The Jay Papers III: The Trials Of Chief Justice Jay

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And whereas Monarchy has been in fact abolished in France, and a Government, recognized and obeyed by the great Body of the nation , does there actually exist and operate; it is proper as well as necessary that the political Intercourse between that Nation and this should be conducted thro the Medium of that Government where it shall so continue to be recognized and obeyed.

Altho the Misfortunes (to whatever Cause they may be imputed) which the late King of France and others have suffered in the Course of that Revolution or which that nation may yet experience are to be regretted by the Friends of Humanity, and particularly by the People of America, to whom both that king and that Nation have done essential Services; yet it is no less the Duty than the Interest of the United States, strictly to observe that Conduct towards all Nations, which the Laws of nations prescribe.

And whereas war actually exists between France on the one side and Austria, Prussia, Great Britain and the United Netherlands, on the other; and to avoid being involved in that Calamity, it is necessary that the United States should by a Conduct perfectly inoffensive cultivate and preserve the Peace they now enjoy; with a firm Determination nevertheless, always to prefer War to Injustice and Disgrace.

I do therefore most earnestly advise and require the Citizens of the United States to be circumspect in their Conduct towards all nations and particularly towards those now at war … I do also recommend to my fellow Citizens in general, that [they abstain from] such public Discussions of certain questions foreign to us, as must tend not only to cause Divisions and Parties among ourselves, and thereby impair that union on which our Strength depends, but also give unnecessary Cause of offence, and Irritation to foreign powers. And I cannot forbear expressing a wish, that our Printers [i.e., newspaper publishers] may study to be impartial in the Representation of Facts, and observe much Prudence relative to such Strictures and Animadversions as may render the Dispositions of foreign Governments and Rulers, unfriendly to the People of the United States. …

I do also enjoin all Magistrates and others in authority to be watchful and diligent in preventing aggressions against foreign nations and their people; and to cause all offenders to be prosecuted and punished in an Exemplary manner.

A crisper proclamation, drafted by Attorney General Edmund Randolph, was eventually issued by President Washington, but Jay’s version is interesting for two reasons: in the first place, it raised an issue then novel to international law—using as a test for the recognition of new, revolutionary governments the extent to which they rested upon a popular mandate. Jay’s concept anticipated Woodrow Wilson by 125 years. In the second place, Jay’s stated intention to curb public debate foreshadowed some of the High Federalist restraints that were to be embodied a few years later in the Alien and Sedition Acts.

Jay was to experience difficulty walking the fine, straight line he had drawn between the freedom to express his personal opinions in the high councils of government and the restrictions which his position as Chief Justice placed upon him. A severe test came with the Genêt affair, which seriously jeopardized the neutral stance of the Washington administration.

Enthusiasm of American Jacobins for intervening on France’s side in the expanding European war had reached a high pitch and soon became a fever when, just at the time Jay was drafting the neutrality proclamation, there arrived at Charleston, South Carolina, France’s newly appointed youngish minister to the United States, Edmond Charles Genêt. The instant he landed, Genêt began to whip up pro-French propaganda and to mobilize public sentiment against the neutral course that was being charted by President Washington. More important, he insisted both in public and in private discussions with American political leaders that the United States fulfill its obligations under the Franco-American treaties of 1778 by providing bases from which French privateers might operate against the British.

 
 

Almost singlehandedly, Chief Justice Jay sought to stem the rising pro-French tide. In the first place, he exploited the opportunities provided by the Judiciary Act of 1789, which required the judges of the Supreme Court to sit in the United States circuit courts.∗ Jay and his associates were to find this extra burden an extremely tedious task and were loud in their protests, but, though temporarily relieved of circuit-riding duties by an act passed in 1801, the Supreme Court justices were back on circuit as a result of a repeal of that act by the Jeffersonians the following year. It was not until 1891, when a long-delayed judicial reform established a new circuit system, that Supreme Court judges were relieved by law of circuit duties.— R.B.M.

On May 22, in a charge to the grand jury of the circuit court of Richmond, Virginia, he strongly condemned American debtors who sought to avoid paying debts due British creditors—debts that had been guaranteed by the Treaty of 1783, which Jay himself had drafted. In addition, he charged the grand jury to observe the laws of neutrality.