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The Jay Papers III: The Trials Of Chief Justice Jay
June 1969 | Volume 20, Issue 4
While Jay’s legalistic quibbling inhibited his operations as a diplomat, his legal background was reflected in the articles of the Jay Treaty providing for mixed commissions to settle both the debt issue and the northeast boundary. The latter commission established a precedent for boundary disputes to which the United States was a party. In turning over to a mixed commission the settlement of the debts due British creditors, the Chief Justice was castigated for damaging the prestige and authority of his own court by depriving it of jurisdiction over such crucial matters, which would then be turned over to an extrajudicial body conceivably controlled by a foreign power. It must be remembered, however, that not long before this the Chief Justice, with the concurrence of a majority of the associate justices, had upheld the right of an individual to sue a state without the state’s consent ( Chisholm v. Georgia ). A wave of states’ rights indignation thereupon swept the country, and eventually the Eleventh Amendment was adopted to bar all such actions. Hence it can be argued that, in keeping so emotionally charged a political issue as the debts out of the Court, Jay demonstrated both prudence and common sense. He made certain that the running sore of the debt issue would not weaken the Court’s authority as the issue of state sovereignty had done. If Jay in this instance used his treaty to dilute federal jurisdiction, he more than made amends by his strong decisions as Chief Justice upholding the sovereignty of the United States over violations of international law.
Jay’s defense of his treaty is contained in a private letter he sent to President Washington at the close of his mission.
London, 6th March 1795 Dear Sir: … After considering all that I have heard and seen on the subject, it is my opinion that the common and popular (not Official) language and conduct of America relative to Great Britain, manifested such a disposition, as to create serious apprehensions in this country, that we should join with the French in the war. … Various circumstances, however, induce me to believe, that the [British] Cabinet ultimately determined to give Conciliation a fair experiment, by doing us substantial justice, and by consenting to such Arrangements favorable to us, as the national interests, and habitual prejudices would admit. To relax the navigation Act, was to alarm these prejudices; and therefore was a measure which required caution and circumspection, especially in the first instance. To break the Ice, was the difficulty; to enlarge the Aperture afterwards would be more easy; and it will probably be done, if we should be reasonably temperate and prudent. To admit us into their East and West India dominion and into all their continental American territories, under any modifications, were decided deviations from their former policy, and tended to shock ancient prejudices. Yet these things have been done. None but a strong Administration would have ventured it. These are Offerings to conciliation, and conclude [ i.e. , prove] though not confessedly, satisfaction to our claims of justice.
… Whatever the American opinion of [the treaty] may prove to be; the Administration here think it very friendly to us; and that it could not in the present moment have been made more so, without exciting great discontent and uneasiness in this country.
The present situation of Great Britain may to us and others appear to be perilous, but the Ministry seem to have no such fears. They have been uniformly bent on prosecuting the war with vigour, and since my arrival I have observed no change in that resolution … I will mention a striking anecdote.
You have doubtless heard, that the merchants concerned in the American Trade gave me a dinner. The principal Cabinet Ministers were present, and about 200 merchants. Many Toasts were given. When the “President of the United States” was given, it was proposed to be with three Cheers, but they were prolonged (as if by preconcert, but evidently not so) to six. Several other toasts passed with great acclamation, particularly “The wooden walls of Old England.” Almost every Toast referable to America, and manifesting a desire of conciliation and cordiality, met with General and strong marks of Approbation. Towards the conclusion of the feast, I was asked for a Toast. I gave a neutral one, vizt. “a safe and honorable peace to all the belligerent powers.” You cannot conceive how coldly it was received, and though civility induced them to give it three Cheers, yet they were so faint and single, as most decidedly to show that peace was not the thing they wished; these were Merchants . …
Except an inconsiderable number, the men of Rank and Property, and all whom they can influence, thoroughout the Kingdom, think the war is indispensible to their safety. …
I have great reason to believe that the King [George III] the Cabinet and Nation, were never more unanimous in any system than in that of conciliation with us … If it should not succeed; they will naturally pass like a Pendulum to the other extreme.