by Myron Magnet
MORE REALISTICALLY still, while Congress was extending its olive branch with one hand, it was gathering up arrows with the other. In May 1775, in response to rumors that Britain was readying troops to enforce its will and might land them in New York, Congress advised New Yorkers “to persevere the more vigorously in preparing for their defence, as it is very uncertain whether the . . . conciliatory Measures will be successful.”32 In June, Congress began to raise an army and named George Washington its chief, two days before the Battle of Bunker Hill showed the British they faced an unexpectedly hard war. Passing through New York when news of the fierce fighting arrived, Washington, realizing that the politically divided colony’s royal governor, William Tryon, would probably start arming the Loyalists, issued his first official order—to arrest Tryon if he did.33
Both the rumors of invasion and Washington’s instincts about the Loyalists proved correct, and John Jay rushed to counter each threat. To prepare for the invasion, he had to deal with an unintended consequence of the trade boycott he had championed and helped enforce. Not only did the ban fail to stem England’s harshness, as planned, but also it kept the colonies from stockpiling war supplies they turned out to need desperately. By the time even reluctant rebels like Jay understood that “the Sword must decide the Controversy,” New Yorkers were reduced to stripping the lead out from between their windowpanes to cast into bullets, and melting down their door knockers and church bells for cannon.34 Pathetically, until better weapons turned up, Jay sent from Philadelphia a well-designed spear for New York craftsmen to copy.
After the new British commander in chief William Howe moved the strategic center of the war to New York, aiming to use its great harbor as the hub of naval operations and to take control of the Hudson River, cutting off New England from the rest of America and then conquering the colonies one by one, Jay went on a wild ride through Connecticut, rounding up cannon from the Salisbury foundry to defend the river and heavy chain to block the Royal Navy from sailing up it.35 But supplies—everything from bullets to blankets to boots—remained scarce for the entire war, and in later years Jay never forgot Washington’s account of how his barefoot soldiers left bloody tracks in the snow.36
As for the Loyalists, New York was notable among the colonies for the strength of its residents’ attachment to the Mother Country; at least a third wholeheartedly supported the king and another third trimmed from side to side. After the brothers Howe, general and admiral, sailed into New York Harbor on June 29, 1776, turning it, over the next few weeks, into “a wood of pine trees” with the masts of eighty-two warships from the Lower Bay to the Tappan Zee, so that it seemed “all London was afloat”—once the British occupied the city in September and kept it as a stronghold for the next seven years—the whole colony became a dragon-ridden theater of threat, fear, and violence.37 If John Jay had seen one kind of ferocious anarchy in the urban riots of 1765, when he watched men in a frenzy of murderous destructiveness of the sort that had haunted his imagination from childhood, he lived through a different kind of anarchy, no less fearsome and instructive about human nature and its brutish capacity for evil, from 1776 to 1778.
SITTING ON the cool veranda of his Westchester farmhouse before moving in to dinner in his richly carpeted dining room, with its “JJ”-monogrammed Chinese-export dishes bought for his wedding, its table and twenty-four chairs of the finest and heaviest mahogany skillfully carved in the simplest, least pretentious late-eighteenth-century style, an elderly John Jay talked of these times one memorable evening to his son William’s boyhood schoolmate, James Fenimore Cooper, who became the new country’s first major novelist.38 Two weeks before the British entered New York Harbor, the colony’s Provincial Congress, of which Jay was a member even while he was a Continental Congressman, had assigned him to chair a committee to deal with spies and saboteurs, and he evoked for his young friend Cooper the shadowy world of what he called “plots, conspiracies, and chimeras dire” that he would occupy for some time to come.39 He found that Governor Tryon had indeed been raising a corps of New York’s British sympathizers to support the invading army when it arrived, funneling money to them through the city’s mayor. More alarmingly, he found that the plotters included a soldier of George Washington’s bodyguard, who, according to later rumor (never proved), plotted to kill the General. The mayor went to jail, the guardsman to the gallows.40
What Cooper remembered from that long evening’s talk was Jay’s description of how, as head of the Committee for Detecting Conspiracies, he had run a spy ring in Westchester and the Hudson Valley, once the British had occupied Manhattan, Staten Island, and all of Long Island, a tale Cooper elaborated in 1821 into the very first best-selling American novel, The Spy.41 With the Royal Navy commanding Long Island Sound and part of the Hudson, and the British army driving Washington’s ragged force across New Jersey, politically divided Westchester, Cooper recounts, “had many of the features of a civil war,” with the British invaders stoking internal strife by arming troops of Loyalist auxiliaries.42 In response, the Americans formed their own bands of irregulars to harass both the redcoats and their ragtag auxiliaries. Both guerrilla groups, the Patriot “Skinners” and the Loyalist “Cow-Boys,” tended to degenerate into pitiless marauders, Cooper wrote, “whose sole occupation appears to have been that of relieving their fellow-citizens from any little excess of temporal prosperity they might be thought to enjoy”—as happened to John Jay’s father and siblings, leaving them only their clothes and their lives. They were lucky, though, as this gang of Cow-Boys murdered some of their other victims.43
Oppression and injustice reigned, says Cooper; “the law was momentarily extinct in that particular district, and justice was administered subject to the bias of personal interests and the passions of the strongest.” The locals lived in doubt and fear of predators—banditti of ruffians, as Tom Paine described the State of Nature’s savage hordes—often too demoralized to plant crops, distrustful of their neighbors, and hiding their real sympathies, if they had them.44 Patrick Henry was wrong in saying that America had returned to the State of Nature in 1774, but in Westchester in the late 1770s—and in war-ravaged New Jersey, where the same marauding gangs clashed and pillaged—it was Thomas Hobbes’s war of all against all, a laboratory demonstration for political philosophers and a graduate education for John Jay.45
Though Jay never named him, he told Cooper the story of one of the spies he had run: Enoch Crosby, whose 1832 deposition requesting a federal pension recounts adventures much like those of Cooper’s hero, Harvey Birch. A virtuoso of deception and double-dealing, brave, cool, resourceful, and patriotic, Crosby, surviving hair-raisingly narrow escapes, helped American troops capture some hundred recruits to the British forces, some wholehearted Loyalists, some opportunistic freebooters.46
Once elected chief justice of New York in May 1777, Jay remained ankle-deep in such banditti. “I am now engaged in the most disagreeable part of my duty—trying criminals,” he wrote Gouverneur Morris in the spring of 1778. “The Woods afford them Shelter and the Tories Food. Punishments must of course become certain, and Mercy dormant, a harsh System repugnant to my Feelings, but nevertheless necessary.”47 He had before his court in Albany a gang of Cow-Boys, who’d looted two Columbia County farms, killing the son of one farmer, a Continental soldier home on leave. They were “tory criminals,” according to the New-York Journal, bandits and traitors rolled into one. “Their thefts and robberies they justified, under the pretense of the goods being lawful prizes, forfeited to the King.” Jay sentenced ten of them to hang.48
ANYONE WHO WANTS to keep his hands clean and his conscience pure had better not choose politics as a vocation, Max Weber famously wrote, because politics operates through “power backed up by violence,” and its guiding principle—the very opposite of the Christian command to “Resist not him that is evil with force”—is “ ‘Thou shalt resist evil by force,’ or else you are responsible for the evil’s winning out.” But here one enters a moral mor
ass, for “he who lets himself in for politics, that is, for power and force as means, contracts with diabolical powers, and for his action it is not true that good can follow only from good and evil only from evil, but that often the opposite is true.”49 John Jay came to understand this ethical dilemma with all his being once he began detecting conspiracies. For if it’s disagreeable enough to hang men for their heinous actions, what about jailing or banishing people from their homes on suspicion—on information from spies about their political beliefs, or on their refusal to take loyalty oaths?50 Should people be punished not just for their action but also for their inaction? For their beliefs?
As early as November 1775, Jay answered by proposing harsh measures when Congress asked him how to handle disaffection in Queens County on Long Island, which declared itself neutral in the looming conflict and voted not to send delegates to Philadelphia. It’s not acceptable, Jay declared, to be “inactive spectators,” hoping, if the British win, “to purchase their favour and mercy at an easy rate,” while, if America wins, “they may enjoy, without expense of blood or treasure, all the blessings resulting from that liberty which they, in the day of trial, had abandoned.” Accordingly, he recommended that the declared neutrals “be put out of the protection of the United Colonies,” confined to their county, excluded from the law courts, and disarmed by New Jersey and Connecticut troops.51
Some who claimed neutrality, Jay suspected, were liars, actively supporting the enemy by “collecting and transmitting intelligence, raising false reports, and spreading calumnies of public men and measures.”52 Or worse—as he found when Beverly Robinson, a prosperous merchant (and a distant relative), came before his committee in February 1777. “Sir we have passed the Rubicon and it is now necessary every man Take his part,” Jay told Robinson. “Cast off all alliegiance to the King of Great Britain and take an oath of Alliegiance to the states of America or Go over to the enemy for we have Declared our Selves Independent.” This was an age, remember, when giving your word or swearing in God’s name put your honor or your soul at stake. Replied Robinson, “Sir I cannot Take the Oath but should be exceeding Glad to Stay in the Country.” Think it over, Jay advised. “You can Take a Month or Six weeks.” Jay wrote Robinson’s wife, urging her to persuade him to take the loyalty oath; but by then Robinson had started to raise a Loyalist regiment, and by March Jay got news that he’d guided British regulars to attack American soldiers at Peekskill, wounding two.53
BUT SOME OF THE neutrals were neither traitors, liars, nor trimmers, and Jay faced no harder case than that of his honorable King’s College friend Peter Van Schaack, who “condemned the conduct of the Home government” in London, Van Schaack’s son reported, but “was yet opposed to taking up arms in opposition to it” and felt conscience-bound not to take the loyalty oath against his king. Jay ordered him to appear before the Albany authorities, whose proceedings led to his ultimate banishment to London, from which he wrote Jay in 1782, as the Revolution was drawing to a close, tentatively hoping to reopen communication. Jay replied at once. “I have adhered to certain fixed Principles, . . . without regarding the Consequences of such Conduct to my Friends, my Family, or myself; all of whom, however dreadful the Thought, I have ever been ready to sacrifice, if necessary, to the public Objects in Contest. Believe me, . . . I felt very sensibly for you and for others; but as Society can regard only the political Propriety of Men’s Conduct, and not the moral Propriety of their Motives to it, I could only lament your unavoidably becoming classed with many whose morality was convenience. . . . No one can serve two Masters: either Britain was right, and America wrong; or America was right, and Britain wrong. . . . Hence it became our Duty to take one Side or the other.” He closed by asking how his old friend and his children are doing. “While I have a Loaf, you and they may freely partake of it. Don’t let this Idea hurt you. If your Circumstances are easy, I rejoice; if not, let me take off their rougher Edges.”54
Van Schaack wrote back with equal magnanimity. “Be assured, that were I arraigned at the bar, and you my judge, I should expect to stand or fall only by the merits of my cause.” He had reasons for his choice, he continues. “Even in a doubtful case, I would rather be the patient sufferer, than run the risk of being the active aggressor.” But now that the fighting is over, “if America is happier for the revolution, I declare solemnly that I shall rejoice that the side I was on was the unsuccessful one. . . . I have always considered you as one of the foremost enemies of this country, but since what has happened, has happened, there is no man to whom I more cordially wish the glory of the achievement.” As for his children, his son has been accepted at Yale. “I hope the poor fellow will not be reproached with the malignity of his father. . . . I would not let him come to England, because I mean he should never leave America.”55 In time Van Schaack returned to his New York law practice, and the friendship bloomed again.
Loyalty oaths, wartime un-American-activities committees: William Jay asserts that, while his father “was ever ready to adopt all proper measures for preventing the tories from injuring the American cause, he abhorred the idea of punishing them for their opinions.”56 Not so. He believed America was in a fight for its existence against enemies who, as he wrote to his fellow New Yorkers, “plunder your houses; ravish your wives and daughters; strip your infant children; expose whole families naked, miserable and forlorn, to want, to hunger, to inclement skies, and wretched deaths,” and who seek to impose a slavery such as “Egypt, Babylon, Syria, or Rome” imposed upon the Jews—or Catholics, he might have said, imposed on Huguenots.57 The greatest sin and dishonor would be not to fight to win, whatever it took. A life-or-death struggle has no margin for error.
ALONG WITH THESE indelible lessons in anarchy, Jay learned five great lessons about anarchy’s antidote—government—in his education as a statesman during his presidency of the Continental Congress from December 1778 through September 1779. First, he grasped that American unity was permanent. Our enemies, he wrote in his Circular Letter from Congress to Their Constituents, argue “that the confederation of the States remains to be perfected; that the union may be dissolved.” They are wrong. “These states are now as fully, legally, and absolutely confederated as it is possible for them to be.” The ongoing war is making the bond ever stronger. “A sense of common permanent interest, mutual affection (having been brethren in affliction), the ties of consanguinity daily extending, constant reciprocity of good offices, . . . all conspire in forming a strong chain of connexion, which must for ever bind us together.”58 Jay welcomed every sign of growing unity. He cheered the marriages of two fellow congressmen to ladies from states not their own: “I am pleased with these Intermarriages,” he wrote John Adams; “they tend to assimilate the States, and to promote one of the first wishes of my Heart, vizt. to see the People of America become one Nation in every Respect.”59 And he objected to Massachusetts’ description of itself “as being in New England, as well as America. Perhaps it wd. be better if these Distinctions were permitted to die away.”60
Second, a Federalist by instinct even before there was Federalism, he understood that union required a strong central government sovereign over the states. As early as October 1775, he wrote, “The Union depends much upon breaking down provincial Conventions.” Accordingly, during his presidency, Congress for the first time—and in his handwriting—declared its supremacy over the state governments, overturning a Pennsylvania statute (and a Pennsylvania jury decision) in the allocation of the sloop Active as a war prize. “Congress,” Jay pronounced in taking these actions, “is by these United States invested with the supreme sovereign power of war and peace.”61
Third, assuming the presidency when the quarrel between diplomats Silas Deane and Arthur Lee had reached its climax of bitterness, with charges of malfeasance and spying flung about in Congress, Jay learned a wariness toward his own colleagues. “There is as much Intrigue in this State House as in the vatican,” he commented, “but as little Secrecy as in a boarding Sch
ool.”62 His distrust only deepened when General Horatio Gates, part of a cabal of senior officers seeking to displace George Washington as commander in chief, sent him an insinuating letter critical of Washington’s military strategy. Rightly judging the letter mere Machiavellian self-serving on Gates’s part, like so much of the unprincipled self-interest he had seen in Congress, Jay sent Washington the relevant passage as a heads-up and received in response a letter of such nobility of character and comprehensive strategic and managerial brilliance as to teach him his fourth great lesson: that Washington was a world-historical leader.63 The two became friends and confidants; within weeks Washington moved from signing himself “Yr. obliged & obed. Ser.” to “Yr. most obed. & affect. Servt.,” though it took Jay six months to get up the nerve to tell the “master-builder” (as he termed the great man) that “With sincere affection & Esteem, I am your friend & Servt.”64
