June 1969 | Volume 20, Issue 4
Given the fact that judges are human beings who in many cases have risen to the bench from the pragmatic world of politics, this aura is of course a fantasy. Still, it always comes as a shock when controversy surrounds a member of the Court, as it did last year when President Johnson’s nomination of his friend and appointee Justice Abe Portas to be Chief Justice ran into so much opposition in the Senate Judiciary Committee that Mr. Portas asked the President to withdraw his name.
The event was by no means without precedent. A century ago Ulysses S. Grant had not one but two candidates for Chief Justice turned down: first Attorney General George H. Williams, because it was felt he lacked the necessary legal expertise, and then Caleb Gushing, because he had allegedly been proslavery during the Civil War. The extended hearings on Justice Portas raised two quite different and more sensitive questions: May a justice of the Supreme Court rightfully engage in extrajudicial activities while he is on the bench? and, May those activities include giving confidential political advice to the President who nominated him?
For certain kinds of extrajudicial service, even controversial service, the Court has known ample precedent. One thinks immediately of the most recent example, Chief Justice Earl Warren’s presiding over President Johnson’s commission to ascertain the facts about the assassination of President Kennedy; the wrangling over what quickly became known as “the Warren Report” still has not died. And many will recall the service of Justice Robert H. Jackson as a prosecutor at Nuremberg; the Chief Justice at that time, Harlan Fiske Stone, publicly questioned the propriety of such activity on Jackson’s part and complained to President Truman that Jackson’s prolonged absence placed an extra burden on the other justices. Controversial or not, such public assignments to members of the court have usually been carried out with considerable distinction.
Less well known are the activities of various justices as confidential advisers to Presidents. But of this, too, as Mr. Portas pointed out to the Judiciary Committee, history furnishes many examples; some of them are described in the pictures and captions on the opposite page. It seems only natural for a President to continue to seek counsel of a man he has elevated to the high court when long and intimate association with such a man appears to make his counsel worth seeking.
Indeed, the issues dramatized by the Portas case are as old as the Supreme Court itself, for the very first Chief Justice, John Jay, established a precedent by engaging in both public and private extrajudicial activities that got him into considerable difficulties and caused his friend and patron President Washington no little embarrassment. This fascinating historical parallel is documented in the article beginning on the next page, the last of three devoted to Jay’s career and based on his unpublished papers at Columbia University. —The Editors
President Washington named John Jay to be the first head of the Simreme Court because the New Yorker had been one of the most eloquent and persuasive partisans of the Constitution and its ratification. During the years of the Confederation, strong bonds of mutual esteem and affection had been forged between the two men, who shared an identity of views on the need to build a national character, to strengthen the machinery of the central government, and to bring about conformity to treaty obligations.
Jay was only forty-three when he became Chief Justice, and his legal and judicial experience had been relatively limited. He had not practiced law since 1774, though he had served a very brief term thereafter as chief justice of New York during the Revolutionary years. When Washington notified him of his appointment, Jay was in fact still holding over as Secretary of State, now ad interim for Thomas Jefferson, who did not assume the post until March of 1790. For almost six months Jay wore two very different hats.
It has been the fashion among historians of the Supreme Court to minimize the significance of the Jay Court because of its comparative inactivity, and to treat the Chief Justice as something of a cipher. The facts do not support such an appraisal. On the bench Jay proved himself to be both a creative statesman and an activist Chief Justice whose concepts of the broad purpose and powers of the new nation under the Constitution were to be upheld and spelled out with boldness and vigor by John Marshall. What other Chief Justice, one might ask, not only stumped the country on foreign-policy issues, but went abroad while yet in office to negotiate a highly controversial treaty with a major power? What other Chief Justice ran for governor of his home state not once but twice, not resigning from the Court until he was notified that he had won the second election? What other Chief Justice enjoyed the notoriety of being threatened with prosecution for criminal libel on account of his extrajudicial activities?
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.
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.
… 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:
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  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.
If there was any breach between the President and the Chief Justice as a result of die notoriety that Jay had gained in the Genêt affair, it was soon healed, for in April, 1794, Washington named Jay to go to Great Britain to negotiate a treaty settling outstanding grievances between the two nations, grievances intensified of late by British interference with neutral shipping and by impressment of American seamen, actions spurred by her involvement in the European war against France. The nomination had rough sledding in the Senate. For three days hostile senators debated the propriety of a Chief Justice doubling in a diplomatic post and objected to Jay’s well-known British predilections, but at last Jay was confirmed, eighteen to eight.
So much has been written about the shortcomings of Jay’s Treaty that little more need be said. On the positive side, the British agreed to withdraw from the forts in the American Northwest which they had continued to occupy in violation of the Treaty of 1783. The new treaty also provided for the referral to joint commissions of the issues of the pre-Revolutionary debts, the disputed northeast boundary between the United States and Canada, and the matter of compensation for illegal maritime seizures. The treaty placed British trade with the United States on a most-favored-nation basis, admitted U.S. vessels to British East Indian ports on a nondiscriminatory basis, and opened the West Indies trade to U.S. vessels not exceeding seventy tons’ burden, provided they did not take as cargo cotton, sugar, or molasses. But the treaty contained no reference to the hot issue of impressment, to control of the Indians, or to settlement of American claims for slaves removed by the departing British as the Revolution ended or of British counterclaims for the return of Loyalist property seized in America. Its meager concessions in the West Indies drew the ire of all sections of the country.
It is now known that the American negotiator was, without his knowledge, deprived of his ace-in-the-hole when Hamilton, in conversation with George Hammond, the British minister, gratuitously disclosed that the United States had no intention of going to war to enforce its demands on Great Britain. What is less evident, perhaps, is that Jay’s reluctance to take a tough stand in the negotiations stemmed in no small part from his legal and juristic training. Jay was a stickler for the letter of the law, and he believed that although the failure of the British to evacuate the frontier posts was a violation of the Treaty of Paris, it was not unprovoked. Americans had brought it on themselves by refusing to return Loyalist property confiscated during the war, and by not paying the prewar debts they owed to British merchants. In a hitherto unpublished memorandum which he drafted in London, he carefully set forth the sequence of treaty violations as he saw them.
August 5, 1794 The Provisional Articles were signed at Paris November goth 1782. They were to constitute the treaty of Peace to be concluded between Great Britain and the United States, but that Treaty was not to be concluded till terms of peace with France were settled. Even these Articles were not ratified in America till the 15th April 1783, several months before that Treaty was signed, and when even the Provisional Articles were not mutually ratified.
The Treaty of Peace was in fact not signed till September 3rd, 1783. It was not ratified in America till the 14th of January 1784; and that Ratification was not exchanged in Europe till the end of May 1784, nor received in London till the 28th of that Month.
Till that period, no order for evacuating the Forts could with propriety be sent from hence. … But in the intermediate time measures had been taken in America which are incontestible infractions of the Treaty; measures not merely resulting from the continuance of a Status Quo, agreeably to reason and to the practice of all Nations, during the suspension of hostilities, and till the final exchange of ratifications; but new Legislative Acts, adopted after the knowledge of the terms agreed upon, avowedly intended to defeat the execution of those terms when the treaty should be concluded and ratified, and in their operation necessarily producing that effect.
On the bare statement of these dates, there can be no doubt from which side the first violation of the Treaty proceeded, if that discussion were now necessary or useful.
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.
This system rests principally on their Confidence in the Uprightness Independence and wisdom of your Conduct. No other man whatever enjoys so completely the Esteem and Confidence of this Nation as you do; nor except the King is any one so popular. The idea which every where prevails is, that the Quarrel between Britain and America was a family Quarrel, and that it is time it should be made up; for my part I am making it up, and for cherishing this disposition on their part; by Justice, Benevolence and Good manners on ours. To cast ourselves into the Arms of this, or of any other nation, would be degrading, injurious and puerile; nor in my Opinion ought we to have any political Connection with any foreign power. …
The Tranquillity of the present session of Congress is a pleasing Circumstance; but I suspect it has proceeded more from their having had nothing to differ about, than from a spirit of forbearance or a desire of unanimity. The result of my negociations will doubtless produce fresh difficulties; and give occasion to much declamation, for I have no idea that the Treaty will meet with antifoederal approbation. Besides, men are more apt to think of what they wish to have, than of what is in their power to obtain. …
Jay returned to New York on May 28, 1795, to be saluted by a cannonade from the Battery and the ringing of church bells, and to be greeted by a welcoming delegation of citizens who notified him that he had recently been a candidate for the governorship of New York state and that on the basis of early returns it seemed as though he had been elected. Three years before, Jay had run for the governorship, only to be counted out by George Clinton’s Antifederalist machine. While he did not actively canvass votes at that time, neither did he seem to feel that he should resign from the Court in order to stand for elective office. If Jay established a precedent for judicial politicking, it has not survived into our modern era: Associate Justice Charles Evans Hughes resigned from the high court in 1916 when he ran for the Presidency, and similar action would be expected of any high judicial officer today.
His election to the governorship in 1795 could not have been a complete surprise to Jay. As early as December, 1793, Federalist political managers had held conversations with the Chief Justice about running for governor again. He expressed his preference for the Supreme Court, but, as his friend Egbert Benson reported to Rufus King, “he would not desert them.” King and Hamilton had expected Jay to return from England before the elections of April, 1795. When he did not return, various Federalist caucuses proceeded to nominate him in absentia, and the Republican factions closed ranks behind Abraham Yates, who happened to be the chief justice of the New York supreme court. The battle of chief justices was fought in Jay’s absence, with Jay, considered the man who would bring peace back from England, narrowly victorious by a vote of 13,481 to 11,892. His election confirmed, Jay sent a letter of resignation to the President on June 29 and two days later was sworn in as governor.
On that very day the newspapers carried the first summaries of the treaty he had concluded in London. The “declamation” Jay had foreseen now began—with a vengeance. A stunned nation denounced the treaty for making so few concessions to the United States.