Before John Jay became the first Chief Justice of the United States Supreme Court, the negotiator of the Jay Treaty, a Federalist writer, and indeed one of the founding fathers of our country, he was a practicing lawyer here in Westchester County. This was in the period from 1768 to 1776, when he was 23 to 31 years of age. The aim of this historical note is to examine the nature of his trial work in the county during this period.¹

Jay was born in 1745 and grew up in a home on the Post Road in Rye (replaced by the Jay Mansion built in 1838). After home and local schooling, he entered Kings College in New York City in 1760. He graduated at age 17 and started a four and a half year legal apprenticeship with a leading lawyer in New York City, Benjamin Kissam. On October 26, 1768, he was admitted to practice in all courts of His Majesty in New York. He was only one of two lawyers admitted that year, the other being Robert J. Livingston, with whom he started a short term partnership.

The court in Westchester County was the Court of Common Pleas, which sat in what was called “The Plains” at the time. The court had two sessions, May and November. These were civil lawsuits only; criminal cases were tried in the Court of Sessions. The courthouse in White Plains in the decades leading up to the Revolutionary War was located where the Armory is today, on the rise of land above South Broadway, on Mitchell Place.²

A prime source of information on the cases Jay handled in the Court of Common Pleas in Westchester are the minute books maintained by the clerks of that court. These are preserved at the Westchester County Archives and Records Center located in Elmsford, New York.³ My examination of the entries in the minute books as to Jay’s activities shows trials (then spelled “tryals”); adjournments for want of a jury; motions; entry of judgments; and some listings of pending matters with counsel.

For each case tried, the clerk recorded the name of the parties, who were their counsel, the names of the 12 jurors, who were the witnesses called by each party, the day of the trial and of the verdict. If the plaintiff won, the amount of the jury award was given. Most obviously missing is what the cause of action was or other information about what the case was about! We do know from other sources what were the common litigation issues Jay handled. They were debt on a written contract; breach of oral contract; trespass (to prove ownership of land); assault and battery; and libel and slander.

I counted 13 trials in the minute books where Jay was an attorney for one side or the other—five times for the plaintiff and eight times for the defendant. He was on the winning side in seven and lost in six. The first trial was in the November term 1769; at which time, Jay had been admitted just a year. He followed this up with a second trial that term and won them both. Thereafter, he had one to two trials per year except for a burst of five during the May term in 1774.

After May 1774, Jay’s name appears in the minute books several times on motion practice. The last is the May 1776 term—less than two months away from the Declaration of Independence (which was read from the portico of the White Plains courthouse). As far as the minute book goes, after the May 1776 entries, it picks up on the next page in 1779, with the court now sitting in Bedford—without even a single reference as to what the three intervening years involved!

Unlike today’s practice, where trials take many days—jury selection, openings, instructions, witnesses, summations, and the like—it appears that these early trials were one day affairs. We can tell that by the clerk’s recordings in the minute book of the dates of jury selection and of the verdict. The jurors had undoubtedly served before, the issues were simple and there were only a few witnesses. 

Demonstrating that there were very few lawyers practicing in the courts in pre-Revolution days, there is a great repetition of counsel opposing Jay at these trials. Sometimes it was Kissam, who had trained him, and sometimes it was Timothy Wetmore, part of a prominent Rye family. 

We can read the names of the people Jay was asked to represent (mostly— sometimes the handwriting is obscure). Not surprisingly some of these were residents of Rye and vicinity, and often of the same “gentry” class of which he was a member. Two of the Jay cases recorded in the minutes were where he represented Rye residents who were churchwardens of the Episcopal church, acting as overseers of the poor, suing named Rye residents. My assumption is the defendants had not paid their poor tax. It seems that bringing the suit resulted in the payment. Also of interest is the size of the verdict in the 13 cases I studied. In one, 13 shillings were awarded as damages. According to Google calculators, this would be about $91 in today’s money.

In addition to his trial work in the Court of Common Pleas, Jay also tried cases in this county when a higher court, the Supreme Court of Judicature sat in White Plans (it moved from county to county on a schedule throughout the year). Jay in his own notebook deals with one Supreme Court case,4 Canfield v. Dickerson, which was tried in White Plains in the September 1771 term. Here, Jay represented a plaintiff seeking damages for the sale of an “unsound Negro.” (New York did not abolish slavery until 1827.) Plaintiff sought 90 pounds, presumably what he had paid. Jay prevailed and his client was awarded 90 pounds, jointly against several defendants. Jay entered in his case notebook that the plaintiff received 80 pounds and he received 10 pounds as his fee. It is noteworthy Jay got paid at the end of the case, implying that the case was taken on a contingent fee. 

Budd v. Tomkins⁵ was a 1770 assault and battery case in the Supreme Court, in which Jay defended Tomkins. It demonstrates Jay’s experience and skill. In 1770, Tompkins and others were alleged to have beaten Budd, a schoolteacher whom they had hired. Part of his pay was goods, and Budd, not receiving them, had taken some corn without permission—leading to the attack. Jay’s first step in the defense had been to have the case removed from New York County where it was filed to White Plains, where the defendants resided. The plaintiff’s lawyer was John Tabor Kempe (the Attorney General for New York Province). At trial, Jay argued to the jury that Budd was at fault for stealing the corn. Jay’s skilled handling of evidence ended in a defense verdict.

If the Revolutionary War had not come along, and New York continued on as a loyal colony, one wonders what Jay’s career would have been like. He could have well remained a practicing lawyer, growing more well-known. The record shows that in his seven years of practice, he was successful financially, and had already become well respected for his ability to practice, including his trial work. Fortunately for our country, however, he was called to higher duty. I have to believe that the skills he sharpened in his years of trial work in our county prepared him for all of the tasks that later were to come his way.

Endnotes

1 This article draws on more general research and writing by the author, Rheingold, “John Jay: Practicing Trial Lawyer for Seven Years, “ Judicial Notice, Issue 15, 2020, p. 31; research done in the 1960s for an advanced degree by Herbert Johnson, later Professor Law at the University of South Carolina, published as Johnson, Colonial Lawyer (Beard edition 197 (); and Jay’s papers which are housed at Columbia University (https://dlc.library.columbia. edu/jay).

2 See Paul D. Rheingold and Joyce B. Rheingold, “The Courthouses of Westchester County,” The Westchester Historian, Vol. 61, No. 4, p. 92 (Fall 1985).

3 The first of the two books begin in 1710. These were made available for examination by Jackie Graziano, an archivist.

4 While many of Jay’s case papers did not survive the Revolutionary War, two notebooks did, in which he lists information about cases which he handled, as to clients, legal matters, and fees, including but not limited to the Canfield v. Dickerson case. These are stated to be Supreme Court cases and are maintained in the New York State Library in Albany. They are digitized in the Columbia University website (see endnote 1).

5 This case is in Jay’s notebook (see endnote 4), and also covered in Johnson’s book (see endnote 1, p. 98).

Paul D. Rheingold, Esq., is a retired partner of Rheingold, Giuffra, Ruffo and Plotkin, LLP. He is the author of Litigating Mass Tort Cases and of various books about the history of Rye and Mamaroneck, including “The Streets of Rye—How They Got Names”.