Seven primary documents from the Continental Congress to the first Supreme Court. The peace negotiations. The warning to Washington. The Federalist Papers. The blank slate of an institution no one had ever built before.
John Jay was born in 1745 in New York City to a prominent merchant family of Huguenot descent. He graduated from King's College (now Columbia) in 1764, read law, and was admitted to the bar in 1768. He was a moderate: as late as 1775 he was drafting the Olive Branch Petition, the colonies' final appeal to the Crown for reconciliation. When that failed and independence was declared, he committed fully to the Patriot cause.
Jay served in both the First and Second Continental Congresses and became President of the Continental Congress in December 1778, the highest office in the land under the Articles of Confederation. The Journals of the Continental Congress at the Library of Congress document his service. He was elected President by his fellow delegates at a moment when the war was at one of its most difficult points.
Let us be cautious in our deliberations, and firm in our Resolutions. Let us temper our Zeal with Discretion, our Boldness with Prudence, and our Perseverance with Moderation... The Eyes of our Enemies as well as our Friends, of all Europe, are upon us, and the Issue of this great Contest will not only affect America but all Mankind.
In 1779, Jay was appointed Minister to Spain, a difficult posting where he spent two and a half years seeking recognition and a loan, receiving neither. In 1782 he joined Benjamin Franklin and John Adams in Paris to negotiate a peace treaty with Britain. The American commissioners were instructed by Congress to act in concert with France. Jay suspected the French foreign minister Vergennes of working against American territorial interests, and persuaded his fellow commissioners to negotiate directly with Britain without French involvement, violating their instructions.
The Treaty of Paris, signed September 3, 1783, secured American independence and established the Mississippi River as the western boundary of the United States, far more favorable terms than France or Spain expected or desired. Jay's instinct about French intentions proved largely correct. The treaty is at the Yale Avalon Project.
His Brittanic Majesty acknowledges the said United States, viz. New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign and independent States; that he treats with them as such, and for himself, his heirs and successors, relinquishes all claims to the Government, propriety and territorial rights of the same, and every part thereof.
After the peace treaty, Jay served as Secretary for Foreign Affairs under the Articles of Confederation, the equivalent of Secretary of State. The position was frustrating: under the Articles, Congress could negotiate treaties but could not compel states to honor them. Jay could see the national government failing.
In June 1786, Jay wrote to George Washington warning him directly that the Articles were inadequate and that the country was approaching a crisis. Washington's response agreed with him entirely. Both letters are at Founders Online and are among the key documents in the argument for the Constitutional Convention.
Our affairs seem to lead to some crisis, some revolution — something that I cannot foresee or conjecture. I am uneasy and apprehensive; more so than during the war... The People are discontented, but it is with the Administration of the Government. The mass of them begin to be weary of the Anarchy of their Condition, and... will be led, by the insecurity of Property, the loss of Confidence in their rulers, and the want of public Faith and Rectitude, to consider the charms of Liberty as imaginary and delusive.
Hamilton, Madison, and Jay published the Federalist Papers between October 1787 and May 1788 under the joint pseudonym "Publius" to argue for ratification of the Constitution in New York. Jay wrote five of the eighty-five essays: Nos. 2, 3, 4, 5, and 64. His essays focused on the dangers of disunion and the treaty-making power of the federal government, subjects he knew from direct experience as a diplomat and as Secretary for Foreign Affairs.
Federalist No. 2, published October 31, 1787, opened Jay's contribution with the argument that Americans were already one people, that union was natural, not artificial, and that disunion was the real danger.
Providence has been pleased to give this one connected country to one united people — a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.
Federalist No. 64, published March 5, 1788, addressed the Senate's role in treaty-making, an argument Jay was uniquely qualified to make. As the man who had negotiated the Treaty of Paris and served as Secretary for Foreign Affairs, he knew what foreign policy required from a constitutional structure. The essay argued that the president and Senate together, rather than the full Congress, were the right body for treaty-making, because diplomatic negotiations required discretion, continuity, and expertise that a large legislative body could not provide.
The essay would prove directly relevant to the most controversial act of Jay's own career: the Jay Treaty of 1794, addressed in Part II.
Those who have turned their attention to the affairs of men must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us that there frequently are occasions when days, nay, hours, are precious.
On September 26, 1789, President Washington nominated John Jay as the first Chief Justice of the United States. The Senate confirmed him the same day. The Supreme Court as an institution did not yet exist in any practical sense, there were no procedures, no traditions, no precedents. Jay and his five associate justices were building a court from nothing.
The Court's first sessions, beginning February 2, 1790, in New York City, were largely procedural, establishing rules and admitting attorneys to the bar. Jay rode circuit, as all Supreme Court justices were then required to do, traveling to hear cases in federal circuit courts across the country. His papers from the Chief Justice years are at Founders Online and Columbia University.
I have always thought that if your administration should be fortunate enough to be able to obtain the sincere friendship and good will of the People, it would then be in your power to do much good... The appointment of a good Federal Judiciary is a desideratum, and calls for more than common attention. On this establishment will probably depend the duration of the Federal Government.
In 1792, Washington's administration asked the Supreme Court for a legal advisory opinion on questions of international law and neutrality arising from the French Revolutionary Wars. Jay, writing for the Court, declined, establishing one of the foundational precedents of American constitutional law: that the Supreme Court would not issue advisory opinions to the executive branch. The Court's role was to decide cases, not to advise the president.
The refusal was not made in a formal written opinion but through a letter from the justices to Washington. It is at Founders Online. The principle it established, that the three branches are separate and the judiciary does not advise the executive, remains in force today.
The Lines of Separation drawn by the Constitution between the three Departments of Government... being in certain Respects checks on each other — and our being Judges of a Court in the last Resort — are Considerations which afford strong arguments against the Propriety of our extra-judicially deciding the questions alluded to.