Common Law and the Rhetoric of Social Exclusion in Early New England
2012 | 224 pages | Cloth $59.95
Literature | American History | Law
View main book page
Table of Contents
Introduction. A Banishment Primer
Chapter 1. "To Entertain Strangers"
Chapter 2. The "Predicament of Ubi"
Chapter 3. "To Test Their Bloody Laws"
Chapter 4. Deer Island and the Banishment of the Indians
Conclusion. The Ends of Banishment: From the Puritan Colonies to the Borderlands
Excerpt [uncorrected, not for citation]
A Banishment Primer
Presume not that I am the thing I was;
For God doth know, so shall the world perceive,
That I have turn'd away my former self;
So will I those that kept me company. . . .
. . . I banish thee, on pain of death.
—William Shakespeare, Henry IV, Part 2, 5.5
Communities make members. Working from the principles articulated in contracts, constitutions, or even simple screeds, communities create a sense of belonging among their inhabitants that draws people in, binds them together, and fosters a collective identity. This sense of membership has been a commonplace in the history of communities from the city-states of ancient Greece to the incipient nation-states of Europe in the seventeenth century and beyond. Without holding out the possibility of inclusion—in the form of shared principles—few communities would have been established, and fewer still would have endured. Less obvious in the formation of community, however, are those negative principles that facilitate the exclusion of people who do not "belong" and yet work, paradoxically, to reinforce the bonds among those who do. As the legal scholar Peter Goodrich explains, a community's ability to exclude not only strengthens the connections between insiders but also casts the membership of the community in the form of a Manichean struggle. "The establishment of an identity, the constitution of a community, and the capture of subjectivity," he writes, "are first a matter of establishing a collective . . . identity whose virtue will be matched only by the evil of those who do not belong to it." In this way inclusion and exclusion are paired, or as Charles Tilly puts it: "Every act of . . . inclusion consists of creating, activating, or transforming an us-them boundary, and thus inevitably twins with an act of . . . exclusion."
If inclusion and exclusion are twinned, however, there are certain times and certain places where one twin assumes primacy over the other, and where inclusion or exclusion appears to take precedence as a means of producing community. Such a time and place was seventeenth-century New England—from 1620, when the first Puritan colony, Plymouth Plantation, was established, to 1684, when the charter of the Massachusetts Bay Colony, the biggest and most powerful of the colonies, was revoked and administrative power was ceded to the Crown. Exercised ruthlessly and obsessively in this period, banishment, by which undesirable individuals and groups were forcibly removed from the colonies, overpowered the ways and means of inclusion—contractual, constitutional, or otherwise—and became a central, and yet up to this point almost entirely unrecognized, way of defining the place and the people within it.
This book is about that period and its banishments. From the moment they first set foot in the New World, the Puritans, banished or in flight from persecution themselves, banished hundreds if not thousands of others. Between 1620 and 1630, the first decade of the Plymouth Colony's existence, Governor William Bradford banished dozens of people, including John Lyford and John Oldham, for sending letters "full of slanders and false accusations" about the colonists back to England. More notably between 1630 and 1631, the first year of the founding of the Massachusetts Bay Colony, out of fewer than a thousand people in Salem, Charlestown, and Boston combined, between six and ten people were banished, an astonishing 0.6 to 1 percent of the population. Nor did the percentage of those "sent out of the lymitts of the patent" dwindle much in subsequent years as the theocracies in Plymouth and the Bay Colony continued to attract and to banish traders, visitors, and aspiring members who were deemed to have insufficiently conformed to the Puritans' ways.
Admittedly most of those banished escaped all but the most cursory notice. Their names are enshrined in legal casebooks from the period, but few have paid attention to their stories, and in most cases little of their stories is known. In 1640, for example, the otherwise obscure Hugh Bewett was banished for claiming he was free of original sin, and in 1642 William Collins was banished for seeking sexual favors under a false promise of marriage. During the same period Thomas Walford and Philip Ratcliffe were banished for declaring their "contempt of authorities and confrontinge officers etc," and Captain Stone for calling the magistrate Ludlow "not a justice but a 'just-ass.'" In addition, starting in 1672 records confirm that banishment was imposed in one case of adultery and in another of "adulterous behavior," as well as in one case for prostitution, another for contempt of authority, and two others for unspecified crimes. To this list can be added a banishment in Connecticut for contempt of authority and another in New Haven for lascivious behavior, an indication that while the Bay Colony and Plymouth may have been the most avid of the banishing colonies, other colonies engaged in the practice as well.
In contrast to the Bewetts, Stones, and Walfords of the world, however, many of the banished were and continue to be well known, though for reasons discussed below, the true significance of their banishments has been obscured. In this category are the stories of the Anglican renegade Thomas Morton, banished by Plymouth in 1635 and memorialized by Nathaniel Hawthorne for unlawfully erecting a Maypole in the settlement of Merry-mount, and the controversial minister and founder of Rhode Island, Roger Williams, who was banished by the Bay Colony that same year. In 1637 the Bay Colony also banished the infamous heretic and "antinomian" Anne Hutchinson, after whose banishment the colony enacted a series of laws banishing whole groups of so-called heretics, including the Anabaptists in 1645 and the Jesuits in 1647. In the 1650s the Bay Colony went on to banish numerous Quakers, including the illustrious Mary Dyer, and throughout the 1660s and 1670s authorities expelled hundreds of Christianized Indians, whose removal to Deer Island in the Boston harbor was banishment in everything but name.
Unsurprisingly those among the banished whose names still resonate today made their banishments memorable by complaining loudly about them. If their names are known, however, the accounts of their punishments and of the consequences that followed in the wake of their banishments have been neglected. Two factors account for this neglect. The first is that their stories—like most of the stories that have come down to us from Puritan America—have been read by scholars almost exclusively for the light they shed on the Puritans' religion and religious practices. In their focus on religion, scholars of history and literature have done no more than follow the Puritans' lead. The initial colonies of Plymouth and Massachusetts Bay as well as the subsequent colonies of New Haven and Connecticut were founded on the principle of religious congregationalism, and the communities that were established in these places were structured to serve that end. If an individual qualified for church membership—a qualification that was based on the church's judgment about the candidate's conversion experience—then the candidate also qualified for membership in the colony, and in this way religion provided an undeniably strong basis for social cohesion.
One of the results of the scholarly focus on religion has been to emphasize religion's role in building this social cohesion. Histories of the period, both literary and social, are replete with references to the founding documents—preeminent among them John Winthrop's lay sermon "A Model of Christian Charity"—that not only emphasize the connections between people that religion enabled but also help us think through the principle of community membership in this light. For Winthrop, the Puritan community was "knit together" in "the body of Christ," by which it formed "a city on the hill" for all to emulate, if not to enter. In terms of the popular history of inclusion in America, the line that runs from Winthrop to the universal welcome—"Give me your tired, your poor, your huddled masses"—inscribed on the Statue of Liberty's pedestal remains virtually uninterrupted.
I say "virtually" because, as most of us are aware, the line has been broken many times. As a nation we have witnessed the erection of countless impediments to inclusion from the quotas imposed on Italian, Irish, and Jewish immigrants of the mid-nineteenth century, to the Chinese Exclusion Act at the end of that century, to the torturous policy on Mexican immigrants in our own day. However, long before these more recent debates over inclusion and exclusion, passionate debates over banishment occurred in seventeenth-century New England. These debates were played out in the numerous pamphlets, trial testimonies, histories, and affidavits concerning banishment that are newly examined in this study. According to most scholars of the banished, the debates about banishment were strictly religious and gave way in their ostensible resolution to the development of a coherent, religiously based foundation for membership in the Puritan communities. To be sure, social exclusion as an ideological component or mechanism for community coherence is as central to religious community coherence as it is to the law; Rene Girard describes the religious, even superstitious, turn of many communities to the figure of the scapegoat—that "one individual" who has been designated by community members as bearing all the fault for their ills and "who can be easily disposed of." There can be no question that the Puritans engaged in scapegoating. Michel de Certeau describes the need for purification or cleansing that accompanies many forms of religious communities, which he recognizes as the creation of "clean space" in utopian discourse and which almost certainly played a part in the creation of the Puritan church-state. The more traditional story of social exclusion told about the Puritans dwells on just such rituals, including different forms of shaming, such as wearing placards—the penalty inflicted on Hester Prynne in The Scarlet Letter, Nathaniel Hawthorne's version of seventeenth-century New England—or being thrown into the stocks and pillory, a common penalty for all sorts of disruptive behavior. In addition, of course, there were excommunication and execution, penalties suffered by countless people, including perhaps most famously the so-called witches of Salem in 1692.
For scholars from Perry Miller to Matt Cohen, however, the banishments of celebrated figures such as Hutchinson, Morton, and Williams proved not that religiously motivated social exclusion was one among many reasons for the frenzied banishments but that it was the only one. Thus the stories they tell about the banished assume the centrality of their heresies. For Philip Gura, for example, Hutchinson and Morton were significant for the radical impact they had on "the doctrinal and ecclesiastical . . . development of American Puritanism," while for Janice Knight, Hutchinson and fellow antinomians such as John Wheelwright and Henry Vane were expelled for the disruption they introduced in the church hierarchy. For Louise Breen, Hutchinson's problem was her "prophetic voice," while for Jonathan Field, Hutchinson, Williams, and the Quakers alike still figure as "religious," not legal dissidents. Even Martha Nussbaum's reading of Williams in the context of his civil defense and leadership returns him in the end to a religious context. The "common political life" envisioned by Williams, she writes, was to be based "on ethical principles [of mutual respect and dignity, for example] that, for many of us, also have a religious meaning and a religious justification."
Still, it is not my point to challenge these statements here. They are accurate and illuminating as far as they go, and there is no denying that religious conceptions of social exclusion were central to the Puritans' community making. Rather my point is to put these religious conceptions into dialogue with the legal ones that have traditionally been left out of the equation. After all, even if Morton's, Williams's, and Hutchinson's alleged religious violations set the exclusionary mechanisms available to the Puritans in motion, it is crucial to remember that they were all banished for nonreligious reasons. Though she was considered a heretic, Hutchinson, for example, was banished not for heresy but for "holding meetings" in her house that were not sanctioned by the civil law. Roger Williams, who defied the principles of congregationalism and was long a thorn in the side of the Bay Colony ministry, was banished for "disturbing the peace," an infraction that was, as the Puritans knew well from having endured the same accusation in England, a secular, not a religious, offense. Moreover to speak of the religious notions that guided the Puritans in their decisions about who could participate in their communities as members without at the same time speaking of the legal notions that were so often in tension with them is to tell only one side of their story; and to tell only that side—the religious side—is to reinforce certain stereotypes about the Puritans that have for too long had a stranglehold on our understanding of this period. If the Puritans were strict and absolute in their imposition of religious rules for membership and engaged in frequent rituals of religious purification or exclusion, they were equal in their devotion to the more ambiguous rules set forth in the common law—uncovered often only in the infliction of and resistance to banishment—driven ultimately to admit people who would not have qualified under the stricter religious rules alone.
Banishment, in short, in contrast to the many forms of religious exclusion favored by the Puritans, proved to be a limit case for social exclusion, a point at which the excluded were sent beyond the typical or traditional limits involved in ostracism or shaming, to name just two alternatives. The question at the heart of banishment, in other words, was not whether it was legitimate to inflict social exclusion on certain undesirable members of the community, but whether it was legitimate to inflict a form of social exclusion that undid their membership altogether. Unlike shunning or shaming or even imprisoning or killing (victims of which the community could mourn and thus reincorporate), banishment provided no semblance of or opportunity for social reintegration. It used the law to create a zone outside the law, and so it tested the limits of the law more than its counterparts tested those of religion. For readers familiar with the work of Carl Schmitt and Giorgio Agamben, moreover, this formulation will resonate, for both have wrestled with the ways in which the law occasionally transcends its own boundaries and makes exceptions to itself. Schmitt and Agamben discuss this legal paradox within the context of the rise of fascism in mid-twentieth-century Europe. In spite of that distance, their theories and those of several other contemporary political theorists inform the analysis of banishment throughout this book. I invoke Schmitt and Agamben as well as Alan Badiou, Jacques Derrida, Jacques Ranciere, and others on the theory that (1) many of the banishment narratives reveal ideas about political and legal communities that share affinities with more recent ones, and (2) the standard stories told about many of these historical figures and texts have been unnecessarily conditioned by limited scholarly approaches that refuse to put them into the transhistorical and transnational contexts they deserve. These texts, despite their distance from us in time, continue to be part of an ongoing conversation about community and social exclusion within the Anglo-America common-law tradition. Moreover this conversation, as we cannot help but observe, has taken on an urgency in recent years that has in part given rise to relevant theories about space, borders, and boundaries that can help us shed light on earlier concerns as well as better understand our own.
For Schmitt, for example, the exception to the law was just that—an irregular condition, called into being by an emergency and creating a special, suspended relation between the sovereign, who called it into being, and the law. Schmitt's work, then, provides a paradigm for thinking about banishment in colonial New England as a law that went beyond the law only in individual, exceptional cases; this of course was a kind of law that was problematic in and of itself but could still be seen as an anomaly. For Agamben, however, the operation of banishment or the "ban," as he calls it, is no longer the exception that proves the rule but the rule itself, a state of being in which the law is defined by what is outside or excluded from it. For Agamben, exclusion from the law is the norm and is called into being not by an emergency, as it is for Schmitt, but by any and every circumstance. The law, then, for Agamben is the exception, the suspension of law itself, and taking this as his starting point, he describes contemporary society as a bare zone and contemporary life as "bare life" that is always lived on the margins. That Agamben's theory of the ban is extreme can be seen in his use of the concentration camps of World War II as a model for contemporary law and politics, so I want to be clear that I am not drawing a parallel between the world of Puritan New England and the world he depicts today. Rather, I invoke him to raise the possibility that the banishments that characterized seventeenth-century New England, extreme and frequent as they were, might share some of the structural features he ascribes to the law in a state of exception. When Roger Williams, for instance, referred to John Cotton's desire that he (Williams) be "denyed the common aire to breath in," he seems to have been thinking of a place beyond which the law applied. When the Puritan authorities found themselves unable to contemplate a place outside either their own or the Indians' territorial possessions, they too seemed to be thinking of a metatopical place in which neither law, Puritan nor Indian, seemed to exist. Could the arguments about banishment made by these and other figures studied here amount to some version of Agamben's state of suspension?
I return to this and other similar questions more explicitly in the book's conclusion, but for now it is enough to bear in mind that in sending people outside the bounds of the law, even the Puritans saw themselves as doing something controversial, as setting up communities that put pressure on the very notion of the law as they understood it. Not surprisingly, then, the stories that the subjects of banishment tell about themselves as well as the stories told by contemporary detractors and supporters of them revolve less around religious principles than around the validity of the legal principles that enabled the creation of communities in which banishment became a regular practice. While religion and the law informed each other, in other words, it was the legal punishment of banishment and not the religious grounds that may have precipitated it that became one of the major catalysts for defining what the Puritan community could and should look like. This study gives voice to these legal stories.
Not a Nation
This brings us to the second reason that aspects of the story and the significance of banishment have been neglected: even among studies of the period that are legally, and not religiously, oriented, most concern the notion of the nation and are thus driven by a "nationalist teleology." While these studies, many of which have been enormously influential and have provided invaluable models for my own, offer nuanced explanations for certain specific legal developments, such as the implementation of Puritan legal reforms, they have tended to gloss over the extent to which, in the exercise of banishment, the Puritan colonies contemplated all kinds of nonstandard and nonnational directions for themselves. These directions have been occluded by the nation-building point of view common to most legal scholarship, the major features of which—territory or jurisdiction and power or sovereignty—have for too long been seen as combining in predictable and even invisible ways.
Put another way, legal, social, and literary studies written in the light, if not in the service, of this nationalism have fallen prey to a notion of community that aligns with the maddeningly vague, almost ineffable sense of coherence that defines nationalism—a sense in which belonging and membership are somehow inextricably and inexplicably linked to territory and the process by which an "us" takes shape against a "them." As the legal geographer David Delaney suggests, what people understand about the rise of the nation tends to remain at the level of the us/them divide. "'We' [the members] simply are who we are," he writes, "and 'they' [the nonmembers] are obviously not 'us.'" This tautological understanding of the idea of national belonging and membership offers a sense of national territory as fixed and inelastic—a border or boundary between "us" and "them"—on the one hand, and a sense of membership in the community as homogenous—whatever "we" are, it is nothing like what makes them "them"—on the other.
A focus on this divide prevails even when those studies differ on precisely how the nation came into being. For a social scientist such as Liah Greenfield, for example, the us/them divide is a function of different individual relations and collective dispositions. According to Greenfield, there is a moment in which an awareness of a shared community spreads among people to make them a people, a community with a coherent membership, but that moment, conveniently, escapes definition. Benedict Anderson's model of the nation as an "imagined community" shares features with Greenfield's, as do those of Peter Sahlins and Anthony Smith. Taking issue with this dispositional model, Charles Tilly has offered a more materialist approach that nevertheless reinforces the ineffability of national bonds. He comes at the subject through an analysis of transactions. "Strictly speaking, we observe transactions," he writes, "not relations. Transactions between social sites transfer energy from one to another . . . [and] from a series of transactions we infer a relation between the sites: a friendship, a rivalry, an alliance, or something else." Though his examples here—friendship, rivalry—suggest a community on a relatively small scale, for Tilly these transactions provide the "ties" that make up the membership of a nation as well.
The sociologist Saskia Sassen speaks in similar, albeit far more critical, ways about the methods of inclusion and exclusion that comprise the nation. They are a "bundling," a term that for her conjures the strange and ostensibly unassailable mixture of territory, on the one hand, and authority or sovereignty, on the other, to which Sassen adds a third component, which she calls "rights." Exasperated with this bundling, which she repeatedly calls "a challenge" and insists we "decode," Sassen has begun the project of disambiguating or "unbundling" in order to provide a template for the spread of denationalization and globalization. But if Sassen sees her task as future oriented—she imagines a new, global order—she turns to the past to begin her engagement with this future, rereading the history of a number of different kinds of communities or "assemblages" from the medieval period forward. For Sassen, these early communities were neither necessarily protonational nor based on rigid and unexamined assumptions about how territory, sovereignty, and rights should combine. Rather they were variable, trying on new understandings of community, of membership and belonging, by responding to historical and material conditions in unexpected ways and by altering the way people understood territory, authority, and rights.
Like Sassen, I turn to communities in the making, not yet bound by the predetermined territorial lines that we associate with the nation and yet, unlike those studied by Sassen, not completely free of them either. I turn, in other words, to a particular moment in time, to the formation of communities that began as companies, turned into colonies, found themselves alternately with and without charters, sympathized at times with kings and at others with regicides, and were, finally, attracted to and yet defiant of the pressure to identify themselves as and with nations. Like others, that is, the communities studied here were in constant flux, but the terms of that flux revolved around the specific poles of separation and incorporation, monarchy and its alternatives, that marked their relationship with early modern England and altered their ideas about community in turn. In addition the communities in question here were marked by their own social and material changes. During the span of time covered by this study, roughly 1620 to 1684, the communities of Plymouth and Massachusetts Bay, for example, underwent transformations that included varying levels of immigration (as well as different kinds of immigrants), changing ideas about religious practice and Puritanism, and changing ideas about self-rule and internal government, all of which informed their exercise of banishment and their sense of community. As many scholars have pointed out, the first five or six decades of Puritan rule in New England can be divided neatly into generational phases, revealing dramatic differences between how the first (from the 1620s through the 1630s), second (from the 1640s through the 1650s), and third (from the 1660s through the 1670s) generations set some events in motion and responded to still others. Last but not least, we note the changing notions of law that were intimately tied to but not entirely encompassed by changes in sovereignty in these years.
Banished, which proceeds chronologically, attempts, like Sassen's work, "to register the complexity" of these changes, and yet in its description of banishment, it also suppresses some of the chronological details in order to open up other ways of telling the story and other ways of asking questions about it. Thus the book focuses in its description of banishment on changes in the law up to 1684 because the legal order defined by the period of the first charter, regardless of how internally changeable it was, provides us with distinct parameters. During this period the law was particularly fraught and fluid; the common law vied for and ultimately achieved supremacy over other kinds of law in England and yet was subject to reworking in the colonies. More significantly, in this period the very tenets of the common law—its dependence on negotiation and precedent, among others—were on people's minds in a way that was unparalleled, and thus under the leadership of Sir Edward Coke and others, the law became a kind of lingua franca for thinking about community and membership. Subsequent periods, especially those decades immediately following the revocation of the charter, in the 1680s and 1690s, were also involved in many of these same discussions. Indeed in the years between the revocation of the charter in 1684 and the creation of the Province of New England in 1693 there were legal complexities as power shifted from Joseph Dudley, the president of a temporary council established in the Bay Colony; to Edmund Andros, the first royal governor; to Simon Bradstreet, the second. However, the issue of how to form a community in those years did not revolve around the peculiar operations of the common law or its understanding of social exclusion, as it did in the earlier period.
The Common Law and Rhetoric
What do we mean when we refer to "those peculiar operations of the common law"—the negotiation and precedent cited above—and how did they come to play a role in the exercise of banishment and the understanding of community on which it relied? The answer lies largely in their rhetorical form. The product of judge-made law that was rooted in the "customs of the people," the common law, as opposed to legislation or royal fiat, evolved through a process of precedent in which a previous decision was both applied to and if need be altered by a subsequent one. This treatment of precedent created a unique rhetorical context for lawmaking, entering into a dialogue with previous legal actors while at the same time speaking to present legal actors and enacting changes on their behalf. Still in effect, the common-law system set in motion by Sir Edward Coke and his immediate heirs was also arguably different from our own in its strict adherence to the principles of responsiveness and reciprocity—of a negotiation between past and present with lawyers for both sides arguing the merits of their cases and in so doing hoping to be persuasive. These arguments or negotiations are essentially rhetorical performances, examples of rhetoric or the art of persuasion. As all seventeenth-century lawyers would have known, rhetoric as Aristotle defined it is a way of getting at the truth through the persuasive interactions of speaker and audience. Cicero, who followed Aristotle in this regard, clarified the rhetorical essence of the law by explaining that legal truth was similarly produced through speakers who could "win people over."
The link I am making here between the law and rhetoric is at once obvious and subtle: obvious because anyone who has been to court or seen a courtroom drama knows that judge-made law is a process of question and answer or give and take; subtle because an acquaintance with the law, especially in its television incarnation, fails to reveal that in rhetorical terms this legal give and take, this "winning of people over," is also what structures community creation and is thus central to the inquiry into territory, jurisdiction, and membership undertaken here. James Boyd White has observed that this "aspect of legal rhetoric is what might be called its ethical or communal character, or its socially constitutive nature. Every time one speaks as a lawyer, one establishes for the moment a character—an ethical identity, or what the Greeks called an ethos—for oneself, for one's audience, and for those one talks about. . . . The law is an art of persuasion that creates the objects of its persuasion, for it constitutes both the community and the culture it commends." Building on White's ideas, Francis Mootz raises the possibility that rhetoric is not simply a constitutive feature of law but also "a way of knowing." Rhetorical knowledge, which Mootz describes as the knowledge we acquire from arguing with each other, "is a constitutive feature of legal practice." Using Mootz to examine the law of banishment allows us to draw from our reading of the banishment narratives a sense not only of what issues were at stake in the creation of community through the us/them or inside/outside divides, but also how Puritans in both majority and minority positions came to know their world and their laws.
To see the law in rhetorical terms, then, is to depart to some degree from the rubric of law and literature that may be familiar to readers of studies such as this. To be sure, Banished would not have been possible without the work of the law and literature scholars who first insisted that both "law and literature structure reality through language." But the readings offered here do not see the law as a form of language, a genre of literature, or even as one of many normative discourses, as Robert Cover suggests, as much as a specific way of talking worlds and their members into existence. Banished explores these new worlds through an examination of the arguments over banishment, that is, over the terms of jurisdiction, sovereignty, and rights that were central to banishment, not simply because boundaries and membership were at stake in these decisions but because the law provided a language in which the Puritans came to know themselves and to make themselves known to others. That the banished found a voice at all was due in part to the rhetorical structure provided by the law. Thus while many have noted that banishment ends in silence—think of the long line of exiles who, like Mowbry in Richard II, experienced banishment as a "loss of language"—Banished moves in a different direction, still Shakespearean in many ways but more like the Shakespeare of Henry IV than the Shakespeare of Richard II. It demonstrates how, far from imposing silence on the banished, banishment opened up a way of talking about and thinking through how communities were formed in the seventeenth-century transatlantic world and how territory, authority, and rights might combine in new ways to form new kinds of members among them.
In some ways, then, Banished does its own banishing: it takes up the story of banishment as told by the "Henrys" of the colonial world while excluding that of the "Mowbrys," even though the "Mowbrys" clearly had their own story to tell. In some cases, of course, the problem is simply practical; the stories of the Bewetts, Walfords, and Stones who were banished along with their more famous counterparts were either lost or never written. All we have in the case of many of these figures is a brief entry in the record books of the General Court indicating that they were "sent away." Such sparse records are naturally less revealing than the extensive narratives studied here, and yet they do tell us something: that banishment, for instance, was not reserved for celebrated political upstarts but was widely deployed and accepted as a means of ridding the colony of criminals. Indeed it is this feature of banishment that motivates the analysis here, for it is only because it was a commonly inflicted punishment that banishment figured so significantly in the larger debates over how the Puritans' community was and should be constructed. But the stories of the silent may suggest even more: that banishment cut across class lines, targeting the well-to-do as well as the illiterate and those without access to print technology. This figures prominently in the banishment debate, as will be demonstrated in Chapter 2 In addition silence suggests that banishment may have been seen by some, as the Puritan authorities hoped it would be, as the lesser of two evils. For some of the banished, in other words, silence may have indicated gratitude, either for escaping the death penalty or, alternatively, for being forced to return to England, which so many of the early colonists longed to do.
While there are numerous lessons to be learned from the banished who, regardless of the reasons, did not speak, there is a way in which their banishments do not strictly fit the bill of the topic studied here, for to be banished without responding to the banishment is in some ways not to be banished at all. To the extent that banishment depends on a rhetorical relationship to the law, that is, it demands a response; without it, the individual targeted by the law is, arguably, excluded from the community but not exactly banished. Indeed the need for a reciprocal, even dialogical relationship between banished and banisher is at the very heart of what banishment means: it is precisely to be excluded and yet not excluded—to continue to speak across jurisdictional boundaries and in so doing to challenge their very existence. The quality of the speech matters as well; the speech of the banished must be carried on within the terms of the law by which the exclusion was put in place, and it must attempt, like the arguments put forward for the banishment to begin with, to be persuasive, albeit to opposite ends.
This distinguishing characteristic of banishment and of the banishment narratives taken as sources here begins to explain what else has been banished from these pages. Edward Said has observed that there are two primary responses to exile: exiles either assimilate with remarkable zeal to their new surroundings or they fetishize their displacement and refuse to adapt. Banished does not tell the story of either of these types, for neither one gives voice to the question of community membership that proves to be so central here. In the former category, of assimilationists, we might include stories by successful immigrants and asylum seekers or the autobiographies of professionals, who manifest an immediate allegiance to their new country. In the latter category, of fetishists, we might include the stories of people who spoke eloquently about their banishments even as their subject is, like Mowbry's, the loss of their ability to speak at all. Indeed the stories of these people are far more frequently studied than the ones I tell here; they are the stories of exile and of loss, of nostalgia for the homeland and of a longing to return that have increasingly come to our attention as more and more people are displaced.
There were stories like these in the ancient past as well as in our period, and they form the source material for several excellent books, including Paul Tabori's Anatomy of Exile and Christopher D'Addario's Exile and Journey in Seventeenth-Century Literature. However, the approach to these stories is, not surprisingly, different from my own. In keeping with the sentimental nature of his sources, for example, D'Addario takes as his task a description of "the formative psychological, social, affective and literary experience of exile in the lives of these divergent groups." Banished is not about these kinds of exile and so does not explore the psychological, affective, or literary experience of the banished, if by literary we mean the plaintive or celebratory narratives of affiliation under consideration by Tabor, D'Addario, and others. It does, however, explore the literary in terms of the legal, an aspect of literature not often considered in the context of exile and yet central to all of the banishment narratives examined here. That is, the banished in these pages take up the story of banishment as a political and legal affair and remake the law as they argue with it, delve into its purpose, contemplate its future, and consider its past, without which their arguments for or against it would make no sense within the terms of the common law.
A Brief History
A mode of punishment that is, according to Black's Law Dictionary, "inflicted upon criminals, by compelling them to quit a city, place, or country for a specified period of time, or for life," banishment in England was from the twelfth through the fourteenth centuries associated with the practice of giving religious sanctuary to criminals who, if they agreed to confess or, to use the contemporary legal term, abjure their guilt, would be sent out of the kingdom rather than killed or imprisoned. Related to this was the legendary system of outlawry, which differed from banishment in being imposed on subjects who were typically not present when sentenced and who tended to remain, like Robin Hood, within reach of the territory from which they were cast out.
Increasing in popularity over time, by the middle of the fifteenth century banishment, or eviction, as it was then often called, began to be used, like outlawry, to punish a variety of offenses committed outside of a religious context, and it was this turn in the history of banishment that has been overlooked in the New English context. As Marjorie McIntosh notes, in these years banishment was used as a punishment for hedge-breakers, subtenants, and gamers, among others. Often invoked as an alternative to other sentences, including imprisonment, corporal punishment, and shaming rituals such as the stocks and pillory, banishment was also often seen as a form of local police control, which could be used to bar certain individuals from the parish or from small areas within it, such as the town square. In this incarnation banishment bears a striking resemblance to the far more familiar vagrancy laws, which proliferated in the seventeenth century as poverty became more widespread and the poor became more mobile. Unlike banishment, however, vagrancy laws, as well as a closely related New England variant known as "warning out," targeted the poor for financial, not criminal, reasons. It was, in short, only because communities were obligated to support their poor that vagrants, so called, were sent away.
At the end of the sixteenth century, as the power to banish was removed from the jurisdiction of the English local courts, these more local instances of banishment occurred less frequently, and banishment became associated with the larger territory of the "nation." As Edward Coke observed at the time, "[b]y law, no subject can be exiled or banished his countrie, whereby he shall perdere patriam, but by authoritie of parliament, [in consultation with the king]." Surpassing the number of local orders of banishment were orders issued by Parliament and by the monarch—at first by Queen Elizabeth I (although she was not much given to issuing banishment orders) and then by her successors, James I and Charles I. These orders, including the 1592-93 act banishing English recusants as well as other acts banishing Egyptians, the Irish, Anabaptists, and Negroes, not only targeted larger groups of people than ever before but also mandated that these groups leave not the parish or the town but the nation conceived as a whole.
It is, then, partly in light of this history that we can begin to appreciate how oppositional a gesture the Puritan New World banishments really were. Despite the authority extended to them in their charters, the Puritans' frenzied recourse to banishment in those first decades of settlement represented an approach to banishment that was no longer current in England and thus could be construed, as it often was, as a challenge to England's sovereignty. (Even as we recognize this, however, we need also to bear in mind that from a practical point of view, banishment was probably inflicted more in the New World than in the Old because of a lack of prison space in the colonies, at least in the early years.) As the authority of a state to govern itself or other states, sovereignty is inextricably linked to territory in what the law calls "jurisdiction," the power to make and administer justice in a given area. To be sure, there are jurisdictions that are governed by nonterritorial criteria, such as subject matter—for example whether the action is civil or criminal—or subject—for example whether the defendant is a resident or nonresident of a certain place. But in the vast majority of cases, in the seventeenth century as well as today, jurisdiction revolves around whether the issue in question—the crime or civil injury—occurred in the specific geographic area over which the court has the power to rule. Even more telling of sovereignty than the power to govern those within the jurisdiction, however, is the power of the sovereign to throw people out and thus to rob them of their membership within it. As Hannah Arendt has observed, "[t]heoretically . . . it ha[s] always been true that sovereignty is nowhere more absolute than in matters of emigration, naturalization, nationality and expulsion." The question of sovereignty at stake in these early banishments, then, was as much a contest over who was in charge of drawing territorial lines and defining membership within them as it was about how to interpret the common law and whether Parliament, the king, or the common-law courts were the ultimate arbiters "in matters of emigration, naturalization, nationality and expulsion."
These and other, similar questions were further complicated by the often-contradictory positions adopted by the colonists themselves toward the territory and government encompassed by the colonies as well as and sometimes in contrast to the territory and government encompassed by the island by which England was still circumscribed. Persecuted by Archbishop Laud and others in the royal government, the Puritans who left for New England clearly felt a need to sever some, if not all, ties with the jurisdiction into which they were born. Thus from the very beginning of their New World settlements, there were conflicts between the settlers and their authorizing entities, which included, as Richard Ross has explained, a dizzying array of charters, letters patent, trading companies, and royal proclamations that gave them and their inhabitants an uncertain status in the law. Plymouth Plantation, for example, though granted a degree of communal coherence by the Mayflower Compact of 1620, was long considered a trading post, not a colony, and existed without any authority to make laws or declare its own status until 1629, nine years after the first white settlers arrived. Even the Bay Colony, whose initial settlers arrived with a charter that gave them the authority to make laws and, specifically, to banish people from their settlement, suffered from a long period of jurisdictional uncertainty, which included threats of charter revocation by the king.
If they were at times inclined to sever ties with England, however, the Puritans also felt compelled to maintain them. Indeed in leaving England under the threat of banishment, the Puritans insisted that they were denying not their Englishness but only the association between their Englishness and England's church; thus it was often said at the time that "it was for England's sake that they were going from England." Nor was their leaving necessarily intended to be permanent or absolute. In fact when it became clear that social conditions were often better for the Puritans in England than they were in the New World, many Puritans engaged in what David Cressy has called a reverse migration. During the 1630s and 1640s alone, several thousand people left the New World for the Old, including two hundred people from Governor John Winthrop's original fleet. Even though there were attempts by the New England leadership to portray those who returned to England as defectors, Andrew Delbanco has noted that "the reverse emigration was much more than a winnowing of chaff, and everyone in New England knew it." Even such a stalwart and devoted New Englander as Increase Mather indulged in a period of "reverse migration," returning to live in England during Cromwell's Protectorate in order to reclaim ancestral lands. The maintenance of these connections with England the country in contradistinction to England the church has almost certainly been one of the major factors leading so many scholars to think about the Puritans' banishments of others in predominantly religious terms.
The complications brought on by the uncertainty of the Puritans' affiliation with England, as opposed to the Anglican Church, were only aggravated by the uncertainty of their status as colonists and by England's project of New World colonization. Colonization, together with annexation, became a source of friction in early modern understandings of community and, not surprisingly, a catalyst of change. With colonization and annexation, even the principle of birthright, which was the most fundamental assumption about community and community membership within the law, was challenged. Birthright, or jus solis, to use the contemporary legal term, declared that if you were born in England, you were ipso facto English (with the significant exception, of course, of slaves). Despite the apparent elegance and simplicity of the principle, however, the claim to birthright came under attack by those with a more complex birthright than the principle presupposed. For the first time there were large numbers of people born outside the original territory or jurisdiction to which membership had been confined but who were nevertheless making claims for inclusion. What, for example, did it mean to be born in England and then forced to leave it? Or, to take the version of this question that was being raised at the time, what did it mean to be born in Scotland before it was absorbed by England under the rule of James I? This question, which occupied some of the greatest legal minds in the early part of the seventeenth century and which found no easy answer, forms the core of Calvin's Case (1603), a landmark decision authored by Sir Edward Coke (and discussed in Chapter 2) that was at the very center of jurisdictional disputes in seventeenth-century England.
The complexity of the territorial affiliation at issue in Calvin's Case—in which one's place of birth and one's place of residence were redefined as a result of a consolidation of England's and Scotland's sovereignty—was only compounded in New England by the indeterminate legal status of the colonies and of their inhabitants. What did it mean to live in a colony three thousand miles away from the metropolis, and how far could the theory of jus solis be pushed? If you were English born, did that qualify you for membership in any English jurisdiction? Or, to put it in terms more common to banishment, if you were English born, could another Englishman exclude you from an English jurisdiction, no matter where that jurisdiction was? Moreover what, if anything, did it mean that unlike the laws about deportation today, in which only noncitizens are threatened with expulsion, both the banished and the banisher shared a territorial origin?
Because territories were expanding, borders became more permeable and jurisdictions more difficult to identify. But the jurisdictional complexities that occupy us here go beyond the problem of permeable or shifting borders. In addition to colonization and annexation, that is, other forces were at work in the disruption of the simple, nearly isomorphic relationship between person and place posited by jus solis. Cultural factors, such as the merging of customs and habits among people that resulted from their increased mobility, created new ideas about community that may have pushed the early moderns to go, as David Delaney puts it, "beyond the paradigm of territory as discretely bounded spaces" altogether. For Delaney, as for many other scholars working in the newly invigorated fields of human and legal geography, territory is not so much a geographical location as a geographically informed manifestation of social order—a social imaginary, to use Charles Taylor's term, in which people think about and act upon versions of "how they fit together with others."
Space, Place, Territory, Jurisdiction
This understanding of territory is indebted to a number of recent developments in space, place, and territory studies that though rarely seen as such were nevertheless at work in the debates about banishment in the seventeenth century and thus inform the use of the concepts here. I invoke contemporary space and place theorists, however, to suggest not that certain recent developments under examination in their works—in particular, developments brought about by twentieth- and twenty-first-century technological innovations such as computers, cell phones, and the Internet—bear any resemblance to perceptions of space by the early moderns, but rather to tease out some of the perceptions that were shared and yet not theorized as clearly in their day as in our own. In particular Banished's examination of the kinds of spaces thrown into question by banishment includes an experiential or phenomenological component that has been central to scholars of space such as Yi-Fu Tuan, Edward Soja, and Edward Casey, among others. For these scholars, adding a phenomenological component to a "space" turns it into a "place." If "space" denotes an undifferentiated or geometric area, in other words, "place" denotes that same area after it has been visited, inhabited, or experienced by people. Even the most cursory reading of some of the banishment narratives under scrutiny here suggests that it was just such a transformation of space into place that played a part in the arguments against banishment. In the description of hospitality, for example, the cases of both Hutchinson and Morton imply that their experiences of life in the community of the colonies, understood in abstract terms, had been changed irrevocably by their experiences of life within their homes, understood in personal terms, and that given their personal experiences, they could no longer tolerate the notion that the doors of the colony would not, like the doors of their homes, be thrown open to "all comers."
However, the phenomenological component goes beyond the comparison of colony to home. Tim Cresswell clarifies the primacy of human experience within even the most traditional of geographical paradigms. "The history of geography," he writes, "has taken as one of its central objects the common-sense experienced difference between portions of the Earth's surface." That the colonists experienced the portion of Earth's surface they called New England as different from that of England is, of course, a commonplace of scholarship on this period, but Cresswell's observation helps us clarify how that experience might have entered into the colonists' sense of community and jurisdiction. Using Cresswell helps us appreciate the new alignments between inside and outside that informed the Puritans' early settlements, and their changing notions of the frontier, in particular. At the highest level of generalization, for example, the New World, because its flora and fauna were so different from England's and because it was so far away, was experienced as the frontier, an outside beyond which no one would ever dream of going. Yet almost as soon as they established their settlements, the English made smaller and smaller distinctions, according to how the larger space—the New World—was naturally divided. Where there were rivers or impenetrable forests, for example, the Puritans drew legal, political, and sometimes even religious lines until such time as they learned how to transcend them, at which point they were forced to redraw them all over again.
This reconfiguration of space often had the effect of turning places into territories. Indeed this emphasis on human experience is central as well to the investigation into territories, which are defined as places in which the issue at stake is not so much the experience of geography as such but the experience of sovereignty or control. "Territory," Delaney explains, should be "understood as implicating and being implicated in ways of thinking, acting, and being in the world, ways of world-making informed by beliefs, desires, and culturally and historically contingent ways of knowing." Like territory, the concept of jurisdiction also goes far beyond the question of geographic range to engage the specific question of legal membership and meaning. Jurisdiction, as Bradin Cormack writes, "merges the making of meaning with the creation of bounded space, a meaning that emerges from the etymological root of the word—juris—law—and dictio—speaking. As a speaking of the law . . . jurisdiction thus grounds the activity of producing normative meaning." The ways of thinking and making the world are legal (and thus normative) insofar as "they merge the making of meaning with a bounded space." Jurisdictional decisions about who can stay within a territory (and vote, pay taxes, or walk the streets, for example) as well as who can or should be thrown out of it—all of which are entailed in banishment—are at the heart of membership decisions examined in this book.
Implicit in all of the recent work on territory, space, and place, however, is the concept of nationalism. For Sassen and Delaney, it is a central concern, but even for theorists of space and place, such as Soja and Casey, it is the elephant in the room or, to return to Sassen's formulation, the bundle that needs unbundling. However, it was, importantly, not yet a given in the period covered by Banished, and that in itself contributed to the uncertainty and ambiguity that arose in discussions of banishment. The concept of the nation-state was in the air, but it was still very much a work in progress, and banishment, I argue, was central to fleshing out its details. Not protonational exactly, the territories encompassed by England and its colonies, taken together or on their own, were far more malleable than the territory of a nation, as was the concept of membership within them. In particular the significance of speaking of a membership that was not yet considered a form of citizenship—which accompanied the rise of the nation-state—is that the criteria for membership tended to be more expansive, not confined, as they became in most cases of citizenship, to property ownership or offered, as the attributes of citizenship usually are, as a package set. Indeed the citizen-subjects, as Sassen calls them, of the early modern period did not necessarily have what Sassen calls "rights" at all; for the Puritans, for example, they were considered "liberties," which, unlike rights, attached at times to the person and at others to the place and variously offered large entitlements, such as permission to vote, as well as totally mundane ones, such as permission to store one's grain in the common granary. Moreover the variability within the idea of liberties made the idea of membership more malleable than in communities based on rights, an idea I return to in the Conclusion.
Admittedly the Body of Liberties for the Massachusetts Bay Colony, a list of ninety-eight "liberties" drafted over the course of several years but finally published and distributed in 1641, made the nature of these liberties clearer. But the common law or case law of the colony continued to add to and detract from them, rewriting them as it rewrote its understanding of territory and sovereignty over time. Indeed the common law was tailor-made for the reorganization of the elements that comprised communities and membership within them. Traditionally understood as judge-made law determined on a case by case basis, the common law was said to have derived from "the ancient constitution," an unwritten body of laws that emerged as doctrine in the fifteenth century but did not achieve widespread acceptance until the early seventeenth, when it was defined, as J. G. A. Pocock puts it, as "common custom, originating in the usages of the people and declared, interpreted and applied in the courts." Of course the common law was only one of several different types of law in the early modern period. Royal law, equity, and canon law, among others, acting in concert created a domain of legal pluralism and jurisdictional competition. If all these different types of law and law courts were competing for supremacy, however, the common law was at the same time emerging as victorious, a fact that led the Puritans, who were naturally ill disposed toward the king's law, to embrace it as their own. During the drafting of the colony's Body of Liberties in the late 1630s, the General Court of the Bay Colony specified "that there shalbe these [famous common law] books following procured for the use of the Courte from time to time: Two of Sir Edward Cooke [sic] upon Littleton; two of the Books of Entryes; two of Sir Edward Cooke upon Magna Charta; two of the Newe Tearmes of the Lawe, two Daltons Justice of Peace; two of Sir Edward Cooks Reports."
If the Puritans consulted books of common law for wisdom in constructing their own legal codes, they diverged from them as well, holding fast to the parts that suited them and remaking others. The question of how the Puritan settlers in New England remade the common law in their own image has been the subject of many invaluable legal histories. The first generation of these histories tends to confirm that the common law survived the transatlantic voyage largely intact and suffered only minor revisions. This conclusion has produced interest in colonial legal reform. More recently, however, research into the colonial and English versions of the common law has suggested a greater degree of interplay between England's version of the common law and that of the colonies, yielding a theory of what one scholar has called a "transatlantic constitution." This theory has opened up new avenues for legal research and has made it possible to see colonial common law as existing in a reciprocal relation with that of England. Nevertheless this reciprocity has its own drawbacks insofar as it tends, like earlier theories, to associate the mother country with an older, more entrenched version of the common law and the colonies with legal reform or innovation—producing a model that does not capture the changes that characterized the Puritan recourse to banishment. By targeting individuals for banishment, the Puritans were not making new laws or even reforming old ones but reviving a common-law tradition that had largely been abandoned in England at that time.
The version of colonial common law that emerges in the light of banishment, then, adds a new wrinkle to the history of the common law's transatlantic move. More specifically, this version makes it clear exactly how flexible and fluid the common law was, for it was capable not only of adapting to unprecedented conditions in the New World but also of returning under new conditions to older versions of itself, ultimately taking on a new direction in the land of its birth and following an old direction in the land of its adoption. But the question remains: how exactly did the common-law rhetoric of banishment come to alter the prevailing relationship between person and place, community and member? This question prompts the following four chapters as they examine the challenges to the banishment law and to everything it implied about fixed boundaries, birthright, unambiguous sovereignty, and homogenous populations. Moreover, while all of the chapters share overlapping concerns, each one has a different story to tell and thus sheds a different light on the way standard assumptions about community and membership were being dismantled and reassembled through the debates over banishment.
In Chapter 1 the challenge to banishment takes the form of a reconceptualization of territory and jurisdiction as a potential place of inclusion as opposed to exclusion. This chapter takes up the stories of Anne Hutchinson and Thomas Morton, whose banishments were proximate in time but have otherwise been seen as unrelated. Anne Hutchinson, as is commonly known, was a pious Puritan whose membership in the Bay Colony was not, at least at first, in question, whereas Thomas Morton, a successful trader and religious renegade, was unwelcome (in Plymouth and the Bay Colony) from the start. In my reading, however, both figures are united in their protest strategies, strategies that go far beyond a repudiation of the Puritans' authority to banish them to find its roots in a rival reading of the common law, one based on the custom of hospitality. Under the mandate provided by hospitality, which was not coincidentally a religious and legal mandate all at once, Hutchinson and Morton argued that the community was bound not only to let people in, as opposed to throwing them out, but also to adapt itself to an increasingly transient population.
In Hutchinson's trial testimony (given during her civil trial) and in Morton's New English Canaan, together with Governor Bradford's lengthy response to him in his Of Plymouth Plantation, we see a new narrative of community emerge in which members, under the transitory engine of hospitality, formed bonds and affiliations through the very means that struck the Puritan magistrates as antithetical, namely through boundary crossings and cross-border relations. To be welcomed into the community, for Hutchinson and Morton, in other words, did not mean that one had to stay forever in a certain fixed place.
Embedded within the arguments put forward by Hutchinson and Morton about a more transient population was an exhortation for the community to accept greater diversity among its members. This emphasis is at the heart of Chapter 2, which reengages the banishment of Roger Williams. While other scholars have written about the extent and importance of Williams's legal vocabulary, few have examined the full range of his commitment to common-law precepts about the diversity of the earthly and temporal realm in its relation to Christendom. This focus on diversity emerges most clearly in his fifteen-year-long pamphlet war with his primary banisher, John Cotton. In these writings, as Chapter 2 argues, what most people read as a commitment to religious tolerance in Williams's thought is more accurately seen as a commitment to what he saw as the common law's willingness to disarticulate "person" from a temporal, as opposed to a spiritual, place. For Williams, the magistrates' notion of creating a community on earth with a homogenous population was tantamount to a usurpation of God's realm—the only place, according to Williams, where such a thing was possible. Indeed it was Williams's belief in and familiarity with certain strands within the common law that drove him to advocate the virtues of heterogeneity in the context of civic belonging and thus to confront his fellow Puritans on the difference between the secular and spiritual realms.
The benefits of a diverse rather than homogenous population are also engaged by the story of the Quakers' banishments in Chapter 3. In contrast to the argument made by Williams, the Quaker argument for diversity emerges in the context of a new understanding of what it meant to be present in, or conversely to be absent from, a given territory or jurisdiction. In returning time and again to the Bay Colony in defiance of a law banishing them "on pain of death," the Quakers ultimately forced the Puritans to turn banishment—one way but not the only way to remove people from the jurisdiction—into execution, banishment's evil twin. When the magistrates of the Bay Colony hanged four of the returning Quakers, the extent to which banishment had been masquerading as a more lenient alternative to death—a social death rather than a physical one—was revealed. Moreover, in forcing the Puritan authorities to confront the hidden violence behind banishment, the Quakers introduced a notion of partial allegiance that has resurfaced in the context of an emerging global sphere. What the Quakers urged, in other words, was a community bound together by members who accepted some but not all of the community's rules, regulations, or ideologies, demonstrating that it was political and legal contentiousness that could create regularities between people and make community members of them.
The even greater significance of the Quakers' actions in this regard was to call attention to the way in which banishment presupposed a space that could be emptied in the first place—a space, in other words, that could be separated from the bodies of its members through physical or social means. As Robert Sack has observed, "territoriality . . . helps create the idea of a socially emptiable place," but as the Quakers suggested through their persistence, even in death, this notion remains something of a fiction. Banished or killed, the Quakers seemed to say, the Bay Colony could not help but turn them into permanent members.
At stake in Chapter 4 is a new expression of territorial belonging that comes into being through its negation. More specifically, this chapter argues that for some individuals, specifically those for whom membership has traditionally been restricted to a territorial affiliation, such as the Indians, membership can emerge only when the members are deterritorialized, when their affiliations with any portion of land, no matter how small, have been severed entirely. The discussion in this chapter focuses on the internal banishment of nearly five hundred praying Indians to Deer Island in the Boston harbor during King Philip's War. During this banishment the Indians were for the first and arguably only time in the history of their relations with the white settlers unaffiliated with any land, since Deer Island was a place over which the Indians had no semblance of ownership. As further argued in Chapter 4, it was only because of this loss of affiliation that the Indians began to take up a new kind of identity within the community that was based not on their relationship to the land but on their personal agency. This made them subjects of the common law in ways that had not been available to them before and suggested that what counted for membership was not birthright or any form of ethnic or religious identity that might have been tied to it, but rather actions that furthered the public good. These actions, I argue, become the evidence for and source of their membership in the depositions and affidavits that surrounded their performance as soldiers for the English in King Philip's War.
The Puritan frenzy to banish came to a halt with the revocation of the Bay Colony's charter in 1684. Even so, banishment lived on. Although the Puritans were no longer allowed to indulge their obsession with banishment, other nations, including England, continued to banish, and the impulse behind banishment—the desire to define communities through exclusion rather than inclusion—found new expression in altered forms such as deportation. The Conclusion to Banished provides an overview of these forms, including information on those few remaining states in the Union that still have banishment laws on the books, but it resists providing any prescription for membership or formula for community formation. Rather the hope is that in coming to understand the flux that characterized community membership and exclusion in early modern America, we can think through and possibly past the rigid notions that have clouded our reading of the past and put up impediments for our thinking about the future.