on the eighteenth century, when colonists had more power, and frontier treaties looked like their European counterparts, with articles and signatures.9 In the early period, however, there was little uniformity in treaty making.10 English and Native people ratified treaties with chants, shouts, gestures, and feasts; they exchanged gifts, trade goods, animals, weapons, and hostages (including women and children); they marked the landscape with footpaths, inscriptions, and monuments; and they engaged in many other kinds of shared practices that combined elements from Native and European traditions. English treaty records reflected the diversity of coastal politics. Until the middle of the seventeenth century, colonists rarely set down Indian treaties in signed documents (it was true, after all, that Indians could not sign their names or take oaths, at least as Europeans understood such things). They put them instead in genres better suited to portraying the politics of the coast. Like Archer, they recorded treaties in diplomatic relations, writing of feasts and solemn orations. Other times, they described them in land deeds, receipts of purchase, or other commercial genres, and the boundaries between trade, treaty, and purchase were (often intentionally) blurred. Still other treaties were printed in histories or evangelical exhortations, and became a medium for arguing about politics or religion at home. Nor was the English idea of a treaty limited to formal acts of ratification, like shouting or feasting. Colonists also wrote about the informal behaviors of their Native partners, their facial expressions, their postures, their negotiating strategies, their emotions, and anything else that might bear upon the question of consent. All these forms of expression, formal and informal, could be called on to prove Native acceptance of the English presence, and therefore English control of territory.
Early Anglo-Native treaty documents were never simply rote accounts of political transactions, set down according to some preexisting formula. They were rhetorical documents, crafted to meet the needs of particular constituencies (English and Native), and bundled with claims about land, sovereignty, and trade. Europeans used treaties for a variety of conflicting ends. In the early years of Virginia settlement, the joint-stock companies that financed colonial ventures cited treaties to show the crown and potential rivals that they had the Chesapeake Bay under control, and had reached a settlement with Powhatan, the paramount chief who commanded most of the nearby tribes. However, Spanish diplomats and spies eagerly disputed Virginia colonists’ reports of peace on the frontier, and rival English adventurers put forward counter-narratives of treaty negotiations that challenged the truth of reports like Archer’s. After the 1620s, the Spanish no longer posed a serious threat to England’s North American settlements, but English colonists were acutely aware of their Dutch and French rivals, and they continued to dispute land rights with each other, submitting treaty documents in petitions to the king. In the middle of the seventeenth century, Native treaties factored into contests between colonists, traders, and religious dissenters, all of whom pointed to treaty agreements to support various kinds of appeals to the crown. This transatlantic traffic in treaties was enormously consequential. A convincing treaty document could persuade the crown (and international onlookers) of the integrity of a claim. A broken treaty could cost colonists the king’s support, and invite threats from belligerent rivals at home and abroad. Indeed, as I will show at the end of this book, the Massachusetts Bay Colony’s failure to respect Indian treaties was one reason the English crown reviewed its charter and asserted direct control over its government after the Restoration.
Even though most of them could not write, Native people used treaties just as adeptly as the newcomers. Indeed, I will argue here that Anglo-Native treaties only make sense if we view them as part of a broader world of political communication that included oral and gestural politics as well as the written word. Scholarship has sometimes portrayed settlers and Natives as standing on opposite sides of a communication divide. The settlers were creatures of writing, while the Natives lived in an oral culture, and thus became the victims of written treaties they could not understand. The victim part of this story is certainly true. Many Native groups were destroyed, and others nearly so, through airborne pathogens to which they had no immunity, military assaults that left them divided and overwhelmed, and the slower genocide of territorial dispossession. But Natives were not helpless or ignorant. Especially in the first decades of settlement, they eagerly sought alliances with colonial governments to gain an advantage over rival tribes and chiefdoms. Many prospered for decades from such relationships before falling prey to hardening colonial policies or the encroachments of squatters.11 In extending these alliances, Native people often worked through transatlantic diplomatic channels.12 While few acquired alphabetic literacy in the seventeenth century, it was not always necessary to read or write in order to influence transatlantic politics. Native people learned early on that settlers were transmitting news to distant places where powerful kings resided. They sought to discern which colonists were in favor with these faraway powers and to shape the flow of information and authority to their benefit. They told stories to English secretaries and scriveners and gave objects to English travelers for delivery to the king as tokens of alliance. They also traveled, addressing English leaders in person. Of course, Native Americans could not communicate or travel across the Atlantic without intermediaries, and Europeans publicized the Native point of view only when it was useful to them. But this does not mean that Natives never worked through transatlantic channels to advance their own agendas. They did, often to powerful effect.
The Law of Nations and Native America
When the English crown and its advisors first began to justify their possession of overseas territories, their primary concern was defending themselves against the Spanish, who claimed the Americas on the basis of papal grants dating to the time of Columbus’s voyages.13 Spanish explorers also claimed rights of conquest over the people who inhabited the Indies, holding that Christians could lawfully make war against infidels who resisted evangelism. The most striking formulation of these rights came in the Requerimiento, a declaration read aloud to Indians shortly after Spanish arrival on American shores. The Requerimiento justified the seizure of land, peoples, and property on the basis of resistance to evangelism: “if you do not [accept evangelism], and maliciously make delay in it,” it read, “we shall powerfully enter into your country, and shall make war against you in all ways and manners that we can, and shall subject you to the yoke and obedience of the Church and of their Highnesses.”14 On this basis, Spanish conquistadors took any (real or imagined) Native refusal of evangelism as the basis for a war of conquest.15
While other European crowns were reluctant to recognize these rights, a succession of Spanish monarchs clung to them for over a hundred years. Conquistadors read the Requerimiento to Native peoples until the 1550s, and, well into the seventeenth century, the Spanish crown insisted that the presence of other European settlements in the Americas was a violation of its claims.16 In the early sixteenth century, this embargo was of little concern to English diplomats. English activities in the Atlantic were limited to fishing and trading in northern waters (where there was less danger of Spanish attack), and carrying out piracy on Spanish trading routes (an activity of questionable legality at best).17 However, when the English crown turned its attention to permanent settlement in the sixteenth century, the threat of Spanish confrontation made it imperative to establish claims in ways that would compel international recognition.18 In using treaties for this task, the English were primarily guided by Roman law, which offered crowns a way of justifying their sovereignty and dominion at home and abroad.19
Revived in the eleventh century, Roman law was widely disseminated and studied throughout early modern Europe. The Catholic Church derived many aspects of its canon law from Roman law, and by the thirteenth century Roman-influenced canon law had come to shape legal systems in Spain, France, and Holland.20 While jurists at Oxford had begun to teach canonical writings in the twelfth century, Roman law was not as influential in England, where common law traditions were well established.21 However, as Ken MacMillan has recently shown, English princes and jurists embraced Roman legal codes when attempting to explain the crown’s independence from the pope and assert its absolute prerogative over international affairs.22 The Roman law of nations, in particular, answered the need for a normative legal system to govern interstate relations in the absence of papal
