The Jay Papers III: The Trials Of Chief Justice Jay

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Philadelphia, Nov. 29, 1793. We, the subscribers, certify that we did severally communicate to the above mentioned John Jay and Rufus King, the particulars contained in the foregoing statement. That such of them as are therein mentioned to have been reported to Governor Mifflin by Mr. Dallas were communicated by the Governor to each of us as having been received by him from Mr. Dallas. That such of them as respect Mr. Jefferson, including the information to him from Mr. Dallas of Mr. Genêt’s having said “that he would appeal from the President to the People,” were communicated to us by Mr. Jefferson.

ALEXANDER HAMILTON H. KNOX

Dallas, from whom Jay and King had also expected some support, now equivocated, finally admitting—in a signed newspaper article—that his memory of his conversation with Genêt was hazy, and that if pushed to recall it exactly, he would have to say that the expression that “he would appeal from the President to the People” was not a direct quote from Genêt but rather Dallas’ own paraphrase of the conversation.

Genet’s audacious move raised all sorts of embarrassing issues. The prosecution of the Chief Justice and a leading Federalist senator for criticizing the conduct of a foreign diplomat was without precedent, and it left President Washington in an awkward position. Any action he took might seriously jeopardize relations among the three separate branches of the government and inflict dangerous wounds on the doctrine of separation of powers. The projected suit was also calculated to bring the Supreme Court into contempt.

Still, Washington felt he had to take official cognizance of Genêt’s request. Through Jefferson he called on Randolph to take prompt action “as it concerns a public character [Genêt] particularly entitled to the protection of the laws.” Jefferson, now sick and tired of Genêt, recognized that prosecuting so high a figure in the government as the Chief Justice could easily boomerang. Yet his advice to Randolph was ambiguous. The President, he advised the Attorney General, felt that Genêt’s charges had to be dealt with; on the other hand, he felt that “our citizens ought not to be vexed with groundless prosecutions.” Randolph refused to bring Genêt’s suit; the Frenchman could, said the Attorney General, hire his own lawyer to handle it. Genêt did so, engaging Edward Livingston, a political foe of Jay’s.

Meanwhile, President Washington was terribly embarrassed by the indiscreet conduct of the Chief Justice of the United States, and presently he called Jay on the carpet. Our only record of their conversations is contained in a memorandum in Rufus King’s handwriting.

 

February, 1794 … In December [1793] Mr. Jay and I addressed a letter to the President … explanatory of our conduct, complaining of the letters which by his direction had been written by the Attorney General and the Secretary of State relative to this affair, and [asking the President] to direct the Secretary of State to furnish us with a certified copy of his Report to the President, of the interview between Mr. Dallas and him, and that he would permit us to publish the same in order to place before the public the evidence relative to Mr. Genêt’s Declaration. …

The President sent for Mr. Jay—they conversed freely upon the subject—the President justified his own conduct and expressed his opinion that nothing incorrect or unfriendly had been intended by Jefferson or Randolph and complained of the severity of our Letter—spoke of the difficulty of his situation and of the necessity of his conducting with great caution. Mr. Jay explained our situation, the purity of our views, the anxiety for the public peace wh. had stimulated our conduct, and the wounds inflicted upon us in consequence of the Part we had acted; that under such circumstances we were entitled to the full Force and disclosure of those Truths which would justify us in the presence of our fellow citizens. …

Much conversation passed at this interview; the President expressed his friendship for Mr. Jay, and his respect and regards for me, etc., etc. …

This arrangement was agreed on—Mr. Jay sent the Draft [of the Jay-King letter] to me immediately on his return to New York and I delivered it to the President, wh. together with the [President’s copy of the] Letter, and a paper in the President’s handwriting justifying his conduct and which he gave to me to read, he, in my presence, put into the fire. …

As in all good fairy tales, the villain was given his comeuppance and the righteous were rewarded. Amidst preparations by the Democratic-Republicans of New York City for a dinner in Genêt’s honor came word of his recall. His successor, Jean Antoine Joseph Fauchet, forced Genêt to drop his libel suit against Jay and King, but a forbearing American government allowed the ex-minister to remain here, realizing that had he been returned to France, he would most assuredly have been liquidated. Genêt settled down into relative rustic seclusion, married a daughter of Governor George Clinton of New York, and became an American citizen. He lived in peaceful retirement in upstate New York until his death in 1834.