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Canada and the United States
pact and John Winthrop's "A Modell of Christian
Charitie." At times, his discussion of these specific
matters threatens to belabor the obvious, but his larger
insight, which comes into clearer focus when he moves
on to discuss the writings of eighteenth-century ministers, is compelling. Demonstrating how the clergy
invoked the Puritan tradition and, at the same time,
embraced Locke and the natural rights philosophy,
Zuckert argues for "a Lockean conquest, or at least
assimilation, of Puritan political thought" (p. 172) in
prerevolutionary America. And while he correctly
describes his larger argument in the book as "a bit
complex" (p. 95)-it ultimately touches on what he
considers the unique amalgamation in America of no
fewer than four threads or traditions (Old Whig
constitutionalism, political religion, republicanism,
and the dominant natural rights philosophy)-this
fusion of Lockean natural rights and Protestantism
appears to be the key to his larger interpretation of the
character and shape of the American political tradition. Indeed, it seems to explain what made the
American Revolution possible.
In the final chapter, a coda of sorts to the book's
interpretive edifice that focuses on Thomas Jefferson
during his later years, Zuckert fires a sustained parting
shot at all those scholars who have mistakenly emphasized classical republicanism or civic humanism at the
expense of natural rights republicanism. Unfortunately, he also muddies his own water a bit by ending
with a sketchy and ambiguous account of two very
different Jeffersonian and Madisonian versions of the
natural rights formulation, the tension between which,
he argues, continues to affect us today.
DREW R. McCoy
Clark University
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.
The idea of three branches being separate and
checking each other was still evolving by the 1790s.
Eighteenth-century writers such as Montesquieu con-
AMERICAN HISTORICAL REVIEW
sidered 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.
Anglo-American law in practice had not clearly
distinguished the executive from the judicial branches.
Colonial and state judges had performed executive
functions. This practice was continued by Congress in
giving duties to the federal judiciary. Supreme Court
justices made decisions and gave opinions regarding
the salvaging of ships, contested congressional elections, customs duties fines, naturalization of immigrants, and veteran pensions and reported to and
advised Congress and the Treasury Department.
Jay goes through a careful analysis of what was said
in the Philadelphia Convention, the language of the
Constitution, and contemporary writings to show that
there was no agreement that the practice of the
executive or legislature seeking the advice and the
services of the judiciary should end. Indeed, the traditional interpretation makes little sense of why George
Washington asked the court for advice. The author
shows that the administration request was not seen at
the time as unusual, innovative, or raising a constitutional question. If it had, given 1790s politics, there
would have been an uproar. But Thomas Jefferson,
who would emerge as a critic of Federalist policy, did
not object, while he was in the cabinet, to the idea of
the president seeking advice from the Supreme Court.
Indeed, as secretary of state he was the one who
actually corresponded with the Supreme Court justices
and sent them the questions. There was no protest
from Anti-Federalists or the Republican opposition
party in Congress. Jay successfully shows why the
Washington administration could make the request
and expect that the court would comply.
In exploring why the court decided not to comply
with the request, the author looks at newspaper discussions over who should interpret treaties. Should
lawyers and judges decide or the country itself through
the president and representatives in Congress? Many
Federalists, including John Jay and the other Supreme
Court justices, believed that, especially in foreign
affairs, the Federalist agenda could best be carried out
by a strong executive, and the executive might be
weakened if it relied on judicial opinions.
There was another major reason for the court's
action. The Supreme Court justices had a serious
grievance: their circuit riding duties. They hoped Congress would end the practice by establishing separate
appeals court judges. The justices did not want to
make enemies in Congress, which could have happened if, given the debate on foreign affairs issues,
they had given advice on how to interpret treaties.
Jay's work is well researched, written. and argued. It
is short and to the point. What is clearly lacking,
however, is a comprehensive analysis of why the later
court decided to use the Jay Court's refusal to give
advisory opinions as a precedent. The author does
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Reviews of Books
pursue how the simplicity and clarity of the language
used by the Jay Court implied that there was a
consensus of understanding at the time on the separation of powers in the Constitution, but this needs to be
carried further. The author should explore how,
through the history of the court, the Jay Court letter
became doctrine. That said, this is an excellent revisionist history.
F. THORNTON MILLER
Southwest Missouri State University
JOHN SUGDEN. Tecumseh: A Life. (A John Macrae
Book.) New York: Henry Holt. 1997. Pp. xi, 492.
$34.95.
John Sugden has been a student of Tecumseh and the
Shawnee for three decades and has examined "an
enormous body of documentation, much of it previously unknown" (p. x). The result, he assures us, is "the
first book on Tecumseh to be grounded in thorough
research into the history and historical culture of
Tecumseh's people, the Shawnees" (p. x). This is not
Sugden's first book on Tecumseh. In 1985, his Tecumseh's Last Stand appeared, a work that concentrated on
the last few weeks of its subject's life. This time Sugden
has produced a full-fledged life and times.
The author undertook a daunting task, as very few
details of Tecumseh's life before 1800 are known with
any certainty. Indeed, he does not emerge from the
shadow of his brother, the Shawnee Prophet, until
about 1805, a fact that has discouraged other biographers from more than brief speculation about his early
life. Nevertheless, Sugden attempts to provide that
which has eluded others, although even he admits to
relief when he moves beyond "the twilight world
between myth and history" (p. 84) that obscures about
two-thirds of Tecumseh's life. Then he can reduce his
dependence on terms (perhaps, maybe, probably,
likely, and must have) that telegraph his lack of solid
data. The cumulative effect of their frequent use does
not inspire confidence in the reader and goes a way
toward explaining why earlier biographers provided so
little on Tecumseh's early years.
The way Sugden handles the paucity of reliable
sources can be seen in his account of a trip that he says
Tecumseh took in the late summer of 1810. Over a
period of about seventy-five days, he has the chief
traveling about 1,500 miles from central Illinois to
Green Bay, Wisconsin, and then southwest to the
Mississippi and Prairie du Chien. From there he
presumably went downriver to below Cape Girardeau,
Missouri, and then westward up a stream for sixty
miles before returning to his village in central Illinois.
Along the way, Tecumseh presumably visited many
Indian communities, trying to persuade them to join
him and his brother the Prophet in a confederation to
resist American expansion.
Sugden is the first Tecumseh scholar to posit such a
trip and his sources for it are not impressive. He says
it was necessary to "reconstruct them from scrappy
AMERICAN HISTORICAL REVIEW
contemporary references and unreliable and murky
traditions passed down by eyewitnesses" (p. 205). Thus
he accepts a Sac's statement made thirteen years after
the event that Tecumseh did visit his village, while
dismissing the same Indian's insistence that the
Prophet had accompanied his brother.
The author's two most frequently employed sources
for the early years are Stephen Ruddell and Anthony
Shane. In 1770, when he was twelve, Ruddell was
captured by Shawnees and remained with them for
about fifteen years. Ten years after Tecumseh's death,
he was interviewed by a historian and claimed to have
been Tecumseh's companion throughout most of the
years of his captivity. Shane, a mixed-blood who was
interviewed by the same historian, lived for many years
among the Shawnee, and his wife was a relative of
Tecumseh. Unfortunately the Ruddell and Shane accounts frequently disagree on important details. But
Sugden also relied on the testimony of individuals who,
decades after the events they purport to describe,
came forward to link themselves with the Shawnee who
by the 1820s had been installed in the American
pantheon of noble chiefs. Sugden is well aware of the
risk of using such sources but does so even as he
deprecates them.
Despite or perhaps because of his willingness to use
such sources, Sugden has provided the fullest account
of Tecumseh and his people. While more detailed,
however, his portrait of the chief does not markedly
alter that presented by earlier scholars. Like them, he
describes a man who was charismatic, humane, noble,
and a remarkable orator and combat leader. Like
earlier versions, this Tecumseh did not eclipse his
brother until after 1810; it took both of them to forge
a confederacy that, with British backing, temporarily
stopped American expansion in the area south of the
Great Lakes.
Sugden reminds us that not even a Tecumseh could
impose military discipline on his followers, nor could
he rally all Shawnees to his cause. British General
Isaac Brock might dub Tecumseh the "Wellington of
the Indians" (p. 308) after the Americans surrendered
Detroit, but as Sugden observes, Tecumseh's effort
was too late. The Indians had little chance of success
after their defeat at Tippecanoe in 1794, and Tecumseh's main thrust did not come for another ten years.
Nevertheless, readers will be reminded that Tecumseh
must be ranked with other great Indian leaders such as
Pontiac, Red Cloud, Sitting Bull, and Chief Joseph.
WILLIAM T. HAGAN
University of Oklahoma
ELIZABETH VlBERT. Traders' Tales: Narratives of Cultural Encounters in the Columbia Plateau, 1807-1846.
Norman: University of Oklahoma Press. 1997. Pp.
xviii, 366. $29.95.
Almost without exception, works on the fur trade in
North America mine fur-trade documents (and a range
of other sources) for factual details on what really
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