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There is hardly a political question in the United States which does not sooner or later turn into a judicial one… Alexis de Tocqueville

The United States Supreme Court under its first chief justice, John Jay, was a model of both judicial activism – in a proper sense of the term – and of judicial restraint within the limits of the Constitution. In Georgia v. Brailsford, the Court held that jurors have a right to determine the law as well as the fact in controversy which is the single greatest breach with British jurisprudence where judges alone ruled on questions of law – and the single most democratizing ruling in the history of the court. In Chisholm v. Georgia it put the government within the reach of remedy when he ruled, I am clearly of opinion that a State is suable by citizens of another State. However, Jay also declared that the Court’s business was restricted to ruling on the constitutionality of cases being tried before it and refused to allow it to take a position either for or against legislation – and judicial review of that would wait for John Marshall in 1801.

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War between Britain and France brought two basic precedents. In 1793 George Washington was working desperately to keep the United States neutral and safe; he sent the Court 29 questions on international law and treaties, and asked for advice. The Justices flatly refused to help. Under the Constitution, they said, they could not share executive powers and duties, or issue advisory opinions. To this day, the Supreme Court will not give advice; it speaks only on the specific cases that come before it.

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However, as is so often the case, the court ultimately answered the questions in its next session, using a specific case to do so. By its decision in Glass v. Sloop Betsey, in 1794, the Court did defend neutral rights. Defying the President’s neutrality proclamation, French privateers were bringing captured ships into American ports. There French consuls decided if the ships were to be kept as lawful prize. Betsey, Swedish-owned, had American cargo aboard when the French raider Citizen Genet caught her at sea and took her to Baltimore. Alexander S. Glass, owner of a share of the cargo, filed suit for his goods, but the district court in Maryland ruled that it could not even hear such cases. The government quickly appealed to the Supreme Court. Try the case and give satisfaction, the Justices told the Maryland court; foreign consuls would not decide American claims. Europe heard this decision; and the United States became, as Washington hoped, “more respectable” while maintaining her neutrality.

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Most humble servants : the advisory role of early judges  Stewart Jay  New Haven : Yale University Press, c 1997  Hardcover. 1st ed. and printing. x, 302 p. ; 25 cm. Includes bibliographical references and index. Clean, tight and strong binding with clean dust jacket. No highlighting, underlining or marginalia in text. VG/VG

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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.

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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.

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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.

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Similarly, says Jay, British judges of the same period also abandoned advisory opinions owing to pragmatic concerns. Jay thus offers a revisionary account of the 1793 political-legal crisis, a landmark event in the formation of the American judiciary and the doctrine of separation of powers.

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