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Most Humble Servants: The Advisory Role of Early Judges

Stewart Jay
Copyright Date: 1997
Published by: Yale University Press
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  • Book Info
    Most Humble Servants
    Book Description:

    It has long been assumed that throughout the history of the United States, the role of judges was limited to adjudicating cases and did not include performing other official functions for the executive and legislative branches of government. This book challenges that assumption, investigating the variety of duties judges performed until the end of the eighteenth century and exploring why a new separation of powers developed only after 1793. Stewart Jay shows that early judges in both the United States and Great Britain provided extrajudicial advisory opinions to the executive, took administrative assignments, assisted in legislative drafting, and even held offices in other branches of government. In 1793, however, the U.S. Supreme Court refused to answer the Washington administration's request for legal advice on American treaty relations with France. Jay argues that if we take into consideration late eighteenth-century theories of separation of powers and the probable intent of the Framers of the Constitution, no significant constitutional barriers prevented the Court from answering Washington's questions. The actual reasons for the Court's refusal were more related to the practical consequences that would result if the Justices issued a formal advisory opinion during a foreign policy crisis. Similarly, says Jay, British judges of the same period also abandoned advisory opinions owing to pragmatic concerns. Jay thus offers a revisionary accoun of the 1793 political-legal crisis, a landmark event in the formation of the American judiciary and the doctrine of separation of powers.

    eISBN: 978-0-300-14656-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. Introduction
    (pp. 1-9)

    In the summer of 1793, Secretary of State Thomas Jefferson requested on behalf of the Washington administration that the Justices of the Supreme Court advise the executive on certain questions concerning American obligations and rights as a neutral party in the ongoing war among European powers. Jefferson explained that these “abstract questions” were “often presented under circumstances which do not give a cognisance of them to the tribunals of the country.” Five of the six members of the Court signed a letter in response, refusing to provide answers on the ground that there were “strong arguments against the Propriety of...

  5. 1 The Advisory Role of Judges in Great Britain Through the Eighteenth Century
    (pp. 10-50)

    Sir William Blackstone wrote “that all jurisdictions of courts are either mediately or immediately derived from the Crown‚ their proceedings run generally in the king’s name‚ they pass under his seal‚ and are executed by his officers.” Accordingly‚ the King‚ “in the eye of the law‚ is always present in all courts‚ though he cannot personally distribute justice. His judges are the mirror by which the king’s image is reflected.” Despite the considerable fiction in this statement‚ the “[j]udges were royal appointees‚ and the major courts [could] fairly be described as royal.” Blackstone referred to the Kings’ judges as “[a]...

  6. 2 The Advisory Role of American Judges Prior to 1787
    (pp. 51-56)

    The previous chapter demonstrated that the practice of giving extrajudicial opinions grew out of a historical relationship between the judges and the Crown. The dependency of judges on the Crown and the intermingling of judicial offices with other parts of the government were not only distinctive features of that history but also potent sources for executive abuse. As a first step in analyzing advisory decision making in America‚ a study of the analogous judicial-executive relation on the other side of the Atlantic is essential. Two characteristics of the American experience bear emphasis. The first relates to the formal relationships among...

  7. 3 The Advisory Role of Judges During the Formation of the U.S. Constitution
    (pp. 57-76)

    Chief Justice John Jay and his colleagues on the Supreme Court referred directly to separation of powers when they refused to answer the Washington administration’s questions in 1793. Although the Justices relied on “the lines of separation drawn by the Constitution between the three departments of the government‚” the explanation was quite vague: “The[se] being in certain Respects checks on each other—and our being Judges of a court in the last Resort—are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to.”¹ This section addresses the general question of how the federal...

  8. 4 The Advisory Role of Judges During the Washington Administration
    (pp. 77-112)

    George Washington entered the presidency with “the soul‚ look and figure of a hero united in him‚” to take the words of the French ambassador‚ whose observation was universally shared.¹ Washington brought to office immense experience as a commander of armies‚ together with a knowledge of political infighting derived from long years of dealing with Congress and from his own period of service in that body and the Virginia House of Burgesses. He could execute the smallest of details concerning his magnificent plantation. But the one thing he lacked was experience as an executive officer in government.

    Notwithstanding all his...

  9. 5 Declining Washington’s Request: The Events of 1793
    (pp. 113-148)

    In April 1793, Washington wrote to a British correspondent: “I believe it is the sincere wish of United America to have nothing to do with the political intrigues‚ or the squabbles of European Nations; but on the contrary‚ to exchange commodities and live in peace and amity with all the inhabitants of the Earth.” Despite the professed desire of the American leadership during the early 1790s to remain aloof from the political affairs and military conflicts of Europe‚ the hard fact was that potentially hostile powers encircled the country: the British in Canada‚ and the Spanish in Louisiana and the...

  10. 6 Explaining the Supreme Court’s Refusal to Assist the Washington Administration
    (pp. 149-170)

    Prior to hearing from Chief Justice Jay on July 17 and thereafter from other members of the Supreme Court‚ the President and most of his cabinet apparently anticipated that the Justices would be willing to offer their assistance. It seems doubtful that the administration would have made the request without assuming that some degree of cooperation might be forthcoming. Not only did the cabinet go to the ultimately futile effort of framing the questions‚ but it announced to the foreign countries involved that the consultation would occur. And the referral was known throughout the country.

    Writing on August 11 to...

  11. Conclusion
    (pp. 171-178)

    The Supreme Court has singled out the “case or controversy” requirement of Article 3 as “defin[ing] with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded‚” and thus “stat[ing] fundamental limits on federal judicial power in our system of government.” According to the Court’s own historical analysis‚ “the oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions.”¹ At the same time‚ the Court has acknowledged that “historical antecedents of the case-and-controversy doctrine” are uncertain‚ noting that “the power of...

  12. Appendix: Letter from the Justices of the Supreme Court to President George Washington
    (pp. 179-180)
  13. List of Abbreviations
    (pp. 181-188)
  14. Notes
    (pp. 189-294)
  15. Index
    (pp. 295-302)