—New York State Bar, 18291

Life

John Jay was born on December 12, 1745, in New Rochelle, New York, to French Huguenot refugees. In 1774, he married Sarah Van Brugh Livingston, with whom he had five children. Jay entered politics shortly before the Revolutionary War and held a variety of offices during his career, from President of the Continental Congress to first U.S. Supreme Court Chief Justice. He retired in 1801 and moved to a farmhouse in Westchester. Jay’s wife Sarah died the next year, and he never remarried. He died on May 17, 1829, with the following instructions for his funeral: “I would have my funeral decent, but not ostentatious, no scarfs, no ring. Instead thereof, I give $200 to any one poor deserving widow or orphan of this town whom my children shall select.”

Education

Jay received an early education at the French Huguenot Church School. He entered King’s College (now Columbia University) at age 14 and graduated in 1764. Jay later returned to King’s College to earn his master of arts degree and was admitted to the bar in 1768.

Religion

Anglican/Episcopalian

Political Affiliation

Federalist

Highlights and Accomplishments

The Life of John Jay

Despite being one of the lesser-known Founders, John Jay was instrumental in shaping the legal and diplomatic institutions that were vital to the development of the United States as an independent sovereign. Jay’s involvement in the founding of the United States spans decades, beginning with his work as a delegate in both the First and Second Continental Congresses to secure American independence from Great Britain. As a co-author of The Federalist Papers, he helped to lay the intellectual groundwork for ratification of the U.S. Constitution, emphasizing the need for a strong, unified federal government.

Jay also served as the first Chief Justice of the U.S. Supreme Court, where he established important precedents that helped to ensure the judiciary’s authority and independence. His diplomatic contributions were equally significant; as a negotiator of the Treaty of Paris (1783), he helped to secure American independence, and through the Jay Treaty (1794), he averted war with Britain and stabilized foreign relations during a fragile period. John Jay’s commitment to the rule of law and national unity had an enduring impact on the new nation’s governance.

Self-Government and National Character

In his remarkable “Charge to the Grand Juries,” Jay pondered the penultimate question of the American Founding: Are men capable of self-government? During the Constitutional Convention, this had remained largely unanswered. In Federalist 1, Alexander Hamilton stated that it “seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”2 By 1790, Jay’s response to this quandary was based on his understanding of the necessary link between self-government and liberty: “Whether any people can long govern themselves in an equal, uniform and orderly manner, is a question which advocates for free government justly consider as being exceedingly important to the cause of liberty.”3

The link between self-government and liberty can endure as long as the people’s desires are restrained by a common morality. How would this new nation foster an environment to preserve these foundational principles? What elements would define this common morality that would surpass the selfish desires of individuals and unite independent states under the banner of one government?

To understand Jay’s political thought, we must examine both his public and his private correspondence. He believed that the origins of the United States were a testament to divine guidance and that its future was a trust to be preserved through righteousness and wisdom. Several recurring themes become evident in his view of the young Republic and the maintenance of principled liberty: the establishment of a strong national government, the need for unity among the people and the states, and the Providential guidance that ultimately created a moral mandate to secure its preservation.

According to Jay, America benefited from a unique, divinely inspired national character that required its people to maintain a unified identity to secure the new nation’s safety and prosperity. For Jay and many of his contemporaries, a strong centralized government was essential to the creation and perpetuation of this unified American identity. The lack of national government jurisdiction, the states’ tendency to usurp authority, the ongoing conflicts between the states, and the failure of the states to protect property rights provided the necessary justification for a stronger national government to ensure the survival and success of the new nation.

In a letter to George Washington on January 7, 1787, Jay wrote that “What powers should be granted to the [national] government” was “a question which deserves much thought.” His answer: “I think the more the better, the States retaining only so much as may be necessary for domestic purposes, and all their principal officers, civil and military, being commissioned and removable by the national government.”4 He believed the loose framework of the Articles of Confederation had proven inadequate in addressing the growing concerns of proper governance, national security, and interstate relations. “It is not to be wondered at, that a government instituted in times so inauspicious, should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer.”5

Of particular concern to Jay were the divisions the Articles created in international relations. If the new country could not preserve itself from internal disunity, it would inevitably become vulnerable to external threats. Under the Articles of Confederation, the states had maintained their own currencies, trade policies, and tariffs, which created barriers to interstate commerce and ultimately harmed the individual states. Jay asserted that the strength of the new nation depended on both political unity and economic integration. A central government with the power to regulate trade, impose tariffs on foreign states, and create a common currency would enhance economic stability and growth both for the individual state economies and for the nation’s financial system in international engagement.

Jay also recognized that political unity was necessary to create a stable environment for governance across state lines. Under the Articles, the lack of a strong central authority made it nearly impossible to enforce national laws on the states and Americans individually. States often acted in their own self-interest, undermining efforts to create a coherent national policy and establishing a standard of interstate chaos. A strong union with a central authority capable of making and enforcing laws would bring order and consistency to governance, making it possible to address the country’s challenges more effectively.

For Jay and his Federalist compatriots, the creation and ratification of the Constitution laid the groundwork for the American people as a whole to be subject to the national government, effectively transferring the individual sovereignty of the states to the national government to ensure uniform governance and protection of liberty.6 While the states shared a common heritage and a strong sense of American identity, their individual differences—political, economic, and geographic—could easily lead to conflict and ongoing disarray. Without a cohesive national government to mediate these differences, the states would be prone to continued division that would weaken any national character that bound them together. This was a particular concern of Jay’s jurisprudence as the first Chief Justice of the United States.

Crafting a National Judiciary

In his writing to George Washington before the Constitutional Convention, Jay argued that the new government must be created with three distinct branches to legislate, execute, and adjudicate the law to achieve the greatest good.7 With the ratification of the Constitution and passage of the Judiciary Act of 1789, President George Washington was placed in the unique position of selecting the members of the first Supreme Court of the United States. This was not a task he took lightly; Washington saw the judicial system as “the chief pillar upon which our national government must rest.”8 Because of Jay’s previous experience and excellent character, Washington nominated him to serve as the first Chief Justice, a position he accepted on October 6, 1789.

Jay was faced with a distinct set of challenges in this role as he was tasked with establishing the independence and authority of the Supreme Court in American jurisprudence. While the Court heard relatively few cases under his leadership, perhaps the most consequential was Chisholm v. Georgia. In 1777, the State of Georgia had purchased goods from a businessman in South Carolina; however, because of the businessman’s loyalist sympathies, the state had never paid him. Upon his death, Alexander Chisholm, the executor of his estate, claimed that Georgia had unlawfully seized his property and that he had the right to collect the outstanding debt from Georgia. Georgia refused the claim, asserting that it was a sovereign state and therefore not subject to federal jurisdiction in the interstate dispute.

The Court ruled in favor of Chisholm, with Jay using the opportunity to expand upon the supremacy of the federal government. Tracing the history of the American people back to the Revolutionary era, Jay articulated a philosophical understanding of the power of individual citizens in determining the authority of government. Because the colonists had all been equal citizens under the British Crown and unified as one people in signing the Declaration of Independence, the power of government derived from the whole of the American citizenry, not the citizens of individual states. With ratification of the Constitution, the American people granted supreme authority to it, thus making them subject to the Constitution’s jurisdiction over the individual states’ jurisdiction.

Further, a national government with an effective national judiciary would secure “individual citizens as well as States, in their respective rights, perform[ing] the promise which every free Government makes to every free citizen, of equal justice and protection. It is useful, because it is honest; because it leaves not even the most obscure and friendless citizen without means of obtaining justice….”9 Creating a strong national government would ensure the equal protection of individual rights and preserve an essential equality to bind the states to one another.

Unity as a Foundation for Sovereignty

For Jay, unity based on national governance and common heritage was crucial to the future success of the new country on the international stage. During the Revolution, Jay was sent to Spain to establish diplomatic recognition for the colonists’ cause. He then served as a member of the American delegation to secure the Treaty of Paris in 1783, effectively ending the war with Great Britain. Upon his return from Europe following the war, he was appointed Secretary of Foreign Affairs under the Articles of Confederation. In these posts, it became apparent to Jay that the ability of the new nation to command international recognition would be one of the most consequential factors in securing American sovereignty.

The potential for dissension among the states under the Articles of Confederation was not a mere theoretical problem; it presented a pressing geopolitical risk, as the United States would be unable to protect itself from foreign threats or maintain its independence if it were divided into smaller competing factions of states. To ensure the preservation of American sovereignty and security, the United States needed a strong national government capable of projecting the requisite power on the international stage and defending itself from the encroachment of foreign powers, particularly Great Britain and Spain, which still held territorial interests on the North American continent. The only way the states could manage these external threats effectively was by combining their resources and military capabilities and acting as one unified nation.10

Jay feared that if the states remained separate entities, they would be unable to coordinate defensive efforts and instead would become the targets of manipulation by foreign powers. A divided America would be a weak America, vulnerable to invasion, coercion, and diplomatic isolation. This lesson was especially important at a time when the world consisted of competing empires and the United States had yet to demonstrate the political might that it would need to defend itself against the imperial interests of the world’s great powers.

In Federalist No. 5, Jay emphasized that creating a strong national government would help to prevent internal divisions and conflicts, thereby fostering a greater sense of national identity and unity, which is essential to protecting the nation from external threats. Inviting the reader to examine England, Scotland, and Wales, he argued that when united, they created a formidable international force; however, when they fell victim to disarray, they were formidable enemies pitted against each other. Jay saw the same fate for the United States if there was no centralized government to ensure the preservation of a unified citizenry: “Instead of their being ‘joined in affection’ and free from all apprehension of different ‘interests,’ envy and jealousy would soon extinguish confidence and affection, and the partial interests of each confederacy, instead of the general interests of all America, would be the only objects of their policy and pursuits.”11 The result of disunion is a rise of suspicion and, ultimately, distrust:

Much time would not be necessary to enable her to discern these unfriendly dispositions. She would soon begin, not only to lose confidence in her neighbors, but also to feel a disposition equally unfavorable to them. Distrust naturally creates distrust, and by nothing is good will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied.12

Not only did Jay advocate for the creation of a unified citizenry to mitigate the threat of internal and external discord, but he saw it as essential to the preservation of the broader American identity that had emerged during the Revolutionary War. He believed that the American people had forged a unique national character through their struggle for independence. The shared experience of revolution had created a sense of solidarity, committing them to the republican principles and ideals that had seen them through the war.

Jay further believed that “this country and this people seem to have been made for each other” and that their common ancestry, language, and ideals should serve as the foundation for a unified government and national identity.13 Regardless of interstate differences, the people of the United States were bound together by a shared sense of purpose and destiny. Americans could not afford to have their national identity undermined by local allegiances and sectionalism. A strong union preserved through practical national governance and promotion of a common national identity would both ensure that the country would not fall victim to internal factions and empower it to pursue its common interests on the global stage.

Belief in Divine Providence

For Jay, the success of the American Revolution, the establishment of a unified government, and the unique moral character of the new nation were manifestations of God’s guiding hand and Providence in the founding of the United States. Jay believed that Providence was not an abstract concept: It was a tangible force that actively shaped events and inspired leaders throughout history. His writings reveal a deep conviction that Divine Providence played a critical role in the establishment and survival of the nation. This conviction shaped his understanding of the American Founding and highlighted the immense responsibilities that the leaders of the young nation had in living up to these high ideals.

Jay viewed the American Revolution as more than just a political struggle; it was a moral endeavor aligned with divine justice. Despite the overwhelming odds against a loose alliance of fledgling states achieving independence from the powerful British Empire, the states emerged victorious—a triumph that Jay and many of his contemporaries attributed to Providential intervention in support of a just cause. In a letter to the General Committee of Tryon County in 1777, Jay responded to the divisiveness and fear taking root among the people of Tryon County upon news of the British advance by encouraging the men to stand strong in defense of the country and “with firm confidence[,] trust the event with that Almighty and benevolent Being who hath commanded you to hold fast the liberty with which he has made you free; and who is able as well as willing to support you in performing his orders.”14

The improbable victories and alliances forged during the war, including the crucial support received from France, were seen by Jay as the ultimate evidence of divine favor. This belief was not only a source of inspiration, but also a higher calling to leaders to act with integrity and wisdom in creating this new nation.

Jay believed that Divine Providence extended past the remarkable success of the American Revolution to the drafting and ratification of the U.S. Constitution. The challenge of uniting 13 diverse and individualistic states under a single, unified national government posed numerous, potentially insurmountable challenges. Yet, despite all odds, the Constitution that emerged from the Convention balanced state and national authority, protected individual rights, and established a unique framework for governance. In Federalist No. 2, Jay explicitly attributed the unity of the American people and the opportunity to form a new government to the Divine: “It has often given me pleasure to observe that Providence has been pleased to give this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government.”15

Given the Providential circumstances of the Constitution’s drafting, Jay saw its swift ratification as a moral necessity. The establishment of a strong national government to foster national unity was of paramount importance in upholding God’s design for the American people. As Jay saw it, Americans were obligated to honor the blessings of independence and self-governance by adhering to moral and religious principles. Moreover, he contended, Providence has made the continued success of the Republic dependent on the moral character of its leaders and citizens. In a letter written in 1816, Jay asserted that “Providence has given to our people the choice of their rulers, and it is the duty, as well as the privilege and interest of our Christian nation, to select and prefer Christians for their rulers.”16

Jay believed that the United States was also tasked with exemplifying the compatibility among liberty, morality, and faith on the global stage. It was the nation’s role to serve as a beacon of self-governance and justice to the rest of the world—an example of a republic grounded in moral and religious principles to inspire and uplift the whole of humanity toward the fulfillment of a higher mission entrusted to them by God.

Jay’s Legacy

Jay’s political philosophy served a vital purpose in the development of the new nation. He was on the ideological frontlines of the American Founding, from the Continental Congresses through the early years of the young Republic, actively promoting belief in a divinely inspired national identity that would serve as an example to governments around the globe. His writings supported ratification of the U.S. Constitution and outlined the interdependence of the centralization, unification, and civic morality that the United States would need to ensure its preservation both at home and abroad. He would go on to develop the nationalist framework for the jurisprudence of the U.S. Supreme Court, asserting the judiciary’s independence and national jurisdiction.

The impact of John Jay’s political thought has reverberated across the decades. His belief in the need for a strong national government and preservation of a unified citizenry reflect his pragmatic recognition of the types of challenges that faced the fledging United States and continue to face us today. However, it is the moral and spiritual underpinnings of the American Founding that create the enduring responsibility of the American people to uphold the ideals that define the nation’s character.

Jay understood that without a strong, centralized government, the country would be vulnerable to internal discord, external threats, and economic stagnation. His vision of a united America was not merely an abstract political ideal; it was a practical perspective on the survival and prosperity of the nation. Ultimately, however, that vision can be realized only when guided by Providence. The success of the United States, Jay believed, was contingent on the nation’s acceptance of the interdependent principles of national sovereignty, unity, and Providential favor. Times of conflict and times of prosperity have been marked by America’s rejection or acceptance of these three principles. In many ways, Jay’s philosophy established the foundation for understanding what truly constitutes American prosperity.

Jay’s wisdom transcends time and provides important lessons for us in dealing with our current state of affairs. At the time of the American Founding, political division abounded. Individual identity was tied to religious, ethnic, and state-based characteristics. The labels of identity and disunity may change over time, but the struggle with dissension remains. It is the fulfillment of moral obligations and cultivation of civic virtue that advance national identity and temper the selfish desires of individuals and governments alike.

John Jay lived to see the United States through its struggle for independence, the establishment of the Constitution, and several presidential Administrations before he passed away in 1829. The New York Evening Post’s obituary equated Jay’s life with the fuller history of the United States: “To enumerate the civil and diplomatic stations he has filled, and the most important measures he promoted, would be to record the events of some of the most interesting periods in our national history.”17 And the New York State Bar avowed that “more talent, more zeal, more patriotism, and greater purity had never been exhibited by a public functionary than by John Jay.”18

To study Jay’s life and legacy is to study the evolution of United States’ politics, jurisprudence, and international affairs. It is also an inquiry into the great American experiment in governance. For Jay, the security and prosperity of the United States would depend on the American people’s ability to understand the divine gift of liberty and what steps must be taken to ensure its preservation. His writings serve as an enduring reminder of the principles that guided the American Founding and a call for Americans to uphold the Providential mandate for unity and self-government in order to “secure the Blessings of liberty to Ourselves and our Posterity.”19

Greg Schaller

Selected Primary Writings

Federalist No. 5 (November 10, 1787)20

QUEEN Ann, in her letter of the 1st July, 1706, to the Scotch Parliament, makes some observations on the importance of the Union then forming between England and Scotland, which merit our attention. I shall present the public with one or two extracts from it: “An entire and perfect union will be the solid foundation of lasting peace: It will secure your religion, liberty, and property; remove the animosities amongst yourselves, and the jealousies and differences betwixt our two kingdoms. It must increase your strength, riches, and trade; and by this union the whole island, being joined in affection and free from all apprehensions of different interest, will be enabled to resist all its enemies.” “We most earnestly recommend to you calmness and unanimity in this great and weighty affair, that the union may be brought to a happy conclusion, being the only effectual way to secure our present and future happiness, and disappoint the designs of our and your enemies, who will doubtless, on this occasion, use their utmost endeavors to prevent or delay this union.”

It was remarked in the preceding paper, that weakness and divisions at home would invite dangers from abroad; and that nothing would tend more to secure us from them than union, strength, and good government within ourselves. This subject is copious and cannot easily be exhausted.

The history of Great Britain is the one with which we are in general the best acquainted, and it gives us many useful lessons. We may profit by their experience without paying the price which it cost them. Although it seems obvious to common sense that the people of such an island should be but one nation, yet we find that they were for ages divided into three, and that those three were almost constantly embroiled in quarrels and wars with one another. Notwithstanding their true interest with respect to the continental nations was really the same, yet by the arts and policy and practices of those nations, their mutual jealousies were perpetually kept inflamed, and for a long series of years they were far more inconvenient and troublesome than they were useful and assisting to each other.

Should the people of America divide themselves into three or four nations, would not the same thing happen? Would not similar jealousies arise, and be in like manner cherished? Instead of their being “joined in affection” and free from all apprehension of different “interests,” envy and jealousy would soon extinguish confidence and affection, and the partial interests of each confederacy, instead of the general interests of all America, would be the only objects of their policy and pursuits. Hence, like most other bordering nations, they would always be either involved in disputes and war, or live in the constant apprehension of them.

The most sanguine advocates for three or four confederacies cannot reasonably suppose that they would long remain exactly on an equal footing in point of strength, even if it was possible to form them so at first; but, admitting that to be practicable, yet what human contrivance can secure the continuance of such equality? Independent of those local circumstances which tend to beget and increase power in one part and to impede its progress in another, we must advert to the effects of that superior policy and good management which would probably distinguish the government of one above the rest, and by which their relative equality in strength and consideration would be destroyed. For it cannot be presumed that the same degree of sound policy, prudence, and foresight would uniformly be observed by each of these confederacies for a long succession of years.

Whenever, and from whatever causes, it might happen, and happen it would, that any one of these nations or confederacies should rise on the scale of political importance much above the degree of her neighbors, that moment would those neighbors behold her with envy and with fear. Both those passions would lead them to countenance, if not to promote, whatever might promise to diminish her importance; and would also restrain them from measures calculated to advance or even to secure her prosperity. Much time would not be necessary to enable her to discern these unfriendly dispositions. She would soon begin, not only to lose confidence in her neighbors, but also to feel a disposition equally unfavorable to them. Distrust naturally creates distrust, and by nothing is good will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied.

The North is generally the region of strength, and many local circumstances render it probable that the most Northern of the proposed confederacies would, at a period not very distant, be unquestionably more formidable than any of the others. No sooner would this become evident than the Northern Hive would excite the same ideas and sensations in the more southern parts of America which it formerly did in the southern parts of Europe. Nor does it appear to be a rash conjecture that its young swarms might often be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors.

They who well consider the history of similar divisions and confederacies will find abundant reason to apprehend that those in contemplation would in no other sense be neighbors than as they would be borderers; that they would neither love nor trust one another, but on the contrary would be a prey to discord, jealousy, and mutual injuries; in short, that they would place us exactly in the situations in which some nations doubtless wish to see us, viz., formidable only to each other.

From these considerations it appears that those gentlemen are greatly mistaken who suppose that alliances offensive and defensive might be formed between these confederacies, and would produce that combination and union of wills of arms and of resources, which would be necessary to put and keep them in a formidable state of defense against foreign enemies.

When did the independent states, into which Britain and Spain were formerly divided, combine in such alliance, or unite their forces against a foreign enemy? The proposed confederacies will be distinct nations. Each of them would have its commerce with foreigners to regulate by distinct treaties; and as their productions and commodities are different and proper for different markets, so would those treaties be essentially different. Different commercial concerns must create different interests, and of course different degrees of political attachment to and connection with different foreign nations. Hence it might and probably would happen that the foreign nation with whom the Southern confederacy might be at war would be the one with whom the Northern confederacy would be the most desirous of preserving peace and friendship. An alliance so contrary to their immediate interest would not therefore be easy to form, nor, if formed, would it be observed and fulfilled with perfect good faith.

Nay, it is far more probable that in America, as in Europe, neighboring nations, acting under the impulse of opposite interests and unfriendly passions, would frequently be found taking different sides. Considering our distance from Europe, it would be more natural for these confederacies to apprehend danger from one another than from distant nations, and therefore that each of them should be more desirous to guard against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances between themselves. And here let us not forget how much more easy it is to receive foreign fleets into our ports, and foreign armies into our country, than it is to persuade or compel them to depart. How many conquests did the Romans and others make in the characters of allies, and what innovations did they under the same character introduce into the governments of those whom they pretended to protect.

Let candid men judge, then, whether the division of America into any given number of independent sovereignties would tend to secure us against the hostilities and improper interference of foreign nations.

Chisholm v. Georgia (1793)21

In determining the sense in which Georgia is a sovereign State, it may be useful to turn our attention to the political situation we were in, prior to the Revolution, and to the political Rights which emerged from the Revolution. All the country now possessed by the United States was then a part of the dominions appertaining to the crown of Great Britain. Every acre of land in this country was then held mediately or immediately by grants from that crown. All the people of this country were then, subjects of the King of Great Britain, and owed allegiance to him; and all the civil authority then existing or exercised here, flowed from the head of the British Empire. They were in strict sense fellow subjects, and in a variety of respects one people. When the Revolution commenced, the patriots did not assert that only the same affinity and social connection subsisted between the people, of the colonies, which subsisted between the people of Gaul, Britain, and Spain, while Roman Provinces, viz. only that affinity and social connection which result from the mere circumstance of being governed by the same Prince; different ideas prevailed, and gave occasion to the Congress of 1774 and 1775.

The Revolution, or rather the Declaration of Independence, found the people already united for general purposes, and at the same time providing for their more domestic concerns by State conventions, and other temporary arrangements. From the crown of Great Britain, the sovereignty of their country passed to the people of it; and it was then not an uncommon opinion, that the unappropriated lands which belonged to that crown, passed not to the people of the Colony or States within whose limits they were situated, but to the whole people; on whatever principles this opinion rested, it did give way to the other, and thirteen sovereignties were considered as emerging from the principles of the Revolution, combined with local convenience and considerations; the people nevertheless continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accordingly; afterwards, in the hurry of the war, and in the warmth of mutual confidence, they made a confederation of the States, the basis of a general Government. Experience disappointed the expectations they had formed from it; and then the people, in their collective and national capacity, established the present Constitution.

It is remarkable that in establishing it, the people exercised their own rights, and their own proper sovereignty, and conscious of the plenitude of it, they declared with becoming dignity, “We the people of the United States, do ordain and establish this Constitution.” Here we see the people acting as sovereigns of the whole country; and in the language of sovereignty, establishing a Constitution by which it was their will, that the State Governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects, in a certain manner. By this great compact however, many prerogatives were transferred to the national Government, such as those of making war and peace, contracting alliances, coining money, &c. &c.

If then it be true, that the sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State, it may be useful to compare these sovereignties with those in Europe, that we may thence be enabled to judge, whether all the prerogatives which are allowed to the latter, are so essential to the former. There is reason to suspect that some of the difficulties which embarrass the present question arise from inattention to differences which subsist between them.

It will be sufficient to observe briefly, that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the Prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance, and excludes the idea of his being on an equal footing with a subject, either in a Court of Justice or elsewhere. That system contemplates him as being the foundation of honor and authority; and from his grace and grant derives all franchises, immunities and privileges; it is easy to perceive that such a sovereign could not be amenable to a Court of Justice, or subjected to judicial controul and actual constraint. It was of necessity, therefore, that suability became incompatible with such sovereignty. Besides, the Prince having all the Executive powers, the judgment of the courts would, in fact, be only monitory, not mandatory to him, and a capacity to be advised, is a distinct thing from a capacity to be sued. The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the Prince and the subject. No such ideas obtain here; At the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called) and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.

From the differences existing between feudal sovereignties and Governments founded on compacts, it necessarily follows that their respective prerogatives must differ. Sovereignty is the right to govern; a nation or State-sovereign is the person or persons in whom that resides. In Europe the sovereignty is generally ascribed to the Prince; here it rests with the people; there, the sovereign actually administers the Government; here, never in a single instance; our Governors are the agents of the people, and at most stand in the same relation to their sovereign, in which regents in Europe stand to their sovereigns. Their Princes have personal powers, dignities and pre-eminences; our rulers have none but official; nor do they partake in the sovereignty otherwise, or in any other capacity, than as private citizens.

Recommended Readings

• Walter Stahr, John Jay: Founding Father (New York: Diversion Books, 2012).
• Elizabeth M. Nuxoll, ed., The Selected Papers of John Jay, 7 vols. (Charlottesville: University of Virginia Press, 2010–2021).
• William Jay, The Life of John Jay: With Selections from His Correspondence and Miscellaneous Papers, 2 vols. (New York: J. & J, Harper, 1833).
• Richard B. Morris, ed., John Jay: The Winning of the Peace: Unpublished Papers, 1780–1784 (New York: HarperCollins, 1980).

Notes