Charges to Circuit Court Grand Juries

Charging the grand jury was one of the most important activities of federal judges in the 1790s. At the start of each term of the court, the presiding federal judge delivered an address to the grand jurors laying out their duty and the manner in which it was to be performed. These were no mere legal instructions, but lectures on the role of government, on the implications of the new Constitutional system, and on the jury’s role and responsibility within that system. Since they were eventually printed in many newspapers, they served to educate a wide audience on the new political and legal system. The grand jury charge was important because the grand jury was the body that decided whether there was enough evidence to bring a person to trial, where the trial jury (or petit jury) would determine guilt or innocence. Accusations could come directly from the grand jury through “presentments” based on the grand juror’s own knowledge or observations; charges could also come through “informations” or prosecutions initiated by public officials, or through bills of indictment originated by prosecutors. Grand jury charges in the 1790s granted great latitude and great responsibility to the grand juries; they were encouraged to make inquiries on their own, and not to wait for the action of prosecutors.7

Jay’s charges to the grand juries were widely praised for their lucidity and elegance.8 On circuit Jay charged grand juries on the nature of dissent. Men might differ in their opinions about the Constitution, he pointed out, “and yet be patriots, and if the merits of our opinions can only be ascertained by experience, let us patiently abide the trial,” he exhorted.9 In his earliest charges Jay played a major role in promoting the new Constitution, explicating its legal implications, identifying the sphere of the federal courts and calming fears of their role, explaining the nature of the concurrent jurisdiction of federal and state courts, and identifying the most significant violations of federal law that the courts were to handle. Drafts of Jay’s charges are available to show his thought processes and arguments, and several were published in pamphlets and newspapers.

During Jay’s first circuit court sessions the charges given throughout New York and New England are similar; he emphasized the importance of enforcement of the penal laws, or the federal laws enforcing the new federal import and excise taxes, on which the solvency and effectiveness of the new government would depend, and punishing counterfeiting and forgery. The charges soon moved on to explicating the enforcement of debt payments and contracts, particularly those involved in implementing the peace treaty with Great Britain and other international engagements. When, as Chief Justice, he visited states in which such debt delinquency was extensive, he made a special point of charging grand juries on the sanctity of treaties. He so charged the grand juries in New York, Connecticut, Massachusetts, and New Hampshire in April and May 1790.10 On these occasions Jay repeated many of the arguments on the sanctity of treaties he had articulated previously as Secretary for Foreign Affairs in his report on violations of the peace treaty of 13 October 1786.11

Jay resisted Hamilton’s urgings that he use grand jury charges to help suppress the western protestors against the excise tax prior to the Whiskey Rebellion, urging a more moderate stance.12 However, once war broke out between France and England in 1793, he used a grand jury charge in Virginia to defend the importance of preserving neutrality, linking it to the obligations under the various treaties with European powers and under international law. He documented at length the legal obligations of neutrality and the types of violations the court should take up and prosecute. Beyond that Jay also argued for the preservation of national unity and the avoidance of publicly taking sides with belligerent nations and of incorporating such favoritism into partisan divisions. Jay’s charge was eventually published by the Grand Jury in Virginia and republished in Philadelphia, New York, and South Carolina following the Henfield case, the first federal case prosecuting neutrality violations, one in which Jay was not directly involved. James Wilson’s charge in the Henfield case incorporated many of Jay’s arguments, but was far more widely circulated than Jay’s.13 Though Jay’s charges were usually well received in the north, his charge on neutrality prompted a storm of opposition in Virginia and in the South generally.

Circuit Court Cases

According to a report submitted to Congress in February 1802, more than 8,358 circuit court suits were initiated by that time, and 1,629 were still depending. The states with the largest number of cases were Virginia, Pennsylvania, Georgia, Kentucky and North Carolina. Of course the vast majority of the cases were initiated after the end of John Jay’s term in office, and he himself only participated in the cases held during the circuit court sessions he attended, first in the Eastern Circuit in the Spring sessions for 1790 to 1792 and the Fall sessions for 1790 and 1791, and then in the Middle Circuit for the Spring 1793 and 1794 sessions, the latter of which Jay had to leave early to take on his assignment to negotiate a treaty with Great Britain. The report indicates that during his Eastern Circuit tours Jay would have heard fifteen common law cases and one chancery case in New Hampshire; sixteen common law cases and three criminal cases in Massachusetts; one common law case in Vermont; eighty-eight common law cases, eleven chancery cases, and five criminal cases in Connecticut; forty-two common law cases and eight criminal cases in Rhode Island; and five common law cases, one criminal case, and one chancery case in New York. During his more controversial Middle Circuit tour in 1793, the court heard two common law cases in New Jersey, eleven common law cases and one chancery case in Pennsylvania, five common law cases in Delaware, six common law cases and one criminal case in Maryland, and twenty-one common law cases and one chancery case in Virginia; however Jay himself only participated in the Virginia session. Just how many cases Jay heard in the 1794 Middle Circuit before his departure for England cannot be precisely determined, but he only attended the New Jersey and Pennsylvania district courts and was replaced in Pennsylvania by James Wilson before the session was completed. During his time as circuit judge Jay heard his largest number of cases in Connecticut, Rhode Island, Virginia, and Massachusetts. His greatest impact was probably on the debt-related suits held in those states as discussed below.14

The sparse and scattered nature of the documentary evidence presents difficulties for the study of circuit court cases during the time of Jay’s term as Chief Justice and indeed during all the years prior to the ascendancy of John Marshall as Chief Justice. Generally, the basis for the opinion rendered is not explained in the records, and can only occasionally be ascertained from newspaper coverage. The best-known cases are those that were appealed to the Supreme Court and those that involved judicial review of state or federal laws. In the latter category, among the cases involving judicial review of state laws are those in which state debtor-relief laws ran afoul of the contracts clause of the United States Constitution, and those in which British creditors claimed the protection of a provision in the treaty of peace barring state actions obstructing the collection of debt.

The circuit courts’ role in enforcing neutrality regulations received much attention both at the time and in historical coverage, although few actual cases were filed. The courts’ role in enforcing the new nation’s revenue laws or punishing counterfeiting and forgery attracted relatively little controversy and was rightly viewed as crucial to the new nation’s economic and fiscal health. Finally, important cases raised other significant issues such as whether circuit courts had concurrent jurisdiction over cases involving consular officials, and whether courts could prosecute violations of common or international law in the absence of specific federal statutes against them, that is, whether there existed a federal common law of crime.

The circuit court cases appealed to the Supreme Court during Jay’s tenure are discussed in the editorial note on Supreme Court procedures and cases, above. They include West v. Barnes, Georgia v. Brailsford, the Hayburn case, Ex Parte Chandler, Kingsley v. Jenkins, Ex Parte Martin, and Ware v. Hylton. Certain other cases, such as Glass v. the Sloop Betsey, and Chisholm v. Georgia, came before the Supreme Court following a circuit court’s dismissal of the case on the grounds of lack of jurisdiction.15

Scholars have identified at least six circuit court cases as invalidating state statutes during Jay’s tenure as Chief Justice.16 The first three cases, in all of which Jay participated, involved state interference in debtor-creditor relationships, a subject close to John Jay’s heart. Prompt payment of debts and avoidance of incurring debts that one would be unable to repay were among Jay’s strongest personal values, and as a trustee for various family estates he was often involved in the collection of debts, including in suits before the circuit court.17 Furthermore, Jay was especially concerned with implementing the debt provisions included in the Treaty of Paris of 1783. Although it was at John Adams’s insistence rather than that of Jay that the peace treaty provided that the states should place no legal obstacles to the recovery of all just debts owed British creditors, it was Jay who drafted the article incorporated in the Treaty,18 and it was Jay who bore the brunt of the battle to implement it. Negotiations with British diplomats had made it clear that little could be accomplished diplomatically unless the debt question was attended to, and Jay had been frustrated when his efforts as Secretary for Foreign Affairs often failed to induce state compliance with treaty obligations not to thwart legal proceedings for debt collection.19

The first cases in which a circuit court held a state law unconstitutional because it was in violation of the peace treaty were the unreported cases Lewis Deblois and George Deblois v. David Hawley and Elijah Hawley and Elliot v. Sage, both decided in New Haven in April 1791 by the Circuit Court, District of Connecticut, then consisting of Justices Jay and Cushing and District Judge Richard Law. In Deblois v. Hawley the plaintiffs, Lewis Deblois (1727–99), a London merchant, and his son George Deblois (1750–1819), a Boston merchant, both of whom were Boston residents before the Revolution under the firm name of Lewis Deblois and Son, moved to Nova Scotia for the duration of the war. On 27 September 1774, they had received a promissory note for £269.17.5½ payable in a year, with interest, from David and Elijah Hawley, then of New Haven, Connecticut, but because the Deblois partners were within the British lines during the war, they were unable to collect payment. When they sued the Hawleys, now residents of Stratford, Connecticut, to recover the debt plus interest totaling $2,500, the Hawleys sought protection from the substantial interest charges that had accumulated, citing a 1784 Connecticut law that enabled the state courts to try such cases according to the rules of equity, to take into consideration any “special matter” presented and proven by the defendant, and to make such abatement of principal or interest as they found equitable. When the Deblois case came before the Connecticut Circuit Court in April 1791, Pierpont Edwards acted as counsel for the plaintiffs and Jonathan Ingersoll as counsel for the defendants. On 28 April the judges ruled for the plaintiffs, requiring payment of both principal and interest for the entire period until the debt was paid, for a total sum of £506.14.11½ lawful money of Connecticut or $1,689.17, plus costs of £4.7.0 or $14.50.

In the similar case of Elliot v. Sage, Samuel Elliot (1739–1820), executor for the estate of a deceased British merchant, Joseph Greene of London, a citizen of Massachusetts prior to the Revolution who withdrew behind the British lines, sued Comfort Sage (1731–99) for payment on a note for £255 lawful money of Connecticut given Greene for merchandise purchased from him. Elliot sought payment of $2,000 plus court costs. Sage, a resident of Middletown, Connecticut, referred in his plea to the protection of the same 1784 Connecticut act cited by the Hawleys. In this case Pierpont Edwards acted as counsel for the plaintiff and Samuel W. Dana as counsel for the defendants. On 30 April 1791, the court again found for the plaintiff and required full payment of principal and interest without any abatement for the period of the war, for a total of £527.17.0. lawful money of Connecticut, or $1,759.50, plus court costs amounting to £4.0.6 or $13.41.

Widely circulated in the newspapers at that time was an explanation of the significance of the rulings, without specifically naming the cases or giving details. The account reported that the court took up “the great and much litigated question, Wh[e]ther obligations in favour of real British subjects, or those who had joined the armies of the King of Great Britain, during the war, should draw interest during the time the creditors were inaccessible by reason of the war. In this case, the court adjudged that the Statute law of Connecticut enabling the state courts to deduct interest in such cases, was an infringement of the treaty of peace, and that upon common law principles, interest was recoverable.—” The report further commented that the “learned and ingenious arguments from the bench on this question were interesting and gave general satisfaction.”

Following that account in some but not all of the newspapers printing the piece was a satirical commentary that illuminates the politics of the situation:

Died last Thursday, much lamented by those who wish to defraud their creditors, an act or law of Connecticut, entitled, “An Act relating to debts due to parties who have been and remained within the enemies power, or lines, during the late war.”— This statute, though of a weakly habit, hath yielded great service to the people of this state.— It has been productive of at least 100,000 pounds in cash. It received its death wound by the adoption of the New Constitution, and hath languished in extreme agony ever since.— On Thursday the 28th ult. the two-edged sword of justice gave it’s last fatal stroke, and it expired without a groan.— Numerous spectators beheld its corpse with a smile, and hoped that it might never rise again in this world to our shame, or the world to come to our confusion.20

The case more commonly cited as the earliest federal judicial review of a state law is Alexander Champion and Thomas Dickason v. Silas Casey, Rhode Island Circuit Court, 1792. In the Champion case, Jay and District Judge Henry Marchant, sitting in circuit for the district of Rhode Island, invalidated a state debtor-relief law extending the time allowed a debtor to settle accounts with his creditors and exempting him from all arrests and attachments for such term. They found that the statute conflicted with the contracts clause of the Constitution, which barred states from passing laws impairing the obligation of contracts. Surprisingly, given the state’s long history of pro-debtor sympathies, the Rhode Island legislature meekly concurred in this decision, as did other New England legislatures whose comparable statutes were invalidated under the contracts clause.21

In Virginia it was another story. There the federal district court dockets were inundated with suits brought by British creditors against their American debtors. Many of these cases involved wartime statutes enabling those in debt to British creditors to pay the sums due to the state and be thereby discharged from all obligations to the British creditors. The legal issue here was the compatibility of such statutes with the treaty of peace with Great Britain.

Until the time when Jay arrived in Virginia on circuit in 1793, circuit court judges in the South had avoided overturning state laws relating to British debts. The issue came before Jay and his fellow judges in Ware v. Hylton, 1793. Although the court ruled in favor of the creditors on some points, it upheld the statute at issue, holding that payments made to the state to satisfy debts to British creditors in compliance with a 1777 state act sequestering such debts did absolve the debtor from payment of those sums; Jay, who would have invalidated the state statute, was outvoted by his colleagues (see the editorial note on Supreme Court procedures and cases, above). But if the majority of the circuit court in Ware v. Hylton did not go as far as Jay wished in overturning state obstacles to payments to British creditors, the Supreme Court, after he had left the bench, did in the end uphold his dissenting view in 1796.22

The other known circuit cases invalidating state laws initiated during Jay’s term as Chief Justice are Hamilton v. Eaton, North Carolina, 1792; Skinner v. May, Massachusetts, 1794; and Vanhorne’s Lessee v. Dorrance, Pennsylvania, 1795, in none of which Jay participated.

Hamilton v. Eaton first came before the Circuit Court in the District of North Carolina in 1792; the decision invalidated a North Carolina statute similar to that considered in Ware v. Hylton. John Eaton, the defendant, was indebted to Archibald and John Hamilton, local Loyalists who returned to Great Britain. Before the ratification of the Treaty of Paris, Eaton paid the sums due into the state treasury in accordance with the state law, thus legally extinguishing the debt. The Hamiltons brought suit against Eaton claiming that Article IV of the treaty invalidated the sequestration law and restored their original claim against Eaton. When Justice Oliver Ellsworth and District Judge John Sitgreaves finally ruled on the case in 1796, they found for the plaintiffs and invalidated the state statute, citing the supremacy clause making treaties the supreme law of the land.23

Skinner v. May, an unreported 1794 decision by the Circuit Court for the District of Massachusetts, overturned a 1788 Massachusetts act prohibiting Massachusetts residents and citizens from participating in the slave trade. Justice Cushing and Judge John Lowell accepted the defendant’s arguments that the Commerce Clause of the Constitution (Section 8, Article 3) gave Congress the power to regulate foreign commerce, thereby invalidating state laws regulating foreign commerce.

Van Horne’s Lessee v. Dorrance, decided in April 1795 in Jay’s absence but before his official resignation, involved a 1787 Pennsylvania act relating to conflicting Connecticut and Pennsylvania land titles in Pennsylvania. Holding that the act awarded titles to the Connecticut settlers at the expense of Pennsylvania settlers without appropriate compensation, the court held the act unconstitutional under the state constitution of 1790. Furthermore, as a violation of the sanctity of contracts, the court declared, it violated both the state and the United States constitutions. The case is considered important because of William Paterson’s expansive statements on judicial review in the case. Although the case was appealed, the Supreme Court dismissed it without an opinion on the merits.24

During Jay’s term of office, two circuit court cases reviewed federal statutes. The first, Hayburn’s case, reviewed Congress’s assignment of nonjudicial duties to federal judges, and is discussed in the editorial note on the Supreme Court cases. The second, United States v. Ravara, upheld a provision of the Judiciary Act giving concurrent jurisdiction to the circuit courts over cases involving a foreign consul. This was a prominent federal criminal case and the last reported case on which Jay sat during his term as chief justice.

Joseph Ravara was arrested after sending anonymous threatening letters to Washington, British minister George Hammond, and Philadelphia merchant Benjamin Holland, part owner of cargo aboard the Little Sarah, a British brig captured by the French frigate L’Embuscade, with a view to extorting money from them. Ravara was indicted by the grand jury in Philadelphia in July 1793 for his threats to Hammond and Holland. Ravara’s counsel challenged the indictment claiming the Constitution gave original jurisdiction to the Supreme Court over cases involving consuls and diplomats and thus the circuit court lacked jurisdiction because of Ravara’s status as consul general of Genoa and Hammond’s as British minister, but the judges (Peters and Wilson, with Iredell dissenting) denied this motion. Ravara pleaded not guilty and the proceedings were continued to the next session. The case involving the British minister was dropped following the death of a witness, probably Hammond’s steward who found the threatening letter, during the yellow fever epidemic.

Trial was held regarding the threat to Benjamin Holland in the circuit court in Philadelphia in April 1794 before Jay and district judge Richard Peters. William Rawle represented the United States, while Ravara was represented by his former counsel Charles Heatly, and prominent lawyers Alexander James Dallas, William Lewis, and Peter S. Du Ponceau. In his charge to the petit jury Jay asserted that the offense was an indictable misdemeanor and punishable and that consuls were not protected by diplomatic immunity. However, either out of concern about the nature of the evidence or of the diplomatic niceties involved, Jay also laid great stress on the importance of presumption of innocence. The jury returned a guilty verdict. After intercession by various “diplomatic characters”, Washington pardoned Ravara out of respect for the Republic of Genoa. Because of the timing of the incident and the association of both the victims and some of Ravara’s lawyers with the issues of neutrality and the activities of French minister Edmond Charles Genet, it has been suggested the letters may originally have derived not from an extortion attempt but from pro-French fervor on the part of Ravara and his associates and that Ravara may have been assisted by Genet in financing his defense.25

Once France declared war on Great Britain early in 1793, neutrality had become a burning issue throughout the period. Although Jay presented the first charge to a grand jury on the subject in Virginia in May 1793, no cases were heard there at that time, and the test case on neutrality enforcement, the Henfield case, was held in July 1793 in the Middle Circuit with James Wilson presiding. This well-known case is discussed in the editorial note “John Jay and the Issue of Neutrality”, below. Although the judges asserted that American participation in privateering by foreign powers in defiance of the Neutrality Proclamation violated the law of nations and was punishable, and the grand jury indicted Henfield for serving on a French privateer and capturing a British vessel, the petit jury trying the case declined to convict in the absence of any statutory law and because the defendant was unaware that he was violating the law. Congress responded by passing the Neutrality Act of 1794, and the circuit courts continued to try neutrality violations.26

Neither Henfield nor Ravara were typical of the criminal cases in the circuit courts, most of which involved such offenses as smuggling, filing fraudulent customs statements, counterfeiting, forging public debt certificates, or crimes committed on the high seas. Early examples of trials for customs violations include two cases in which persons were convicted of filing false customs statements: United States v. Savage (Connecticut, 1790) and United States v. Saunders (Massachusetts, 1790). For examples of forgery cases tried in Rhode Island in 1791, see the Circuit Court Diary [21 June–9 July 1791], note 3, below. Another criminal case in Rhode Island at that time was that against James DeWolf for the murder of a slave on the high seas, a woman thrown overboard because she was believed to have smallpox; the case was continued over several sessions because the defendant fled the jurisdiction and was unavailable for trial. After he was tried and acquitted in St. Thomas, the case became moot.27

Not all the debt-related circuit court cases during this period related to constitutional issues. Some were simply international or interstate cases involving debt. Examples included two 1790 Connecticut cases discussed in this volume: Williams v. Imlay, an international suit involving failure to make payment to a foreign creditor on a bond, and Holy and Newbold v. Lamb, regarding a protested bill of exchange, a case that turned on the variations between New York and Connecticut practice in the size of damage payments assigned for protested bills. In both cases the court found for the plaintiff.28

Press and Public Response

The sitting of court sessions throughout the Eastern Circuit met with a favorable public response. The regional press welcomed the circuit court and praised the efficiency and professionalism exhibited by Jay and his colleagues. When the court convened in Providence for the Fall 1790 term, one local editor observed that all who attended the court session approved of the proceedings and spoke of the federal judiciary in glowing terms: “At length have the mild Beams of national Justice began to irradiate this State, and opened a dawn of Hope for better Times.” The editor also drew particular attention to the charge delivered to the grand jury, observing that the Chief Justice’s address was “full of good Sense and Learning” and used “the most plain and familiar style.”29 When the circuit court for the District of Rhode Island reconvened in Newport the following spring, the local press once again responded with enthusiasm and eloquence. After noting that the “Candor, Impartiality, and Discernment” displayed by the court “were universally acknowledged and applauded,” the editor surmised that “Justice herself seemed to preside on the Bench, and inspire it. The Scales were held in every Instance with an even Hand, and gave true Weight and Measure.”30 The newspaper coverage in other parts of New England echoed the sentiments expressed in the Rhode Island press. In neighboring Connecticut, for example, an account appearing in a New Haven paper stated that “The good Sense and Candor of the Judges has left an Impression on the Minds of the Public, favorable to this new Institution.” Likewise, this editor reported that Jay had read an “elegant and pertinent” charge to members of the grand jury.31

Other contemporaries also recognized and commented upon the significance of Jay’s circuit riding. Henry Jackson of Boston was one such individual.32 Jackson served as the foreman on the circuit court jury that convened in Boston for the Fall 1790 term. He noted that Jay’s charge was well received by the grand jury and that Bostonians had “taken very partial notice” of the chief justice and viewed him as a “respected & esteemed” official.33 Jay’s friends and colleagues contended that the regional activities of the circuit court had established a firm foundation of support for the national administration. Writing from London, Gouverneur Morris opined that “The Appearance of your Court also carrying Home to every Man’s Bosom a Conviction of the Authority delegated to the Genl Government and of the prudent Manner in which that Authority is used, will go very far towards the firm Establishment of it.”34 The year following and closer to home, Peter Van Schaack summed up the impact of Jay and the court’s activities on Massachusetts as follows: “no other man I verily believe is more admired and esteemed than yourself, in that Commonwealth the confidence of the people at large in our judiciary is perhaps one of the most pleasing Circumstances attending our infant government.”35 When Jay’s duties on the Eastern Circuit came to a close in June 1792, Henry Marchant, the district judge for Rhode Island, anticipating Jay’s election as governor, assured his colleague that “While New England laments the loss the publick may sustain in quitting your present important federal station, they feel as friends to order, decency, and the rights of man, a wish, not merely for your success, but the success of constitutional rights”.36 In sum, the presence of the chief justice presiding over the court sessions of the Eastern Circuit boosted the popularity of the federal judiciary and cultivated faith among the region’s citizenry that the new administration could dispense justice in a fair and proficient manner.

Accommodations

While circuit riding proved arduous, finding accommodations rarely proved difficult as Jay kept to the main thoroughfares, such as the Boston and Albany Post Roads. His diary records the names of fifty-six inns that he patronized in the course of his travels through New York and New England. Poor standards of cleanliness and service are a frequent source of complaint in the diary. Yet more often than not, Jay’s evaluations tended to be positive or at least neutral in tone, and for every entry criticizing a landlady who “governs too much”37 or a landlord who is “not very neat,”38 another praises a proprietor for running a “good house” or at least a “tolerable” one.39

Of course, there was the option of quitting public houses in favor of private and presumably more comfortable settings. Yet Jay opted whenever possible to stay at public establishments even as friends and dignitaries extended him the hospitality of their homes. For instance, when New Hampshire senator John Langdon twice requested the honor of hosting Jay in Portsmouth, the chief justice politely refused the senator’s generosity.40 Shortly thereafter, John Hancock offered up his Boston residence, and again Jay declined, explaining that he wished to avoid displaying any favoritism by accepting some offers while refusing others: “Invitations I have received from different governments … leave me no other alternative than either to quarter … at public houses or risk hurting the feelings of gentlemen whose friendly civilities should receive suitable returns of respect.”41

Jay’s status as a prominent official swayed his decision to frequent public inns. He was, after all, a representative of the new government and would therefore wish to avoid any actions that risked offending local elites. Jay probably also intended to follow the example set by George Washington who had decided against accepting any private invitations while he toured the region in 1789. Like Jay, the president had turned down the opportunity to lodge at Hancock Manor when he visited Boston, albeit for a different reason. “From a wish to avoid giving trouble to private families,” Washington informed the Massachusetts governor, “I determined, on leaving New York, to decline the honor of any invitation to quarters which I might receive while on my journey.”42

Even though Jay routinely put up at public lodgings, circumstances did arise that caused him to rely on the hospitality of private individuals. For example, while on his way to attend the circuit court in Providence, Jay was obliged to spend an evening in Taunton at the residence of David Leonard Barnes because no beds were available at the local inn.43 Diverse motivations also led him occasionally to accept hospitality from those with whom he maintained a personal or professional relationship. Such was the case when he visited Hartford and stayed with Alexander Hunt, an “old friend” from Rye who had recently moved to Connecticut.44 Altruism might have prompted his decision as Jay’s diary states that Hunt had fallen on hard times and would benefit by Jay’s offer of payment for lodging.45 That same spring the chief justice passed an evening with John Lowell, a judicial colleague living on the outskirts of Boston in Roxbury. Although Jay was welcome to stay with Lowell for the duration of the Boston meeting of the circuit court, he chose instead to stay at a Mrs. Ingersoll’s boardinghouse.46 As Jay explained to Cushing, Lowell’s residence was located “too far from the Seat of business”, whereas Ingersoll’s establishment proved more convenient as it was located near the courthouse.47

Socializing and Sightseeing

The scheduled meetings of the circuit court required Jay to keep to a rigid timetable and left little time for either relaxation or leisure. Yet Jay took advantage of the periodic lulls that occurred during his travels to visit with friends and associates and to take in the region’s scenic vistas, civic structures, and historical sites. For instance, during the Spring 1790 term of the Massachusetts District Circuit Court, Jay visited Scituate, Hingham, and Salem. While in the latter town, he viewed some indictments dating from the infamous witchcraft trials that had taken place there nearly a century earlier: “The ink of one of those indictments except the words with which the certain blanks had been filled, was as fresh as if not more than a month old.”48

During that same term, Jay had fewer cases while in Boston and therefore enjoyed a lengthier break in his travel itinerary. Along with John Lowell and William Cushing, he crossed into Cambridge and visited Harvard College. Jay relished the trip, noting in his diary that the trio received “much attention from [Harvard’s] Presidt. [Joseph] Willard.”49 He provided more detail in a letter to Sarah: “I had two days ago a pleasant ride to Cambridge over the new bridge, of which you have often heard; we extended our excursion to some pretty seats not far distant from the College, and among others Mr. [Elbridge] Gerry’s.”50

When the circuit court finished in Boston, Jay had a two-week interval before the opening of the next session in Portsmouth, New Hampshire. “The business of the court having been finished yesterday,” he confided to Sarah, “I shall have an opportunity of seeing whatever is worthy of notice in and about the place.”51 Jay proceeded to explore nearby Dorchester Heights and Castle William in the day and dined with former governor James Bowdoin in the evening.52 Joining Jay on his tour was an escort of state officials, including Benjamin Lincoln, who had commanded the Massachusetts Militia in 1775–76 and who now served as Collector for the port of Boston; Christopher Gore, state attorney for the District of Massachusetts; Jonathan Jackson, the district marshal; and Samuel Bradford, the deputy marshal.53

Such social visits and leisure outings enabled Jay to both engage in camaraderie and expand his knowledge of the nation’s colonial and revolutionary past. These activities, moreover, served to create bonds of trust and good will between the chief justice and local elites. The names of the men who spent time with Jay on his excursions in and around Boston—Willard, Gerry, Bowdoin, Lincoln, Gore, Jackson, and Bradford—reads like a veritable who’s-who of power and influence in the state capital and the Commonwealth. By cultivating friendly relations with these local dignitaries, Jay potentially bolstered the legitimacy of his own judicial authority, as well as that of the fledging government, in communities located far from the seat of national power.

When meeting with friends, Jay at times would engage in conversations that were gossipy in nature or given over to sensitive topics. He enjoyed sharing and being privy to intimate knowledge about historical events and family affairs. Yet years of service as a wartime official, diplomat, and civil servant had accustomed him to being under surveillance and to exercise prudence when committing his thoughts to paper; so although Jay participated in loose talk, he lacked that propensity to indiscretion that gives John Adams’s diaries their spicy character. For instance, the Chief Justice tells us about a gathering at Judge Lowell’s house at Roxbury that Attorney General Gore and Justice Cushing attended, at which occurred “much interesting conversation which I think had better not be written.”54 Then, at Boston, Jay “became informed of various interesting circumstances—improper to be written.”55 Or again, his diary tells us, “Learnt sundry anecdotes not proper to be written, but to be remembered.” Since these tales concerned Jefferson and Madison, the President and Vice President, and the French aristocracy, posterity is impoverished by Jay’s strict sense of propriety.56

There are exceptions, however, as Jay occasionally recorded at length the content of his more intimate conversations. For instance, when Jay dined with Lieutenant Governor Samuel Adams at Attorney General Gore’s, he was invited to pay a call on Adams “in a friendly way.” Jay commented laconically: “From this it seems I am not to have a visit from him.”57 Apparently old political differences from early days in the Continental Congress still rankled. Jay got some small revenge on Adams by entering in his diary under a later date some amusing political gossip he picked up at Boston about Adams and his earlier work as a tax collector.58 Another anecdote stemmed from his visit to Portsmouth, where he opened court in late May 1790. Driving out with Colonel Michael Wentworth to the latter’s country seat at Little Harbour, Jay met the colonel’s wife, Martha Hilton Wentworth, the widow of Governor Benning Wentworth.59 Later Jay would record the story of how the colonel’s lady outwitted Benning Wentworth’s relatives.60

Agriculture

However anxious Jay was to eliminate his circuit riding, while it lasted he seized opportunities to turn his travels to personal and family advantage. Alongside the burdens of inclement weather, continuous travel, and judicial labor, the Eastern Circuit afforded Jay the benefit of observing agricultural practices throughout the region. The numerous and at times detailed descriptions of farming techniques, crops, and livestock found in the diary attest to Jay’s keen interest in rural husbandry. The entries written in April 1790, for example, cover an array of topics, including the practice of sericulture in Wilton and Worthington, Connecticut, the damage wrought by the Hessian fly on the wheat harvest in Palmer, Massachusetts, and the superior performance of draft animals in Marlborough, Massachusetts.61

Jay’s attentiveness to agricultural affairs was also closely linked to his familial responsibilities. In addition to his judicial duties, Jay tended to his brother’s estate in Rye and was busy setting up his own farmstead in Bedford. Indeed, he often worked at both locations, conveniently located near New York City, while riding circuit. Such was the case during the outset of Jay’s journey for the Spring 1792 term. On his way to the court session in New Haven, Jay stopped at Rye for four days in order to plant willow, walnut, plum, and pear trees and then proceeded to Bedford where he gave instructions for clearing “Briars & Bushes” from the grounds.62 Moreover, on several occasions Jay adopted the same farming methods and breeds that he encountered on the road for family use. For instance, as he travelled through Northborough, Massachusetts, in May 1790, Jay noted in his diary the healthy livestock belonging to Barnabas Maynard, a local cattle farmer. When he returned to the area six months later, Jay commissioned Maynard to raise a bull calf for him and have it delivered to Providence where it would then be sent on to his family’s care in Rye.63 Similarly, after purchasing a packet of white mulberry seed from a Norwalk innkeeper in April 1792, Jay instructed his wife and son Peter Augustus to forward a portion of the seed to the Rye estate and to plant the remainder in their New York garden. If the trees took root in the city, Jay planned on transplanting them to his Bedford farm.64