Wednesday, April 22, 2009

Spagnola reviews Bilder, The Transatlantic Constitution

Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Harvard University Press, 2008), is reviewed by Linda Spagnola, North Carolina State, for H-Law . Spagnola writes:
As more attention is paid to the interconnectedness of the Atlantic world, more books such as The Transatlantic Constitution: Colonial Legal Culture and the Empire will surely be forthcoming to illuminate the still murky corners of the genre. Mary Sarah Bilder has nicely combined the interest in Atlantic history with the resurgence in constitutional legal history. Her examination of the"transatlantic constitution" seems to be a natural and interesting continuation of the work of the maestros of constitutionalism--Bernard Bailyn, Gordon Wood, and Jack P. Greene:"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" (p. 1).

In her new book, Bilder argues that the "repugnancy principle"controlled the legal structures between England and her colonies.Simply stated, this principle required that colonial laws could not contradict the laws of England. More importantly, the corollary to this principle was the acceptance of "divergence" where the local conditions warranted and justified non-conformity. This is a new way of looking into the Atlantic legal relationship and the constitutional inheritance of America. Bilder argues persuasively that Rhode Island was negotiating both the intersections and voids between the colony's legal system (such as it was) and English laws and customs.

The bulk of the text is dedicated to careful, detailed analysis of various categories of case law in Rhode Island and their handling under Privy Council review. Bilder addresses first the issues associated with determining what the law actually stated and to whom it applied. English law was both formally codified and settled by usage and custom in particular areas. This characteristic simply exacerbated the issues presented to the Rhode Island colony which,spitefully, refused to present a codified version of its own laws to avoid English scrutiny. The transatlantic constitution seemed to be indefinite and in constant flux. A judgment of "repugnancy" versus"divergence" depended on the skill of legal argument: "If the English empire and Englishness required transatlantic uniformity, then some nonuniform colonial laws would be judged repugnant. If the colony could demonstrate that differences related to the nature of the colony and its people, then the colonial laws would be judged divergent" (p. 145). This uncertainty about where the line between divergence and repugnancy lay was the crux of the problem, and the dynamic thrill, artfully illustrated by the author.
Continue reading here.