As chief justice, John Jay was exposed to the realities of New York’s political and military situation; as an ex officio member of the Council of Revision, he was required to participate in the legislative process; and as a presiding judge, he was called upon to administer justice in a state where outlawry and murder were as often as not associated with men’s political loyalties.1

Jay’s role in this situation must be determined from isolated documents like the report printed below. Although he did not resign from the court until 18 August 1779, his actual participation in state government ended on 6 November 1778, when he last sat on the Council of Revision.2 His service on the state bench began on 9 September 1777, when he presided over the first session of the supreme court at Kingston. The records of his activities as a presiding judge are incomplete, since there is a gap in the minutes of the Supreme Court of Judicature for the twelve months after that first session. The proceedings resume with the session of October 1778, at which Robert Yates presided in Jay’s absence.3

The surviving records demonstrate little if any change between the causes of action that came before the court during Jay’s service and those brought after his departure from New York in November 1778. At the September 1777 session, Jay and the puisne justices considered cases involving murder, assault, attempted rape, counterfeiting, and grand larceny. In supreme court sessions for 1778 and 1779, over half the indictments were brought for robbery and assault. Cases of counterfeiting, riot, and receiving stolen goods accounted for most of the other actions, while the only civil cases heard by the court in 1778–79 were actions of ejectment.4

This concern for the prosecution of acts of violence against persons or property is even more marked when one considers the frequency with which Jay and his associates were called upon to preside at courts of oyer and terminer. In the judicial system of provincial New York, “oyer and terminer” referred to specially commissioned courts called to try serious offenses that required adjudication before the next sitting of the local supreme court circuit. This usage continued under the new state government. Although justices of the supreme court presided at these sessions, courts of oyer and terminer were not considered sessions of the supreme court proper, and their minutes were not included in the records of the supreme court. Instead, such minutes were considered part of the judicial records of the counties in which courts of oyer and terminer were held. The fragmentary nature of New York county court records for this period makes it impossible to determine the number of special oyer and terminer sessions the supreme court justices were commissioned to hold. However, existing documents do place Jay at oyer and terminer sessions at Kingston in April 1778 and at Albany in September 1778, as well as at the Albany session reported below.5

The backgrounds of the prisoners tried at Albany in May 1778 are revealing of law enforcement problems during this period. The New-York Journal and the General Advertiser of 15 June 1778 described the felons convicted at that session as “tory criminals” and reported, “Their thefts and robberies they justified, under the pretense of the goods being lawful prizes, forfeited to the king.” A visitor to Albany who witnessed the proceedings at the city hall in May 1778 recalled that Jay “pronounced the awful sentence of death, and addressed them in a very solemn and affecting manner, calculated to rouse them to a sense of their dreadful condition, and in a moving and pathetic strain, enjoined it on them to prepare to meet their God.”6

To a devout Christian and firm Patriot like John Jay, the “dreadful condition” of the ten men whom he sentenced to the gallows was the more affecting because they were not only convicted murderers and thieves, but the political enemies of a state that was threatened by British regulars, Loyalist volunteers, and hostile Indians. In cases like these, it was impossible to draw the line between banditry and treason.