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a. Note:   !Chief Justice of the Supreme Court, Governor of New York, Secretary of Foreign Affairs, Congressman, and gentleman farmer were some of the positions that John Jay (King's College, later Columbia University, 1764) held in his lifetime. He was the sixth son in a family of eight children, of Peter and Mary (Van Cortlandt) Jay, and was born in New York City. He was the younger brother of Doctor Sir James Jay (University of Edinburgh, 1753). The families of both his father and mother were among the most influential in the colony. His paternal grandfather, Augustus Jay, was a French Huguenot exile who settled in New York about 1686. His father, Peter Jay, was a rich and reputable colonial merchant. John Jay, never of a democratic nature or persuasion, grew up under the most careful family protection. His education went on, with private tutors, under the watchful guidance of his father. Bookish and pious in temperment, the boy is dwscribed in contemporary family letters as "serious," "grave," "sedate." Self-confidence and self- satisfaction, rather than ambition, were characteristic of his career. In after life he never once solicited an appointment to public service - except for the successful application for a commission in the New York militia - though he attained, aside from the presidency of the United States, the most important offices which his country could bestow. After graduating from King's College in 1764 he prepared for the bar in the office of Benjamin Kissam of New York. Lindley Murray, a fellow student in the same office, wrote, in his autobiography, of Jay: "He was remarkable for strong reasoning powers, comprehensive views, indefatigable application, and uncommon firmness of mind" (Pellew, post, pp. 15-16). These qualities, with a certain lucidity of literary expression - the style of Jay and Hamilton were similar - marked him from the biginning as a man of unusual intellectual power. His fellow citizens early sought out his service. As years went on Jay's self-confidence begat a not disagreeable vanity, and literary faculty sometimes gave way to pretentious oracular utterance. Following his admission to the bar in 1768, Jay lived the pleasant life of a serious, well-established and well-liked lawyer (he was associated for a time with Robert R. Livingston), prosperously busy, surrounded by friends and clubmates. His was a town-man's life. It drew its principal interest from proper social contracts. There is no indication that he had a liking for sports or strenuous physical exercise, though he was fond of animals, and, of necessity, a horseback rider. Possessed of a fairly wiry and robust constitution, he was nevertheless frequently ailing in health throughout his long life. As a young man he was tall, slender, and graceful, with highly arched eyebrows, a prominent Gallic nose, a pleasing mouth, and a long chin; he had an honest and refined face, neither grave nor light, with a certain spiritual beauty. He married, on April 28, 1774, Sarah Van Brugh Livingston, the youngest daughter of William Livingston, later the governor of New Jersey during the Revolutionary War. Jay's first public employment was as secretary, in 1773, of the royal commission for setting the boundary between New Jersey and New York. The dispute was eventually settled by means of mixed arbitration, a device which must have appealed to Jay's philosophic disposition; it may have been the example for the mixed commissions which were later such prominent features ofJay's Treaty of 1794 with Great Britain, and were repeated in principle in other American treaties thereafter. The advent of the American Revolution put an end forever to Jay's law practice and started his career of public life. He became a conservative member of the New York committee (of fifty-one) of correspondence and soon was sent as a delegate of his colony to the first, and later the second, Continental Congress. As an indefatigable worker in the Congress he reflected the interests of the conservative colonial merchants who were opposed to independence because they feared it might be followed by an upheaval of mob rule and democracy. But once the Declaration was adopted, in Jay's absence attending the New York provincial congress, he threw his life and fortune unreservedly into the scales, and no man became more jealous against any imputation of the permanency or completeness of American independence. Jay's part in the peace negotiations of 1782 testified abundantly to his conviction. In the spring of 1776 his energies were absorbed in affairs of the new state of New York rather than in the second Continental Congress. As a member of the provincial congress, he not only helped to ratify the Declaration of Independence, but also provided the guiding hand which drafted the constitution of the state. He served until 1779 as chief justice of New York, interpreting the constitution which he had drafted. He was also a colonel in the state militia, but never saw active service. Jay resumed his seat in the Continental Congress in December 1778, and on the tenth of that month was elected president of the Congress, a position which he continued to hold until elected minister plenipotentiary to Spain, September 27, 1779. Jay's career as a diplomat begins - if we omit his experience as a member of the secret committee of the second Continental Congress, for corresponding with foreign powers - with his departure for Spain. He was the most able and distinguished man whom the Congress could spare for this important mission to plead for recognition and assistance at the Court of Madrid, taking with him, as he did, the prestige of "the first office of the continent." After a perilous voyage by way of the West Indies, Jay reached Cadiz, with his wife, on January 22, 1780. From the beginning the mission was a hopeless one. Spain had no intention of recognizing the independence of the United States, much less of making an alliance with the insurrectionists, or even of joining with her ally, France, in a Franco-American combination. Floridablanca had tied Vergennes to a secret treaty, by the terms of which France had agreed not to make a peace with Great Britain except jointly with Spain, and with Gibraltar secured for Spain. On the other hand, France had agreed with the United States not to make peace with Great Britain except jointly with the United States and on the basis of the absolute and unlimited independence of that republic. Thus was the cause of American independence chained to the European rock of Gibraltar. With Jay the Spanish ministry would go no farther than to continue its policy of secret assistance in munitions and money in order to keep the American insurrection going; and Floridablanca made a "loan" (without taking titles for payment) of approximately $170,000. This relieved Jay the cruel embarrassment caused by the writing of drafts on him by Congress under the unwarrented expectation that he would have meanwhile gotten some money out of Spain. "His two chief points," Floridablanca wrote, concerning Jay, to the Spanish ambassador at Paris, "were: Spain, recognize our independence; Spain, give us more money" (Bemis, "Pinckney's Treaty," p. 38). In the spring of 1782 Jay was summoned to Paris by Franklin to assume his post as joint commissioner for negotiating a peace with Great Britain. Despite "bad roads, fleas, and bugs" he reached the city, after a pleasant journey overland, on June 23. The most controversial question in the study of Jay's diplomatic career is whether he upset the American diplomatic apple- cart which had been so cleverly trundled along by Franklin in his preliminary conversations with the British peace representatives, before the arrival of Jay. The latter insisted that British representative, Richard Oswald, be expressly empowered to treat with representatives of the United States of America, not of the "Colonies," which designation had at first seemed sufficient to Franklin, and to Vergennes, whose good faith Jay ssuspected. Jay privately communicated to Shelburne, the British prime minister, advice to close quickly with the Americans, recognizing them as plenipotentiaries of the United States. His insistence won out in the end, but delayed the negotiations - in the early course of which Franklin had craftily been proposing the cession of Canada, without provoking active opposition - until after the relief o Gibraltar had greatly strengthened the British negotiating position. It is not possible to say that Lord Shelburne would have agreed to Franklin's ideas as to the desirability of ceding Canada, and Shelburne's instructions make it certain that if articles of independence should not have been agreed to, the situation was to remain the same as if the negotiation had never been opened, namely one of warfare against a rebellion of colonies. Whether in that instance the world would have construed unsuccessful negotiations with plenipotentiaries of the United States, as a definitive recognition of American independence is extremely doubtful. Jay and Adams convinced Franklin that they should sign the preliminary articles of peace, as agreed on with Great Britain, without the privity of the French Minister. In this they certainly violated their own instructions to negotiate only with the full confidence of the French ministry. They did not violate the Franco-American treaty of alliance, for the peace was not to go into effect until preliminaries of peace should also have been ratified between Great Britain and France. France could not make peace till Spain was ready. Undoubtedly the American preliminaries, together with the relief of Gibraltar, opened the way for Vergennes to bring Spain into line. Articles between Spain and Great Britain, and between France and Great Britain, were signed on January 20, 1783, without the cession of Gibraltar. The preliminaries of peace thus became complete. Hostilities ceased. Jay further had participated in the peace negotiations by suggesting to the British the reconquest of West Florida before the armistice; and a secret article was inserted in the preliminaries providing that, in case of such reconquest, the southern boundary of the United States should commence at the latitude of the Yazoo River, instead of thirty-one degrees north latitude. Jay's object in making this suggestion was to keep Spain away from the east bank of the Mississippi by keeping Great Britain in West Florida. In the definitive peace treaty of 1783 this was not included, as Florida had been yielded to Great Britain by Spain. Jay declined the post of minister to Great Britain after the war, as well as that to France, in order to return home and resume his law practice and the delights of private life. When he arrived in New York, July 14, 1784, he found that Congress had already drafted him into service as secretary of foreign affairs. For the position, which amounted to that of minister of foreign affairs of the United States, Jay was the best qualified man available. He put aside personal desires and accepted the unremunerative responsibility which had been thrust upon him. Jay remained in this office until after the adoption of the Constitution and the organization of the new government. In fact, as secretary ad interim he administered the business of the new Department of State until March 22, 1790, pending the arrival of Thomas Jefferson to be sworn in as secretary. In addition to the negotiation of treaties of commerce with Prussia and Morocco, and discussions of the same with Austria, Denmark, portugal, and Tuscany, the handling of the hopeless Barbary corsairs question, and negotiation of a consular convention with France, Jay's principal diplomatic problems as secretary of foreign affairs were connected with Great Britain and with Spain. The dispute with the former involved the retention of the Northwest Posts, in which British garrisons had remained in defiance of the terms of the treaty of peace. The British justified their position on the ground that Congress had not complied with its own treaty obligations in respect to facilitating the payment of pre-war debts to English creditors, and to the proper protection of the Loyalists. We know know that, on the day before the proclamation of the treaty of peace by George III, secret orders were sent out from Whitehall not to evacuate the posts. Without going into the controversy which arose, or the mutual recriminations, during the time that Great Britain refused to send diplomatic representative to the United States, it may be said that Jay - who naturally remained ignorant of secret orders which have only recently been disclosed - was so impressed by the laxity of Congress in enforcing its own obligations that he could not make progress with Great Britain on this issue; it continued into the national period and was not actually settled until Jay's Treaty of 1794. With Spain the controversy was somewhat similar. Spanish garrisons continued to occupy alleged American soil up to the latitude of the mouth of the Yazoo River, although the boundary of the United States was laid down by the Anglo- American treaty of peace. It stipulated the line of thirty-one degrees between the Mississippi and the Apalachicola Rivers. Spain also closed the navigation of the Mississippi where it flowed between exclusively Spanish banks. In justice to the Spanish contention it should be recognized that Spain's title to the lower east bank of the Mississippi was at least as good as that of the United States, and that her right to close the navigation of the river was not and could not be stopped by anything in the treaty of peace between the United States and Great Britain. A protracted negotiation between Gardoqui, first Spanish diplomatic representative accredited to the United States, and Jay, between 1784 and 1789, reached no settlement of the question. When in Spain, Jay had not believed in acknowledging exclusive Spanish navigation of the Mississippi, even though, upon instructions received from Congress, he had made such an offer as a condition of Spanish recognition of American independence and the making of a treaty. But during the period of the Confederation Jay became convinced, as did Washington, that the only way to come to terms with Spain was to forbear to use the navigation of the river for a period of twenty-five years or so, while the West could fill up with a population of fighting men. He reached an agreement in principle with Gardoqui on that basis, coupled with some articles of alliance by which each guaranteed the territory of the other power. Congress refused to ratify the Mississippi articles, and Jay never revealed the mutual guaranty clauses to Congress once he saw that the main Mississippi article would not succeed. Jay's position as secretary of foreign affairs was weakened in power and effect by the impotence of the Union under the Articles of Confederation. He became one of the strongest advocates of a new government under a stronger constitution. After the adoption of the Constitution of 1787 he joined with Hamilton and Madison in the writing of the "Federalist" papers. Illness prevented him from contributing more than five essays - on the Constitution and foreign affairs. When Jefferson arrived to take the post of secretary of state, Jay had already been nominated Chief Justice of the United States. The first five years were the formative period of the Supreme Court so far as procedure was concerned. The most important case decided by Jay was Chisholm vs. Georgia, which involved the suability of a state by a citizen of another state. Jay in his decision pointed out that the Constitution specifically gave a citizen of one state the right to sue another state, and that suability and state sovereignty were incompatible. It was a vigerous exposition of nationalism, too vigerous for the day. Georgia lost the case by default, but before any judgement could be executed, her sister states, alarmed, quickly passed the Eleventh Amendment to the Constitution. While chief justice, Jay was frequently consulted by the President on state decisions, and it was he who wrote (albeit subject to Hamilton's suggestions) a first draft of the famous neutrality proclamation of 1793. After the proclamation, actually indited by Edmund Randolph, and before the appropriate legislation by Congress for the enforcement of neutrality, Jay, in making a charge to the grand jury at Richmond, May 22, 1793, laid down the principle that the proclamation of the President must implicitly be held declaratory of existing law, that is, of the law of nations (Johnston, post, III, 478). It was while still holding the office of justice that Jay was sent on the celebrated diplomatic mission to arrange a peaceful settlement of existing controversies with Great Britain. The war crisis, which arose in the spring of 1794, was caused principally by the British occupation of the Northwest Posts, and the still pending question of private debts to British creditors, together with the spoliations made by British cruisers on American neutral shipping during the Anglo-French war. By the time Alexander Hamilton had come to be the principal influence in Washington's administration. Hamilton's new credit system depended on tariff revenues, and nine-tenths of these came from imposts on imported British goods. War and Great Britain, or even suspension of commercial intercourse for any extended period, such as the Republicans advocated, would have meant, in Hamilton's words, cutting up credit by the roots; the collapse of credit would have brought the downfall of the new government, and with it the possible end of American nationality. Jay spent the summer of 1794 in England coming to an arrangement with Lord Grenville on terms mainly suggested by Hamilton. The resulting treaty might more appropriately have gone down in history as Hamilton's than as Jay's Treaty. Without securing any acknowledgement of the illegality of British maritime procedure under which the spoliations had been made, the United States agreed that all spoliation claims which should not receive untimate justice after running the gamet of British courts of law, should go to a mixed claims commission for settlement; similarly all British claims for the collection of private debts should go to a mixed commission, and the United States should be answerable for payment of the awards in sterling money; British troops were to evacuate the Northwest Territory (the area northwest of the Ohio River, now Ohio, Indiana, Michigan, etc.); commissions were to settle boundary controversies on the northeast and the northwest frontier; and the free navigation of the Mississippi, with particular trade privileges for British ships, was guaranteed the citizens and subjects of each nation. By refusing to enforce in the face of Great Britain the rules of international law accepted in the Franco-American treaty of 1778, the United States gave great umbrage to France; this led to a serious but not vital controversy with that country, in which there is something to be said for the French point of view. Jay's Treaty was the price paid by the Federalists for the maintenance of peace and financial stability at the time when both were vitally necessary for the establishment of American nationality under the new Constitution. He was vilified for his part in the negotiation and Hamilton was stoned while speaking in defense of the treaty; but the Senate ratified it, and history has justified it as a sort of necessary evil. While chief justice, Jay had already been a caandidate of the Federalist party against George Clinton for the governorship of New York, in 1792, and had been defeated by the action of a partisan board of electoral canvassers which threw out many Federalist ballots on technicalities. When he returned home from England in 1795 he found himself already nominated and elected governor. There was little choice but to accept. Jay's two terms, of six years altogether, furnished the state with an upright and conservative administration. Despite the ordinary petty political disputes in which Jay, as a Federalist governor, must needs have his share, no overwhelming political issues arose. In 1800 the victory of the Republicans in the next gubernatorial election was imminent, and Jay had decided to retire from public life. He declined to become a candidate for reelection, and refused to consider for renomination as chief justice of the United States. In view of John Marshall's subsequent career in that office, Jay's reasons for declining it are interesting if not amusing: he felt that the Supreme Court lacked "the energy, weight, and dignity which are essential to its affording due upport to the "national Government" (Johnston, IV, 285). The presidential election of 1800 afforded an opportunity to test the purity of Jay's political virtue. Beleiving that the presidency depended on the vote of New York, where the newly elected Republican legislature would be sure choose Jeffersonian electors, Alexander Hamilton urged Governor Jay to call a special session of the expiring (Federalist) legislature that would choose Federalist electors. Jay refused to countenance this trickery. On Hamilton's letter proposing the plan, he wrote the endorsement: "Proposing a measure for party purposes which I think it would not become me to adopt." The remaining twenty-eight years of Jay's life were spent in complete retirement, saddenedby the early death of his wife, Sarah Van Brugh (Livingston) Jay. He settled down at his 800-acre farm at Bedford, Westchester County, New York. Here he died May 17, 1829. He had two sons, Peter Augustus Jay and William Jay. Only one of his five daughters married and she had no children that survived. Jay was a very able man but not a genius. His principal and invaluable contribution to American public life flowed from his character as he stead- fastly performed the day's work. He brought constant intellectual vigor and moral tone into every office which he held. He belonged to a school of rigid self-disciplinarians and high-minded men who invested of American nationality with a peculiar mantle of righteousness and dignity. He was second to none of the "fathers" in the fineness of his principles, uncompromising moral rectitude, uprightness of private life, and firmness, even fervor, of religious conviction. A communicant of the Episcopal Church, he did not scruple to unite with his fellow Christians of other denominations. He owned slaves, to emancipate them; and as governor of New York he signed the act for the abolition of slavery in that state. In retirement Jay took an active interest in church affairs; he became president in 1818 of the Westchester Bible Society, and, in 1821, of the American Bible Society. As a political sage in retirement at Bedford he left these lines: "The post, once a week, brings me our newspapers, which furnish a history of the times. By this history, as well as by that of former times, we are taught the vanity of expecting, that from the perfectability of human nature and the lights of philosophy the multitude will become virtuous or wise, or their demagogues candid and honest" (William Jay, post, I, 431).


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