The Founders at Home: The Building of America, 1735-1817

by Myron Magnet

  America was a brand-new democracy, and experience, Jay foresaw, would increasingly teach its citizens and legislators to pursue the public interest in addition to their self-interest. “It takes time to make Sovereigns of Subjects,” he wrote, and like Jefferson he favored cheap and widespread schooling, and even state subsidies to universities, to mold a civic culture of self-government alongside “the Spirit of Enterprize and adventure” that already prevailed.126 He thought churches equally essential to improve the national culture, and he helped fund both the new building that replaced the Trinity Church where he’d been baptized, which had burned in the great Manhattan fire of 1776, and the exquisite little brick St. Matthew’s Church near his farm, where he worshipped with his dog, Bob.127

  But these institutions could accomplish only so much, he knew. Especially after two years in Enlightenment Paris, he had no patience with the philosophe notion of human perfectibility, an idea he jeered at more sarcastically the older he got. You just have to read the newspapers, he wrote, to know “the Vanity of expecting, that from the Perfectability of human Nature and the lights of Philosophy, the Multitude will become virtuous and wise, or their Demagogues candid and honest.”128 Advances will be real but finite: “Human knowledge and experience will doubtless continue to do good, in proportion to their extent and influence,” he wrote; “but that they will ever be able to reduce the passions and prejudices of mankind to such a state of subordination to right reason as modern philosophers would persuade us, I do not believe one word of.”129 Furthermore, this human reality means that teachers, pastors, and leaders of abilities and virtue will never make permanent gains: “political like other fields, require constant attention—when neglected, they soon become unproductive; and fresh Weeds Briars and Thorns will gradually spring up.”130 Even after all our labors, Jay concluded, “I do not expect that mankind will before the Millennium be what they ought to be.”131

  WITH THE CONSTITUTION ratified—Jay helped persuade New York’s convention to sign on with a soothing Address to the People of the State of New York and a bare-knuckled threat that Federalist New York City would otherwise secede from the anti-Federalist state—George Washington took the oath as the nation’s first president on April 30, 1789, on the balcony of New York’s city hall, where the Stamp Act Congress had met almost a quarter century earlier. Renamed Federal Hall, the 1699 building, home to the U.S. Congress since December 1784, sported a new façade designed by Pierre L’Enfant and finished only days before the inauguration.132 Around the corner at 133 Broadway, in one of the capital city’s grandest houses, lived John Jay, now the father of four (with one more to come), rich (thanks to inheritance and his own New York real-estate investments), the accomplished host of glittering dinner parties “à la Française,” according to John Adams’s daughter, and, from September 26, 1789, the first chief justice of the United States.133

  It turned out to be a less glamorous job than he expected, however. Much less. With the Constitution brand-new, few issues required Supreme Court rulings: the Court’s first session, with only four of the six justices present and no cases, broke up after a week in February 1790. And then the really unglamorous part of the job began, since the justices also presided over the federal courts in the states. Twice a year, they “rode circuit,” so in 1791, after the nation’s capital moved to Philadelphia, Jay had to travel there for his Supreme Court sessions, then return to New York for the circuit court, and press on to courts in New Haven; Boston; Portsmouth, New Hampshire; Newport, Rhode Island; and finally Bennington, Vermont—“carrying justice as it were to every man’s door.”134 He rode on horseback, often on “Roads rendered bad by Snow and Ice,” he wrote Sally. “I have had so much to do with cold and wet, that I really do wish for a Respite.” Thinking it improper for a judge to accept the many invitations to stay with friends on his circuit, he slept at inns that ranged from “clean” and “obliging” to “bad.”135 He and Sally hated the separation: “Oh! my dr. Mr. Jay,” Sally wrote, when all the kids had fevers, “shd. you too be unwell & absent from me, & I deprived of the satisfaction & consolation of attending you how wretched I shd. be!”136

  He had told Washington he wanted the job chiefly because he thought the Court could complete his great work, the Treaty of Paris, by solving the British debt problem, which was now not merely keeping the redcoats stubbornly in their American forts but also stoking up red-hot anger that Jay and Washington feared could ignite a new war.137 So piece by piece, he chipped away at the issue on his circuit-court rounds. In Connecticut in 1791, his court overturned—as a violation of the treaty, which was now the law of the land—a state law preventing British subjects from collecting interest due on pre-war debts from Connecticut citizens, probably the first time a federal court overruled a state law on constitutional grounds. In Rhode Island the next year, he threw out a state law granting a three-year delay to debtors whom a British merchant was suing for repayment, ruling that the law violated the Constitution’s contract clause. In 1793, he rode the circuit that included Virginia, a state that accounted for almost half the debts to British creditors, more than a hundred of whom were suing Virginians. The defendants’ lawyers, Patrick Henry and John Marshall, put on “one of the most brilliant exhibitions ever witnessed at the Bar of Virginia,” one observer exclaimed. But they lost. The court ruled that the Declaration of Independence didn’t cancel debts to Britons and that a Virginia law shielding debtors was an unconstitutional violation of the Treaty of Paris.138

  BUT JUST WHEN John Jay, Patrick Henry, and John Marshall were performing their drama in a Richmond courtroom, “the astonishing Tragedy which the French Revolution has introduced on the Theatre of the World,” as Jay termed it, had raised the curtain on its darkest act, with the beheading of Louis XVI in January 1793 and France’s declaration of war against England the next month.139 For all Jay’s efforts to resolve the debt issue, the revolution stirred up the smoldering anger between Britain and America to explosive rage.

  The British believed that America planned to join its old ally, France, in the war against them—with good reason, given the antics of Paris’s fiery envoy, Edmond Genêt, who arrived in April charged with making that alliance happen. When he at once began commissioning American privateers to attack British shipping from U.S. ports, Jay, outraged by such a gross provocation of British retaliation against America, publicly condemned him, declaring that “the subjects of belligerent powers are bound while in this country to respect the neutrality of it, and are punishable . . . for violations of it.” But the British government paid more attention to the fervid avowals of America’s Democratic Societies that anyone “who is an enemy to the French revolution cannot be a firm republican.”140

  London responded in June by decreeing that it would seize the cargoes of all ships carrying grain or flour to French or French West Indian ports—a direct blow to American trade—and in November it announced it would seize the ships too. British naval captains also began impressing American sailors into the Royal Navy, claiming they were British nationals. Along the northern U.S. border, the eight forts the British still held turned from an irritation into a mortal threat. In February 1794, the governor of Canada made a speech denying American sovereignty over land Jay had won in the Treaty of Paris and telling the Indians along the border, who had been fighting the intermittent Northwest Indian War against the Americans for a decade, to prepare to join him in war against the United States. He ordered the lieutenant governor of Upper Canada, John Graves Simcoe, the founder of Toronto, to arm British vessels on the Great Lakes to keep U.S. ships off them, and in April he sent Simcoe, who nursed dreams of reconquering America from the north, to build Fort Miamis at Maumee, Ohio, to supply the Indians.141

  THAT MONTH, an angry and alarmed George Washington asked Jay to go to London on a last-ditch peace mission, to try to clear up the forts and debt issues once and for all, to get compensation for seized U.S. ships and cargoes, and to reach a commercial agreement allowing U.S. ships
to trade in the Caribbean. “Nothing can be more distant from every wish on my own account,” Jay wrote Sally from Philadelphia about the president’s request. “I regard it as a measure not to be desired, but to be submitted to. . . . If it should please God to make me instrumental to the continuance of peace, and in preventing the effusion of blood, . . . we shall both have reason to rejoice.”142

  “How my dr. Mr. Jay is it possible!” Sally replied. “The Utmost exertion I can make is to be silent. Excuse me if I have not philosophy or patriotism to do more.” When the Senate confirmed his appointment as envoy extraordinary on April 19, Jay wrote her: “Your own Feelings will best suggest an Idea of mine. God’s will be done; to Him I resign; in him I confide. Do the like. Any other philosophy applicable to this occasion is delusive.”143

  On May 12, Jay left for London. “Farewell my best beloved!” Sally wrote in parting. “Your wife ’till Death & after that a ministring spirit.”144

  WHEN JAY LANDED a month later, he found the situation dire. The British government, he wrote Washington, clearly had “looked upon a War with us as inevitable,” both because of “the indiscreet reception” America had given Genêt and because the ministry assumed that American troops fighting the Northwest Indian War would storm the British forts. That’s why London had begun to seize U.S. shipping and to stir up Simcoe in Canada.145 By August, when Jay felt he’d made enough headway to write that George III had remarked, “Well Sir: I imagine you begin to see that your mission will probably be successful,” things suddenly turned sharply worse.146 On August 20, when U.S. general “Mad” Anthony Wayne won the last battle of the Northwest Indian War under the walls of Fort Miamis, his soldiers discovered—and hanged—several Englishmen in war paint among the captives. A furious Washington wrote Jay on the thirtieth that not only was Simcoe supplying the Indians with arms and supplies to carry on “their hostilities, the murders of helpless women and innocent children along our frontiers,” he was providing “men also, in disguise” (though the men turned out to be British traders whom the Indians had conscripted, not British soldiers). If the British want peace, they’d better surrender the forts, Washington thundered; if not, “war will be inevitably.”147

  That eventful August, Washington also declared martial law to put down the Whiskey Rebellion in western Pennsylvania—a revolt he was sure the pro-French Republican Societies had precipitated.148 Unfortunately, the British government shared his belief and feared the rebels would depose the president (whom they trusted), take over the government, and send American troops to fight as allies of France—a belief only strengthened on August 15, when Republican James Monroe, neutral America’s new envoy to France, presented an address expressing fraternity and union to the French National Convention, to which the convention’s president replied with a kiss.149 When printed in London, where the French Reign of Terror had sparked a “dread of Jacobin Politics and Jacobin Scenes,” the speech, Jay wrote Washington, “made a strong and disagreeable impression.”150

  WITH TEMPERS so inflamed, Jay strove “to acquire the confidence and esteem of this government, not by improper compliances, but by that sincerity, candour, truth, and prudence which . . . will always prove to be more wise and effectual than finesse and chicane,” he wrote Secretary of State Edmund Randolph from London.151 Long experience had taught him diplomatic patience and tact: he liked to quote a Spanish proverb that says, “We cannot catch Flies with Vinegar.”152

  British pride, he knew, could never stand the indignity of admitting that the capture of U.S. ships had broken international law, though he sought compensation for those seizures. So he proposed to veil the ugly truth with a polite disguise: a joint commission of Britons and Americans would award payment for vessels taken “under colour” of royal authority—a formulation that neither admitted nor denied the legality of that authority and that ultimately produced $10.3 million in compensation. He proposed a similar commission to compensate British creditors for their unpaid American debts, and in return Lord Grenville agreed to get all redcoats off U.S. soil by June 1796.153 A fervent believer in free trade, through which “the Bounties of Nature and conveniences of art pass from Nation to Nation without being impeded by the selfish Monopolies and Restrictions, with which narrow Policy opposes the Extension of Divine Benevolence,” Jay strove to get American ships admitted to both the British West and East Indies.154 He succeeded only within strict limits as to the size and destination of U.S. ships allowed in the British West Indies trade. He and Grenville sorted out the northern U.S. boundary, very favorably to America, but only partly solved the impressment issue, which ultimately ignited the War of 1812.

  Jay and Grenville signed what came to be called the Jay Treaty on November 19, 1794. “I have no reason to believe, or conjecture, that one more favourable to us is attainable,” Jay wrote of the treaty, and “we have reason to be satisfied.” Moreover, it was hard work getting what we got, though it may not seem so, he remarked: “They who have levelled uneven ground, know how little of the work afterward appears.”155

  Outrage greeted the treaty in America, however. Pro-French Republicans, still resentful not only of England but also of the Federalists’ Constitution and Hamilton’s financial system, would naturally be opposed, an unsurprised Jay wrote, as would southern debtors, who hoped for a war that would finally cancel what they owed to British creditors.156 Moreover, he didn’t even try to get compensation for slaves the British had freed and carried off. When he arrived home in May 1795, Jay joked that he could travel across the country by the light of burning effigies of himself, and he met such newspaper squibs as:

  May it please your highness, I John Jay

  Have traveled all this mighty way,

  To inquire if you, good Lord will please

  To suffer me while on my knees,

  To show all others I surpass,

  In love, by kissing of your _______.157

  Don’t worry about it, Washington wrote: “I have little doubt of a perfect amelioration of sentiment, after the present fermentation . . . has evaporated a little more. —The dregs however will always remain, and the slightest motion will stir them up.”158 By 1796, as peaceful trade began to feed a boom, Republican Benjamin Rush grumbled that the treaty, “once reprobated by nineteen twentieths of our citizens, is now approved of, or peaceably acquiesced in, by the same proportion of the people.”159

  ONCE AGAIN Jay returned from abroad to find himself unexpectedly in a new job: without campaigning, he’d been elected governor of fast-growing New York State, prospering wildly as settlers moved to its hinterland now that the British forts were gone, and as Eli Whitney’s new cotton gin sparked a boom in U.S. cotton production that New York merchants very profitably shipped to British mills.160 Jay’s two terms as governor of a state whose constitution he had written almost twenty years earlier left two great legacies. The first was penal reform. After hanging scores of miscreants beginning in his spymaster days, he had come to think that, while murderers deserved the death penalty, there must be a better way to punish twelve other classes of felons, who until then went to the gallows, and also a better way than whipping to punish lesser infractions. He proposed building “establishments for confining, employing and reforming criminals” by hard labor, and in November 1797 the state’s first prison opened on four acres in Greenwich Village.161

  Second, as far back as 1780, Jay had written from Spain that until America abolished slavery, “her Prayers to Heaven for Liberty will be impious,” and if he were a legislator, he’d introduce a bill to abolish it and “never cease moving it till it became a Law.”162 The president of the New York Manumission Society from its founding in 1785 until he became chief justice (even though he himself still owned slaves), he carried out that vow when he became governor. Four times he had a bill introduced into the state legislature for gradual abolition, until it finally passed and he signed it into law in 1799.163

  When Jefferson won the 1800 presidential election, Hamilton urged Jay in
a slightly hysterical letter to use political legerdemain (to put it nicely) to overturn New York’s vote for “an Atheist in Religion and a Fanatic in politics” and bring about Adams’s reelection—a letter Jay filed with the notation: “Proposing a Measure . . . it wd. not become me to adopt.”164 From the same anti-Jefferson motive, Adams re-nominated Jay as chief justice, writing him that “the firmest security we can have against the effects of visionary schemes or fluctuating theories, will be in a solid judiciary.”165 But Jay had made up his mind to retire—and certainly the attractions of getting back on his horse to ride the judicial circuit again couldn’t change it, so John Marshall became chief justice. When Jay’s second three-year term as governor ended in June 1801, he headed for Westchester.

  There he owned nearly 600 acres in Bedford that his father and his aunt had willed him out of the 5,200 acres Grandfather Van Cortlandt had bought as an investment around 1700 from Chief Katonah. (The hamlet within Bedford where Jay’s farm stands now bears the Lenape chief’s name.) Between 1799 and 1801 Jay enlarged for himself the small house he’d built there for his farm manager in the late 1780s. He emphatically did not want “a seat,” his son William says; he wanted a plain, republican farmhouse, just like his neighbors’ and like hundreds of others built by carpenters rather than architects all over the Northeast in the Federal period—two stories tall, five windows across, with a full-length front porch for looking down the hill at the lovely rural view to the south. After the stately pomp of his house at 133 Broadway, he now wanted no “useless display, which serves only to please other people’s eyes, while it too often excites their envy.”166