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Jay, John

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Birth: December 12, 1745, New York City.

Education: Privately tutored; attended boarding school; graduated from King's College (later Columbia University), 1764; clerked in law office of Benjamin Kissam; admitted to the bar in 1768.

Official Positions: Secretary, Royal Boundary Commission, 1773; member, New York Committee of 51, 1774; delegate, Continental Congress, 1774, 1775, 1777, president, 1778–1779; delegate, New York Provincial Congress, 1776–1777; chief justice, New York Superior Court, 1777–1778; minister to Spain, 1779; secretary of foreign affairs, 1784–1789; envoy to Great Britain, 1794–1795; governor, New York, 1795–1801.

Supreme Court Service: Nominated chief justice by President George Washington, September 24, 1789; confirmed by the Senate, September 26, 1789, by a voice vote; took judicial oath October 9, 1789; resigned June 29, 1795; replaced by Oliver Ellsworth, nominated by President Washington.

Death: May 17, 1829, Bedford, New York.


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John Jay
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John Jay

The war for American independence catapulted dozens of young, barely seasoned politicians and lawyers into positions of extraordinary power and influence. Among them was the reserved, eminently capable John Jay of New York—the first chief justice of the United States.

Early experiences powerfully shaped Jay's conception of the “good” political society and the role of judicial statesmen in republics. The eldest son of the wealthy Peter and Mary Van Cortlandt Jay, John followed the path dictated by his parents' social class and connections within the New York mercantile community. He was educated privately until 1760, when he matriculated at King's College (now Columbia University) to deepen his mastery of the classics, natural science, public law, and philosophy (including political economy).

Jay decided to take up the study of law only in his final year at university, partly, as was customary among gentlemen, in preparation for public service. He graduated with honors and began an apprenticeship in the law office of eminent attorney Benjamin Kissam, where, as assistant to the chief clerk, Jay chafed under piles of tedious copy work. When city lawyers struck in 1765 in support of colonial protests of the Stamp Act, Jay happily fled to the family estate in Rye, New York, where he immersed himself in the classics, philosophy, and political theory.

In 1766 Jay returned to Kissam's firm as chief clerk, and two years later gained admission to the New York bar and opened law offices in the city with Robert Livingston Jr., an old schoolmate. There, he threw himself into work, the whirl of high society, debating clubs, and conservative state political groups. In 1769 Jay accepted his first public office as a commissioner to settle a boundary dispute between New York and New Jersey.

Jay's generation was soon to confront adversity. By 1774 the streets and wharves of American port cities rumbled with rebellious talk about the Intolerable Acts, King George III's abrogation of his coronation oath, and ministerial violations of the ancient English constitution. At first, Jay resisted indepen-dence: he helped formulate the conciliatory olive branch petition of 1774 and seriously considered moving to London as an alternative to treason. But by 1775 the transatlantic volley of exchanges about the status of colonies and the merits of continued membership in the British union proved to be powerful attractions to an up-and-coming expert in political economy and foreign affairs. Jay feared, too, that the Crown no longer could protect colonial property and trade—in Jay's view the “great and weighty reasons” underlying genuinely useful alliances and political unions.

Jay therefore remained in New York to serve the cause, both in his home state and in the First and Second Continental Congresses. He sat on state committees of correspondence and safety, synchronizing intercolonial protests and providing a semblance of government as the British magistracy collapsed. Jay helped draft the New York Constitution, and until 1779 he also served (erratically and without distinction) as chief justice of the New York Superior Court.

Independence proved to be a watershed in Jay's career. In the space of a few months, he found himself starring—without much of a script—in the drama of national establishment. In 1778, while still sitting on the state bench, and only three days after his arrival in Philadelphia as a New York delegate to the general government, Jay was elected president of Congress. A year later he became minister plenipotentiary to Spain, and in 1782 he was one of five commissioners sent to Europe to negotiate what would become the Paris Peace Treaty with Great Britain.

These rapid-fire experiences were formative: Jay quickly came to believe that his original, gloomy assessment of American prospects for success had been appallingly accurate. As a weak quasi-executive in Congress, Jay helplessly watched the confederation collapse. Americans were experiencing growing pains—the invention of modern party politics, for example, and the flexing of capitalist muscle, but Jay saw only degenerate partisan bickering, demagoguery, excessive “leveling,” logjams in Congress, a dangerous tendency to fetter diplomats, drifts of worthless paper currency, and interstate competition for trading alliances. In Europe, Jay personally guaranteed repayment of war loans and encouraged entrepreneurs to invest in America; privately, he despaired of Americans' capacity for virtue and Congress's ability to navigate the rapids between independence and nationhood.

When Jay returned to New York in July 1784, he turned down ambassadorships to Britain and France in favor of law practice and state politics. But the respite was brief. Within weeks, Congress drafted Jay to be secretary of foreign affairs, an office he held until 1789. He remained secretary of state ad interim until March 1790, when Thomas Jefferson returned from Europe.

As Jay struggled to prevent disaster in Congress and abroad, his anxieties about the “degraded” condition of New World republicans, and about American prospects for survival in the hurly-burly of international exchange, gave rise to a stringently conservative scheme for unification and stabilization. As early as 1784–1785, he advocated the creation of a coercive, departmentalized federation with enhanced executive prerogative, a Congress capable of ensuring economic growth and the security of property, and a superior federal judiciary possessed of strength sufficient to immobilize self-serving states. On the question of federal power, Jay (with Alexander Hamilton) epitomized high federalism: in 1785 he told John Adams that, in a perfect world, he would have the states “considered …. in the same light in which counties stand to the States,” as mere administrative “districts to facilitate the purposes of domestic order and good government,” not as separate seats of sovereignty.

By 1788 observers viewed Jay as a linchpin in the drive to secure ratification of the new federal constitution. Because of illness, he wrote only five articles for The Federalist Papers (Nos. 2 through 5 and 64) in areas of his particular expertise—foreign affairs, federal treaty powers, relations between domestic stability and long-term prosperity, and the utility of well-enforced federal laws as Americans struggled to persuade Europeans of republican reliability. Jay fretted about vaguely worded reservations of state power in the federation, and so supported subsequent calls for revisionary constitutional conventions. But, after federation, Jay gladly accepted a commission as the Republic's first chief justice (and, as it turned out, as a judge of the Eastern Circuit established by the First Congress). On February 2, 1790, he called his new Court to order with a quorum of four judges.

Jay's acceptance of the chief justiceship seems odd. Why would a man known widely as an indispensable (if not particularly imaginative) political economist and diplomat, and only secondarily as a lawyer, agree to preside over an untested, controversial tribunal, years before the articulation of the Supreme Court's implied power to review acts of Congress? In the late eighteenth century, legitimacy and prestige attached most completely to firmly established ideas and institutions; the Supreme Court boasted no history, no case law or procedure separate from British law practice, no distinguished bar, no clear role in governance beyond responsibility to decide certain limited categories of legal disputes. Jay himself had exhibited scant interest in his state judgeship or the minutiae of legal research. Why, then, did he leave the political spotlight, abandon a lucrative law practice, and preside over a docketless court in borrowed chambers at the New York City Stock Exchange?

Jay's decision makes sense when viewed in light of his experience and priorities. The years between 1787 and 1803, to borrow historian Bernard Bailyn's phrase, might be termed a “soft ambiguous moment” in the history of the judiciary. No chief justice, then or now, could make of the Court whatever he wished; but within the vague outlines sketched in Philadelphia and in the 1789 Judiciary and Process Acts, the Court—perhaps for the last time in its history—could be pressed into service in decidedly unmodern ways, to reflect the interests and assumptions of the diplomat seated as chief justice. Washington chose a friend he knew to be schooled in the law of nations, economy, and a political philosophy based on the writings of Edmund Burke. Moreover, as the president put it in 1794, Jay had been “personally conversant” with signatories of the 1783 peace treaty, served as foreign affairs secretary, and helped frame republican constitutions, thereby fitting himself for judicial statesmanship at a dangerous moment in American history.

How did John Jay envision the chief justiceship and the Supreme Court's role in government? A staunch Federalist might be expected to hope—and Jay did—that federal courts might be used as a hedge against “Laws dictated by the Spirit of the Times not the Spirit of Justice.” But Jay's vision amounted to more than a mindless attempt to impose order. By 1790 Jay believed that the pressing issue of the day was American survival within a skeptical global community; the Republic needed to escape unhealthy economic dependence in relations with Europeans, including a heavy debt load, and move toward healthy, reciprocal trading alliances. Only then, said Jay, could Americans be “honest and grateful to our allies, but …. think for ourselves.” In Jay's judgment, national prosperity—his long-term and most important “object of state”—depended entirely on refurbishing a tarnished reputation and persuading Europeans that Americans would protect property, create stable currencies, and make good on the terms of contracts and treaties.

Jay pinned his hopes for the realization of his “objects” on the federal judiciary and effective deployment of relevant bodies of federal law. By enforcing contracts and treaties, judges could construct images of reliability; they also could force states to accept federal guidelines in the creation of uniform economic legislation. Although Jay did not object to the notion of implied powers of judicial review and indeed encouraged his colleagues to exercise review powers on circuit, he probably did not envision a John Marshall-style Supreme Court aimed primarily at domestic development and consolidation. As more than one scholar has noted, Jay was a cosmopolitan figure, with one eye trained perpetually on Europe, and he hoped to use the Court to ensure domestic stability so that America might experience prosperity as a trading nation.

Federal courts also would expose citizens to the moralizing principles embedded in the bodies of law Jay particularly admired—notably the law of nations, which he took to be a virtual codification of God's will. In this way, imperfect republicans eventually might achieve the perfection that the framers, in a fit of republican zeal, wrongly imputed to the electorate. As Jay explained in 1793, society was not yet “so far improved, and the Science of Government [so perfected] that the whole nation could in the peaceable course of law, be compelled to do justice.” Federal courts would educate as well as control the citizenry by means of grand jury charges and the swift execution of well-made laws.

Jay's vision proved chimerical. The associate justices complained incessantly about onerous circuit-riding duties, and their objections eroded morale. And, although grand jury charges provided a welcome occasion to instruct jurymen and newspaper readers on the fine points of the federal government, Jay had too few occasions to use his new court as an instrument in pursuit of “great objects.”

Nevertheless, Jay's contributions probably were more substantial than scholars recognize: the justices laboriously hammered out rules of practice and evidence, established a federal bar, and, by pointedly relying on state practice whenever possible, chipped away at Republican charges of Federalist tyranny. Jay also modestly strengthened the Court's shaky position within the general government. In a 1792 New York circuit court hearing on a writ of mandamus in Hayburn's Case, he defended the separation of powers by refusing to allow federal courts to pass judgment, as federal statute required, on claims of invalid pensioners. The decision, reinforced in 1794 by suggestive language in Glass v. Sloop Betsey, paved the way for later attempts to garner implied review powers.

Finally, Jay was able to wield federal judicial power in defense of the Treaty of Paris and American sovereignty in relations with Europe. His dissent on circuit in Ware v. Hylton anticipated the Supreme Court's insistence on adherence to treaty provisions in a 1796 appeal of the same case; and in the Sloop Betsey case, Jay ruled against France's use of its American consul as a prize agent, thereby shoring up the precarious U.S. claim of sovereignty.

The Court, however, fell far short of its chief justice's expectations: by 1793 Jay decided to pursue his “objects” through diplomacy and other executive posts. The proximate cause of Jay's dejection was the state of Georgia and, more particularly, its insistence in the 1793 case of Chisholm v. Georgia (the first constitutional law case decided by the Supreme Court) on the ongoing utility in republics of the old monarchical doctrine of sovereign immunity.

The case concerned a claim arising from the Revolutionary War. In 1792 Alexander Chisholm, a South Carolinian and the executor of the estate of Robert Farquhar, sought state payment on a war supply contract. He invoked the Court's original diversity jurisdiction in suits between citizens of different states, or between states and noncitizens. The state of Georgia returned the summons, claiming sovereign immunity from federal process. Also in 1792 the Court heard arguments in Georgia v. Brailsford, a bill in equity in which Georgia appeared willingly as complainant, hoping to recover the amount of a debt originally owed to South Carolinian Loyalists and a Briton whose property had been either confiscated or sequestered (justices disagreed on the point) during the Revolution.

The amount had become the object of an injunction, and although his colleagues urged otherwise, Jay continued the restraining order (dissolved in 1794, when Georgia brought and lost an action at law), partly so that Jay could exploit Georgia's voluntary appearance in his Chisholm opinion. Both disputes generally addressed state obligations to settle Loyalist claims fairly, as the Paris Treaty required. Therefore, they also tested whether federal courts might be useful to Jay in restoring America's reputation in Europe. If “national regularity” depended on “attention and obedience to those rules and principles of conduct which reason indicates and which morality and wisdom prescribe,” Jay said, Georgia's recalcitrance threatened not only the Union, but also American prospects on an international stage.

In separate opinions, which was the Court's usual practice before Chief Justice Marshall changed it, Jay and Justice James Wilson contended that the whole people, not the states, had compacted to form a federation and so could hold a state accountable for behavior damaging to the nation. The relevant clause in Article Ill of the federal Constitution, after all, did not exclude suits by citizens of other states, nor did it require state consent for such suits. By the same logic, the sovereign people surely could summon states. Jay pointed to Brailsford: were federal courts mere conveniences, to be heeded only when states benefited from decisions?

The Court's 1793 ruling by default (because Georgia refused to appear) against the state claim of sovereign immunity seemed to render depleted state treasuries vulnerable to the claims of war suppliers and traitors. If the Jay Court had its way, moreover, other states soon would eat humble pie: on February 20, 1793, process had been returned and the state ordered to appear at the next term in Oswald v. New York. Simultaneously, the Court awarded a subpoena in Grayson et al. v. Virginia; five months later, William Vassal, a Loyalist victim of Massachusetts's confiscation statute, was granted a subpoena, which inspired Gov. John Hancock to deliver a speech warning his countrymen of the perils of runaway judicial federalism.

Because these cases and many others threatened a flood of litigation against states and insupportable pressure on state treasuries, Jay's decisions in the Georgia cases caused widespread alarm. On December 14, 1792, the Georgia Assembly had resolved not to be bound by an unfavorable Court ruling; after Chisholm, a Georgia grand jury formally presented a grievance to the governor, Edward Telfair, who in turn urged passage of a statute (enacted two weeks later) affirming state sovereign immunity. On March 18, 1793, Massachusetts legislators in special session spearheaded a movement encouraging Congress to adopt the Eleventh Amendment, which made it impossible for federal officers to summon states as defendants. Virginia officially condemned Jay for attacking the reserved sovereignty of states, and Georgians toyed with hanging federal officers, should they again try to force a state appearance. In 1798, when the amendment took effect, the clerk of the Supreme Court painstakingly entered a list of reversals, including Chisholm, in the minute book for “want of jurisdiction.”

The comparative ease with which the states humiliated the highest court in the land caused Jay to despair of its potential as an effective agency of government. In 1794, while still serving as chief justice, he sailed to England as envoy extraordinaire to defuse tensions with Britain over unpaid debts, sequestration of Loyalist estates by state governments, and New World trading rights. The Jay Treaty established mixed commissions to resolve economic disputes, granted trade concessions to Britain, and shifted responsibility for payment of defaulted loans to Congress. Despite formidable resistance to the treaty, the Senate ratified it in 1795. Jay was relieved: “Should the treaty prove …. beneficial,” he wrote, “justice will finally be done. If not, be it so—my mind is at ease.” In a revealing letter, Jay told Edmund Randolph that the treaty's debt-related sixth article addressed “that justice and equity which judicial proceedings may, on trial, be found incapable of affording”; commissioners could do “exactly what is right.”

In 1795 Jay was elected governor of New York in absentia, and he resigned from the Court. When President John Adams asked him to resume his judicial post in 1800, Jay demurred on the ground that he yearned for retirement and still perceived the Court to be destitute of “energy, weight and dignity.” In 1801 he retired to his farm in Westchester County, New York. Jay had no taste for Jeffersonian America; he particularly deplored the public fascination with Jacobinism and weak government. Yet his favored maxim always had been “Fortitude founded on Resignation.” Despite poor health, he devoted the rest of his life to the Episcopal Church, an extensive correspondence, and abolitionism.

More completely perhaps than any of his Federalist allies, Jay believed that evil stalked humankind, that order prevailed only within firm legal structures, and that Republicans lacked virtue, wisdom, and discipline. When Alexander Hamilton advocated manipulation of election returns in 1800 to defeat Jefferson, Jay quietly wrote off both Hamilton and federalism: it was better to sacrifice individuals and party than moral principle. Jay probably died without changing his mind about the inadequacy of republicanism. After witnessing the failure of his conception of judicial statesmanship at the hand of licentious states, he simply could not foresee American success. Surely the Republic would succumb to anarchy, he warned in Chisholm, if a “pleasure to obey or transgress with impunity should be substituted in the place of a sanction to its laws.” Benjamin Kissam's chief clerk, Lindley Murray, said of the young Jay that he had been notable for “strong reasoning powers, comprehensive views, indefatigable application, and uncommon firmness of mind”; in mid-life, these traits crystallized into a sophisticated but rigidly legalistic conservatism. Historian Richard Morris perhaps said it best: “[Jay's] tireless effort to endow the national government with energy, capacity, and scope …. attests to his vision, courage, and tenacity,” he wrote in 1967. “It remained for others to spell out the safeguards for individual liberties and the limitation on national power …. essential to the maintenance of a democratic society.”

Bibliography

The Jay papers are in the Columbia University libraries, and various portions are available in a variety of editions. Biographical studies of Jay include Irving Dilliard's sketch in Friedman and Israel, Justices, vols. 1, 3, a gracefully written essay, only slightly impatient with the Jay Court's decidedly unmodern appearance and behavior; and Herbert Johnson, John Jay, 1745–1829 (1970), an older empathetic description of his life, flawed by limited exposure to critical documents and the literature of the Revolution.

The best brief study of Jay's stint on the bench is Richard Morris, John Jay, the Nation, and the Court (1967), although it is flawed by its anachronistic determination to rescue Jay by transforming him into a pale imitation of John Marshall. For fuller accounts of the early Court, see Maeva Marcus, ed., The Documentary History of the Supreme Court of the United States; 1789–1800 (1985–), an invaluable guide to the Supreme Court's business with a sound biographical sketch of Jay; and Julius Goebel, History of the Supreme Court of the United States: Antecedents and Beginnings to 1801 (1971), the first volume of the Holmes Devise History, the most consistently useful compilation of information about the Court's first decade in doctrinal and institutional terms, but staunchly anti-Jay and not particularly sensitive to the context of legal development. More recent studies of the Jay and his Court include Scott Douglas Gerber, Seriatim: The Supreme Court Before John Marshall (1998) especially Sandra F. VanBurkleo, “‘Honour, Justice, and Interest’: Great Objects of State: John Jay's Republican Politics and Statesmanship on the Federal Bench,” a revised and expanded version of her article of the same title in Journal of the Early Republic (1984): 239. Both articles are critical of earlier attempts to restore Jay to the judicial pantheon by modernizing him; see also William R. Casto, The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth (1995). Walter Stahr's John Jay (2005), a full and generally sensitive biography, devotes only one short chapter to Jay's tenure on the Court.

Specialized studies of particular aspects of Jay's career include: Jerald Combs, The Jay Treaty (1970), a balanced account of the negotiation and ratification process; Doyle Mathis, “Chisholm v. Georgia: Background and Settlement,” Journal of American History 54 (1967): 19, a now-classic corrective to erroneous received wisdom; to be read in conjunction with Clyde Jacobs, The Eleventh Amendment and Sovereign Immunity (1972), a detailed study of the early Supreme Court's most humiliating moment.

Noteworthy Opinions

Georgia v. Brailsford, 2 U.S. 402 (1792)

Chisholm v. Georgia, 2 U.S. 419 (1793)

Glass v. Sloop Betsey, 3 U.S. 6 (1794)

 

Document Citation
Jay, John, in Biographical Encyclopedia of the Supreme Court 294 (Melvin I. Urofsky ed., 2006), http://library.cqpress.com/scc/bioenc-427-18167-979313.
Document ID: bioenc-427-18167-979313
Document URL: http://library.cqpress.com/scc/bioenc-427-18167-979313