View source for The Transatlantic Constitution: Colonial Legal Culture and Empire


{{Infobox book
| name		 = The Transatlantic Constitution: Colonial Legal Culture and the Empire
| author         = Mary Sarah Bilder
| publisher      = Harvard University Press
| pub_date       = 2004
| pages          = 308
| isbn           = 0674027191
| image          = [[File:The Transatlantic Constitution.jpg|200px|alt=cover]]
}}

Bilder’s 2004 book on colonial legal culture and practice (she specifically examines colonial Rhode Island) argues that the “continuous legal conversation…over how and when the laws of England should apply to the colonies” created the “transatlantic constitution” (1).  She defines this constitution not as a specific document, but rather as both the written and unwritten legal and political structure of the English empire in North America. Her central thesis is that the transatlantic constitution was based on the principles of repugnancy and divergence and that ultimately the legal culture based on the questions raised by those principles constructed “the skeleton of federalism” and molded early national constitutionalism in the United States. She concludes that in the early national period, American legal practice continued to examine legal questions via this lens of repugnancy. 

Per Bilder, from the beginning, the application of English common law versus statute law made for a murky yet flexible beginning to colonial legal practice. Rhode Island’s charter gave the colony broad authority in a context of “innovatively authorized divergence” (41). Additionally, attorneys could apply “equity of the statute” to manipulate the laws to serve their purposes. Finally, arguing for divergence in matters such as entail could provide for particular colonial circumstances. Even as other colonies were brought into a formal review process of their charters via the Privy Council, Rhode Island had none, and “it was left unanswered how the crown could supervise Rhode Island’s compliance with the laws of England and the charter” (57). 

Both the statutory and appeal process showcased both this uncertainty and flexibility.  Statute law required a balance of “acknowledging the laws of England in a way that also reinforced or at least did not diminish the colony’s own power” (52). The appeal, more than statute law however, became of particular interest to litigants and attorneys though because in the Rhode Island charter there was no “explicit  mechanism for challenging laws and practices repugnant to English law” (73). Appeals were controversial from the beginning because colonial men of authority such as John Winthrop disliked the possibility of being able to appeal to the crown. The appeal process, which was really used mostly for land and testate/probate cases as well as cases arising under the Navigation Acts, was important to both the crown and the colony because it represented a hierarchy of authority; the crown’s right to equitable authority would be challenged by colonial authority. Bilder ultimately warns however that despite this appearance, “the transatlantic world was not so binary” (89). Appeals could be overturned on both sides, and “the dual authority structure of the colonial world provided encouragement for lawsuits because legitimate, alternative[s]…existed”. And ultimately, the “principles of divergence and repugnancy under the charter and the transatlantic constitution permitted the construction of plausible legal arguments…to follow or diverge from English law” (115). 	This flexible space allowed for the litigation and appeal of issues that were empire-wide, where “equity was the common thread.”

The “jurisprudential coherence” of the transatlantic constitution thus enforced the idea of Englishness in the colonies, even as questions of religion, commerce and currency challenged the divergence theory. Indeed, the challenging of divergence in religious law enforced a broad contextual understanding of the colonies’ relationship to England, as Bilder argues in her chapter on religious establishment in Rhode Island. There, the “transatlantic constitution accepted that NO relationship of state and religion had to exist across the American colonies” (167 – emphasis added), and the Privy Council upheld the challenges to the Rhode Island Court on questions of what orthodoxy in New England meant. 

Yet on cases of commerce and currency, the transatlantic constitution fell apart and reinforced a more binary view. Problems arose when colonists found the appeals process unsuccessful in cases of commerce litigation. Crown officials had little patience for Rhode Island’s manipulations of currency; in cases where currency values influenced legal problems, the Privy Council tried to reassert itself over local authority with increasing forcefulness. By the 1770’s, the long-standing mutual conversation contextualized by the transatlantic constitution was coming to an end. 

This narrowly focused study necessarily brings up questions of comparison to other colonies’ practice and relationship with the Crown. What conclusions could be drawn about the transatlantic constitution, if one examined colonial cases in say, Virginia? Would the conversation appear to be as coherent? Additionally, how can one examine the legal culture’s impact on the argument for the American Revolution? How does it compare to, say, T.H. Breen’s commercial and cultural argument? A synthesis of studies focusing on other aspects of the causes of the American Revolution would be an interesting companion to Bilder’s legal history focus. 

[[Category:Early America/Colonial History]]
[[Category:Mary Sarah Bilder]]
[[Category:Wikify]]
[[Category:Book Summaries]]