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Book Review
| Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire, Cambridge: Harvard University Press, 2004. Pp. 308. $49.95 (ISBN 0-674-01512-6).
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| Mary Sarah Bilder makes large claims from narrow sources, but the care with which she wields her sources protects her work and gives shape to the window through which she seeks to recover the lost world of Anglo-American legal practice before 1776. Her sources are the private appeals of litigants from the tinest colony in America, Rhode Island, to the final authority of the Royal Privy Council in England. These rather sparse records across two centuries typically contain minimal data and a bare-bones decision, one without justification of any kind, and yet Bilder uses them to posit "a transatlantic constitution" and an emerging "commitment to federalism"—attitudes that "define the nation we share today." |
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These are grand assumptions. What makes them possible? Bilder begins by situating her work within the reciprocal processes of legal practice as opposed to the formal political lines of authority that yielded "an Imperial Constitution" to a previous generation of scholars. To look closely at the rough-and-tumble pace of actual case law in a commercially vibrant Anglo-American world is to discover a far more interactive constitution, a world of exchange "in which disagreement over the content, extent, and application of English law was a legitimate expression of English men and women on both sides of the Atlantic." Bilder reminds us that a constitution at that time meant "what was constituted" rather than a formal document or even an exalted understanding and that "what was constituted" at the time involved messy inheritance and business practices that required regular adjustment in coping with the different conditions in colony and mother country. |
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Courtroom decisions exist at the break point in these practices and in themselves supply indicators of change. The result—born of cases brought from America based on new arrangements in property, commerce, and religion—is joint acknowledgment of the need for flexibility in legal doctrine. The rubrics that Bilder discovers for implementing change—she calls them principles—are repugnancy and divergence. American laws could diverge from their English equivalents on the basis of need, but they could not be contrary or repugnant to them without falling outside of "this our realm of England." |
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Bilder follows her individual cases minutely in marvelous acts of reconstruction. A detective, she is also a knowing judge of her material and its limitations. She uncovers a remarkable volatility in the decisions reached in Privy Council cases, particularly across time—so much so that it is hard to disagree with her conclusion that we are in the presence of a mutual debate over accepted legal doctrine rather than the linear command structure of an imperial regime. Possible "repugnancy" in a colonial case operated as a baseline for distinguishing what had to remain English, but the regular admissability of "divergence" supplied a counter and an acceptable American answer. Not painlessly but definitely, the regular use of these terms belonged to twin authorities at work on either side of the Atlantic. |
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Can Rhode Island speak for America? Who were these litigants from Rhode Island who managed to gain the recognition of the Privy Council? How far does twin authority across the Atlantic carry us toward a dual authority within the American strand? Bilder is one of those energetically prudent scholars who appear in full control of their considerable enthusiasms. She never exaggerates her cases. She welcomes other investigations, but she rightly understands that the micro-level of investigation that we find here represents the work that is now needed in legal history, and she does not shy away from the extensions that are possible from it. |
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There is, in fact, considerable grace in Bilder's ability to supply the details without losing her reader in them. Explicit and carefully explained in every litigation cited is the presence of the recurring legal argument that framed a transatlantic constitution: "was the law or practice repugnant to the laws of England or a legitimate divergence?" One cannot read these cases without realizing that the constitution, such as it was, clearly belonged to both sides of the Atlantic for shaping and mutual understanding. Nor is Bilder off base to find the same queries alive and well in the construction of the Federal Constitution in 1787. Alexander Hamilton and other lawyers well beyond Rhode Island would find meaning in the same terminology. |
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Bilder focuses on colonial America and its understandings, but we see just enough at work in these earlier periods to gain new insight into the miracle of public documents that would flourish in the new nation between 1776 and 1820. Provincials they may have been, but the Americans of the early eighteenth century were already engaged in refining arguments over who could impose what constitution on whom in any given situation. Already, too, it was lawyers who had the lingo in both its technical and rhetorical aspects, and they would use both to control the writing out of a new kind of constitutionalism when that became necessary. |
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| Robert A. Ferguson
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| Columbia University |
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