Vol. 16 No. 8 (August, 2006) pp.645-648


THE TRANSATLANTIC CONSTITUTION: COLONIAL LEGAL CULTURE AND THE EMPIRE, by Mary Sarah Bilder.  Cambridge, MA: Harvard University Press, 2004.  308pp. Hardcover. $52.50/£33.95/€48.40.  ISBN: 0674015126.


Reviewed by: W. Wesley Pue, Nathan T. Nemetz Chair in Legal History, University of British Columbia.  Email: wpue [at] interchange.ubc.ca.


Interesting and informative in equal measure, Mary Sarah Bilder’s TRANSATLANTIC CONSTITUTION explains how constitutionalism worked in colonial America.  This will surprise and fascinate readers who imagine that the notions of “constitution” and Empire are mutually exclusive.  Even those familiar with the ways of the British Empire will, however, learn much from Bilder’s fine-grained exploration of Imperial Constitutionalism.


The book’s focus is an extended “conversation” between Rhode Island colonists and London officials over a period of a century and one-half of extraordinary transitions.  The book covers the years from the first Rhode Island Charter (1644) to the early American republic.  The original colonial Charter and its post-Restoration replacement (1663) required conformation with the laws of England unless circumstances peculiar to the colony required divergence.  The 1663 wording required that Rhode Island’s constitution, ordinances, and laws were to 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” (quoted at p.41).  Bilder argues that the essence of the “transatlantic constitution” is to be found in the processes negotiating the spaces between legitimate divergence and repugnancy.  With this as her frame of reference, she diligently traces the contours of the constitution as it was lived over time.


The essential “Englishness” of early Americans is a strong theme that emerges throughout the book.  This will not surprise specialists in colonial history, but the book illuminates the theme well.  An essential starting point – which could have been lost sight of – is Bilder’s recognition that variance between “common” law and local custom was no colonial innovation. The tension was, indeed, the essence of English homeland constitutionalism.  The question of the extent to which an English colony might properly diverge from English law is properly understood as part of a larger tale of transformations in the understanding of law and, indeed, of England itself.   Bilder explains that, simultaneously with North American colonization, the English were adapting their views of law from arrangements primarily “suited for local circumstances” to something “signifying national uniformity.”  In the result, “the colonial relationship evolved along with the English political state” (p.35).  Bilder evocatively describes Coke’s 1628 INSTITUTES, for example, as marking the transformation of “a geographically defined nation into a legally defined one” (p.33).  The imposition of a single “English” law was innovative in [*646] England itself, and more so when imposed on Ireland, Wales, the Channel Islands and the Isle of Man.  Even as such centralizing processes played themselves out within the British Isles, however, the logic of local divergence and local adaptation provided a persuasive source of local resistance in many cases (pp.34-35).  Across the sea, Rhode Island attorney William Morris understood arguments about divergence and repugnancy as part of English domestic law.  He was informed in part by Lambarde’s PERAMBULATION ON KENT, “which described the legitimacy of local custom in English law and linked Kent’s divergence . . . to the history of the county’s people, land, and legal institutions” (p.42).  The meanings of Englishness were, to some significant extent, negotiated amongst the English on both sides of the Atlantic (p.145).


Understanding this very English base-line is important to a proper appreciation of the cultures of colonial constitutionalism, and Bilder is to be commended for taking the task to heart.  Though explicit discussion of the Englishness, the transition from customary to common law, the notion of the “equity of the statute,” and such-like are limited to a few pages, the informing sensibility suffuses the entire work.  The relations amongst peoples and institutions on both sides of the Atlantic, all of, though not all in England is a powerful theme (and one which has registered significantly in other places and other times, notably the works of Michael J. Thoms (2004) and Douglas Harris (2001)).  There is certainly more to be made of this insight, but Bilder makes a significant contribution that deserves to be read by colonial and post-colonial historians everywhere, not just in the deviant colonies that became the United States of America.


Bilder traces the evolving contours of the transatlantic constitution – too often rather superficially and glibly understood by others as having to do only with “reception” statutes and dates – through a magnificent unpacking of its inner workings.  Her raw materials include diverse sources located on both sides of the Atlantic, encompassing lawyers’ papers, public archives, litigation records, records of parliamentary practices, and so on.  The book is divided into three parts.  Part I, “The Transatlantic Legal World,” includes chapters on “Legal Practitioners and Legal Literates,” “The Laws of England,” and “The Laws of Rhode Island.”  Much of the base-line is established here, while the dynamic evolution of the transatlantic English constitution is revealed in Parts II and III.  These are, respectively, headed “Transatlantic Legal Practice” and “Visions of the Transatlantic Constitution.”  Part II includes chapters on “The Transatlantic Appeal,” “Women, Family, Property,” and “Personnel and Practices,” while Part III deals with “Religious Establishment and Orthodoxy,” Commerce and Currency,” and “The Transatlantic Constitution and the Nation.”   


There is much more in this splendid, short, book than can be properly acknowledged within the space of a book review.  The issues at the centre of Rhode Island’s transatlantic [*647] constitutionalism evolved over time from contests focused on uniformity or divergence in property law (hence, inheritance, and gender relations) during the years up to the 1730s, to negotiation of  religious freedom and questions concerning uniformity of commercial laws or currency regulation thereafter.  For the most part, there was little contest over constitutional fundamentals, but much focus on the meaning of agreed principles in particular contexts.  In the chapter on “Women, Family, Property,” for example, we are told that, because “transatlantic jurisprudence did not offer a certain answer as to when English law applied . . . Rhode Islanders picked their way among the laws of England and Rhode Island” (p.103).  The many sources of English law provided a “buffet from which colonial attorneys could select the arguments necessary to bring, win, and defend cases for individual litigants” (p.115).


By the end of the eighteenth century, of course, things were somewhat less civil, less consensual, and less polite.  Like a “B” movie, everyone knows the end point of “colonial America” before they get there:  Boston’s wharf-side charivari and the rest of the “Revolution” loom, ever-present, in the background.  None of the lead-up to revolution is much discussed in Bilder’s work, no doubt for the very good reason that this particular terrain has been well-mapped. 


The concluding chapter is dedicated to showing what good “Brits” the rebellious “Americans” were (and what faithful seed of Albion their descendents have become).  This short chapter offers many insightful comments on state constitutions, judicial review, and the character of the USA constitution.  The enduring impact of the “transatlantic constitution” is well captured in Bilder’s concluding chapter:


Although the formal structure of the transatlantic constitution ended in 1776, its legal arguments and cultural practices continued to influence the American nation.  Transatlantic legal culture had been like an enormous American chestnut tree that had permanently affected the development of all in its shade.  Erasing this legal culture proved more difficult than repealing the appeals law and excising the king’s name from the charter.  The legal culture of the colonies had grown to maturity as part of a conversation about when the laws of England applied and when local laws and practices could diverge because of the people and place.  This culture came to revel in the existence and tension of dual authorities, it understood the advantages and disadvantages of having a distant decisionmaker, and linked constitutional interpretation to the changing substantive concerns of the empire.  The loss of the transatlantic relationship was dramatic.  Although Americans rejected the tree, they planted new saplings to cast similar shade. (p.186)


Just so. 


“America,” welcome back to the British world!  We’ve missed you.



Harris, Douglas.  2001.  FISH, LAW AND COLONIALISM: THE LEGAL CAPTURE OF SALMON IN BRITISH COLUMBIA. Toronto: University of Toronto Press. [*648]


Lambarde, William.  1656.  THE PERAMBULATION OF KENT. London: Mathew Walbanke.


Thoms, J. Michael.  2004.  OJIBWA FISHING GROUNDS: A HISTORY OF ONTARIO FISHERIES LAW, SCIENCE, AND THE SPORTSMEN'S CHALLENGE TO ABORIGINAL TREATY RIGHTS, 1650-1900. [microform]. Ph.D. dissertation, History, University of British Columbia.


© Copyright 2006 by the author, W. Wesley Pue.