A Common Law? Legal Pluralism in the Eighteenth-Century British Empire [electronic resource].

9780438902497

Ann Arbor : ProQuest Dissertations & Theses, 2018.

1 online resource (485 p.)

Access is available to the Yale community.

This dissertation offers a new account of why the British Empire selectively transplanted English law to the colonies it acquired after the Seven Years' War. It argues that the extent to which each colony received English law depended on what kind of colony policymakers wanted to create. Eighteenth-century policymakers thought that English law could turn any territory into an anglicized, commercial colony on the model of Britain's North American settlements. Preserving preexisting laws, in contrast, would lead to extractive economics that were easier for Britain to control. By deciding how much English law each colony received, British officials hoped to shape its economic, political, and cultural trajectory. For most of Britain's new acquisitions, there was a broad consensus in favor of anglicization. As a result, Britain introduced English law to Senegal, the Floridas, and the West Indies with little debate. But when it came to Quebec, the Illinois Country, and Bengal, policymakers divided sharply about what kind of colonies they wanted. Accordingly, they disagreed about whether to introduce English law. Britain's encouragement of legal pluralism in those colonies reflected the victory of a Tory vision of empire over Whig alternatives. Britain's use of legal pluralism to shape colonial development reflected the growing importance of state institutions for resolving commercial disputes. Until the middle of the eighteenth century, merchants had usually been able to settle their differences without courts or lawyers. But that changed as credit transactions became more impersonal and disputes became more focused on short-term victory than long term relationships. As a result, merchants sought more formal ways to settle their differences, and even "private" arbitration came to depend on state law. The law's heightened importance enhanced the state's control over merchants and strengthened the importance of whatever law the state chose to administer. Although Tories successfully implemented their preferred policy of legal pluralism in Quebec, Illinois, and Bengal, Whigs were more successful in defending the common law's primacy in England itself. This was particularly true with respect to specialized merchant courts. Contrary to widespread assumptions that British merchants had little interest in a court of their own, seventeenth- and eighteenth-century merchants repeatedly asked Parliament to create lawyer-free tribunals that would offer quick, cheap, and expert decisions by merchant judges. Their efforts failed thanks to a combination of self-interested lobbying by lawyers and a commitment by radical Whigs to the supremacy of common-law adjudication. The rejection of merchant courts intensified the sense of distance between England, where the common law remained supreme, and its jurisdictionally complex colonies. This historical account challenges prevailing ideas about how the common law spread around the world; how law affects economic development; and the relationship among legal pluralism, religious toleration, and humanitarianism.

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August 21, 2019

Thesis (Ph.D.)--Yale University, 2018.

Yale University.