During the Second Continental Congress, John Jay continued to oppose a final break with England. He demonstrated his commitment to keeping open channels for reconciliation by his fight for the adoption of a petition to the king from the Second Congress. By the spring of 1775, a number of conciliatory moves had been initiated in the form of petitions to the king and memorials to the houses of Lords and Commons. On 26 October 1774, the First Continental Congress had adopted a “loyal address” to His Majesty, to which the king declined to reply. On 25 March 1775, the Loyalist-controlled New York Assembly petitioned the king and memorialized the two houses of Parliament. However, opinion was gaining ground that further conciliatory moves would prove fruitless. On 11 May 1775, Congress heard reports from colonial agents in London not only that Parliament had virtually ignored Congress’s petition, but that the ministry had announced its intention of enforcing parliamentary acts in the colonies and had deployed troops to that end. However, the conciliatory party in Congress, centering on Jay, James Duane, and John Dickinson (1732–1808) of Pennsylvania, pressed for one last petition to the king, noting that if it failed to secure reconciliation, it would promote American unity by demonstrating that all alternatives had been exhausted before war was inflicted on the still-divided American public.1

Since most of the proceedings of Congress in May 1775 were conducted in “the committee of the whole,” there are no detailed official records of their debates on the question of submitting another petition. Most delegates observed the injunction of secrecy and left few informal notes of congressional activities in the period. Contemporary records offer only a rough chronological outline of the events that led to the “Olive Branch Petition.”

On 15 May the New York delegates submitted the New York committee’s request for guidance in case of a rumored British landing in the city. Congress advised the colonists to pursue defensive measures only, although conceding the need to “repel force by force” if a direct threat were offered. Jay and his fellow New York delegates softened this injunction even further when they sent the resolutions home with a covering letter warning that the “Military Stores” that Congress suggested be removed were not to include Crown property. That same day a committee was named to consider what posts in New York should be occupied and what troops should be stationed in the province. The committee included George Washington, Thomas Lynch (1727–76) of South Carolina, Samuel Adams (1722–1803), and the New York delegation. The committee’s report of 19 May was immediately referred to the committee of the whole. On 25 May the committee of the whole reported its findings on the defense of New York to Congress. A motion for an addition to the committee’s proposals prompted debate and led to the postponement of the issue until the following day.2

The next day, 26 May, several crucial decisions were made. First, Congress received a letter from the New Jersey Assembly that enclosed a copy of Lord North’s conciliation motion of 20 February. Debate then resumed on the “addition” to the resolutions on New York’s defenses, which, as adopted, read: “Resolved, that it be recommended to the Congress aforesd [New York] to persevere the more vigorously in preparing for their defence, as it is very uncertain whether the earnest endeavours of the Congress to accommodate the unhappy differences between G. Britain and the colonies by conciliatory Measures will be successful.” Congress then went into the committee of the whole, which reported back four resolutions that Congress promptly adopted: the first two recognized the need to put the provinces in a state of defense, while the third authorized the adoption of a petition to the king, and the fourth expressed the colonists’ readiness to negotiate the issue in dispute.3

On 3 June, Congress named a moderate to conservative committee consisting of Jay, Dickinson, Benjamin Franklin, Thomas Johnson of Maryland, and John Rutledge of South Carolina to draft the petition authorized on 26 May. The committee submitted its draft report, the work of John Dickinson, on 19 June, and the petition was adopted by Congress on 5 July.4

Jay’s part in persuading Congress to adopt this measure is universally acknowledged, but the substance of his contribution has remained obscure. George Bancroft linked Jay’s role to the congressional resolutions of 15 May, which advised restraint to the inhabitants of New York in case of a British landing. Without citing sources, Bancroft concluded: “All parties tacitly agreed to avoid every decision which should invite attack or make reconciliation impossible. In conformity with this policy, Jay made the motion for a second petition to the king.” John Jay’s son and biographer, William Jay, who usually relied on his father’s personal recollections for such assessments of Jay’s career, stated: “This measure [the petition] originated with Mr. Jay, and was carried by him against a very strong opposition in Congress.” A later biographer, Frank Monaghan, asserted: “On June third Jay moved that a second petition be sent to the King; Dickinson seconded the motion.” However, the JCC description begins Worthington C. Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, D.C., 1904–37) description ends does not identify the delegates who offered motions on the petition to the king in May and June 1775; while Jay clearly deserves credit for aiding in the fight to authorize the petition, it is impossible to pinpoint his specific contributions on the floor of Congress.5

There is, however, evidence concerning Jay’s work in the committee appointed on 3 June to draft the petition to the king. Among the Dickinson Papers at the Library Company of Philadelphia there is a preliminary draft of that petition in Jay’s hand (printed below). Although the author of the final draft of what became known as the Olive Branch Petition is indisputably John Dickinson, the presence of Jay’s draft in the Dickinson Papers makes it clear that Dickinson examined Jay’s version while preparing his own text. A remnant of Dickinson’s first draft of the petition shows a conciliatory tone similar to Jay’s.6 Both texts criticize the change in imperial administration since the Seven Years’ War. Jay adverts to the colonial administration of the past dozen years, while the Dickinson draft mentions “the new system of statutes and regulations.” If all of Dickinson’s first draft were extant, further similarities to Jay’s draft might be found.

Such similarities are not surprising, since many of the ideas embodied in Jay’s draft had been bruited about for some time. There are at least two specific sources that both Jay and Dickinson may have tapped. One was the petition to the king adopted by the New York Assembly on 25 March 1775, in which that Loyalist-controlled body professed inviolable attachment to the king, disavowed independence as an objective, denied Parliament’s right of taxation without the consent of the colonists or their lawful representatives, questioned the constitutionality of some of the laws passed since 1764, and sought the king’s mediation and interposition. Significantly, the New York legislature, in a simultaneous petition to the House of Commons, demanded exemption from internal taxation. Another possible source of New York opinion that might well have influenced Jay and Dickinson was William Smith Jr., the colony’s chief justice and member of the Provincial Council. On 5 June 1775, Smith sent a letter to Lewis Morris, a member of the New York delegation to the Continental Congress, advising that a conciliatory message be sent to the king. Since the Dickinson draft was not reported from committee until 19 June, there would have been ample time to consider the suggestions embodied in the letter, which Morris might well have brought to the attention of Jay, if not of Dickinson as well.7

In terms of Jay’s own draft, with its implicit concessions, it is perhaps significant that Smith’s letter criticized the First Continental Congress for denying “the whole Legislative Authority of Great Britain” and asserted, “The Colonies formerly, and Ireland now give Proof from actual Experiment, that Great Britain may possess a useful Supremacy, without the Exercise of a Taxing Power.” Taking exception to the Whig argument that the “Taxing and Legislative Powers are inseparable Concomitants,” Smith refused to accept the conclusion that a refutation of a right to taxation implied a denial of a right of legislation. Smith’s argument is comparable to Jay’s concession to Parliament of the right to regulate commerce. A few perhaps coincidental parallels of phraseology exist between Smith’s letter and the final draft of the Olive Branch Petition. Smith admonished that not a word be said “about Rights.” Dickinson in a letter to Arthur Lee of 7 July stated: “You will perhaps at first be surpriz’d, that we made no Claim, and mention no Right.” However, Dickinson went on to explain: “Our rights [have] been already stated—our Claims made. . . . If Administration [be] desirous of stopping the Effusion of British [blood,] the Opportunity is now offered to them [by an] unexceptionable Petition for an accomodation. If they reject this appl[ication] with Contempt, the more humble it is, the more such Treatment will confirm the Minds of [our] Countrymen, to endure all the Misfortunes that may attend the Contest.”8

Speculation over shared sources and similarities in phrasing is less useful, however, than an inspection of the differences between Jay’s draft and Dickinson’s final version of the Olive Branch Petition. Such differences far outnumber any similarities, and the nature of the dissimilarities is vital. Jay asked that “every irritating measure be suspended.” Dickinson went beyond that and proposed the repeal of distasteful statutes. Jay, with his fondness for commissions, proposed that George III “commission some good & great Men to enquire into the Grievances of his faithful subjects.” Dickinson, sidestepping a concrete plan, asked only that “your Majesty be pleased to direct some mode, by which the united applications of your faithful colonists to the throne . . . be improved into a happy and permanent reconciliation.”9

The final version avoided that explicit disavowal of independence as an end that Jay’s draft includes, nor does one find in the former any admission of the legality of the acts of Parliament regulating trade that Jay was prepared to concede. Dickinson did not follow Jay’s lead of suggesting that negotiations might be conducted with the colonial assemblies should the royal government prefer not to deal with Congress. Nonetheless, Dickinson arranged that the petition be signed by the delegates as individuals, with even John Hancock signing as an individual rather than as president of Congress, to offset the fact that it was adopted in a general Congress. Retrospectively, Jefferson tells us that following the approval of the petition, Dickinson remarked, “There is but one word, Mr. President, in the paper which I disapprove, and that is the word Congress.” Benjamin Harrison of Virginia immediately retorted, “There is but one word in the paper, Mr. President, of which I approve, and that is the word Congress.” Instead of incorporating Jay’s proposal for a new compact of the empire, a far-reaching and advanced notion indeed, the final draft merely speaks of “a concord” on a firm basis.10

In short, Dickinson’s final draft avoided further ruffling the sensibilities of Congress by making injudicious or unnecessary admissions or concessions. In view of the heated opposition in Congress to so watered-down a version as the final Olive Branch Petition, it is obvious that Jay’s draft could never have been adopted.11

Jay was among the forty-eight congressmen whose signatures appeared on the final petition. Richard Penn carried the petition to England, but George III refused to receive it or to make any reply.12 In his later writings, Jay contended that it was the king’s contemptuous disregard of the petition that forced Americans to seek independence.13