The Transatlantic Constitution: Colonial Legal Culture and the Empire

The Transatlantic Constitution

The Transatlantic Constitution

Colonial Legal Culture and the Empire

Mary Sarah Bilder

HARVARD UNIVERSITY PRESS

Cambridge, Massachusetts

London, England

Copyright © 2004 by the President and Fellows of Harvard College

All rights reserved

Printed in the United States of America

First Harvard University Press paperback edition, 2008

Library of Congress Cataloging-in-Publication Data

Bilder, Mary Sarah.

The transatlantic constitution : colonial legal culture and the empire /Mary Sarah Bilder.

p.   cm.

Includes bibliographical references and index.

ISBN 978-0-674-01512-8 (cloth : alk. paper)

ISBN 978-0-674-02719-0 (pbk.)

1. Constitutional history—United States.   2. Constitutional history—Rhode Island.   3. Constitutional history—Great Britain—Colonies.   I. Title.

KF4541.B55 2004

342.7302’9—dc222004052615

Contents

Acknowledgments

A Note on Legal Terms

Introduction: The Transatlantic Constitution and the Colonial World

ITHE TRANSATLANTIC LEGAL WORLD

1Legal Practitioners and Legal Literates

2The Laws of England

3The Laws of Rhode Island

II TRANSATLANTIC LEGAL PRACTICE

4The Transatlantic Appeal

5Women, Family, Property

6Personnel and Practices

III VISIONS OF THE TRANSATLANTIC CONSTITUTION

7Religious Establishment and Orthodoxy

8Commerce and Currency

9The Transatlantic Constitution and the Nation

Notes

Index

Acknowledgments

In writing this book, I have benefited from advisors, colleagues, friends, and family. I am grateful to the three readers of my dissertation, on which the book is based: Bernard Bailyn, David Hall, and Morton Horwitz. I am equally appreciative to Alfred Brophy, Kathryn Preyer, and Aviam Soifer for much encouragement and advice. Within the legal history profession, I would like to thank, for particular assistance with this project, Barbara Black, the late Elizabeth Clark, Charles Donahue, Robert Ferguson, David Konig, Maeva Marcus, Bruce Mann, David Seipp, Chris Tomlins, Bill Treanor, Michael Vorenberg, and Carol Weisbrod, as well as Harvard University Press’s outside readers. I appreciate the support of many colleagues, and for specific encouragement for this endeavor I thank Sharon Beckman, Daniel Coquillette, Anthony Farley, Phyllis Goldfarb, Frank Herrmann, Ruth-Arlene Howe, Sanford Katz, Ray Madoff, Sharon O’Connor, James Rogers, and Fred Yen of Boston College Law School; John O’Keefe and the late Alan Heimert of Harvard University; Kevin Van Anglen of Boston University; Standish Henning of the University of Wisconsin; and the late Francis Murnaghan of the United States Court of Appeals for the Fourth Circuit. Lastly, I am grateful to my editor, Kathleen McDermott, for her insightful comments and excellent suggestions throughout the publication process, and to Wendy Nelson for her careful copyediting.

This project started after I began teaching at Boston College Law School, and I thank Boston College and the Law School under Deans Aviam Soifer, James Rogers, and John Garvey. I am grateful to the alumni for generous financial support through the Boston College Law School Summer Research Grants from the Law School Fund, the Libby Fund, and the Wekstein Fund, and to the University for support through a Boston College Distinguished Research Award, a Research Incentive Grant, and a Boston College Travel Grant. I am particularly appreciative of Director Joyce M. Botelho and the John Nicholas Brown Center for the Study of American Civilization at Brown University for providing support during the fall of 1998, which made the Rhode Island archival research far easier. Presentations at the annual meeting of the American Society of Legal History, University of Alabama Law School, Arizona State University School of Law, Boston College, the University of Chicago and the American Bar Foundation, Columbia Law School, Fordham Law School, the John Nicholas Brown Center, the University of Illinois Law School, the University of Kansas Law School, the University of Virginia Law School, and the University of Limerick College of Law provided helpful comments, and I thank all of the individuals who extended invitations and offered comments.

Many librarians and archivists provided valuable research assistance. Archivist Stephen Grimes at the Rhode Island Supreme Court Judicial Records Center provided invaluable assistance, and I appreciate his endless efforts and those of Andrew Smith in tracking missing case files. I am grateful to Jonathan Thomas, Stephen Salhany, and Jonathan Koffel at Boston College Law School for their efficient acquisition of books through interlibrary loan. I also appreciate the assistance of David Warrington at Harvard Law School’s Special Collections Department and the archivists and librarians at the National Archives Public Record Office in Kew, the British Library, Lambeth Palace Library, the John Carter Brown Library, the Rhode Island State Archives, the Newport Historical Society, the Rhode Island Historical Society, the Rhode Island Supreme Court Judicial Records Center, the Boston Public Library, the Massachusetts Historical Society, and the Law Library of Congress. I thank these collections and the United Society for the Propagation of the Gospel for permission to use and quote their materials. I am grateful for typographical and other assistance from Virginia Grogan, Alice Lyons, Ann McDonald, Liza Miller, and the Word Processing and ATR staff at Boston College Law School. I also thank Kimberly Dean, Elizabeth Costello, Michael Goldman, and Allison Schwartzman, who helped me recheck footnote sources.

My husband, David Mackey, has been optimistic throughout that the book would see the light of day, and I am endlessly grateful for his good humor and love. Eleanor Mackey patiently kept me company through many revisions. Dana and Elisabeth Mackey were always enthusiastic. Anne, David, and Deborah Bilder, Lawrence and Veronica Bilder, Bill Mackey, and my grandfather, the late Harry Robbins, were encouraging throughout. Above all, I am grateful to my parents, Sally and Richard Bilder. Without their example and love, I would not have been steadfast until the end.

Chapter 1 draws on my earlier article The Lost Lawyers: Early American Legal Literates and Transatlantic Legal Culture, 11 Yale Journal of Law & the Humanities 47–117 (1999). Some material in chapter 2 draws on my The Origin of the Appeal in America, 48 Hastings Law Journal 913–968 (1997), and my Salamanders and Sons of God in The Many Legalities of Early America, ed. Christopher L. Tomlins and Bruce H. Mann (Chapel Hill: University of North Carolina Press, 2001). An earlier version of portions of the book appears in my Ph.D. dissertation, Salamanders and Sons of God: Transatlantic Legal Culture and Colonial Rhode Island (Harvard University, 2000). Readers interested in knowing more details of many of the cases might consult that version.

____

A Note on Legal Terms

This book has been written for those interested in American history and legal history. Portions of the discussion necessarily delve more deeply than others into legal issues. I have attempted to briefly explain legal terms within each section. Nevertheless, the following brief overview of some basic legal terms and concepts may be a helpful reference for readers, though it necessarily omits many details.

A colonial lawsuit involved a plaintiff (the person who was bringing the suit) and a defendant (the person who was being sued). The plaintiff filed a complaint to start the suit in the courts. The defendant could file an answer to this complaint. The court (the judges and jury) would hear the case. The judges usually decided any questions about the law before the jury made the decision. The losing party could ask for a rehearing of the case in the same court or appeal the case to a higher court. The party bringing the appeal was called the appellant. The party defending the appeal was called the appellee. The reasons of appeal were the appellant’s explanation of why the initial decision was wrong. A brief was a more formal legal document summarizing the facts and legal issues in an appeal.

A person could sue as long as there was a recognized legal action that gave a right to sue. Civil suits—suits for property or personal damages—could not be brought forever; they were limited to a certain period of time set by a statute of limitations. Once the statute of limitations had run out the person had no legal recourse even if the person remained wronged. A person suing had to fit the dispute into preset categories, such as trespass or slander. In England, lawsuits were heard in two different sets of courts: the common law courts and the chancery courts. The division was complicated, but chancery courts basically heard the subset of laws involving equity—for example, cases involving wills and inheritances, many commercial law cases, cases alleging fraud, and cases requesting waivers of traditional legal rules such as the timely repayment of mortgages. In the colonies, this division between law and equity was a contested issue.

A number of the cases discussed in this book involved property law—cases about land (real estate) or money and goods (personal estate). The law treated land not only in terms of physical boundaries but also conceptually as an estate. An estate described the manner in which the possessor of the land held the land—in essence, the rights the person had with respect to the land. There were many rights over land, but the crucial ones were the right to possess and use the land (often referred to as the right to enjoy the land), to sell or give the land, and to devise the land (leave it in a will).

Three basic kinds of estates appear in this book: fee simple, fee tail, and life estate. A person passing land in a will or a grant would specify which estate the recipient would hold. Fee simple carried with it all land rights recognized by law. A person who held land in fee simple could use, sell, give, or devise the land. The other two estates gave only limited rights in the land. Fee tail (often also referred to as entail) allowed the person who possessed the land to use it; however, that person could not sell or give the land away forever, nor could he or she devise the land. The person who possessed the fee tail was called a tenant in tail. Land held in fee tail automatically descended at the possessor’s death to a predesignated person (usually the next living male relative, but it depended on the entail). This person was usually referred to as holding a remainder or a reversionary interest. After receiving the land, he or she became a new tenant in tail; a new person held the remainder, and so forth over time until the bloodline ended. The third kind of estate, the life estate, was the right to possess and use the land during one’s life. The possessor of a life estate was called the life tenant. Because the estate evaporated at the life tenant’s death, the life tenant could not leave the land in a will. The land passed automatically to a predesignated person (a remainder) or the heirs of the grantor (a reversion).

Many of these cases involved inheritances. A person could devise property by will or could die without a will. A person who left property by will was a testator (if male) or testatrix (if female). A person appointed to handle the estate after the death was an executor or executrix (if named in the will), or administrator or administratrix (if named by a judge). A person who did not leave a will died intestate. Intestate property descended to the people recognized by law as the heirs—such as the eldest son, the male children, all the children, brothers, sisters, or a parent. In England, intestate property usually passed according to primogeniture. Under primogeniture, the eldest son received all the land. If there was no eldest son, then the eldest male relative took the land. There were complicated rules for determining who the eldest male relative was. In some areas of England, intestate practices passed the land to all the children equally (this was often referred to as gavelkind or partible inheritance). Other variations on intestate laws included the land passing to sons only or a scheme in which the eldest brother received a double share.

Wives and husbands did not inherit land as an heir from a spouse. Women lost rights over property when they married. The law referred to them as feme coverts. The husband and wife were seen as one—with the husband being the one. The husband had the right to manage the property; people sued the wife in her husband’s name; and she sued in her husband’s name. Under intestate law, a wife received a dower estate in her husband’s property: usually one-third of the real estate for life and one-third of the personal property. If a wife had property in her own name, her husband acquired an estate of jure uxoris—in essence, a life estate in her land while they were both alive. If they had children, he acquired an estate by curtesy (another type of life estate), with the land passing automatically to the children at his death.

The law recognized that land could be co-owned. There were two basic forms of co-ownership: tenancy in common and joint tenancy. Tenants in common simply held land in common, each with the right to use the entirety. When they tired of the shared relationship, they could ask a court to divide the land into shares (partition). When they died, the shares would descend to each co-owner’s heirs or under the co-owners’ wills. Joint tenants also held the land in common, but joint tenancy property was treated differently at death. When one joint tenant died, the land automatically went to the surviving joint tenant. Nothing passed to an heir under a will or intestate law. The surviving joint tenant ended up with the entire property free of restrictions and could leave it in a will or allow it to pass under intestate law.

____

Introduction: The Transatlantic Constitution and the Colonial World

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 terms of 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, that term did not refer to a specific document or even a specific, known set of laws. In certain situations, constitution meant 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).2

This transatlantic constitution existed as both an unwritten and a 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:

[T]he 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 of the transatlantic constitution linked the organic and legal notions of constitution.3

This structure related to the basic English understanding of law and the empire. As England had grown into a nation largely defined by law, it had aspired to have a universal set of laws of England to apply to all of its various regions. At the same time, English legal thinkers recognized that law needed to be diverse to respond to local circumstance. The developing idea of the common law attempted to resolve the problem by hypothesizing common laws growing out of the condition of being English in England. Imperial colonization expanded the problem. As an English colony, Rhode Island’s laws and governmental structures were to reflect those of England. As a far-off English colony, however, these laws and structures were expected to be in some way divergent. Too much divergence and the colony would not be English; too little and law would not be responsive to local conditions. Balancing the two depended on conceptions of the English empire. Uniformities in law and custom demarcated Englishness; divergences designated the advantages and diversities of empire. Colonial law was diverse because the local conditions—of people, economics, and authority—meant that the conversation between English law and local concerns played out differently in different places. Colonial law had commonalities, however, because the Privy Council used transatlantic legal culture to maintain consistency over aspects of policy that were crucial to the functioning of the empire at an imperial and a local level.

Because of the physical and temporal space presented by the Atlantic Ocean, the ambiguities inherent in transatlantic legal culture tended to remain unresolved. The continuation of a vision of England expressed in certain cherished English laws reassured colonists that they remained English far away from England. At the same time, an ocean away, colonial divergences were also less threatening and less likely to affect the uniformity of law in England. Temporal space similarly smoothed divergences and supported the unresolved ambiguities. The time involved in transporting laws and letters across the Atlantic allowed assemblies to alter laws and for possibly troublesome cases to settle. Indeed, time even provided a perfect excuse for divergence. In 1681 the English attorney general argued that general parliamentary laws could not be binding on the colonies because the colonists could not know about such laws until they were already technically bound. Temporal space, however, also increased the appearance of colonial repugnancy. When English law changed through statutes or cases, hitherto conforming colonial laws suddenly appeared contrary. Although dual legal authorities would come to be seen as theoretically incoherent—the classic imperium in imperio problem—for most of the colonial period the Atlantic permitted, and indeed necessitated and mediated, their coexistence.4

The conversation between colonists and London officials created the distinctiveness of transatlantic legal culture. English law and Rhode Island law each had plausible claims to determine particular issues. English officials and Rhode Island officials had legitimate reasons for believing that certain cases were more appropriately dealt with by their respective authority. Colonial and English officials thus often avoided placing the dual authorities in irreconcilable conflict. The Privy Council tried to promote its ultimate authority, while acknowledging the reality of colonial governance. The colonial government tried to self-govern, while acknowledging the Council’s theoretical hierarchical authority. This book portrays a Privy Council that, until the 1760s, dealt with numerous aspects of colonial regulation not with salutary neglect but instead under a certain set of rules. Through a transatlantic legal conversation of statutes, appeals, replies, reversals, affirmances, and dismissals, the representatives of these dual authorities negotiated the boundaries and dimensions of the transatlantic constitution. In certain legal situations, one side chose an English side and the other a colonial side. Yet in as many cases, Rhode Islanders argued both English and colonial law, Rhode Island courts disagreed among themselves over whether English or colonial law was authoritative, and the Privy Council alternated between upholding English law and deferring to colonial practices. In the end, for a century and a half, the transatlantic constitution worked because it was a constitution of nuanced context, not strict textual construction. Its legitimacy depended on its being a constitution not of answers but of arguments.

Rhode Island is admittedly off many historians’ beaten path. Although it was the first colony to join in revolution against the British, it was left with a bad reputation for its refusal to participate in the writing of the federal constitution. Moreover, its reluctance to abandon its colonial charter, until forced to by internal rebellion in the 1840s, makes it a somewhat atypical American state. Yet Rhode Island was a theoretically perfect American colony and an ideal location for exploring the repugnancy principle and the transatlantic constitution. Unlike most other colonies, Rhode Island retained its early corporate charter giving legislative and judicial power directly to the elected colonial government. The charter included no legal obligation to send colony laws to England, and the colony successfully fought off such a requirement. In other colonies, royal charters, crown-appointed governors, and a requirement that laws be sent to England for review ensured that transatlantic constitutional arguments arose as internal debates between a royal-appointed governor or judge and a colonial-elected legislature or in the private review proceedings of colonial statutes in England. In Rhode Island, however, transatlantic constitutional arguments arose in cases between private litigants that were appealed to the Privy Council. This development and the colony’s small bar made appealing to England more popular than in other colonies. As a consequence, Rhode Island sent more appeals to the Privy Council than any other mainland colony—approximately 30 percent of the total cases appealed. Through these cases, the transatlantic constitution becomes visible.5

Because transatlantic legal culture took local conditions into account, a brief background on Rhode Island may be useful. The colony was small. Land was not an inexhaustible resource, and the colony litigated boundary disputes with both Massachusetts and Connecticut. With around 10 percent of New England’s population, Rhode Island grew from approximately 5,200 people in 1675 to 60,000 by 1775. Refugees from the religious and governmental practices of Puritan Massachusetts settled there. Consequently, Rhode Island’s governing structure and a significant portion of its population retained an agnostic, at times hostile, attitude toward religious establishment and neighboring colonies. For years its white residents, particularly those in positions of governance, were largely of British descent. Intermarriages among the older families in the colony meant that by the early eighteenth century many families could trace their roots back to the original English settlers. The colony’s extensive coastline and seaports ensured that many Rhode Islanders participated in the mercantile trade. Merchants participated in the African slave trade, and in the exportation of Indian slaves and indentured servants. In the Narragansett region there arose a plantation economy dependent on slavery. The Narragansett tribe, which had controlled the area prior to English settlement, remained in possession of some of its land, and the tribe and the colony struggled over increasing English domination.6

These local circumstances influenced the types of issues that arose under the transatlantic constitution. In Rhode Island, Privy Council appeals were initially tied to boundary fights and large land claims. Disputed areas shifted toward land and family inheritance and then toward trade and currency. Cases involving Indian slave exportation and the Narragansett tribe also briefly appeared. Throughout the colonies, the transatlantic constitution and the repugnancy principle structured disputes. Were colonial laws repugnant to the laws of England and thus also violations of colonial charters? Were the laws, alternately, simply responding to local conditions? Did the colonies have to follow the traditional English common-law practice of primogeniture, or could they have intestate laws that left property to all sons or all children? Could the colonies have equity courts, or was the crown-appointed governor alone permitted to exercise such power? Were the colonies required to account for depreciation of their paper currency in the laws governing commercial transactions? Colonies with different histories, local economies, and social structures had different shifts in substantive transatlantic jurisprudence. For example, a study of appeals from the Virginian and Caribbean plantation economies might reveal a larger number of cases relating to slavery and inheritance. In these colonies, the repugnancy principle raised questions, such as whether colonies could consider persons held as slaves to be real property instead of personal property in intestate proceedings. Yet everywhere, legal disputes were repeatedly framed by consideration of the transatlantic constitution and the arguments of repugnancy and divergence.7

This book revisits two subjects of prior scholarship: the imperial constitution (the traditional term for the constitutional relationship between England and the American colonies) and the Privy Council appeals. In returning to these subjects I have drawn on recent work that views law as a legal culture composed of people and practices and sees the colonial world as part of a greater Atlantic world. Although, like scholars of the imperial constitution, I address issues of authority, constitutionalism, and judicial review, I have been less interested in constructing a conceptual demarcation of the legal structure of the empire than in engaging in a practical analysis about how the legal empire worked and, more importantly, how litigants worked within it. Implicit in this book is a belief that colonial legal practices shaped certain fundamental aspects of early national legal culture as much as English political or legal theory. Similarly, I address the appeals to the Privy Council, which were the subject of Joseph Smith’s impressive Appeals to the Privy Council from the American Plantations (1950). Smith went far in discussing administrative and procedural aspects of the Privy Council, carefully explicating many of the transatlantic arguments relating to prerogative, parliamentary, and charter authority; for the interested reader, these sections will reward a careful reading. But Smith’s work left many aspects of the transatlantic relationship unclear. As Smith acknowledged, his sources had much less to yield in respect of substantive law. Emphasizing lawyers, litigation, lawyering, and legal culture, I have embedded the appeals in the context of the people of Rhode Island and their legal life.8

In approaching the subject of the application of English law to the colonies, I have diverged from certain earlier approaches. What troubled Smith and has continued to bedevil scholars is that there seems to be no clear answer about when English law applied. I do not see this absence of clarity as a product of modern misunderstanding or a failure of logic on the part of the eighteenth-century world; instead, I believe it was essential to the functioning of the empire. Although the standard of Privy Council review in most cases—no repugnancies to English law—was simple on its face, legal participants understood that any particular case involved unresolved arguments over what constituted English law and whether something was repugnant or was a permissible departure for local circumstances. If modern American law has longed for theoretical, logical, and conceptual consistency over doctrines and institutions, transatlantic legal culture valued a certain pragmatism and flexibility.

I also have tried to avoid the tendency to write about colonial law as if it were trapped between opposites: either derivative and English or colonial and American, the frontier thesis in action. In truth, English law was not frozen in time but constantly changing. As I show, colonial observers followed English legal developments with great interest, the result being that old and new English law often coexisted in the colonies. In a similar vein, I attempt to establish the importance of statutes in the colonial period and the interplay of statute and case law both within the colony and between the colony and England. Lastly, I seek to illuminate the colonists’ pre-Revolutionary mindset, 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. Nonetheless, it has been difficult to completely abandon earlier conventions. At times, I contrast an English practice (one that had become the contemporary norm in England) with a Rhode Island practice (one that resonated in the colony, despite its origins in English practice or theory). In that vein, the brief last chapter traces the transformation of transatlantic legal culture into the constitutionalism and federalism of our modern American legal culture.9

The sources for this type of early colonial legal history are annoyingly sparse. There were no law schools or bar associations back then. The colonial Rhode Island courts and the Privy Council did not issue reasons for their decisions. Nor did anyone write treatises on colonial law or procedural guides to Privy Council practice. Moreover, there are interpretive problems with the sources that do exist. The dates and wording in statutory compilations are less than reliable. Seemingly familiar entities often have unfamiliar dimensions, and standard legal practices appear in strange locations: assemblies operate as courts; legal matters are raised in legislative petitions; courts rehear cases without regard to error; colony lawyers plead for English rules; crown law officers argue cases for colonists. Furthermore, familiar modern substantive law takes on a different historical shape. Areas of law such as equity that in our day have faded from view were in colonial days extensive, meaningful bodies of law, covering everything from inheritance to commercial law. Technical details of inheritance and property law—now ignored or forgotten—mattered. Seemingly simple exchanges of commercial paper, mortgages, and debt were actually leveraged transactions in a world of rapidly changing currency valuations. Lastly, factors that were blatantly obvious to contemporaries are almost impossible to rediscover. Aspects of everyday life such as extended family relationships, political friendships, and trading alliances likely influenced decisions more than can be discovered by resurrecting genealogies and commercial partnerships.

To recover the most from the documents and case files, I borrow methodological approaches ranging from prosopography to microhistory. These files are not representative of the average fact-based dispute. Although some of the litigants in the following pages appear to have commanded few economic resources, in Rhode Island it was overwhelmingly white litigants with economic means and political resources who participated in this transatlantic legal culture. The sole significant exception is the participation of the Narragansett tribe in a long appeal to the Privy Council. None of the Rhode Island cases I have examined involved an African or African-American litigant. Given the religious diversity in Rhode Island and the shifting areas of substantive law, however, the litigants included descendants of the Puritan settlers of Massachusetts, sons of the Jewish merchant families of Newport, members of the Anglican society of southern Rhode Island, daughters of prominent Quakers, and others. Most of the cases discussed were brought by affluent (and somewhat obsessed) litigants and appear today as thick files. A typical file for the Superior Court usually includes: a copy of the case in the inferior court (the warrant, the declaration, the answer, any pleas and answers, any evidence, the judgment); the reasons for an appeal to the Superior Court; the Superior Court case (testimonial evidence given, usually in the form of affidavits, documentary evidence, maps, objections, Court rulings on objections, any special verdict, the judgment); request for rehearing and judgment in rehearing; and notice of appeal to the Assembly or Privy Council. To this material, I have added any proceedings in the Assembly (reasons of appeal to the Assembly, response, evidence, judgment), at the Privy Council (petition of appeal, briefs, Committee report, order), and at any other local courts. In addition, where possible I have looked for relevant probate proceedings in town council and Governor’s Council, admiralty proceedings, related petitions to the Assembly, and parallel and ancillary cases.10

Judicial reasoning is rarely recorded for these cases. Explicit evidence of the rationales behind decisions survives only in written dissents and in occasional handwritten comments. My descriptions of arguments and reasoning are therefore usually based on reconstructing the case against the background of English and colonial law. In constructing the relevant English law, I have faced the same ambiguity that confounded colonists. The phrase laws of this our realm of England was used as the baseline against which to judge the possibly repugnant laws and practices of the colony. But did it mean all the various laws of England or a national conception of the laws of England? Were they embodied in a single text (such as Magna Carta), composed of a set of principal statutes and ancient property laws, or comprehended in the continually developing body of English law? Were they specific statutes and common-law doctrines, or did the above phrase signify the unwritten constitution of England itself? A variety of English legal sources, from treatises to statutes and case reports, might all be relevant—or not. I have attempted to construct the relevant law from texts and treatises that were available to Rhode Islanders and appear in their libraries. I am more confident of my reconstructions in the property and inheritance area, where my background as a teacher of property law has made it far easier for me to identify specific property law issues. The coverage of commercial cases after 1755 is therefore less detailed, and I hope that a commercial law expert will someday write a detailed treatment of transatlantic commercial law. Similarly, although repugnancy and divergence were fundamental principles in transatlantic legal culture, they were not the only available bases for argument. Many appeals also involved disputes over such matters as the scope of authority granted in charters or the breadth of parliamentary and crown prerogative. I focus on the repugnancy-divergence strand because it consistently structured the legal debates during