John Jay and the Constitutional Convention of 1787: Editorial Note
John Jay and the Constitutional Convention of 1787
Although not in attendance at the meeting convened at Annapolis in September 1786 for the ostensible purpose of resolving interstate commercial disputes, Jay anticipated by almost a month the address to the states drafted by Alexander Hamilton and adopted on 14 September.1 That address called upon all the states to send commissioners to a new convention at Philadelphia in May 1787 to discuss not only commercial problems but all matters necessary “to render the constitution of the Fœderal Government adequate to the exigencies of the Union.” Meantime, as early as March 1786, Jay had expressed support for a constitutional convention with much broader objectives.2 More specifically, he spelled out in a letter of 18 August 1786 to Jefferson his strong views on the need for reconstructing the federal government.3 On 7 January 1787, JJ wrote Washington, spelling out his views on the holding of a convention, and Washington prepared notes from this text, as well as from the opinions later expressed by Henry Knox and James Madison. “The People,” Jay reported later in the winter to Lafayette, were “divided in sentiment respecting the Expediency” of such a course,4 and in a letter to Adams he expressed doubts that anything constructive would ensue.5 However, Jay conceded in a letter to William Stephens Smith, “no Evil” was “to be apprehended” from such a meeting, and in the longer run, “much good.”6
Jay was undoubtedly the most influential proponent of constitutional reform who was denied an opportunity to attend the Philadelphia convention. Adams later said that Jay was “of more importance than any of the rest, indeed of almost as much weight as all the rest. That gentleman had as much influence in the preparatory measures, in digesting the Constitution, and in obtaining its adoption, as any man in the nation.”7 Adams himself and Jefferson, two of the other principal absentee Founders, were serving abroad at the time and unavailable, but Jay, who was on hand, was ignored. His name was not placed in nomination either in the New York State senate or the assembly.8 When Hamilton, who had been selected, attempted to expand the New York delegation from three to five and urged Jay’s appointment, his motion was adopted in the assembly but defeated in the senate.9 Despite his strong Federalist proclivities, Hamilton was acceptable to the legislature, even to the Antifederalist assembly, because of the general feeling that some constitutional reform was needed, and New York ought to send the author of the Annapolis report to Philadelphia. But one such delegate was thought to be enough. To check Hamilton’s possible extremism, and to provide balance to the delegation, the legislature also chose Robert Yates and John Lansing Jr., men of moderate views, who could, if necessary, form a majority against their brilliant colleague.10
While Jay was not a delegate and the convention’s deliberations were secret, there is evidence that he conveyed his views to Washington, the convention’s presiding officer, and to certain other delegates. Prior to the convention, Jay had advanced some of the notions embodied in the Randolph Plan, including enlarged powers for Congress and the President, separation of powers, and checks and balances. On 25 July 1787, he again addressed a letter to Washington, advancing the view that the commander in chief of the American army should be a “natural born” citizen, a suggestion later applied to the president in Article II, Section 1, Clause 5 of the Constitution.11 During the convention’s July–August recess, Jay met with some of its members, particularly Hamilton and George Mason, who visited New York at that time.12
In mid-August 1787, Jay drafted a petition for the New-York Manumission Society calling upon the convention to give consideration to the manumission of slaves and the protection of freed blacks, but “being informed that it was probable the Convention would not take up the Business,” he and his fellow members abstained from formally petitioning Congress.13
Although Jay complained that the protracted meeting in Philadelphia made it impossible to muster a quorum in Congress, essential to taking any action on foreign affairs,14 he approved the secrecy of the convention’s proceedings and believed that the longer the convention lasted the likelier it would be productive of substantial changes in the federal structure. Once his father-in-law William Livingston went to the convention as a New Jersey delegate in July, replacing William Paterson, who was obliged to return home, Jay began to receive communications which, while revealing nothing of substance, took on an optimistic tone. Despite his reservations about unchecked democracy, Jay had faith in the ultimate wisdom of the people and believed that, in the end, they would approve the convention’s results. As he wrote Jefferson on 8 September, “there is … a Degree of Intelligence and Information in the Mass of our People which affords much Room for Hope that by Degrees our Affairs will assume a more consistant & pleasant Aspect.”15
1. 3: 686–90.
2. JJ to GW, 16 Mar. 1786, above.
3. JJ to TJ, 18 Aug. 1786, above.
4. JJ to GW, 7 Jan. 1787, above; and GW’s notes, c. April 1787, AD, DLC: Washington, ser. 4 (EJ: 12496); , 5: 163–66; JJ to Lafayette, 16 Feb. 1787, above.
7. JA to James Lloyd, 6 Feb. 1815, LbkC, MHi: Adams; 10: 115.
8. Journal of the Assembly of the state of New-York at their tenth session … entry for 6 March 1787 (New York, 1787) ( no. 20576), 84.
9. Ibid., entries for 16 and 18 April 1787, 165–66, 170; 4: 147–48. In explaining his motion and the persons whose appointment he had in mind AH asserted: “Their abilities and experience in the general affairs of the country cannot but be useful upon such an occasion. I mean Mr. Chancellor [Robert R.] Livingston, Mr. [James] Duane, Mr. [Egbert] Benson, and Mr. [John] Jay. The particular situation of the latter may require an observation or two. His being a servant of Congress might seem an objection to his appointment, but surely this objection if it had any weight would have applied with equal force to the appointment of a member of that body. In the case of Mr. Lansing the two houses appear to have thought there was no force in it; and I am persuaded there can be no reason to apply a different rule to Mr. Jay. His acknowledged abilities, tried integrity and abundant experience in the affairs of this country, foreign and domestic will not permit us to allow any weight to any objection which would imply a want of confidence in a character that has every title to the fullest confidence.”
10. esp. 54–59, argues that Yates and Lansing were not chosen because of their Antifederalism, which only received exposure during their service in Philadelphia. 186–87), on the other hand, takes the position that the delegation was chosen purely on political grounds and that the Yates-Lansing majority reflected the dominance of Antifederalist sentiment in the state government. As for JJ, his biographers generally agree that his nationalist reputation prevented his selection. See 251, 283; 245–46.
11. In his draft JJ had suggested, but excised, the proposal that all national civil offices be held only by “natural born” citizens. See JJ to GW, 25 July 1787, and notes, below. For JJ’s proposed amendment at the New York ratifying convention requiring “natural born” citizenship for eligibility for president, vice president, and member of both houses of Congress, see New York Ratifying Convention Proceedings, 25 July 1788, 23: 2312–13.
Jay’s linkage of office holding to the status of “natural born” citizenship created considerable constitutional confusion and controversy in subsequent years. Jay did not define “natural born citizen,” nor did the Federal convention when it incorporated it into the requirements for the presidency, nor did the New York ratifying convention when it adopted JJ’s proposed amendment.
In making his ambiguous proposals Jay seems to have been adapting British law to American conditions. British law had used the term “natural born subject,” and sometimes “native,” to apply to a person born within the royal domain or nation. However, various laws, including the statutes of 25 Edw. III (1350), 29 Car. 2, c. 6 (1676), 7 Anne, c. 5 § 3 (1708), 4 Geo. II, c. 21 (1731), and 13 Geo. III, c. 2 (1773), extended the status of “natural born subject” to the children of British parents born abroad and to the children of British fathers and grandfathers. Whether JJ intended to incorporate such supplementary provisions when he replaced the term “natural born subject” with “natural born citizen” has not been determined.
In limiting office holding to the “natural born,” JJ was probably also following British precedent. Under the articles of settlement of 1701 (12 and 13 Will. III, c. 2, § 3) and 1714 (1 Geo. I, Stat. 2, c. 4), only natural-born persons were eligible for the Privy Council, either House of Parliament, and civil or military offices or places of trust. Under acts of 1740 and 1773 (13 George, 11, c. 7; 13 Geo. III, c. 21), foreign Protestants who resided in the colonies for seven years, took the requisite oaths, and met certain religious tests, were deemed “natural born subjects” and could hold local office, but were not entitled to hold office in either Great Britain or Ireland. The 1740 act adjusted the requirements for oaths to permit Quakers and Jews in the colonies to obtain the status of “natural born subject,” though again without the right to hold office in Britain or Ireland. According to the Providence Gazette of 15 May 1784, a bill was proposed in the House of Commons to award children of British mothers born abroad the status of “natural born Subject,” but the bill did not became law. On British, colonial, and state statutes, see 3–224.
For discussions of the controversies surrounding use of the term “natural born citizen,” and the question of the applicability of British law to the United States, see Jill A. Pryor, “The Natural Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty,” Yale Law Journal 97 (1988): 681–99; Christina S. Lohman, “Presidential Eligibility: The Meaning of the Natural Born Citizen Clause,” Gonzaga Law Review 36, 2 (2000–2001): 349–74; and Lawrence Friedman, “An Idea Whose Times Has Come—The Curious History, Uncertain Effect, and Need for Amendment of the ‘Natural Born Citizen’ Requirement for the Presidency,” St. Louis University Law Journal 52 (2007): 137–59.
Another possible source for JJ’s proposal to restrict office holding to “natural born citizens” is the writings of Emer de Vattel (1714–67), who discussed the subject in Chapter XIX of The Law of Nations. The edition that JJ owned, now in the Law Library of Columbia University, was The Law of Nations: or, Principles of the Law of Nature applied to the Conduct and Affairs of Nations and Sovereigns. Translated from the French. London: Printed for J. Newberry …, 1759–60; Vol. 2: Printed for J. Coote. This work defined “natives,” or “indigenes,” as those “born in the country of parents who are citizens,” and adds that “The country of the fathers is then that of the children; and these become true citizens, merely by their tacit consent”. If JJ, or other founders, were adapting Vattel’s terminology, the constitutional provision could require presidents to be born in the country of parents, or at least fathers, who were citizens. However, no evidence confirming such an intention has been found.
Proposals to extend the restriction on office holding to “natural born citizens” to other offices reappeared during 1798–99 during the Quasi-War with France, while JJ was governor of New York. At that time a number of states, including New York, adopted resolutions proposing a constitutional amendment requiring the Vice-President, members of Congress, and sometimes heads of the executive departments, to be “natural born citizens.” One part of these objectives was implemented by the twelfth amendment, passed by Congress in 1803 and ratified in 1804. In addition to establishing separate ballots for President and Vice-President in the electoral college, the amendment specified that no person who is “constitutionally ineligible” to be President can be Vice-President. It thereby required the Vice-President, like the President, be a “natural born citizen.” See Herman V. Ames, “The Proposed Amendments to the Constitution of the United States during the First Century of Its History,” Annual Report of the American Historical Association for the Year 1896 (2 vols.; Washington, D.C., 1897), 2: 30, 74, 77–80. For JJ’s recommendation of such a measure for serious consideration, see his letter of 5 Feb. 1799 to the New York State Senate, referring an amendment proposed by New Hampshire, printed in the New York Gazette, 13 Feb. 1799.
12. See SLJ, Invitations to Supper and Dinner, 1787–88, entry for 2 Aug. 1787; JJ to George Mason Jr., 9 Aug. 1787, below; JJ to WL, 9 Aug. 1787, MHi: Livingston (EJ: 4733), and [27 Aug. 1787], below.
14. JJ to William Short, 5 July 1787, below.