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The Jay Papers III: The Trials Of Chief Justice Jay
June 1969 | Volume 20, Issue 4
As Chief Justice, Jay distinguished between his personal role and that of the Court. He held strict views of the Court’s functions and denied the right of the other two branches of the government to assign it “any duties but such as are properly judicial and performed in a judicial manner.” He also declined, in his official capacity, to render advisory opinions to the executive branch of the government. But Jay’s concept of what was proper for the Court did not keep him from political activism as an individual. In his private capacity he did not hestitate to counsel President Washington, heads of departments, and even the Senate. But it should be pointed out that from the start the President had given him a blanket invitation to do so. In November of 1790 and again in the following September, Washington solicited Jay’s ideas, hoping that they would “not be confined to matters merely Judicial, but extended to all other topics which have, or may occur to you as fit subjects for general, or private Communications.”
That Jay freely took the President at his word is demonstrated by the record. In 1790, American neutrality was threatened by a potential collision between British and Spanish subjects at Nootka Sound off southwestern British Columbia. Washington asked his heads of departments—and Chief Justice Jay as well—for advice in the event that Britain should attempt to march troops from Canada across American territory. Knowing that the United States was unable to assume the risks of war, Jay was inclined to be dovish; if Britain politely asked for permission, he told the President, it might be better to try to cultivate her good will by extending it. In the event that the redcoats simply marched into American territory without leave, however, Jay was prepared to don the wings of a hawk. “Such a Measure would then be so … flagrant and wanton a Violation of the Rights of Sovereignty,” he wrote, “… that their March (if after Prohibition persisted in) should I think be opposed and prevented at every Risque and Hazard.” Fortunately for American neutrality, Spain, lacking robust support from revolutionary France, conceded most of the British demands, and war in North America was avoided.
In 1792, when the first rumblings of discontent against the whiskey tax had come out of western Pennsylvania, Secretary of the Treasury Alexander Hamilton prodded Jay to join him in getting the President to outlaw the demonstrations. Jay answered as follows:
N York 8 Septr. 1792 Dear Sir I have conferred with Mr. King [Federalist Senator Rufus King of New York] on the Subject of your Letter of the grd Inst. We concur in opinion that neither a Proclamation nor a particular charge by the court to the G[rand] Jury, would be adviseable at present. To us it appears more prudent that this Business be opened by the Presidts. Speech at the ensuing Session of congress—their address will manifest the sense of the House, and both together operate more effectually than a Proclamation.
No strong Declarations slid, be made unless there be ability and Disposition to follow them with strong measures—admitting both these Requisites, it is questionable whether such operations at this moment would not furnish the antis with materials for decieving the uninformed part of the Community, and in some measure render the operations of administration odious. Let all the Branches of Govt. move together, and let the chiefs be committed publickly on one or the other Side of the Question. I percieve Symptoms of the crisis you mention—if managed with Prudence and Firmness it will weaken its authors. If matters can pass on Sub Silentio untill the meeting of Congress, I think all will be well. The public will become informed, and the Sense of the Nation become manifest. Opposition to that Sense will be clogged with apprehensions, and strong measures if necessary will be approved and be supported.
If in the mean Time such outrages shd. be committed as to force the attention of Govt. to its Dignity, nothing will remain but to obey that necessity in a way, that will leave nothing to Hazard. Success on such occasions shd. be certain—whether this shd. be done under the President’s personal Direction must I think depend on circumstances at the Time, or in other words on the Degree of Importance which those Circumstances combined may evince.
Thus far Jay had remained behind the arras, but events soon thrust him to the forefront and into a more explosive role. What triggered the Chief Justice’s public intervention in nonjudicial affairs was France’s declaration of war against Great Britain in February, 1793, which converted the French Revolution into a war on the high seas and a land war of continental dimensions. When the news reached Philadelphia in April, Washington hastened thither from Mount Vernon to discuss it with his Cabinet. Jay, at Hamilton’s suggestion, drafted a neutrality proclamation for possible use by the President. Excerpts follow.
[April 11, 1793]
Whereas every Nation has a right to change and modify their constitution and Government, in such Manner as they may think most conducive to their welfare and Happiness. And whereas they who actually administer the Government of any Nation, are by foreign Nations to be regarded as its lawful Rulers , so long as they continue to be recognized and obeyed as such , by the great Body of their people.