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The Jay Papers Ii: The Forging Of The Nation

May 2024
45min read

States they were, united they were not; while their Secretary for Foreign Affairs sought to pull them together, Europe waited for them to fall apart

Would the Articles of Confederation prove a viable instrument of government? Could the thirteen newly independent states forge an effective union? Would America enjoy a lasting peace? These were some of the questions that concerned responsible statesmen in the years following the Treaty of Paris of 1783. By reason of his central role in the administration of the nation’s foreign affairs, John Jay played a crucial, if not decisive, role in shaping the Confederation’s destiny. Perhaps no better illumination is cast on the shape and course of events in those years than is provided by the Jay Papers. Now housed in Columbia University’s Special Collections, Jay’s correspondence plots the nation’s fever chart. When a new Constitution had been adopted and a durable union forged, the fever broke.

In the first installment of selections from the Jay Papers, in the February, 1968, A MERICAN H ERITAGE , we shared Jay’s frustrating experiences in Spain, where he attempted to secure recognition and aid from the autocratic court of Charles III for the rebellious thirteen states. We then journeyed with Jay to Paris, where his tenacity and acumen were key factors in the negotiations with the British, to end the American Revolution.

The arduous and protracted sessions in Paris left Jay run-down physically and mentally, and the reports he was receiving of intrigue and dissension in America did nothing to lift his spirits. As much as a year before, at the height of the preliminary peace negotiations, Jay had written his close friend, the New York lawyer-patriot Egbert Benson: “Our power, respectability, and happiness will forever depend on our Union.” But after the treaty had been signed it became apparent that the “United States,” as the new nation styled itself, was far from united. Under the Articles of Confederation, ratified in 1781 it was merely a congeries of governments which did not always see eye to eye and had difficulty in acting together. And Jay’s remark to Benson about respectability had point: the great powers of Europe, not only Britain but France and Spain as well, had very little respect for the new nation, weak and insignificant as it was. They were, in fact, rather hoping that it would fail. For one thing, the success of America’s revolt against its monarchical motherland might arouse similar expectations among their own subjects; for another, there would be some attractive pieces to be picked up should the house so divided against itself come tumbling down.

Of all these things John Jay was conscious as he affixed his signature to the definitive treaty of peace with England on September 3, 1783. When he took ship for America the following May with his wife and family, planning to return to private life and the practice of law, he had no way of knowing that many of his country’s problems were soon to be dumped into his lap. Reaching, New York on July 24, 1984, he was greeted by the news that Congress had appointed him Secretary for Foreign Affairs. A letter from Charles Thomson, secretary of the Congress, apprised Jay of the gloomy prospects for the Confederation.

Philadelphia, September 8, 1784

Dear Sir,

… I wish exceedingly to see and converse with you not only on the subject of your acceptance but on the general State of our Affairs. There is at present no person whose business or whose duty it is to attend to matters of National Concern. The Committee of the states have in my opinion very unwarrantably separated, and though the Chairman has written to the several states to send on a delegate to form a Committee at Philadelphia, I have little hopes of their meeting. The Superintendant of Finance is busy in winding up his Affairs so as to quit his Office; as to the department of foreign affairs our Ministers abroad are left wholly to themselves without the least information of what is passing here. And the several States seem to be acting as if there was nothing beyond their respective bounds which claimed their attention or deserved their notice. Our public credit is again verging to a precipice and the seeds of jealousy and internal commotions seem to be springing up while at the same time I am far from thinking we are secure from the insidious designs of our late enemy [Britain], or the deep rooted jealousy of our Southern neighbour [Spain]. Yet gloomy as the prospect appears it only wants a little common sense, and common attention in the states to brighten the scene, to ensure public tranquility and private happiness and to render our situation enviable; and on your acceptance I greatly rely for these purposes.

… Be pleased to make my most respectful compliments to Mrs. Jay and accept the assurance of the unfeigned affection of

Dear Sir, Your friend and Servant C HA. T HOMSON

Jay found New York a ruined city. The lower section of town had twice been gutted by fire, and the parts which the flames had spared had scarcely recovered from the wounds of military occupation and the wanton stripping by departing Tories. His initial impression of affairs was cautiously optimistic, but within three months Jay noted signs of impending dangers. To Benjamin Vaughan, who had been the British intermediary in the peacemaking, he wrote, “The Policy of Britain respecting this Country is so repugnant to common Sense that I am sometimes tempted to think it must be so. … It is certain that we are trading at a wild Rate, and it is no less true that your People are giving most absurd Credits to many who neither have or ought to have any at Home.” (It is revealing of Jay’s anti-imperialist stance that in the same letter to Vaughan he condemned Great Britain’s policy toward India: “Do justice and all is easy; cease to treat those unhappy Nations as slaves, and, be content to trade with them as with other independent Kingdoms. … Your Tribute indeed would be at an End, but it ought not to have had a Beginning, and I wish it may ever prove a Curse to those who impose and exact it in any Country.” Save for John Quincy Adams, so high an American official did not venture to criticize the British position in India again until the Presidency of Franklin D. Roosevelt.)

Meanwhile, Jay was buckling down to his work as Secretary for Foreign Affairs, for which, he was paid the munificent salary of four thousand dollars a year. He expressed displeasure at the prospect of having to travel to Trenton, New Jersey, where Congress was silting, but he was told that Congress would soon settle in New York. He also demanded the privilege of appointing his own clerks. This was granted, and on September 21, 1784, he entered on the duties of his office.

Jay’s conception of that office was to prove of the utmost importance in the formation of the executive department. While his friend and predecessor, Robert R. Livingston, had been Secretary, correspondence from foreign nations had been directed to the president of Congress and then referred to Livingston. Jay wanted his office to be separate and distinct from Congress, and insisted that he, not Congress, conduct the foreign affairs of the Confederation. He lost no time in making his position clear, and on February 11, 1785, Congress decided that “all communications to as well as from the United States in Congress assembled on the subject of foreign affairs, be made through the Secretary for the department of foreign affairs, and that all letters, memorials or other papers on the subject of foreign affairs, for the United States in Congress assembled, be addressed to him.”

In addition, it became customary for the heads of the thirteen states to use Jay as intermediary in their correspondence with Congress. Somehow the notion got around that the Secretary for Foreign Affairs also had some responsibility for supervising the postal system. Congress, by a secret act of September 7, 1785, authorized Jay at his discretion to open letters in the post office. In view of the treatment accorded his own letters by foreign nations when he served abroad, it is understandable that Jay would have hesitated to exercise this singular power, and there is no evidence that he ever did.

Jay also showed caution in another area. He wisely sought no power of appointment (except that of his own staff), and even declined to recommend candidates to Congress. He evaded all sorts of pressures, even those of family and friends. When in 1787 John Adams’ son-in-law, Colonel William Stephens Smith, sought Jay’s intercession to succeed his father-in-law as minister to England, Jay politely declined. It was not unusual for foreign ministers in other countries to recommend candidates for the foreign service, but, Jay pointed out, “the case is different here.” In 1788 a committee of Congress issued a revealing study of Jay’s administration of his office which reported:

… That two Rooms are occupied by this Department, one of which the Secretary reserves for himself and the Reception of such Persons as may have Business with him, and the other for his Deputy and Clerks.

That the Records and Papers belonging to the Department are kept in a proper Manner, and so arranged as that Recourse may be had to any of them without Delay or Difficulty.

That they find his Method of doing Business is as follows: the daily Transactions are entered in a minute Book as they occur, and from thence are neatly copied into a Journal at Seasons of Leisure. This Journal contains a Note of the Dates, Receipt and contents of all Letters received and written by him, with References to the Books in which they are recorded, of all Matters referred to him, and the Time when, and of his Reports thereupon; and in general of all the Transactions in the Department. It is very minute and at present occupies 2 Folio Vol.

His official Letters to the Ministers and Servants of Congress and others abroad, are recorded in a Book entitled Book of foreign Letters , and such Parts as required Secrecy are in Cyphers.

His official Correspondence with foreign Ministers here, and with the Officers of Congress and others in the United States, including the Letters received and written by him, are recorded at large in a Book entitled American Letter book.…

The business of the Office is done by his Deputy and two Clerks, and whatever Time can be spared from the ordinary and daily Business, is employed in recording the Letters received from the american Ministers abroad. …

The Office is constantly open from q in the Morning to 6 O’clock in the Evening; and either his Deputy or one of the Clerks remains in the Office while the others are absent at Dinner.

By inspection…your Committee find…upon the whole … neatness, method and perspicuity throughout the Department.

From this distance it seems extraordinary that Jay could have conducted the foreign relations of the United States government for a half-dozen years in a two-room office. Nevertheless, the record of his scrupulously efficient little department compares favorably with that of its more recent successors housed in the palatial grandeur of “Foggy Bottom” and manned by an army big enough to overawe a Burgoyne or a Cornwallis. Modest though his quarters and incredibly minute though his staff were, Jay was to make of the office the most important administrative post in the land.

First and foremost among the new Secretary’s problems were America’s relations with the erstwhile mother country. The major piece of unfinished business arising out of the peace settlement was the writing of a trade treaty. The United States had already made such a treaty with France, and would soon do the same with Holland, Sweden, Prussia, and Morocco, but all these countries, even France, were peripheral as far as America’s external commerce was concerned. Unless the new United States was to fashion entirely new patterns of trade relations, its prosperity depended heavily on securing reciprocal trade concessions from England, including the right to resume the once lucrative trade with the British West Indies. Lord Shelburne, who had made the preliminary peace treaty with America, was dedicated to reciprocity and ultimately to free trade, but once he was out of office, protectionism was in the saddle in England. In fact, even prior to signing the final treaty the British, in July of 1783, inaugurated a restrictive trade policy against the United States. Jay pronounced it “impolitic and ill timed” and proposed to Thomson in a letter from London that “if Britain should adopt and persist in a monopolizing system, let us retaliate fully and firmly. This nation, like many others, is influenced more by its feelings than reasonings.” Sound advice, but once back in the United States and charged with the responsibility for implementing it, Jay soon perceived that the impotent Congress of the Confederation could not unite on such a measure.

A number of other issues complicated the restoration of peaceful relations with England. When the British armies left American soil, they carried with them some 3,000 American slaves; these had never been returned to their owners, nor had the owners received any compensation. There was also disagreement over the boundary line between the United States and Canada in the Northeast. A more serious cause of discontent in this country was the British refusal to give up a whole string of strategic northern and western forts stretching from Lake Champlain all the way west to the vital Straits of Mackinac between Lake Michigan and Lake Huron; these posts controlled America’s whole Canadian frontier.

On all these points Secretary Jay pressed for continued negotiations by our emissary to the Court of St. James’s, the redoubtable John Adams. As the first minister from the former British colonies, Adams was in a ticklish spot, meeting face to face with his former sovereign, the man whom American patriots had denounced as a tyrant and struggled against so long and bitterly. In a letter to Jay, Adams recounted his presentation to George III.

Bath Hotel, Westminster, June 2, 1785

Dear Sir,

… At one, on Wednesday, the first of June, the master of ceremonies called at my house and went with me to the Secretary of State’s Office, in Cleveland Row, where the Marquis of Carmarthen received me and … invited me to go with him in his coach to Court. When we arrived in the Anti-Chamber, the Oeil de Boeuf , of St. James’s, the master of the ceremonies met me and attended me, while the Secretary of State went to take the commands of the King. While I stood in this place, where it seems all Ministers stand upon such occasions, always attended by the master of ceremonies, the room very full of Ministers of State, Bishops, and all other sorts of courtiers, as well as the next room, which is the King’s bed-chamber, you may well suppose, I was the focus of all eyes…until the Marquis of Carmarthen returned and desired me to go with him to his Majesty. I went with his Lordship through the levee room into the King’s closet. The door was shut and I was left with his Majesty and the Secretary of State alone, I made the three reverences, one at the door, another about halfway, and the third before the presence, according to the usage established at this and all the northern Courts of Europe, and then addressed myself to his Majesty in the following words:


“The United States of America have appointed me their Minister Plenipotentiary to your Majesty, and have directed me to deliver to your Majesty this letter, which contains the evidence of it. It is in obedience to their express commands that I have the honor to assure your Majesty of their unanimous disposition and desire to cultivate the most friendly and liberal intercourse between your Majesty’s subjects and their citizens, and of their best wishes for your Majesty’s health and happiness, and that of your royal family. The appointment of a Minister from the United States to your Majesty’s Court, will form an epoch in the history of England and of America. I think myself more fortunate than all my fellow-citizens in having the distinguished honor to be the first to stand in your Majesty’s royal presence in a diplomatic character, and shall esteem myself the happiest of men, if I can be instrumental in recommending my country more and more to your Majesty’s royal benevolence, and of restoring an entire esteem, confidence and affection, or in better words, the old good nature and the old good humor, between people, who though separated by an ocean, and under different governments, have the same language, a similar religion, and kindred blood.

“I beg your Majesty’s permission to add, that although I have some time before been intrusted by my country, it was never in my whole life in a manner so agreeable to myself.”

The King listened to every word I said with dignity, but with an apparent emotion. Whether it was the nature of the interview, or whether it was my visible agitation, for I felt more than I did or could express, that touched him, I cannot say; but he was much affected, and answered me with more tremor than I had spoken with, and said:


“The circumstances of thy audience are so extraordinary, the language you have now held is so extremely proper, and the feelings you have discovered [ i.e. , revealed] so justly adapted to the occasion, that I must say that I not only receive with pleasure the assurance of the friendly dispositions of the United States, but that I am very glad the choice has fallen upon you to be their Minister. I wish you, Sir, to believe, and that it may be understood in America, that I have done nothing in the late contest, but what I thought myself indispensably bound to do, by the duty which I owed to my people. I will be very frank with you. I was the last to consent to the separation; but the separation having been made, and having become inevitable, I have always said, as I say now, that I would be the first to meet the friendship of the United States as an independent power. The moment I see such sentiments and language as yours prevail, and a disposition to give to this country the preference, that moment I shall say, let the circumstances of language, religion and blood, have their natural and full effect.”

I dare not say that these were the King’s precise words, and it is even possible that I may have in some particular mistaken his meaning, for although his pronunciation is as distinct as I ever heard, he hesitated some time between his periods, and between the members of the same period. He was much affected, and I was not less so, and therefore, I cannot be certain that I was so attentive [but] … the foregoing is his Majesty’s meaning as I then understood it, and his own words as nearly as I can recollect them.…

The conversation with the King, Congress will form their own judgment of. I may expect from it a residence less painful than I once expected, as so marked an attention from the King will silence many grumblers; but we can infer nothing from all this concerning the success of my mission.

With great respect, &c. J OHN A DAMS .

One of the most stubbornly contested issues of the peace negotiations had involved the northeastern boundary of the United States. The treaty referred to the “River St. Croix,” whose location varied from map to map. There turned out to be two more or less parallel streams emptying into Passamaquoddy Bay, not far apart at their outlet but separated by some fifty miles at their respective sources. Believing that possession was nine tenths of the law, Loyalist exiles quickly crowded into the disputed area, to the consternation of the officials of Massachusetts (Maine, it must be remembered, was part of the Bay State until 1820). By itself Massachusetts could not settle the dispute, and it was one of the earliest to demand Jay’s attention as Secretary for Foreign Affairs.

Jay’s novel proposal for a settlement sprang from his own experience when, as a young man back in 1769, he had served as clerk of the New York-New Jersey Boundary Commission. From the successful, if protracted, settlement of that dispute Jay became familiar with the notion of a mixed commission, and it was this device that he now recommended to Congress. Although Jay’s recommendation was not acted upon at this time, he later revived the notion and introduced it into the treaty of 1794 with England that bears his name. The mixed commission proved Jay’s most original and durable contribution to the settlement of international disputes involving the United States.

Aside from the northeastern boundary, much other territory was in dispute with England: the northern and western frontier forts, principally those at Dutchman’s Point, Oswego, Niagara, Erie, Detroit, and Fort Michilimackinac. These forts fell inside the territory ceded to the United States by the Treaty of 1783, and the British had agreed to evacuate them “with all convenient speed.” But the day before George III officially proclaimed the ratification of the treaty, the British government, as a result of Canadian pressure, ordered that the posts be retained. With Spain pressing its claims to the lower Mississippi and the British refusing to budge from the northern and western border posts, the independence of the new nation was seriously threatened. One of Adams’ first acts as minister to the Court of St. James’s was to request the British to evacuate them. The British demurred, quite pertinently citing as justification the legal impediments put up by the states to collecting the debts owed by Americans to British merchants and the widspread refusal of the states to follow the treaty’s recommendation that the confiscated property of American Loyalists be restored to them. In a long report to Congress, Jay confessed that he felt that the British had justice on their side.

On the issue of the return of Negroes carried away by the British troops, Jay held that humanitarian considerations supported a liberal interpretation of the treaty, and that compensation might properly be accepted in lieu of the Negroes themselves, who presumably had been freed by the British. Both these points were consistent with Jay’s moral position regarding debts, which he felt should be paid, and slavery, which he abhorred. While he did not disclose to the British the details of this secret report to Congress, he was indiscreet enough to reveal its substance to Sir John Temple, the British consul in New York. Jay’s indiscretion could have had no result other than to stiffen the British determination to hold the forts as hostage to treaty compliance by the Americans, for Temple promptly relayed the information to Lord Carmarthen, the Foreign Secretary.

New York, 7 December 1786.

… I am upon such a footing of Acquaintance with Mr. Jay as that the other evening, when by ourselves at his own House, I asked him what Question Congress had come to, if any, concerning the State of grievances drawn up and given to Mr. Adams, by My Lord Carmarthen? Then he frankly told me (but with desire that I would not mention it in this Country) that he had reported fully upon the matter, that his report … upon the whole was, a full acknowledgment that many of the most important Articles in your Lordships Statement were just. Must be admitted as fact—and consequently a violation of the subsisting Treaty. That His Majesty was every way justifiable in still holding the Western Posts untill these States should Manifest a fair and honorable disposition to fulfill their part of the said Treaty. That he also in his report entered largely into the Complaint on the American side of the question, particularly of the Negroes being carried off contrary to an Article in the Treaty, and upon the whole, as far as I could judge from his verbal accot. of the Report , (which will doubtless be adopted by Congress) it seems, he has stated matters in such a light as will I trust be more pleasing to his Majesty and his Ministers than I expected it would be. The Report is I understand upon the Table of Congress, but nothing can be done concerning it till the beginning of next month, when they will meet, chuse a President, and then proceed to Business, soon after which, ’tis probable their Resolution and doings upon this Business will be transmitted to their self sufficient, wrong headed Minister in London [Adams], who by his Mulish disposition, has lost ground in every respect, with Congress as well as in the particular state he belongs to. It is more than probable that both himself and his useless Secretary [William Stephens Smith] will soon be called Home, at any Rate, that after the expiration of their three Years appointment (12 months hence) they never will be reappointed to the Court of London. It is now pretty generally thought that had a Man of a Modest conciliatory disposition been sent to London a much better understanding would have long before this have subsisted between His Majesty and these States.

Adams had indeed been experiencing difficulties at court. Within six months of his letter to Jay describing his cordial reception by the King, he had written another, in cipher, which told a far different, sadder story.

Grosvenor Square, Westminster, 3 December, 1785. Dear Sir,—

I am anxious to convey to you, if I can, in as strong a light as that in which I see it myself, the impossibility of our doing any thing satisfactory with this nation, especially under this ministry.…

The King, I really think, is the most accomplished courtier in his dominions. With all the affability of Charles II., he has all the domestic virtues and regularity of conduct of Charles I. He is the greatest talker in the world, and has a tenacious memory, stored with resources of small talk concerning all the little things of life, which are inexhaustible. But so much of his time is, and has been consumed in this, that he is, in all the great affairs of society and government, as weak, as far as I can judge, as we ever understood him to be in America. He is also as obstinate. The unbounded popularity, acquired by his temperance and facetiousness, added to the splendor of his dignity, gives him such a continual feast of flattery, that he thinks all he does is right; and he pursues his own ideas with a firmness which would become the best system of action.…

[Prime Minister William Pitt] is very young. He has discovered abilities and firmness upon some occasions; but I have never seen in him any evidence of greater talents than I have seen in members of congress, and in other scenes of life in America, at his age. I have not yet seen any decided proofs of principle, or patriotism, or virtue; on the contrary, there are many symptoms of the want of these qualities, without which, no statesman ever yet appeared uniformly great, or wrought out any memorable salvation for any country. In American affairs he has oscillated like a pendulum, and no one can yet guess when he will be fixed. His attention appears to have been chiefly given to two objects,—preserving tranquillity and raising the stocks.… the stocks are at a great height, and the nation consequently in high spirits. As they have now evidence, as they think, that their commerce flourishes, and their credit is established, without a treaty with the United States, and without opening the West Indies or Canada, Nova Scotia and Newfoundland to us, without taking off the alien duty upon oil, or admitting our ready built ships for sale, they will not now think it necessary to do any of these things.…

The posts upon our frontier give me great uneasiness. The ministers and people are so assured of peace with all their neighbors in Europe, that they hold all we can do in indifference.… They rely upon it, that we shall not raise an army to take the posts. The expense and difficulty they know will be great, and, therefore, they think they may play with us as long as they please. … The resolutions of some of the United Slates, staying proceedings at law for old debts, and some other resolutions concerning the tories, represented to have been in some instances contrary to the treaty, will be the pretence.

In short, sir, I am like to be as insignificant here as you can imagine. I shall be treated, as I have been, with all the civility that is shown to other foreign ministers, but shall do nothing. I shall not even be answered.

…I find myself at the end of my tether; no step that I can take, no language I can hold, will do any good, or, indeed, much harm. It is congress and the legislatures of the States, who must deliberate and act at present. …

With great regard, &c. J OHN A DAMS .

For its part, Britain refused even to appoint a minister to the United States, but used consuls and unofficial observers to keep informed about what was going on across the Atlantic. Discouraged, Adams early in 1788 closed up shop and came home. The matter of the frontier posts was settled by Jay’s Treaty of 1794, but the other issues smouldered for two more generations; it took another Anglo-American war and some years after that before they were settled.

Meanwhile, as they no longer enjoyed the protection of the British Navy, American merchant ships in Mediterranean waters were constantly victimized by the various deys, emperors, beys, or pashas who governed the Barbary States of North Africa. Most bothersome of the piratical states was Algiers, whose ruler, an absolute monarch, based his power on a formidable Turkish military corps. With some discrimination Algerian corsairs staged piratical raids, seizing ships and cargo, and selling officers and crews into captivity. In seeking to put down this piracy the United States learned quickly that it could not count on aid from any European nation. It was a maxim among the English merchants that “if there were no Algiers, it would be worth England’s while to build one.” The English would make no move to give the United States a toehold in the lucrative Mediterranean carrying trade. Matters became critical when, as a result of a treaty concluded in June of 1785 between Spain and Algiers, the Algerians had access to the Atlantic. Within a few weeks their privateers captured two American vessels, taking the crews captive. Jay looked upon this turn of affairs as providential, a view which he expressed to the president of Congress, Richard Henry Lee.

Office for foreign Affairs 13th October 1785


… This War does not strike me as a great Evil. The more we are treated ill abroad, the more we shall unite and consolidate at Home. Besides, as it may become a Nursery for Seamen, and lay the Foundation for a respectable Navy, it may eventually prove more beneficial than otherwise. Portugal will doubtless unite with us in it, and that Circumstance may dispose that Kingdom to extend commercial Favors to us farther, than they might consent to do, if uninfluenced by such Inducements. For my own Part I think it may be demonstrated, that while we bend our Attention to the Sea, every naval War however long, which does not do us essential Injury, will do us essential Good.…

At a bargain price of $10,000 the United States bought a treaty with Morocco in ij8j. There still remained Algiers, Tripoli, and Tunis, whose pirates continued their depredations on American shipping, to the delight of the English merchants. Blackmail dollars advanced by the administrations of George Washington and John Adams temporarily bought off these three vandal states. By heroic efforts the United States succeeded in extorting a treaty from Tripoli in 1805, and another—at the cannon’s mouth—from Algiers at the close of the War of 1812.

Most inflammatory of all issues of foreign relations during the Confederation was the demand of the United States to have Spain agree on the Mississippi River as the western boundary of the new nation and on the free navigation of that river as laid down in the Treaty of 1783 with Great Britain. To Jay it was a familiar story: during his mission in Spain he had explored the same issues several times in face-to-face encounters with the Conde de Floridabianca, foreign minister to Charles III, and with the Conde’s Englishspeaking deputy, Don Diego de Gardoqui. Now, to settle outstanding differences and arrange a commercial treaty, Spain dispatched to New York the same Gardoqui. He felt quite sure, he confided to his superiors in Madrid, that he could manage Jay, whom he believed to be “a very self-centered man” whose vanity his wife abetted. “This woman, whom he loves blindly,” the Spaniard observed, “dominates him and nothing is done without her consent, so that her opinion prevails, though her husband at first may disagree.” From this Gardoqui inferred that “a little management in dealing with her and a few timely gifts will secure the friendship of both, because I have reason to believe that they proceed resolved to make a fortune.” No comment could prove further off target, for if Jay was vain, and Sally liked society, neither was in the least concerned with building a personal fortune.

Gardoqui arrived in New York in July, 1785, was received by Congress, and proceeded to occupy the handsomest residence in town, the Archibald Kennedy house at i Broadway. Although he gave the Secretary a gift from Charles III of a stallion (which the scrupulous Jay accepted only after securing Congress’s permission), Gardoqui made little headway. The JayGardoqui negotiations gave promise of a stalemate, as had the talks in Spain several years earlier. The American West, which had been penetrated during the Revolution by “long hunters” and scouts, was now being inundated by settlers from the eastern states, and even easterners, much as they might have deplored this drain of cheap labor, realized that if the claims of these westerners were abandoned the Confederation might be split apart.

In his negotiations in Spain, Jay had revealed himself as a staunch defender of America’s claims to the navigation of the Mississippi to the sea, but he now felt that, in view of Spain’s obduracy and America’s impotence, the United States could gain nothing by holding out for the impossible but at least might gain great commercial advantages by agreeing to forbear temporarily the use of the Mississippi within exclusively Spanish limits. In the midst of a furious debate in Congress over the proposal, Jay was summoned to appear before that body. At issue, in addition to the navigation of the Mississippi, was the settlement of the disputed boundary between Spanish West Florida and the American Southwest. On August 3, 1786, he argued in a carefully reasoned speech that it would be better “to yield a few acres than to part in ill-humour.” After reviewing the commercial advantages that the proposed treaty held out to America, and they were manifold, Jay came to the heart of the controversy.

… My attention is chiefly fixed on two Obstacles which at present divide us Vizt. the Navigation of the Mississippi and the territorial Limits between them [the Spanish territories in America] and us. …

Mr. Gardoqui strongly insists on our relinquishing it. We have had many Conferences and much Reasoning on the Subject [navigation rights] … His concluding Answer to all my Arguments has steadily been, that the King will never yield that Point, nor consent to any Compromise about it—for that it always has been and continues to be one of their Maxims of Policy, to exclude all Mankind from their American Shores.—

I have often reminded him that the adjacent Country was filling fast with People, and that the Time must and would come, when they would not submit to seeing a fine River flow before their Doors without using it as a Highway to the Sea for the Transportation of their Productions—that it would therefore be wise to look forward to that Event and take care not to sow in the Treaty any Seeds of future Discord—He said that the Time we alluded to was far distant, and that Treaties were not to provide for contingencies so remote and future. … The Truth is, that Courts never admit the Force of any Reasoning or Arguments but such as apply in their Favor; and it is equally true, that even if our Right to that Navigation, or to any Thing else, was expressly declared in Holy Writ, we should be able to provide for the Enjoyment of it no otherwise than by being in capacity to repel force by force.—

Circumstanced as we are, I think it would be expedient to agree that the Treaty should be limited to twenty five or thirty Years, and that one of the Articles should stipulate that the United States would forbear to use the Navigation of that River below their Territories to the Ocean. …

Whether Mr. Gardoqui would be content with such an Article I cannot determine, my Instructions restraining me from even sounding him respecting it—I nevertheless think the Experiment worth trying for several reasons.—

  1. 1. Because unless that Matter can in some way or other be settled, the Treaty however advantageous will not be concluded.—
  2. 2. As that Navigation is not at present important, nor will probably become much so, in less than twenty five or thirty years, our Forbearance to use it while we do not want it, is no great sacrifice.
  3. 3. Spain now excludes us from that Navigation, and with a strong Hand holds it against us—she will not yield it peaceably, and therefore we can only acquire it by War —now as we are not prepared for a war with any Power, as many of the States would be little inclined to a war with Spain for that Object, at this Day; and as such a War would for those and a variety of obvious Reasons be inexpedient, it follows, that Spain will for a long Space of Time yet to come exclude us from that Navigation. Why … should we not (for a valuable Consideration too) consent to forbear to use, what we know is not in our Power to use.
  4. 4. If Spain and the United States should part on this Point—what are the latter to do? Will it after that be consistent with their Dignity to permit Spain forceably to exclude them from a Right, which at the Expence of a beneficial Treaty, they have asserted? They will find themselves obliged either to do this and be humiliated, or they must attack Spain. Are they ripe and prepared for this? I wish I could say they are. …

If such a Compromise should be attempted and not succeed, we shall lose nothing by it—for they who take a Lease admit the Right of the Lessor.…

With respect to territorial Limits, it is clear to me that Spain can justly claim nothing East of the Mississippi but what may be comprehended within the Bounds of the Floridas. How far those Bounds extend, or ought to extend, may prove a Question of more Difficulty to negociate than to decide. Pains I think should be taken to conciliate and settle all such Matters amicably, and it would be better even to yield a few Acres than to part in ill Humour. If their Demands when ascertained, should prove too extravagant, and too pertinaciously adhered to, one Mode of avoiding a Rupture will still be left Vizt. referring that Dispute to impartial Commissioners. …

It is much to be wished that all these Matters had lain dormant for Years yet to come—but such Wishes are vain—these Disputes are agitating—they press themselves upon us, and must terminate in Accommodation, or War, or Disgrace. The last is the worst that can happen, the second we are unprepared for, and therefore our Attention and Endeavours should be bent to the first. …


In Congress, the southerners—from whose home states most of the western settlers came—assailed Jay for abandoning the West; the fact is that Jay, Washington, and other statesmen failed to appreciate the speed with which the empty spaces of the West would be filled by American settlers, and assumed that it would take about a generation before the balance would turn so much in America’s favor that either by diplomacy or force these concessions could then be wrested from Spain. What Jay saw was a nation, rushing headlong toward political anarchy, being forced to fight a foreign war for which it was unprepared. While Congress by a sectional vote authorized Jay to move ahead with the treaty as he had outlined it, he realized full well that under the Articles of Confederation any treaty that the Secretary for Foreign Affairs might sign had to receive the votes of two thirds of the thirteen states, and that, since five states had voted against liberalizing his instructions, the nine necessary for ratification were probably unobtainable. This lesson of the Jay-Gardoqui treaty negotiations was not lost on those framers of the Constitution who hailed from the South. They made sure that the new national charter would require a two-thirds majority of senators present for the ratification of a treaty.

As Congress fell into desultory inactivity, the JayGardoqui negotiations were dropped, not to be revived until 1795; then, as a result of the American rapprochment with England, as evidenced by Jay’s Treaty, the Spaniards in alarm granted to Thomas Pinckney what they had long withheld from Mr. Jay.

While negotiations with England dragged on and those with Spain came to a halt, Jay was charged with arranging a consular treaty with America’s wartime allies, the French. He was not the ideal man to conduct the negotiations. The French foreign office was not likely to forget or forgive his part in the separate secret negotiations with England. In 1784, Benjamin Franklin had put his signature to a consular convention with France which not only departed materially from the plan drafted by Congress but contained certain features that seemed more appropriate to one of France’s satellite powers, a Poland or a Turkey, than to a new, prideful nation demanding independence, equality, and complete reciprocity.

Jay was suspicious of anything that the French foreign secretary, the Comte de Vergennes, might initiate, and he could be counted on to scrutinize this treaty for every misplaced comma. As a nationalist Jay found Franklin’s convention repugnant; as a technical lawyer, he criticized its deficiencies at various and sundry points.

Jay spelled out his views to Congress in his report of July, 1785. His summation, herein excerpted, proved convincing to Congress.

… The Convention appears well calculated to answer several Purposes; but the most important of them are such as America has no Interest in promoting. They are these

1st. To provide against Infractions of the french American Laws of Trade.

2d. To prevent the People of our Country from migrating to another.

3d. To establish in each others Country an influential Corps of Officers, under one Chief, to promote mercantile and political Views. …

The third of these Objects as it respects mercantile Views is apparent from the general Tenor of the Convention, and it appears plain to your Secretary, that a Minister near Congress, Consuls so placed as to include every Part of the Country in one Consulate or other, Vice Consuls in the principal Ports, and Agents in the less important zones, constitute a Corps, so coherent, so capable of acting jointly and secretly and so ready to obey the Orders of their Chief, that it cannot fail of being influencial in two very important political Respects; first in acquiring and communicating Intelligence, and secondly in disseminating and impressing such Advices, Sentiments and Opinions, of Men or Measures, as it may be deemed expedient to diffuse and encourage.

These being the three great Purposes which the Convention is calculated to answer; the next Question which naturally occurs is, whether the United States have any such Purposes to answer by establishing such a Corps in France.

As to the 1st—We have no laws for the Regulation of our Commerce with France or any other Dominions, and consequently we want no Provisions or Guards against the Infraction of such Laws.

As to the 2nd—We have not the most distant Reason to apprehend or fear that our People will leave us, and migrate either to the Kingdom of France or to any of its Territories, and consequently every Restriction or Guard against it must be superfluous and useless.

As to the 3d—France being a Country in whose Government the People do not participate, where nothing can be printed without previous Licence, or said without being known, and if disliked followed with Inconveniences, such a Corps would there be very inefficient for political Purposes. Where the People are perfectly unimportant, every Measure to influence their Opinions must be equally so—For political Purposes therefore we do not want any such Corps in France.

As to assisting our Merchants, and such other Matters as properly belong to Consuls, they would answer all those Purposes just as well, without these extraordinary Powers as with them.

Hence it is clear to your Secretary that the three great purposes which the Convention is calculated to answer, are such as the United States have no interest in promoting. …

Your Secretary also considers this Convention as greatly deficient in Reciprocity, inasmuch as by it we are to admit french Consuls into all our Ports and Places without Exception, whereas no Provision is made for the Admission of ours into any of the Ports, Places and Dominions of his Most Christian Majesty except the Kingdom of France only. He also thinks that the Omission of the Article securing to Consuls the Right of worshipping in their own Way in Chapels in their Houses, is a Deviation from Reciprocity, especially as that Liberty is not only permitted but established here.…

As a result of Jay’s report, opposition to the convention of 1784 mounted, and Congress dragged its feet about ratifying it. Finally, Congress dispatched new instructions to Franklin’s successor in France, Thomas Jefferson. Jefferson proved a skillful compromiser and obtained a new and slightly less objectionable convention, whose advantages he succinctly summarized in a letter to Jay.

Paris, Nov. 14, 1788.


… The clauses of the Convention of 1784, cloathing Consuls with the privileges of the law of nations, are struck out, and they are expressly subjected, in their persons and property, to the laws of the land.

That giving the right of Sanctuary to their houses is reduced to a protection of their Chancery room and its papers.

Their coercive powers over passengers are taken away: and over those whom they might have termed deserters of their nation, are restrained to deserted seamen only.

The clause allowing them to arrest and send back vessels is struck out, and instead of it they are allowed to exercise a police over the ships of their nation generally. … And the Convention is limited to 12. years duration. …

With John Jay’s endorsement, the revised consular convention would be ratified by the new federal Senate in 1789. It was the first treaty ratified by the Senate under the Constitution.

While a good part of his attention was quite naturally directed toward America’s relations with the great powers of the world, John Jay never lost sight of the nation’s domestic problems, especially the central one: the essential weakness of the Articles of Confederation as an instrument of stable self-government. In the year or two before the Constitutional Convention a sense of crisis gripped the country. Business had yet to rebound from the acute depression of the postwar years. Unemployed seamen haunted the dockyards of Boston seeking work; noisome jails in western Massachusetts were overcrowded with debtors; and farmers were being evicted by foreclosure proceedings. In the West, conspiracy and separatism were in the air. The frontier seemed ripe for Indian risings. England curtly rejected every American effort to settle outstanding differences; even lowly Algiers contemptuously disputed America’s power on the seas. How could Congress deal with these threats to security if it was unable even to levy an impost?

From his central post in the Confederation, John Jay saw the issues in the large, and his correspondence with George Washington at Mount Vernon and with Jefferson and Lafayette in France discloses the concern of statesmen that events like Shays’ Rebellion, which began in the late summer of 1786, might trigger a general movement of disruption and even anarchy. The solution: a federal convention. Jay’s anxious letters to Mount Vernon clearly reflect the growing apprehension that gripped the nation’s Founding Fathers. The General’s replies contain ample evidence that he shared these concerns; from New York on March 16, 1786, Jay wrote to Washington.

Dear Sir

… Although you have wisely retired from public Employments, and calmly view from the Temple of Fame, the various Exertions of that Sovereignty and Independence which Providence has enabled you to be so greatly and gloriously instrumental in securing to your Country; yet I am persuaded you cannot view them with the Eye of an unconcerned Spectator.

Experience has pointed out Errors in our national Government, which call for Correction, and which threaten to blast the Fruit we expected from our “Tree of Liberty.” … An opinion begins to prevail that a general Convention for revising the articles of Confederation would be expedient. Whether the People are yet ripe for such a Measure, or whether the System proposed to be attained by it, is only to be expected from Calamity and Commotion, is difficult to ascertain. I think we are in a delicate Situation, and a Variety of Considerations and Circumstances give me uneasiness. It is in Contemplation to take Measures for forming a general Convention. The Plan is not matured; if it should be well concerted and take Effect, I am fervent in my wishes, that it may comport with the Line of Life you have marked out for yourself, to favor your Country with your Counsels on such an important and single occasion. I suggest this merely as a Hint for Consideration, and am with the highest Respect and Esteem

Dear Sir, your most obedient and very humble Servant


On May 18 Washington answered:

Dear Sir,

… I coincide perfectly in sentiment with you, my dear Sir, that there are errors in our National Government which call for correction,—loudly I will add; but I shall find myself happily mistaken if the remedies are at hand. We are certainly in a delicate situation, but my fear is that the people are not yet sufficiently misled to retract from error! To be plainer, I think there is more wickedness than ignorance, mixed with our councils. Under this impression, I scarcely know what opinion to entertain of a general Convention. That it is necessary to revise and amend the articles of Confederation, I entertain no doubt; but what may be the consequences of such an attempt is doubtful. Yet, something must be done, or the fabrick must fall. It certainly is tottering! Ignorance and design are difficult to combat. Out of these proceed illiberallity, improper jealousies, and a train of evils which oftentimes, in republican governments, must be sorely felt before they can be removed. … I think often of our situation, and view it with concern. From the high ground on which we stood, from the plain path which invited our footsteps, to be so fallen! so lost! is really mortifying. But virtue, I fear, has, in a great degree, taken its departure from our Land, and the want of disposition to do justice is the source of the national embarrassments. …

From Philadelphia, where he had gone to attend a church convention, Jay replied on June 27.

… Our affairs seem to lead to some Crisis, some Revolution, something that I cannot foresee or Conjecture. I am uneasy and apprehensive—more so than during the War. Then we had a fixed Object, and tho the Means and Time of attaining it were often problematical, yet I did firmly believe we should ultimately succeed because I was convinced that Justice was with us. The case is now altered, we are going and doing wrong and therefore I look forward to Evils and Calamities, but without being able to guess at the Instrument Nature or Measure of them. …

That we shall again recover, and things again go well, I have no Doubt. Such a Variety of Circumstances would not almost miraculously have combined to liberate and make us a Nation, for transient and unimportant Purposes. I therefore believe we are yet to become a great and respectable People, but when or how, the Spirit of Prophecy only can discern.

There doubtless is much Reason to think and to say that we are woefully and in many Instances wickedly misled. Private Rage for Property suppresses public Considerations, and personal rather than national Interests have become the great objects of Attention. Representative Bodies will ever be faithful Copies of their originals, and generally exhibit a chequered assemblage of virtue and vice, of abilities and weakness. The Mass of Men are neither wise nor good (and the same may be said of their representative Bodies) and the Virtue like the other Resources of a Country, can only be drawn to a point and exerted by Strong circumstances ably managed or strong Government ably administered. …

What I most fear is that the better kind of People—by which I mean the People who are orderly, and industrious, who are content with their Situations and not uneasy in their Circumstances, will be led by the Insecurity of Property, … the Loss of Confidence in their Rulers, and the want of public Faith and Rectitude, to consider the Charms of Liberty as imaginary and delusive. A State of Fluctuation and Incertainty must disgust and alarm such Men, and prepare their minds for almost any Change that may promise them quiet and Security (Some already whisper that it was not so before the War, and that it is a pity Britain forced us to set up Independence. But my dear Sir, we may Reason and toil as we please, he who made the World governs it.) …

Mount Vernon, 15th Aug., 1786

Dear Sir

… Your sentiments, that our affairs are drawing rapidly to a crisis, accord with my own. What the event will be is also beyond the reach of my foresight. We have errors to correct. We have probably had too good an opinion of human nature in forming our confederation. Experience has taught us, that men will not adopt and carry into execution, measures the best calculated for their own good without the intervention of a coercive power. I do not conceive we can exist long as a Nation, without having lodged somewhere a power which will pervade the whole Union in as energetic a Manner, as the authority of the different State governments extends over the several States. To be fearful of vesting Congress, constituted as that body is, with ample authorities for national purposes, appears to me the very climax of popular absurdity and madness. Could Congress exert them for the detriment of the public without injuring themselves in an equal or greater proportion? Are not their interests inseparably connected with those of their constituents? By the rotation of appointment must they not mingle frequently with the mass of citizens? Is it not rather to be apprehended, if they were possessed of the powers before described, that the individual members would be induced to use them, on many occasions, very timidly and inefficaciously for fear of losing their popularity and future election? We must take human nature as we find it. Perfection falls not to the share of mortals. Many are of opinion that Congress have too frequently made use of the suppliant humble tone of requisition, in applications to the States, when they had a right to assume their imperial dignity, and command obedience. Be that as it may requisitions are a perfect nihility, where thirteen sovereign, independent, disunited States are in the habit of discussing and refusing compliance with them at their option. Requisitions are actually little better than a jest and a bye word throughout the Land. If you tell the Legislatures they have violated the treaty of peace and invaded the prerogatives of the confederacy they will laugh in your face. What then is to be done? Things cannot go on in the same train forever. It is much to be feared, as you observe, that the better kind of people being disgusted with the circumstances will have their minds prepared for any revolution whatever. We are apt to run from one extreme into another. …

What astonishing changes a few years are capable of producing! I am told that even respectable characters speak of a monarchical form of government without horror. From thinking proceeds speaking, thence to action is often but a single step. But how irrevocable and tremendous! What a triumph for the advocates of despotism to find that we are incapable of governing ourselves, and that systems founded on the basis of equal liberty are merely ideal and fallacious! Would to God that wise measures may be taken in time to avert the consequences we have but too much reason to apprehend.

Retired as I am from the world, I frankly acknowledge I cannot feel myself an unconcerned spectator. Yet, having happily assisted in bringing the ship into port, and having been fairly discharged, it is not my business to embark again on a sea of troubles. Nor could it be expected that my sentiments and opinions would have much weight on the minds of my Countrymen—they have been neglected, though given as a last legacy in the most solemn manner. I had then perhaps some claims to public attention. I consider myself as having none at present. With sentiments of sincere esteem and friendship,

I am, Dear Sir, Your most Obedient and Affectionate Humble Servant, G EO. W ASHINGTON .

New York 7 January 1787

Dear Sir

They who regard the public good with more Attention and Attachment than they do mere personal Concerns, must feel and confess the Force of such Sentiments as are expressed in your Letter. … The Situation of our Affairs calls not only for Reflection and Prudence but for Exertion. What is to be done? is a common Question, but it is a Question not easy to answer.

Would the giving any further Degree of power to Congress do the Business? I am much inclined to think it would not for among other Reasons: It is natural to suppose there will always be Members who will find it convenient to make their Seats subservient to partial and personal Purposes; and they who may be able and willing to concert and promote useful and national Measures, will seldom be unembarrassed by the Ignorance, Prejudices, Fears, or interested Views of others.

In so large a Body Secrecy and Dispatch will be too uncommon; and foreign as well as local influence will frequently oppose, and sometimes frustrate the wisest Measures.

Large assemblies often misunderstand or neglect the Obligations of Character Honor and Dignity; and will collectively do or omit Things which individual Gentlemen in private Capacities would not approve. As the many divide Blame and also divide Credit, too little a Portion of either falls to each Mans Share to affect him strongly; even in Cases where the whole Blame or the whole Credit must be national. It is not easy for those to think and feel as Sovereigns who have always been accustomed to think and feel as Subjects.

The executive Business of Sovereignty depending on so many Wills, and those Wills moved by such a Variety of contradictory Motives and Inducements, will in general be but feebly done.

Such a Sovereign, however theoretically responsible, cannot be effectually so in its Departments and Officers, without adequate Judicatories.

I therefore promise myself Nothing very desireable from any Change which does not divide the Sovereignty into its proper Departments. Let Congress legislate, let others execute, let others judge. …

A Convention is in Contemplation, and I am glad to find your Name among those of its intended Members. …

No Alteration in the Government should I think be made, nor if attempted will easily take place, unless deduceable from the only Source of just authority— The People .…

Jay had made no secret of his Federalist views, and the Antifederalists of New York made sure that he was not a delegate to the Constitutional Convention. Like everyone else, he was kept in the dark about what was going on, since the convention strictly observed the rule of secrecy. But once the text of the Constitution was disclosed, Jay became one of its foremost champions. Collaborating with Hamilton and Madison, he wrote five of the famous Federalist letters that appeared in the New York press under the pseudonym of Publius .

Jay’s first contribution appeared in print on October 31, 1787 four days after the initial essay, which was written by Hamilton . In Federalist No. 2 Jay diagnosed the weaknesses in the arguments of those Antifederalists who preferred a division of the states into distinct confederacies or sovereignties to a union of them all. Why ignore the geographical advantages which served to unite the thirteen states? Jay asked. Why deny the bonds of common language, religion, customs, and attachment to identical principles of government for which Americans had fought side by side through a long and bloody war? “This country and this people,” he remarked in an eloquent passage, “seem to have been made for each other, and it appears as if it was the design of Providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous and alien sovereignties.”

Four days later, on November 3, Publius once again appeared in the press as the author of the third Federalist letter. If peace and security were America’s goal, then, Jay contended, a disunited America was more likely to provoke war than a united country. Indeed, military security depended on a strong and perpetual union .

Writing at a feverish pace. Jay rushed the fourth Federalist essay to the presses, and it appeared on November 7. Herein Jay turned from the problems of military security to the comparative commercial prospects of America under the Articles of Confederation and the Constitution. Reminding his readers that the Americans were the rivals of both the British and the French in the fisheries and of most European nations in the carrying trade, Jay showed how America challenged the trade monopolies that certain European powers sought to maintain in their commerce with China and India, and that it was to the interest of such powers (Britain and Holland were, of course, implied) to restrain American trade in these areas rather than to encourage it. Looking at the situation right on the American continent, Jay showed how Spain and Britain, in order to maintain their respective monopolies, continued to shut the Mississippi to American navigation and to exclude Americans from the St. Lawrence. Such grounds of friction might readily provide an envious foreign government with a pretext for war. Confronted by a united American government, however, a foreign power might have second thoughts about pursuing such a belligerent course .

Three days later, on November 10, Jay’s fifth Federalist essay appeared in New York’s Independent Journal; it was reprinted several days later in other New York papers, as the previous letters had been. Concentrating his fire on confederacies, Jay pointed to the small island of Britain which for centuries had been broken up and divided into three nations. Should the United States follow such a course and allow itself to be broken up into three or four confederacies, the most northern soon proving the most formidable and thereby provoking jealousy and animosity from the others?

Jay’s next and final contribution to the Federalist series did not appear in the New York press until March 7, 1788. It was labelled No. 63, but numbered “64” in the first collected edition, published by J. and A. McLean and corrected by Hamilton. During the interim between mid-November and early March, Jay appears to have been painfully crippled by arthritis, which kept him from more active collaboration with Hamilton and Madison. There are but two Federalist papers known to be extant in draft form, and both are in Jay’s hand. They are the fifth and the sixty-fourth. The original draft of the latter number, in a form considerably different from the published one, was uncovered by the Jay Papers researchers at the New-York Historical Society .

Jay begins letter No. 64 by pointing out that the making of treaties is entrusted by the Constitution to the President, with the concurrence of two thirds of the Senate present, and that precautions are taken to guarantee that the men chosen for the respective elective posts are “the best qualified for the purpose.” He feels that the choice of the President by the Electoral College and the selection of senators by state legislatures would ensure these results. In retrospect we may dispute Jay on both these points, for the Electoral College has proved a cumbersome and even fallible device, and the nation through the Seventeenth Amendment has long since stripped state legislatures of the power of designating United States senators .

What gives special pertinence to No. 64 is its comment on the need for secrecy and timing in treatymaking, and its stress—echoed ever more loudly in our subsequent history—on the key role of the President to negotiate a treaty with dispatch .

… They who have turned their attention to the affairs of men, must have perceived that there are tides in them. Tides, very irregular in their duration, strength and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs, is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay even when hours are precious. The loss of a battle, the death of a Prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either, should be left in capacity to improve them. So often and so essentially have we heretofore suffered from the want of secrecy and dispatch, that the Constitution would have been inexcusably defective if no attention had been paid to those objects. Those matters which in negociations usually require the most secrecy and the most dispatch, are those preparatory and auxiliary measures which are no[t] otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negociation. For these the president will find no difficulty to provide, and should any circumstance occur which requires the advice and consent of the senate, he may at any time convene them. Thus we see that the constitution provides that our negociations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations on the one hand, and from secrecy and dispatch on the other. …

Fateful for the success of the great experiment was the fight to win New York over to the pro-Constitution camp, and in that fight Jay played a leading role. New York was sharply divided into pro- and anti-Federalist camps. At the very end of May, Jay drafted a letter to Washington in which he expressed regret that the election of delegates to the state’s ratifying convention had not been delayed, because as things stood, the majority of the convention would be “composed of anti-foederal characters.” As Jay saw it, and probably correctly, the tide of public opinion was running in favor of the Constitution. To him, all that was needed to counter the propaganda of the antis was the passage of time.

Jay’s forebodings were borne out. When the ratifying convention met at Poughkeepsie on June 17 the Antifederalist delegates were the overwhelming majority. Jay shrewdly distinguished between Antifederalists like Governor George Clinton, who hoped for a quick vote rejecting the Constitution with “as little debate and as much speed as may be,” and “their followers,” many of whom he considered more disinterested.

Jay, along with Hamilton and Robert R. Livingston, the undisputed leaders of the pro-Constitution faction, quickly saw the advantage in driving a wedge between the Antifederalist leaders and their followers. As early as May 30 he let word drop to Washington that the notion was being bruited about that, should the Antifederalists prove obdurate, the southern part of the state would separate and adhere to the Union, leaving the upstate fragment a landlocked republic.

On July 4, Jay reported to Washington that the issue had boiled down to whether the Constitution would be ratified in New York with prior or with subsequent amendments. As yet the antis were not agreed among themselves on the formula. It was Jay who cut the Gordian knot. On July 11 he moved both the unconditional ratification of the Constitution and the recommendation of such amendments as might be deemed expedient: “Let us agree and be unanimous. … We will have our Constitution; you will have your Amendments.” It was largely through Jay’s efforts that the convention, by a close vote (30 to 27), ratified the Constitution. The convention adopted a compromise plan, resolving unanimously to prepare a circular letter to the state legislature recommending a general convention to consider amendments. The first ten amendments (the Bill of Rights) were proposed by Congress and ratified by the states, making such a general convention unnecessary. Up to now, no such general convention has ever assembled, although there is much agitation for one at the present time.

With the Confederation drawing to a close, Jay sought to defer decisions on foreign affairs until the new government was formally installed. One problem could not be put off, however. In 1787 the Comte de Moustier was named France’s minister to the United States, succeeding the chargé d’affaires, Louis-Guillaume Otto, whom Jay disliked intensely. The Comte was accompanied to New York by his sister-in-law, Madame la Marquise de Bréhan, who travelled with him ostensibly for reasons of health. The Comte had never been known for his tact, and, save perhaps for “Copenhagen” Jackson, the offensive British envoy to the United States on the eve of the War of 1812, it is hard to think of a diplomat better calculated to arouse the most hostile feelings in his host nation than was Moustier. The Comte presented his credentials to Congress in February, 1788, and settled down with the Madame la Marquise in a splendid town house. He quickly rubbed everyone the wrong way by his unadulterated snobbery and his outrageously bad manners. He showed his contempt for Americans by various calculated insults: he called Cyrus Griffin, the Virginia lawyer and President of Congress, “a tavernkeeper”; and he took along his own chef when he went out to dine. Apart from his hauteur and his notorious stinginess, Moustier shocked American society, above all the very proper John Jay, by giving credence to the growing scandal that he was living in sin with his very odd sister-in-law, who held him captive to her caprices. Jay put the matter to Jefferson in Paris in a letter he entrusted to Gouverneur Morris, who was about to sail for France. The request for Moustier’s recall, it must be remembered, was from Jay, not from Congress.

Private N York 25 Novr. 1788

Dear Sir

… The Count de Moustier found in this Country the best Dispositions to make it agreable to him, but it seems he expected more particular and flattering Marks of minute Respect than our People in general entertain ideas of, or are either accustomed or inclined to pay to anybody. This added as I suspect and believe to Insinuations from persons who have no Desire that he should be very agreable to us, or we to him, have led him into Errors relative to men and things which naturally dispose him to give and receive Disgust. Appearances (whether well or ill founded is not important) have created and diffused an opinion that an improper Connection subsists between him and the Marchioness. You can easily conceive the Influence of such an opinion on the Minds and Feelings of such a People as ours. For my part I regret it; she seems to be an amiable woman; and I think if left to the Operation of his own judgment and Disposition his Conduct relative to this Country would be friendly and useful. These are things that I have not said or written to any other person. Nor is it pleasant to say or write them, but in the situation you are in, Information of this Kind may have its uses. With great Esteem and Regard I am Dear Sir Your most Obt. & Hble. Servt.,


On prodding from Jefferson, France’s foreign secretary, the Comte de Montmorin, Vergennes’s successor, granted Moustier a “leave of absence.” In October of 1789 Moustier sailed for home, the first foreign diplomat to be the victim of an American foreign secretary’s notions of propriety.

In the spring of 1789, meanwhile, Jay had seen his efforts rewarded when a strong central government under the leadership of President Washington took up its task. The President-elect was met by cheering crowds on his journey from Mount Vernon to New York to assume his post as the nation’s first Chief Executive under the Constitution. A barge especially constructed for the occasion conveyed him from Elizabeth, New Jersey, to New York Harbor. He was greeted by a tumultuous welcome, and on April 30 he was inaugurated at Federal Hall. Jay saw his fondest hopes fulfilled. In the years to come he was to continue to play a leading role in the great federal drama.


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