Forgotten Founder

Born in New York City on December 12, 1745, Jay came from a prosperous New York family. His paternal grandfather Augustus was a Huguenot who finally settled in America after first fleeing to Great Britain after the Edict of Nantes abolished the rights of French Protestants. Augustus became a wealthy merchant, augmenting his success with his marriage to Anna Bayard, a relation of many of the most prominent Dutch families in the colonies. Jay’s maternal grandfather Jacobus Von Cortlandt, also a prominent merchant and political leader, served twice as mayor of New York. Despite his family’s prosperity, Jay did not have an easy childhood in Rye, New York. Four of his six older siblings had severe handicaps: Two suffered from learning disabilities and emotional troubles, and two others were blinded by the smallpox epidemic of 1739.

Jay’s studies began with his parents at age five. Perhaps the most devoutly Christian of the Founding Fathers, he attended an Anglican boarding school before returning home to study with a private tutor. In 1760, the 14-year-old Jay enrolled in the new King’s College (now Columbia University), where he received a rigorous classical education and established a lifelong friendship with Gouverneur Morris, author of the preamble to the Constitution.

After graduation in 1764, Jay spent his next four years as a law clerk, and after admission to the bar in 1768 he formed a law practice with Robert Livingston Jr. By the mid-1770s, Jay had become one of New York’s leading lawyers, handling difficult commercial and political cases, and also serving as clerk of the New York-New Jersey boundary commission. His marriage to Sarah Livingston, daughter of the royal governor of New Jersey, accelerated his rising prominence by linking him to one of the most powerful political families in the colonies.

The talents and qualities that would serve him so well as diplomat and statesman also had begun to ripen. His legal training and experience magnified his facility for writing, and for grasping and resolving complex issues. Jay worked hard and had great patience; and although serious and sober, he had the capacity to make and retain many friends, including those with whom he disagreed on important political issues.

The watershed year in Jay’s political career was 1774. Bitter controversy over Britain’s imposition of a tea tax on the colonies spurred irate New Yorkers to form a Committee of 51 (including Jay) to formulate a response to Parliament’s closing of Boston Harbor and suspending civil government in Massachusetts, in retaliation for the Boston Tea Party. Jay helped forge a compromise: Instead of ceasing to import British goods, as the radicals demanded, his subcommittee agreed that New York would participate in a general Continental Congress. The Committee of 51 chose the 29-year-old Jay to represent New York as one of its five delegates.

Although his acceptance of the appointment marked a critical step in Jay’s decision to become a revolutionary rather than a loyalist, Jay staked out a position of moderation, striving to reach compromise and build consensus. He agreed with John Adams and those who defined American rights broadly by reference to the laws of nature as well as Britain’s unwritten constitution. But he hoped that the colonies could induce the British to recognize these rights short of declaring American independence. Even while pursuing reconciliation with Great Britain, Jay was also working to develop relations with Britain’s enemy, France. In November 1775 the Continental Congress named Jay and Franklin to a committee to correspond “with Britain . . . and other parts of the world.” Jay viewed the committee’s contacts with Britain and France as complementary endeavors: “Though we desire reconciliation, we are well prepared for contrary measures,” he wrote to his brother the following year. “God only knows why the British Empire will be torn to pieces by unjust attempts to subjugate us.” By July 1776, Jay concluded that the British had given the Americans no choice but to declare, and fight, for independence. Thereafter, he was an indomitable advocate of the revolutionary cause.

Jay’s main work between 1776 and 1778 lay in New York state politics. He participated extensively in the drafting of the state constitution, and the convention debates that refined the draft. He served as the first chief justice of New York’s supreme court before returning to national office in 1778 as president of the Continental Congress. This position was prestigious, but not particularly powerful: The president had almost no staff, no significant role in the formulation of policy, and Congress had the authority to remove incumbents.

Jay’s closest relationship at the time was with George Washington, and it served as the genesis of their mutual admiration and close political collaboration in subsequent years. Washington and Jay shared a deep sense of frustration with the inability of the Continental Congress to pursue a coherent military strategy, to stop the depreciation of the currency, and to supply the army adequately. The liabilities of the Continental Congress, exposed in times of peril, stimulated their thinking about the need for a strong national government and an energetic presidency to lead it.

In 1779 the Continental Congress appointed Jay as minister to Spain, where he endured three frustrating years vainly seeking financial assistance and formal diplomatic recognition. But Jay’s Spanish mission was not all for nought: Spain remained in its own war with Britain, draining resources that the British could have otherwise brought to bear on the Americans. His rough treatment at the hands of the Spanish government also taught him valuable lessons in European diplomacy that served him well in his next assignment: as one of three members of the American delegation in Paris, along with Franklin and Adams, that negotiated the peace terms ending the War of Independence.

Most historians agree that the Treaty of Paris (1783) was a great triumph for the United States, securing an immense territory that virtually ensured our eventual emergence as a vast continental republic. John Adams hailed Jay as the “Washington of the negotiations, a very flattering comment indeed, to which I have not right, but sincerely belongs to Mr. Jay.” The record supports Adams’s assessment. Rightly skeptical of a French ally intent on imposing a peace less generous than what the British would offer, Jay persuaded a reluctant Franklin to negotiate independently with Britain and not subordinate American interests to those of France. Jay inspired the admiration and trust of the British negotiators, sowing the seed for the Anglo-American peace and friendship that he saw in the long-term interests of both nations. He did much of the drafting of the treaty, and mediated effectively between Adams and Franklin.

When Jay returned to New York in the summer of 1784, he discovered that the Continental Congress had selected him as its second secretary for foreign affairs, a position he held until 1790. Yet he soon came to despair about the Articles of Confederation, which precluded the United States from maintaining an army or raising sufficient revenue to pay its debts. And he feared that Europe would exploit the weakness of the Confederation. Writing to John Adams in 1785, he warned that “the federal government is incompetent to its object” and “that it was the duty of her leading characters to cooperate in measures for enlarging and invigorating it.” Writing to Washington some months before the Constitutional Convention, Jay set forth the principles that the new Constitution should incorporate: Sovereignty “divided into proper departments,” a strong executive along the lines of a “Governor General limited in his prerogative and duration,” a “legislature divided into an upper and lower house,” and a judiciary in which “the great judicial officers,” along with the executive, should “have a negative” on the acts of legislators.

Jay did not participate in the convention because George Clinton, the anti-Federalist governor of New York, wanted to keep in check the nationalist opinions of Jay’s friend and collaborator, Alexander Hamilton. Although aspects of the Constitution disappointed Jay–for example, by not giving the national government sufficient authority–he considered it a vast improvement over the Articles of Confederation, and ardently defended it in public.

Jay collaborated with Hamilton and James Madison to write the Federalist Papers. He contributed only five of the essays–in part because of illness, but largely because of Madison’s and Hamilton’s greater gift for the enterprise. Jay focused on the inextricable linkage between the national union and national security. In Federalist 3 he argued why a strong union with an efficient national government would more likely avoid war than a weak one. In Federalist 4 he elaborated on this theme, warning that danger arose not merely from the weakness of separate states, but from the ability of foreign nations to play states off against each other. In Federalist 5 Jay drew parallels between the British and the American unions. He deplored the possible division of the union, in particular warning that, as separate nations, north and south would find more reasons for conflict than cooperation. In Jay’s last essay, Federalist 64, he defended investing the prerogative of presidents making treaties with the advice and consent of the Senate.

Jay also was the leader of, and the most persuasive advocate for, ratifying the Constitution at the New York state convention. If the ratification of the Constitution hinged ultimately on the decisions of large states such as New York, Virginia, Massachusetts, and Pennsylvania, New York’s ratification largely hinged on the deftness with which Jay mustered a narrow majority of 30 to 27 in support of ratification. His “Address to the People of New York” was the single most important document published in New York during the debate about the Constitution. His arguments carried more weight with the formidable anti-Federalist opposition, and other skeptics, than those of the more brilliant, but more polarizing, Alexander Hamilton.

George Washington chose Jay to be his first chief justice, a position in which Jay performed well, but suffered in comparison with his great successor John Marshall. His greatest service for the Washington administration, and the nation, however, came in the realm of foreign affairs, and one of the few minor shortcomings of this book is its failure to give Jay’s Treaty of 1794 the attention it warrants.

Even after the Treaty of Paris, relations between the United States and Great Britain remained tense. The British continued to occupy military posts in the West that they had agreed to evacuate, and to stir up Indian tribes against American settlers. The wars stemming from the French Revolution that consumed the major European powers for more than two decades posed a great opportunity and potential danger for the new American nation. By remaining neutral, and judiciously exploiting the rivalries of the European balance of power, the United States could expand relatively unmolested and settle its frontier problems with Britain in the North and Spain in the South to our advantage, and without war. By embroiling the United States in the wars of the French Revolution, the United States would have become vulnerable to France’s British and Spanish enemies at our vital flanks.

Virtually all major political figures of the day believed in neutrality, but bitter debate arose on how to define and apply it. Hamilton and Jay urged a narrow interpretation of our obligations to France under the French treaty of 1778 and a policy of neutrality tilted toward Great Britain. Secretary of State Thomas Jefferson and Speaker of the House James Madison urged a broad interpretation of the Treaty and a French orientation that risked war with Britain and Spain. Washington inclined toward Hamilton and Jay, calling for “an impartial neutrality between France and Great Britain” in his Neutrality Proclamation of 1793 that enraged Jefferson and the Francophile forces he represented in American politics. Most Americans welcomed the French Revolution, regarding it as a struggle for well-ordered liberty, analogous to our own, rather than the descent into tyranny it became.

The outbreak of Britain’s war with France exacerbated the tensions in Anglo-American relations as the British adopted orders-in-council interfering with American shipping, broadly defining contraband, and brazenly impressing American seamen. The mounting dangers of conflict impelled Washington to send Jay to London to seek a negotiated settlement. The result was the Treaty of 1794, which brought Britain to the full execution of the 1783 peace treaty, and diminished the Indian threat in the Northwest. But the treaty largely accepted Britain’s definition of neutral rights, which triggered virulent opposition. Crowds across the nation burned Jay in effigy. When Hamilton spoke for the treaty in New York, a mob stoned him. Nevertheless, Jay’s treaty served American interests well. It averted a war with Britain, for which the United States was woefully unprepared, and it induced the Spanish to conclude Pinckney’s Treaty of 1795, which secured American access to the Mississippi. In the long run, it also advanced Jay’s great project of transcending present difficulties to facilitate future Anglo-American relations.

It is fitting that Washington asked Jay, as well as Hamilton, to comment on the draft of his Farewell Address, which reflected the terms of Jay’s treaty and the logic of Jay’s statecraft. Or as Washington put it: “Our detached and distant situation invites and enables us to pursue a different course. If we remain one people . . . the period is not very far off, when we may defy material injury from external annoyance . . . when belligerent nations, under the impossibility of making acquisitions upon us, will not likely hazard the giving us of provocation; when we may choose peace or war as our interests, guided by our Justice, shall council.”

Jay concluded his political career as governor of New York, winning election in 1795 by a wide margin, and serving as an effective, popular magistrate until his retirement in 1801. Jay’s remaining years, comfortable but not wealthy, were spent largely out of the limelight, by choice. He long outlived his wife Sarah, who died at 45 after years of debilitating illness. He was a good father to his five children, and a good husband. He was exemplary in his private as well as his public life. In old age he read the Bible constantly, to the mild irritation of his friend John Adams, and died at 83 in 1829.

This biography has the considerable virtue of being justly admiring without being fawning. Stahr notes Jay’s propensity to be especially sharp with some of his extended relations. And while admiring Jay’s longstanding opposition to slavery, he chides him for keeping slaves of his own and not freeing them expeditiously or graciously. Stahr minces no words about the virulence of Jay’s anti-Catholicism, a product of the persecution of his Huguenot forebears.

Walter Stahr deserves high praise for recovering the legacy of a great American statesman, and a remarkable man.

Robert J. Kaufman is a professor of public policy at Pepperdine University.