During the months between the adoption of the Olive Branch Petition and his draft of “Proofs that the Colonies Do Not Aim at Independence,” John Jay, like the Continental Congress itself, was in an increasingly ambivalent position, suspended, as John Adams impatiently described it, “between hawk and buzzard.” By temperament an activist, a believer that government must be infused with energy, and more and more inclined to adopting a unified approach to the exercise of war powers and the management of external relations, Jay demonstrated his continentalist inclinations by opposing initiatives stemming from the separate provinces aimed at conciliation. On 10 October he argued in favor of the appointment by Congress of officers in the battalions to be raised in New Jersey. “We pay. Cant We appoint with the Advice of our Generals,” he asked. His incipient nationalism emerges in the further comment, “The Union depends much upon breaking down provincial Conventions.” The issue was settled on 7 November, when Congress elected the identical officers nominated by the New Jersey Convention.1

By this time Jay was one of the most active committeemen in Congress, appointed to such crucial committees as the committee to correspond “with our friends in Great Britain, Ireland, and other parts of the world.” On this Committee of Secret Correspondence (later the Committee for Foreign Affairs), established on 29 November 1775, Jay initially served with Benjamin Harrison, Benjamin Franklin, Thomas Johnson Jr., and John Dickinson.2 Members of the Adams-Lee faction objected to their exclusion from the committee. Arthur Lee, when notified in England that he was appointed a congressional agent, refused to write the committee while two members (apparently Franklin and Jay) were on it, and he complained that none of those he was known to correspond with and have confidence in were on the committee. He also spread unsubstantiated insinuations about Jay’s loyalty, possibly derived from Jay’s correspondence with his old friend John Vardill, then in England, who had, unknown to Jay, been employed by the British ministry.3 Despite his conflict with the Adams-Lee group, Jay sought to reassure John Adams regarding Congress’s failure to appoint him either to the Committee of Secret Correspondence or to the Secret Committee (later the Commercial Committee), asserting that the only thing preventing Adams from being acknowledged as the “first Man in Congress” was the “great division” in the house, effected by Samuel Adams and Richard Henry Lee, and that as John Adams was known to be very intimate with them, “many others were jealous” of him. Lee, seconded by Thomas Paine, later revived his aspersions on Jay’s loyalty and patriotism during the Deane-Lee affair of 1778–79, when these intense partisan conflicts reemerged.4

As a member of the Committee of Secret Correspondence, Jay participated in December 1775 in secret negotiations with secret French emissary Julien-Alexandre Achard de Bonvouloir et Loyauté (1749–83), who was sent to America to report on the state of colonial resistance and its prospects of success. Bonvouloir was instructed to make no promises and to avoid compromising France in any way. Four of the committee members, Franklin, Jay, Benjamin Harrison, and John Dickinson, met with Bonvouloir at night, each arriving by different routes, and explored the possibility of French assistance, especially exchanging produce for munitions and obtaining the use of two experienced military engineers. Although Bonvouloir recommended against sending an envoy, these discussions encouraged the committee to send Silas Deane as its agent to France in March 1776. When Deane left for France, Jay gave him a quantity of invisible ink invented by his brother Sir James, in order that confidential communications could be dispatched in relative security. Even after Jay returned to New York in May 1776, he continued to receive and forward Deane’s letters to the Committee of Secret Correspondence.5

On a committee of Congress to deal with disaffection in Queens County, New York, Jay participated in draft ing a report urging that all persons who voted against sending deputies to the provincial convention “be put out of the protection of the United Colonies,” that such persons be forbidden to leave the country without a certificate from the New York Convention, that they be debarred from courts of law, that their names be published in county newspapers for one month, and that they be disarmed—in all, strong medicine for a moderate.6 By 23 December, as the letter to Alexander McDougall below reveals, Jay became convinced that provincial governments must exercise their power to levy and collect taxes, a suggestion he would reiterate a few months later and again as president of Congress.

During the remainder of his attendance at sessions of the Second Continental Congress, Jay continued to press for vigorous measures of defense and against subversive activities. On 3 November 1775, he had been commissioned as colonel of the Second Regiment of Militia of Foot of New York, and he vigorously supported the efforts of Congress not only to procure arms but also to apprehend and imprison or disarm Tories, including the “Scotch Roman Catholic soldiers” being recruited in the vicinity of Sir John Johnson in the Mohawk Valley.7 He assisted in drafting the preamble to the resolution of 23 March 1776 authorizing the commissioning of privateers. In the debates on this resolve, Jay reportedly declared he was “for a War against such only of the British nation as are our enemies.” In the latter part of April, before leaving Congress, he drafted a resolve setting up legal machinery in the colonies fixing liability for those assisting “enemies of the United Colonies” in the capture of Patriot vessels or goods. But the swift march of independence made this draft obsolete, and even sterner measures were adopted in July 1776. By 11 April, Jay conceded that “the Sword must decide the Controversy” and proposed that the first order of business was “to erect good and well ordered governments,” thus anticipating in fact the congressional resolution of 10 May, adopted after he had left Philadelphia.8

Concerned equally with the enhancement of governmental power in the war emergency and with clipping the wings of activist Tories, he was vigilant in seeing that the civilian government kept the upper hand. He joined with others on the New York delegation in Congress in protesting, on 15 March 1776, the imposition by General Charles Lee of a test oath. He was alarmed lest the enforcement of loyalty oaths be taken over by the army. “To impose a Test,” he asserted, “is a sovereign act of Legislation—and when the army become our Legislators, the People that Moment become Slaves.”9

Despite his activist role in the wartime emergency, Jay, in the fall of 1775, still maintained an anti-independence posture, though favoring united rather than separate colonial stands on that supreme issue. Since New Jersey and Pennsylvania both instructed their respective delegates in Congress “utterly to reject” any proposition for independence, Congress’s hand was forced. On 13 November 1775 it named a committee to answer “the sundry illegal ministerial proclamations that have lately appeared in America.” Before this committee’s report could be considered, Congress learned that the New Jersey Assembly planned to petition the king. Judging such an appeal “very dangerous to the liberties and welfare of America,” Congress appointed Jay, John Dickinson, and George Wythe (1726–1806) of Virginia to dissuade the colony from this measure.10

On 5 December, Jay, Dickinson, and Wythe addressed the New Jersey Assembly at Burlington. Governor William Franklin made these notes of Jay’s speech: “Mr. Jay—Said We had nothing to expect from the Mercy or Justice of Britain—That Petitions were now not the Means, Vigour & Unanimity the only Means—That the Petition of United America [see the Olive Branch Petition, above] presented by Congress ought to be relied on,—others unnecessary—and Hoped the House would not think otherwise.” The committee’s arguments were persuasive, and the New Jersey Assembly voted against a separate address to George III. On 6 December, the Continental Congress adopted the report of the committee on “ministerial proclamations,” which indignantly denied the charge that the colonists were “forgetting the allegiance” they owed the Crown.11

It was in this atmosphere that Jay drafted the paper printed below. It was composed sometime after 9 December 1775, when the edition of the journals of Congress cited by Jay was published.12 Although the essay was obviously intended for publication, no evidence has been found that it appeared in the New York or Pennsylvania press. This may indicate that Jay drafted the paragraphs in late December or early January, for the publication of Thomas Paine’s Common Sense on 10 January 1776 would have rendered publication of this defense of Congress unpersuasive. After Paine’s historic pamphlet, the terms of debate on independence altered quickly. It no longer mattered whether Congress had “aimed” at independence in 1775.13