by Jill Lepore
In 1629, Massachusetts Bay adopted a colony seal that, by way of justifying settlement, pictured a nearly naked Indian, begging the English to “Come Over and Help Us.” English migrants often came as families and they sometimes came as whole towns, hoping to found a Christian commonwealth, a religious community bound to the common wealth of all, public good over private gain. “The care of the public must oversway all private respects,” Winthrop said. “For it is a true rule that particular estates cannot subsist in the ruin of the public.” They expected the world to be watching. “The eyes of all people are upon us,” Winthrop said. Theirs was an ordered world, a world of hierarchy and deference. They considered the family a “little commonwealth,” the father its head, just as a minister is the head of a congregation and the king is the head of his people. They built towns around commons—lands owned in common, for pasturing animals. They did not consider a commitment to the public good, the common weal, to be at odds with the desire for prosperity. They believed in providence: everything happened for a reason, ordained by God.
Wealth was a sign of God’s favor, its accretion for its own sake a great sin. New Englanders expected to thrive by farming and by trade. “In America, religion and profit jump together,” wrote Edward Winslow, of Plymouth.40 They governed themselves through town meetings. Their lives centered on their churches, or meetinghouses: they built more than forty of them in their first two decades. In England, they’d raised money by promising to “propagate the Gospel,” that is, to convert the Indians to Christianity. Massachusetts adopted as a colony seal a drawing of a nearly naked Indian mouthing the words “Come Over and Help Us,” a reference to the biblical Macedonians, awaiting Christ. In 1636, New England Puritans founded a school in Cambridge for educating “English and Indian youth”: Harvard College. The next year, in Connecticut, war broke out between the colonists and the Pequot Indians. At the end of the war, the colonists decided to turn captured Indians into slaves and to sell them to the English in the Caribbean. In 1638, the first African slaves in New England arrived in Salem, on board a ship called the Desire that had carried captured Pequots to the West Indies, where they’d been traded, as Winthrop noted in his diary, for “some cotton and tobacco, and negroes.” There would never be very many Africans in New England, but New Englanders would have slave plantations, on the distant shores. Nearly half of colonial New Englanders’ wealth would come from sugar grown by West Indian slaves.41
The English in the colonies understood their rights as “free men” as deriving from an “ancient constitution” that guaranteed that even kings were subject to the “laws of the land.” These same people sold Indians and bought Africans. By what right did they rule them, in their city on a hill?
III.
ENGLAND’S AMERICA WAS disproportionately African. England came late to founding colonies and it came late to trafficking in slaves, but nearly as soon as it entered that trade, it dominated it. One million Europeans migrated to British America between 1600 and 1800 and two and a half million Africans were carried there by force over that same stretch of centuries, on ships that sailed past one another by day and by night.42 Africans died faster, but as a population of migrants, they outnumbered Europeans two and a half to one.
European slave traders inspecting people for purchase sometimes licked their skin, believing it possible to determine whether they were healthy or sick by the taste of their sweat. Much as the English had told lurid tales of “Spanish cruelties” in the Americas, they had long condemned the Portuguese for trading in Africans. An English trader named Richard Jobson told a Gambian man who tried to sell him slaves in 1621 that the Portuguese “were another kinde of people different from us.” The Portuguese bought and sold people, like animals, but the English, Jobson said, “were a people, who did not deale in any such commodities, neither did wee buy or sell one another, or any that had our owne shapes.”43
But in the 1640s, when English settlers in Barbados began planting sugar, they set these long-held reservations aside. Growing sugar takes more work than growing tobacco. To grow this difficult but wildly profitable new crop, Barbadian planters bought Africans from the Spanish and the Dutch and, soon enough, from the English. In 1663, not long after the English entered the slave trade, they founded the Company of Royal Adventurers of England Trading with Africa. In the last twenty-five years of the seventeenth century, English ships, piloted by English sea captains, crewed by English sailors, carried more than a quarter of a million men, women, and children across the ocean, shackled in ships’ holds.44 Theirs was not a ship of state crossing a sea of troubles, another Mayflower, their bond a covenant. Theirs was a ship of slavery, their bonds forged in fire. They whispered and wept; they screamed and sat in silence. They grew ill; they grieved; they died; they endured.
Many of the Africans bought by English traders were Bantu speakers and came from the area around what is now Senegambia; some were Akan speakers, from what is now Ghana; others spoke Igbo, and came from what is now Nigeria. During the march to the coast, on the journey across the Atlantic, on islands in the Caribbean, on the continent, and above all on board those ships, they died in staggering numbers. They believed that they lived after death. Nyame nwu na mawu, they said, in Akan: “God does not die, so I cannot die.”45
By what right did the English hold these people as their slaves? They looked to the same ancient authorities as had Juan Sepúlveda, in his debate with Bartolomé de Las Casas at Valladolid in 1550—and found them insufficient. Under Roman law, all men are born free and can only be made slaves by the law of nations, under certain narrow conditions—for instance, when they’re taken as prisoners of war, or when they sell themselves as payment of debt. Aristotle had disagreed with Roman law, insisting that some men are born slaves. Neither of these traditions from antiquity proved to be of much use to English colonists attempting to codify their right to own slaves, because laws governing slavery, like slavery itself, had disappeared from English common law by the fourteenth century. Said one Englishman in Barbados in 1661, there was “no track to guide us where to walk nor any rule sett us how to govern such Slaves.”46 With no track or rule to guide them, colonial assemblies adopted new practices and devised new laws with which they attempted to establish a divide between “blacks” and “whites.” As early as 1630, an Englishman in Virginia was publicly whipped for “defiling his body in lying with a negro.”47 Adopting these practices and passing these laws required turning English law upside down, because much in existing English law undermined the claims of owners of people. In 1655, a Virginia woman with an African mother and an English father sued for her freedom by citing English common law, under which children’s status follows that of their father, not their mother. In 1662, Virginia’s House of Burgesses answered doubts about “whether children got by any Englishman upon a Negro woman should be slave or ffree” by reaching back to an archaic Roman rule, partus sequitur ventrem (you are what your mother was). Thereafter, any child born of a woman who was a slave inherited her condition.48
In one of the more unsettling ironies of American history, laws drafted to justify slavery and to govern slaves also codified new ideas about liberty and the government of the free. In 1641, needing to provide some legal support for trading Indians for Africans, the Massachusetts legislature established The Body of Liberties, a bill, or list, of one hundred rights, many of them taken from Magna Carta. (A century and a half later, seven of them would appear in the U.S. Bill of Rights.) The Body of Liberties includes this prohibition: “There shall never be any bond slaverie, villinage or Captivitie amongst us unles it be lawfull Captives taken in just warres, and such strangers as willingly selle themselves or are sold to us.” Drawing on Roman law, the provision about slavery offered specific legal cover for selling into slavery Pequot and other Algonquians captured by the colonists during the Pequot War in 1637 and for the sale and purchase of Africans—described under the language of “strangers,” that is, foreigners who “are sold to us”—so t
hat there would be no legal question to debate.49 Not for another century and a half would New Englanders be willing to open the legality of slavery to debate.
Tied to England, to the Caribbean, and to West Africa by the path steered by ships that sailed between them, colonists plotted the course of their laws. Even as England’s colonists justified the taking of slaves and insisted on their right to rule over them absolutely and without restraint, the king’s subjects were fighting to restrain his authority. Under what conditions do some people have a right to rule, or to rebel, and others not? In 1640, King Charles at last summoned a meeting of Parliament in hopes of raising money to suppress a rebellion in Scotland. The newly summoned Parliament, striking back, passed a law abridging the king’s authority, including requiring that Parliament meet at least once every three years, with or without a royal summons. War between supporters of the king and backers of Parliament broke out in 1642. During this battle, the legal fiction of the divine right of kings was replaced by another legal fiction: the sovereignty of the people.50
This idea, which would ride across the ocean on the crest of every wave, rested on the notion of representation. Parliaments had first met in the thirteenth century, when the king began summoning noblemen to court to parler, demanding that they pledge to obey his laws and pay his taxes. After a while, those noblemen began pretending that they weren’t making these pledges for themselves alone but that, instead, in some meaningful way, they “represented” the interests of other people, their vassals. In the 1640s, those parleying noblemen, now called Parliament, challenged the king, countering his claim to sovereignty with a claim of their own: they argued that they represented the people and that the people were sovereign. They said this was because, in some time immemorial, the people had granted them authority to represent them. Royalists pointed out that this was absurd. How can “the people” rule when “they which are the people this minute, are not the people the next minute”? Who even are the people? Also, when, exactly, did they empower Parliament to represent them? In 1647, the Levellers, hoping to remedy this small problem, drafted An Agreement of the People, with the idea that every Englishman would sign it, granting to his representatives the power to represent him.51 This didn’t quite come to pass. Instead, in 1649, the king was tried for treason and beheaded.
Out of this same quarrel came foundational ideas about freedom of speech, freedom of religion, and freedom of the press, ideas premised on the belief, heretical to the medieval church, that there is no conflict between freedom and truth. In 1644, the Puritan poet John Milton—later the author of Paradise Lost—published a pamphlet in which he argued against a law passed by Parliament requiring printers to secure licenses from the government for everything they printed. No book should be censored before publication, Milton argued (though it might be condemned after printing), because truth could only be established if allowed to do battle with lies. “Let her and falsehood grapple,” he urged, since, “whoever knew Truth to be put to the worst in a free and open encounter?” This view depended on an understanding of the capacity of the people to reason. The people, Milton insisted, are not “slow and dull, but of a quick, ingenious and piercing spirit, acute to invent, subtle and sinewy to discourse, not beneath the reach of any point the highest that human capacity can soar to.”52
In Rhode Island, Roger Williams dedicated himself to the cause of the “liberty of conscience,” the idea that the freer people are to think, the more likely they are to arrive at the truth. In a letter written in 1655, Williams borrowed from Plato’s Republic the idea of a political society as like passengers on board a ship—a metaphor adored by people who had crossed a desperately dangerous ocean. “There goes many a ship to sea, with many hundred souls in one ship, whose weal and woe is common, and is a true picture of a commonwealth, or a human combination or society,” Williams wrote, and sometimes “both papists and protestants, Jews and Turks, may be embarked in one ship.” The shipmaster ought to protect their freedom to worship as they wished, Williams insisted, by insuring “that none of the papists, protestants, Jews, or Turks, be forced to come to the ship’s prayers of worship, nor compelled from their own particular prayers or worship, if they practice any.”53
Williams, who notably included in his commonwealth Catholics and all manner of Protestants but also Jews and Muslims, imagined a particularly capacious ship, at a time when religious and political dissent was flourishing. Between 1649 and 1660, England had no king, and became a commonwealth, and people took seriously the idea of a common wealth, everyone in the same boat as everyone else, and it also got a little easier to pretend that there existed such a thing as the people, and that they were the sovereign rulers of . . . themselves. In England, new sects thrived, from Baptists to Quakers. The Diggers advocated communal ownership of land. The Levellers argued for political equality. Meanwhile, on the other side of the ocean, the colonies grew, and the colonists came to see themselves as the people, too. Not to mention, much of British America was itself the product of religious and political rebellion, each colony its own experiment in the rule of the people and freedom of speech. Most colonies established assemblies, popularly elected legislatures, and made their own laws. By 1640, eight colonies had their own assemblies. Barbados, settled by the English in 1627, was by 1651 insisting that Parliament had no authority over its internal affairs (which, in any event, chiefly concerned the law of slavery).
The restoration of the monarchy, in 1660, with the coronation of Charles II, represented not a lessening but a deepening commitment to religious toleration, the new king pledging “that no man shall be disquieted or called in question for differences of opinion in matter of religion.” This spirit extended across the ocean, especially in the six Restoration colonies, those that were founded or came under English rule during Charles II’s reign. New York and New Jersey became religious asylums for Quakers, Presbyterians, and Jews, as did Pennsylvania, granted by Charles II to the Quaker William Penn in 1681. Penn called Pennsylvania his “holy experiment” and hoped it would form “the seed of a nation.” In his 1682 Frame of Government, a constitution for the new colony, he provided for a popularly elected general assembly and for freedom of worship, decreeing “That all persons living in this province, who confess and acknowledge the one Almighty and eternal God, to be the Creator, Upholder and Ruler of the world; and that hold themselves obliged in conscience to live peaceably and justly in civil society, shall, in no ways, be molested or prejudiced for their religious persuasion or practice, in matters of faith and worship, nor shall they be compelled, at any time, to frequent or maintain any religious worship, place or ministry whatever.”54 Peace rested on tolerance.
In 1681, Charles II granted lands to the English Quaker William Penn, who founded a “holy experiment” in the eponymous colony of Pennsylvania. With each new charter, with each new constitution, with each new slave code, England’s American colonists upended assumptions and rewrote laws governing the relationship between the rulers and the ruled. In the tumult of a century of civil strife, the water between England and America became a kind of looking glass: people drafting new laws saw in their reflections political philosophers; political philosophers saw in their reflections colonial lawmakers. Few people contemplated this relationship more closely than John Locke, a political philosopher who also served as colonial lawmaker.
Locke, a tutor at Christ Church, Oxford, had a hollow face and a long nose; he looked like a bird of prey. He never married. One of his students was the son of the Earl of Shaftesbury, who was the chancellor of the exchequer, and a rather ill man. In 1667, Locke left Oxford and became Shaftesbury’s personal secretary, in charge as well of his medical care; he moved into Exeter House, Shaftesbury’s London residence, in the Strand. It happened that Shaftesbury was deeply involved in colonial affairs, serving and establishing various councils on trade and plantations, including the board of proprietors for the colony of Carolina. (Charles had granted the colony to eight members of Parliament who h
ad supported his restoration to the throne.) Locke became the colony’s secretary.
As secretary, Locke wrote and later revised the colony’s constitution, not long after writing his Letters concerning Toleration, and at the very time when he was drafting Two Treatises on Civil Government, works that would later greatly influence the framers of the U.S. Constitution.55 Without ever crossing the ocean, Locke dug deep into the soil of the colonies and planted seeds as small as the nibs of his pen.
Consistent with his argument in his Letters concerning Toleration, Locke’s Fundamental Constitutions of Carolina established freedom of religious expression. People who did “not acknowledge a God and that God is publickly and solemnly to be worshiped” were to be barred from settling and owning land, but, aside from that, any belief was acceptable, the constitution decreeing that “heathens, Jews and other dissenters from the purity of Christian Religion may not be scared and kept at a distance.” Moreover, and in this same spirit—and here weighing in on a debate that had begun in 1492 and had occupied the Spanish throne for the better part of a century—Carolina’s constitution established that the heathenism of the natives was not sufficient grounds to take their lands: “The Natives of that place,” the constitution stipulated, “are utterly strangers to Christianity whose Idollatry Ignorance or mistake gives us noe right to expell or use them ill.”56 By what right, then, did the English claim their land?
The answer to this question rested in Locke’s philosophy. The Fundamental Constitutions established a government as a matter of practice, while in the Two Treatises on Civil Government Locke attempted to explain, as a matter of philosophy, how governments come to exist. He began by imagining a state of nature, a condition before government:
To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.