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Robert R. Livingston, all of whom, like Mr. Jay, subsequently pursued with distinction the legal profession, were among his college acquaintances. He graduated on the 15th May, 1764, with the highest collegiate honors, having been selected to speak the Latin salutatory.
The father and grandfather of Mr. Jay had been merchants. That honorable pursuit, however, did not agree with the tastes and inclinations of the young graduate. The choice of a profession being left to him, he selected that of the law, and entered the office of Mr. Benjamin Kissam, an eminent practitioner in the city of New York.
We have no very accurate account of the incidents attending the clerkship and preparatory studies of the future Chief-Justice—they were probably much the same as those which are familiar to the experience of every student. „ It must be recollected, that in those days, a preparation for the legal profession was not, az it often is at present, an agreeable recreation. It was a real labor, and often a drudgery. Printed blank forms were unknown, and every thing was written, even the argument of questions of law. The labors of a clerkship were consequently very arduous, and a large portion of the time of the student was occupied in attention to office duties. Nor were elementary treatises-those ready and convenient aids in acquiring the elements of the profession--so plenty then as now. Finch's Law, Wood's Institutes, or Coke upon Littleton were the books usually placed in the hands of the student at the commencement of his clerkship, each of which, to use the words of Lord Mansfield, applied to Coke, may be called “an uncouth, crabbed author, who has disappointed and disheartened many a tyro." The first volume of Blackstone's Commentaries was published in England in 1765, the second part some three years later. Up to this time the difficulty of selecting the book which should initiate the student in the elementary principles of law, is admitted by Lord Mansfield "Till of late," he says, “I could never with any satisfaction to myself answer that question, but since the publication of Mr. Blackstone's Commentaries, I can never be at a loss." In entering upon his clerkship, however, Jay had not the advantage of this admirable treatise, and, therefore, unlike those students who have succeeded him, could not, ab initio, . "imbibe imperceptibly (quoting again the words of Lord Mansfield,) the first principles upon which our excellent laws are founded." To him, as to others in those times, the labor was tedious and toilsome; but at the same time it was a healthy intellectual exercise, and a vigorous mental discipline. *
Between Mr. Jay and the estimable gentleman in whose office he read law, the most entire confidence existed,
* The reader may be curious to learn the course of legal study which in Jay's time was recommended to the student. The following extracts are made from an old manuscript manuel in my possession, bearing date 1768. It is in the handwriting and was the property of a cotemporary of Mr. Jay, then a student-at-law in the office of William Smith, the historian of New York.
“But now I bring our student home to the studies of his profession of the law, and I would advise him to read these books, in the following order:
“First, for the knowledge of the law in general:
"1. The treatise of laws in Wood's Institutes of the Civil Law, or in Domat, which are both the same.
“2. Puffendorf de Officio Hominis et Civis, or an English translation of it called “ The Whole Duty of Man according to the Law of Nature,” or the abridgment of Puffendorf, in two volumes, by Spavin.”
And before entering further into the law of Nature and Nations and the Civil Law, the writer advises a general study of the elements of the Common Law, in the following order:
“Hall's History of the Common Law. “Fortescue's Practice of the Laws of England. “Sir Thomas Smith's De Republica Anglorum. " The first book of Doctor and Student, De Fundamentum lægum Anglia. "The second part of Bacon's Elements.
Wood's Institutes of the Common Law.” After recommending a farther and more extensive reading of the Law of Nature and Nations and the Civil Law, he remarks:
Then to fill up and enlarge your ideas you may read Bacon's Abridgment of the law, which it is presumed will all be soon published. In reading this Abridgment, which is contrived so as to be read pleasantly, I would advise that you constantly refer from the Abridgment to Wood, and from Wood to the Abridgment, because I would have these books the basis or foundation of all your studies."
which gradually ripened into familiarity and friendship. This is attested by several letters written by Mr. Kissam to Mr. Jay. In one of these, dated soon after Jay was admitted to the bar, Mr. Kissam, in a tone of playful and friendly familiarity, compliments his pupil upon having successfully tried several causes for him, which, he says, was done “by a kind of inspiration." Alluding to one cause in which Jay was opposed to him, Mr. Kissam remarks, "As to the cause about Captain's Island, this, tell Mr. Morris, must go off; because as you are concerned against me, I can't tell where to find another into whose head the cause can be infused in the miraculous way of inspiration, and without this it would be rather too intricate for anyone to manage from my short hints."
Mr. Kissam and Mr. Jay were frequently opposed to each other in the trial or on the argument of a cause. On one of these occasions, being hard pressed in the argument, the former remarked, “I have brought up a bird to pick out my own eyes.” “Not so," retorted Jay, “not to pick out, but to open your eyes.''*
On entering upon the practice of law, Mr. Jay associated himself with his relative, Robert R. Livingston, the future chancellor, but the connection was soon dissolved. From his debut as an advocate in the colonial courts, it is said he entered upon a lucrative practice, and continued it down to the period of the revolutionary war. I have not been able, however, to draw from the imperfect record of colonial jurisprudence any very satisfactory information respecting his forensic career,+ or even the more important causes in which he was engaged. The race of reporters did not exist in those days, and the colonial decisions and adjudged cases with which the names of Jay, Livingston, Benson, Morris, Duane and their cotemporaries were identified must remain for us a lost and comparatively forgotten reccord. * Suffice it then to say that the practice of Mr. Jay during these six or eight years was extensive and lucrative, that he exhibited professional ability of the highest order, and that he acquired an eminent and proud position as an advocate at the New York bar.
* Life of John Jay, by his son, William Jay.
+ It may be mentioned as a fact interesting to the legal profession, that in 1770 the young lawyers of New York formed a club called “The Moot," at which legal questions were discussed and argued in form. Some of the records of this club are still preserved. Its decisions acquired great authori. ty, and the questions discussed and decided were considered as professionally settled. Among the junior members of the club were Jay, R. R. Livingston, James Duane, Egbert Benson, Gouverneur Morris, and Peter Van Schaack. The older members of the bar also regularly attended and participated in these discussions and arguments, and among them are found the names of those veteran lawyers, William Smith, Samuel Jones, William Livingston, Benjamin Kissam, John M. Scott, and Richard Morris.
But the quiet and peaceful course of professional life was about to be broken. The contest between the colonies and the mother country commenced. The young lawyer was summoned from his briefs and his cases, from his books and his precedents, to a nobler and more enlarged field of action. Nor did John Jay turn an unwilling ear to the summons. While others hesitated and wavered, while some of his own friends and intimate associates counselled submission or passive nonresistance, his voice was raised among the first in opposition to the arbitrary measures of Great Britain. On the 16th of May, 1774, Mr. Jay attended the first meeting of the citizens of New York called to "iconsult on measures proper to be pursued in consequence of the late extraordinary advices received from England." The result of that meeting was the appointment of a committee of fifty, of which Jay was one, and a subsequent report, said to be from his pen, which recommended the convocation of a Congress of deputies from the thirteen colonies.
* The author of the Life of William Livingston thinks we have lost very little in this respect. “An examination of Mr. Livingston's registers and business letters,” he says, “would much tend to diminish any regret which may be felt for the want of colonial reports. A great number of the cases are suits for the collection of debts owned by English merchants; and causes under the complex law of ejectment, now so happily exploded, form another large class."-Sedgwick's Life of Liringston, p. 71.
The recommendation was adopted. A Congress was called and convened at Philadelphia, on the 5th of September, 1774. Jay was elected a member from New York, and took his seat on the first day of the session. Though one of the youngest members of the congress, being then only in his twenty-ninth year, he was placed upon the committee to draft an address to the people of Great Britain. That celebrated address is from his pen. It had been composed and written by Jay in the room of an obscure tavern. It was reported to Congress by Mr. Livingston, and adopted as the work of the entire committee, and its paternity was not immediately known.
Jefferson attributed it to Gov. Livingston, by whom it had been reported, as chairman of the committee, and told that gentleman that he regarded it as "the production of the finest pen in America." The author of the life of Jefferson states, that this coming to the ears of Mr. Jay, he was at some pains to set Jefferson right in the matter and assert his own claims to its authorship.
Of the proceedings of this Congress it is not necessary now to speak. It was composed of fifty-five members. Among them were the distinguished orators from Virginia, Patrick Henry and Richard Henry Lee.* The debate was opened by Mr. Henry in a speech of matchless power and eloquence-a vivid and glaring description of which has been drawn by the graphic pen of Mr. Wirt. Richard Henry Lee followed, and charmed with his graceful eloquence an audience that had been spell-bound by the more potent declamation of his colleague. As he closed, Mr. Chase, a delegate from Maryland, whispered into the ear of one of his colleagues, " we may as well go home; we cannot legislate with these men." The whole assembly seemed to acknowledge their superiority. Lee was made chairman of the committee to prepare the address to the people of Great Britain ; and Henry of the committee to prepare the
* Prof. Tucker remarks in his Life of Jefferson, that though Henry and Lee bore the palm for eloquence in debate, yet "for that of the pen, the first place must unquestionably be awarded to Mr. Jay, of New York."