The Transatlantic Constitution: Colonial Legal Culture and the Empire (Excerpt)

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

The Shrinking Back: The Law of Biography

The Article argues that quotations of copyrighted material used as fact should be protected. The Article explores the relation between the legal law of biography and the literary theory of biography, focusing specifically on the use of unpublished materials in written biographies. The Article surveys the assumptions underlying copyright, fair use, and privacy doctrines. The Article critiques fair use solutions suggested by legal commentary and congressional action and sketches a different analysis, not involving fair use. The fact use proposal would shift the burden from proving fair use to proving that the quotations were not used as facts

English Settlement and Local Governance

This essay traces colonial American institutional development between 1570 and the 1720s. An American manner of government characterized by dual authority and supervised, constitutionally limited lawmaking produced the Revolution and the commitment to federalism. The essay synthesizes nearly a century of scholarship on imperial and colonial institutional history. Focusing on practices of governance, the essay explains the delegation of authority under charters and patents, historical development of colonial government, and significance of the corporation or corporate colony, proprietary colony, and royal colony. The essay rejects the executive-legislative-judicial (separation of powers) model for colonial governance. Instead, the essay discusses governance by the Governor and Council, Assembly, and Privy Council. Turning to the culture of law in the settlements, the essay explores colonial courts (emphasizing the courts as a branch of executive or legislative authority), legal practitioners (exploring early legal education and attorney and lawyer regulation), and colonial law (tracing the debates over the relationship of English law to colonial law and the repugnancy principle, as well as surveying early American legal publishing). An extensive bibliographic essay explaining and surveying relevant primary sources and secondary works accompanies the essay at pp. 602-614. The essay provides a useful summary for scholars interested in colonial constitutionalism, colonial settler studies, imperial governance, the history of federalism and judicial review, or for those readers wishing an overview of American colonial government

Absent From the Convention: Libraries, Law and Political Philosophy: John Adams and Thomas Jefferson

Presentation by Professor Mary Sarah Bilder, as commentator, at the conference John Adams & Thomas Jefferson: Libraries, Leadership & Legacy, held in Boston and Charlottesville, June 21-17, 2009

New Directions in the Scholarship of the American Revolution

These brief comments were presented in May 2014 at a panel in honor of the late Professor Pauline Maier (including Mary Beth Norton, Gordon Wood, Bernard Bailyn, Robert Martello, and Mary Sarah Bilder). Professor Bilder proposed three areas for future work in the framing era: (1) reconsidering the conception of the “state”; (2) exploring continuities in governance practices as well as formal constitutional change to explain the rapid embrace of the new constitutional system; (3) relocating American development within a larger global narrative in which 1776 or 1787 do not begin or end the story, and the thirteen colonies are not the northern and southern boundaries

The Lost Lawyers: Early American Legal Literates and Transatlantic Legal Culture

Paul C. Kurtz wrote well, spoke and argued eloquently, wore a nice suit, and carried a briefcase. As an observer noted, \u27He looked 100 percent like a lawyer and conducted himself as a lawyer. Being an actual practitioner of the law, however, does not make one a lawyer in modern America. Lawyer status is conferred only upon those who satisfy formal definitions based on professional education and bar admission. Not surprisingly, on July 7, 1998, Mr. Kurtz was arrested for passing himself off as a lawyer. Three hundred years earlier, an English lord similarly refused to confer lawyer status on the legal practitioners of Rhode Island. In September 1699, Richard Coote, the Earl of Bellomont, arrived in Rhode Island to investigate the colony. Bellomont\u27s Rhode Island visit did not go particularly well. He found little to praise about the colony. In particular, he condemned the men who practiced law. Bellomont disparaged the General Attorney (the Attorney General), John Pocock, as a poor illiterate mechanic, very ignorant, on whom they rely for his opinion and knowledge of the law. \u27 He criticized the former General Attorney, John Greene, as very corrupt and brutish, with no principles in religion. He added that those men who served as the Governor and Assistants also knew very little law. Bellomont was horrified that such legally illiterate men were elected year after year while several gentlemen most sufficient for estate, best capacitated and disposed for his Majesty\u27s service were neglected and maligned. This Article takes issue with Bellomont\u27s judgment - and with the conventional vision of the seventeenth-century colonial legal world as Law without Lawyers. Adding to a growing number of accounts that seek to rethink the ways in which we understand and discuss early legal practice, this Article argues that legal practitioners were a constant - and powerful - element of early Rhode Island legal culture. Moreover, this Article suggests that these Rhode Island legal practitioners operated not in a colonial vacuum but as creative participants in a transatlantic legal culture

Blackstone in America

Remarks delivered at Rethinking the History of Early American Law: Kathryn Preyer\u27s Blackstone in America, held Thursday April 15, Massachusetts Historical Society, 1154 Boylston Street, Boston, M

Colonial Constitutionalism and Constitutional Law

This essay reconsiders the transformation of colonial constitutionalism to Constitutional Law. The transformation of constitutional law does not map neatly onto the 1776 - 90 period. This essay argues that the transformation was less the result of the admittedly important invention of a written constitution than of three less apparent transformations. A first essential transformation in constitutionalism occurred long before 1776 when seventeenth-century colonists created a new conception of the written and published charter as the location of authority and liberties. A second essential transformation occurred only after 1790 when appeals in judicial cases began to be publicly reported in print, thereby creating a stable and analyzable body of law. A third essential transformation occurred in 1787 - but with implications not immediately appreciated. Privy Council review of colonial legislation ended and no similar review took its place, thus leaving the judiciary the sole arbiter of constitutional law. These three transformations created modern American constitutionalism - a law two centuries in the making

The Constitution to \u3cem\u3eThe Constitution\u3c/em\u3e

An overview of the reasons that the 1787 Constitution lacked the historical and legal assumptions that underlie our contemporary idea of The Constitution. Appropriate for constitutional law courses and American history courses at the university and secondary levels. Excerpted from essay originally published in The New England Quarterly as The Ordeal and the Constitution and lightly edited for coherence

How Bad Were the Official Records of the Federal Convention?

The official records of the Constitutional Convention of 1787 have been neglected and dismissed by scholars for the last century, largely to due to Max Farrand’s criticisms of both the records and the man responsible for keeping them - Secretary of the Convention William Jackson. This Article disagrees with Farrand’s conclusion that the Convention records were bad, and aims to resurrect the records and Jackson’s reputation. The Article suggests that the endurance of Farrand’s critique arises in part from misinterpretations of certain procedural components of the Convention and failure to appreciate the significance of others, understandable considering the inaccessibility of the official records. The Article also describes the story of the records after the Convention but before they were published, including the physical limbo of the records in the aftermath of the Convention and the eventual deposit of the records in March 1796 amidst the rapid development of disagreements over constitutional interpretation. Finally, the Article offers a few cautionary reflections about the lessons to be drawn from the official records. Particularly, it recommends using caution with Max Farrand’s records, paying increased attention to the procedural context of the Convention, and recognizing that Constitutional interpretation postdated the Constitution