Church and State

Just as John Jay II had joined the ranks of organized abolitionism before his father, the son laid the groundwork for William’s critique of institutionally engrained racism. In February 1839, John, still only twenty-one years old, addressed the New York Anti-Slavery Society on slavery and the Episcopal Church. Subsequently published as a brief pamphlet, this public critique of the family’s ancestral religious home foreshadowed the internal insurgency against racism that John II would lead for years to come. Less directly but no less importantly, Thoughts on the Duty of the Episcopal Church, in Relation to Slavery castigated the church’s American hierarchy for its failure to take a stand against Black bondage and identified the spiritual wreckage that resulted. From the praise the Episcopal clergy heaped on the United States, “a stranger would scarcely have imagined … that there existed in this nation nearly THREE MILLIONS of people … who have never entered the walls of a school, nor learnt the coming of Christ, and know not the sound of the church-going bell, and whom in some states it is death to teach that Bible.” By contrast the abysmal record of American clergy, English churchmen had heroically stood up for the emancipation of enslaved people in the Caribbean colonies. The American Episcopalian Church, observed this scion of one of the church’s most prominent families, “has not merely remained a mute and careless spectator of this great conflict of truth and justice with hypocrisy and cruelty, but her very priests and deacons may be seen ministering at the altar of slavery.”⁵

By itself, his Condition of the Free People of Color provides evidence of William Jay’s developing thoughts during this same time period—but its greater value is as a gateway into the Jays’ expanding antislavery universe and the allies and enemies generated there. William Jay’s pamphlet on northern racism, Condition of the Free People of Color, published in the autumn of 1839, prefaced a mostly secular list of ten “oppressions” perpetrated “by law or the customs of society” against free Blacks with digs at some old rivals and some religious observations. Prejudice, stated Jay, “is derogatory to the character of that God whom we are told is LOVE.” He found it a curious claim, then, that “our heavenly Father has implanted a principle of hatred, repulsion and alienation between certain portions of his family on earth.” Colonizationists served once again as Jay’s foil. He noted that differences in color led abolitionists “to discard the prejudice” and colonizationists “to banish” prejudice’s “victims.”⁶

With sharp distinctions drawn between Godly love and human prejudice, Jay assembled a bill of violated rights, a Decalogue of republican commandments desecrated in the North: voting rights, freedom of movement, petitioning, military service, equal access to courts, secular education, religious education, earning a living, avoiding enslavement, and public accommodations. Jay’s pamphlet identified the right to vote, to move freely about the country, to file petitions, to serve in the military, and to walk the streets without the fear of being kidnapped as aspects of citizenship denied to free Blacks in northern states. Tellingly, Jay listed “General Exclusion from the Elective Franchise” first in his Condition of the Free People of Color. In 1833, Jay had claimed that the elective franchise did not even follow from emancipation. By placing voting rights at the head of his list six years later, he was inching toward an acknowledgment that the lack of equal access to the ballot compromised freedom. Still, he remained a political conservative. He objected only to the fact that most northern states excluded Black voters based on their color: “Were this exclusion founded on the want of property, or any other qualification deemed essential to the judicious exercise of the franchise, it would afford no just cause of complaint; but it is founded solely on the color of the skin, and is therefore irrational and unjust.” Even so, in the existing political culture where pandering politicians catered to the “good will” of their voters, Jay recognized that excluding Black men from the franchise denied them democratic leverage and undermined the conditions of African American life.⁷

Northern states contrived to undermine Black citizenship in other ways that violated constitutional logic and threatened human dignity. The “Denial of the Right of Locomotion,” “Denial of the Right of Petition,” and “Exclusion from the Army and Militia” encoded northern white prejudices in law while imposing meaningful hardships. The “privileges and immunities” clause of the US Constitution was grossly mocked by free and slave states alike: Black citizens did not always carry their rights from one state to another. Southern attempts to wall themselves off from the supposedly dangerous influence of free Blacks meant that “a citizen of New York, with a dark skin” could not “visit a dying child” in the South “without subjecting himself to legal penalties.” Northern states, especially Ohio, Jay argued, also trampled on the notion that American citizens could transport their “privileges and immunities” across state lines. Ohio’s 1807 law required Black migrants to post a substantial bond to move into the state, a clear attempt to prevent migration altogether. This provision left Black residents of the state vulnerable to deportation and threatened whites who employed or even showed kindness to a Black “fellow-countryman.” Ohio also singled itself out for violating a governmental principle so basic—the right to petition—that even a despot might be perplexed. The Ohio legislature expressly denied Blacks and mulattoes this right, apparently because they had already been denied the right to vote.⁸

Jay disposed of the prohibition of Blacks from military service by observing that the US government “is probably the only one in the world that forbids a portion of its subjects to participate in the national defence” based on skin color. He astutely observed, “To declare a certain class of the community unworthy to bear arms in defence of their native country, is necessarily to consign that class to general contempt.”⁹ The federal government willfully joined with the states in which militias were organized in eroding Black citizenship and heaping scorn on African Americans.

“Liability to Be Seized, and Treated as Slaves,” meanwhile, was a violation that had long been a serious concern not only for William Jay but also for his older relatives Peter Augustus Jay and Peter Jay Munro who had preceded him in the antislavery cause. The seizure in Washington, D.C., of Westchester County resident Gilbert Horton had launched William’s own antislavery career. In his pamphlet on free Blacks in the North, William alluded to the seizure of Peter Lee as a fugitive in Westchester County. The economics of the domestic slave trade threatened freedom and undermined the administration of justice in places where the law had proclaimed slavery itself illegal. Jay sarcastically noted, “An able-bodied colored man sells in the southern market for from eight hundred to a thousand dollars; of course he is worth stealing.”¹⁰ Yet the confluence of courage, planning, and principle, in the right circumstances, might transform stolen lives into symbols of freedom, if not under state law than under national, international, and natural law.

La Amistad

“No colored man can be a judge, juror, or constable. Were the talents and acquirements of a Mansfield or a Marshall veiled in a sable skin, they would be excluded from the bench of the humblest court in the American republic,” wrote William Jay at the beginning of the fifth item on his list of violated rights. As a judge, the ill effects of prejudice in the courtroom were readily recognizable to Jay. In court, the southern states once again found a kindred spirit in the legislature of Ohio, which by statute excluded Blacks from testifying in any case involving white parties. Ohio may have been unique among northern states for barring Blacks from being witnesses “however well established … his character for intelligence and veracity.” If Ohio went further in this regard than other northern states, the fact remained that a Black man might possess the abilities of the greatest of English and American jurists and still not be allowed to join the bench.¹¹

As events soon proved, although denied the opportunity to produce a Mansfield or Marshall, the enslaved through their resistance did produce a Henry and a Washington, transforming Jay’s elegant words on the absurdities of courtroom prejudice into public dramas about the efficacy of the law and the sovereignty of justice.¹² The actions of a group of West Africans off the coast of Cuba in early July 1839 made the administration of justice a major abolitionist priority on the national stage. Illegally transported to Cuba from a carefully hidden slave-trading facility in Lomboko on the coast of Africa, a group of fifty-three Africans were then transferred to a smaller vessel, La Amistad, for shipment from Havana to a Cuban sugar plantation approximately 300 miles to the east. On board, the captors denied the Africans adequate water and subjected them to brutal beatings. The captives worried that they would later be killed and eaten. A Mende named Cinqué and three comrades led a rebellion on ship after freeing themselves and the other captives from their chains. The Africans overpowered the crew in a bloody battle. The rebels spared their two putative owners, Pedro Montes and José Ruiz.

Lacking knowledge of sailing or navigation, the Africans controlled the ship but not its course. Montes eventually steered toward the US coast. Desperately looking for supplies along the Long Island, New York, coast in late August, the African mutineers drew the attention of US naval patrols. Lieutenant Thomas Gedney, of the USS Washington, apprehended the ship and its passengers, bringing them to shore in New London, Connecticut. Soon, the mutineers found themselves clapped into a New Haven prison, while various parties, including their Spanish owners and the Americans, who claimed rights of salvage for recovering the Africans, sought to convince the courts that the central issues involved property rather than human rights.¹³

Judge Jay took a keen interest in the complicated proceedings, offering advice, public encouragement, and money in support of Lewis Tappan’s commitment of abolitionist resources to the case. His September 7, 1839, letter to his friend, expressing moral outrage and an easy command of the larger international legal context, quickly found its way into The Emancipator. Although the alleged justification for imprisoning the Africans was a possible trial for “piracy and murder,” Jay labeled their Spanish owners, Montes and Ruiz, as the real “villains,” quoting the fact that “children between the ages of 7 and 12” were among their cargo illegally imported from Africa. Such activity violated a treaty between Spain and Britain intended to help stamp out the international slave trade. According to Jay, as recently as 1838, several Spanish ships with the mere intent of participating in the illegal slave trade had been apprehended. Moreover, the Queen of Spain had ordered the colonial Cuban navy to enforce the ban. Jay, in an attempt to bolster Tappan’s commitment to the cause, observed that Ruiz and Montes “well knew” that theirs was an illegal cargo and that the slaves were therefore “entitled to their freedom,” making the two Spaniards “guilty of an act of atrocious wickedness” that made them “felons” in their own courts. Instead, the two men audaciously sought redress in the US courts.

The Amistad case demonstrated on the public stage the racism that William Jay highlighted in his broader assessment of northern Black life in Condition of Free People of Color. As he wrote to Tappan, despite the fact that “our authorities” had these facts at their disposal, they imprisoned “thirty individuals for an act which but for the color of their skin, would be generally regarded as most heroic and praiseworthy.” Drawing on an analogy that reached back to the late eighteenth-century arguments made by his father and others, William Jay asked, “What would be the feeling and conduct of this nation had an American crew captured and sold as slaves by a Barbary corsair” been held in London as pirates and murderers? It went without saying that whites and Blacks defending their rights were not judged by the same standard. Jay’s extensive knowledge of the national government’s record on slavery-related issues led him to believe that the Africans’ interest in pressing grievances against “their kidnappers” would not receive priority on US soil, though “common decency and justice” dictated otherwise.¹⁴

John Jay II, for his part, sought to yoke the Amistad story to the American Revolution and the Romantic literary tradition. In announcing a monetary donation to the cause, John invoked both Patrick Henry’s defiant pronouncement, “Give me liberty or give me death,” and the Declaration of Independence; he also quoted English poet Robert Southey’s 1791 sonnet on a violent slave rebellion: “Every true-hearted American” could embrace a “choice of untutored barbarians” to fight for their freedom in John’s grand, albeit condescending, analysis. John was not alone in connecting the Africans to a romanticized revolutionary heritage. A newspaper extra distributed by New York’s Sun, offered a chest-up drawing of “Joseph Cinquez,” showing “the brave Congolese Chief” in a simple tunic-like shirt meeting the reader’s gaze with a calm assurance (see figure 9). The drawing accompanied the Mende hero’s speech to his newly liberated comrades after seizing control of the Amistad: “Brothers we have done that which we purposed, our hands are now clean, for we have Striven to regain the precious heritage we received from our fathers.” The Amistad rebels had reenergized the abolitionists’ claim to their fathers’ revolutionary legacy.¹⁵

The revolutionary legacy, as it turned out, played more than merely a symbolic role in helping these Africans win their freedom. Among the ongoing contributions William Jay made to the Amistad case was helping lure another founding father’s son, John Quincy Adams, to take up the cause. Jay admired the former US president, who in his current role as a congressman, was engaged in a determined battle to undermine the so-called gag rule against abolitionist petitions. William’s 1839 letter in the Emancipator offering his initial analysis of the case had piqued Adams’s “deep interest.” In a personal letter to Jay, the former president echoed Jay’s thought that far from being “Pirates and Murderers” the Africans had “vindicated their own right of liberty by executing the Justice of Heaven.” Adams shared with Jay the news that President Van Buren’s administration stood ready to return the Africans to Spanish custody. Yet Adams also remained hopeful that the Amistad rebels would fare well in the court of law and that Van Buren would rethink his contemptible plans to return them to Cuba. Adams’s expression to Jay of his opinions of the case may well have prompted Jay confidante Lewis Tappan to successfully recruit Adams to take up the Amistad case more publicly.¹⁶

Jay, like Tappan, was eager for the case to receive wide publicity in both the abolitionist and mainstream press. To his mind, the underlying facts were clear, and only biases in the executive and judicial branches prevented the logic of those facts from prevailing. Federal District Court judge Andrew Judson ruled in January that the Amistad rebels were not slaves and therefore Ruiz and Montes could not claim them. But his narrowly cast decision did not declare any broader antislavery principles; indeed, he ordered the one non-African-born slave back to Cuba, and the rest the Van Buren administration was to ship back to Africa, while awarding salvage rights to the US Navy lieutenant Gedney. The Spaniards and the administration appealed the lower court decision, resulting in many more tense months for the Africans’ supporters and many more months of imprisonment for the Africans.¹⁷

Jay urged Tappan in the fall of 1840 to push forward on the issue of bail. Denial would “be cruel & unconstitutional.” Setting the Africans free while the appellate phase of the case went forward would make it “difficult to seize these men hereafter … to punish on a Spanish scaffold.” Returning to this point three weeks later, Jay emphasized that the continued imprisonment of the Black children who had been among the Amistad cargo was particularly unjust. In the same letter, Jay gleefully observed that the conjunction of the Amistad case and the election had spread the abolitionist message into unlikely precincts, “our incendiary publications” appearing “through the whole length of the Slave region.”¹⁸

There was other good news. To Jay’s great pleasure, Lewis Tappan finally prevailed on Adams to join the legal team that would press the cause of the Africans before the US Supreme Court. In the meantime, Adams explicitly drew on William Jay’s investigative work when raising doubts in the US House of Representatives about the Van Buren administration’s handling of the matter. Proclaiming to his House colleagues that “there was not a more honorable man in the United States” than William Jay and noting that the New York judge “was the son of one of the greatest patriots of our Revolution,” Adams quoted Jay’s charges at length. Someone, it seemed, had translated the language of the Cuban shipping document referring to the Amistad cargo as “ladinos”—that is, Africans imported to Cuba before the ban on transatlantic slave importations—and as “sound negroes.” Because there was, asserted Jay, other evidence that this human cargo had recently arrived from Africa, such a mistranslation might be regarded as a way of covering up prevarications on the part of a Cuban official and of Ruiz. Jay’s analysis, in which he raised the possibility of US government “fraud,” helped Adams put the administration on notice that Congress was watching its actions carefully.¹⁹

The Amistad case served the abolitionist movement well in the court of public opinion, but as everyone involved knew full well, the fate of the heroic and long-suffering captives ultimately rested with the Supreme Court justices. Jay expressed his apprehensions to Tappan as the Amistad legal team, headed by Adams and Roger Baldwin, the grandson of a signatory to the Declaration of Independence, readied themselves. Jay believed that freeing the captives outright “would be a triumph” but worried about a colonizationist-style compromise that would order their transportation to Africa. Jay’s advice then was that “our lawyers should simply urge the court to grant them liberty.” Tappan, as his instructions to the lawyers indicate, concurred with Jay.²⁰

The US Supreme Court, in a decision delivered on March 9, 1841, found, as Jay had insisted from the beginning, that the Amistad Africans had never legally been slaves and, therefore, that they must be set free. The decision, written by Justice Joseph Story of Massachusetts, vindicated their right to defend themselves. There was no reason why they should suffer further imprisonment.²¹

The resolution of the Amistad case provided an exception to the rule of the discriminatory administration of justice described in Jay’s On the Condition of the Free People of Color. The circumstances were extraordinary in ways that maximized the public drama of the situation without necessarily reversing the tide of discrimination that Jay had detailed in his pamphlet on northern racism. To be sure, Justice Story’s decision validated free Black court testimony; indeed, without the testimony and depositions of the Africans, their case could not have been made.²² The right to testify and the right to petition, as Jay argued in his pamphlet, were bulwarks against despotism and for freedom. Yet, even though Cinqué and his colleagues became heroic revolutionary figures, this hardly made it more likely that a dark-skinned Mansfield or Marshall would ascend to the judicial bench in Ohio or New York. The Amistad Africans also struck a blow against illegal kidnapping, but under a set of conditions that did not set a precedent that would do anything to protect northern people of color. The US Constitution’s fugitive slave and domestic insurrection clauses did not apply in this instance.

Nonetheless, Jay could take satisfaction in having helped the Africans attain their freedom, his legal acumen and reputation supporting Adams and other colleagues in their political and judicial strategies. The case, moreover, created sympathy for the antislavery cause and demonstrated that when Blacks did receive a full hearing before the bar their appeals for justice might be recognized. The return to Africa of those who survived the lengthy ordeal also reflected the support African Americans brought to the Amistad cause and the anti-colonizationist sensibility that abolitionists, like Jay, shared with them. Minister J.W.C. Pennington, who had escaped slavery himself, along with other Black abolitionists founded the Union Missionary Society in August 1841 to support Christian outreach in Africa in conjunction with the return of the former captives. The Society sought to head off any association with colonizationism, an activity which expressed the same sort of racial exclusion for which Jay himself had developed so much contempt.²³ The Amistad saga demonstrated that the administration of justice was not irredeemably flawed nor was interracial collaboration impossible, even in a republic in the thrall of racism.

The Creole

The shipboard rebellion of Madison Washington and his fellow American slaves in October 1841 once again drew William Jay into the political and racial fray. The actions of the federal government to try to get their hands on the Black rebels who seized The Creole offered Jay an opportunity to write, in effect, a barbed postscript to his two 1839 publications and to extend the lessons on natural and international laws articulated in the Amistad case. However poorly the North administered law and nurtured Black achievement, Jay refused to let Daniel Webster, the Whig secretary of state and nationalist hero, rewrite the principles of justice for the sake of political expedience.

When the slaves aboard The Creole sailed into the Bahamas as free people, they dramatically tested the meaning of British West Indian emancipation for Anglo-American relations. Slaves being shipped from Richmond to New Orleans seized control of the vessel and sailed for the Bahamas, a British colony covered by the British Empire’s recently passed emancipation laws. Madison Washington masterminded the mutiny. On learning of the ship’s arrival, British authorities initially sought to secure The Creole and all its Blacks on the ship, but ended up only detaining the nineteen implicated in the uprising. Well over one hundred other enslaved people aboard The Creole soon went free. Black Bahamians in boats approached The Creole and brought the men and women ashore, not as cargo but as free people. The nineteen men identified as mutineers were imprisoned.²⁴

The controversy precipitated by the slaves aboard The Creole was the inverted mirror image of that of La Amistad. In this latest act of resistance, American slaves sought to avail themselves of foreign laws, and their American owners and the US government appealed for redress, thus playing the role of Ruiz, Montes, and the Spanish consul. As in the Amistad case the federal government asserted the material interests and legal claims of masters over the moral claims of the enslaved.

Jay once again valorized the rights of Black rebels over the interests of white property holders and the governments that attempted to protect those interests. Jay counseled the British not to accede to US demands for recompense. Joseph Sturge, a British antislavery activist, who met Jay on a tour of the United States, saw to it that Jay’s analysis made its way into the British press. Jay’s January 1842 letter to Sturge established a clear demarcation between Black and white, obligation and self-interest. Jay noted that the slaves had prosecuted the shipboard rebellion “humanely,” killing only one of twelve whites and taking care of the wounded. In a not-so-subtle contrast, American “slaveholders are in great wrath, and mean, if possible, to terrify your government into a surrender” of the rebels. Jay submitted that international law did not obligate the British to take any action to restore the mutineers to US authorities. Indeed, the United States had declined to return two Irishmen and a Canadian murderer to the British, as well as denying Spain’s requests in the Amistad affair. Absent an extradition treaty for accused murderers, no wrong could be claimed.

Jay boldly exported his contempt for some of his own countrymen and encouraged a foreign power to resist any demands made on their behalf. He asked, “If you cannot surrender” the Creole mutineers “as murders, can you as fugitive slaves?” With twelve thousand African American runaways in Canada, the answer to this question had significant consequences. Jay reminded his British readers that the United States had previously tried to induce them to sign a treaty that would return these runaway slaves. The legal and moral imperatives, according to Jay, were no different in the Creole case: “The claim we [Americans] shall prefer for the surrender of the Creole negroes is as contrary to international law, as it is to the law of God.” If British officials “will listen to the dictates of justice, humanity, and national honor,” they would resist American claims fueled by “slave holders … thirsting for the blood of these negroes.”²⁵ He contrasted Black restraint to white terrorism, British moral and legal sobriety to American selfishness.

Jay’s full analysis of the case was published in The New-York American, later excerpted in the NASS, and printed as part of a substantial pamphlet. He refuted the proslavery reading of international law that Webster advanced. He argued forcefully that laws and protections for the interests of slaveowners should be construed as narrowly as possible and that the right to rebel against servitude should be protected wherever the jurisdiction of slave laws ceased to apply. In Jay’s view, very strict geographical lines circumscribed the reach of slaveholder claims.

For Jay, the Creole rebellion necessitated the articulation of a clear set of antislavery principles to guide international law. He recognized the Black rebels as the case’s central figures whose actions and motivations should carry significant legal weight. Jay viewed it as vital that US citizens “not step beyond the strictest requirements of” the Constitution, lest they become “a party to the extension of this blighting curse and shame.” The fugitive slave clause of the Constitution held no sway in British territory. Moreover, as Jay emphasized, liberating oneself at sea was even less legally ambiguous than escaping across the border from one dominion to the next. Jay identified “the grand mistake of all who have written on the subject is, that they leave entirely out of the question this party” that mattered most—“the slaves themselves.” Pivoting to the political contract at the heart of republican governance, Jay noted that slaves never consented to the law of slavery but only submitted to it by force: “Therefore, when they find themselves or place themselves beyond its jurisdiction, they are no longer subject to that law.”²⁶

The only law that mattered on the high seas was “the universal law of nature.” The decisions made by the Black rebels thus rendered moot whether the British officials in the Bahamas acted in an unfriendly fashion toward US interests by allegedly inducing the slaves to disembark. Jay asked, “Is it to be supposed, that without such interference, the slaves would have remained on board the Creole, and gone voluntarily into the hopeless bondage of Louisiana sugar plantations?”²⁷ The men understood full well why and how to act on their desire for freedom.

The case threw the laws and administration of justice in the United States into a harsh light, along lines limned out in Jay’s pamphlet on racism in the North. Judge Jay proclaimed, “The law of England is the law of Freedom, and it bends neither to Policy nor Power.” Not so, in the United States, specifically South Carolina, which presumed “in contravention of the Constitution of the United States” that every Black person entering its ports be treated “not only as slaves, but as felons” during their ship’s stay. The humanity of slaves, who were most assuredly “like ourselves—and not bushels of wheat or hogsheads of tobacco,” made it imperative that slave laws extend not one step further than their “local” context. Jay thus helped build a theory of antislavery constitutionalism that made freedom an assumed national and international norm overridden only by laws explicitly maintaining slavery within strictly local boundaries.²⁸

Arguments about legal theory became arguments about historical memory, specifically the memory of the American Revolution. Jay turned Secretary of State Webster’s famous ability to conjure the narrative of the Revolution against the great orator. The New Yorker “confess[ed] … utter amazement” and “unfeigned sorrow” to hear that the New Englander, who so eloquently cited Bunker Hill and his love for “his own, his native land,” had denounced the Creole rebels as “mutineers and murderers.” Rhetorically linking New England patriots to the Creole rebels as fellow defenders of natural law, Jay took aim at Webster’s reputation as heir to the American Revolution’s libertarian creed.²⁹

Jay would not, however, be allowed to claim either the moral high ground or historical memory uncontested. One Webster supporter publicly argued in the pages of the upstate New York Utica Gazette that the present secretary of state had acted no differently than John Jay had when negotiating the Peace of Paris in the 1780s. That treaty demanded that the British not take with them any American slaves as they evacuated from the United States. The pro-Webster correspondent also cited subsequent attempts by John Jay in 1794 to secure compensation as precedent for the current secretary of state’s claims.

William Jay’s reply to the Utica Gazette, subsequently reprinted in the National Anti-Slavery Standard and the Liberator, revealed once again the passion and his vulnerability to any imputation of his father’s antislavery reputation. Jay assailed the notion that Webster acted on any legal, moral, or diplomatic “precedent” set by William’s “revered parent.” Such “gross ignorance” could not be allowed to stand. To prove his point, William conducted a historical review designed to render his father morally blameless while further diminishing Webster’s reputation. William dubiously shifted all blame for the language of Article VII of the Treaty of Paris on the removal of Negroes to the “Carolina slaveholder” Henry Laurens. Returning to firmer historical grounds, William informed readers that John Jay declined to “insist on compensation” for Blacks when negotiating the commercial treaty that would bear his name.

Reflecting his enhanced concern with racism as the engine of injustice, Jay pivoted from defense of his father’s historical record to an attack on Secretary Webster’s prejudices. “It must be the very doctrine as to shades of complexion,” wrote Jay, that allowed Webster to level the charge of murder against the likes of Madison Washington. Were Russian serfs to wash up on the US coast, we would not return them to bondage. More pointedly echoing one of John Jay’s old arguments, William submitted that if Webster’s own son had freed himself from Algerian pirates in like fashion to the Creole rebels, the secretary of state would embrace him. Webster, in adjusting his moral compass, did not deserve to be compared to John Jay.³⁰

Amid the intensifying national politics of race and slavery in the 1840s, Webster’s silver tongue and sterling nationalist reputation served as an inadequate substitute, in William’s view, for the advocacy of first principles. The brave actions of slave Madison Washington, who bore the names of two founding fathers, thus helped William Jay, who bore the name of another, to confirm and to refine his commitment to see the law administered in a color-blind fashion through the courts and in international relations. As he already contended in his On the Condition of the Free People of Color, “a foolish and wicked prejudice against color” was the enemy of such principles.³¹

Impediments

Alexander Crummell’s 1839 rebellion did not involve weapons, ships, or national governments. The Black New York City native sought to gain admittance to the Episcopal Church’s General Theological Seminary on equal terms to white candidates. In its way, Crummell’s ambition was as unsettling to his church as shipboard rebellion was to US law and diplomacy. His desire for ordination and his willingness to publicly defend his attempt to do so earned him powerful enemies and determined friends. Chief among his enemies was New York bishop Benjamin Onderdonk; prominent among his friends were John Jay II and William Jay. More than fifty years later, Crummell still vividly recalled both the isolation that his frustrating battle for admission to the seminary provoked and the generosity he received from the Jays. Crummell remembered feeling “completely at sea; … the ministry seemed to me a hopeless thing.” Crummell went on, “Hardly a churchman, clerical or lay, would touch such a presumptuous Negro, such a disturber of the peace as myself. The anger against me on every side was almost universal and intense.” The two Jays were among the only white Episcopalians willing to treat him as something other than a pariah.³²

In contrast to their support of shipboard rebels Cinqué and Washington, the Jays’ help given to Crummell was up close and personal. Their involvement in his struggle further tutored these white patricians in the ways of northern racism. The early parts of Crummell’s story informed William’s antiracist decalogue. Yet, allyship with Crummell continued beyond the writing of Condition of the Free People of Color and helped galvanize a long-term commitment of father and son to rid their church of its most racially prejudicial practices. Some of the most important “Impediments”—to education, to religious instruction, and to honest industry—taken up in William’s pamphlet on northern racism were embodied in Crummell’s quest.

Education represented for William Jay a flashpoint of American hypocrisy and an opportunity for progress. As he said at the outset of his review of educational discrimination, “No people have ever professed so deep a conviction of the importance of popular education as ourselves, and no people have ever resorted to such cruel expedients to perpetuate abject ignorance.” Jay’s concern was access to educational resources, rather than integration for its own sake. He noted that certain cities already had Black schools: no doubt he had in mind Manhattan’s well-developed network of African Free Schools that had recently been absorbed into the public school system under the auspices of his brother Peter, then president of the Public School Society of New-York. In the countryside, however, as Jay recognized, prejudice and a dispersed African American population usually meant that Black children got little or no education at all. Such discriminatory conditions meant that the higher, socially transforming, levels of education were almost entirely closed to free people of color. Reviewing the “almost insuperable obstacles to the acquisition of a liberal education by colored youth,” he asserted that less than a dozen Blacks had received a college education in the past three decades.³³ Such conditions he could not abide.

To illustrate the lengths whites would go to deny Black people a chance to study, Jay recounted the fate of an integrated academy in Canaan, New Hampshire. As Jay reported, white residents there resolved not only to exclude Blacks from the newly chartered school but also to preemptively ban any attempt to establish a school for Blacks in the town. When the school enrolled a racially mixed population anyway, hundreds of men and their oxen demolished the academy building. Although Jay did not mention Crummell by name, he, as well as fellow New Yorkers and African Free School alumni Henry Highland Garnet and Thomas Sidney, were among the Black students at the New Hampshire academy. Indeed, the abolitionist speeches that the three New Yorkers gave in New Hampshire on the Fourth of July added fuel to the racist fire. Crummell recalled many years later, “Fourteen black boys with books in their hands set the entire Granite State crazy!” Two months later, future civil rights leader Garnet held off an attack on their boardinghouse with a rifle. As a parting shot, someone fired artillery at the New Yorkers as they left Canaan for good. (The three subsequently made their way to the progressive Oneida Institute in upstate New York to further their education.)³⁴

Crummell’s clash with the Episcopal hierarchy, as well as the experience of his New York religious mentor, Peter Williams Jr., helped fuel Jay’s entries on “Impediments to Religious Instruction” and “Impediments to Honest Industry.” Williams was surely among those whom Jay had in mind when he noted, “Colored ministers are occasionally ordained in the different denominations, but they are kept at a distance by their white brethren in the ministry.” The pioneering Black Episcopalian had suffered a variety of indignities and humiliations as he established his own African American parish of St. Philip’s, only to see it held at arm’s length by the church’s bishop and governing structure. Jay’s 1839 pamphlet cited Crummell’s recently launched struggle for admission to the Episcopal seminary as an example of how difficult it was for African Americans in the North to work in “any other than menial occupations.” Jay did not mince words in his section on “Honest Industry” when he wrote, “There is a conspiracy, embracing all the departments of society, to keep the black man ignorant and poor.”³⁵ Neither William Jay nor his son John found this state of affairs acceptable. Indeed, Crummell’s confrontation with the Episcopal hierarchy gave the Jays, father and son, a chance to practice what they preached.

John Jay II extended himself as a confidant, adviser, and advocate after Crummell’s first attempts to gain traction with the seminary and with Bishop Benjamin Onderdonk had gone badly. The bishop resented Crummell’s temerity; rather than taking no for an answer, the candidate had petitioned the seminary’s board of trustees. A committee chaired by Bishop Henry Onderdonk of Philadelphia (Benjamin’s brother) denied the petition. After the board rejected Crummell, Onderdonk called the young man into his study, where the New York bishop proceeded to berate him.

Crummell later recalled that he sat “utterly bewildered” in his garret apartment the day that a white man not much older than he had ascended the staircase to commiserate with him. John Jay II supported Crummell in two related ways: he helped publicize Crummell’s struggle against prejudice within the church and encouraged his Black peer’s inclination to remain firm in the face of Onderdonk’s stick-and-carrot approach. The bishop demanded that Crummell repudiate his public defenders, while holding out the possibility of special tutorials with members of the faculty as a path to ordination. But, as John reported to a correspondent in England, Crummell refused to back down, “display[ing] … Christian firmness & christian humility through all his trials,” aware of the larger abolitionist enterprise to which he was attached.³⁶

Doing his part, William Jay sought to ensure that Crummell receive the education that his steadfast commitment to his calling and his dignity merited. The judge solicited his wealthy abolitionist collaborator Gerrit Smith for moral and financial support of Crummell. Having met with Crummell personally, Jay vouched for the young man’s good character and his “firmness” in the face of unwarranted adversity. Fortunately, commented Jay, “he has been true to himself & his brethren” in the face of tormentors. Crummell also had the support of the Black community. Cornish’s Colored American had exposed his tribulations, and African Americans had already begun raising money for Crummell’s ordination elsewhere.³⁷

William and John Jay helped mobilize a network of financial sponsors and character references for Crummell as he traveled to New England to pursue his religious education. He studied at Yale, William Jay’s alma mater. In 1842, Crummell received his ordination in Boston. Crummell’s travails, which were far from over, provided further motivation to the Jays to combat racism within the Episcopal Church and society at large (see Figure 10).³⁸

Insult and Outrage

In late December 1838, almost a year before William published his pamphlet on racism, the judge received a letter from Athens, Georgia, written by J. J. Flournoy, seeking to disabuse the northern writer of his “misconception … upon the negro question.” This southern educational reformer and author instructed the abolitionist that the discrepancy between “the distinct Races of mankind” was not merely a matter of color. Flournoy sought to justify white control of African Americans by citing the Bible, specifically the sin of Noah’s son Ham against his father. Ham, Flournoy reported to Jay, was cursed with “a dark hue” as a sign of his “inferiority.” The whole divine reason, asserted the southerner, for being turned Black was “to avoid what you are trying to bring about to our lasting Shame and confusion, Amalgamation! or an interminglement of the races.” The violation of this prohibition produced the “violent men” of places like Spain, South America, and Turkey. Flournoy argued, that although “colour is not the cause” for why “we have the negroes under us—their lot is forever servile constitutionally inferior to us, and the colour is a mark of Heaven upon them, to indicate who are not blessed. In this southern correspondent’s mind, abolitionists like Jay had trivialized the sign of God’s curse and therefore the racial hierarchy by dismissing subordination as a mere product of color prejudice.

On the back of this letter, William Jay simply wrote, “not answered.”³⁹ Apparently, he deemed this logic of racial prejudice beneath his contempt.

Several months later, in April 1839, William Jay answered a very different letter from Indiana. Richard Moran, self-identified as “a quadroon Slave,” wrote Jay in distress. Moran reported that Jeremiah Sullivan, a “strong colonizationist,” had become an officer of that state’s abolition society. He hoped that Jay could persuade Sullivan to embrace authentic abolitionist principles. In a postscript, Moran apologized for the quality of his writing, “being an ignorant man, and having never went to School but thirteen days in my whole life.” Jay responded to the Hoosier’s self-deprecation by commenting, “Permit me to remark that when ‘a quadroon Slave’ can write letters containing sentiments & expressions like those of the letter you have addressed to me, he affords a new & powerful proof of the wickedness of Slavery & the duty & policy of emancipation.”⁴⁰ Jay made clear distinctions in his own mind between indefensible prejudice and liberating evidence. His essay On the Condition of Free People of Color provided a brief for all the ways his northern compatriots enforced prejudice over liberty.

The final violation in William Jay’s ten-part indictment of northern racism was “Subjection to Insult and Outrage.” The threats to free people of color that Jay exposed in this last section and, indeed, throughout his essay on racism were far more concrete than Flournoy’s biblical philosophizing about the curse of Ham. The insults borne by free African Americans ran the gamut from mean to un-Christian to life threatening and sadistically cruel. On one end of the spectrum, Jay cited the published rules of a New York zoo that only Black domestic servants actively attending to their white employers might enter the grounds. The money of a free Black simply eager to see the exhibits was not good enough for this menagerie. The value that northern whites placed on separation was, to Jay’s mind, extraordinary. He cited the example of a Presbyterian graveyard in Philadelphia that sought to encourage white people to purchase cemetery plots by promising to exclude Blacks and capitally punished criminals from burial there. As Jay remarked, “Even death, the great leveller, is not permitted to obliterate, among Christians, the distinction of caste.” His choice of the term “caste” was not accidental. Jay believed that American Christians had perverted their faith by perpetuating a system of distinctions akin to what he regarded as the absurd superstitions of the Hindus of India.

On the other end of the spectrum, the baseless “indignities” born of color-coded social ranking could be fatal. Jay reported that a Black clergyman’s wife died after being subjected to the elements overnight on a steamship: Black people were not allowed in the cabins. From ordinary expressions of “contempt” it was, in Jay’s estimation, a short step to the kinds of urban riots that forced Black people to flee from their destruction. From a Philadelphia newspaper, Jay quoted a gruesome detail of a rampage through African American homes: “there was a corpse, which was thrown from the coffin, and in another a dead infant was taken out of the bed, and cast on the floor, the mother being at the same time barbarously treated.”⁴¹

William Jay may have written “not answered” on Flournoy’s letter explaining the God-given necessity of racism. But, in a sense, William Jay’s essay and, even more so, his Black-resistance-inspired activism of the late 1830s and early 1840s provided his answer. The extraordinary expressions of equality by the likes of Cinqué, Madison Washington, and Alexander Crummell exposed basic patterns of violence, discrimination, and cruelty that mocked concepts of liberty throughout the northern states. The impediments, denials, and exclusions might be worse in some places than in others, but the mentality and experience of prejudice were pervasive.

In the introduction to Condition of the Free People of Color, William cautioned that “some zealous advocates of emancipation have flattered themselves that, could the prejudice be destroyed, negro slavery would fall with it.” History and current circumstances belied that simple formula: the classical empires of the Mediterranean practiced slavery without race, whereas in the South, light-skinned females commanded higher not lower prices. Still, abolitionism would never triumph while racism’s virulence went uncontested in the North.⁴² Through their encounters with Black resistance, the Jays fortified their belief that—in God’s kingdom as in man’s—the distinction between the superstition of racial prejudice and the truth of universal humanity was absolute.