| Book Review | The American Historical Review, 104.3

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| Book Review | The American Historical Review, 104.3 | The History Cooperative

Book Review

Canada and the United States

Stewart Jay. Most Humble Servants: The Advisory Role of Early Judges. New Haven: Yale University Press. 1997. Pp. x, 302. $35.00.

This is a revisionist, critical analysis of the traditional interpretation of a development in legal and constitutional history. It has been widely held that the United States Supreme Court only delivers opinions in cases brought before it in a judicial manner, and that this was firmly established in the Jay Court's refusal to give an advisory opinion in 1793 to the Washington administration on questions regarding the interpretation of treaties as they pertained to American relations with European countries during the War of the French Revolution, and that the court did so adhering to a consensus of the time on separation of powers in the Constitution. In challenging this view, Stewart Jay sets out to accomplish two goals: to give background to place the Washington administration request and the Jay Court response in historical context, and to explain why the Jay Court acted as it did. 1

The idea of three branches being separate and checking each other was still evolving by the 1790s. Eighteenth-century writers such as Montesquieu considered the main separation of powers to be between the executive and legislative branches. In the British government, an Enlightenment model for the best working government, the judiciary was not a separate branch. . . .

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