John Jay’s Charge to the Grand Jury of Ulster County (1777) and Charge to the Grand Juries (1790)

With Introduction and Annotations by Jerod Patterson

Introduction

Among John Jay's most admired and frequently cited public papers is his 1790 charge to the Grand Juries of the United States. Chief Justice Jay delivered this charge on at least four occasions throughout the months of April and May to Grand Juries of the newly formed Eastern circuit.[1] But this was not Jay's first charge to a Grand Jury. Nor even his first attempt to direct a newly formed court system. A decade prior to his appointment by President Washington to serve as the first Chief Justice of the United States, Jay had been elected by the New York Convention to serve as his home state's first Chief Justice. It was in this role that, on September 9, 1777, Jay delivered his first charge to a Grand Jury in Ulster County, New York, formally opening the state's court system.[2]

Composed entirely of local citizens, grand juries bear the responsibility of determining whether or not a charge brought against the accused warrants an indictment.[3] For Jay, an experienced and respected lawyer, the fate of the American experiment rested on the Americans' ability to justly uphold the law. In a system of self-government, the grand jury is where the rubber meets the road, so to speak. The most thoughtful and prudential constitutions are nonetheless dependent on the people of the state or republic to faithfully execute their civic duties. It is for this reason that Jay, as the first Chief Justice of New York and later of the United States, saw fit to impress upon the jurors the weight of their civic duty.

The formidable task before Jay in both of his Chief Justice roles was not merely to preside over courts, but to preside over their development at a time of unprecedented public anxiety concerning republican government, America's state of affairs, and the fledgling American cause itself. In 1777, New York was under invasion from the north as Gen. John Burgoyne positioned his army for the Saratoga campaign. The new state Constitution was young and untested, the capital had been hurriedly moved from city to city to avoid the British advance, and the city of Kingston in which Jay delivered his charge would be reduced to rubble just weeks later.[4]

Upon successfully securing American independence the situation in 1790 was less dire but nonetheless weighty. After the relative failure of the Articles of Confederation and extensive debate over the newly ratified federal Constitution, the state of the Union was tenuous at best. For Jay, the anxiety was palpable. He understood more than anyone that the fate of the young American republic was hanging in the balance, and that delay, error or abdication in pursuing the task of self-government would likely result in disaster.

In the charges themselves, Jay's remarks are notably broad. He addresses issues specific to the American context while carefully situating them in their broader philosophical and theological framework. The charges are, in fact, not merely statements on American law or even American government, but the contextualization of the American experiment as a new chapter in the centuries-old book of British political order. In essence, Jay uses the occasion of the task at hand--the opening of courts of law--to draw direct correlations between the traditional foundations of British political rights and order and their new manifestations in America's emerging federal system.

In the 1777 charge Jay takes particular care to preface his remarks with a justification for the overthrow of the British sovereign and the merit of the American cause. For Jay, civil authority is the extension of Divine authority and exercised for the purpose of ordering society wherein basic political rights may be secured. But while the King's violation of this divine principle justifies the American's cause, it also bestows upon them a heavy burden of responsibility. To that end, Jay turns his attention to boasting the merits of the new state Constitution and its provisions for justice, liberty and order.

In 1790, Jay again begins his charge with a lengthy apology on the legitimacy of America's republican government, this time carefully establishing the importance of public trust. In Jay's mind, the establishment of public trust in the government is the largest obstacle that the American people face in their experiment. Jay takes care to impress the weight of public servitude upon the Grand Juries. Based on the understanding of civil authority as a divine imperative, Jay explains that the responsibility of public servants is not only to their fellow countrymen, but ultimately to God. He also recognized the general unease that surrounded the new federal Constitution and attempted to assuage his audience's fears by assuring them that experience and reason have at the very least produced a Constitution that merits a fair and enthusiastic trial.

Jay spends the balance of his 1790 charge on highlighting the provisions for the judiciary in the federal Constitution, and reiterating basic principles of liberty and justice. For Jay, the proper execution of justice in courts of law is imperative for building public trust in the government and establishing ordered liberty, writing: "It is the duty and the interest, therefore, of all good citizens, in their several stations, to support the laws and the government which thus protect their rights and liberties."[5]

When understood in their historical context, these charges reveal two sides of Jay: the learned political thinker and the masterful politician. He recognized the complex challenges that a volatile political climate posed to the American people, and sought to direct and reinforce their confidence with his powerful and persuasive rhetorical style. But the true beauty of these documents is in the intricate fashion in which Jay seamlessly addressed this political reality while weaving together the traditional foundations of British political rights and order with the developing medium of American republicanism.

Together these charges afford valuable insight into the mind of one of America's most influential political thinkers, and arguably the most significant figure in the early formation of the American judiciary. It is interesting to note that Jay thought it necessary to devote so little time to detailing the actual responsibilities of the Grand Juries in them, focusing instead on much larger questions of liberty, justice, and political order, and situating the American context therein. But such details were of comparatively minimal importance to Jay who felt upon his shoulders the weight of the task assigned to him, for the task was not in the details, but in the divine consequences behind them.

Jerod Patterson is a research associate with the John Jay Institute for Faith, Society and Law in Colorado Springs, Colorado.

John Jay's

Charge to the Grand Jury of Ulster County (1777)

Gentlemen:

It affords me very sensible pleasure to congratulate you on the dawn of that free, mild, and equal government which now begins to rise and break from amid those clouds of anarchy, confusion, and licentiousness which the arbitrary and violent domination of Great Britain had spread in greater or less degree throughout this and the other American States. And it gives me particular satisfaction to remark that the first fruits of our excellent Constitution appear in a part of this State, whose inhabitants have distinguished themselves by having unanimously endeavored to deserve them. This is one of those signal instances in which Divine Providence has made the tyranny of princes instrumental in breaking the chains of their subjects, and rendered the most inhuman designs productive of the best consequences to those against whom they were intended.[7]

The infatuated sovereign of Britain[8], forgetful that kings were the servants, not the proprietors, and ought to be the fathers, not the incendiaries of their people, hath, by destroying our former constitutions, enabled us to erect more eligible systems of government on their ruins; and, by unwarrantable attempts to bind us in all cases whatever, has reduced us to the happy necessity of being free from his control in any.

Whoever compares our present with our former Constitution[9] will find abundant reason to rejoice in the exchange, and readily admit that all the calamities incident to this war will be amply compensated by the many blessings flowing from this glorious revolution[10]--a revolution which, in the whole course of its rise and progress, is distinguished by so many marks of the Divine favor and interposition, that no doubt can remain of its being finally accomplished. It was begun and has been supported in a manner so singular, and I may say miraculous, that when future ages shall read its history they will be tempted to consider a great part of it as fabulous. What, among other things, can appear more unworthy of credit than that, in an enlightened age, in a civilized and Christian country, in a nation so celebrated for humanity as well as love of liberty and justice as the English once justly were, a prince should arise who, by the influence of corruption alone, should be able to reduce them into a combination to reduce three million of his most loyal and affectionate subjects to absolute slavery, under a pretence of a right, appertaining to God alone, of binding them in all cases whatever, not even excepting cases of conscience and religion?[11]

What can appear more improbable, although true, than that this prince and his people should obstinately steel their hearts and shut their ears against the most humble petitions and affectionate remonstrances,[12] and unjustly determine by violence and force to execute designs which were reprobated by every principle of humanity, equity, gratitude, and policy--designs which would have been execrable if intended against savages and enemies, and yet formed against men descended from the same common ancestors as themselves[13]--men who had liberally contributed to their support and cheerfully fought their battles even in remote and baleful climates.[14] Will it not appear extraordinary that thirteen colonies, the object of their wicked designs, divided by variety of governments and manners, should immediately become one people, and though without funds, without magazines[15], without disciplined troops, in the face of their enemies, unanimously determine to be free, and, undaunted by the power of Britain, refer their cause to the justice of the Almighty, and resolve to repel force by force, thereby presenting to the world an illustrious example of magnanimity and virtue scarcely to be paralleled? Will it not be matter of doubt and wonder, that notwithstanding these difficulties, they should raise armies, establish funds, carry on commerce, grow rich by the spoils of their enemies, and bid defiance to the armies of Britain, the mercenaries of Germany, and the savages of the wilderness? But, however incredible these things may in the future appear, we know them to be true; and we should always remember that the many remarkable and unexpected means and events by which our wants have been supplied and our enemies repelled or restrained, are such strong and striking proofs of the interposition of Heaven, that our having been hitherto delivered from the threatened bondage of Britain ought, like the emancipation of the Jews from Egyptian servitude, to be forever ascribed to its true cause; and instead of swelling our breasts with arrogant ideas of our powers and importance, kindle in them a flame of gratitude and piety which may consume all remains of vice and irreligion.[16]

Blessed be God! The time will now never arrive when the prince of a country in another quarter of the globe will command your obedience, and hold you in vassalage.[17] His consent has ceased to be necessary to enable you to enact laws essential to your welfare; nor will you in future be subject to the imperious sway of rulers instructed to sacrifice your happiness whenever it might be inconsistent with the ambitious views of their royal master. The Americans are the first people whom Heaven has favored with an opportunity of deliberating upon, and choosing the forms of government under which they should live.[18] All other constitutions have derived their existence from violence or accidental circumstances, and are therefore probably more distant from their perfection, which, though beyond our reach, may nevertheless be approached under the guidance of reason and experience.

How far the people of this State have improved this opportunity, we are at a loss to determine. Their constitution has given general satisfaction at home, and been not only approved but applauded abroad. It would be a pleasing task to take a minute view of it, to investigate its principles and remark the connection and use of its several parts; but that would be a work of too great length to be proper on this occasion. I must therefore confine myself to general observations, and among those which naturally arise from a consideration of this subject, none are more obvious than that the highest respect has been paid to those great and equal rights of human nature, which should forever remain inviolate in every society, and that such care has been taken in the disposition of the legislative, executive, and judicial powers of government, as to promise permanence to the constitution, and give energy and impartiality to the distribution of justice. So that while you possess wisdom to discern and virtue to appoint men of worth and abilities to fill the offices of the State, you will be happy at home and respectable abroad. Your lives, your liberties, your property, will be at the disposal only of your Creator and yourselves.

You will know no power but such as you will create; no authority unless derived from your grant; no laws but such as acquire all their obligation from your consent.[19]

Adequate security is also given to the rights of conscience and private judgment. They are by nature subject to no control but that of the Deity, and in that free situation they are now left. Every man is permitted to consider, to adore, and to worship his Creator in the manner most agreeable to his conscience. No opinions are dictated, no rules of faith prescribed, no preference given to one sect to the prejudice of others. The constitution, however, has wisely declared, that the "liberty of conscience thereby granted shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State." In a word, the convention by whom that constitution was formed were of opinion that the gospel of Christ, like the ark of God, would not fall, though unsupported by the arm of flesh; and happy would it be for mankind if that opinion prevailed more generally.

But let it be remembered that whatever marks of wisdom, experience, and patriotism there may be in your constitution, yet like the beautiful symmetry, the just proportion, and elegant forms of our first parents before their Maker breathed into them the breath of life,[20] it is yet to be animated, and till then may indeed excite admiration, but will be of no use: from the people it must receive its spirit and by them be quickened. Let virtue, honor, the love of liberty and of science be and remain the soul of this constitution, and it will become the source of great and extensive happiness to this and future generations. Vice, ignorance, and want of vigilance will be the only enemies able to destroy it. Against these be forever jealous. Every member of the State ought diligently to read and to study the constitution of his country, and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.

This, gentlemen, is the first court held under the authority of our constitution, and I hope its proceedings will be such as to merit the approbation of the friends, and avoid giving cause of censure to the enemies of the present establishment.

It is proper to observe that no person in this State, however exalted or low his rank, however dignified or humble his station, but has a right to the protection of, and is amenable to, the laws of the land; and if those laws be wisely made and duly executed, innocence will be defended, oppression punished, and vice restrained. Hence it becomes the common duty, and indeed the common interest of those concerned in the distribution of justice, to unite in repressing the licentious, in supporting the laws, and thereby diffusing the blessings of peace, security, order and good government, through all degrees and ranks of men among us.

I presume it will be unnecessary to remind you that neither fear, favor, resentment, or other personal and partial considerations should influence your conduct. Calm, deliberate, reason, candor, moderation, a dispassionate and yet a determined resolution to do your duty, will, I am persuaded, be the principles by which you will be directed. You will be pleased to observe that all offences committed in this country against the people of this State, from treason to trespass, are proper objects of your attention and inquiry.

You will pay particular attention to the practice of counterfeiting bills of credit, emitted by the General Congress, or either of the American States, and of knowingly passing such counterfeits--practices no less criminal in themselves than injurious to the interests of that great cause, on the success of which the happiness of America so essentially depends.

John Jay's

Charge to the Grand Juries [21] (1790)

Whether any people can long govern themselves in an equal, uniform, and orderly manner, is a question which the advocates for free government justly consider as being exceedingly important to the cause of liberty. This question, like others whose solution depends on facts, can only be determined by experience. It is a question on which many think some room for doubt still remains. Men have had very few fair opportunities of making the experiment; and this is one reason why less progress has been made in the science of government than in almost any other. The far greater number of the constitutions and governments of which we are informed have originated in force or in fraud, having been either imposed by improper exertions of power, or introduced by the arts of designing individuals, whose apparent zeal for liberty and the public good enabled them to take advantage of the credulity and misplaced confidence of their fellow citizens.[22]

Providence has been pleased to bless the people of this country with more perfect opportunities of choosing, and more effectual means of establishing their own government, than any other nation has hitherto enjoyed; and for the use we may make of these opportunities and of these means we shall be highly responsible to that Providence, as well as to mankind in general, and to our own posterity in particular.[23] Our deliberations and proceedings being unawed and uninfluenced by power or corruption, domestic or foreign, are perfectly free; our citizens are generally and greatly enlightened, and our country is so extensive that the personal influence of popular individuals can rarely embrace large portions of it. The institution of general and State governments, their respective conveniences and defects in practice, and the subsequent alterations made in some of them, have operated as useful experiments, and conspired to promote our advancement in this interesting science. It is pleasing to observe that the present national government already affords advantages which the preceding one proved too feeble and ill-constructed to produce.[24] How far it may be still distant from the degree of perfection to which it may possibly be carried, time only can decide. It is a consolation to reflect that the good-sense of the people will be enabled by experience to discover and correct its imperfections, especially while they continue to retain a proper confidence in themselves, and avoid those jealousies and dissensions which, often springing from the worst designs, frequently frustrate the best measures.

Wise and virtuous men have thought and reasoned very differently respecting government, but in this they have at length very unanimously agreed, viz., that its powers should be divided into three distinct, independent departments--the executive, legislative and judicial. But how to constitute and balance them in such a manner as best to guard against abuse and fluctuation, and preserve the Constitution from encroachments, are points on which there continues to be a great diversity of opinions, and on which we have all as yet much to learn. The Constitution of the United States has accordingly instituted these three departments, and much pains have been taken so to form and define them as that they may operate as checks one upon the other, and keep each within its proper limits; it being universally agreed to be of the last importance to a free people, that they who are vested with executive, legislative, and judicial powers should rest satisfied with their respective portions of power, and neither encroach on the provinces of each other, nor suffer themselves to intermeddle with the rights reserved by the Constitution to the people. If, then, so much depends on our rightly improving the before-mentioned opportunities, if the most discerning and enlightened minds may be mistaken relative to theories unconfirmed by practice, if on such difficult questions men may differ in opinion and yet be patriots, and if the merits of our opinions can only be ascertained by experience, let us patiently abide the trial, and unite our endeavors to render it a fair and an impartial one.

These remarks may not appear very pertinent to the present occasion, and yet it will be readily admitted that occasions of promoting good-will, and good-temper, and the progress of useful truths among our fellow-citizens should not be omitted. These motives urge me further to observe, that a variety of local and other circumstances rendered the formation of the judicial department particularly difficult.

We had become a nation. As such we were responsible to others for the observance of the Laws of Nations; and as our national concerns were to be regulated by national laws, national tribunals became necessary for the interpretation and execution of them both. No tribunals of the like kind and extent had heretofore existed in this country. From such, therefore, no light of experience nor facilities of usage and habit were to be derived. Our jurisprudence varied in almost every State, and was accommodated to local, not general convenience; to partial, not national policy. This convenience and this policy were nevertheless to be regarded and tenderly treated. A judicial control, general and final, was indispensable; the manner of establishing it with powers neither too extensive nor too limited, rendering it properly independent, and yet properly amenable, involved questions of no little intricacy.

The expediency of carrying justice, as it were, to every man's door, was obvious; but how to do it in an expedient manner was far from being apparent. To provide against discord between national and State jurisdictions, to render them auxiliary instead of hostile to each other, and so to connect both as to leave each sufficiently independent, and yet sufficiently combined, was and will be arduous. Institutions formed under such circumstances should therefore be received with candor and tried with temper and prudence. It was under these embarrassing circumstances that the articles in the Constitution on this subject, as well as the act of Congress for establishing the judicial courts of the United States were made and passed. Under the authority of that act, this court now sits. Its jurisdiction is twofold, civil and criminal. To the exercise of the latter you, gentlemen, are necessary, and for that purpose are now convened.[25]

The most perfect constitutions, the best governments, and the wisest laws are vain, unless well administered and well obeyed. Virtuous citizens will observe them from a sense of duty, but those of an opposite description can be restrained only by fear of disgrace and punishment. Such being the state of things, it is essential to the welfare of society, and to the protection of each member of it in the peaceable enjoyment of his rights, that offenders be punished. The end of punishment, however, is not to expiate for offences, but by the terror of example to deter men from the commission of them.[26] To render these examples useful, policy as well as morality requires not only that punishment be proportionate to guilt, but that all proceedings against persons accused or suspected, should be accompanied by the reflection that they may be innocent. Hence, therefore, it is proper that dispassionate and careful inquiry should precede these rigors which justice exacts, and which should always be tempered with as much humanity and benevolence as the nature of such cases may admit. Warm, partial, and precipitate prosecutions, and cruel and abominable executions, such as racks, embowelling, drawing, quartering, burning and the like, are no less impolitic than inhuman; they infuse into the public mind disgust at the barbarous severity of government, and fill it with pity and partiality for the sufferers. On the contrary, when offenders are prosecuted with temper and decency, when they are convicted after impartial trials, and punished in a manner becoming the dignity of public justice to prescribe, the feelings and sentiments of men will be on the side of government; and however disposed they may and ought to be, to regard suffering offenders with compassion, yet that compassion will never be unmixed with a due degree of indignation. [27] We are happy that the genius of our laws is mild, and we have abundant reason to rejoice in possessing one of the best institutions that ever was devised for bringing offenders to justice without endangering the peace and security of the innocent. I mean that of Grand Juries. Greatly does it tend to promote order and good government that in every district there should frequently be assembled a number of the most discreet and respectable citizens in it, who on their oaths are bound to inquire into and present all offences committed against the laws in such districts, and greatly does it tend to the quiet and safety of good and peaceful citizens, that no man can be put in jeopardy for imputed crimes without such previous inquiry and presentment.

The extent of your district, gentlemen, which is commensurate with the State, necessarily extends your duty throughout every county in it, and demands proportionate diligence in your inquiries and circumspection in your presentments. The objects of your inquiry are all offences committed against the laws of the United States in this district, or on the high seas, by persons now in the district. You will recollect that the laws of nations make part of the laws of this and of every other civilized nation. They consist of those rules for regulating the conduct of nations towards each other which, resulting from right reason, receive their obligations from that principle and from general assent and practice. To this head also belong those rules or laws which by agreement become established between particular nations, and of this kind are treaties, conventions, and the like compacts; as in private life a fair and legal contract between two men cannot be annulled nor altered by either without the consent of the other, so neither can treaties between nations. States and legislatures may repeal their regulating statutes, but they cannot repeal their bargains. Hence it is that treaties fairly made and concluded are perfectly obligatory, and ought to be punctually observed. We are now a nation, and it equally becomes us to perform our duties as to assert our rights. The penal statutes of the United States are few, and principally respect the revenue. The right ordering and management of this important business is very essential to the credit, character, and prosperity of our country. On the citizens at large is placed the burthen of providing for the public exigencies; whoever, therefore, fraudulently withdraws his shoulder from that common burthen[28] necessarily leaves his portion of the weight to be borne by the others, and thereby does injustice not only to the government but to them.

Direct your attention also to the conduct of the national officers, and let not any corruptions, frauds, extortions, or criminal negligences, with which you may find any of them justly chargeable, pass unnoticed. In a word, gentlemen, your province and your duty extend (as has been before observed) to the inquiry and presentment of all offences of every kind committed against the United States in this district or on the high seas by persons in it. If in the performance of your duty you should meet with difficulties, the court will be ready to afford you proper assistance.

It cannot be too strongly impressed on the minds of us all how greatly our individual prosperity depends on our national prosperity, and how greatly our national prosperity depends on a well organized, vigorous government, ruling by wise and equal laws, faithfully executed; nor is such a government un-friendly to liberty--to that liberty which is really inestimable; on the contrary, nothing but a strong government of laws irresistibly bearing down arbitrary power and licentiousness can defend it against those two formidable enemies. Let it be remembered that civil liberty consists not in a right to every man to do just what he pleases, but it consists in an equal right to all the citizens to have, enjoy, and to do, in peace, security, and without molestation, whatever the equal and constitutional laws of the country admit to be consistent with the public good. It is the duty and the interest, therefore, of all good citizens, in their several stations, to support the laws and the government which thus protect their rights and liberties.

I am persuaded, gentlemen, that you will cheerfully and faithfully perform the task now assigned you, and I forbear, by additional remarks, to detain you longer from it.

ENDNOTES

[1] Henry Johnston, The Correspondence and Public Papers of John Jay (New York: Burt Franklin, 1890), Vol. 3, 387.

[2] Public Papers, Vol. 1, 158.

[3] The 1777 Grand Jury of Ulster County was said to be composed of "the most respectable characters in the County," and the charge was published for the public at their request. Public Papers, Vol. 1, 158.

[4] William Jay, The Life of John Jay: With Selections from His Correspondence and Miscellaneous Papers (New York: J&J Harper, 1833), Vol. 1, 275.

[5] Public Papers, Vol. 3, 395.

[6] Public Papers, Vol. 1, 158-165.

[7] Jay often refers to "Divine Providence" or simply "Providence," meaning the idea of God's direct interposition on behalf of the American colonists.

[8] Jay is speaking of King George III, who reigned as King of Great Britain and Ireland from October 1760 until his death on January 29, 1820.

[9] The New York Convention, the provisional governing body for the state, adopted a new State Constitution on April 20, 1777. Jay was an ardent supporter of the Constitution, of which he played the major role in drafting, even though took exception to certain provisions that were inserted during his absence from the Convention.

[10] Jay's use of the phrase "glorious revolution" is notable for its identification of the American cause of independence with Britain's "Glorious Revolution" (also known as the "The Revolution of 1688" or the "Bloodless Revolution") in which King James II, a Roman Catholic, was deposed and succeeded by his Anglican daughter Mary II and her husband William III as joint sovereigns. For a more detailed analysis of this era in British history a useful resource is Christopher Hill's The Century of Revolution 1603-1714 (London: W.W. Norton & Co., 1980). Not only did this revolution put a symbolic end to a tumultuous era in British history, both politically and religiously, but it highlights the uniqueness of the British notion of kingship over and against the Roman Catholic idea of "divine right."

[11] Jay's justification for the overthrow of British rule again harkens back to the Revolution of 1688, wherein a Convention Parliament declared that King James II violated the sacred trust and responsibility of the kingship for its subjects in, among other things, fleeing to France and vacating the throne. Just as this occasioned the instillation of a new sovereign by the Parliament, Jay argued from the same rationale that King George III's violations justified the American cause.

[12] Jay was a reluctant patriot who, prior to the Declaration of Independence, resisted the independence movement, arguing instead for petition and redress. He drafted the First Continental Congresses' "Address to the People of Great Britain" (1774). For more on this part of Jay's life, see Walter Stahr's John Jay (New York: Hambledon & Continuum, 2006), Ch. 3.

[13] Jay strongly identifies the American colonies with the history and heritage of the British people, sharing the same tradition of political and human rights.

[14] The American colonists had on prior occasion served their king and country in war, including the most recent "Seven Years War" or "French and Indian War" (1756-63).

[15] "Magazines" refers to armories, or storage places, for ammunition and sometimes weapons.

[16] The Exodus motif was frequently invoked by the Americans during the struggle for independence. Jay's rhetoric is consonant with that of his contemporaries who had sometimes referred to America as "Our American Israel." Thomas Jefferson, in fact, suggested that America's national seal be a depiction of the people of Israel being guided by pillars of cloud and fire. For more on this see Michael Novak's discussion of Jewish Metaphysics and the American founding in On Two Wings: Humble Faith and Common Sense at the American Founding (San Francisco: Encounter Books, 2002).

[17] It is interesting that Jay invokes the idea of deliverance from "vassalage" in this context considering his indebtedness to the Hebrew Scriptures, as much of ancient Israel's history in the centuries leading up to and following the Babylonian exile involved vassalage to foreign powers.

[18] Note the confluence of Jay's understandings of civil authority, the nature of kingship in the British tradition, and Divine Providence. Drawing on the premise that civil authority is the extension of divine authority and thus a divine imperative (see introduction), coupled with his earlier assertion that King George III had violated the sacred trust and rights of the American colonists and thus forfeited his kingly authority (see footnotes 9 & 10), Jay argued that the Americans now bore the weighty responsibility to ensure for their own self-government following God's interposition of their behalf in the form of independence (see footnote 6).

[19] Given Jay's previously articulated views on civil authority, he takes great care here to impress the gravity of the task at hand on his audience both as jurors and citizens generally. The divine imperative to implement a form of self-government that upholds justice called on each of them to labor towards its success in establishing justice, providing for political and human rights, and promoting a nation of a good and charitable people.

[20] Jay refers again to the Hebrew Scriptures in this allusion to Adam and Eve from the Yahwistic creation narrative in Genesis 2:4-3:24.

[21] Public Papers, Vol. 3, 387-395. The document is endorsed: "The charges of Chief Justice Jay to the Grand Juries on the Eastern circuit at the circuit Court's held in the Districts of New York on the 4th, of Connecticut on the 22nd days of April, of Massachusetts on the 4th, and of New Hampshire on the 20th days of May, 1790."

[22] Jay contrasts the American experience, which sought to remain in solidarity with its inherited legal tradition, with other revolutions of the day that did not, e.g. France.

[23] Jay again refers to "Providence" not only as the source of deliverance from tyranny, but as simultaneously bestowing the responsibility on the American people to institute a system of government that secures the rights of mankind. (See footnotes 6 & 17).

[24] An important goal for Jay in this charge was to provide an apology for the new United States Constitution (1789). Recognizing the failure of the Articles of Confederation to adequately provide a stable framework for the federal government, this new Constitution had been drafted by a Constitutional Convention in Philadelphia, and Jay subsequently authored five of the "Federalist Papers" that were circulated with the aim of persuading support for its ratification. Because Jay recognized public trust of the government to be of foundational importance for the functioning of a republican government, his apology was intended to promote public faith in the legitimacy and reliability of the new Constitution, having only been ratified the previous year amidst a great deal of public debate.

[25] Here Jay establishes the legitimacy of the present Grand Jury from the duly ratified Constitution. The Constitution addresses the federal Judiciary in Article Three, and the provisions of the Judiciary Act of 1789 established the various districts and courts that Jay was visiting and administering this charge to.

[26] Jay was a devout Bible reader and this paragraph bears resemblance to the content of St. Paul's letter to the Romans 13:1-7.

[27] Concerning the punishment of offenders of the law, justice should be sensibly exacted because legitimate government must respect the dignity and sanctity of human life at all times. Jay again connects this with public trust as a common thread throughout his charge. This underscores the crux of his charge to the jurors: to recognize and accept their weighty civic responsibility as administrators and guardians of justice, and to faithfully execute it, whereas the fate of the government and the nation hangs in the balance.

[28] i.e. burden.

Copyright ©2006 by the John Jay Institute for Faith, Society and Law.

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