(and his own under it).49 In a printed account of his exploration of Guiana, Sir Walter Raleigh likewise described delegating his men “to treate with the borderers, and to drawe them to his partie and love.”50 Adventurers such as Drake and Raleigh needed to be on good terms with nearby people to ensure the safety and food supply of their ventures, but publicizing such relationships in writing was a way of showing the Spanish that the English had begun to establish land claims.
While both jurists and travelers embraced the notion that Native peoples could form treaties—and that such treaties could support land claims—the English crown and its diplomats were at first cautious in their handling of such arguments, largely because the Spanish rejected the notion that Indians could make treaties. At first, the crown focused on the meaning of treaties for trading rights. In negotiations over the African coast in 1562, for example, Queen Elizabeth and her councilors asserted the right to trade with coastal peoples in Guinea regardless of Portugal’s claims to Africa.51 This argument relied upon the commonly held notion that independent nations possessed a natural right to trade with one another that no sovereign power could abridge.52 Arguments about natural law and Native peoples also found their way into the statements of English ambassadors during negotiations with the Spanish over the Treaty of London (1604). During that conference, the crown’s delegates argued that the English had every right to “trade with divers great kings of those countryes [in America] but as forrayners and strangers.” They claimed that “it is not in [Philip III’s] power to barre ourselves by accord” from trading with foreign peoples.53 In the end, the Treaty of London remained silent on the question of the Indians, leaving the matter for future negotiations.
These kinds of arguments were suitable for defending trading ventures, which involved no meaningful occupation of territory, but as soon as the English created permanent colonies, it became necessary to clarify relations with neighboring peoples, who might also conceivably possess a claim to the territory, or the means to challenge English control. The labor of publicizing treaties fell primarily to colonists, who were required to complete the king’s claims by taking and holding territory. Colonists demonstrated possession in many ways, such as building forts or subjecting land to husbandry. But it was also crucial that they reach some kind of settlement with coastal polities to show that all questions of title were resolved. One way to do so was simply to purchase land from its indigenous owners. These purchases were good under common law, and were also recognized under the law of nations.54 However, simple purchase was rarely enough to establish firm possession. People other than the sellers might come forward and claim the land was theirs, or neighboring tribes might be unhappy with the presence of the newcomers and attack them anyway. Even if the English viewed such challenges as illegitimate, they still troubled English claims, since possession required physical control. Treaties solved (or appeared to solve) such problems. They showed that nearby Indians were friends and not likely to challenge English holdings. In the early period, when the power balance favored the Indians, the English made treaties of nonaggression or military support with neighboring tribes. Later, after the newcomers had more power, they made treaties in which the Indians recognized the majesty of the English crown, or subjected themselves to English authority, ceding power to the newcomers in exchange for protection (these kinds of treaties were especially useful, because they showed other Europeans that the English were exercising sovereignty, even if the English had little desire to rule Indians in practice). Treaties often involved other issues as well, such as trade, hospitality, weapons, and rights of passage and extradition. Whatever the specifics, however, the English always had one goal—to defuse any Indian threat, and thereby secure claims under the law of nations.
The kind of security represented by treaties was even more important in places where colonists and Native Americans were at war. When the English first attempted to establish permanent settlements, many had predicted that the Indians would immediately recognize English superiority and gladly cede power to the newcomers. Events in the early settlement period, such as the violent end to the attempted settlement at Roanoke, soon cast doubt on this assumption.55 Despite promoters’ and jurists’ statements about amity between peoples, war quickly became a norm of Anglo-Native relations. This forced promoters and colonists to change their legal strategy. Robert A. Williams, Jr., has argued that the English crown “Protestantized” the Spanish discourse of conquest, placing the English sovereign in the position of the pope as lord of the world, and depicting its own colonists as conquerors of pagan peoples.56 Spanish writings were undoubtedly useful to the English crown and its jurists as they sought to redefine conquest for their own ends. While Vitoria did not believe in conquest as a means of evangelism, he argued that Indian refusal of Spanish rights of trade and travel could indeed serve as a pretext for a just war. “[O]nce the Spaniards have demonstrated diligently both in word and deed that for their own part they have every intention of letting the barbarians carry on in peaceful and undisturbed enjoyment of their property,” Vitoria wrote, “if the barbarians nevertheless persist in their wickedness and strive to destroy the Spaniards, they may then treat them no longer as innocent enemies, but as treacherous foes against whom all rights of war can be exercised, including plunder, enslavement, deposition of their former masters, and the institution of new ones.”57 The English most commonly employed these justifications during highly publicized wars with Natives, such as the Powhatan Uprising (1622), the Pequot War (1636–1638), and King Philip’s War (1675–1678). Yet I will argue that conquest by just war was not always opposed to the strategy of possession by treaty. In the early decades of colonization, the English did not usually have the manpower or political will to carry out the kind of total conquest described by Vitoria. Colonists viewed treaties and war as complementary measures, to be pursued together, depending upon the circumstances. As William Strachey, a Virginia colonist, had written, “Planting … may well be divided into two sorts, when Christians, by the good liking and willing assent of the salvadges, are admitted by them to quiett possession; and when Christians, being inhumanely repulsed, doe seeke to attayne and mayntayne the right for which they come.”58 Colonists often depicted themselves using war, or the threat of it, to secure “willing assent” to their presence. This may seem like a contradiction. The presence of any coercion was inimical to consensus ad idem in Roman law, just as violence is inimical to consent today.59 As Vitoria had written, a treaty made in “fear and ignorance” was no treaty at all. When it came to explaining treaties that had been made during or after wars, colonists therefore faced a pointed dilemma. English writers had for decades criticized Spanish warfare against Native peoples while assuming that their own benevolence would lead to peaceful subjection. When this failed to happen—indeed, when Natives stalwartly defended themselves against English invaders—colonists tried to frame military settlements as voluntary treaties. This required publicizing new kinds of diplomatic approaches that combined friendship with deception, threats, and violence. To this end, the English implemented what I will call a divide-and-ally strategy. Divide-and-ally was pioneered in Virginia during the First Anglo-Powhatan War (1610–1614), when Jamestown governors sought to defeat Powhatan, the leader of the Powhatans, by making treaties with subjects at the periphery of his control while waging a so-called just war against Powhatan himself.60 The governors of the Plymouth Colony and the Massachusetts Bay Colony also employed this strategy during their wars with the Algonquianspeaking peoples of southern New England. Divide-and-ally enabled colonists to reconcile war and peace, conquering enemies while making treaties with friends. Indeed, in their writings about violent conflicts with Natives, the English often depict war against enemies as bringing them closer to their friends.
Whether they described peaceful agreements, or Native consent obtained amid violence and strife, treaties were never ironclad proof of English possession. Claims about Native acquiescence were riddled with contradictions and tensions, just as visible then as they are now. Why, for example, would a powerful Native king voluntarily submit to a foreign power, as Hakluyt had predicted? European kings did not do such things; why would their Native counterparts? The attempt to argue that violence could coexist with voluntary consent raised even more questions. Could a treaty signed immediately after or even during a war truly represent a meeting of the minds, an agreement without coercion? Were threats enough to compel an entire nation to submit to English rule, and if they were, could such submission
