This is an unusual and valuable work, a carefully thorough exploration by a learned and experienced jurist of the legal steps by which English law was received by the various colonies beyond the British Isles that were established by or came under the sway of the British crown. B. H. McPherson, formerly judge of appeal of the Supreme Court of Queensland, examines for their constitutional implications the early laws of each of the Australian states, each of the Canadian Provinces, the United States, New Zealand, the West Indies, India, and other former British possessions. He has digested a vast amount of case law and legislation into a comprehensive (at least for the colonies of settlement), clear, and readable account of the processes of adoption—and adaptation—of English law throughout the world. This book will become a standard reference work for constitutional historians in all of these countries.

For historians of Britain and of the British Empire more generally, this study is most useful in underlining and documenting several central themes that have not been unfamiliar but that have never been given so clear and documented a basis. One such theme is that of the built-in limitations upon crown power that English law possessed even from the first days of colonization that for the most part were lacking in the laws of its European peers. And of course such limitations only strengthened during the seventeenth and eighteenth centuries as the notion of “the Englishman's birthright” of liberties spread and solidified. A second and perhaps equally pregnant theme is that of the indefiniteness of “fundamental” law in the English world. Typical was the status of royal instructions to governors: McPherson notes that although “a leading authority on colonial law claims that [they had] the force of law … their precise legal status has never been judicially determined” (157–58). Such lack of clear definition made much room for flexibility and adjustment to new situations. Thus, McPherson shows that, while English law spread far and wide in the new realms, it was not so much transmitted as adapted to particular local circumstances.

Another important theme that emerges in this work is the continual tug between centripetal and centrifugal pressures in English colonies—between local settler demands for their “birthright” of liberty and self-government, or, in the case of conquered realms such as India, long-established local laws and customs, on the one hand, and the desire of an imperial bureaucracy for both control and legal uniformity, on the other hand. This ongoing tension ensured that the gradual growth of self-government would preserve a high degree of legal commonality across the empire. For conquered peoples, most notably Indians, it meant initial deference to Hindu and Muslim law but an increasing “Anglicization” over time. Here the scope of the vague but powerful notion of “repugnancy” (in the guiding principle that preexisting laws of the conquered were generally to be respected except where such laws were “repugnant to justice, equity or good conscience” [168, 349]) tended to expand over time with the self-confidence of the conquerors. Even explicit policies later developed of “indirect rule” tended only to slow, rather than rule out, the expanding adoption of English law. Consequently, the Indian legal system, as Indian jurists have often noted, and also most legal systems of former British African colonies are very recognizably a development of English law.

It is on colonial law as it applied to conquered populations, in contrast to that for settlement colonies, however, that this book is less satisfactory. McPherson is not much interested in this aspect of imperial law. Almost throughout, his focus is on the reception of English law in the colonies of settlement, including the United States, and colonies of conquest, with large subject populations, enter the story largely to fill out, by extension and comparison, this primary story. Another volume, or more, is needed to adequately address the complex story of reception in these lands. However, the story of how the reception of English law affected indigenous peoples in the colonies of settlement is a part of the story told here that comes in only glancingly and, one must say, over optimistically. In discussing the question, which soon arose in all these colonies, of whether and to what extent indigenous peoples were legal citizens, McPherson tends to take formal legal pronouncements as guides to legal practice and outcomes. After Australian aborigines, for example, were declared to come under the same law as European immigrants, their experiences of this law continued to be quite distinct. To remark, as McPherson does, that from the early nineteenth century, “settlers who murdered Aboriginals, and Aboriginals who murdered settlers, were, if identified, routinely prosecuted and convicted in courts in Australia” (200) is highly misleading. In fact, few of the former were ever prosecuted for murder, and certainly in the first century of settlement hardly any were ever convicted.

One does not have to be a “left” historian to acknowledge that, through most of their history, the space between the theory and the practice of legal equality between the races in British settler colonies was wide. The issue of what the reception of English law meant in practice for indigenous peoples demands much fuller and more careful treatment than it is given here. Doing so would also fruitfully complicate the rather complacent tone of this work, forcing to the surface more critical questions about the relationship of legal history to history per se than are here addressed. At the same time, one should not let this shortcoming detract from the major accomplishment of this work: it provides a most thoughtful and judicious synthesis of a huge body of legal materials.