Current Comment

and

Legal Miscellany.

PUBLISHED BY THE D. B. CANFIELD COMPANY LIMITED, PHILADELPHIA. SUBSCRIPTION, ONE DOLLAR A YEAR. SINGLE COPY, TEN CENTS.

Vol. I.

Copyrighted 1889. Entered at the Post Office at Philadelphia as second-class matter.

November 15, 1889.

JOHN JAY.

Born, December 12, 1745; died, May 17, 1829.

No. II.

This distinguished son of King's (now Columbia) College, in the City of New York, was a New York City boy, and always remained a New Yorker of the national as distinguished from the modern ignorant, commercial type. Among the men then in college, there were Robert R. Livingston, and Gouverneur Morris. Jay himself was a Van Cortlandt on his mother's side, and easily became a welcome visitor among the Knickerbocker families. Thus, he became a friend of the future Chancellor Livingston, and Edward Livingston; and so he found his wife, the beautiful Sarah Livingston, daughter of William Livingston,-a marriage of thirty years' unclouded domestic happiness, though Mrs. Jay became the leader of society in America when the families of the newly established general government sought to preserve the dignity and grace fitted to their conception of a Federal court.

From the opening of the Revolution until the establishment of the present National government, Jay was one of the Continental Congresses, and of the New York Convention; then, Chief Justice of New York State and member of the Council of Safety; delegate in Congress from 1778 from New York State, and being immediately chosen President of that body, became the executive head of our new country for the ensuing fourteen months. The aid of Spain became so important that Jay was chosen for the mission to that country, and eventually he became that one of the Peace Commis

sioners at Paris, whose work was all important. Immediately upon his return to America, in 1785, he was chosen Secretary of Foreign Affairs and became again the real executive head of the Confederacy. That form of government proving utterly inadequate, with Hamilton and Madison he undertook that justly celebrated series of papers, now called The Federalist. Soon he had the important post of one of the New York Convention which was to decide upon the adoption or rejection of the Constitution of 1787 by the ninth State required for its going into effect. The Union would be severed without the Empire State: but Hamilton, Livingston and Jay were able to so paint the impending dangers as to overcome opposition by a majority of three. With the erection of a National Government came the selection of the Justices of the Supreme Court and, on the same day the Judiciary Act of 1789 was signed, Jay was nominated Chief Justice.

At the age of forty-four, with a "manner combining the affability of a gentleman with the dignity of a statesman," a vigorous and well balanced mind, "when the ermine of the judicial robe fell on John Jay, it touched nothing less spotless than itself."

The first term of the court was held in New York City, in February, 1790, but the first opinion does not seem to have been rendered until August Term, 1792, in the case of Georgia v. Brailsford, 2 Dallas 402, when the Chief Justice confessed to a prior unfavorable idea to granting an injunction to stay, in the hands of the U. S. Marshal, the proceeds of Brailsford's judgment against certain Georgians. The State of Georgia had confiscated this debt, and the money was stopped until the right of the State could be adjudicated.

At this point, a curious blunder in the sketch of Jay's life, by William Whitelock (1887), ought to be noticed. Whitelock either never observed or disbelieved the sign affixed in 1876 and still remaining on the east wing of the State House, in Philadelphia, for he writes (page 261), "nor do we even know the place of its [the Supreme Court of the United States] meeting in Philadelphia."

Chisholm v. Georgia (1793), 2 Dall. 419, came next, and it may be called the leading case of all the decisions by the

Supreme Court of the United States, and this, because the court therein proceeded to perform those duties for which it was created. The question which was decided in the affirmitive, was liability of one of the United States to be sued by an individual citizen of another State. The opinion did not shirk the point. In the language of the Chief Justice, his opinion proceeded to consider, “first, in what sense Georgia is a sovereign State; second, whether suability is incompatible with such sovereignty; third, whether the Constitution to which Georgia is a party-authorizes such an action against her."

The effect of such a decision is thus described by Chief Justice MARSHALL

"It is part of our history, that, at the adoption of the Constitution, all the States were greatly indebted; and the apprehension that these debts might be prosecuted in the Federal Courts, formed a very serious objection to that instrument. Suits were instituted; and the Court maintained its jurisdiction. The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this [Eleventh] amendment was proposed in Congress, and adopted by the State Legislatures. That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. ***** Those who were inhibited from commencing a suit against a State, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister States would be creditors to any considerable amount, and there was reason to retain the jurisdiction of the Court in those cases, because it might be essential to the preservation of peace:" Cohens v. Virginia (1821), 6 Wheaton 406.

Georgia v. Brailsford (1794), 3 Dall. 1, is the charge by the Chief Justice to a jury, in the Supreme Court of the United States. It is the first and one of the few jury trials in that Court. The charge is chiefly remarkable for the sentiments of the Chief Justice on the equal rights of individuals and States in a forum of justice. This cardinal principle of our Revolution has been so much obscured by the usual feelings of awe and admiration for power and government, that the language may well be quoted here.

"Some stress has been laid on a consideration of the different situations of the parties to the cause. The State of Georgia sues three private persons. But what is it to justice, how many, or how few; how high, or how low; how rich, or how poor; the contending parties may chance to be? Justice is indiscriminately due to all, without regard to numbers, wealth or tank. Because to the State of Georgia, composed of many thousands of people, the litigated sum cannot be of great mo

ment, you will not, for this reason, be justified in deciding against her claim; if the money belongs to her, she ought to have it; but, on the other hand, no consideration of the circumstances, or of the comparative insignificance of the defendants, can be a ground to deny them the advantage of a favorable verdict, if, in justice, they are entitled to it."

While sitting in the Circuit Court, Jay decided that the court had jurisdiction over violations of the law of nations, in time of war between nations with whom the United States were at peace, independent of any statute of the United States. This was a general opinion, not refuted until the United States Supreme Court in 1798 decided otherwise. The ruling, however, at the time is thought to have prevented war with Great Britain; and the liability of any country for permitting its ports to be so used by one belligerent against another, became the basis for the celebrated Geneva award to our country.

Again, in the Circuit Court at Richmond, in 1793, the American debtors were adjudged liable to pay their British creditors, agreeable with the treaty. Patrick Henry and John Marshall were counsel for the defendants.

Here ends the brief judicial career of Chief-Justice Jay, for during the session of Circuit Court held in April, 1794, he resigned to negotiate the treaty with England of that year, and on his return home, having served two terms as governor of New York, he then retired from public life. In 1801, he was again nominated for Chief-Justice, by President Adams, and confirmed, but declined the honor.

The diplomatic career of John Jay, is by far the more important in fame for his memory, in honor for all patriots, and in benefit to his countrymen. But it can have no adequate notice here, save as an introduction to that literary feature of his life, which stands midway between the diplomatic and judicial achievements of the first Chief Justice. He was one of the writers of The Federalist.

Much is said in these days about the Press, and the editors of the day and their excessive influence; but all such remarks are made in forgetfulness, that the Constitution was very largely made acceptable to an almost unwilling people, by The Federalist. At another time, the voice of Webster blew into living flame, the dying sentiment of one country and one people, but it was the