appointed 
 Chief Justice of New York under the Con- 
 stitution which he had championed. His 
 court was merely the old provincial Su- 
 preme Court continued. The minutes of Jay's first 
 term appear in the same old book as had been in use 
 
OFJOHNJAY 19 
 
 by the Crown. There are a few blank leaves between 
 the Crown records and the minutes under Jay, but 
 aside from this there is nothing to indicate a change 
 of government, other than the title of a criminal 
 case in which "The People of the State of New 
 York " appeared as plaintiff, instead of " Domino 
 Rex." Here is part of an address delivered by 
 Jay to the Grand Jury of Ulster County, which was 
 for years afterward considered among the classics 
 of the Revolution. 
 
 " It affords me, gentlemen," was the impressive 
 opening, " very sensible pleasure to congratulate 
 you on the dawn of that free, mild, and equal gov- 
 ernment which now begins to break and rise from 
 amid those clouds of anarchy, confusion, and licen- 
 tiousness which the arbitrary and violent conduct 
 of Great Britain has spread, in greater or less de- 
 gree, throughout 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." And then follows this 
 piece of wise philosophy : — 
 
 " Delay in punishing crime encourages the com- 
 mission of crime. The more certain and speedy 
 the punishment, the fewer will be the objects. . . . 
 * The law's delays * cloak as many sins in society 
 and politics as charity is said to do in religion." At 
 another time, he says : — 
 
 " To tax a faculty is to tolerate it, vice not being 
 in its nature subject to taxation, except in the form 
 of an indulgence to commit sin, and this State has 
 no such indulgences for sale. By the principles of 
 the Constitution, the vending of indulgences by 
 ecclesiastical authority is uneffective * to excuse 
 
20 EARTHLY PILGRIMAGE 
 
 licentiousness or justify practises inconsistent with 
 the safety of the State/ while, on the other hand, 
 a license by the State legalizes what it allows, and 
 makes it no longer a wrong but a virtue in the eyes 
 of the law. ... A wrong, therefore, which the Leg- 
 islature has not seen fit to prohibit, is not a subject 
 for human punishment, however much it may be 
 to divine vengeance. No citizen is liable to be pun- 
 ished by the State but such as have violated the 
 laws of the State." 
 
 Jay, in his address, was discussing an income- 
 tax, and holding that " the public good requires 
 that commerce and manufactures be encouraged," 
 except when " taking advantage of the necessities 
 of their country, they have, in prosecuting their 
 private gain, amassed large sums of money to the 
 great prejudice of the public," to avoid which, 
 " laws should be passed which are absolutely pro- 
 hibitory, rather than to subject them to penalties 
 under the specious name of tax, and thus, in effect, 
 grant them an indulgence." 
 
 It would seem from this that there was some 
 fear of ours becoming a trust-ridden country, even 
 in those days, and with New York the seat of the 
 evolution. 
 
 OR several years the boundaries between 
 New York, New Hampshire, and Massa- 
 chusetts had been a source of controversy 
 and confusion. The Declaration of Inde- 
 pendence was utilized by Ethan Allen and others 
 of the disputed territory as a good opportunity 
 to declare their independence, and set up a new 
 
OFJOHNJAY 21 
 
 province, which they began to call Vermont. Ac- 
 cordingly, Vermont began to knock at the door of 
 the Continental Congress for recognition as one 
 of the " free and independent States " referred to 
 in the general declaration of 1776. This finally 
 induced the New York Legislature to resolve 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. In December, 1778, he was accordingly re- 
 turned to the scene of his old labors, with the spe- 
 cial mission of urging Congress to settle the terri- 
 torial claims. 
 
 On arriving at Philadelphia, Jay found that his 
 " special mission " was likely to keep him there for 
 some considerable time, whereupon he resigned 
 the Chief Justiceship, that the courts of his State 
 "might not longer be kept inoperative." 
 
 It soon happened, too, that Henry Laurens, 
 president of Congress, resigned, and Jay was elected 
 to take his place, notwithstanding that his " spe- 
 cial mission" was to settle the question of Ver- 
 mont. He finally moved, and carried, resolutions 
 to submit the question to arbitration, thus recogniz- 
 ing the new claimant explicitly, a position which 
 he justified with characteristic common sense, as 
 follows : — 
 
 " In my opinion, it is much better for New York 
 to gain a permanent peace with her neighbors by 
 submitting to these inconveniences, than by im- 
 politic adherence to strict rights, and the rigid ob- 
 servance of the dictates of dignity and pride, to 
 remain exposed to perpetual dissensions and en- 
 croachments." 
 
22 EARTHLY PILGRIMAGE 
 
 Thus we find John Jay an early advocate of 
 arbitration, but Congress had no power to enforce 
 an award of the arbitrators, and the dispute re- 
 mained open until after the adoption of the Federal 
 Constitution, when it was settled for all time by 
 the transfer of $30,000 from the treasury of Ver- 
 mont to the treasury of New York, — a finale which 
 Jay considered an " ignominious outrage," and it 
 was, against the people of Vermont. 
 
 [j S president of Congress, Jay proved him- 
 self an able parliamentarian, and a man 
 of executive force, winning at once the 
 admiration and respect of all the Congress- 
 men. Indeed, their respect for him seems to have 
 rather exceeded his respect for them, for some thirty 
 years afterward, when Gouverneur Morris visited 
 Jay at Bedford, he one day ejaculated, through 
 clouds of smoke, " Jay, what a set of damned 
 scoundrels we had in that second Congress ! " And 
 Jay answered, " Yes, that we had." And then, 
 knocking the ashes from his pipe, he added, " There 
 was as much intrigue in that State House as in 
 the Vatican, and as little secrecy as in a boarding 
 
 school ," but there Morris intervened, " My 
 
 pipe has gone out, can you give me a light? " 
 
 It was while Jay was president of Congress 
 that such grave anxiety arose over the condition 
 of the currency. " Our money," wrote Robert R. 
 Livingston to Jay, "is so much depreciated as 
 hardly to be current, and, as a necessary conse- 
 quence of this, our expenses have increased beyond 
 
OFJOHNJAY 23 
 
 conception. According to a calculation I have 
 made, it costs as much to maintain an army for two 
 months now as it did to mxaintain it for the whole 
 year of 1776. It is absolutely necessary that we 
 should get out of this war soon." And, accord- 
 ingly, it becam.e one of Jay's first duties to write a 
 letter to the States explaining the action of Con- 
 gress in limiting the issue of paper money, and 
 calling on them for funds to meet current expenses. 
 If this letter hardly showed a thorough knowledge 
 of the principles of finance, it must not be forgotten 
 that the country in those days was not as well 
 blessed with Gages and Goulds, Shermans and 
 Rockefellers, Shaws and Morgans, Bryans and 
 Clevelands, as in more miodern years. Jay was as 
 well supplied with such knowledge as any states- 
 man of those times, and the letter at least answered 
 the purpose of the moment. It stated simply the 
 causes of depreciation, which in this case was held 
 to be purely " artificial," or due to a lack of confi- 
 dence in the government, and not " natural," due 
 to excessive issue. Then the letter aimed to restore 
 public confidence by affirming the honest intentions 
 of Congress to fulfill their engagements, and prov- 
 ing their ability to do so by reference to the enor- 
 mous undeveloped wealth which the States already 
 possessed, and the indefinite increase of population 
 that would come from immigration as soon as the 
 war was won. 
 
 This optimistic note to the States served a 
 goodly purpose, restoring confidence in the gov- 
 ernment to a considerable degree, and it also proved 
 the fallacy, to a like degree, of Jay's financial con- 
 tention. But " a bankrupt in need of money can 
 
24 EARTHLY PILGRIMAGE 
 
 not afford to be logical," and an appeal to an op- 
 timistic patriotism was then the only resource. It 
 did not cause the currency to appreciate, nor even 
 stop its further depreciation, for it is now easy to 
 see how the amount of paper then issued was far 
 in excess of what could be maintained at par in the 
 ordinary course of business, yet it brought some 
 assistance from the States, and that was the main 
 purpose for which the letters were sent. 
 
 On October i, 1779, owing to the same finan- 
 cial difficulty. Jay resigned his seat in Congress, 
 which was in the president's chair, and sixteen days 
 later set sail for Spain to negotiate a loan of two 
 millions of dollars with which to carry on the 
 war, and to negotiate a treaty reserving to the 
 United States the freedom of the Mississippi. 
 
 AY'S experiences with and treatment by the 
 haughty and arrogant Court of Charles 
 III of Spain will hardly stand recital. To 
 recount them would simply be to add so 
 much to the already heroic fame of Admirals Dewey 
 and Schley for wiping the Spanish navy off the face 
 of the earth — or sea. It would simply be to add 
 so much to our already enormous pride in having 
 been the main force in banishing Spanish power 
 from the Western hemisphere. " * Vengeance is 
 mine, saith the Lord, I will repay,' " Jay recited 
 to himself, when he found himself worsted, and 
 had learned the whys and wherefores; and if it was 
 possible for his illustrious spirit to return to earthly 
 scenes, and view the progress of the Spanish-Amer- 
 
OFJOHNJAY 25 
 
 ican War, it must have been gratifying to him that 
 Providence was employing the nation he had helped 
 to found, in keeping that threatening promise, and 
 to such a glorious end. 
 
 At Madrid, Jay received no official recognition, 
 and for nearly three years wrestled with the Span- 
 ish Court in his diplomatic way, but to no effect, 
 save to the extent of $150,000, which he confessed 
 to getting by "acting with exquisite duplicity — a 
 conduct which " he detested " as immoral, and " 
 disproved " as im.politic." But the country at that 
 time v/as in need of money, and Jay was " thank- 
 ful for small favors," he said. 
 
 It must have been a happy day for him when, 
 in April, 1782, he received this message from Ben- 
 jamin Franklin, the United States Minister in 
 France : — 
 
 " You are greatly wanted. Messengers begin to 
 come and go, and there is much talk of a treaty 
 being proposed; but I can neither make nor agree 
 to propositions of peace without the assistance of 
 my colleagues. . . . You would be of infinite serv- 
 ice pending the arrival of the other commissioners." 
 
 Without delay. Jay shook from his feet the un- 
 friendly dust of Madrid, and started for Paris. 
 
 OHN JAY'S skill in negotiating the treaty 
 of peace with Great Britain is universally 
 recognized, Henry Cabot Lodge and Dr. 
 Edward Everett Hale to the contrary not- 
 withstanding. Assisted by John Adams, even 
 Franklin was finally induced to concur with him in 
 
26 EARTHLYPILGRIMAGE 
 
 disregarding the instructions of Congress to act 
 in concert with our ally, the King of France, be- 
 cause he believed Vergennes, the French Minister, 
 was playing a double part, injurious to the inter- 
 ests of the people of the United States. 
 
 During Jay's ministry to Spain, and after his 
 arrival in Paris, things had transpired which to 
 his mind appeared that France was to some extent 
 responsible for the treatment he had received in 
 Madrid, and his inability to negotiate a treaty, or 
 the desired loan. He had come to the conclusion 
 that France, while pretending to be our friend, and 
 indeed assisting us with men and money, had no 
 desire to assist in effecting American independence, 
 but only to aid the colonies in prolonging a war 
 with Great Britain which she (France) could use 
 for her own selfish ends. Spain had a similar end 
 in view. Jay divined, and France encouraged her in 
 it, and indeed it was learned later that a secret 
 treaty had been entered into between those coun- 
 tries under which their respective interests were 
 to be guarded by each. 
 
 When the British commissioner arrived at Paris 
 (Oswald was his name). Jay, lawyer-like, observed 
 that he had come empowered " to treat and con- 
 clude peace with the commissioners of the said 
 colonies or plantations," etc., rather than with the 
 commissioners of the United States of America, 
 and Jay, therefore, refused to grant him official 
 recognition. " These ancient colonies and planta- 
 tions," he remarked rather laconically, " have de- 
 clared their independence and maintained it for 
 years, even against their mother country, as the 
 United States of America. We can treat for peace 
 
OF JOHN JAY 27 
 
 with no one whose commission does not recognize 
 the independence of our country.'* 
 
 We quote in part from Mr. Oswald's journal : — 
 ** Jay is a man of good sense, of frank, easy, and 
 polite manners. He read over the copy of the 
 commission, . . . and then said: By the quota- 
 tion from the Act of Parliament, he supposed it 
 meant that independence was to be treated upon, 
 and was to be granted, perhaps, as a price of peace. 
 To this he objected, that it ought to be no part of 
 the treaty; that independence should have been 
 expressly granted by the Act, and an order for all 
 troops to be withdrawn should be issued, previous 
 to any proposal for a treaty. As this was not done, 
 the king, he said, ought to do it by proclamation. 
 ... He spoke with such freedom of expression 
 and disapprobation of our conduct at home and 
 abroad respecting America," concluded Oswald, 
 " as shows we have little to expect from him in 
 the way of indulgence. ... And I may venture to 
 say that, although he has lived until now as an 
 English subject, though he has never been in Eng- 
 land, he may be supposed (by anything I could 
 conceive) as much alienated from any particular 
 regard for England as if he had never heard of it 
 in his life." 
 
 Then, after mentioning "many things of a 
 retrospective kind," Jay added that " the great point 
 was to make a peace that would be lasting." 
 "What security," Oswald asked, "could be given 
 for a continuance of peace save a treaty, which, 
 like the Treaty of Paris, was likely to prove very 
 inadequate security." Jay replied, " I would not 
 give a farthing for any parchment security what- 
 
28 EARTHLY PILGRIMAGE 
 
 ever. They have never signified anything since 
 the world began, when any prince or state on 
 either side found it convenient to break through 
 them. But the peace I mean is such, or so to be 
 settled, that it will not be to the interest of either 
 party to violate it." 
 
 "As to France," Oswald writes elsewhere, " he 
 (Jay) said the Americans could make no treaty 
 but in concurrence with the English settlement 
 with France; that the independence of America 
 was not a sufficient indemnity to France, and if 
 granted as such, would put them under a greater 
 obligation to France than they inclined to, as if to 
 her alone they were indebted for their independence. 
 The treaty of alliance with France must be ful- 
 filled, he said, for they were a young Republic just 
 come into the world, and if they were to forfeit 
 their character at the outset, they would never be 
 trusted again, and should become a proverb among 
 mankind." 
 
 " Upon my saying," wrote Oswald, " how hard 
 it was that France should pretend to saddle us 
 with her private engagement with Spain, he (Jay) 
 replied : * We will allow no such thing. For we 
 shall say to France: The agreement we have made 
 with you we shall faithfully perform; but if you 
 have entered into any separate measures with other 
 people not included in that agreement, and will 
 load the negotiations with their demands, we shall 
 give ourselves no concern about them.' " 
 
 Jay and Franklin consulted, by appointment, 
 with de Vergennes, to whom Franklin had sent a 
 copy of the commission. De Vergennes advised 
 them to " proceed under it, as soon as the original 
 
OFJOHNJAY 29 
 
 should arrive." Jay observed that " it would be 
 descending from the ground of independence to 
 treat under the description of colonies," by which 
 phrase the States were described in the commis- 
 sion. De Vergennes replied that " an acknowledg- 
 ment of independence, instead of preceding, must, 
 in the natural course of things, be the effect of the 
 treaty, and that it would not be reasonable to ex- 
 pect the effect before the cause." On the whole, 
 the French court considered that " the American 
 ministers should accept the commission on condi- 
 tion that England would accept their own commis- 
 sions as made by Congress." 
 
 Jay's theory of de Vergennes' motives he ex- 
 plained fully to Franklin. He thought that the 
 French minister wished to postpone the acknowl- 
 edgment until the objects of Spain had been se- 
 cured, " because," he said in a letter to R. R. Liv- 
 ingston, " if we once found ourselves standing on 
 our own legs, our independence acknowledged, and 
 all our other terms ready to be granted, we might 
 not think it our duty to continue in the war for 
 the attainment of Spanish objects. I could not 
 otherwise account for the minister's advising us 
 to act in a manner inconsistent with our dignity, 
 and for reasons which he himself had too much 
 understanding not to see the fallacy of. The Doc- 
 tor imputed this conduct to the moderation of the 
 minister, and to his desire of removing every ob- 
 stacle to speedy negotiation for peace. He observed 
 that this Court had hitherto treated us very fairly, 
 and that suspicions to their disadvantage should not 
 be readily entertained. ... He also mentioned our 
 instructions as further reasons for our acquiescence 
 in the advice and opinions of the minister." 
 
30 EARTHLYPILGRIMAGE 
 
 Jay, indeed, had divined, v/ith an accuracy hard 
 to surpass, the fears of the Court of Spain, which, 
 by the treaty of Aranjuez, Vergennes was com- 
 pelled to regard. 
 
 " Would you break your instructions? " Frank- 
 lin asked of Jay one day. " Yes," replied Jay, tak- 
 ing his pipe from his mouth, " as I break this pipe, 
 v/hich the doctors say is injurious, same as the in- 
 structions of Congress," and so saying, he threw 
 the fragments into the fire. 
 
 Franklin, hov/ever, was unconvinced by Jay's 
 reasoning, for en one Sunday morning he told Os- 
 wald that " * Mr. Jay was a lawyer, and might pos- 
 sibly think of things that did not occur to those 
 who were not lawyers.' And he at last spoke as 
 though he did not see much difference; but still 
 used such a mode of expression that he (Oswald) 
 could not positively say that he would not insist 
 on Mr. Jay's proposition, or some previous or sep- 
 arate acknowledgment." 
 
 Jay also prepared a letter explaining the atti- 
 tude of the commissioners. " If Parliament meant 
 to enable the king to conclude a peace with us on 
 terms of independence, they necessarily meant to 
 enable him to do it in a manner compatible with 
 his dignity, and consequently that he should pre- 
 viously regard us in a point of view that would 
 render it proper for him to negotiate with us. As 
 to referring an acknowledgment of our independ- 
 ence to the first article of a treaty, permit us to 
 remark that this implies that we are not to be con- 
 sidered in that light until after the conclusion of 
 the treaty, and our acquiescing would be to admit 
 the propriety of our being considered in another 
 
OFJOHNJA\ 31 
 
 light during that interval. It is to be wished that 
 His Majesty will not permit an obstacle so very 
 unimportant to Great Britain, but so essential and 
 indispensable v/ith respect to us, to delay the re- 
 establishm.ent of peace." 
 
 This letter v/as considered too positive by 
 Franklin, who, moreover, as Jay wrote to Living- 
 ston, " seemed to be much perplexed and fettered 
 by our instructions to be guided by the advice of 
 this court. Neither of these considerations had 
 weight with me ; for as to the first, I could not con- 
 ceive of any event which would render it proper, 
 and therefore possible, for America to treat in any 
 other character than as an independent nation; and 
 as to the second, I could not believe that Congress 
 intended v/e should follow any advice v/hich might 
 be repugnant to their dignity and interest." 
 
 Meanwhile, John Adams was hurrying to Paris 
 at Jay's summons, and arriving, took a firm posi- 
 tion in support of this policy. To Adam.s is due a 
 portion of the credit of v/inning Franklin to tak- 
 ing the same stand. " I told him without reserve," 
 wrote Adams, " my opinion of the policy of this 
 court, and of the principle, wisdom, and firmness 
 with which Mr. Jay had conducted the negotiations 
 in his sickness and my absence, and that I was 
 determined to support Mr. Jay to the utmost of 
 my powers in the pursuit of the same policy. The 
 Doctor heard me patiently, but said nothing. At 
 the first conference we had after v/ards with Mr. 
 Oswald, in considering one point and another, Br. 
 Franklin turned to Mr. Jay and said, * I am of 
 your opinion, and will go on with these gentle- 
 men in this business without consulting France or 
 any other Court.' " 
 
32 EARTHLY PILGRIMAGE 
 
 This accomplished, and the British commis- 
 sioner having shown that he had side authority to 
 recognize the " independence of the colonies " in 
 a preliminary article, if absolutely necessary, a 
 draft of such a recognition was drawn by Mr. Jay, 
 which, agreed to by all the parties, progress in 
 the direction of a treaty of peace was decidedly 
 rapid. To persons not versed in public affairs, the 
 wording of a commission may seem of minor im- 
 portance, but whether Oswald was to treat with 
 the colonies as such, or with the United States, 
 was of considerable difference in this instance, for 
 in the one case, independence still remained as 
 something to be bargained for, and the States were 
 technically colonies of Great Britain until the treaty 
 was signed, in which case they would be precluded 
 from making certain claims which as independent 
 States would be their privilege and their right. 
 
 The " United States " treating with Great Brit- 
 ain was on an entirely different basis than the 
 " colonies " would have been. The two powers 
 were on an equal footing. The only question was 
 how to make a permanent peace between them. 
 " The colonial claims," wrote Adams in later years, 
 "well founded or not, became important when 
 pressed by an independent country, and instead of 
 a treaty of more or less grudging concession from 
 a superior power to its revolting colonists, the 
 treaty became one of territorial partition between 
 equals seeking a permanent basis of conciliation. 
 Indeed, the preliminary grant of independence may 
 be said to have carried with it a grant of the fish- 
 eries and of the western territory, which as col- 
 onies we would have had no right to claim." And 
 the credit is due to John Jay. 
 
OFJOHNJAY 33 
 
 The terms of that treaty are v/ell known. The 
 United States gained more than Congress had ven- 
 tured to propose, or even hope for. The French 
 Minister, de Vergennes, was dumbfounded. Eng- 
 gland explained herself by saying she did not con- 
 sider the colonies or their claim.s worth bickering 
 with. "We hope she has since discovered her mis- 
 take, for she gave up some very, very valuable ter- 
 ritory, — let the fisheries be hanged. 
 
 " I will return home to become and remain a 
 private citizen and a lawyer," Jay wrote to a friend, 
 and on May i6, 1784, he left Paris v/ith his family, 
 and took ship for New York. 
 
 N returning to New York, after an absence 
 of some five years. Jay was welcom.ed by 
 the city fathers with an address, and the 
 freedom of the city in a gold box, " as a 
 pledge of their affection and sincere wishes for 
 his happiness." But instead of becoming "a sim- 
 ple citizen," as he had determined, with nothing 
 else to do but to " practise in the legal profession," 
 he found that Congress had two months before ap- 
 pointed him Secretary for Foreign Affairs. 
 
 Jay was reluctant to accept this position with- 
 out the privilege of appointing his own clerks, a 
 power which Congress had theretofore reserved 
 to itself. But when Congress convened, the matter 
 of appointing his subordinates was yielded, and the 
 Secretaryship was assumed by Mr. Jay in due 
 course. 
 
 Up to this tim.e the Secretary of Foreign Affairs 
 had served for but little more than a mere clerk of 
 
34 EARTHLYPILGRIMAGE 
 
 Congress, but with the Treaty of Peace accom- 
 plished, and independence won, it in a short time 
 became the first office in importance under the Con- 
 federacy, for through it was conducted all the cor- 
 respondence between the Federal Government and 
 the several States, as well as with foreign nations. 
 In this capacity. Jay served until the adoption of 
 the Federal Constitution and the seating of the first 
 President, when, as before stated, Washington of- 
 fered him his choice of the Federal offices, and he 
 chose the Chief Justiceship. 
 
 The part played by John Jay in bringing about 
 the adoption of the Federal Constitution was as 
 important as any achievement of his career. 
 
 According to Pellew, " the national life was not 
 secured by the Treaty of Peace, which only gave 
 an opportunity for it; and the time between 1783 
 and the adoption of the Constitution of 1788 was 
 * the most critical period of the country's history.' 
 The people were restless under the depression of 
 trade and the depreciated currency; rioting threat- 
 ened in many States, and in Massachusetts became 
 rebellion." 
 
 " I am uneasy and apprehensive," wrote Jay to 
 Washington, " more so than during the war. Then 
 we had a fixed object, and though the means and 
 time of obtaining it were often problematical, yet 
 I did firmly believe that we should ultimately suc- 
 ceed, because I did firmly believe that justice was 
 with us." The liberty so dearly won seem^ed about 
 to be lost forever in the imminent anarchy. " If 
 faction should long bear down law and govern- 
 ment," were his gloomy words to Adams, " tyranny 
 may raise its head, and the more sober part of the 
 people may even think of a king." 
 
OFJOHNJAY 35 
 
 The reasons for the failure of the Confederation 
 were obvious, and Jay laid his finger on those that 
 were fundamental : " To vest legislative, judicial, 
 and executive powers in one and the same body 
 of men, and that, too, in a body daily changing its 
 members, can never be wise. In my opinion, those 
 three great departments of sovereignty should be 
 forever separated, and so distributed as to serve 
 as checks on each other." This principle became 
 the cornerstone of the Federal Constitution. Gov- 
 ernment by committees was another chief cause 
 of executive procrastination and inconsistency. 
 " In my opinion," Jay wrote to M. Grand in Paris, 
 " one superintendent or commissioner of the treas- 
 ury is preferable to any greater number of them. 
 Indeed, I would rather have each department under 
 the direction of one able man than of twenty able 
 ones ; " and m.odern publicists have reached the 
 same conclusion. Finally, coercive pov/er in the 
 Federal government was essential. " A mere gov- 
 ernment of reason and persuasion," was Jay's un- 
 willing testimony, " is little adapted to the actual 
 state of human nature," as recorded in his letters 
 to Thomas Jefferson. 
 
 When a loan was proposed, necessary as money 
 was. Jay was obliged to say : " Congress can make 
 no certain dependence on the States for any specific 
 sums, to be required and paid at any given periods, 
 and consequently is not in a capacity safely to 
 pledge its honor and faith as a borrower." This 
 analysis of the weakness of the government he em- 
 bodied in an Address to the People of the State: 
 " They (the Congress) , may make war, but are not 
 empowered to raise men or money to carry it on. 
 
36 EARTHLY PILGRIMAGE 
 
 They may make peace, but without power to see 
 the terms of it observed. They may form alHances, 
 but without ability to comply with the stipulations 
 on their part. They may enter into treaties of com- 
 merce, but without power to enforce them at home 
 or abroad. They may borrow money, but without 
 having the means of payment. They may partly 
 regulate commerce, but v/ithout authority to enforce 
 their ordinances. They may appoint ministers and 
 other officers of trust, but without power to try or 
 punish them for misdemeanors. They may resolve, 
 but can not execute, either with dispatch or with 
 secrecy. In short, they may consult, and deliberate, 
 and recommend, and make requisitions, and they 
 who please may regard them." This was under the 
 Confederacy. 
 
 Jay's remedy lay in securing a more centralized 
 form of government. " Father was in this sense a 
 Federalist from the beginning," Jay's son William 
 tells us. "A strong Federal union he considered the 
 real aim and spirit of the Revolution. What was 
 new was rather the doctrine of extreme State Rights 
 of the so-called anti-Federalists." "It has, until 
 lately, been a received and uncontradicted opinion," 
 Jay stated in the " Federalist," " that the prosperity 
 of the people of America depended on their con- 
 tinuing firmly united; and the wishes, prayers, and 
 efforts of our best citizens have been constantly 
 directed to that object. But politicians may appear 
 who insist that this opinion is erroneous, and that 
 instead of looking for safety and happiness in union, 
 we ought to seek it in the division of the States 
 into distinct sovereignties. Hov/ever extraordinary 
 this new doctrine may seem, it nevertheless has its 
 advocates." 
 
OF JOHN JAY 37 
 
 Even from France Jay had urged the necessity 
 of centralization : " I am perfectly convinced that 
 no time is to be lost in raising and maintaining a 
 national spirit in America. Power to govern the 
 Confederacy as to all general purpose should be 
 granted and exercised." " I am convinced," he 
 wrote to John Adams, ** that a national government 
 as strong as may be compatible with liberty is 
 necessary to give us national security or respect- 
 ability." " It is my first wish," he wrote to John 
 Lowell, " to see the United States assume and merit 
 the character of one great nation, whose territory 
 is divided into different States merely for more con- 
 venient government and the more easy and prompt 
 administration of justice, just as our severad States 
 are divided into counties and townships for the like 
 purposes." 
 
 When, therefore, in 1787, the question was put, 
 "What is to be done?" and an answer was de- 
 manded. Jay could write to Washington with some 
 definiteness : " To increase the power of Congress 
 would be ineffectual, for the same reasons that 
 always make a large committee a dilatory and in- 
 consistent executive." He declared : " Let Con- 
 gress legislate, let others execute, let others judge. 
 Shall we have a king? Not, in my opinion, while 
 other expedients remain untried. Might we not 
 have a Governor-General, limited in his preroga- 
 tives and duration? Might not Congress be divided 
 into an upper and lower house, the former appointed 
 for life, and the latter annually, and let the Gover- 
 nor-General (to preserve the balance), with the 
 advice of a council formed for that purpose, of the 
 great judicial officers, have a negative on their 
 
38 :^ EARTHLY PILGRIMAGE 
 
 acts? . . . What powers should be granted to the 
 government, so constituted? ... I think the more, 
 the better; the States retaining only so much as 
 may be necessary for domestic purposes, and all 
 their principal officers, civil and military, being 
 commissioned and removable by the national gov- 
 ernment." 
 
 Jay was not a member of the Constitutional 
 Convention, which was elected on recommendation 
 of Congress. His appointment was urged by Alex- 
 ander Hamilton, and v/as carried in the Assembly, 
 but the Senate defeated the project on the ground 
 of his " well-knov/n ultra-Federal ideas." As a re- 
 sult. New York came near not being represented 
 at all, two of the three delegates leaving the con- 
 vention, because, as one of them, Lansing, declared, 
 the Legislature v/ould never have sent them, had 
 it supposed the powers of the Convention extended 
 " to the formation of a national government, to 
 the extinguishment of their independency." 
 
 But Jay was not idle. With the co-operation 
 of Hamilton and Madison, he at once started the 
 " Federalist," which they ran serially for a time 
 in the New York journals. Jay was the author of 
 the second, third, fourth, fifth, and sixth numbers, 
 and " no Constitution," according to Chancellor 
 Kent, "ever received any more masterly and success- 
 ful vindication." Section by section, it took up that 
 instrument, and when the time for the ratification 
 of the Constitution came, the people of New York 
 knew about what it meant. They were made intel- 
 ligent with what the regime under the new govern- 
 ment would be, with Jay's and Madison's and Ham- 
 ilton's central idea always in the foreground. " In- 
 
OFJOHNJAY 39 
 
 dependent and probably discordant republics, one 
 inclining to Britain, another to France, and a third 
 to Spain, and perhaps played off against each other 
 by the three, all would fall an easy prey to foreign 
 invasion and encroachment ; " a sentiment quite 
 similar to Lincoln's favorite doctrine, that " a house 
 divided against itself can not stand ; " or, as John Jay 
 once expressed it, " How soon would dearly bought 
 experience proclaim, that when a nation or a fam- 
 ily divides, it never fails to be against themselves." 
 The ratification of the Constitution was therefore 
 urged for protection against foreign invasion. 
 " Union alone is not sufficient," was Jay's reluc- 
 tant admission. "To union must be added strength." 
 The treaty-making power, as vested in the Senate, 
 was a great hobby of the "Federalist." "With 
 separate States making separate and perhaps in- 
 consistent treaties with foreign nations, will not 
 disunion certainly tend to encourage war? And 
 in cases of disputes between the States, who shall 
 settle terms of peace? What umpire shall decide 
 betv/een them, and who shall compel acquiescence? 
 By a national union unreasonable causes of war are 
 less likely to arise; just causes will seldom be in- 
 curred, and it will secure the safety of the States, 
 by placing them in a situation not to invite hos- 
 tility." 
 
 Jay also took it upon himself to write an anony- 
 mous Address to the People of the State urging rati- 
 fication. According to Pellev/, this " simply writ- 
 ten, logical pamphlet had an almost astonishing 
 effect in converting anti-Federalists to a knowledge 
 and belief that the new Constitution was their only 
 salvation." The author soon betrayed his well- 
 
40 EARTHLY PILGRIMAGE 
 
 known style, however, and Franklin urged him to 
 sign his name to it, " to give additional weight at 
 this awful crisis," but Jay replied, that " if the rea- 
 soning of the pamphlet is sound, it will have its 
 effect on candid and discerning minds, and if weak 
 and inconclusive, my name will not render it other- 
 wise." " Our affairs are daily going from bad to 
 worse," the address ran, " our distresses are ac- 
 cumulating like compound interest. . . . Let it be 
 admitted that this plan, like everything else devised 
 by man, has its imperfections; that it does not 
 please everybody is certain, and there is little rea- 
 son to expect one that will. It is a question of 
 grave moment to you, whether the probability of 
 your being able to obtain a better is such as to ren- 
 der it prudent and advisable to reject this, and run 
 the risque. ... If this plan is rejected, and a new 
 one fails or is long delayed, as it must be, all gov- 
 ernment meantime coming to a stop, every band 
 of union will be severed. Then every State would 
 be a little nation, jealous of its neighbors, and anx- 
 ious to strengthen itself by foreign alliances against 
 its former friends. What in such an event would 
 be your particular case?" 
 
 Finally the convention for ratification was at 
 hand, and after forty days of " an ordeal torture," 
 to quote an eye-witness, "the task was accomplished 
 by a majority of three votes," but not without a 
 number of proposed amendments, nor until a suffi- 
 cient number of other States had ratified to make 
 the new government a reality. The laurels of the 
 victory were borne by Hamilton, but the work of 
 Jay was such that Washington wrote from Mount 
 Vernon : " With peculiar pleasure I now congratu- 
 
OFJOHNJAY 41 
 
 late you on the success of your labors to obtain an 
 unconditional ratification." And John Adams, writ- 
 ing to James Lloyd, said : " I f orebore to mention 
 one of more importance than any of the rest, in- 
 deed of almost as much weight as all the rest. It 
 is Mr. Jay. That gentleman has had as much in- 
 fluence in the preparatory measures, in digesting 
 the Constitution, and obtaining its adoption, as 
 any man in the nation." 
 
 AY closed his duties as Secretary of For- 
 eign Affairs under the Confederation by 
 officially handing over the affairs of the 
 government to George Washington, first 
 President under the Constitution. The duties that 
 were previously his were then assumed by Thomas 
 Jefferson, Washington's choice for Secretary of 
 State. But Jay continued to act as one of Wash- 
 ington's confidential advisors, though in an unoffi- 
 cial capacity, until the Federal Judiciary Act was 
 passed, whereupon he was at once appointed Chief 
 Justice. In this capacity he served until 1795, when 
 he resigned to become Governor of New York. 
 
 The causes brought before him as Chief Jus- 
 tice were, perhaps, not of a character to fully test 
 his professional ability, though Wharton, in his 
 " State Trials," speaks of his " sound, wary, and 
 experienced judgment," and we have it from 
 Story's " Commentaries on the Constitution," that 
 " he was equally distinguished as a revolutionary 
 statesman and a jurist." With one exception, his 
 decisions are preserved only in the brief and dry 
 
42 EARTHLYPILGRIMAGE 
 
 minutes of the clerk. There was no such system of 
 reporting then as now, and as to precedents there 
 were practically none to follow. The Constitution 
 was his authority, but it had never been judicially 
 construed. The Court had to claim a dignity and 
 win a respect inherited by the other courts, for this 
 one v/as an entirely new creation. For every other 
 provision of the Constitution there was some prece- 
 dent either in the theory or practise of the English 
 Constitution, or in the institutions of some colony 
 or province; but the Supreme Court, at least in 
 respect to its original jurisdiction, was an entirely 
 unprecedented result of the requirements of the 
 new system of government, with its complex co- 
 relation of national and State sovereignties. Its 
 position as interpreter and guardian of the Consti- 
 tution, as the conserver of the republic, with equal 
 and exact justice to all, depended upon the per- 
 sonal respectability and wisdom of the members 
 of the bench, for its supreme power was almost that 
 of a monarch, to rule and overrule the Acts of Con- 
 gress, and from it there lay no appeal except to 
 the bar of humanity. Jay doubtless had this in 
 mind when he chose the Chief Justiceship, for he 
 believed in himself, and it was with exquisite care 
 for the rights and privileges and the best interests 
 of all that he managed to determine for all time 
 these three important constitutional items: the 
 dignity of the Court was vindicated from encroach- 
 ment by the Federal executive and Legislative de- 
 partments; its jurisdiction was established over 
 the State governments; and incidentally. Jay an- 
 nounced and determined that foreign policy of the 
 United States which has been accepted and fol- 
 lowed from that day to this. 
 
OF JOHN JAY 43 
 
 Precedents were established on these three 
 points in the following manner: In April, 1790, the 
 Circuit Court for the District of New York, with 
 Jay presiding, agreed unanimously to a protest 
 against an Act of Congress providing that applica- 
 tions for invalid pensions should be passed on by 
 the judges of the Supreme Court in their respective 
 circuits. The protest declared that Congress could 
 not assign to the judiciary " any duties but such as 
 are properly judicial, and to be performed in a ju- 
 dicial manner; that the duties assigned to the Cir- 
 cuit Courts by this act are not of that description, 
 inasmuch as it subjects the decisions of these Courts, 
 made pursuant to those duties, first to the consider- 
 ation and suspension of the Secretary of War, and 
 then to the revision of the Legislature; whereas, 
 by the Constitution, neither the Secretary of War, 
 nor any other executive officer, nor even the Legis- 
 lature, is authorized to sit as a Court of Errors 
 on the judicial acts or opinions of this Court." Ac- 
 cordingly, when the question came before the court 
 on a motion for m.andamus in Hayburn's case, be- 
 fore a decision was given, the obnoxious act was 
 repealed. Practically the Court had declared for 
 the first time an Act of Congress unconstitutional. 
 
 The question of the conflicting sovereignties 
 of the States and the nation was gradually brought 
 to an issue through several suits being brought by 
 individual States against citizens of other States, 
 but the great question of the suability of a State 
 remained unargued till the case of Chisolm, exec- 
 utor, vs. the State of Georgia, came to a hearing. 
 The State refused to appear except to demur to 
 the jurisdiction of the Court. The Chief Justice, 
 
44 EARTHLY PILGRIMAGE 
 
 in his opinion, began by asserting that the States 
 had never possessed an independent sovereignty. 
 Before the Revolution " all the people of the coun- 
 try were subjects to the King of Great Britain. 
 They were in strict sense fellow subjects, and in a 
 variety of respects one people," he said. In the 
 establishment of the Constitution, " we see the peo- 
 ple acting as sovereigns of the whole country; and, 
 in the language of sovereignty, establishing a Con- 
 stitution by which it was their will that the State 
 governments should be bound, and to which the 
 State governm.ent should be made to conform. The 
 sovereignty of a nation is in the people of the na- 
 tion, and the residuary sovereignty of each State is 
 in the people of each State." As one State may sue 
 another State, " suability and State sovereignty 
 are not incompatible." Cases " in which a State 
 shall be a party " are by the Constitution within 
 the jurisdiction of the Supreme Court. " Did it 
 mean here party-plaintiif ? If that only were meant, 
 it would have been easy to find words to express 
 it." The Court accordingly gave judgment against 
 the State by default. The Legislature of Georgia 
 passed acts condemning to death any one who 
 should attempt to serve the process of execution. 
 But judgment was never executed, for the next year 
 an amendment to the Constitution was passed to 
 counteract the effect of the decision. " Jay*s logic, 
 however, remained uncontroverted. It established 
 the Court as the supreme interpreter of the Consti- 
 tution, and his words," according to Pellew, " were 
 long cited as disproving the extreme theory of 
 State Rights," and " to determine the political duty 
 of the citizen, in a crisis like that of 1861." It laid 
 
OFJOHNJAY 45 
 
 down the lines, indeed, that Marshall followed in 
 his famous series of Federal decisions, culminating 
 in McCulloch vs. Maryland : " The government 
 proceeds directly from the people, is ordained and 
 established in the name of the people." "After 
 this clear and authoritative declaration of national 
 supremacy," says Judge Cooley, " the power of a 
 court to summon a State before it, at the suit of 
 an individual, might be taken away by the amend- 
 ment of the Constitution — as was in fact done — 
 without impairing the general symmetry of the Fed- 
 eral structure, or inflicting upon it any irremedi- 
 able injury. The Union could scarcely have had a 
 valuable existence had it been judicially determined 
 that powers of sovereignty were exclusively in the 
 States or in the people of the States severally. . . . 
 The doctrine of an indissoluble Union, though not 
 in terms declared, is nevertheless in its element at 
 least contained in the decision. The qualified sov- 
 ereignty, national and State, the subordination of 
 State to nation, the position of a citizen as at once 
 a necessary component part of the Federal and of 
 the State system, are all exhibited. It must logic- 
 ally follow that a nation, as a sovereignty, is pos- 
 sessed of all those powers of independent action 
 and self-protection, which the successors of Jay sub- 
 sequently demonstrated were by implication con- 
 ferred upon it." 
 
 In the spring of 1793, before Chief Justice Jay 
 and Judges Griffin and Iredell, at Richmond, Pat- 
 rick Henry made his famous argument in the sec- 
 ond trial of Ware's Executors vs. Hylton, on the 
 question whether British creditors could recover 
 against Virginia debtors by virtue of the Treaty 
 
46 EARTHLYPILGRIMAGE 
 
 of Peace, in spite of an Act of Virginia to the con- 
 trary. John Marshall, future Chief Justice, was 
 Jay's colleague. At the final decision Jay was not 
 present, though doubtless he would have concurred 
 in the judgment of the Court in favor of the credit- 
 ors, expanding from a statement of the contrac- 
 tual liability of an individual, to an assertion that 
 the treaty obligations of a nation were paramount 
 to the laws of individual States. Happy conclusion ! 
 
 At the outbreak of the French Revolution, sen- 
 timent was divided as to what position the govern- 
 ment should take on the subject of neutrality. The 
 Federalists, under leadership of Washington and 
 Hamilton, stood for " impartiality," fearing to use 
 the word " neutral " because of its double meaning 
 at the time. The anti-Federalists, or Republicans, 
 under the leadership of Jefferson, were in favor of 
 recognizing the belligerents and giving them aid. 
 
 " The duty and interest of the United States," 
 ran the President's proclamation, " require that they 
 should, with sincerity and good faith, adopt and 
 pursue a conduct friendly and impartial towards 
 the belligerent powers. I have, therefore, thought 
 fit ... to exhort and warn citizens of the United 
 States carefully to avoid all acts and proceedings 
 whatsoever, which may in any manner tend to con- 
 travene such disposition," but Washington's proc- 
 lamation would have been a dead letter, signifying 
 nothing, unless its principles had been sustained 
 by the courts. It fell to Jay to place it upon a 
 legal basis, holding : " International has precedence 
 both of Federal and of municipal law, unless in the 
 exceptional case where Federal law has deliberately 
 departed from it." In his charge to a grand jury 
 
OFJOHNJAY 47 
 
 at Richmond, Virginia, May 22, 1793, the Chief 
 Justice said : " You will recollect that the laws of 
 nations make part of the laws of this, and of every 
 civilized nation. They consist of those rules for 
 regulating the conduct of nations towards each 
 other, which, resulting from right reason, receive 
 their obligations from that principle and from gen- 
 eral assent and practise. To this head also belong 
 those rules or laws which, by agreement, become 
 established between nations. . . . We are now a 
 nation, and it equally becomes us to perform our 
 duties as to assert our rights ; " and he concluded 
 accordingly that " the United States are in a state 
 of neutrality relative to all the powers at war; . . . 
 that, therefore, they who commit, aid, or abet hos- 
 tilities against those powers, or either of them, of- 
 fend against the laws of the United States, and 
 ought to be punished." 
 
 One Gideon Henfield, a citizen of the United 
 States, who had served as officer on a French 
 privateer which brought a British vessel as a prize 
 into Philadelphia, was accordingly indicted, though 
 no jury could be found to convict him. The im- 
 portance of the charge, however, was made mani- 
 fest, declaring as it did, in the face of popular preju- 
 dice, " that violations of neutrality were criminally 
 indictable at common law, and that the proclama- 
 tion of the President was simply declaratory of law 
 already in existence." " International law is part of 
 the common law; by international law neutrality is 
 presumed to exist till a tacit or public declaration 
 of war ; and a neutral, except in so far as stipulated 
 by treaty, must grant aid, neither by arms nor men 
 to a belligerent," is quoted from Jay, in " Levi's 
 
48 EARTHLY PILGRIMAGE 
 
 International Law," and by the Treaty with 
 France, no such stipulation was expressed; where- 
 fore, says Chancellor Kent, in opening his Com- 
 mentaries, " in becoming a nation, the United States 
 became amenable to that system of rules which 
 reason, m.orality, and custom have established 
 among the civilized nations of Europe as their pub- 
 lic law." 
 
 Jay's charge to the Richmond grand jury v/as 
 printed by the government for distribution abroad, 
 in order to explain the position of the Administra- 
 tion, while the Democrats, with conscious or un- 
 conscious misapprehension, demanded loudly, 
 " What law has been offended, and under what 
 was the indictment supported? . . . Were they to 
 be punished for violating a proclamation which had 
 not been published when the offense was commit- 
 ted, if, indeed, it could be termed an offense to 
 engage with France, combating for liberty against 
 the com.bined despots of Europe?" Bow-wow! 
 
 These are about all the judicial utterances of 
 Chief Justice John Jay that are preserved in legal 
 history as of any considerable importance. And, 
 notwithstanding the fact that, unlike any of his 
 successors, he was obliged to advance these opin- 
 ions without the authority of precedent in Amer- 
 ican law, they certainly speak well for his good 
 sense and judicial wisdom. For, let it be remem- 
 bered, that at first sittings of Jay's court there were 
 not only no precedents for himself and his associates 
 to follow, but there were no litigants to apply them 
 to. At the first sitting, they were obliged to adjourn 
 for a day for lack of a quorum. The next day, all 
 present, a little routine work was done; seals for 
 
OF JOHN JAY 49 
 
 the Supreme and Circuit Courts were designed 
 and adopted, and some rules of practise promul- 
 gated. It was further ordered that it should be 
 requisite to the admission of attorneys and coun- 
 sellors to practise in these courts, that they should 
 have been such for three years past in the Supreme 
 Court of the State from which they hailed, and that 
 their private and professional character should ap- 
 pear to be " fair." Upon this basis, a few of the 
 brilliant legal lights of the time stepped forward 
 and were admitted in accordance with the prescribed 
 oath, to demean themselves as officers of the Court 
 agreeably, and according to law, and that they 
 should support the Constitution of the United 
 States. It was also ordered that all process of the 
 United States Courts should issue in the name of 
 the President of the United States. Thereupon the 
 Court adjourned to the first Monday in August fol- 
 lowing, as fixed by law, not a single litigant having 
 appeared at their bar. 
 
 Judges there v/ere, but of business there was 
 none. A clerk had been appointed, but was obliged 
 to report : " No papers on file." Elias Boudinot, 
 Egbert Benson, Fisher Ames, Robert Morris, and 
 Edward Livingston had been admitted to practise; 
 but silence was unbroken by their voices in argu- 
 ment of their client's cases. The table was unbur- 
 dened by the weight of learned briefs, and not a 
 single decision, even in embryo, existed. 
 
 No spectator of that hour, though gifted with 
 eagle eyes of prophecy, could have foreseen that 
 out of that assemblage, unheard and unthought of 
 among the tribunals of earth, a court without a 
 writ, a docket, or a record, of unknown and untried 
 
50 EARTHLYPILGRIMAGE 
 
 powers, and undetermined jurisdiction, there would 
 develop a court which, in a single century, would 
 cause the tables of Congress to groan beneath pe- 
 titions from the American Bar and various State 
 Bar Associations, inviting that body to devise some 
 means for the relief of that overburdened tribunal, 
 whose litigants are now doomed to stand in line, 
 sometimes for the space of two or three years, be- 
 fore they have a chance to be heard ; a court whose 
 decrees are like silver and golden threads inter- 
 woven, of which the ancient world affords no model, 
 and the m.odern world no parallel; binding in the 
 bonds of constitutional jurisprudence, in the im- 
 perishable trinity of love, liberty, and law, the 
 safety and dignity and longevity of our free insti- 
 tutions. 
 
 Republic of Republics! Nation of Nations! 
 Thy existence is secure only as the sentiments of 
 this most blessed trinity remain incarnate in the 
 hearts of thy people ; but " let it be remem^bered," 
 as the first Chief Justice said, in his first charge to 
 a Federal grand jury, " that civil liberty consists not 
 in a right to every man to do just what he pleases ; 
 but it consists in an equal right to all the citizens 
 to have, enjoy, and do, in peace, security, and with- 
 out molestation, whatever the equal and constitu- 
 tional laws of the country admit to be consistent 
 with the public good." 
 
OF JOHN JAY 51 
 
 HILE Jay was still Chief Justice, he was 
 nominated by the Federalists for Gover- 
 nor of New York, but Tammany methods 
 had already taken root in the New York 
 Democracy, and he was defeated by Governor Clin- 
 ton, through the instrumentality of fraudulent re- 
 turns. Then the daily increasing " love frenzy for 
 France," and the repeated violation of the Treaty 
 of Peace, both by Great Britain and the States, 
 nearly precipitated another war with England, for 
 which we were even less prepared than at the out- 
 break of the Revolution. In this crisis Washington 
 decided to send to London a special envoy. Ham- 
 ilton was his choice, but it was thought probable 
 that his appointment would fail of confirmation in 
 the Senate. Hamilton then proposed the name of 
 Jay, and after three days of violent debate in the 
 Senate, his appointment was finally confirm^ed. 
 
 " You can not imagine," wrote Adams to his 
 wife the day of the final vote, " what horrors some 
 persons are in, lest peace should continue. The pros- 
 pect of peace throws them into distress. . . . The 
 opposition to Mr. Jay has been quickened by mo- 
 tives which always influence everything in an elect- 
 ive government. ... If Jay should succeed, it will 
 recommend him to the choice of the people for 
 President, as soon as a vacancy shall happen. This 
 will weaken the hopes of the Southern States for 
 Jefferson. This I believe to be the secret motive 
 of the opposition to him, though other things were 
 alleged as ostensible reasons, such as his monar- 
 chial principles, his indifference about the naviga- 
 tion of the Mississippi, his attachment to England, 
 his aversion to France, none of which are well 
 
52 EARTHLYPILGRIMAGE 
 
 founded, and his holding the office of Chief Jus- 
 tice." 
 
 The learned Dr. Carnahan, who became presi- 
 dent of Princeton College in 1823, in his lectures 
 on moral philosophy, used to quote a conversation 
 between Jay and some friends at this time that was 
 told him by an earwitness, as a striking instance 
 of courageous patriotism : " Before the appointment 
 was made, the subject was spoken of in the pres- 
 ence of Jay, and Jay remarked that such were the 
 prejudices of the American people, that no man 
 could form a treaty with Great Britain, however 
 advantageous it might be to the country, who would 
 not by his agency render himself so unpopular and 
 odious as to blast all hope of political preferment. 
 It was suggested to Mr. Jay that he was the person 
 to whom this odious office was likely to be offered. 
 * Well,' replied Mr. Jay, * if Washington shall think 
 fit to call me to perform this service, I will go and 
 perform it to the best of my abilities, foreseeing as 
 I do the consequences to my personal popularity. 
 The good of my country I believe demands the 
 sacrifice, and I am ready to make it.' " 
 
 And though the treaty concluded between Jay 
 and Grenville now appears, in the light of history, 
 to have been a very fair one for both countries. 
 Jay's predictions on the effect it would have upon 
 his popularity at that time were not far astray, 
 notwithstanding that on his return, after a year's 
 absence, he found that he had, in spite of Tam- 
 many methods, finally been elected Governor of 
 his State, and he thereupon resigned his Chief Jus- 
 ticeship. 
 
 The complaints to be adjusted between the two 
 
OFJOHNJAY S3 
 
 countries were numerous and complicated. Great 
 Britain, on the one hand, had retained the Western 
 military posts in violation of the Treaty of Peace, 
 and had made no compensation for the negro slaves 
 carried away by her officers; on the other hand, 
 several of the States had prevented the collection 
 of debts due English merchants contracted before 
 the Revolution. The boundaries of the United 
 States on the west and northeast were unsettled. 
 Great Britain finally camplained of damage to her 
 commerce by French privateers fitted out in Amer- 
 ican ports; while the United States complained of 
 similar damage through irregular captures by Brit- 
 ish cruisers. And Jay gained for America about 
 all she deserved, even according to Andrew Jack- 
 son, who in later years remarked that " Jay's treaty 
 was a masterpiece of diplomacy, considering the 
 circumstances of this country," while some such 
 thoughts must have been in Lord Sheffield's mind 
 when, at the outbreak of the war of 1812, he re- 
 marked : " We have now a complete opportunity of 
 getting rid of that most impolitic treaty of 1794, 
 when Lord Grenville was so perfectly duped by 
 Jay." The treaty was ratified by the United States 
 Senate, too, with the exception of an article about 
 the West India trade, but its contents were not 
 made public until after Jay's inauguration as Gov- 
 ernor. Here is a sketch of the exciting scenes which 
 followed. 
 
 " Even before its contents were known," says 
 Pellew, " letters signed * Franklin,' appeared abus- 
 ing the treaty; and in Philadelphia an effigy of Jay 
 was placed in the pillory, and finally taken down, 
 guillotined, the clothes fired, and the body blown 
 
54 EARTHLY PILGRIMAGE 
 
 up. It was clear, then, that it was not this partic- 
 ular treaty, but any treaty at all with Great Britain, 
 that excited the wrath of the Republicans. On July 
 4 toasts insulting Jay, or making odious puns on 
 his name, were the fashion. Two days after a copy 
 of the treaty reached Boston, a m.ass meeting was 
 called, though there had been no time to consider 
 it, and condemnatory resolutions were passed. In 
 New York similar action was had. Hamilton tried 
 to make himself heard, but was stopped by a volley 
 of stones, and the treaty and a picture of Jay 
 were burned on the Bowery. One effigy repre- 
 sented Jay holding a pair of scales, with the treaty 
 on one side and a bag of gold on the other, while 
 from his mouth proceeded this label, * Come up to 
 my price, and I will sell you my country.* " 
 
 James Savidge, once president of the Massa- 
 chusetts Historical Society, told his grandson that 
 he remembered seeing these words chalked in large 
 white letters around the inclosure of Mr. Robert 
 Treat Paine: — 
 
 " Damn John Jay ! Damn every one that won't 
 damn John Jay!! Damn every one that won't put 
 lights in his windows and sit up all night damning 
 John Jay!!!" 
 
 Throughout the storm of vituperation Jay him- 
 self remained calm and philosophical. "As to my 
 negotiations and the treaty," he wrote to Judge 
 Gushing, " I left this country well convinced that 
 it would not receive anti-Federal approbation; be- 
 sides, I had read the history of Greece, and was 
 apprized of the politics and proceedings of more 
 recent date. . . . Calumny is seldom durable; it will 
 in time yield to truth." 
 
OF JOHN JAY 
 
 55 
 
 He had done his duty, though by so doing he 
 undoubtedly lost the Presidency of the United 
 States. 
 
 F Jay's Governorship, there is but little to 
 be said that could not be related of most 
 any State Governor. He served the people 
 honorably and well, and when his two 
 terms were finished, the freeholders of the State, 
 regardless of party, passed resolutions commend- 
 ing his public service, and regretting his retire- 
 ment. Here, however, are a few items that are 
 worthy of mentioning. 
 
 Governor Wolcott, of Connecticut, asked Jay 
 to exercise the pardoning power vested in him, in 
 behalf of a young man of good family, who had 
 been convicted in the New York courts of forgery. 
 Governor Jay replied : " Justice . . . can not look 
 with more favorable eye on those who become 
 criminals, in spite of a good education and of good 
 examples, than of those other offenders who from 
 infancy have lived destitute of those advantages." 
 The Governor incurred odium by refusing to 
 order the flags to be hoisted on Governor's Island 
 and the Battery on the anniversary of the Tam- 
 many Society. The reason given was, that " if such 
 a compliment be paid to the Tammany, it ought 
 not to be refused to any of the numerous societies 
 in this city and State." 
 
 Jay, himself, was a slaveholder, in a certain 
 sense. " I have three male and three female 
 slaves," he wrote in a return of his property to the 
 
S6 ISARTHLYPILGRIMAGE 
 
 Albany assessors ; " five of them are with me in this 
 city of New York. I purchase slaves and manu- 
 mit them at proper ages, and when their faithful 
 services shall have a reasonable retribution." Per- 
 haps the Governor's practise in this respect may 
 have suggested the practical manner of emancipa- 
 tion, as enacted by the New York Legislature in 
 1799. 
 
 In the spring of 1800, Aaron Burr appeared in 
 the political arena as a Republican leader, and made 
 such inroads on Federalists that even Hamilton, 
 disregarding the previous record of his party, wrote 
 to Governor Jay urging him to call an extra session 
 of the Legislature to pass measures for districting 
 the State, as a means of thwarting Burr's plans. 
 Philip Schuyler wrote to the same effect, saying 
 that Marshall was of the same opinion. " Your 
 friends will justify it," he continued, " as the only 
 means to save a nation from more disasters, which 
 it must and probably will experience from the mis- 
 rule of a man who has given such strong evidence 
 that he is opposed to the salutary measures of 
 those who have been heretofore at the helm, and 
 who is, in fact, pervaded with the mad French phi- 
 losophy." 
 
 Jay, though as stalwart a Federalist as any, 
 nevertheless did not believe that a good end ever 
 justified bad means; and he contented himself with 
 simply endorsing on Hamilton's letters the signifi- 
 cant words : " Proposing a measure for party pur- 
 pose which I think it would not become me to 
 adopt." 
 
 At the close of Jay's second term, the Federal- 
 ists, in a complimentary address, urged him to con- 
 
OPJOHNJAY 57 
 
 sent to be renominated. " The period is now nearly 
 arrived," was Jay*s answer, " at which for many 
 years I have intended to retire from the cares of 
 public life, and for which I have been for more than 
 two years preparing. Not perceiving, after mature 
 consideration, that my duties require me to post- 
 pone it, I shall retire accordingly." " He was un- 
 moved even by the complimentary letter of Presi- 
 dent Adams, announcing his unsolicited nomination 
 and confirmation, a second time, as Chief Justice 
 of the United States," says Pellew. " I had no per- 
 mission from you," said President Adam.s, " to take 
 this step, but it appeared to me that Providence 
 had thrown in my way an opportunity, not only 
 of marking to the public the spot where, in my opin- ^ 
 ion, the greatest mass of worth remained collected \ 
 in one individual, but of furnishing my country with 
 the best security its inhabitants afforded against its 
 increasing dissolution of morals." " I left the 
 bench," Jay replied, " perfectly convinced that 
 under a system so defective it would not obtain the 
 energy, weight, and dignity which was essential to 
 its affording due support to the national govern- 
 ment ; nor acquire the public confidence and respect 
 which, as the last resort of the justice of the nation, 
 it should possess. Hence I am induced to doubt 
 both the propriety and the expediency of my return- 
 ing to the bench under the present system. . . . 
 Independently of these considerations, the state of 
 my health removes every doubt." 
 
58 EARTHLY PILGRIMAGE 
 
 OHN JAY, in returning from public to pri- 
 vate life, resorted to the peace and quiet of 
 the farm. Henceforth, it is John Jay, the 
 farmer. Some say he was an artistocrat, 
 but what of it? The same has been said of Wash- 
 ington, of Hamilton, of Adams, and of Franklin, 
 and all of them doubtless were, but it was the aris- 
 tocracy of the brain, that springs from the democ- 
 racy of the soul. Jefferson and Aaron Burr may 
 have possessed more genius, but Jay and those 
 classed with him showed more common sense, and 
 that is the thing that counts in the founding of a 
 nation. As one of the immortal ten, mentioned by 
 a great English statesman, who gave " order, sta- 
 bility, and direction to the cause of American in- 
 dependence," the name of John Jay is secure. What 
 France lost when Louis the Great, called by Car- 
 lyle " Louis the Little," banished Huguenots, 
 America gained, and we ought to be especially 
 thankful. Tyranny and intolerance always drive 
 from their homes the best ; those who have the abil- 
 ity to think, the courage to act, a dignity to pre- 
 serve, and a pride that can not be coerced. Such 
 was the heritage of John Jay, and it served well in 
 the cause of American independence, and in the 
 founding of this great republic. 
 
 The fact that he was wealthy for his time is no 
 disgrace. It can hardly be said that he came by 
 it dishonestly, for it was for the most part inherited, 
 and there is no record that in settling the estates 
 of Mr. and Mrs. Peter Jay, he bought any of his 
 brothers off with a mess of pottage. His Bedford 
 estate was quite as extended as that of any farmer 
 in Westchester County, and he entered upon it 
 
OF JOHN JAY 59 
 
 with the same zeal and energy as he had displayed 
 in public life. He erected handsome buildings for 
 the comfort of his family, and to shelter his live 
 stock, and in which to store the products of his 
 soil. It had been his ambition for years to be a suc- 
 cessful farmer — an ambition which he doubtless 
 added to through close acquaintance with George 
 Washington and occasional visits to beautiful 
 Mount Vernon. 
 
 Of course, Jay did but little of the heavy work, 
 he left that to his tenants and servants ; but he was 
 his own overseer, his ov^rn agriculturist, his own 
 horticulturist, his own stock buyer, and his own 
 selling agent, deriving " more satisfaction," as he 
 once wrote to Judge Peters, " from attending to 
 vines and fruit trees than most conquerors do from 
 cultivating their favorite laurels." 
 
 And so, at the conclusion of his Governorship, 
 he retired with his family to Bedford to enjoy the 
 long-deserved society of the wife he loved, and to 
 attend to the education of his children. But no 
 sooner was this cup of happiness to his lips than it 
 was dashed to the ground, for within a year death, 
 that always unwelcome visitor, entered his home, 
 and the spirit of the beautiful and loving Mrs. Sarah 
 Livingston- Jay took its flight. 
 
 Since their marriage they had been pained by 
 repeated separations, made necessary by the hus- 
 band's public duties, but their love for each other 
 was ever great, so great, indeed, as to provoke the 
 gentle raillery of their friends. Even the docile Ben- 
 jamin Franklin used to joke with Mrs. Jay, and tried 
 to arouse her jealousy, as the story runs in one of 
 her letters, written while she was in Paris, and Jay 
 was in England. 
 
60 EARTHLYPILGRIMAGE 
 
 " Dr. Franklin charges me to present you his 
 compliments," she says, " whenever I write to you, 
 but forbids my telling you how much pains he takes 
 to excite my jealousy at your stay. The other 
 evening, at Passy, he produced several pieces of 
 steel; 3ie one he supposed you at Chaillot, which 
 being placed near another piece, which was to repre- 
 sent me, it was attached by that, and presently 
 united; but when drawn off from me, and near an- 
 other piece, which the Doctor called an English 
 lady, behold, the same effect! The company en- 
 joyed it much, and urged me to revenge; but all 
 could not shake my faith in my beloved friend." " It 
 gives me pleasure," was Jay's reply from Bath, " to 
 hear that the Doctor is in such good spirits. Though 
 his magnets love society, they are nevertheless true 
 to the pole, and in that I hope to resemble them." 
 
 And he did — quite so. Never to the day of her 
 death — or his — did Jay come to sink the lover in 
 the husband. " Tell me," he once wrote to her, re- 
 ferring to her eyes that he had not seen for months, 
 " tell me, are they as bright as ever? " and her let- 
 ters to him were what she was always fond of call- 
 ing, " little messengers of love." 
 
 What influence Sarah Livingston, as the wife of 
 John Jay, had upon his private and public life, it 
 is impossible to estimate, but it must have been im- 
 mense. For with a good wife, man is still in the 
 majority, even though the whole world be against 
 him. The love, the confidence, and the hope of one 
 good woman is worth more in the development of 
 the individual than all the favors that kings and 
 princes can bestow. And John Jay was just the 
 kind of a man that deserves such love, that inspires 
 
OF JOHN JAY 61 
 
 such confidence, and strews the pathway of such 
 hopes with flowers. Deception being outside the 
 category of his talents, it is to be believed that he 
 returned all the love and confidence he received. 
 As to his hopes that some day they would be settled 
 together, as they now were for almost the first time 
 in their life, in a home, her sudden death was a most 
 severe shock, and it told plainly on his already shat- 
 tered nerves. 
 
 " The habit of reticence grew upon him," one 
 writer tells us, " until he could not be tricked into 
 giving an opinion even about the weather ; " but his 
 daughters made his home ideal, and with love and 
 gentleness soothed his declining years. 
 
 He lived out his days as a partial recluse, though 
 his home was ever open to old friends, and public 
 men were frequent callers. Besides, he kept up a 
 correspondence with Wilberforce, of England, and 
 Lafayette, of France, which, together with the work 
 of his farm, the problems of church, and the village 
 politics, filled his latter days. 
 
 These furnished healthful exercise for his tire- 
 less brain, which refused to run down ; but the prob- 
 lems of statecraft he left to other heads and hands. 
 
 Time, then, was kindly, and sent Death, its 
 Peace Envoy, as Autumn, the Ambassador of Win- 
 ter, gathers the leaves. 
 
62 BARTHLYPILGRIMAGE 
 
 THIS IS THE END OF "THE EARTHLY 
 PILGRIMAGE OF JOHN JAY," AS RELATED 
 BY JOHN HENRY ZUVER, WHO, HAVING 
 ENJOYED NO PERSONAL ACQUAINTANCE 
 WITH THAT ESTIMABLE GENTLEMAN, 
 PLEADS GUILTY TO HAVING READ — 
 
 Flander's " Lives of the Chief Justices," Car- 
 son's " History of the Supreme Court," William 
 Jay's " Letters of John Jay," Pellew's " Biog- 
 raphy of John Jay," and letters and biographies 
 of Washington, Adams, Franklin, Hamilton, 
 Jefferson, and others too numerous to men- 
 tion — 
 
 AND USED THE KNOWLEDGE THUS AC- 
 QUIRED, WITH ADDITIONS, SUBTRAC- 
 TIONS, MULTIPLICATIONS, AND DIVI- 
 SIONS, MADE BY HIS OWN HEAD AND 
 HAND, TO FIT THE PAGES OF THIS TOME 
 OF "EARTHLY PILGRIMAGES OF THE 
 CHIEF JUSTICES OF THE UNITED STATES 
 SUPREME COURT," PUBLISHED BY THE 
 ASSOCIATED LAWYERS' PUBLISHING 
 COMPANY, AND DONE INTO BOOK BY 
 THE LEADLEAF PRESS AT THEIR SHOP, 
 WHICH IS IN BATTLE CREEK, MICHIGAN, 
 U. S. A. 
 
M 27 V304 
 

 f^ ^0^,,-^ '^^ 
 
 %/^;ro'^ / 
 
 
 .^■% '^^ 
 
 s^ 'V. 
 
 o\' 
 
 
 
 
 
,0^ c°^*^- '' 
 
 
 «'- o'?'^ 
 
 '^;;= ^^^>^^ 
 
 ulr 
 
 ; ^% ^^5m^./^ 
 
 
 
 ^ -^ 
 
 \0 o^ 
 
 H -'^• 
 
 
 -'_> vX^ *■ Si 
 
 .^J^. 
 
 ,, / .^ •^» 
 
 *' .0^ 
 
 vv^^--^, ^¥yc^y . .f -^ 
 
 
 ^.^- ^N 
 
 J O 
 
 ^- 
 
 .-.•^^ 
 
 o 
 
 ^ r/M^^^^ --0 
 
 
 
 o< 
 
 \' ^W"^. ^: 
 
 V *t- 
 
 %-# -*^M^]^A '^■^'' 
 
 .X*- . 
 
LIBRARY OF CONGRESS 
 
 01 1 782 348 9