Law’s Imagined Republic: Popular Politics and Criminal Justice in Revolutionary America (review)

Steven Wilf ’s study of early American law and politics is engaging, eloquent, and essential. Historians have sometimes started with familiar nineteenth-century legal institutions, then moved backward to find comparable structures and practices to consider as the source of what came later. By contrast, Wilf seeks to rediscover eighteenth-century law on its own terms, suggesting that the law’s very boundaries and meaning may have been different in that different time and place. In aid of that rediscovery, Wilf urges us to conceive of law as something “imagined”—meaning understood, discussed, and experienced in a variety of cultural, social, and political venues, not only in legislatures and courtrooms but also in published broadsides and newspapers and in the taverns and city streets where the people gathered “out of doors.” Law was “a public sphere” (1) in the early nation, Wilf suggests, and Americans of the day read the law “intertextually” (9), which is to say they viewed pieces of legislation and cases of law in the context of other laws, other cases, and a far broader discourse surrounding affairs of the day.

The book is a series of essays that do not, admittedly, add up to a single, coherent account of changes in law and politics in the early republic. Nor do the cases Wilf skillfully examines invariably support his ambitious theoretical formulations. Together, however, the essays provide striking insights and invite further exploration. Of particular value are Wilf ’s chapters on the resistance movement that preceded the American Revolution. The era saw an extraordinary proliferation of “law talk,” he notes, much of it focused not on “the abstraction of constitutional principles” but on the criminal law. Many colonists organized their protests against British policies using the language of legal punishments, as in hanging, parading, and sometimes burning effigies of British officials. These occasions allowed broad participation and expressed popular ideas of fairness. In the resistance movement, Wilf writes, “Americans rallied behind a new idea of criminal law with legal transparency and participation of the common people at its core” (10).

Wilf explores vernacular views in part by analyzing published narratives of crime and punishment that circulated in the 1770s. Ebenezer Richardson, a customs informer who killed a child by firing a gun into a Boston crowd, is a familiar figure to political historians; Levi Ames, a burglar in the same vicinity, might be better known to students of crime. Wilf shows that people of the day thought of these two cases in relationship to one another: Could it be justice that Ames hanged while Richardson got off ? More than merely legal cases, these were political matters. Wilf mines other intriguing criminal narratives to explore self-representation by convicted criminals in the 1780s. Another essay examines the reformers who grappled with criminal punishment in the post-Revolutionary decades. Americans imagined their own legal regime in light of republican ideals but also over and against two other systems—the “bloody code” of English law, which supposedly relied extensively on sanguinary punishments, and French Revolutionary violence of the 1790s. Equally important, Wilf notes the significant degree to which postwar Americans’ humanitarian reform of punishments involved making those punishments less participatory for the population at large. A closing essay illustrates the impact of vernacular law and popular political forms on both legislation and its enforcement, in the case of the New York Anatomy Act of 1789.

Short but ambitious, Law’s Imagined Republic raises many questions: Is the metaphor of “reading” the law—intertextually or otherwise—truly apt if we are trying to recover the ideas of people who encountered (and made) law in the courtroom, in public punishments, by listening to sermons or passing on stories of crime? Wilf suggests we consider criminals who wrote popular narratives as “founders” of the American republic (3), but isn’t it more plausible...