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The Trials of Chief Justice Jay
President Washington appointed John Jay to be Chief Justice because the eloquent partisan of the Constitution shared a desire to strengthen the machinery of the central government and to bring about conformity to treaty obligations among the states.
June 1969 | Volume 20, Issue 4
… When two or more [nations] are at war about objects in which other nations are not interested, the latter are not to interfere except as mediators and friends to peace; but, on the contrary, ought to observe a strict impartiality towards both. …
If in this district you should find any [American citizens] engaged in fitting out privateers or enlisting men to serve against either of the belligerent powers, and in other respects violating the laws of neutrality, you will present them. …
But the belligerent powers owe duties to us as well as we to them. They may violate our neutrality and commit offenses. If you find any foreigners in this district committing seditious practices, endeavouring to seduce our citizens into acts of hostility, or attempting to withdraw them from the allegiance of the United States, present them. Such men are guilty of high misdemeanour. …
The nation must either move together or lose its force. Until war is constitutionally declared, the nation and all its members must observe and preserve peace, and do the duties incident to a state of peace. …
The Jay court handed down decisions that outraged the Francophile faction in America. Over and above this, however, the Chief Justice felt it incumbent on himself personally to try to reverse the current of public opinion about Citizen Genêt and his unneutral behavior. This was to lead Jay into trouble.
Even a confirmed Francophile like Thomas Jefferson soon found that Genêt’s indiscretions were proving a political liability. Independent of the President and the Secretary of State, Genêt proceeded to refit an English brig, the Little Sarah , which a French frigate had captured and brought into the port of Philadelphia. It was renamed La Petite Dêmocrate , and Genêt, in defiance of Jefferson, arranged for the brig to slip out of port to do battle with the British. In an effort to restrain Genêt from thus compromising America’s neutrality, the governor of Pennsylvania, Thomas Mifflin, had dispatched his secretary of state, Alexander J. Dallas, to intercede with the French minister. According to Mifflin’s reputed account as related to him by Dallas, the Frenchman “flew into a great passion,” expressed his contempt for Washington, and threatened, if necessary, to “appeal from the President to the People.”
It is at this point that John Jay comes into the story. Dallas reported the interview to Governor Mifflin, who in turn told the tale to Hamilton and Secretary of War Henry Knox. Before they left Philadelphia for New York, Jay and Senator King heard the story from Hamilton, a statesman hardly renowned for his discretion. Thus, fourth-hand, the story made the rounds of New York City, at the very moment Genêt arrived on a propaganda visit. A huge mass meeting in front of Trinity Church sponsored by the Federalists adopted resolutions praising President Washington for his Neutrality Proclamation. Then the Federalists brought up their big guns.
Appearing under the names of Jay and King in the New York Diary or London’s Register , the following “card” publicized Genêt’s alleged threat.
New York, August 12, 1793
Messrs. Printers: Certain late publications render it proper for us to authorize you to inform the public, that a report having reached this City from Philadelphia that Mr. Genêt, the French Minister, said that he would appeal to the people from certain decisions of the President; we were asked on our return to that place, whether he had made such a declaration; we answered that he had—and we also mentioned it to others, authorising them to say that we had so informed them.
JOHN JAY RUFUS KING
Widely reprinted in the Federalist press, Genêt’s alleged remarks unleashed a storm of denunciations of the French minister. Countering, the Francophiles cast doubt on the veracity of the account and denounced Jay as the “prince of the Jesuits.” Genêt himself immediately appealed to President Washington for a testimonial that the Frenchman had “never intimated to you an intention of appealing to the people”; replying for the President, Jefferson informed Genêt that Washington declined “interfering in the case.”
Having irreparably damaged his standing even with his own partisans in America, poor Genêt now sought redress from the very government he had treated so shabbily. Turning to Secretary of State Jefferson and Attorney General Randolph, he had the effrontery to demand that Chief Justice Jay and Senator King, the authors of the “libel,” be “prosecuted at the Federal Court.”
Faced with the threat of a libel suit, Jay and King felt obliged to call upon Hamilton and Knox to substantiate their story. Hamilton, who had intimated that if possible the source of the story should not be disclosed, now had no alternative but to corroborate their account, which he and Knox did in a statement in the New York Daily Advertiser: