From John Jay
N. York 27 Jany 1792
As I shall be absent from the next sup: Court, obvious Considerations urge me to mention to You the Reasons of it. Early in the next month I expect an Addition to my family—Mrs Jay’s delicate Health (she having for more than three weeks past been confined to her chamber) renders that Event so interesting, that altho she is now much better, I cannot prevail on myself to be then at a Distance from her; especially as no Business of particular Importance either to the Public, or to Individuals, makes it necessary.1
Mr Burr’s motion gave me much Concern, and the Issue of it much Satisfaction. I regret that the Senate were not more unanimous—Similar Attempts in future may be encouraged by their having divided so equally on the Question—It is in my opinion a Question very important in its Consequences—so much so—that if the Senate should make and retain that Encroachment on the Executive, I should despair of seeing the Government well administred afterwards.2
I flatter myself that you recieved the Letter I had the Honor of writing to You on the 23d of Septr last.3 With perfect Respect Esteem & Attachment I am Dear Sir Your obliged & obedt Servant
ALS, DLC:GW; ADfS, NNC: Jay Papers.
1. John Jay wrote to John Adams on 10 Jan. 1792 that Sarah Livingston Jay had been confined to her chamber with “a severe Cold and Cough” for more than a week (DHSC description begins Maeva Marcus et al., eds. The Documentary History of the Supreme Court of the United States, 1789–1800. 8 vols. New York, 1985-2007. description ends , 1:730 n.5). She delivered a baby girl, the Jays’ fifth living child, in February. The February 1792 term of the Supreme Court convened in Philadelphia on 6 Feb., but associate justices Thomas Johnson and William Cushing were absent due to illness. A quorum was not achieved until Cushing arrived on 10 Feb. (ibid., 197). By then it was widely believed that Jay would not sit as chief justice at another session of the court. The group of Federalists that met in New York City on 9 Feb. nominated him for governor in opposition to the incumbent, George Clinton. A report of this meeting was published in the Philadelphia National Gazette on 15 February. William Loughton Smith had written to Edward Rutledge two days earlier and inquired whether or not Rutledge’s brother John would accept appointment as Jay’s successor. “If I thought he would,” Smith wrote, “I wod. put the business in train.” The burden of riding circuit, Smith stated, “has induced Mr Jay to quit the Bench; he was Seven months in the Year from his family, travelling about the Country.” He added, probably as an inducement to John Rutledge, that he hoped that Congress would abolish the requirement that the justices of the Supreme Court ride circuit (Marcus and Perry, Documentary History of the Supreme Court, description begins Maeva Marcus et al., eds. The Documentary History of the Supreme Court of the United States, 1789–1800. 8 vols. New York, 1985-2007. description ends 1:732). Congressman Benjamin Bourne explained to William Channing on 21 Feb. that Jay had explicitly refused to allow his name to be brought forward as a candidate until he had been told that there was “no likelihood of an alteration in the present arrangement of the Federal Judiciary” (ibid., 733). When the bitterly contested gubernatorial election was held in May, Jay received a narrow majority, but charges of voter fraud led to the invalidation of several hundred ballots in June, giving the election to Clinton, and sparing GW the necessity of appointing a new chief justice at this time.
2. On 16 Jan. the Senate divided 16–16 to set aside a motion “That there is not, in the opinion of the Senate, any present occasion that a Minister should be sent to the Hague.” Vice-President Adams broke the tie by voting to set aside the motion, clearing the way for William Short’s confirmation. The motion had been introduced on 12 Jan., apparently by Aaron Burr (see Executive Journal, description begins Journal of the Executive Proceedings of the Senate of the United States of America: From the commencement of the First, to the termination of the Nineteenth Congress. Vol. 1. Washington, D.C., 1828. description ends 1:96–98; see also GW to the U.S. Senate, 22 Dec. 1791, and The Controversy over Diplomatic Appointments to Great Britain, France, and the Netherlands, c.3 Jan. 1792, editorial note).