Striving

John Jay was raised as a master, not as a servant. He did not take orders from others if he felt his obedience was not due. Just before his graduation, King’s College suspended John for refusing to reveal the culprits in a small bit of student vandalism. The eighteen-year-old Jay contended that there was nothing in the college’s statutes, which every student had formally promised to follow, that mandated that he divulge who destroyed a table belonging to the college. Before commencement, President Myles Cooper restored Jay to good standing, and he received his degree.³

This haughty bit of bravado notwithstanding, John had always taken his education seriously; his father described the seven-year-old John as a boy with “a very grave disposition.” John also had far more potential for success than most of his siblings. Of his five living older brothers and sisters, only James, thirteen years John’s senior, did not suffer disabilities inhibiting advancement in the wider world. James studied medicine in Scotland and, in 1763, was knighted by King George III in recognition of his prowess as a fundraiser for King’s College, John’s future alma mater. Peter began equipping his John with a worldly perspective that connected him to his French heritage, thereby providing him fluency in more than one culture, by sending him to board at the school of Pierre Stouppe in New Rochelle, New York, a community located a few miles south of Rye. New Rochelle had been established in the late seventeenth century by Huguenots and still retained its French cultural flavor in the 1750s.⁴

Spending time with Rev. Stouppe in New Rochelle confirmed for John that it was not only in his parents’ comfortable home that enslaved people formed an important part of the social fabric. The proportion of slaves in New Rochelle’s population—18.1 percent in 1712 and 21.8 percent in 1771—was higher than that in Westchester County as a whole. One colonial estimate placed the enslaved in every other household in New Rochelle.

Jay’s teacher, Pierre Stouppe, integrated his religious commitments into this slaveholding world. He was a spiritual heir to Elias Neau (see chapter 1). Born in Switzerland, he migrated from French Protestantism to Anglicanism. As a missionary for the Anglican Society for the Propagation of the Gospel in Foreign Parts in rural New York, Stouppe took seriously his responsibility to convert and baptize slaves, enjoying at least modest success. These actions, as long ago clarified in the colony’s laws, carried absolutely no implication of manumission, however.⁵

When John Jay subsequently attended the tiny but well-endowed King’s College, he experienced the seamless integration of slavery into elite life in colonial New York City. The college welcomed its first students in 1754, and merchants invested in the slave trade and in commerce with the West Indies dominated the school’s board and provided much of its funding. Its first president, Samuel Johnson, who was still in charge during Jay’s first years at King’s, had no scruples about buying and selling enslaved servants. The many slaveowners on the governing board would have found Johnson’s practice unexceptional. Professor Robert Harpur expressed the business—and slave-trading—ethos of the college when he devised a math problem asking how three traders with different levels of investment should divide a £1,010 profit from an African trading venture.⁶

During his years as a college student and then as a legal clerk in Manhattan, John remained connected to the rural Rye, New York, world of his father, his siblings, and the family slaves. These slaves helped Peter Jay manage the property and assist his ailing wife Mary Van Cortlandt Jay and their disabled adult children. In 1764, Peter enlisted John in obtaining legal forms for the transfer, presumably for the purposes of hiring out, of a slave named Mary to a Mrs. Paine. Because Mary had not yet contracted smallpox, Peter wished to have her inoculated at his expense.⁷

Peter Jay described the responsibilities of slave ownership as more of a burden than a benefit. The alleged burden of overseeing the health of his slaves, however, did not prompt Peter to contemplate slavery’s morality or to search for a social or economic alternative. In March 1765, the weary father described himself to his nineteen-year-old son John as almost overwhelmed by months of his slaves’ ill health. He shared with John the prognosis of six slaves by name: “our Hannah” was approaching death; despite a doctor’s care, Anthony and “little Plat” suffered from persistent fevers; Susan and “big Mary” were ill, and London had only recently showed signs of recovery. Peter tended to “this distressed condition of my family” but chafed under the responsibility. Being cooped up with ailing slaves all winter had caused “great fatigue of Body and perplexity [of] Mind.” After he unburdened himself of his complaints, Peter then expressed pious resignation to his lot: “We must submit to the Will of Providence, and hope for more comfortable days hereafter.”⁸ In Peter’s accounting, fate—not class or racial privilege—governed these relationships.

In Manhattan, John fortified new social connections. In Benjamin Kissam’s legal office where John clerked, he made the acquaintance of Lindley Murray, a Quaker and son of a wealthy New York City merchant. Many years later, Lindley’s younger brother John Murray Jr. became perhaps the most dedicated member of the New-York Manumission Society; at this early date, however, New York’s Quakers had yet to catch up to the antislavery activities of their brethren in Pennsylvania.⁹ Of more immediate consequence to Jay’s social aspirations was his warm friendship with Robert R. Livingston Jr., which began in college and connected him to the highest reaches of New York society and politics. Livingston hailed from the “pastoral aristocracy”—New York’s politically contentious Hudson River Valley landlord class. Like their wealthy New York peers, members of the Livingston family invested profitably in slave-trading voyages that brought hundreds of slaves to the Americas. Slave ownership also helped the Livingstons live graciously. Robert Livingston’s twentieth-century biographer vividly described life on their estates: “Their coachman and footmen, domestics and laborers were slaves or indentured servants; their tables groaned, but chiefly with homegrown provisions; if their confectionaries were famously elegant, it was because sugar was a staple commodity of their exchanges with the West Indies.”

Jay’s genuine affection for Livingston revealed a certain awe for a friend whose aristocratic background far surpassed even Jay’s privileged experience. The two young men formed a law partnership in 1768. Although this arrangement dissolved after three years, they remained close as each man ascended the ranks of New York and national politics.¹⁰

Tensions between crown and colonists over taxation and royal authority waxed and waned during the 1760s and early 1770s, but Jay did not directly join the fray. The Stamp Act Crisis of 1765, rather than drawing the young law clerk into protest politics, merely provided a respite from work while legal proceedings ground to a halt. After Jay went into legal practice himself, he did work for both future patriots and for future loyalists. As an unmarried lawyer in New York City during this period, he expanded his social networks by participating in debating and dance societies.¹¹

Despite his political caution, John sometimes defended popular interests from royal authority, while predicating his view of government on assumptions that ordinary people should put their trusts in well-placed and well-educated elites like himself. He advocated for settlers in southeastern Albany County, who feared that the land they had assumed would be granted to them might be distributed instead by crown officials to outsiders. In a March 1773 letter to the Earl of Dartmouth, then Britain’s secretary of state for colonial affairs, Jay avowed, “Principles of Humanity” had prompted him to take up the people’s cause. He declared, “It gives me Pain my Lord! to observe that the prevailing monopoly of Lands in this Colony has become a Grievance to the lower Class of People in it; and confines the Bounty of our gracious Sovereign to mercenary Land-Jobbers, and Gentlemen who have already shared very largely in the royal Munificence.” Shortly thereafter, Jay inserted himself into the legal aftermath of disputed elections in Westchester County, attempting to thwart the claim of the crown’s representative that ineligible voters had participated. Thus, Jay did not solely advocate for members of his own landholding class and made distinctions between royal authority and the commonweal.¹²

Jay soon consolidated his social status and immeasurably enhanced his personal happiness when his courtship of eighteen-year-old Sarah Van Brugh Livingston culminated in marriage on April 28, 1774. Sarah’s father, William Livingston, was born into the Upper Manor branch of the Livingston family and was first cousin once removed of John’s close friend Robert R. Livingston Jr. Sarah possessed unmistakable vivaciousness, and their wedding secured a warm and loving bond. In their second year of marriage, John wrote Sarah, “I shall never hesitate more in sharing your Anxieties, than in partaking of your Pleasures.” John and Sarah remained well matched and deeply committed to one another for the rest of their lives together.¹³

The newly married Jay also gained direct familial ties to the moderate Whigs. This faction engaged in a long-standing political rivalry with other members of the New York elite who supported the power of the colony’s royal governors. During the imperial crisis the Whigs launched more fundamental attacks against the way Parliament and the crown exercised authority in the colonies. Jay’s new father-in-law, formerly a New York City lawyer, had played a role, though a relatively moderate one, in objecting to the Stamp Act in 1765. Having accumulated property in northern New Jersey for years, in 1770 William moved his family there. In 1774, Livingston represented New Jersey at the First Continental Congress.

John Jay and Sarah Livingston’s marriage came at a time when imperial relations had begun to deteriorate rapidly. The Tea Act provoked a decisive response not only in Boston but also in New York City. Boston caught the brunt of the empire’s anger through the Coercive Acts that shut down its harbor and upended the Massachusetts Colony’s long-established institutions of self-government. Manhattanites also took to the streets in protest, menaced the captains of the tea ships, and ultimately emptied unwelcome tea in the harbor. At a public meeting, Jay was elected to a fifty-one-man committee, almost entirely made up of moderates, that coordinated New York’s response to the deepening political crisis. Several months later, New York dispatched Jay to Philadelphia to attend the Continental Congress, joining his father-in-law.¹⁴

Marriage into the Livingston family not only connected Jay to Whig politics but also deepened his connections to the slaveholding elite. William Livingston named his New Jersey home “Liberty Hall” to honor the cause of colonial resistance to British authority, but, like John’s father Peter, Sarah’s father owned slaves. William’s father and brother, both named Philip, had participated substantially in the slave trade. Slaveholding was also an intimate part of William’s personal experience: enslaved people labored at Liberty Hall. As Sarah prepared herself for her wedding ceremony, the slave Abigail, also known as Abbe, may have attended to her.¹⁵

Liberty versus Slavery

John Jay came of age at a time when imperial rule and the laws governing slavery came under unprecedented scrutiny. From the early 1760s, when colonial protest against new British policies on taxation and colonial governance began, pamphleteers gravitated toward the metaphor of enslavement as a powerful means to convey their grievances. In doing so, they tapped into a deeper vein of English political thought that was deeply suspicious of government power, particularly power lodged in the hands of unchecked royal authority. This thinking prized the concept of English liberty, predicated on control over one’s person and property. Enslavement, the illegitimate trammeling of the rights of freemen, was, in theory, the inevitable outcome of a political order in which the liberty of English subjects no longer commanded the respect of rulers.¹⁶

On both sides of the Atlantic, the imperial crisis stimulated an increase in pointed criticisms of slavery itself. Various colonial assemblies, including New York’s, attempted to ban further slave imports, only to be thwarted by royal nullification. British officials wished to keep a profitable enterprise going and not cede the right to regulate colonial commerce. Conversely, British critics of patriot resistance mocked Americans for denouncing their political enslavement while practicing the real thing.¹⁷

A nascent transatlantic movement against slavery made headway during these turbulent years. The critique of slavery and the slave trade pioneered by Quakers had begun to find an audience beyond the boundaries of this small but influential sect. The English Countess Huntingdon became the sponsor of the poet Phillis Wheatley, the precocious Boston slave brought to America as a girl on a slave ship. Her published work stood out as a rebuke of the racial assumptions of African inferiority. Slaves in Boston petitioned authorities for their freedom by making explicit appeal to the logic of revolutionary politics, whereas in Jay’s New York, rumors of violent slave rebellions abounded. The antislavery writings of the tireless Quaker pamphleteer and Philadelphia educator Anthony Benezet began to attract attention. Philadelphia physician Benjamin Rush and the English immigrant turned patriotic propagandist Thomas Paine published their own pointed critiques of slavery.¹⁸

Perhaps the clearest signal of slavery’s newly insecure place in the disturbed Anglo-American waters came in 1772 when Chief Justice Lord Mansfield issued his famous Somerset decision in London. The case demonstrated how Black resistance, white activism, and the logic of natural rights could combine to threaten the foundations of the institution. British civil servant and antislavery pioneer Granville Sharp had taken up the cause of James Somerset, a Virginia slave who was brought to England by his master Charles Stewart, a customs official in North America. Somerset ran away, prompting Stewart to have his slave seized, bound in chains, and placed on a ship heading for Jamaica. A request on Somerset’s behalf for a writ of habeas corpus to establish on what grounds he was being held touched off a legal battle before Lord Mansfield. In a holding, in which the chief justice referred to slavery as “odious,” Somerset won a victory that had profound reverberations. Mansfield ruled that his master lacked the right to seize his slave and that Somerset must be “discharged.” According to Mansfield, absent positive, which is to say written, law authorizing slavery, natural law prevailed; thus, the prerogatives of slave owners under colonial slave laws did not apply in England. Many took an expansive view of the chief justice’s carefully tailored holding, insisting that slavery itself had been abolished in England and those held as slaves were now free.¹⁹

The case received immediate and widespread attention in the colonies. The default application of natural law to their slaves set an ominous precedent for slaveholders and was a beacon of hope for Blacks and for slavery’s growing number of white critics. Although positive law established slavery in every American province, slaveholders no longer could assume they had the full support of the mother country. If English common law banned slavery, might those same unwritten principles apply across the Atlantic where colonists had made much of their inherent rights as Englishmen? Even if such a conclusion were farfetched, property rights in men no longer existed as an inherent right and now stood protected only by mutable statutory law.

The Somerset ruling also raised the challenge of how, in the midst of growing political disorder, slaveholders would maintain control of their slaves. In Virginia, some slaves learning of the decision attempted to run away in hopes of sailing to England and freedom. Slaves in Massachusetts sued for wages and freedom; others petitioned the provincial legislature. Although some writers throughout the colonies attacked the decision in print, provincial legislatures in Rhode Island and New Jersey took up antislavery measures. That the resistance of an American-born slave and the ruling of a conservative pillar of England’s establishment could threaten America’s racial order were tokens of disordered times.²⁰

At the same time that enslavement was entering a period of heightened scrutiny on both sides of the Atlantic, the conflict between colonies and empire cascaded past words, protest, and coercive legislation into armed conflict. In late 1775, Peter Jay, now more than seventy years old, shared a lament with his politically influential thirty-year-old son John: “It gives me pain that there is no prospect yet of an accommodation with the Mother Country. God grant that a happy reconciliation may soon take place upon Equitable terms, instead of a long bloody struggle we are threatened with.” Peter then conveyed to “Johnny,” who was not yet a parent himself, that the happiness of real families—not just metaphorical ones—was at risk: “I once expected to pass the remainder of my life in the injoyment of happy days with my Family, which to my inexpressible grief I’ve now no prospect of.”²¹ Peter Jay perhaps sensed that the divided opinions of his neighbors and the strategic location of Westchester County would make a prolonged war extremely disruptive to his entire household, Black and white. He sensed as well that the political duties of his beloved son John would leave him little time to lend support to a beleaguered household.

From Reluctance to Revolution

John Jay took a deliberative path toward revolution between 1774 and 1776. He possessed rhetorical gifts well suited to explaining the high political stakes but proceeded cautiously. As news of Parliament’s 1774 Coercive Acts punishing Boston for its insolent and provocative Tea Party arrived in New York, Jay felt conflicted. In a letter written that May to John Vardill, an Anglican New Yorker living in England, Jay reported from “a Town filled with Politics” that his “Mind” was “crouded with many indigested Ideas.” He actively participated in efforts to formulate a New York and a continental response to British retaliation against Boston, one that entertained the possibility of a new colonial non-importation initiative without committing to such a disruptive measure. Meanwhile, he wanted his friend Vardill to help him obtain a royal appointment as a circuit judge in the provincial countryside. He suggested that British rule would be seen in a more favorable light if men with actual legal training were to replace the ill-informed, insufficiently dignified, and inconsistent judges currently “taken from among the Farmers.” Several months later, having been dispatched to Philadelphia as part of New York’s Continental Congress delegation, Jay exclaimed to Vardill, “God knows how the Contest will end. I sincerely wish it may terminate in a lasting Union with Great Britain.” Jay did not yet embrace independence in these heady times. Even so, in October, Jay joined his fellow delegates to the Continental Congress in supporting the Continental Association that initiated a new phase of economic retaliation against Great Britain.²²

His preference for reconciliation notwithstanding, Jay turned to slavery metaphors in giving powerful voice to what he regarded as the profound flaws in the current arrangements between the colonies and the mother country. In his October 1774 “Address to the People of Great Britain” issued on behalf of the Continental Congress, Jay stated the problem in stark terms: “WHEN a Nation … descends to the ungrateful task of forging chains for her Friends and Children, and instead of giving support to Freedom, turns advocate for Slavery and Oppression,” its moral health comes into question. At the conclusion of the Seven Years’ War, British tax policy crossed a line from external commercial regulation to direct and deleterious intervention in the economy of the colonies tantamount to a “system of slavery.” In the wake of the Boston Tea Party, rather than prosecute criminal actions through normal channels, the British attempted to prostrate the people of Boston until they would “consent to become slaves, by confessing the omnipotence of Parliament.” Rehearsing the litany of egregious acts—the repeated compromising of American “property,” the suspension of jury trials, the invalidation of colonial self-government, the tolerance and even expansion of Catholicism in Canada—Jay accused the British government of “reduc[ing] us to a state of perfect humiliation and slavery.”

The point that Jay’s address sought to impress on a British audience was that America’s enslavement stood as a precursor to the enslavement of English and Irish subjects as well. He appealed over the heads of the unconstitutional usurpers, seeking to make common cause with the people of Britain. He hoped that they might bring their leaders back to their senses.²³

About six months later, the shooting war having begun between the British and New England patriots in April 1775, Jay authored a letter to Canada on behalf of the Continental Congress. Setting aside his anti-Catholicism for the moment, he vividly and provocatively deployed the metaphor of enslavement in an attempt to expand the colonial alliance northward: “By the introduction of your present form of government, or rather present form of tyranny, you and your wives and your children are made slaves. You have nothing that you can call your own, and all the fruits of your labour and industry may be taken from you, whenever” British authorities so chose. Slavery did not merely substitute rhetorically as a term for lopsided constitutional and legal arrangements. Slaveholders specifically claimed slave property as their own and denied slaves the product of their hard work: Jay, as much as any southern patriot, knew this fact from experience. The British, this presentation implied, treated Americans the same way that Americans treated their negroes. The racist assumption then was that treating white colonists in this way was unacceptable, even though such tyranny was an everyday occurrence on colonial farms and in colonial households.

The slavery metaphor also helped Jay establish that the contest between Britain and its colonies had stark implications for the future. He encouraged Canadians to follow the example set to their south, where “we … are determined to live free, or not at all; and are resolved, that posterity shall never reproach us with having brought slaves in to the world.” Of course, American slaveholders, including John’s father and grandfather, had already brought slaves into the world. Such bold projections about the future threatened to elide the past. Even so, Jay’s language also suggested something implicit to all revolutionary moments—that of a new beginning where the world could be remade guided by principle.²⁴

Jay internalized the political tyranny-as-slavery trope. Writing from Philadelphia in March 1776, Jay rebuked his New York patriot colleague Alexander McDougall over the reported fact that New Yorkers had permitted patriot General Charles Lee to demand loyalty oaths from some New Yorkers. Of this military overreach of authority, Jay sternly commented, “To impose a Test is a sovereign Act of Legislation—and when the army become our Legislators, the People that Moment become Slaves.”²⁵

The metaphor of enslavement retained for Jay much of its vivid descriptive force in the wake of independence. The military fortunes of the new nation seemed to collapse in the second half of 1776, with the British occupying Manhattan, Long Island, and New Jersey. Working at a safe distance up the Hudson River Valley, Jay took up his pen in December 1776 on behalf of New York’s provisional patriotic government to rally not only New Yorkers but also patriotic Americans more broadly. Jay combined a biblical understanding of history with concrete reasons for New Yorkers and other Americans should remain steadfast in difficult times. He described the stakes in the very first sentence: “the freedom and happiness, or the slavery and misery, of the present and future generations.” The address repeatedly returned to this stark choice, claiming that the country fought “determined rather to die free, than live [as] slaves and entail bondage on our children” and noting that British terms of reconciliation came with “absolute unconditional obedience and servile submission.”

British authority, in an appeal peppered with Old Testament references to Egyptian bondage and God’s punishment as well as protection of the ancient Jews, reeked with “impiety.” Jay asked whether “any history sacred or prophane, record[s] any thing more impious, more horrible, more execrably wicked, tyrannical or devilish” than Britain’s violent response to American resistance? Such behavior raised a searing question for those who made common cause with the crown: “Why are those pusillanimous, deluded, servile wretches among you, who, for present ease or impious bribes would sell their liberty, their children, and their souls” treated with such contempt and abuse by their alleged protectors? Those who “consent to be slaves” would receive no dispensation from a Britain lacking all regard for religion.²⁶

In making his patriotic appeal against political slavery, Jay articulated a troubling yet revealing account of why, in a world governed by a just God, slavery existed at all. God doled out freedom to the “virtuous” and slavery as punishment for those who fell away. The primary purpose of the address was to stiffen sagging resistance, to offer patriots the incentive to fight on: “If we turn from our sins, he will turn from his anger,” Jay, writing on behalf of the Provincial Convention that had taken up the role of governing the state, reassured his readers. They must choose not to follow the ancient Israelites into the Egyptian bondage of permanent British rule. But such analogies raised knotty questions about birth and inheritance—and whether slavery fundamentally transformed people. If those who did ally with the British “deserve to be slaves, and are fit only for beasts of burden to the rest of mankind,” then slavery itself was not inherently wrong. Moreover, such choices had fearful consequences, because submission to the British would in effect “people” the land “with a race of animals, who from their form must be classed among human species, but possess none of those qualities which render man more respectable than the brutes.” Once so transformed, “you and your children after you shall be slaves for ever.”²⁷

Although writing to and about white, European-descended Americans, Jay presented an image of enslavement—humans treated as brutes and receiving no more respect than brutes—that may have appeared to his readers to resemble the African American enslavement that white Americans practiced. If so, what crime had their African ancestors committed to render their bondage permanent and inheritable? A set of racist assumptions shadowed Jay’s remarks.

Jay, however, sought to castigate the concept of slavery, not defend it, in this December 1776 address. Shifting from racial to religious imagery toward the end of this patriotic address, Jay revealed God’s plan for a continent free of slavery. He declared “that divine Providence will not permit this western world to be involved in the horrors of slavery.” Some Americans, he recognized, would “go into captivity” with the British. But God’s plan was not to “suffer Slavery” in the newly independent land, because bondage would circumvent the future spread of the gospels across the continent.²⁸ These were startling claims that transcended politics, even if he was primarily thinking in terms of political enslavement. The “horrors of slavery” after all had shaped much of the Western Hemisphere’s colonial history. And yet, at least rhetorically, Jay asserted that to follow the path of political independence was thus to banish enslavement from the new country in accordance with God’s will, even though everywhere he had ever lived—from Rye, to New Rochelle, to New York City—actual slaves had been a significant, even defining, presence.

Enslavement imagery helped him sail with, rather than against, the revolutionary wind. At the same time, he may have accepted the metaphor because the abstraction of political slavery matched his own knowledge and observation of slavery as a real-life institution, which brought a harder edge to his expressions.²⁹ What such talk had not done was prompt him to address the future of Black bondage in the newly independent United States. The writing of New York’s constitution tested whether, in his own mind, metaphorical and actual slavery connected, and, if so, what he and his colleagues should do about that connection.

Constitutional Misfire

In 1777, New York State almost included a statement of abolitionist principles in its new state constitution. Without such a document, there could be no legitimate permanent government. Patriot leaders met as a Provincial Convention in the Hudson River town of Kingston that spring. Jay played a central role. As the representatives finalized his handiwork, however, Jay absented himself to tend to his dying mother. His friend and ally Gouverneur Morris took the initiative on the issue of slavery.³⁰

On April 17, Morris moved that the convention commit itself in principle to the abolition of slavery. In proposing the idea of Black emancipation, Morris, whose father had at one time amassed one of the largest slaveholdings in New York’s provincial history, showed flashes of the same eloquence that ten years later earned him the job of crafting the preamble to the US Constitution. He proposed the insertion of a paragraph to read,

A regard to the rights of human nature and the principles of our holy religion, loudly call upon us to dispense the blessings of freedom to all mankind: and inasmuch as it would at present be productive of great dangers to liberate the slaves within this State: It is, therefore most earnestly recommended to the future Legislatures of the State of New-York, to take the most effectual measures consistent with the public safety, and the private property of individuals, for abolishing domestic slavery within the same, so that in future ages, every human being who breathes the air of this State, shall enjoy the privileges of a freeman.

Morris’s statement did not propose any specific action. But its language applied the value of universal liberty expressed in the Declaration of Independence, a document that New York’s convention incorporated into the constitution verbatim, to the future of slavery in the state. New York should, the proposed language state clearly, abolish the practice. Echoing the principle extrapolated from Lord Mansfield’s Somerset decision that natural law made England a land free of slavery, all who breathed New York’s air should be free. New York might, the statement implied, maintain the positive law of slavery for a time, but the state’s constitution would enshrine the natural law principle of human liberty to guide its future.³¹

Perhaps in an attempt to make the proposed abolition clause more palatable, Morris stripped away most of the introductory language to the slavery proposal two days later. The proposed constitutional language recommending abolition to future legislatures would simply be prefaced with the statement, “Inasmuch as it would be highly inexpedient to proceed to the liberating of slaves within this State, in the present situation thereof.” Even this muted preamble carried the suggestion that the only reason not to abolish slavery was the current state of military and political disorder. Absent such disorder, Morris’s language implied, the new state could move forward with some sort of gradual emancipation plan. Morris’s language received the initial endorsement of a large majority of the convention. Yet just as the Continental Congress the year before elected to excise antislavery sentiments from the Declaration of Independence, the convention ultimately declined to risk jeopardizing loyalty to the patriot rebellion for the sake of the incipient antislavery cause. Indeed, because the new constitution also validated all laws passed by the provincial legislatures before war broke out in 1775, the constitution procedurally endorsed the state’s long-standing slave codes. Positive law won out over natural law.³²

A few months later, Vermont, comprising three breakaway counties in the northeast corner of New York, became the first jurisdiction in the rebelling former colonies to ban slavery. Slavery had barely existed in this region. Yet Vermont’s repudiation of enslavement in the very first section of the “Declaration of Rights” that comprised chapter 1 of the new charter exemplified how the language of liberty versus slavery that fueled the imperial crisis could be applied to the actual institution of slavery. No adult, the new charter declared, could be held to service or slavery without their consent.³³

Two months before Vermont banned slavery, Jay expressed regret that the newly completed New York constitution did not incorporate antislavery language. At last, he tentatively acknowledged the connection between his own revolutionary rhetoric of cleansing America of slavery and the future of enslavement in the state. Near the end of a lengthy letter to his collaborators Morris and Robert R. Livingston, which assessed in detail particular aspects of the final document, Jay wrote, “I should also have been for a Clause against the continuation of domestic Slavery,” as well as one for “the Support and Encouragement of Literature.” Jay’s modest displeasure indicated that the constitution did not do all it could to refine public morals. It is pure speculation, if not wishful thinking, to suggest, as his son later did, that a family emergency derailed a potentially landmark antislavery achievement. Neither Morris nor Jay attempted to insert antislavery language into constitution until the very end of the drafting process. Slavery had not been their priority.³⁴

Misgivings aside, Jay had reason to be satisfied with the new state constitution. The final document reflected his moderate approach to political institutions in potentially revolutionary times. With British rule defunct, certain institutions, such as a royally appointed governor and the governor’s appointed council, were eliminated, replaced by an elected governor and senate. Property-holding requirements for the election of state officials were retained, with some adjusted downward and others upward depending on the office, and a balance between legislative, judicial, and executive branches was achieved. Voters now cast their ballots on paper instead of saying out loud who they supported.³⁵

Jay expressed acceptance rather than ebullience after the convention brought matters to a close in his absence. At the end of Jay’s letter to Morris and Livingston, sent in late April, Jay offered an oddly morbid pronouncement of paternity: “Tho’ the Birth of the Constitution is in my opinion premature, I shall nevertheless do all in my power to nurse and keep it alive—being far from approving the Spartan Law which encouraged Parents to destroy such of their Children as perhaps by some cross accident, might come into the World defective or misshapen.”³⁶ He made no pretense of having produced a perfect child, but he accepted ongoing responsibility for it. Amid the chaos of war, Jay and his colleagues had sown the seeds of the future political order, deferring to peacetime any change of status for the state’s African American population. Wartime, however, posed its own substantial threats to the slavery status quo.

Domestic Disorders

As the war spread, John Jay and other members of his family had plenty of direct evidence that their hold on their slave property had grown insecure. The British occupation of Manhattan made Westchester County and northern New Jersey contested ground fraught with opportunity and danger for Blacks and whites. Indeed, Peter Jay and his household left their home in Rye in October 1776, relocating dozens of miles to the north to Fishkill, a town in Duchess County. The British policy of granting freedom to African Americans departing their masters’ homes and farms for British lines in New York and New Jersey attracted thousands, some of them subsequently taking up arms against their former masters. More than five thousand African Americans from New York switched sides during the course of the war and, African Americans waged a war against their own bondage facilitated by the British policy of protecting the freedom of those who fled from rebel masters.³⁷

Jay’s father-in-law William Livingston, serving then as governor of New Jersey, was acutely aware of the security challenges posed by slaves claiming their freedom and joining the British. Blacks operating on behalf of the British could strike with impunity. In June 1780, Governor Livingston received a letter from Monmouth County reporting that thirty African Americans had captured two patriot officers, while a group of “those Refugees” had also killed a farmer named Joseph Murray in his cornfield. The writer trusted that such news “will Induce your Excellency to exert your self in Establishing such a guard and will tend to restore in some measure the Security of the County.”³⁸

The Jays learned firsthand how such chaotic conditions presented not only opportunities but also dangers to those they held as slaves. On March 23, 1777, Sarah Livingston Jay reported to her husband the harrowing tale of Claas, a slave in her service whom she had dispatched on an errand. Sally, as Sarah was known in the family, introduced the story with stunningly casual racism: “Thinking of your horse reminds me of an odd accident that happened yesterday to Claas” while performing an errand. Two men whipped him and stole the bag of grain he was transporting, injuring Claas sufficiently that he wanted to see a doctor. In September 1779, Peter Jay reported that two slaves, Frank and another (probably, Claas), “are got to the Enemy, and are sold to the Officers by a white Man who carryed them off.” Whether the two had wanted to escape to the British and were duped or whether they were kidnapped is unclear from the ambiguously worded descriptions of their circumstances. Peter Jay assumed that Claas, who was staying with a New York City minister, would be returned to the family after the war.³⁹ Neither John’s wife nor his father thought that the conflict should sunder traditional master–slave ties or end racial subordination.

Writing in 1779, Peter warned John that it would be very dangerous for him to come to visit the family. He feared his son would be kidnapped by irregulars who would presumably turn him over to the British. The experience of their slave Plato served as a cautionary tale. A band of armed men ambushed Plato on the road one evening after 9 p.m. Feigning a willingness to go along with his assailants, Plato tricked them and fled back to the safety of the Jay’s home. Peter, clearly grateful for this faithfulness to the Jays, went on to report that Plato “and old Plat have by uncommon hard Labour got 19 Bushels of wheat in the ground, [and] they appear very sensible of the difficulty we labour under.”⁴⁰

The experiences of the Jays’ enslaved servants—some seeking new options, others remaining with their masters—fit into the broader wartime New York pattern. Black New Yorkers like white New Yorkers made a variety of calculations as to where their interests, loyalties, and safety lay, their choices expanded by the British offer of freedom to escaped patriot slaves. White patriots also calculated their own interests in varying ways—confiscating the slaves of enemies, transferring or selling slaves to areas of the state farther from British lines, and, late in the war, officially recruiting Blacks for military service.⁴¹

Despite all the uncertainty and disruption, the institution of slavery did not disintegrate, nor did John Jay expect it to do so. Causal assumptions about the sale of children and interracial, sexual liaisons continued to operate. In 1778, Jay informed his wife’s sister Susan that he knew of “a clever little Yellow Boy about seven Years old” who would serve Jay’s sister-in-law well. “What adds to his Value in Sally’s Estimation,” wrote Jay “is, his being the Son of a Wench brought up in your Family, as to the residue of his Parentage I know not.”⁴² Nor, it might be added, was it worth asking, because it was the status of the boy’s mother that sealed his fate as a slave. In terms of slavery and the responsibilities of revolutionaries toward the institution, these were simultaneously extraordinary and ordinary times.

Pragmatism and Piety

Political leadership placed new and cross-cutting pressures on Jay and others in his circle with regard to slavery. Thanks to the efforts of John Jay and Gouverneur Morris, Catherine Clopper of Ulster County got to keep her slaves. Patriot authorities had seized her property, including slaves Will and Suck, as a result of the suspect loyalties of her father Cornelius Clopper, a New York City merchant. Catherine sought relief from the Provincial Convention. Morris and Lewis Graham, acting as a two-man committee to consider the matter, asked the Provincial Convention to act sympathetically by not stripping Clopper of her two slaves until an accurate assessment could be done of whether she was in fact their owner. Meanwhile, the committee also recommended enjoining Clopper from selling the slaves until matters were settled. Morris and his colleague reasoned that the slaves “appear … to be absolutely necessary for the comfortable subsistence and accommodation of the said Catherine Clopper, according to their rank and situation in life.”

Yet Jay, Morris, and their fellow patriots had no intention of using their power to act as extraconstitutional emancipators. Six weeks later, the Council of Safety—the New York State body charged with securing the domestic front during the war—received affidavits taken by Morris asserting that Clopper’s father Cornelius had transferred ownership of the slaves Will and Suck to his daughter. As a result, the Council of Safety, which included Jay himself, warranted “that she be at liberty to remove and dispose of them at her pleasure, as she may think proper.” Respect for property, as well as sensitivity to Catherine Clopper’s race, class, and gender, trumped any concerns about slavery. Even if the Council of Safety had seized Clopper’s slaves, the likely outcome would have been sale to another master, a policy that patriot authorities in New York followed throughout the war and even after it was over. To these revolutionaries, confiscation of humans who were property did not necessitate emancipation.⁴³

Even so, the founders’ slavery-tinged notion of political piety left them open to criticism and to persuasion. Jay’s father-in-law, William Livingston, showed a surprising respect for the Quaker desire to extend the sect’s abolitionist principles to Revolutionary society more broadly. In the summer of 1778, the New Jersey governor received a letter from a Friend named Samuel Allinson making various arguments about his pacifist sect’s position in this time of war. Allinson included a pamphlet by the indefatigable Pennsylvania-based Quaker reformer and abolitionist Anthony Benezet. On the subject of “the poor Negroes, now held in bondage among us,” Allinson appealed directly to Livingston. He chided patriots who, like Jay, used metaphorical slavery in their rhetoric but ignored the far worse practice of slavery in their midst. The Quaker correspondent feared divine retribution but offered a way to expunge this “guilt”: he encouraged Livingston to push for abolition legislation that would put New Jersey in the vanguard of solving the critical problem of slavery.⁴⁴

Livingston went out of his way to express solidarity with Allinson and Benezet on the subject of slavery. One might imagine a wartime governor ignoring such an appeal or even issuing a stern rebuke to a plea from a pacifist Quaker, a member of group often suspected of loyalist sympathies. Instead, Livingston congenially responded, “Respecting the Slavery of the Negroes, I have the pleasure to be entirely of your sentiments.” Jay’s father-in-law even claimed that he had urged the New Jersey legislature “to lay the foundation for their Manumission.” However, the wartime crisis, according to Livingston, prompted the assembly to ask him to quietly rescind this written request. Livingston, nonetheless, maintained to his Quaker correspondent, “I am determined, as far as my influence extends, to push the matter till it is affected: being convinced that the practice is utterly inconsistent, both with the principles of Christianity & Humanity; & in Americans who have almost idolized liberty, peculiarly odious & disgraceful.”

Livingston was not merely being polite. He praised Benezet’s work on slavery while dismissing the Pennsylvanian’s denunciation of war. Livingston’s views on slavery subsequently had more practical application. In 1780, he commented approvingly on word of the inclusion of an African American in a prisoner exchange with the British. Noting that the slave technically belonged to the state of New Jersey, having been confiscated from a loyalist, Livingston remarked, “I am so prejudiced against the Slavery of any part of the Species, that I should not have chosen to be instrumental in detaining him for that purpose.”⁴⁵ John Jay’s slaveholding father-in-law had no trouble grasping the connection between patriotic language and Quaker moral claims against slavery. He endorsed that connection even if he felt constrained by political circumstances from translating that belief into systematic action to emancipate or abolish.

Elected as the president of the Continental Congress in December 1778, John Jay also became the target of Quaker lobbying. Anthony Benezet wrote directly to President Jay in early 1779 about the evils of slavery and war, sending Jay his pamphlet Serious Consideration on several Important Subjects, which also included a section on the dangers of “spirituous liquors.” Benezet’s cover letter focused exclusively on the war. The Quaker explained that his sect’s pacifism did not flow from any ill will for their country on the part of Friends but rather from a sincere commitment to their understanding of Christianity’s dictates. War, declared Benezet in his pamphlet, constituted “impious rebellion and defiance against” the Lord.⁴⁶

The pamphlet’s section “Observations on Slavery” spoke more directly to the specific historical moment in language sharing Jay’s assumption that the patriots engaged in a divinely sanctioned war for the expansion of liberty. The Quaker announced at the outset that “THE Slavery which now so largely subsists in the American Colonies … proceeds from the same corrupt root as War,” specifically “a lust for amassing wealth” and the desire for “ucontroulable power.” These immoral impulses governed “the minds of most Slave Holders” even in the current climate where “the rights and liberties of mankind have been” so frequently discussed. Benezet asserted that the continued legality of slavery compounded “that guilt which has so long lain upon America.”

Benezet’s critique was unrelenting and went far beyond hoisting American patriots on their own rhetorical petards. He emphatically dismissed any excuses that slaveholders might offer that they merely carried on an institution that their fathers, who were perhaps ignorant themselves of the moral meaning of the slave trade, deeded to them. The pamphlet insisted that the original colonial slaveholders understood the evils wrought on Africa by the trade. Present day slaveholders bore the same burden of guilt as the traders and merchants responsible for African bondage in America. The only righteous path was the granting of freedom to all.⁴⁷

On the back of Benezet’s letter, Jay penned an endorsement of the Quaker principle of universal freedom, but unlike his father-in-law, he did not address slavery directly. Jay wrote, “Civil and religious Liberty is a Blessing which I sincerely wish to all mankind,” and expressed his “hope [that] it will ever be the policy of these States so to extend and secure it to all their citizens” who “may have Reason to complain of Partiality or oppression.” As president of the Continental Congress, Jay could not subscribe to Benezet’s pacifism, but Jay thought of the war in religious terms; it was a biblical Exodus-like struggle of freedom versus servitude. His comments about extending liberty “to all mankind,” like his brief expression of regret that the New York State constitution did nothing to advance slavery’s end, hint that he had begun to tentatively connect the dots between metaphoric and actual enslavement.⁴⁸

Nine days after Jay penned his thought on mitigating oppression, Alexander Hamilton wrote President Jay with a bold emancipation proposal. On March 14, 1779, George Washington’s energetic young aide-de-camp pitched a daring plan to put slaves under arms in the South to stave off an imminent military collapse. Hamilton sought congressional approval for a plan developed by South Carolinian John Laurens to enroll as many as four battalions of Blacks in the patriot cause.

The young and ambitious officer indicated to Jay that he found the plan worthy in a variety of ways. First, he expressed his confidence that Blacks would “make very excellent soldiers, with proper management.” Suggesting that “their natural faculties are probably as good as ours,” having crossed out the less emphatic “perhaps,” Hamilton wrote that slaves had plenty enough experience as slaves to know how to take orders as soldiers. “Prejudice and self-interest” had “taught” whites to “fancy many things that are founded neither in reason nor experience.” Hamilton, despite his childhood in the West Indies and his education among a New York elite long habituated to racial subordination, refused to be confined by prejudice in assessing the situation.

Hamilton was out to win a war, not to slay racism or end slavery. Yet putting the enslaved under arms had the advantage of advancing all of these purposes. The young, high-placed officer made the argument that the failure to use this vast human military resource would simply provide the British with the opportunity to do so. The Laurens Plan advocated by Hamilton viewed as “essential” the granting of “freedom with their muskets,” for to do so would “secure their fidelity” and “animate their courage.” But more than that, Hamilton argued that arming some southern Blacks would make it more likely that additional slaves would receive their freedom. And here Hamilton concluded not with a practical but rather a moral argument. The prospect of a wider “emancipation,” he wrote, “I confess, has no small weight in inducing me to wish the success of the project; for the dictates of humanity and true policy equally interest me in favour of this unfortunate class of men.” Hamilton thus linked effective policy, morality, and national victory as all pulling in the same direction. He had gone much further here than Jay’s privately expressed preference for antislavery language in the New York State constitution or Jay’s notion of political liberty and political enslavement as an expression of piety and impiety.⁴⁹

No direct response from Jay to Hamilton apparently survives, but barely two weeks after Jay received the letter, the congress over which Jay presided passed a unanimous declaration in support of the Laurens Plan. With Jay’s support, the Continental Congress gave its blessing to South Carolina and Georgia to enlist “three thousand able bodied negroes.” It further agreed to make “a full compensation” to masters who made their slaves available for service. Although Black soldiers would not receive any payment on enlistment, the US government would clothe and feed them and, at the end of the war, would offer each African American soldier freedom and a $50 discharge payment.

This stunning plan, a veritable pilot project in nationally backed mass emancipation, never went into effect. Not only did South Carolina’s legislature reject the plan but also George Washington failed to give it his support. The army’s supreme commander had willingly incorporated northern Blacks into his army going all the way back to the early New England campaigns. In the darkest days at Valley Forge, he approved of a Rhode Island scheme to recruit more Blacks for his integrated army. But the Laurens Plan struck too close to home for the Virginia planter: he feared that his own slaves would be swept up into service and eventual liberty if the plan moved forward. Washington struggled with his conscience over the conundrum of revolutionary versus personal interests, writing to his cousin and plantation manager Lund Washington of heavenly “punishment” to the American cause “for our want of public, & indeed private virtue.” Though pointing the finger at himself, his actions with regard to slavery, like those of so many of his contemporaries including Jay, remained partial, incomplete, and self-serving.⁵⁰

The nascent movement to connect universal revolutionary ideas with antislavery measures continued despite the failure of the liberation plan of Laurens. In Anthony Benezet’s Pennsylvania, the state legislature enacted a precedent-setting gradual emancipation law. The law freed children born after its enactment to enslaved mothers, but those children had to remain in service until age twenty-eight. The legislature couched the law in language familiar to Jay—that of war, tyranny, and nature—while making the connection to Black enslavement that Jay had yet to articulate. The act claimed to end for slaves “that state of thraldom to which we ourselves were tyrannically doomed” and to have taken “one more step to universal civilization” by rejecting color prejudice and extending the freedom to which “nature entitled” African Americans.⁵¹

By the time Pennsylvania’s legislature acted, John Jay was in Spain. Congress hoped that he could turn the Spanish court into an ally and financial benefactor now that it was also at war with Britain.⁵²

Learning of Pennsylvania’s gradual emancipation law, Jay wrote from Spain to his good friend and New York political ally Egbert Benson, expressing his thoughts on abolitionism. Jay’s language echoed his own earlier thinking on political liberty and Benezet’s thoughts on American slavery. “Till America comes into this Measure her Prayers to Heaven for Liberty will be impious. This is a strong Expression but it is just.” Jay urged a concrete response. “Were I in your Legislature I would prepare a Bill for the Purpose with great Care, and I wd. never cease moving it till it became a Law or I ceased to be a member.” And he framed this advice as a matter of high religious and philosophical principle: “I believe that God governs this World, and I believe it to be a Maxim in his as in our Court that those who ask for Equity ought to do it.”⁵³

Pennsylvania’s modest measure might seem not to merit such emphatically principled rhetoric. Still, save for breakaway Vermont’s constitution, no governing body in the new nation or anywhere else on either side of the Atlantic Ocean had acted to legally end slavery to any degree or on any timetable. The pioneering abolitionist Benezet himself believed gradualism answered the divine imperative of emancipation. From Jay’s perspective, slavery’s permanent perpetuation contradicted the expectation that the American Revolution would extend through time a godly regard for—to quote a 1779 circular he wrote on behalf of the Continental Congress—“the rights of religion, justice, humanity, and mankind.” Piety demanded political action.⁵⁴

Writing on American slavery from Europe, Jay expressed matters as emphatically if less pragmatically than Hamilton had. Human bondage was wrong; equity was right. But “to do it”—to treat Black people with equity—would prove no more straightforward for Jay when residing overseas than for his family members, his fellow New Yorkers, or his fellow Americans grappling with slavery at home. During his four-year stay in Europe, tragically pragmatism and piety often pulled in conflicting directions.