First Supreme Court Chief Justice
John Jay

Founding Father John Jay (1745-1829) was appointed by President George Washington as the first Chief Justice of the United States Supreme Court. In addition to serving on the Supreme Court, Jay had a very distinguished history of public service. He was a member of the Continental Congress (1774-76, 1778-79) and served as President of Congress (1778-79); he helped write the New York State constitution (1777); he authored the first manual on military discipline (1777); he served as Chief-Justice of New York Supreme Court (1777-78); he was appointed minister to Spain (1779); he signed the final peace treaty with Great Britain (1783); and he was elected as Governor of New York (1795- 1801).

Jay is also famous as one of the three coauthors, along with James Madison and Alexander Hamilton, of the Federalist Papers, which were instrumental in securing the ratification of the federal Constitution.

John Jay was a strong Christian, serving both as vice-president of the American Bible Society (1816-21) and its president (1821- 27), and he was a member of American Board of Commissioners for Foreign Missions. In this series of letters, John Jay expounds on the Biblical view of war.

Letter 1

. . . .

Whether war of every description
is prohibited by the gospel, is one of those questions on which the excitement
of any of the passions can produce no light. An answer to it can result only
from careful investigation and fair reasoning.

It appears to me that the gospel not only recognizes
the whole moral law, and extends and perfects our knowledge of it, but also
enjoins on all mankind the observance of it. Being ordained by a legislator of
infinite wisdom and rectitude, and in whom there is “no variableness,” it must
be free from imperfection, and therefore never has, nor ever will require
amendment or alteration. Hence I conclude that the moral law is exactly the
same now that it was before the flood.

That all those wars and fightings
are unlawful, which proceed from culpable desires and designs (or in Scripture
language from lusts), on the one side or on the other, is too clear to require
proof. As to wars of an opposite description, and many such there have been, I
believe they are as lawful to the unoffending party in our days, as they were
in the days of Abraham. He waged war against and defeated the five kings. He
piously dedicated a tenth of the spoils; and, instead of being blamed, was blessed.

What should we think of a human legislator
who should authorize or encourage infractions of his own laws ? If wars of
every kind and description are prohibited by the moral law, I see no way of
reconciling such a prohibition with those parts of Scripture which record
institutions, declarations, and interpositions of the Almighty which manifestly
evince the contrary. If every war is sinful, how did it happen that the sin
of waging any war is not specified among the numerous sins and offenses which
are mentioned and reproved in both the Testaments?

To collect and arrange the many
facts and arguments which relate to this subject would require more time and
application than I am able to bestow. The aforegoing are hinted merely to
exhibit some of the reasons on which my opinion rests.

It certainly is very desirable
that a pacific disposition should prevail among all nations. The most effectual
way of producing it is by extending the prevalence and influence of the gospel.
Real Christians will abstain from violating the rights of others, and therefore
will not provoke war.

Almost all nations have peace or
war at the will and pleasure of rulers whom they do not elect, and who are not
always wise or virtuous. Providence has given to our people the choice of their
rulers, and it is the duty as well as the privilege and interest of our
Christian nation to select and prefer Christians for their rulers.

. . . .

Letter 2

In my letter to you of the 16th
October last, I hinted that I might perhaps write and send you a few more lines
on the question, whether war of every description is forbidden by the gospel.

I will now add some remarks to
those which were inserted in my answer to your first letter. In that answer,
the lawfulness of war, in certain cases, was inferred from those Divine
positive institutions which authorized and regulated it. For although those
institutions were not dictated by the moral law, yet they cannot be understood
to authorize what the moral law forbids.

The moral or natural law was given
by the Sovereign of the universe to all mankind; with them it was co-eval, and
with them it will be co-existent. Being rounded by infinite wisdom and goodness
on essential right, which never varies, it can require no amendment or

Divine positive ordinances and
institutions, on the other hand, being founded on expediency, which is not
always perpetual or immutable, admit of, and have received, alteration and
limitation in sundry instances.

There were several Divine positive
ordinances and institutions at very early periods. Some of them were of limited
obligation, as circumcision; others of them were of universal obligation, as
the Sabbath, marriage, sacrifices, the particular punishment for murder.

The Lord of the Sabbath caused the day to be changed. The
ordinances of Moses suffered the Israelites to exercise more than the original
liberty allowed to marriage, but our Savior repealed that indulgence. When
sacrifices had answered their purpose as types of the great Sacrifice, etc.,
they ceased. The punishment for murder has undergone no alteration, either by
Moses or by Christ.

I advert to this distinction between the moral law and
positive institutions, because it enables us to distinguish the reasonings
which apply to the one, from those which apply only to the other—ordinances
being mutable, but the moral law always the same.

To this you observe, by way of objection, that the law was
given by Moses, but that grace and truth came by Jesus Christ; and hence that,
even as it relates to the moral law, a more perfect system is enjoined by the
gospel than was required under the law, which admitted of an eye for an eye,
and a tooth for a tooth, tolerating a spirit of retaliation. And further, that,
if the moral law was the same now that it was before the flood, we must call in
question those precepts of the gospel which prohibit some things allowed of and
practiced by the patriarchs.

It is true that the law was given by Moses, not however in
his individual or private capacity, but as the agent or instrument, and by the
authority of the Almighty. The law demanded exact obedience, and proclaimed:
“Cursed is every one that contineth not in all things which are written in the
book of the law to do them.” The law was inexorable, and by requiring perfect
obedience, under a penalty so inevitable and dreadful, operated as a
schoolmaster to bring us to Christ for mercy.

Mercy, and grace, and favor did come by Jesus Christ; and
also that truth which verified the promises and predictions concerning him, and
which exposed and corrected the various errors which had been imbibed
respecting the Supreme Being, his attributes, laws, and dispensations.
Uninspired commentators have dishonored the law, by ascribing to it, in certain
cases, a sense and meaning which it did not authorize, and which our Savior
rejected and reproved.

The inspired prophets, on the contrary, express the most
exalted ideas of the law. They declare that the law of the Lord is perfect,
that the statutes of the Lord are right; and that the commandment of the Lord
is pure; that God would magnify the law and make it honorable, etc.

Our Savior himself assures us that he came not to destroy
the law and the prophets, but to fulfill; that whoever shall do and teach the
commandments, shall be called great in the kingdom of heaven; that it is easier
for heaven and earth to pass, than one tittle of the law to fail. This
certainly amounts to a full approbation of it. Even after the resurrection of
our Lord, and after the descent of the Holy Spirit, and after the miraculous
conversion of Paul, and after the direct revelation of the Christian
dispensation to him, he pronounced this memorable encomium on the law, viz.:
“The law is holy, and the commandments holy, just, and good.”

It is true that one of the positive ordinances of Moses,
to which you allude, did ordain retaliation, or, in other words, a tooth for
a tooth. But we are to recollect that it was ordained, not as a rule to regulate
the conduct of private individuals towards each other, but as a legal penalty
or punishment for certain offenses. Retaliation is also manifest in the punishment
prescribed for murder—life for life. Legal punishments are adjusted and inflicted
by the law and magistrate, and not by unauthorized individuals. These and
all other positive laws or ordinances established by Divine direction, must
of necessity be consistent with the moral law. It certainly was not the design
of the law or ordinance in question, to encourage a spirit of personal or
private revenge. On the contrary, there are express injunctions in the law
of Moses which inculcate a very different spirit; such as these: “Thou shalt
not avenge, nor bear any grudge against the children of thy people; but thou
shalt love thy neighbor as thyself.” “Love the stranger, for ye were strangers
in Egypt.” “If thou meet thy enemy’s ox or his ass going astray, thou shalt
surely bring it back to him,” etc., etc.

There is reason to believe that Solomon understood the law
in its true sense, and we have his opinion as to retaliation of injuries, viz.:
“Say not, I will recompense evil; but wait upon the Lord, and He will save
thee.” Again: “Say not, I will do to him as he hath done to me. I will render
to the man according to his work.” And again:” If thine enemy be hungry, give
him bread to eat; and if he be thirsty, give him water to drink; for thou shalt
heap coals of fire upon his head, and the Lord shall reward thee.”

But a greater than Solomon has removed all doubts on this
point. On being asked by a Jewish lawyer, which was the great commandment
in the law, our Savior answered: “Thou shalt love the Lord thy God with all
thy heart, and with all thy soul, and with all thy mind. This is the first
and the great commandment, and the second is like unto it: Thou shalt love
thy neighbor as thyself. On these two commandments hang all the law and the
prophets.” It is manifest, therefore, that the love of God and the love of
man are enjoined by the law; and as the genuine love of the one comprehends
that of the other, the apostle assures us that “Love is the fulfilling of
the law.”

It is, nevertheless, certain, that erroneous opinions
respecting retaliation, and who were to be regarded as neighbors, had long
prevailed, and that our Savior blamed and corrected those and many other
unfounded doctrines.

That the patriarchs sometimes violated the moral law, is a
position not to be disputed. They were men, and subject to the frailties of our
fallen nature. But I do not know nor believe, that any of them violated the
moral law by the authority or with the approbation of the Almighty. I can find
no instance of it in the Bible. Nor do I know of any action done according to
the moral law, that is censured or forbidden by the gospel. On the contrary, it
appears to me that the gospel strongly enforces the whole moral law, and clears
it from the vain traditions and absurd comments which had obscured and
misapplied certain parts of it.

As, therefore, Divine ordinances did authorize just war,
as those ordinances were necessarily consistent with the moral law, and as the
moral law is incorporated in the Christian dispensation, I think it follows
that the right to wage just and necessary war is admitted, and not abolished,
by the gospel.

You seem to doubt whether there ever was a just war, and
that it would puzzle even Solomon to find one.

Had such a doubt been proposed to Solomon, an answer to it
would probably have been suggested to him by a very memorable and interesting
war which occurred in his day. I allude to the war in which his brother Absalom
on the one side, and his father David on the other, were the belligerent
parties. That war was caused by, and proceeded from, “the lusts” of Absalom,
and was horribly wicked. But the war waged against him by David was not caused
by, nor did proceed from, “the lusts” of David, but was right, just, and
necessary. Had David submitted to be dethroned by his detestable son, he would,
in my opinion, have violated his moral duty and betrayed his official trust.

Although just war is not forbidden by the gospel in
express terms, yet you think an implied prohibition of all war, without
exception, is deducible from the answer of our Lord to Pilate, viz.: “If my
kingdom were of this world, then would my servants fight,” etc.

At the conclusion of the Last Supper, our Lord said to his
disciples: “He that hath no sword, let him now sell his garment and buy one,”
They answered: “Lord, here are two swords.” He replied: “It is enough.”

It is not to be presumed that our Lord would have ordered
swords to be provided, but for some purpose for which a sword was requisite;
nor that he would have been satisfied with two, if more had been necessary.

Whatever may have been the purposes for which swords were
ordered, it is certain that the use of one of those swords soon caused an event
which confirmed the subsequent defense of our Lord before Pilate, and also
produced other important results. When the officers and their band arrived,
with swords and with staves, to take Jesus, they who were about him saw what
would follow. “They said unto him: Lord, shall we smite with the sword?” It
does not appear that any of the eleven disciples who were with him, except one,
made the least attempt to defend him. But Peter, probably inferring from the
order for swords, that they were now to be used, proceeded to “smite a servant
of the high-priest, and cut off his right ear.” Jesus (perhaps, among other
reasons, to abate inducements to prosecute Peter for that violent attack)
healed the ear.

He ordered Peter to put his sword into its sheath, and
gave two reasons for it. The first related to himself, and amounted to this,
that he would make no opposition, saying: “The cup which my Father hath given
me, shall I not drink?” The second related to Peter, viz., they who take the
sword, shall perish by the sword; doubtless meaning that they who take and use
a sword, as Peter had just done, without lawful authority, and against lawful
authority, incur the penalty and risk of perishing by the sword. This meaning
seems to be attached to those words by the occasion and circumstances which
prompted them. If understood in their unlimited latitude, they would contradict
the experience and testimony of all ages, it being manifest that many military
men die peaceably in their beds.

The disciples did believe and expect that Jesus had come
to establish a temporal kingdom. “They trusted that it had been he which should
have redeemed Israel.” “They knew not the Scripture, that he must rise again
from the dead; questioning one with another what the rising from the dead
should mean.” Even after his resurrection, they appear to have entertained the
same belief and expectation; for on the very day he ascended, they asked him:
“Lord, wilt thou at this time restore the kingdom to Israel?”

The order for swords, and the declaration that two were enough,
tended to confirm that belief and expectation, and to inspire a confidence
that he who had commanded the winds and the waves, and had raised the dead
to life, was able, as well as willing, to render the two swords sufficient
to vanquish his enemies. Could anything less than such a firm belief and confidence
have prompted eleven such men, and with only two swords among them, to offer
to “smite with the sword” the armed band, which, under officers appointed
by the Jewish rulers, had come to apprehend their Master?

Great must have been the
disappointment and astonishment of the disciples, when Jesus unexpectedly and
peaceably submitted to the power and malice of his enemies, directing Peter to
sheath his sword, and hinting to him the danger he had incurred by drawing it:
amazed and terrified, they forsook him and fled. This catastrophe so surprised
and subdued the intrepidity of Peter, that he was no longer “ready to go with
his Master to prison and to death.”

It seems that perplexity,
consternation, and tumultuous feelings overwhelmed his faith and reflection,
and that his agitations, receiving fresh excitement from the danger and dread
of discovery, which soon after ensued, impelled him with heedless precipitation
to deny his Master. This denial proved bitter to Peter, and it taught him and
others that spiritual strength can be sustained only by the spiritual bread
which cometh down from heaven.

The Jews accused Jesus before Pilate
of aspiring to the temporal sovereignty of their nation, in violation of the
legal rights of Caesar. Jesus, in his defense, admitted that he was king,
but declared that his kingdom was not of this world. For the truth of this
assertion, he appealed to the peaceable behavior of his adherents, saying:”
If my kingdom were of this world, then would my servants fight, that I should
not be delivered to the Jews, but now is my kingdom not from hence.”

Pilate, who doubtless well knew
what had been the conduct of Jesus, both before and at the time of his
apprehension, was satisfied, but the Jews were not. They exclaimed: “If thou
let this man go, thou art not Caesar’s friend; whosoever maketh himself a king,
speaketh against Caesar.” “We have no king but Caesar.”

You and I understand the words in
question very differently. Is there the least reason to infer from the belief
and conduct of the disciples, that they were restrained from fighting by the
consideration that their Master’s kingdom was not of this world? On the
contrary, did they not believe and expect that he had come to restore one of
the kingdoms of this world to Israel? The fact is, that they were ready and
willing to fight. Did they not ask him: “Lord, shall we smite with the sword?”
It was his will, therefore, and not their will, which restrained them from
fighting; and for that restraint he assigned a very conclusive reason, viz.,
because his kingdom was not of this world.

To the advancement and support of
his spiritual sovereignty over his spiritual kingdom, soldiers and swords and
corporeal exertions were inapplicable and useless. But, on the other hand,
soldiers and swords and corporeal exertions are necessary to enable the several
temporal rulers of the states and kingdoms of this world to maintain their
authority and protect themselves and their people; and our Savior expressly
declared that if his kingdom had been of this world, then would his servants
fight to protect him; or, in other words, that then, and in that case, he would
not have restrained them from fighting. The lawfulness of such fighting,
therefore, instead of being denied, is admitted and confirmed by that

This exposition coincides with the answer given by John
the Baptist (who was “filled with the Holy Ghost”) to the soldiers who asked
him what they should do, viz.: “Do violence to no man, neither accuse any
falsely, and be content with your wages.” Can these words be rationally
understood as meaning that they should receive wages for nothing; or that, when
ordered to march against the enemy, they should refuse to proceed; or that, on
meeting the enemy, they should either run away, or passively submit to be
captured or slaughtered? This would be attaching a meaning to his answer very
foreign to the sense of the words in which he expressed it.

Had the gospel regarded war as being in every case sinful,
it seems strange that the apostle Paul should have been so unguarded as, in
teaching the importance of faith, to use an argument which clearly proves the
lawfulness of war, viz.: “That it was through faith that Gideon, David, and
others waxed valiant in fight, and turned to flight the armies of aliens”;
thereby confirming the declaration of David, that it was God who had “girded
him with strength to battle; and had taught his hands to war, and his fingers
to fight.”

The gospel appears to me to
consider the servants of Christ as having two capacities or characters, with
correspondent duties to sustain and fulfill.

Being subjects of his spiritual
kingdom, they are bound in that capacity to fight, pursuant to his orders, with
spiritual weapons, against his and their spiritual enemies.

Being also subjects and partakers
in the rights and interests of a temporal or worldly state or kingdom, they are
in that capacity bound, whenever lawfully required, to fight with weapons in
just and necessary war, against the worldly enemies of that state or kingdom.

Another view may be taken of the
subject. The depravity which mankind inherited from their first parents,
introduced wickedness into the world. That wickedness rendered human government
necessary to restrain the violence and injustice resulting from it. To
facilitate the establishment and administration of government, the human race
became, in the course of Providence, divided into separate and distinct
nations. Every nation instituted a government, with authority and power to
protect it against domestic and foreign aggressions. Each government provided
for the internal peace and security of the nation, by laws for punishing their
offending subjects. The law of all the nations prescribed the conduct which
they were to observe towards each other, and allowed war to be waged by an
innocent against an offending nation, when rendered just and necessary by
unprovoked, atrocious, and unredressed injuries.

Thus two kinds of justifiable
warfare arose: one against domestic malefactors; the other against foreign
aggressors. The first being regulated by the law of the land; the second by the
law of nations; and both consistently with the moral law.

As to the first species of warfare,
in every state or kingdom, the government or executive ruler has, throughout
all ages, pursued, and often at the expense of blood, attacked, captured,
and subdued murderers, robbers, and other offenders; by force confining them
in chains and in prisons, and by force inflicting on them punishment; never
rendering to them good for evil, for that duty attaches to individuals in
their personal or private capacities, but not to rulers or magistrates in
their official capacities. This species of war has constantly and universally
been deemed just and indispensable. On this topic the gospel is explicit.
It commands us to obey the higher powers or ruler. It reminds us that “he
beareth not the sword in vain”; that “he is the minister of God, and a revenger
to execute wrath upon him that doeth evil.” Now, if he is not to bear the
sward in vain, it follows that he is to use it to execute wrath on evildoers,
and consequently to draw blood and to kill on proper occasions.

As to the second species of warfare,
it certainly is as reasonable and as right that a nation be secure against
injustice, disorder, and rapine from without as from within; and therefore
it is the right and duty of the government or ruler to use force and the sword
to protect and maintain the rights of his people against evildoers of another
nation. The reason and necessity of using force and the sword being the same
in both cases, the right or the law must be the same also.

We are commanded to render to our government, or to our
Caesar, “the things that are Caesar’s” that is, the things which belong to him,
and not the things which do not belong to him. And surely this command cannot
be construed to intend or imply that we ought to render to the Caesar of
another nation more than belongs to him.

In case some powerful Caesar should demand of us to
receive and obey a king of his nomination, and unite with him in all his wars,
or that he would commence hostilities against us, what answer would it be
proper for us to give to such a demand? In my opinion, we ought to refuse, and
vigorously defend our independence by arms. To what other expedient could we
have recourse? I cannot think that the gospel authorizes or encourages us, on
such an occasion, to abstain from resistance, and to expect miracles to deliver

A very feeble unprepared nation, on receiving such a
demand, might hesitate and find it expedient to adopt the policy intimated in
the gospel, viz.: “What king, going to war against another king, sitteth not
down first and consulteth whether he be able with ten thousand to meet him that
cometh against him with twenty thousand; or else he sendeth an embassage, and
desireth conditions of peace “—that is, makes the best bargain he can.

If the United States should
unanimously resolve never more to use the sword, would a certified copy of it
prove to be an effectual Mediterranean passport? Would it reform the predatory
rulers of Africa, or persuade the successive potentates of Europe to observe
towards us the conduct of real Christians? On the contrary, would it not
present new facilities, and consequently produce new excitements, to the
gratification of avarice and ambition?

It is true that even just war is
attended with evils, and so likewise is the administration of government and of
justice; but is that a good reason for abolishing either of them? They are
means by which greater evils are averted. Among the various means necessary to
obviate or remove, or repress, or to mitigate the various calamities, dangers,
and exigencies, to which in this life we are exposed, how few are to be found
which do not subject us to troubles, privations, and inconveniences of one kind
or other. To prevent the incursion or continuance of evils, we must submit to
the use of those means, whether agreeable or otherwise, which reason and
experience prescribe.

It is also true, and to be
lamented, that war, however just and necessary, sends many persons out of this
world who are ill prepared for a better. And so also does the law in all
countries. So also does navigation, and other occupations. Are they therefore
all sinful and forbidden?

However desirable the abolition of
all wars may be, yet until the morals and manners of mankind are greatly changed,
it will be found impracticable. We are taught that national sins will be
punished, and war is one of the punishments. The prophets predict wars at so
late a period as the restoration of the Israelites. Who or what can hinder the
occurrence of those wars?

I nevertheless believe, and have
perfect faith in the prophecy, that the time will come when “the nations will
beat their swords into plowshares, and their spears into pruning-hooks; when
nation shall not lift up sword against nation, neither shall they learn war any
more.” But does not this prophecy clearly imply, and give us plainly to
understand, that in the meanwhile, and until the arrival of that blessed
period, the nations will not beat their swords into plowshares, nor their
spears into pruning-hooks; that nation will not forbear to lift up sword
against nation, nor cease to learn war?

It may be asked, Are we to do
nothing to hasten the arrival of that happy period? Literally, no created being
can either accelerate or retard its arrival. It will not arrive sooner nor
later than the appointed time.

There certainly is reason to
expect, that as great providential events have usually been preceded and
introduced by the intervention of providential means to prepare the way for
them, so the great event in question will be preceded and introduced in like
manner. It is, I think, more than probable, that the unexpected and singular
cooperation and the extra ordinary zeal and efforts of almost all Christian
nations to extend the light and knowledge of the gospel, and to inculcate its
doctrines, are among those preparatory means. It is the duty of Christians to
promote the prevalence and success of such means, and to look forward with
faith and hope to the result of them.

But whatever may be the time or
the means adopted by Providence for the abolition of war, I think we may,
without presumption, conclude that mankind must be prepared and fitted for the
reception, enjoyment, and preservation of universal permanent peace, before
they will be blessed with it. Are they as yet fitted for it? Certainly not.
Even if it was practicable, would it be wise to disarm the good before “the
wicked cease from troubling?” By what other means than arms and military force
can unoffending rulers and nations protect their rights against unprovoked
aggressions from within and from without? Are there any other means to which
they could recur, and on the efficacy of which they could rely? To this
question I have not as yet heard, nor seen, a direct and precise answer.

. . . .

Source: The Correspondence and Public Papers of John Jay, Henry Johnston,
editor (New York: G. P. Punam’s Sons, 1893), Vol. IV, pp. 391-393, 403-419, letters
to John Murray, October 12, 1816 and April 15, 1818. [John Jay’s writings are
available on CD-Rom
from WallBuilders]