The Patent and the Indians

The Problem of Jurisdiction in Seventeenth-Century New England

Bibliographic Data

ID2917826
AuthorsRuth Barnes Moynihan, R Moynihan (corresponding author)
Year1977
Volume02
Issue1
Pages8-18
Publication date1977-01-01
Peer ReviewedYes
Open AccessYes
TypeARTICLE
VenueAmerican Indian Culture and Research Journal (JOURNAL)
Journal identifiersISSN: 0161-6463 • E-ISSN: 0161-6463
PublisherUCLA American Indian Studies Center (PUBLISHER • US)
DOI10.17953/aicr.02.1.c25r51p326h017p1
OpenAlexW1875021466
LanguageEN
Citations received1
References cited10

When Roger Williams began theorizing in 1632 about the validity and significance of the English patent in New England, Governor John Winthrop of Massachusetts was deeply concerned. According to Winthrop. Williams' treatise disputed "their right to the lands they possessed here, and concluded that, claiming by the king's grant, they could have no title, nor otherwise. except they compounded with the natives."\nThe issue involved much more than legality of land tenure among the settlers. Williams was not just questioning the English right to Indian land. He was challenging the English right to jurisdiction over the Indians and the Indians' territory, and even over the settlers ("nor otherwise"). And thereby the extensive governmental authority which Winthrop claimed in his great new "city on a hill." Williams' treatise was one of the first challenges to the assumption of European jurisdictional superiority throughout the world, and the principles involved remain relevant today.\nHistorian Alden T. Vaughn has said that "the issues at stake were points of theory-in fact theology- not details of practice." Representing what one might call the "average American" point of view, he writes:\nWhile no one will subscribe to the thesis that might makes right, it is undeniable that in troubled times the alternative to chaos is positive action on the part of the most mature and effective political authority... and in seventeenth century New England the Puritan colonies were the strongest single force.\nIt is hard to see how the logic of this formulation differs from the thesis that might makes right. But Vaughan's misunderstanding of the controversy over the patent seems to stem from his inability to see the practical significance of Puritan claims to jurisdiction, both for the Indians and for dissident Englishmen. He claims that "the realities of America rendered the patent theory in large part irrelevant" because "the Puritan colonists dispensed with the part of the theory that would have given them property ownership of natives' land while keeping a firm grip on the part that vested the Christians with political jurisdiction" (italics mine).\nNeither Roger Williams nor John Winthrop, however, considered the issues irrelevant in their own time. Williams agreed with John Cotton that the question of the patent was the principle reason for Williams' banishment from Massachusetts four years later, even though it was not officially listed by Winthrop as part of the indictment. As Williams later explained his point of view:\nI abhor most of their customs: I know they are barbarous. I respect not one party more than the other. but I desire to witness truth; and I desire to witness against oppression. so, also, against the slightin of civil, yea, of barbarous order and government, as respecting every shadow of God's gracious appointments.\nHe also wrote, "I know it is said the Long Islanders are subjects; but I question whether any Indians in this country, remaining barbarous and pagan, may with truth or honor be called the English subjects."\nWilliams saw that the English were bringing chaos to the Indians, not the reverse. He believed in an effective political authority quite different from John Winthrop's ideal. Massachusetts soon circumvented his intentions by banishing and isolating him and by betraying the Narragansetts. But in the 16305 the issue was one of practical coexistence and political reality. not just theoretical theology."\nIn twentieth-century historiography the subject is still controversiaL Some prominent historians ask, would the Indians have fared any better if the Puritans had conceded their right to American land? Such historians claim that since the process of Indian dissolution in the seventeenth century was apparently inevitable, questioning its justice is unnecessary hand-wringing. But the purpose of writing history is neither to justify nor to blame the past. The historian can only try to look squarely both at events and at ideas in the hope that understanding where we have been may help us to know also where we are. Even if the what happened was indeed inevitable (and only a pure determinist can be sure of that).' the why and the how remain important components of the human record. The implications of the controversy over the patent are wider than the seventeenth-century English-Indian confrontation, because the theory was also applied to nonconformist Englishmen and because it has remained viable throughout American history.\nSince Williams' challenge to the patent no longer exists-he burned it at Winthrop's insistence- reconstructing the argument is difficult. This essay is an attempt to cast some new light on what the conflict was all about. Part I examines the theory used by the Puritans to justify their jurisdictional claims in America. Part II discusses Williams' arguments and Indian society at the time he described it. Part III provides a case study of the practical results of the theory as it was applied both tot he Narragansett Indians and to dissident Rhode Islanders. That neither Williams' ideas nor his actions could forestall injustices, both to unorthodox Englishmen and to Indians. Is part of the tragedy of his life as well as of the Naragansetts. But at least he raised the issue, and future generations might have understood his challenge more clearly if he had been successful

Ethnology · Jurisdiction · New england · Political science · Sociology · American Constitutional Law and Politics · History · Law

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