Mary Sarah Bilder. The Transatlantic Constitution: Colonial Legal Culture and the Empire. Cambridge and London: Harvard University Press, 2004. xiii + 291 pp. $49.95 (cloth), ISBN 978-0-674-01512-8.
Reviewed by Ellen Pearson (Department of History, University of North Carolina, Asheville)
Published on H-Atlantic (December, 2005)
Negotiating Autonomy: Rhode Island and the Atlantic Legal Culture
Over the past few decades, prominent historians of colonial and revolutionary America such as Barbara Black, Bernard Bailyn, and Jack P. Greene have introduced us to the idea of a transatlantic constitution. This constitution, a series of unwritten agreements between Britain and its colonies, allowed Britain's imperial government to function efficiently. Components included the English imperial structure, the central legal principles important to that structure, and the governmental policies and practices that helped the imperial structure to function efficiently. Although this body of authority was unwritten, specific expectations and administrative boundaries were written into the colonial charters. While other scholars have concentrated on the theories behind this "imperial constitution," Mary Sarah Bilder is most interested in how legislators and litigants in the colonies used this transatlantic constitution to their advantage.
Using the Rhode Island legislature's clever tactics for preserving its autonomy, along with citizens' appeals to the Privy Council, Bilder frames her argument within principles of "repugnancy" and "divergence." The transatlantic constitution's central principle was that "a colony's laws could not be repugnant to the laws of England but could differ according to the people and place" (p. 1). These repugnancy and divergence principles determined the legitimacy of colonial laws and legal practices. English officials expected that their colonies would follow English legal principles as they shaped legal institutions and laws. However, they did not always define "legal Englishness" as complete conformity to English law. They anticipated that local economic and social conditions might necessitate divergence from some English practices. English common law's ability to adapt to local concerns was central to the empire's success. On the other hand, neither the crown nor the colonists wanted colonial law to depart too much from the center. A legal structure resembling that of England gave the colonists important ties across the Atlantic and helped them to maintain their identities as Englishmen. Therefore, Rhode Island, like other colonies, walked a narrow line between responding to local conditions and straying too far from English practices.
Rhode Islanders' attempts to preserve their original charter, which gave them considerable autonomy, provides an important subplot for Bilder's discussion of the colony's constitutional negotiations with London. The Assembly watched nervously as London revoked neighbors' charters and replaced them with more restrictive documents that, among other things, required them to send their laws to the Privy Council for review. Rhode Island managed to retain its original charter, but the Board of Trade eventually demanded a copy of the colony's laws. Rhode Island's leaders feared that too much familiarity with their business would make London greedy for more control, and they used a variety of clever means to keep information from the crown. They first restricted crown officials' access to their legislation by not printing their statutes. Then, Rhode Island officials sent abstracts rather than exact copies of existing laws. This shrewd tactic allowed recorders to "silently revise" the statutes' language to conform to social change, or to make the laws appear closer to English law without official legislative action.
Despite Rhode Island's success at avoiding Privy Council review of its statutes, they could not escape the Council's scrutiny altogether. The Privy Council heard cases on appeal, the most common of which involved large land claims. According to Bilder, the central question in these appeals was whether colonial practices were repugnant to English law, or whether the acts in question could diverge from the laws of England. The appeal itself was part of Rhode Islanders' struggle to maintain authority over colonial affairs. The Assembly jealously guarded its power to hear appeals because legal power also represented political authority. But the Assembly's reluctance to allow appeals to the Council usurped authority that crown officials believed was their due. In the end, the Assembly established certain guidelines for the kinds of cases that could be appealed to the Privy Council, and the expense of such appeals made the group of appellants self-selecting. The Assembly permitted appeals regarding land titles to go to the Privy Council, thus surrendering the cases most likely to affect the rich and powerful of the colony. By handing over authority for these cases, however, Rhode Island preserved much of its autonomy and authority.
The transatlantic constitution represented a compact between metropole and colony; but each colony had to pay close attention to legal negotiations between the center and other colonies, lest those decisions should affect their own relationship with London. Bilder illustrates this interdependence through a complicated case that arose out of a plot of land allotted to support "an orthodox person that shall be obtained to preach God's words to the inhabitants" (p. 151). But, in Rhode Island, what was considered "orthodox" religion? In neighboring Massachusetts and Connecticut, orthodoxy was equated with Congregational/Presbyterian ministry, while in England, the Church of England was considered orthodox. But, as Bilder points out, Rhode Island's tradition of dissent and tolerance meant that no religion could claim orthodoxy over the others. The debate over the meaning of orthodoxy had potentially important consequences for Massachusetts and Rhode Island, as well as the colonies' religious orders. A Privy Council ruling that only the Church of England was orthodox would endanger Rhode Island's tradition of religious nonestablishment and Massachusetts's heritage of congregationalism as the mainstream. However, if Massachusetts's brand of dissent was accepted as orthodox, Rhode Island would lose its religious identity and autonomy. After thirty years of legal wrangling, the Privy Council refused to impose the Church of England as the "orthodox" church in Rhode Island. This move confirmed the colonies' ability to depart from England, as well as from other colonies, on matters of religion.
Bilder also finds change over time in the transatlantic constitution's administration. By the mid-eighteenth century, the Privy Council's concerns had turned from real property to personal property and commerce. Control over the imperial economy became the important component in British regulation, and the Privy Council wanted to ensure that British merchants could conduct their business under a uniform set of laws. Bilder points to the crown's increased attempts at control over paper currency and other monetary practices in the colonies, and the Council's low tolerance for divergence in these areas, as evidence of this emphasis on uniformity. The Privy Council's decisions on Rhode Island appeals in the 1750s, '60s, and '70s followed the familiar trajectory of increased control on the part of the center, discontent among citizens of the periphery, and eventual rebellion in 1776.
Although Bilder finds some evidence that indicates change over time, one of the shortcomings of her study is the small number of cases with which she had to work. She acknowledges that the limited number of sources allows her only to speculate with regard to trends. What Bilder lacks in quantity, however, she gains in quality. She asserts that these examples, though small in number, illustrate the flexibility of English common law and its ability to change over time and according to place, crucial characteristics for the effectiveness of the empire. Rhode Island's transatlantic negotiations provide important glimpses into one colony's constitutional fears and priorities. Bilder's work also offers a rich interpretation of the layers of relationships in the transatlantic world. Negotiations between and among family members and neighbors, strategies used by attorneys, and the dialogue between periphery and center reveal the complicated interweavings among economic, social, religious, and legal aspects of life in the empire. These characteristics make Bilder's work important reading for anyone interested in Anglo-American legal culture. Note
. See, for example, Bernard Bailyn, Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1992); Barbara Black, "The Constitution of Empire: The Case for the Colonists," University of Pennsylvania Law Review, 124 (1976): pp. 1157-1211; and Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607-1788_ (New York and London: W.W. Norton Publishing, 1990).
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Ellen Pearson. Review of Bilder, Mary Sarah, The Transatlantic Constitution: Colonial Legal Culture and the Empire.
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