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Boston College Law School
Boston College Law School Faculty Papers
Year
2005 Paper
42
The Transatlantic Constitution: Colonial Legal Culture and the
Empire
Mary Sarah Bilder
Reproduced from The Berkeley
Electronic Press (bepress)
http://lsr.nellco.org/bc/bclsfp/papers/42
Copyright (c)2005. Posted with permission of the author.
The Transatlantic Constitution: Colonial Legal
Culture and the Empire
Mary Sarah Bilder
Abstract
Departing from traditional approaches to colonial
legal history, Mary Sarah Bilder argues that American law and
legal culture developed within the framework of an evolving,
unwritten transatlantic constitution that lawyers, legislators,
and litigants on both sides of the Atlantic understood. The
central tenet of this constitution– that colonial laws and
customs could not be repugnant to the laws of England but could
diverge for local circumstances–shaped the legal development of
the colonial world.
Focusing on practices rather than doctrines,
Bilder describes how the pragmatic and flexible conversation
about this constitution shaped colonial law: the development of
the legal profession; the place of English law in the colonies;
the existence of equity courts and legislative equitable relief;
property rights for women and inheritance laws; commercial law
and currency reform; and laws governing religious establishment.
Using as a case study the corporate colony of Rhode Island,
which had the largest number of appeals of any mainland colony
to the English Privy Council, she reconstructs a largely unknown
world of pre-Constitutional legal culture.
Note: This abstract refers to the book The
Transatlantic Constitution: Colonial Legal Culture and the
Empire, by Mary Sarah Bilder. Available at this site for
downloading is a brief excerpt from “Introduction: The
Transatlantic Constitution and the Colonial World,” pp.1-3,
10-11. It is included here with permission of the copyright
holder. Excerpt from Mary Sarah Bilder, “Introduction: The
Transatlantic Constitution and the Colonial World” in
The Transatlantic Constitution: Colonial Legal
Culture and the Empire (Cambridge:
Harvard University Press, 2005), pp. 1-3, 10-11
Copyright © 2004 by the President and Fellows of
Harvard College
Reprinted with Permission
In December 1772, Chief Justice Stephen Hopkins,
who soon would be a revolutionary and would sign the Declaration
of Independence, wrote to the English Privy Council that he and
his fellow Rhode Islanders were “judges, under a peculiar
constitution.” Explaining what he meant, Hopkins said that the
“local situation”—that is, circumstances in Rhode Island—created
a “necessary and unavoidable difference in our modes of
practice, laws & customs.” He assured the Council, however, that
these differences were “not in any essential point whatever
repugnant to the laws of Great Britain.” 1
The central
principle—that a colony’s laws could not be repugnant to the
laws of England but could differ according to the people and
place—bound all the American colonies.
This repugnancy principle
became the basis of what I call the transatlantic
constitution. For a
century and a half, this constitution developed
as a continuous conversation among litigants, lawyers,
legislators, and other legal participants over how and when the
laws of England should apply in the colonies. While the empire
that created the transatlantic constitution faded with the
American Revolution, its legal culture survived to construct the
skeleton of federalism and mold early national constitutionalism
in the United States. This book is about the development of the
transatlantic constitution in one particular colony, Rhode
Island, and, of no less importance, the legal culture that grew
up around it. Contemporaries did not call it the “transatlantic
constitution.” As Thomas Paine wrote in Common Sense
(1776), the American colonies had a “constitution without a
name.” In choosing the phrase, I use the term constitution
in a sense unfamiliar to some readers. Through most of the
seventeenth and eighteenth centuries, constitution did not refer
to a specific document or even a specific, known set of laws. In
certain situations, constitution
carried the meaning of “that which is
constituted,” an idea of the constitution as representing an
almost anthropomorphic, organic body politic, with its history,
geography, social and cultural composition, and
well-being. At other times,
constitution related to more specific
laws, principles, customs, and institutions, but here again, not
to a discrete group of laws. The transatlantic constitution
encompassed the political structure of the English empire in
North America (the dual authorities of England and the colony);
the central legal arguments legitimated by this structure (the
principles of repugnancy and divergence); the determinative
underlying policy (the effective functioning of the English
empire); and the accompanying practices (such as the Privy
Council’s review of colonial acts and hearing of colonial
appeals).
21 Letter of Stephen Hopkins, et
al. in Freebody v. Brenton (Dec. 1772), PC 1/60/10.
2 For an excellent discussion of
early understandings of constitution, see Daniel
Hulsebosch, “The
Constitution in the Glass Case and Constitutions in Action,” 16
Law and History Review 397-401 (1998); Hulsebosch,
“Imperia in Imperio: The Multiple Constitutions of Empire
in New York, 1750-1777,” 16
Law and History Review
319-326 (1998); Bernard Bailyn,
The Ideological Origins of the American Revolution,
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2 The Transatlantic Constitution
This transatlantic constitution existed as both
an unwritten and written constitution. As an overarching
arrangement of authority, it was unwritten, located in the
history and purpose of the English empire in America.
Nevertheless, specific boundaries were written into the colonial
charters. The 1663 Rhode Island charter articulated the two
central principles—repugnancy and divergence: The laws,
ordinances and constitutions [of Rhode Island], so made, be
not contrary and repugnant unto, but as near as
may be, agreeable to the laws of this our realm of England,
considering the nature and constitution of the place and people
there.
First, the colony was an extension of the realm
of England. Colonial laws, therefore, could not be contrary or
repugnant to the laws of England. As the Board of Trade wrote in
the 1730s: “All these colonies . . . by their several
constitutions, have the power of making laws for their better
government and support, provided they be not repugnant to the
laws of Great Britain, nor detrimental to the Mother-Country.”
Repugnant carried a broad set of cultural meanings
including being contrary, contradictory, inconsistent,
incompatible, and oppositional, as well as eventually also
connoting strong dislike or aversion. Second, however, law and
government should relate to the people and the place. Colonial
laws thus only needed to be “agreeable” or, in the words of the
Rhode Island charter, “as near” to English laws as “may be”
“considering the nature and
constitution of the place and people there.” In
short, colonial laws could diverge for colonial circumstance so
long as they were not repugnant to the laws of England. The
repugnancy and divergence principles linked the organic and
legal notion of constitution. 3
* * *
The transatlantic constitution cast a shadow over
this country’s constitutional founding and early national
period. Its existence helps to explain the rapid acceptance of
federalism and judicial review of state legislation and the
profound theoretical problems with judicial review of
congressional action. The transatlantic constitution, with its
principles of repugnancy and divergence, remains deeply embedded
in American legal culture. We see it in our commitment to
federalism as a conversation between dual authorities and our
desire to have clear constitutional prohibitions and fuzzy areas
of divergence. We hear it in our endless debate over whether the
written constitution can be read as a living constitution that
should change with a changing vision of the nation. We speak it
when we maintain our commitment to dialogue in which the laws of
the states
rev. ed.
(Cambridge, Mass.: Harvard University Press, 1992), pp. 184-192
(orig. pub. 1967); John Phillip Reid, Constitutional History
of the American Revolution, abridged ed. (Madison:
University of Wisconsin Press, 1995), pp. xviii-xx, 3. For
Thomas Paine, see his Common Sense (Philadelphia: W. & T.
Bradford, 1776), appendix.
3 R.I. Recs., vol. 2, p. 9; Board of Trade to the House
of Lords (Jan. 23, 1733/34) in CHS Coll., vol. 5, pp.
446-447. On the origins of the Rhode Island charter, see Sydney
V. James,
John Clarke
and His Legacies:
Religion and Law in Colonial Rhode Island, 1638-1750 ,
ed. Theodore Dwight Bozeman (University Park:
Pennsylvania State Press, 1999), pp. 59-83; James, Colonial
Rhode Island: A History (New York: Scribner,
1975), pp. 67-70; and Patrick T. Conley,
Democracy in Decline: Rhode
Island’s Constitutional
Development, 1776-1841
(Providence: Rhode Island Historical Society, 1977), pp. 22-23
n.3. For meanings
of repugnancy, see The Oxford English Dictionary,
2nd ed., (New York: Oxford University Press, 1989),
vol. 13, pp. 675-676.
http://lsr.nellco.org/bc/bclsfp/papers/42
are reviewed for conformity with the laws of the
United States. The transatlantic constitution was our first
constitution; it shaped the new country and in surprising
respects continues to define the nation we share today.
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