Essay: John Jay and the Constitution


Based on the Notes of Professor Richard B. Morris (1904-1989) and his Staff, Originally Prepared for Volume 3 of the Papers of John Jay, With Links to Documents in the Online John Jay Papers Website.


SUPPORTING A STRENGTHENED CONSTITUTIONAL STRUCTURE

Jay's correspondence and public papers as Secretary for Foreign Affairs reflected his concern about the impotence of the Confederation government to shape foreign policy and the need for a central government that could act with energy and authority. As he observed to Thomas Jefferson in the summer of 1786, "Until our Affairs shall be more perfectly arranged, we shall treat under Disadvantages, and therefore I am not surprised that our Negociations with Britain and Barbary are unpromising. To be respectable abroad it is necessary to be so at Home, and that will not be the Case until our public Faith acquires more Confidence, and our Government more strength." [Jay to Jefferson, July 14, 1786, 5856; 2465]

Nevertheless Jay was hopeful that constructive results would ensue from seemingly negative circumstances. To Lafayette he adopted a cheerful tone in reporting the growing resentment among American merchants of European restraints on American trade: "Good will come out of evil; these discontents nourish federal ideas," Jay remarked.[Jay to Lafayette, July 15, 1785,  5742, 2416]  Even the Algerine episode was viewed optimistically. That conflict, he wrote President of Congress Richard Henry Lee, "does not strike me as a great evil. The more we are ill-treated abroad the more we shall unite and consolidate at home." Jay, as a strong advocate of preparedness, conceived of a war with the Barbary pirates as providing "a nursery for seamen" and laying "the foundation for a respectable Navy." [Jay to the President of Congress (Richard Henry Lee), October 13, 1785, 157, 5152]

Jay's conviction about the need for a stronger union was bolstered not only by the weak posture of America in foreign affairs but by the instability and impotence he saw at home--paper money agitation, boundary conflicts between the states, the failure of the states to expunge from their books laws preventing full compliance with the treaty with Great Britain, and the chronic problem of raising adequate federal revenue by requisition. A sense of political malaise was transformed into a recognition of crisis by the outbreak of Shays' Rebellion in the late summer and fall of '86. What were needed were "federal measures," Jay reiterated in letters to his correspondents. [Jay to Jefferson, August 13, 1785,  2422, 5753]

The rebellion in Massachusetts aroused Jay, as it did Geroge Washington. "Justice must have a sword as well as a balance," he commented to Edward Rutledge, [December 12, 1786,  11244 (no image)] while on the very same day he addressed a lengthier letter to Jacob Read, lamenting the price that had to be paid to bring order out of confusion, "especially when a little virtue and good sense would procure it for us on very reasonable Terms." [December 12, 1786,  12783, 11966 (no image)]  Three weeks later, he informed William Carmichael that, although the "Commotion" in Massachusetts had not yet subsided, the "Government has manifested great Moderation, and condescended to hear the Complaints of the malcontents with much Respect." The issue of the disturbances was still "far from certain," he noted, while the "Inefficiency of the federal Government" became increasingly manifest. To amend the system of government now engaged the "serious attention of the best people in all the States....Perhaps in a few months we will have a clearer picture of the prospects for a Convention," Jay added.[January 4, 1787, 7725 (no image)].

A sense of crisis and a burgeoning nationalism combined to shape Jay's constitutional thinking in the months before the convening of the federal convention. With Gouverneur Morris he had concurred in the view that a "national spirit is the natural result of national existence."[January 10, 1784, 11392]  To Lord Lansdowne Jay averred that "I cannot persuade myself that Providence has created such a nation, in such a country, to remain like dust in the balance of others."[16 April, 1786,  8172, 4070]

Jay believed that through constitutional reformation America's standing in the world could be enhanced. First of all, he held advanced views on centralization and the subordination of the states, views shared by Alexander Hamilton, perhaps alone among the Founding Fathers. In 1785 he wrote John Lowell: "It is my first wish to see the United States assume and merit the character of one great nation, whose territory is divided into different States merely for more convenient government and the more easy and prompt administration of justice, just as our several States are divided into counties and townships for the like purpose." [May 10, 1785,  5726, 1642]  The following year he expressed to Adams his gratification over the recent marriages of Elbridge Gerry and Rufus King to women from states other than their own. These "intermarriages," as he called them, "tend to assimilate the States, and to promote one of the first wishes of my heart, viz., to see the people of America become one nation in every respect; for, as to the separate [state] legislatures, I would have them considered, with relation to the Confederacy, in the same light in which counties stand to the State of which they are parts, viz., merely as districts to facilitate the purposes of domestic order and good government." [Jay to Adams, May 4, 1786, , 7461] Jay, in recognizing the depth of particularist tendencies, was more discreet than Hamilton about publicizing his views, and usually confined them to private correspondence. Nevertheless, his centralizing views would be evident in his later Supreme Court decisions, notably in Chisholm v. Georgia.

Secondly, although Jay had been one of the earliest and most consistent advocates of augmenting the powers of Congress in the areas of taxation and the regulation of commerce, he was concerned that an omnipotent Congress might be established. To prevent such a possibility he advocated the separation of powers and checks and balances. "I have long sought," he wrote Jefferson in 1786, "and become daily more convinced that the construction of our Federal government is fundamentally wrong. To vest legislative, judicial, and executive powers in one and the same body of men, and that, too, in a body daily changing its members, can never be wise. In my opinion, these three great departments of sovereignty should be forever separated, and so distributed as to serve as checks on each other."[August 18, 1786, , 5860]  Again: "Let Congress legislate," he wrote Washington in 1787. "Let others execute. Let others judge." To the executive he would give a veto power over the acts passed by a dual-chambered legislature. [January 7,1787,  8424, 10393 (no images)]

Thirdly, while Jay advocated a strong executive, he was not prepared to settle for a king "while other experiments remain untried." This commitment to republicanism was consistent with his support for popular sovereignty, which at this time manifested itself in his advocacy of a true constituent or plenipotentiary convention to be chosen by the people through state conventions and not by the state legislatures. Referring to the proposed Annapolis Convention, Jay advised Washington, "no alterations in the government should, I think, be made, nor if attempted will easily take place unless from the only source of just authority--the People."   If the Philadelphia convention did not pursue the procedural steps he outlined in this letter, the means adopted for ratifying the Constitution reflected his own principles about the locus of sovereignty [January 7, 1787,  8424, 10393 (no images) ].

Finally, the supremacy clause of the Constitution drew its authority from the circular letter to the states adopted by Congress in April 1787 as drafted by Jay. In that resolution the point was made that a treaty "constitutionally made, ratified and published" by Congress was "immediately binding on the whole nation" and superseded the laws of the land. No state could abridge its obligations.[Jay's draft, April 6, 1787,  3968, 4593]

JOHN JAY AND THE PHILADELPHIA CONVENTION (1787)

Although not in attendance at the meeting convened at Annapolis in September 1786 for the ostensible purpose of resolving interstate commercial disputes, Jay anticipated by almost a month the address to the states drafted by Alexander Hamilton and adopted on 14 September.  That address called upon all the states to send commissioners to a new convention at Philadelphia in May 1787 to discuss not only commercial problems but all matters necessary "to render the constitution of the Federal Government adequate to the exigencies of the Union." Meantime, as early as March of that year Jay had expressed support for a constitutional convention with much broader objectives. [Jay to Washington, March 16, 1786,  8420, 10391 (no image)]. More specifically, he spelled out in a letter of 18 August to Jefferson his strong views on the need for reconstructing the federal government [ 5860].  "The people," Jay reported later in the winter to Lafayette, "were divided in sentiment respecting the expediency" of such a course [February 16, 1787,  5886, 2493], and he was even doubtful that anything constructive would ensue. At best, Jay conceded, "no evil" was "to be apprehended" from such a meeting, and in the longer run, "much good."

Jay was undoubtedly the most influential proponent of constitutional reform who was denied an opportunity to attend the Philadelphia convention. Adams later said that Jay was "of more importance than any of the rest, indeed of almost as much weight as all the rest."   Adams himself and Jefferson, two of the other principal absentee Founders, were serving abroad at the time and unavailable, but Jay who was on hand and ready and willing was ignored. His name was not even placed in nomination either in the New York State Senate or the General Assembly.  When Hamilton, who had been selected, attempted to expand the New York delegation from three to five and urged Jay's appointment, his motion was defeated.  Despite his strong Federalist proclivities, Hamilton was acceptable to the legislature, even to the antifederalist Assembly, because of the general feeling that some constitutional reform was needed, and New York ought to send the author of the Annapolis report to Philadelphia. But one such delegate was thought to be enough. To check Hamilton's possible extremism, and to provide balance to the delegation, the legislature also chose Robert Yates and John Lansing, men of moderate views not yet clearly identified either with federalism or antifederalism, who could, if necessary, form a majority against their brilliant colleague.

While Jay was not a delegate and the Convention's deliberations were secret, there is some evidence suggesting that Jay was not inhibited from attempting to publicize his views among certain delegates. Prior to the convening of the Philadelphia meeting, as we have seen, Jay advanced some of the notions embodied in the Randolph Plan, including enlarged powers for Congress and the President, separation of powers, and checks and balances. On 25 July 1787 he addressed a letter to George Washington, the Convention's presiding officer, advancing the view that the Chief Executive should be a "natural born citizen," a suggestion to be embodied in Article II, Section 1, Clause 5 of the Constitution. [ 10627, 12782]

Some three weeks later he drafted a petition for the New York Manumission Society calling upon the Convention to give consideration to the manumission of slaves and the protection of freed blacks, but evidently on the advice of Hamilton, on leave from the Convention, he and his fellow members abstained from formally petitioning Congress.

While Jay complained that the protracted meeting in Philadelphia made it impossible to muster a quorum of nine states in Congress, essential to any action being taken on foreign affairs matters, [Jay to John Adams, July 4, 1787,  2503, 7463]  he approved the secrecy of the Convention's proceedings and believed that the longer the Convention lasted the likelier it would be productive of substantial changes in the federal structure. Once his father-in-law William Livingston went to the Convention as a New Jersey delegate in July, replacing William Paterson, who was obliged to return home, Jay began to receive communications which, while revealing nothing of substance, took on an optimistic tone. Despite his reservations about untramelled democracy, Jay had faith in the wisdom of the people and believed that, in the end, they would approve the Convention's results. As he wrote Jefferson on 8 September, "there is...a degree of intelligence and information in the mass of our people which affords much room for hope that by degrees our affairs will assume a more consistent and pleasant aspect." [Jay to Jefferson, September 8, 1787,  2514, 5907]

THE FEDERALIST (1787-1788)


The Great Collaboration

To refute the numerous articles critical of the Constitution which New York newspapers were carrying in the last week of September and the first week of October 1787 Hamilton conceived the idea of The Federalist. Initially Hamilton turned to Jay and William Duer as collaborators, and Jay responded at once, writing letters Nos. 2 through 5, while Duer's pieces were never used. Gouverneur Morris, though "warmly pressed," declined an invitation to participate. Turning out copy at breakneck pace, Jay had his initial letter, No. 2, published in the New York Independent Journal on 31 October, No. 3 on 3 November, No. 4 on 7 November, and the fifth letter three days later. Either before he left New York around the middle of November, perhaps on the 17th, or upon his return to the city from a trip to Philadelphia, James Madison was invited by Hamilton to join the enterprise. This was fortunate for both content and continuity, for between 10 November, when the fifth Federalist letter appeared, and some weeks prior to 7 March 1788, the date of publication of Jay's No. 64, the next and last contribution of Jay to that great seminal work, Jay suffered a serious bout of ill health. He seems to have been painfully crippled by rheumatoid arthritis, although he could report by 11 February 1788 that his health was "pretty well re-established."

Writing not many months after the collaborators had completed their contributions to The Federalist, Madison sent off a ciphered dispatch to Jefferson, naming Jay, Hamilton, and himself as the authors of The Federalist and adding some illuminating facts: "The proposal came from the two former. The execution was thrown by the illness of Jay mostly on the two others. Though carried on in concert the writers are not mutually answerable for all the ideas of each other, there being seldom time for even a perusal of the pieces by any but the writer before they were wanted at the press and some times hardly by the writer himself." Years later Madison volunteered a different version of why Jay discontinued his contribution, if we are to believe an unidentified source. When the question was put to Madison he reportedly replied, "After a few numbers had been published, Mr. Jay remarked to him [Madison] and Mr. Hamilton, that his [Jay's] style of writing was not calculated for the undertaking in which they had embarked. It was too mild and placid; and requested them to Exonerate him from any further connection with the publication. To this they assented."  There is no corroboration of this second account, and Jay's self-attributed sense of literary inadequacy is scarcely supported by prior or subsequent polemical writings. Jay's own letters in this period document the debilitating character of his illness.

John Jay and the Doctors Riot

That recovery was seriously jeopardized by the mishap that befell him as a participant in the Doctors Riot. The riot started on Sunday, 13 April 1788, when as a prank a medical student waved a dismembered limb at some boys below a window of the New York Hospital. The finding of dismembered corpses inside the building pointed to grave-robbing, and in the ensuing riot physicians and students from the hospital were forced to take refuge in the city jail. Hamilton, attempting to stop the rioters in front of Columbia College, was swept aside. Governor George Clinton and Mayor James Duane then sought to restrain the mob from attacking the jail, but even a small contingent of militia was chased away. By the following afternoon, with the jail still under siege, Matthew Clarkson and Jay, armed with their swords, marched toward the jail accompanied by some fifty militiamen. Jay was struck in the forehead with a stone, and others, including Baron von Steuben, similarly assaulted. Unconscious and bleeding, Jay, as his wife's letter to her mother of 17 April 1788 discloses, was carried home for emergency medical attention. Even reinforcements of a company of sabre-wielding cavalry galloping up Broadway failed to bring the rioting to a halt until the following day [Sarah Livingston Jay to Susannah Livingston,  6480]. For a time it was thought that Jay had suffered permanent brain damage. Evidently before this serious accident Jay must have completed his Address to the People of New York, a pamphlet which ranks with the Federalist letters as among the most notable contributions of the pro-Constitution camp to the ratification movement.

After the onset of Jay's illness in late November of 1787, Madison took up the slack with alacrity, contributing Nos. 10 and 14 to the section on the "utility of the Union," and three more. Nos. 18, 19, and 20, to the topic of the "insufficiency of the present Confederacy to preserve that Union." Madison then proceeded to contribute his insightful analysis of the text of the Constitution.

The Matter of Authorship

Of the eighty-five Federalist letters, all published under the pseudonym "Publius" (the name taken from Publius Valerius Publicola, a founder and defender of the Roman republic), only four drafts are extant, and all four are in Jay's hand. It remains a mystery to this day why not a single one of the fifty letters attributed to Alexander Hamilton and the twenty-nine to Madison have been preserved except in printed form. Considering the fact that both Hamilton and Madison were meticulous collectors of their own writings and shared a profound sense of the importance of documenting the principal activities in which they were engaged, their disappearance must be attributed to an intense desire for anonymity at the time the letters were composed and transmitted to the printer.

The authors meant to keep the identity of "Publius" a well-guarded secret to avoid prejudicing readers who might be persuaded by arguments had they not been put off by the names of the conspicuous Federalists who were the authors. Madison revealed his role and the names of his collaborators in private correspondence but in New York not more than a corporal's guard must have known for sure of Hamilton's involvement. Jay's connection was even a deeper secret. Indeed, he was forced to deny a sensational rumor that he was opposed to the Constitution. Obviously, among Antifederalists his authorship of some of the Federalist essays was not even a matter of speculation.

The absurd rumor about Jay's opposition to the Constitution first surfaced on 24 November 1787, when Philadelphia's Independent Gazetteer reported an unnamed source as relating that "his Excellency John Jay, (a gentleman of the first rate abilities, joined to a good heart) who at first was carried away with the new plan of government, is now very decidedly against it, and says it is as deep and wicked a conspiracy as has been ever invented in the darkest ages against the liberties of a free people." The report was quickly reprinted in newspapers across the Eastern seaboard. Jay's friends stamped the story as an incredible invention. As Washington put it, "It is very unlikely therefore that a man of his knowledge and foresight should turn on both sides of a question in so short a space. I am anxious however to know the foundation (if any) for this." Washington rightly suspected that "the enemies of the Constitution leave no stone unturned to encrease the opposition to it." In reply, Madison branded the report an "arrant forgery," and warned the General that "tricks of this sort are not unknown with the Enemies of the Constitution."

As for Jay himself, he was quickly alerted. Tench Coxe in Philadelphia sent a copy of the newspaper to David L. Franks, requesting him to "shew it to Mr. Jay." Jay quickly authorized the publication of his denial [Jay to John Vaughan, 1 December, 1787,  8166, 2566], and it was listed by "One of the People" in a refutation of "Antifederal Arguments," appearing in the Baltimore Maryland Journal, 25 December 1787, wherein this and other "deceptions" were exposed.

Had Jay's role in the writing of the Federalist been even suspected, it is highly unlikely that this trial balloon would have been floated. Moreover, by 24 November, the day the story first broke, Jay had withdrawn from the series because of illness, a fact that might have lent credibility to the allegation had his participation been known.

Whatever confusion of attribution survived publication of the Federalist was compounded by the desire of both Hamilton and Madison at different periods of their lives to set the record straight and claim the credit for their respective contributions. In Jay's case it was left for his family to do so. It is known that John Jay II once had possession of all five of his grandfather's letters, but as of September 1891, when the third volume of Jay's Correspondence and Public Papers appeared, its editor noted that the original draft of No. 2 was no longer extant. Although published anonymously like all eighty-five letters, there can be no dispute about Jay's authorship of these five letters in view of his holograph drafts and other incontrovertible evidence. In fact, Jay's authorship of these letters has never been seriously disputed. Some confusion, however, arose about No. 64, written on Jay's restoration of health, and it came about the following way.

Numerous lists identifying the authorship of the individual Federalist essays have been attributed to both Hamilton and Madison; significantly, no such list has been attributed to Jay. The most authentic Hamilton list is found on the inside cover of Chancellor James Kent's copy of The Federalist (first edition, 1788), now in possession of Columbia University Library. Kent wrote: "I am assured that Numbers 2, 3, 4, and 54 were written by John Jay," but the number "6" was superimposed over the "5" in "54" in Hamilton's own handwriting.  Kent appended this notation to the list: "N.B. I showed this above mem. to General Hamilton in my office in Albany and he said it was correct saving the correction above made." Beneath this notation Kent wrote: "I have no doubt Mr. Jay wrote No. 64 on the Treaty Power. He made a Speech on that Subject in the N.Y. Convention, and I am told he says he wrote it. I suspect therefore from internal Ev[idence] the above to be the correct List, and not the one on the opposite page."

The "Kent list" thus becomes the only evidence of authorship in Hamilton's hand which is now extant. Because it refers to Hamilton as "General" and because the conversation alluded to took place in Albany, it was presumably written between 1800, the year in which Hamilton resumed his law practice after having been occupied with his duties as Inspector-General of the Army, and 1804.

In the 14 November 1807 issue of the Philadelphia magazine, The Portfolio, notations reputed to be in Hamilton's handwriting and marked in a copy of The Federalist, attributed to Jay's authorship Nos. 2, 3, 4, 5, and 54, and this attribution cropped up again in the so-called "Benson list," which Hamilton allegedly wrote in the office of his longtime friend, Judge Egbert Benson, two days before his duel with Burr. Therein the attribution of No. 54 to Jay was quickly corrected by a friend of Hamilton as an obvious slip for 64 when it was published. In any event, the unsigned memorandum on which the report was based mysteriously disappeared, and its evidential value has a lower ranking than the "Kent list."

Madison, whose recollection of the respective authorship of The Federalist letters has been substantiated by studies of the internal evidence, may also have been guilty of a slip of memory in regard to No. 64. An article signed "Corrector," which appeared in the National Intelligencer of 20 March 1817, and which according to its anonymous author was copied from "a pencilled memorandum in the handwriting of Mr. Madison," stated on "indubitable authority" that "Mr. Madison wrote Nos. 10, 14, 18, 19, 20, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 62, 63, and 64. Mr. Jay wrote Nos. 2, 3, 4, and 5; and Mr. Hamilton the residue." Note that in this instance "64" could not have been a slip for "54," which is also, and in this case correctly, claimed for Madison.

When the historian-editor Henry B. Dawson was at work on his edition of The Federalist, which he published in 1864, he asked John Jay II to see the draft of No. 64, then in the Jay family possession. Jay's grandson obliged, and according to Dawson sent him "the original drafts of number LXIII" (later renumbered LXIV). Instead of returning them to the sender, as he had been explicitly directed to do, Dawson left the originals with the New-York Historical Society, and the librarian of that institution neglected to return the material to the Jay family. One of the two drafts remained in the Society's manuscript collection, its existence unknown until 1959, when Dr. Catharine S. Crary, a member of the staff of The Papers of John Jay, uncovered it in a box of Jay letters. If there was in fact a second draft, it has never been located since the Dawson-John Jay II exchange. In a memorandum accompanying the Historical Society's draft of No. 64, John Jay II stated: "Mr. Hamilton never claimed it, but Mr. Madison, although in one and I believe two clarifications of the authorship of the various numbers attributed 64 to Jay; in another, attributed 54 to Jay and 64 to himself."

In fairness to Madison, however, that contributor was either misquoted by "Corrector" or must have suffered a pardonable and rare lapse of memory in such matters. In three other places Madison correctly attributed No. 64 to Jay: (1) in an article in the City of Washington Gazette, 15 December 1817, which published a list claiming to have been "furnished by Madison himself"; (2) in the edition of The Federalist published in 1818 by Jacob Gideon, which based its attribution of authorship on James Madison's own "copy of the work which that gentleman had preserved for himself" (the 1809 edition by John Tiebout now in the Library of Congress); and (3) in a marginal note in Madison's hand found in a copy of The Federalist, belonging to Richard Rush, Attorney General in President Madison's Cabinet.

The fact is that only one Federalist draft, that of No. 5, remained in the possession of the Jay family when the Jay Papers were acquired by Columbia University in 1959. Copies of all known drafts have been made available to the John Jay Papers through the courtesy of the present or former owners. As the draft versions were undated, the editors have arbitrarily assigned to the drafts the date when the respective published version first appeared.

The Texts of John Jay’s Federalist Letters

Jay's letters Nos. 2 through 5 first appeared in The Independent Journal, or The General Advertiser , a semi-weekly paper edited by John McLean and Co., and a day or two later in both The New-York Packet (edited by Samuel and John Loudon) and The Daily Advertiser, edited by Jay's former protege, Francis Childs. No. 64 first appeared in The Independent Journal of 5 March 1788, followed on 7 March with publication in The New-York Packet. In its original newspaper version it bore the number "63," but was renumbered in the first collected edition. All of Jay's essays appear in that first edition, printed by J. and A. McLean, corrected by Hamilton and published on 22 March 1788. A second volume, containing the final batch of essays and containing no contributions from Jay, came off the press on 28 May 1788. In addition to the McLean edition there were two further American editions and two French editions published during Hamilton's lifetime. The third American edition (1802), printed by George F. Hopkins, contained revisions made by John Wells, a New York lawyer, presumably approved by Hamilton. Hamilton himself appears to have made some minor changes in the essays written by Jay, but there is no evidence that Jay participated in either proofreading or revising any of these editions. In addition, Madison supplied Jacob Gideon, Jr., a printer of Washington, D.C., with corrections of the papers he had authored. The Gideon edition came off the press in 1818.

Variances Between Jay's Drafts and the Printed Versions

A careful workman even under pressure, Jay labored over the drafts of the Federalist letters printed below, and the published versions differ in some cases in significant ways, markedly in the case of No. 64. Jay's first extant draft, Federalist No. 3, followed up on the theme of the previous Jay letter, for which no draft has been located. Federalist No. 2 stressed the sources of national unity, while overlooking a number of compelling areas of deep division--regional, ethnic, social, racial, and religious--and underplayed the opposition of a minority at the Constitutional Convention to the document as finally adopted. Jay's stirring concluding line quoted Cardinal Wolsey's comment when he learned of Henry VIII's decision to retire him, as Shakespeare has immortalized it (King Henry VIII , Act III, scene 2).

Federalist No. 3 [ 13367 (no image)] opens with one of the rare passages in Jay's writings praising the American people as "intelligent and well informed." In the draft, significantly, the phrase "left to the" was excised and "well informed" appears without this critical reservation.  This third letter focused on the role of a strong central government in preserving peace and security. The essay's principal significance lay in its incisive criticism of the separate states, which Jay depicted as more vulnerable to local pressures, more impulsive, more aggressive, and less able to manage foreign policy. One substantive change between the draft and the published version appears in the judicial machinery for the enforcement of treaties. Jay deleted the phrase "national courts" and substituted "courts appointed by, and responsible only to one national Government...." This change reflected his sensitivity to the fears shared by Antifederalists of a large federal judiciary administering a body of federal common law and undermining the authority of the state courts. Even Federalists like John Rutledge of South Carolina considered the establishment of inferior federal tribunals as "making an unnecessary encroachment on the jurisdiction [of the states], and creating unnecessary obstacles to their adoption of the new system." The Federal Convention had sidestepped the issue in Article III, which vests the judicial power in a Supreme Court "and in such inferior Courts as the Congress may from time to time ordain and establish." Jay tried to handle the ticklish issue with circumspection after reflecting the opinion of international jurists like Grotius in their differentiation between "just" and "unjust" wars, making the unique point that the federal government would be in a better position under the Constitution to prevent bellicosity on the part of the Americans themselves. Jay assumes, then, that all wars in which Americans participate were not necessarily just ones, and that the nation might be drawn into wars fomented by one or two states. Then a significant assertion: "Not a single Indian war has yet been occasioned by aggression of the present Foederal Government, feeble as it is, but there are several instances of Indian hostilities having been provoked by the improper conduct of individual States, who either unable or unwilling to restrain or punish offenders, have given occasion to the slaughter of many innocent inhabitants." In his Explaining America: The Federalist, Garry Wills incisively commented on this passage: "For more than a century, in the history of the republic Jay was arguing for, condemnations of fellow Americans for slaughtering Indians would be rarely heard and harshly received. The virtuous republic disappears when people no longer question their own virtue."

In the draft of Federalist  No. 4 [ 13331 (no image)], Jay anticipated the treatment of parties and factions which was developed in Madison's celebrated initial contribution, Federalist  No. 10. Pursuing the theme of the importance of national union in averting conflicts with foreign powers, Jay begins with a quotation attributed to Addison on the effects of party conflicts: "The Parties and Divisions amongst us may [in] several Ways bring destruction upon our Country, at the same time that one united house would secure us against all the Attempts of a foreign Enemy." Then in the final paragraph of the draft Jay speculated that if foreign governments "find us either...destitute of an effectual Government...or split into Factions or three or four independent...Republics or Confederacies...what a poor pitiful Figure will America make?" Jay therein acknowledges the weight of one of the most forceful contemporary arguments against party and faction, the likelihood that they would lead to foreign penetration and the establishment of outposts of alien influence in American public life. In these fleeting references, which he subsequently suppressed and did not publish, Jay was obviously referring to the relationship between factions and geographic divisions. He must have concluded that the subject deserved more concentrated attention in a future installment, and it was to be Madison not Jay who would pick up the theme of "the spirit of party and faction."

The draft of Federalist  No. 5 [ 10401] reveals Jay's tendency as a prudent lawyer to tone down his language and avoid stridency. For example, in the seventh paragraph of the draft Jay originally observed that "they who find themselves unjustly suspected of unkind Intentions, are by that very Circumstance naturally led to entertain them"--a phrase which may have proved too revealing about Jay and his Federalist associates, or, more likely, enkindle suspicions about Federalists which Jay preferred not to arouse. He chose instead the more guarded language which appears in the final text: "Distrust naturally creates Distrust and by nothing is good will and Kind Conduct more speedily changed, than by invidious Jealousies and uncandid Imputations expressed or implied."

A second, more substantive, change was made in the very next paragraph of the draft. Discussing the potential for future hostility between a Northern and Southern confederation should America fail to unite under the proposed Constitution, Jay revealed certain Northern prejudices in his speculation that Northerners would "be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbours." Jay retained the adjectives "luxurious" and "delicate" in his final version in preference to "less hardy and less enterprizing Neighbors," which he deleted. Jay must have realized that, although the Federalist was aimed at a New York audience, important Southern states still had to be persuaded to ratify the Constitution.

The paragraph that immediately follows is the longest in Jay's original draft of Federalist No. 5. Jay's draft suggested that mutual suspicion among the "three or four Confederacies" likely to emerge in the event the Constitution were rejected would create military establishments which "would oftener be turned against each other than against a foreign Enemy...." Jay must have concluded that the subject of standing armies, to which he had been led by his treatment of the consequences of disunion, needed more detailed analysis than could comfortably be contained within this one essay. Hamilton does give the subject a full-dress treatment in a later installment.

The concluding set of major changes from the original draft to the finished version of Federalist No. 5 reveals Jay's sound editorial judgment in cutting down verbiage, with the reduction of three paragraphs to two, and in concluding with a single, pithy sentence. Here the major substantive alteration is the deletion of another provocative sentence, both out of place and striking an unnecessarily discordant note: "Wicked Men of great Talents and ambition are the Growth of every Soil, and seldom hesitate to precipitate their Country into any Wars and Connections which may promote their Designs." There was enough history to substantiate the assertion, with its prophetic cast, but sober second thoughts prompted its omission.

Federalist No. 64 [ 10753], Jay's most important statement in the series to which he contributed--the only one of the five he wrote which deals with the text of the Constitution--draws upon his acknowledged experience in foreign affairs. Jay reworked this essay more than any of its predecessors, and in its published version it is substantially compressed and rewritten. These revisions suggest the possibility that Jay incorporated suggestions from Hamilton and even Madison, who left New York a day or two before No. 64 was published. Comparing the fourth paragraph of the draft with the third paragraph of the published version reveals Jay's constant effort to achieve a crisper style. Paragraphs five, six, and seven of the draft were either dropped or reworked. He deleted these specific verbatim points: (1) "The People at large may sometimes by Negligence or other Causes be led...into indiscreet appointments...." (2) "The State Legislatures very seldom lost Sight of their obvious Interests, or commit their Management to Men in whom they have little or no Confidence"; (3) "The People of America have not been hitherto sufficiently sensible of [the] Importance" of "the absolute Necessity of order and System in the Conduct of...national Affairs"; (4) "We must suppose that the Members from each State, however well disposed to promote the general good of the whole, will yet be still more strongly disposed to promote that of their immediate Constituents." The above statements reflect Jay's own doubts about the judgment of the people and his conviction that state legislatures were actuated by parochial rather than national interests. On second thought he must have realized that an essay designed to have popular appeal should not strike either note.

The paragraphs on "trade and navigation" and the necessity for secrecy and dispatch in the management of foreign policy (the last, a time-tested favorite of Jay's) similarly caused Jay stylistic problems, but they also include a variance of the first importance from the final version. In discussing treaty-making, the draft reads: "The Convention have done well therefore in so disposing of this power of making Treaties as that while they although the president is restrained by, must in forming them act by the Advice and Consent of the Senate, yet that he will be under no obligation to he will be able to manage all affairs of secret Intelligence in the way in which Prudence and Circumstances may suggest." Compare this with the published version: "The convention have done well therefore in so disposing of the power of making treaties, that although the president must in forming them act by the advice and consent of the senate, yet he will be able to manage the business of Intelligence in such manner as prudence may suggest." Then follows in both the draft and final version Jay's opinion that the President could decide in "preparatory and auxiliary measures" the circumstances "which require the advice and consent of the Senate...." Clearly Jay interpreted the "advice and consent" provision of Article 2 of the Constitution to be a requirement in "forming" treaties but not in either preliminary negotiation or in steps to carry them out.

There is, however, at least a hint that Jay believed that the President could not act unilaterally in terminating a treaty. Both the draft and the published version contain this sentence: "They who make laws may without Doubt repeal them and it is equally true that they who make Treaties may alter and annul them." This observation seems to argue for the view that the advice and consent of the Senate are needed to terminate a treaty validly. Omitted erroneously from the printed newspaper version is the crucial sentence: "With Respect to the Responsibility of the President and the Senate, it is difficult to conceive how it could be increased." Jay's position on this question seems reinforced by his opinion in Jones v. Walker, written some six years later while he sat in the Virginia circuit as Chief Justice. Therein Jay maintained that a treaty could not be repealed or annulled but by the will of those who have authority to repeal or annul it, and that "no right can be incident to the judiciary to declare it void in a single instance."

Federalist No. 64 goes on to deal with those provisions of the Constitution which declared that treaties had the force of law and that treaties made in pursuance of the Constitution were "the supreme law of the land." This interpretation is in accord with the supremacy clause of the Constitution, a provision founded upon the resolution of Congress of April 1787 that Jay had drafted.

In refuting the Antifederalist objections that under the Constitution two-thirds of the states could "oppress the remaining third," Jay incorporated a final series of changes from draft to published version which again opened windows into areas of his thinking, which he later chose to conceal. The No. 64 draft draws a parallel between the nation and the states reminiscent of the nationalist ideas contained in his earlier letters to Adams and Lowell mentioned above. As the original draft phrased it, "Every objection to the federal Constitution which [these criticisms] imply may at least with equal force be applied to this State [New York]. Will the Governor and the Legislature of New York make Laws with an equal Eye to the Interest of all the Counties." On reflection, Jay deleted this passage from his final text. The notion of reducing the status of the states vis-à-vis the federal government to that comparable to the standing of their own counties within the state would have ignited those very fires of suspicion which the Federalist letters were designed to allay. In the published letter Jay also dropped the last two concluding paragraphs, which by proposing that the treaty-making powers be given "a fair trial" weakened his argument.

While the explication of The Federalist has burgeoned over the years, it is difficult to estimate its immediate impact on the public. The pro-ratification press in New York was laudatory, as were various correspondents of Jay and his collaborators. How many Antifederal voters were converted is speculative. For example, writing from "Flat Bush" on 24 December 1787, some "27 subscribers" informed the New-York Packet that they were tired of seeing "Publius" in every paper and asked the printer to discontinue publishing the series.

JAY'S "AN ADDRESS TO THE PEOPLE OF THE STATE OF NEW-YORK ON THE SUBJECT OF THE CONSTITUTION" (March-April 1788)

Some time between the appearance of Federalist No. 64 in March 1788 and the Doctors' Riot, which occurred in mid-April, was the period when Jay wrote his seminal paper, An Address to the People of the State of New-York, On the Subject of the Constitution, Agreed upon at Philadelphia, the 17th of September, 1987. The Address was expected off the press by the 12th April, based on Jay's draft letter to Washington of that date, a day before Jay was seriously injured in the street violence of New York.  It was written prior to the spring election of delegates to the state ratifying convention and indubitably aimed at influencing the electors' choices. No draft of the Address is known to be extant. It has been evaluated as "far more important" than The Federalist to the political battle to get the Constitution ratified in New York.

The Address appeared as an anonymous pamphlet, considerably longer in text and more wide-ranging in subject matter than any of Jay's Federalist letters. Unlike the letters of "Publius," Jay's Address dealt with specific Antifederalist criticisms, most importantly those dealing with the absence of a bill of rights in the proposed Constitution and the desirability, as the Antifederalists saw it, of calling a second convention. The pamphlet format gave Jay ample opportunity to answer these points and to review the major arguments in favor of the Constitution: the weakness of Congress under the Confederation, the "virtue" and near unanimity of the Philadelphia framers, the Constitution's safeguards against the concentration of too much power, the unlikelihood that a better plan could be agreed upon by a second meeting, and the consequences to the nation of rejecting the proposed Constitution. The Address was distinguished by its moderate tone and soundness of judgment. Jay's wife reported from Elizabethtown that it was received "with great approbation." [Sarah Jay to Jay, June 19, 1788,  6520]  A more objective observer, writing from Poughkeepsie on 3 June, remarked: "Had the pamphlet attributed to Mr. Jay made its appearance a little sooner, I am well persuaded there would have been a still more complete revolution in the minds of the people. That publication treated the subject as relative to us in the proper light: as the States one after another came into the measure the great political controversy gradually changed its ground, and what was once a question on the merits of the Constitution now becomes only a question of public expediency and policy." Jay resisted Franklin's suggestion that he make his authorship known in order to add to the weight of the document [Jay to John Vaughan, June 27, 1788,  2567, 8144], but, according to Sarah Livingston Jay, Jay's "well known style" gave him away in any case. [June 19, 1788,  6520]  On 8 June 1788, Washington sent Madison a copy, although he had "little doubt" of Madison's having received a copy of it. "It is written with much good sense & moderation. I conjecture but upon no certain ground, that Mr. Jay is the author of it. He sent it to me sometime ago, since which I have received two or three more copies." As Jay's major literary contribution to the campaign for ratification in New York, the Address earned an esteem comparable to that of the seventy-seven Federalist letters published prior to the elections for delegates to the New York State ratifying.

JAY AT THE NEW YORK RATIFYING CONVENTION
(June-July 1788)

In the critical battles that lay ahead in the state of New York, the pro-ratification party or Federalists counted themselves fortunate in being able to draw upon Jay's literary and forensic ammunition. On 31 January 1788 New York State Senator Egbert Benson proposed to the state legislature that the delegates to the ratifying convention be chosen in the same number as the state assemblymen by "all free male citizens of the age of twenty-one years and upwards" and that they meet in Poughkeepsie the third Thursday in June. Despite the obstructionist efforts of the Antifederalists and the distinct coolness of their leader, Governor George Clinton, both houses passed the resolution setting elections for the end of April.

Nominees for New York City's delegates were not limited to the two opposing blocs, but were initiated informally and in response to a groundswell of recognition of the quality of the Federalist leadership, notably of Jay. As early as 20 February 1788, Jay's name appeared on a list of candidates offered to "Friends and fellow citizens." After proposing Jay's name, the writer asserted: "From his long services abroad and at home, and the nature of his present office as minister of foreign affairs, [he] must [be] supposed to possess the best information of any man in the United States, on our relative situation with foreign nations." Within a few weeks "An Independent Elector" and "A Citizen" included Jay on their proposed slates. A more formal "Federal Ticket" for New York City and County was proposed on 9 April on behalf of "a number of your fellow citizens" by Thomas Randall, prominent New York merchant and ex-Tory. Others rushed to join in endorsement, including groups styling themselves "mechanics and tradesmen," "a very numerous meeting of Germans, inhabitants of the city," "A Citizen and friend of GOOD ORDER," "a number of your Customers," and a long nominating article including the name of Jay appeared in the press on 22 April.

Laudatory references to Jay were by no means uncommon. A contributor to Childs' Daily Advertiser in the 21 March issue not only included Jay on his own list but, for the benefit of voters who had been out of the city during the war years, added this observation about the Secretary for Foreign Affairs:

The distinguished abilities, and unshaken integrity of Mr. Jay, recommended him at an early period of life, to all his acquaintance, as well as to the notice of the British Government, in the late Province of New-York, antecedent to the war, insomuch, that he would have been appointed to one of the first offices in that Province, upon the first vacancy that should happen. Nevertheless when the rights of his country became invaded by the British, he took a decided and active part in her favor; his uniform services since, both at home and abroad, particularly in the formation of the Treaty of Peace, so peculiarly advantageous and beneficial to the interest of the United States; in the management and prosecution of which, he had a principal share. Mr. Jay's legal knowledge is incontrovertible; his arguments are methodically arranged and drawn forth with judgment; he reasons logically and well, and excells most men in dissecting the arguments of his opponents and rendering them futile and nugatory; he is able and pointed in reply, and possesses the powers of persuasion in an eminent degree; in short Mr. Jay is endowed with the necessary qualifications to constitute a statesman.

Nominations continued throughout the month of April, including a Federalist rhymester whose doggerel ran:

Mr. Jay, Col. Hamilton, Harrison, Low
Are honest, good patriots all of us know.

 

Jay's name was also included in a nine-man slate adopted at a meeting "of a large number of respectable Mechanics and Tradesmen" assembled late that month at Vandewater's Tavern and chaired by Daniel Dunscomb.

Pro-Jay and pro-Federalist doggerel drew a response from one critic who, in offering a Jay slate, added with obvious sarcasm:

Come Panegyric to our cits and swains,
Reveal our future bliss in flowing strains,
And tell each simple rough laborious fool,
The well born and the rich shall rule.

 

On the eve of the election a group of "Many Federalists" issued a broadside which sought to controvert the anti-lawyer bias of some Antifederalists. They urged the electors "to chuse a less number of Lawyers," perhaps two, and proposed a slate of nine, significantly headed by lawyers John Jay and Alexander Hamilton, but with seven others, principally businessmen. Whether this was in fact a devious tactic of the Antifederalists to alert the voters to the dangers inherent in the proposed Constitution, which permitted the federal judiciary to intermeddle with the state courts, is a distinct possibility. A broadside which casts aspersions on the integrity of the legal profession could hardly be acceptable to a Jay or a Hamilton. Significantly, aside from Hamilton and Jay, none of the remainder of the slate was chosen.

Jay had predicted that the election would be "the most contested of any we have had since the Revolution.” [Jay to William Bingham, March 24, 1788,  12521 (no image)]  In New York City, however, that prediction did not prove correct, for there the Antifederalists did not even enter a slate, although some scattered votes were cast for their candidates. Some 2,836 ballots were cast, the largest number yet recorded in a New York City election.

Jay headed the victorious Federalist slate, according to the following votes:

John Jay 2735
Richard Morris 2716
Alexander Hamilton 2713
John Sloss Hobart 2713
Robert R. Livingston 2712
Isaac Roosevelt 2701
James Duane 2680
Richard Harison 2677
Nicholas Low 2651

Contrariwise, upstate the Antifederalists scored sweeping victories, giving them a more than two-to-one majority of Convention delegates, but only fifty-six percent of the total vote cast.

Long before the results of the balloting were known Jay realistically appraised the situation as "so formidable that the Issue appears problematical." [Jay to Washington, April 20, 1788,  10395, 8428] Yet hardly three weeks before the opening of the Poughkeepsie Convention, Jay seems to have worked out the strategy for the Federalist camp. While writing Washington on 29 May that the majority of the delegation comprised "anti-fœderal Characters," he then deleted from his original draft his expression of regret that the election had been delayed as "the Constitution continues [to] gain ground daily." The opposition had used "improper means" to deceive and alarm the people, "and with very considerable Success," but, he added, "Truth is constantly extending and will prevail." In his draft Jay pointed out that these methods had aroused much indignation, that it was doubtful "whether the Leaders will be able to govern the Party," and that "many in the opposition are friends to Union and mean well" while their leaders were "very far from being Sollicitous about the Fate of the Union." The leaders wanted the Constitution rejected swiftly with as little debate as possible, but he doubted whether their followers would take such "desperate" measures. The implication was clear: insist on full debate and divide the opposition on tactics. A second point Jay made was found in the remark that "An Idea has taken air that the Southern part of the State will at all Events adhere to the Union, and if necessary to that End seek a Separation from the northern." That contingency was one of which the opposition was fearful and with which they had no plans to cope. Jay struck out a last observation: "The Truth is," he added, "that few among them are remarkable for talents," but these men "may perhaps occasion" trouble. [Jay to Washington, May 29, 1788,  10397; 8430]

Jay's observations were indeed shrewd. Instead of deep-seated opposition to the idea of a federal union, there was a fairly general consensus that the Confederation had to be replaced with something better. Bear in mind that New York had been the very first state to propose a general convention to revise the Articles of Confederation and had done so back in July of 1782. What the more persuadable Antifederalists really sought six years later were assurances that the defects of the proposed Constitution could be remedied. Thus, four days after the Convention met, Jay wrote his wife that the "Proceedings and Debates have been temperate, and inoffensive to either Party," even though, and he underscored this, "The opposition to the proposed Constitution appears formidable, the more so from numbers than other Considerations." [Jay to Sarah Jay, June 21, 1788,  5303, 4018 (no images)]

Jay might have added that two days earlier the Federalist strategy that he had outlined in his letter to Washington was set in motion. On June 19th the Convention adopted the resolution offered by Jay's former law partner, Robert R. Livingston, "That no question, general or particular, should be put in the committee upon the proposed Constitution of Government for the United States, or upon any clause or article thereof, nor upon any amendment which should be reposed thereto, until after the said Constitution and amendments should have been considered clause by clause." This, the Jay strategy, would ensure ultimate victory for the Federalists.

From this point on the Constitution was debated article by article, and we are able to pursue Jay's own remarks on the floor of the convention through some half dozen accounts, printed or manuscript. All available reports of the convention are fragmentary. The fullest account was published by Jay's erstwhile protégé, the newspaper printer Francis Childs, who issued a set of Debates and Proceedings, which unfortunately lacks a record of debates beyond June 28th and thereafter merely summarizes motions introduced. Supplementing Childs' account is the "Journal of the Proceedings of the Convention" kept by the Convention's secretary, John McKesson, in the New York State Library, as well as his "Notes" in The New-York Historical Society. To fill in the missing gaps, and for comparative purposes, the editors also used Melancton Smith's "Notes" in the State Library, the notes of Gilbert Livingston of Dutchess County, which contain the most complete record for the period beginning July 14th, in the New York Public Library, the fragmentary account by Robert R. Livingston in The New-York Historical Society, and the fragment by Robert Lansing covering June 27-28 in the Genet Papers at the Library of Congress. Finally, the editors have had to take into account contemporary newspaper coverage as well as Jay's correspondence during his weeks at Poughkeepsie.

Jay's early appearance on the floor of the Poughkeepsie Convention caught the fancy of a correspondent for the New York Daily Advertiser. Reporting Jay's initial remarks, he wrote under date of 21 June, "After the Chancellor had concluded, Mr. Jay arose, commanding pleasure and satisfaction; and, no doubt, he spoke convincingly on the points raised. He has the most peculiar knack of expressing himself I ever heard. Fancy, passion, in short everything that makes an orator, he is a stranger to; and yet none who hear but are pleased with him, and captivated beyond expression." A gentleman in Poughkeepsie writing to his friend in Connecticut, under date of 26 June, "found Mr. Jay's reasoning" to be "weighty as gold, polished as silver and strong as steel."

From his initial speech on 23 June, in which he examined Article I, section 2, clause 3, supporting the ratio of one representative to 30,000 persons, Jay stressed moderation and persuasion. He continually pointed out areas of agreement with his opponents, such as the need for a strong, energetic federal government (such declarations, he remarked, "came from all parts of the house"), and distinguished between state and federal concerns. He pointed out that the differences between the leader of the opposition bloc on the floor, the amiable Melancton Smith, and himself over the question of proper representation were truly minimal, since Smith was willing to have the federal government possess the important power of war and peace. For the exercise of such great powers Jay was prepared to accept a relatively modest proportional representation in the lower house, while conceding that a much larger one for the state legislature would seem reasonable to deal with internal domestic affairs. The truth, as Jay pointed out, was that state legislatures were concerned with "innumerable things" requiring "such minute and local information." The objectives of the general government were broad, comprehending "the interests of the States in relation to each other, and in relation to foreign powers." We do not require our nation's representatives to possess minute information about Suffolk, or Orange, or Ulster. He himself would have preferred a larger representation, Jay admitted, perhaps similar to what Melancton Smith desired, but because agreements on this figure were so diverse, "I think it best to let things stand as they are," he remarked. "If I could be convinced that danger would probably result from so small a number," he added to the opposition, "I should certainly withhold my acquiescence." Again, a conciliatory peroration: "We did not come here to carry points. If the gentleman will convince me I am wrong, I will submit.... It is from this reciprocal interchange of ideas, that the truth must come out."

Two days later Jay rose to reply to Samuel Jones, who opposed giving Congress the power of prescribing the time, place, and manner of holding elections. Jay regarded the Constitutional provision as vital to "prevent the dissolution of the Union" in the event that a state "by design or accident" should fail to choose Senators or Representatives. By this date Jay was able to report to Washington that the complexion of the Convention was about as anticipated, that neither party had really budged the other, and that until the rank and file of the Antifederalists realized that their leadership was anchored to an extreme position no forward movement was likely. Nonetheless, and more significantly, he noted that "the greater number" of the Antifederalists were, in his opinion, "averse to a vote of Rejection." Some would be content with recommendatory amendments; others wished for explanatory amendments to settle points of doubtful construction. Still a third group would insist on amendments precedent to ratification, and were even in favor of adjourning at that time to wait and see how the new government would operate before joining the Union. By this time the ninth state, New Hampshire, had ratified, and the new union was a fait accompli, a fact which had an intangible but significant impact on the course of the Poughkeepsie debates. Jay could now tell Washington that "the people...are gradually coming right notwithstanding the Singular pains taken to prevent it." [Jay to Washington, (ca. June 27, 1788),  8431; 10398]

His relatively optimistic report to Washington notwithstanding, Jay was not sanguine about the outcome, writing to his friend John Vaughan on June 27th that "the issue is uncertain." [Jay to Vaughan, June 27, 1788,  2567; 8144, 8167] Indeed, Jay had good reason for concern. On the 26th of June John Williams, an upstate delegate, had proposed a resolution denying Congress the power to impose an excise tax on products grown or manufactured in the United States, with strict limitations on direct taxes (in terms almost anticipating California's Proposition 13). Jay would have rushed into the fray at once, save for the fact that for a day or two Hamilton and Lansing were feuding on the floor. Meantime, the opposition had confused issues by raising the point of concurrent powers of the federal government and the states aside from taxation. Jay felt that these observations were "not matured"--we would say "half-baked," but Jay was always polite. He insisted that until more precise points were fashioned it might be wise to go home "to cut our Grass" rather than take up matters "by halves." Whether Jay and his supporters were bluffing or were confident that time was on their side would be anyone's educated guess. When Governor Clinton, the Convention's presiding officer, seemed to call the bluff and asked Jay why he did not then move to adjourn, Jay responded by insisting that Clinton's side spend some time in clarifying their notion of direct taxes.

The very next day saw Jay take the floor to make one of his most telling speeches, when he insisted that "a government which was to accomplish national purposes should command the national resources." Would it be right, he asked, for the interest of a part to supplant that of the whole? Distinguishing between general and specific taxes, he argued that, as regards the latter, Congress would be sufficiently informed to make appropriate decisions. As he saw it, no minute knowledge was required to impose taxes on luxuries--for example, a tax on coaches (thereby anticipating Hamilton's carriage tax), or slaves, or plate. Recognizing that some ambiguity existed over the question of concurrent jurisdiction over taxation, Jay was prepared to have an explanatory clause incorporated. "I may be cured by an explanatory amendment," McKesson quotes him as conceding.

The Antifederalists now moved beyond seeking to curb Congress' taxing power, aiming as well to curb the power of the federal government to borrow money. Lansing would have required nine states to acquiesce. Jay swiftly rose to his feet to point out that "factions" not unknown to "republican governments" might prevent a third of Congress from allowing the other two-thirds from obtaining a loan "when the Exigencies of the State required it or when it would be for the public Good." Even foreign nations might try to prevent Congress from borrowing money in the national interest. Jay then informed Governor Clinton that, unlike the Senate, where the two-thirds rule was in force for treaties and impeachment, the lower house had nothing to do with treaties; it represented the people whereas the Senate represented the states--for the Federalists always a significant distinction. As for impeachment, the two-thirds rule was designed to prevent factions from removing officials for political reasons. Frequently Jay struck a sectional note. In case of a war the Western states would have the power to refuse a loan to support the defense of the Atlantic states, the most likely targets and sufferers in such an eventuality. "Would you put it in the power of five men to disarm a Continent?," he asked. At this point, Hamilton reinforced Jay's arguments in a powerful address, stressing national security considerations in supporting a loan by majority vote.

Differences over textual matters, amendments compounding amendments--nothing could spoil an Independence Day celebration in Poughkeepsie. Despite unsettled weather, (it had been steadily raining for days) both factions celebrated a feast together--that is, not quite together. As Jay described it, "two tables, but in different Houses" were laid out for the delegates, but "the two Parties mingled at each Table" and toasts were announced "by sound of Drum, accompanied by the Discharge of Cannon." [Jay to Sarah Jay, July 5, 1788,  4019 (no image)]. After this display of patriotic good will, the two parties settled down to continue their dissection of the Constitution. How different was the celebration of July 4th in Albany, where Federalists and Antifederalists clashed, with one dead and eighteen participants wounded! [Jay to Washington, July 8, 1788,  10400].

As of July 4th, Jay could write John Adams that despite the "many amendments proposed by the opposition...we proceed with much Temper and moderation. I am not without Hopes of an accomodation altho my expectations of it are not very sanguine." [Jay to Adams, July 4, 1788,  6420, 7467]  As he remarked to another correspondent that same day, there was reason for cautious optimism since the people of the southern part of the state were "with great unanimity" advocates of the Constitution." "Meantime ratification by the other states proceeds." With this trend in public opinion Jay felt free to predict that the opposition would seek "some line of accomodation that they may acquit them with their Partizans." Whether this face-saving would involve "conditional" or "recommendatory" amendments was still not clear.[Jay to Francis Corbin, July 4, 1788,  12844] That same day Jay dispatched a congratulatory note to Washington on Virginia's ratification. "The constitution," he assured the general, "constantly gains advocates among the People, and its Enemies in the Convention seem to be much embarrassed." [Jay to Washington, July 4, 1788,  10399]

By the eighth of July the delegates sitting as a Committee of the Whole had completed their examination of the Constitution, allowing Jay to write Washington that "the ground of Rejection" seemed to be "entirely deserted," with the opposition reported to be divided on whether to insist on "previous conditional amendments," or on "subsequent ones," to which latter view the "greater number" were disposed.[Jay to Washington, July 8, 1788,  10400]

By the tenth of July some 55 amendments had been proposed, which Lansing's motion would have grouped into three categories: explanatory, conditional, and recommendatory. To deal both with the issue of the nature of ratification as well as the amendments a fourteen-man committee was appointed. On the Federalist side it included Jay, James Duane, John Sloss Hobart, Peter Lefferts, and Richard Hatfield. The Antifederalists were represented by Robert Yates, Lansing, Melancton Smith, Thomas Tredwell, John Haring, Samuel Jones, and Gilbert Livingston. What happened in committee was not included in the official reports but appears in the New York Daily Advertiser of July 15th, quoting from a letter from Poughkeepsie, "dated in the morning of the 11th instant": "When the committee met, Mr. Jay declared that the word conditional should be erased before there could be any decision on the merits of the amendment; this occasioned about an hour's debate, and the Antis determining not to give up that point, the committee was dissolved without effecting any Thing." Backed by Judge Hobart and other Federalist colleagues, Jay argued that a conditional ratification amounted "to a virtual and total rejection of the Constitution, and declared that they could not consult with them at all, if they insisted upon that point." "Both parties were firm," the report concluded, and the committee disbanded without reaching an agreement.

That afternoon Jay reported to the Convention the failure of the informal committee to agree. "No plan of conciliation has been formed," he confessed, "and no measure taken." Jay laid the blame at the door of the Antifederalists for "adhering rigidly to the principle of conditional adoption, which was inadmissible and absurd." According to the correspondent, "he went into a consideration of the nature and tendency of such an adoption, compared it with the powers delegated to the Convention, as well as to the powers of the future Congress, and inferred that [a conditional ratification] would amount to a total rejection." He called on the opposition repeatedly to answer his arguments. The very next morning Jay opened the Convention's business by charging "the unfairness of the proceedings of the informal Committee," and registering the complaint that "when met for mutual discussion they had only been insulted by a complete set of propositions in a dictatorial manner for their passive acquiescence."

That same day, July 11th, Jay moved that the Constitution be ratified with such explanatory amendments as were deemed useful to be recommended. Jay was reported as having spoken "forcibly" and commanded "great attention." Chancellor Livingston, Chief Justice Morris, and Hamilton spoke in support of the motion, with Melancton Smith leading the opposition. One correspondent described the speeches of the Federalists as "masterly" and "animated" and reported that they "made sensible impressions on the minds of such Antifederalist members, who have not yet rendered their conceptions entirely callous, by pre-conceived prejudice, to the voice of truth--to sound and eloquent reasoning." Thus, "the great question," as one correspondent noted, was the adoption of the Constitution without conditions before any decision could be reached on the Lansing amendment.

The debate initiated on July 11th by Jay's motion continued for four full days. As this phase of the debates was drawing to a close by July 15th, Hamilton conceded that his side was willing "to go as far as they thought safe, in recommendatory and explanatory amendments." He then read a "list of amendments"--some thirteen in all--he and his side were prepared to support. Jay announced his backing for the Hamilton list. "We are endeavouring to agree," he remarked. "Gentlemen, see we have brought forth valuable amendments." He then suggested that the number of the original list of amendments be "pared down" to achieve a consensus, indicating that both sides now seemed to be in an accommodating mood.

As the debate drew to a close, Smith moved that the Constitution be ratified on condition that a second convention be called to consider amendments limiting out-of-state activities by the militia, restricting the power of Congress to determine the time, place, and manner of elections, prohibiting federal excises, "ardent spirits excepted," as well as the laying of direct taxes by Congress "within this state."

Jay responded by noting that the issues raised by Smith were matters to be decided by the people, not by their agents or attorneys. He followed the very next day with an eloquent plea for accommodation in which he praised some of the proposed amendments as "valuable," while urging that the number be pared down to achieve a consensus. In one of his longer and more compelling arguments delivered the following day, Jay urged the defeat of the conditional amendments proposal. He pointed out that since Congress had no power to change any part of the Constitution, such a conditional ratification would have the effect "of necessity" of New York's remaining out of the Union. Then he struck a characteristic note combining conciliation and caution:

We are sent here on a most important occasion [by] Our Constituents calmly to consider and wisely to decide on the proposition before us. We were sent here to serve general Purposes and promote public Good. We should reason together; let us reason first and decide afterwards. This Constitution is the work of freemen who have given to the world the Highest Evidence of Patriotism, disinterestedness, wisdom and great Abilities. Therefore let us examine Cautiously before we reject.

Jay then proceeded to point out that ten states had already ratified, after having argued the merits at length. "It has grown too fast to be pulled up by the Roots." Should we remain out of the Union, what, he asked would be the internal condition of the state of New York? How about the attitude of our neighbor states? Meantime, the federal government will be organizing, laws will be made, and New York have no hand in either activity. Consider the benefits, he reminded his listeners, of Congress sitting in New York and of the U.S. treasury and mint being located there, of the amount of specie which the presence of the federal government will bring into the state. Let us remember, he counseled, that "many men of virtue" in other states have found amendments desirable. "The door is open. Let us agree," he urged in his peroration. "We will have our Constitution and you will have your Amendments."

It was Melancton Smith who on July 17th brought the Convention into focus by proposing a resolution supporting the ratification of the Constitution under Article V, while reserving the right to withdraw within an unspecified number of years if the Constitution was not amended in a second convention to be called by the New York legislature with a circular letter to the other states setting forth the reasons for the call. After adjourning until the next day, the Convention once more went into a committee of the whole. "The Party seemed embarrassed, fearful to divide among themselves, and yet many of them were very averse to the new plan," Jay reported cheerfully to Washington.[Jay to Washington, July 17, 1788,  10601, 8432]. "It is difficult to conjecture what may be done out of doors today," Jay added, but a good deal must have been accomplished off the floor, and recent scholars, reflecting the testimony of Antifederalists, attributed the bulk of it to Jay's persuasive voice.

Jay, with support from Hamilton, closed the debate on the Smith motion by reiterating the point that conditional ratification amounted to "no ratification." Proposing amendments to the Constitution subsequent to its ratification was a proposition always acceptable to Jay, even though he had contested some of the proposed amendments which struck at the heart of the federal government's ability to function. Thus, when on July 22d "the declaratory part of the proposed Bill of Rights came up for consideration, both Jay and Hamilton, according to a newspaper correspondent, "made some objections, if I recollected aright, to the wording of the several political maxims, and contended that some of them were not expressed with precision and accuracy, although they were truths to which they readily yielded their assent." As regards the amendment earlier proposed curbing a standing army or control of the militia by the federal government, Jay argued against such curbs as being counter to "the dictates of œconomy; for that on such occasions the government, contemplating their full and entire direction of the militia, would avoid the raising or the increase of their standing forces, to the degree that the national emergencies might otherwise require; and that the dictates of safety were against it. For, as he and Mr. Hamilton, I think, both observed, the surest way to force government into the necessity of maintaining armies, was by fettering their authority over the militia."

From the beginning Jay had made it clear that he sympathized with those who felt that the Constitution might well be improved by amendments which would be in order following its adoption and in accordance with its own provisions. Thus, in the debates on a Bill of Rights, Jay asked why the proponents did not list all the unalienable rights but only singled out three, and he made a point of opposing extending the exemption to bearing arms to conscientious objectors other than Quakers. However, four days later, on July 22d, Jay seconded Melancton Smith's motion for an amendment setting a maximum eight-year term for President. He supported this proposition over Hamilton's opposition on the ground that the amendment prevented a President for running for a third term. Indeed, Jay would soon introduce an amendment of his own.

The Convention was fast approaching its climax. By July 23d Jay could write Washington that the Convention by a vote of 31 to 29 had adopted the motion of Samuel Jones and stricken out the words "on condition," substituting "in full confidence." He cautioned nonetheless that the opposition planned "to rally their forces" for a last stand.[Jay to Washington, July 23, 1788,  12498, 5349] On July 24th Jay took the floor to express the hope that unanimous agreement could be reached for a second convention, striking a harmonious note: "We are now one people, all pledged for amendments." Toward the very end of the ratifying convention, on July 25th, Jay himself proposed an amendment barring all except "natural born citizens," who were freeholders as well (with some specified exceptions) from eligibility as President, Vice President, or as members of either house of Congress, a restriction even more severe than that which he had proposed to Washington in July of 1787. Lansing's effort to delete the restriction to freeholders was defeated, and Jay's proposed amendment was adopted by a large majority, to be included in the final list of recommendatory amendments submitted by the Convention. Fortunately for the country this proposed amendment, like so many of the others recommended at Poughkeepsie, was never incorporated into the Constitution, for the nation would have been deprived of the contributions of some of Congress' most talented members. Finally, during the wind-up sessions, Jay indicated a willingness to have the Bill of Rights "expressly" reserve to the states and the people "all the rights not granted in the Constitution," a major concession to states'-rights sentiment that finally appeared in the 10th Amendment.

Shortly thereafter a committee comprising Jay, Lansing, and Melancton Smith was charged with preparing a Circular Letter to the Governors of the other states (28 July 1788). Jay's principal authorship seems likely since we have a copy in his hand in the McKesson Papers, and he was far and away the most experienced draftsman of the three. The Circular Letter struck that conciliatory note that characterized Jay's consistent performance:

We observe that amendments have been proposed and are anxiously desired by several of the states as well as by this; and we think it of great Importance that effectual means be immediately taken for calling a Convention to meet at a Period not far remote....It cannot be necessary to observe that no Government, however constituted, can operate well, unless it possesses the Confidence and good will of the Body of the People.

The letter was agreed to unanimously. But the battle was not quite over. The Convention had to vote down a new motion by Lansing reserving the right of the state to secede if the amendments were not adopted. Lansing's motion was defeated by the perilously close vote of 31 to 28, and by almost the same slim margin of 30 to 27 the Convention ratified the Constitution, with Antifederalists, including Gilbert Livingston, Melancton Smith, and Samuel Jones switching to the Federalist side while seven Antifederalists abstained.

In sum, it now appears that the objections to the Constitution on the part of the majority of the Antifederalists were never so deepseated that they could not be resolved by compromise short of conditional ratification. The sequence of events by which the Union had become a fait accompli before New York's final vote weighed heavily on the delegates at Poughkeepsie. The prospect that New York City might go it alone, isolating the rest of the state and costing it substantial revenue, along with the city's own concern that it might not be chosen as the seat of the new government should the state not ratify, seem to have been substantial, if intangible, considerations. Above all, however, the cause of the Constitution owed most to the fact that men of good will remained conciliatory and flexible, willing to be persuaded by better arguments.

In that victory no inconsiderable part was played by the universally respected, conciliatory, openminded, and persuasive Jay. From the start of the Poughkeepsie Convention he had been prepared to consider amendments. He proposed one of his own and seconded another, openly differing with Hamilton as regards the latter. Furthermore, Jay's willingness to accept "some express reservation of state rights amounted to a major concession, one that would be implemented by Madison's carefully-phrased Tenth Amendment.

Finally, in drafting the Circular Letter calling for a second convention, Jay went further in meeting the Antifederalist opposition than did any of the Federalist leaders present at ratifying conventions in the other states. Indeed, while four other state conventions had called for amendments, New York alone added to its list of recommended amendments a call upon Congress for another convention under the procedures set forth in Article V of the Constitution. In sum, when a correspondent in a Boston newspaper listed Jay among those not showing "blind idolatry for the Constitution," he could justifiably point to the conciliatory posture Jay had taken at Poughkeepsie.

Jay's Circular Letter proved unwelcome news to James Madison, who expressed the fear that it would have "a most pestilent tendency." Indubitably, the Circular Letter proved a fillip to Antifederalists not only in New York, but in Virginia and Pennsylvania as well, while definitely encouraging the opposition in holdout states like North Carolina and Rhode Island to delay ratification. Even in the short run Madison's fears of the ill effects of Jay's Circular Letter proved unfounded. In Jay's own state, despite the campaign launched on 30 October by a group of "Federal Republicans" headed by Customs Collector John Lamb and including Melancton Smith, sentiment was already moving in a contrary direction. A fortnight earlier Jay had been able to report to Edward Rutledge that the temper of the opposition, once "violent," had "daily become more moderate." While the proposal for a second convention should, in Jay's judgment "terminate all questions on the subject. If immediately carried," he observed, "its friends will be satisfied, and if convened three years hence, little danger, perhaps some good will attend it."

The proposal for a second convention was also advanced by a Pennsylvania Antifederalist Convention called in Harrisburg in September 1788, and by the Virginia legislature, but, when the proposition came before the House of Representatives in May 1789, Madison swiftly responded by systematically pruning and styling the various and numerous amendments submitted by the ratifying conventions and reduced them in number to a Bill of Rights. Their adoption cut the ground from under the move for a second convention, although this mode of ratification has found its proponents from time to time.

As for Jay, we know from his own admission that he was not displeased that the country did not rush into the second convention.[Jay to Washington, September 21, 1788,  10406] Soon to be Chief Justice, he would have a Constitution to interpret, and uncertainty and instability were the last things that he and his Federalist colleagues would have desired.

This essay is adapted from a series of head notes prepared by Richard B. Morris and his staff for his planned volume 3 of his edition of The Papers of John Jay, and represents the late Professor Morris’s last analysis of Jay’s relationship to the Constitution .


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