by Jill Lepore
Whatever “quiet government” the company’s merchants had intended, the colonists proved ungovernable. They built a fort and began looking for gold. But a band of soldiers and gentlemen-adventurers proved unwilling to clear fields or plant and harvest crops; instead, they stole food from Powhatan’s people, stores of corn and beans. Smith, disgusted, complained that the company had sent hardly any but the most useless of settlers. He counted one carpenter, two blacksmiths, and a flock of footmen, and wrote the rest off as “Gentlemen, Tradesmen, Servingmen, libertines, and such like, ten times more fit to spoyle a Commonwealth, than either begin one, or but helpe to maintaine one.”15
In 1608, Smith, elected the colony’s governor, made a rule: “he who does not worke, shall not eat.”16 By way of diplomacy, he staged an elaborate coronation ceremony, crowning Powhatan “king,” and draping upon his shoulders the scarlet robe sent by James. Whatever this gesture meant to Powhatan, the English intended it as an act of their sovereignty, insisting that, in accepting these gifts, Powhatan had submitted to English rule: “Powhatan, their chiefe King, received voluntarilie a crown and a scepter, with a full acknowledgment of dutie and submission.”17 And still the English starved, and still they raided native villages. In the fall of 1609, the colonists revolted—auguring so many revolts to come—and sent Smith back to England, declaring that he had made Virginia, under his leadership, “a misery, a ruine, a death, a hell.”18
The real hell was yet to come. In the winter of 1609–10, five hundred colonists, having failed to farm or fish or hunt and having succeeded at little except making their neighbors into enemies, were reduced to sixty. “Many, through extreme hunger, have run out of their naked beds being so lean that they looked like anatomies, crying out, we are starved, we are starved,” wrote the colony’s lieutenant governor, George Percy, the eighth son of the earl of Northumberland, reporting that “one of our Colline murdered his wife Ripped the Childe outt of her woambe and threwe it into the River and after Chopped the Mother in pieces and salted her for his food.”19 They ate one another.
Word of this dire state of affairs soon reached England. Like nearly everything else reported from across the ocean, it set minds alight. The philosopher Thomas Hobbes, who served on the board of the Virginia Company, eyed the descent of the colony into anarchy with more than passing interest. In 1622, four years after Powhatan’s death, the natives rose up in rebellion and tried to oust the English from their land, killing hundreds of new immigrants in what the English called the “Virginia massacre.” Hobbes, working out a theory of the origins of civil society by deducing an original state of nature, pondered the violence in Virginia. “The savage people in many places of America . . . have no government at all, and live at this day in that brutish manner,” he would later write, in The Leviathan, a treatise in which he concluded that the state of nature is a state of war, “of every man against every man.”20
Miraculously, the colony recovered; its population grew and its economy thrived with a new crop, tobacco, a plant found only in the New World and long cultivated by the natives.21 With tobacco came the prospect of profit, and a new political and economic order: the colonists would rule themselves and they would rule over others. In July 1619, twenty-two English colonists, two men from each of eleven parts of the colony, met in a legislative body, the House of Burgesses, the first self-governing body in the colonies. One month later, twenty Africans arrived in Virginia, the first slaves in British America, Kimbundu speakers from the kingdom of Ndongo. Captured in raids ordered by the governor of Angola, they had been marched to the coast and boarded the São João Bautista, a Portuguese slave ship headed for New Spain. At sea, an English privateer, the White Lion, sailing from New Netherlands, attacked the São João Bautista, seized all twenty, and brought them to Virginia to be sold.22
Twenty Englishmen were elected to the House of Burgesses. Twenty Africans were condemned to the house of bondage. Another chapter opened in the American book of genesis: liberty and slavery became the American Abel and Cain.
II.
WAVES SLAPPED AGAINST the hulls of ships like the pounding of a drum. Mothers lulled children to sleep while men wailed, singing songs of sorrow. “It frequently happens that the negroes, on being purchased by the Europeans, become raving mad,” wrote one slave trader. “Many of them die in that state.” Others took their own lives, throwing themselves into the sea, hoping that the ocean would carry them to their ancestors.23
The English who crossed the ocean endured the hazards of the voyage under altogether different circumstances, but the perils of the passage left their traces on them, too, in memoirs and stories, and in their bonds to one another. In the summer of 1620, a year after the White Lion landed off the coast of Virginia, the Mayflower, a 180-ton, three-masted, square-rigged merchant vessel, lay anchored in the harbor of the English town of Plymouth, at the mouth of the river Plym. It soon took on its passengers, some sixty adventurers, and forty-one men—dissenters from the Church of England—who brought with them their wives, children, and servants. William Bradford, the dissenters’ chronicler, called them “pilgrims.”24
Bradford, who would become governor of the colony the dissenters would found, became, too, its chief historian, writing, he said, “in a plain style, with singular regard unto the simple truth in all things.” Ten years before, Bradford explained, the pilgrims had left England for Holland, where they’d settled in Leiden, a university town known for learning and for religious toleration. After a decade in exile, they’d decided to make a new start someplace else. “The place they had thoughts on was some of those vast and unpeopled countries of America,” Bradford wrote, “which are fruitful and fit for habitation, being devoid of all civil inhabitants, where there are only savage and brutish men which range up and down, little otherwise than the wild beasts.” Though fearful of the journey, they placed their faith in a providential God, and set sail for Virginia. “All being compact together in one ship,” Bradford wrote, “they put to sea again with a prosperous wind.”
During the treacherous, sixty-six-day journey over what Bradford called the “vast and furious ocean,” one man was swept overboard, saved only by grasping a halyard; the ship leaked; a beam split; and one of the masts bowed and nearly cracked. For two days, the wind grew so fierce that everyone on board had to crowd into the hull, huddled under rafters. When the storm quieted, the crew caulked the decks, fortified the masts, and raised the sails once more. Elizabeth Hopkins gave birth on the swaying ship; she named her son Oceanus. The ship, blown severely off course, dropped anchor not in Virginia but off the windswept coast of Cape Cod. Unwilling to risk the ocean again, the pilgrims rowed ashore to found what they hoped would be a new and better England, another beginning. And yet, wrote Bradford, “what could they see but a hideous and desolate wilderness, full of wild beasts and wild men”? They fell to their knees and praised God they were alive. The day they arrived, having sailed what Bradford described as a “sea of troubles,” in a ship they imagined as a ship of state—the whole body of a people, in the same boat—they signed a document in which they pledged to “covenant and combine ourselves together into a civil body politic.”25 They named their agreement after their ship. They called it the Mayflower Compact.
The men who settled Virginia had been granted a charter by the king. But the men, women, and children who settled in what they called a New England had no charter; they’d fled the king, bridling against his rule. Religious dissent in seventeenth-century England was also a form of political dissent. It was punishable by both imprisonment and execution. But if James’s divine right to rule was questioned by dissenters who fled his authority, it was being questioned, too, on the floor of Parliament. The battle between the king and Parliament would send tens of thousands more exiles across the vast and furious ocean, seeking political freedom in the colonies. It would also foster in them a deep and abiding spirit of rebellion against arbitrary rule.
Even as dissenters in New England struggle
d to survive their first winter in a settlement they named Plymouth, members of Parliament were beginning to challenge the tradition by which Parliament met only when summoned by the king. In 1621, Edward Coke, who, after Ralegh’s beheading in 1618 had emerged as James’s most cunning adversary, claimed that Parliament had the right to debate on all matters concerning the Commonwealth. The king had Coke arrested, confined him to the Tower of London, and dissolved Parliament. Ralegh had written a history of the world while in prison; Coke would write a history of the law.
To build his case against the king, Coke dusted off a copy of an ancient and almost entirely forgotten legal document, known as Magna Carta (literally, the “great charter”), in which, in the year 1215, King John had pledged to his barons that he would obey the “law of the land.” Magna Carta wasn’t nearly as important as Coke made it out to be, but by arguing for its importance, he made it important, not only for English history, but for American history, too, tying the political fate of everyone in England’s colonies to the strange doings of a very bad king from the Middle Ages.
King John, born in 1166, was the youngest son of Henry II. As a young man, he’d studied with his father’s chief minister, Ranulf de Glanville, who had dedicated himself to preparing one of the earliest commentaries on the English law, in which he had attempted to address the rather delicate question of whether a law can be a law if no one had ever written it down.26 It would be “utterly impossible for the laws and rules of the realm to be reduced to writing,” Glanville admitted. That said, unwritten laws are still laws, he insisted; they are a body of custom and precedent that together constitute “common law.”27
Glanville’s ruminations had led him to another and even more delicate question: If the law isn’t written down, and even if it is, by what argument or force can a king be constrained to obey it? Kings had insisted on their right to rule, in writing, since the sixth century BC.28 And, at least since the ninth century AD, they’d been binding themselves to the administration of justice by taking oaths.29 In 1100, in the Charter of Liberties, Henry I, the son of William the Conqueror, promised to “abolish all the evil customs by which the kingdom of England has been unjustly oppressed,” which, while not a promise that he kept, set a precedent that Glanville might have expected would act to restrain Henry I’s grandson King John.30
Unfortunately, King John proved a tyrant, heedless of the Charter of Liberties. He levied taxes higher than any king ever had before and either carried so much coin outside his realm or kept so much of it in his castle that it was difficult for anyone to pay him with money. When his noblemen fell into his debt, he took their sons hostage. He had one noblewoman and her son starved to death in a dungeon. Rumor had it that he ordered one of his clerks crushed to death.31
In 1215, barons rebelling against the king captured the Tower of London.32 When John agreed to meet with them to negotiate a peace and they gathered at Runnymede, a meadow by the Thames, the barons presented him with a very long list of demands, which were rewritten as a charter, in which the king granted “to all free men” in his realm—that is, not to the people, but to noblemen—“all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs.”33 This was the great charter, the Magna Carta.
Magna Carta had been revoked almost immediately after it was written, and it had become altogether obscure by the time of King James and his battles with the ungovernable Edward Coke. But Coke, as brilliant a political strategist as he was a legal scholar, resurrected it in the 1620s and began calling it England’s “ancient constitution.” When James insisted on his sovereignty—an ancient authority, by which the monarch is above the law—Coke, countering with his ancient constitution, insisted that the law was above the king. “Magna Carta is such a fellow,” Coke said, “that he will have no sovereign.”34
Coke’s resurrection of Magna Carta explains a great deal about how it is that some English colonists would one day come to believe that their king had no right to rule them and why their descendants would come to believe that the United States needed a written constitution. But Magna Carta played one further pivotal role, the role it played in the history of truth—a history that had taken a different course in England than in any other part of Europe.
The most crucial right established under Magna Carta was the right to a trial by jury. For centuries, guilt or innocence had been determined, across Europe, either by a trial by ordeal—a trial by water, for instance, or a trial by fire—or by trial by combat. Trials by ordeal and combat required neither testimony nor questioning. The outcome was, itself, the evidence, the only admissible form of judicial proof, accepted because it placed judgment in the hands of God. Nevertheless, the practice was easily abused—priests, after all, could be bribed—and, in 1215, the pope banned trial by ordeal. In Europe, it was replaced by a new system of divine judgment: judicial torture. But in England, where there existed a tradition of convening juries to judge civil disputes—like disagreements over boundaries between neighboring freeholds—trial by ordeal was replaced not by judicial torture but by trial by jury. One reason this happened is because, the very year that the pope abolished trial by ordeal, King John pledged, in Magna Carta, that “no free man is to be arrested, or imprisoned . . . save by the lawful judgment of his peers or by the law of the land.”35 In England, truth in either a civil dispute or criminal investigation would be determined not by God but by men, and not by a battle of swords but by a battle of facts.
This turn marked the beginning of a new era in the history of knowledge: it required a new doctrine of evidence and new method of inquiry and eventually led to the idea that an observed or witnessed act or thing—the substance, the matter, of fact—is the basis of truth. A judge decided the law; a jury decided the facts. Mysteries were matters of faith, a different kind of truth, known only to God. But when, during the Reformation, the Church of England separated from the Roman Catholic Church, protesting the authority of the pope and finding truth in the Bible, the mysteries of the church were thrown open, the secrets of priests revealed. The age of mystery began to wane, and, soon, the culture of fact spread from law to government.36
In seventeenth-century England, the meat of the matter between the king and Parliament was a dispute over the nature of knowledge. King James, citing divine right, insisted that his power could not be questioned and that it lay outside the realm of facts. “That which concerns the mystery of the king’s power is not lawful to be disputed,” he said.37 To dispute the divine right of kings was to remove the king’s power from the realm of mystery, the realm of religion and faith, and place it in the realm of fact, the realm of evidence and trial. To grant to the colonies a charter was to establish law on a foundation of fact, a repudiation of government by mystery.
By what right did the king rule? And how might Parliament constrain him? After James died, in 1625, his son, Charles, was crowned king, but Charles, too, believed in the divine right of kings. Three years later, Coke, now seventy-six, and having returned to Parliament, objected to Charles’s exerting his royal prerogative to billet soldiers in his subjects’ homes and to confine men to jail, without trial, for refusing to pay taxes. Coke claimed that the king’s authority was constrained by Magna Carta.38 At Coke’s suggestion, Parliament then prepared and delivered to King Charles a Petition of Right, which cited Magna Carta to insist that the king had no right to imprison a subject without a trial by jury. If Coke had been successful, England’s American colonies would have been less so. Instead, in 1629, the king, having forbidden Coke from publishing his study of Magna Carta, dissolved Parliament. It was this act that led tens of thousands of the king’s subjects to flee the country and cross the ocean, vast and furious.
Between 1630 and 1640, the years during which King Charles ruled without Parliament, a generation of ocean voyagers, some twenty thousand dissenters, fled England and settled in New England. One of these people was John Winthrop, a stern and uncompromising man with a Vandyke beard and
a collar of starched ruffles, who decided to join a new expedition to found a colony in Massachusetts Bay. Unlike Bradford’s pilgrims, who wanted to separate from the Church of England, Winthrop was one of a band of dissenters known as Puritans—because they wanted to purify the Church of England—who lost their positions in court after the dissolution of Parliament. In 1630, Winthrop, who would become the first governor of Massachusetts, wrote an address called “A Model of Christian Charity” to his fellow settlers. The Mayflower compact had described the union of Plymouth’s settlers into a body politic, but Winthrop described the union of his people in the body of Christ, held together by the ligaments of love. “All the parts of this body being thus united are made so contiguous in a special relation as they must needs partake of each other’s strength and infirmity, joy and sorrow, weal and woe,” he said, citing 1 Corinthians 12. “If one member suffers, all suffer with it; if one be in honor, all rejoice with it.” In this, their New England, he said, they would build a city on a hill, as Christ had urged in his Sermon on the Mount (Matthew 5:14): “A city that is set on a hill cannot be hid.”39
Colonies sprouted along the Atlantic coast like cattails along the banks of a pond. Roger Williams, once Coke’s stenographer, joined the mission to Massachusetts Bay, although for his commitment to religious toleration he was banished in 1635. The next year, he founded Rhode Island. In 1624, the Dutch had settled New Netherland (which later became New York); in 1638, Swedish colonists settled New Sweden, a colony that straddled parts of latter-day New Jersey, Pennsylvania, and Delaware. Even colonies that weren’t Puritan were founded by dissenters of one kind or another. Maryland, named after Charles I’s Catholic wife, Henrietta Maria, started in 1634 as a sanctuary for Catholics. Connecticut, like Rhode Island, was founded in 1636, New Haven in 1638, New Hampshire in 1639.