Banished: Common Law and the Rhetoric of Exclusion in Early New England by Nan Goodman (review)

The reliance on banishment in seventeenth-century New England has been much discussed in a religious context. For it was a means by which theological identity could be asserted, and perilous communities approach the ideal of a gathered church. Nan Goodman provides a substantial change of emphasis through an enriching context of common law. In an interdisciplinary study, she uses a variety of cases to raise questions concerning rhetoric and identity, space and place, hospitality and charity, emerging nationalism, sovereignty, the relationships between colonists and indigenous peoples, and the transformation of the common law itself in being translated to the Americas.

The work is ordered chronologically (c. 1620–84). Chapter 1 concerns the banishment of Anne Hutchinson, putative antinomian from the Bay Colony and Thomas Morton from it and Plymouth, distinct cases sharing similar legal arguments on the requirements of hospitality and charity. Chapter 2 explores legally informed aspects of the gathered church and what the banished Roger Williams argued, contra John Cotton, was the necessity of social diversity on earth contrasting with the unity of the Church in Heaven. Chapter 3 explores the differences between belonging, inclusion, and presence in the Bay Colony’s banishment of a group of Quakers who provocatively returned, eventually to be hanged. Chapter 4 discusses the expulsion of 500 Indian converts to Deer Island, justified not in terms of religion, but the imperatives of the common good. It was a banishment, argues Goodman, that gave the Indians common law presence (p. 119). The chapters are framed by an extensive thematic Introduction and Conclusion.

The strengths of Goodman’s study lie in the complementary nature of her cases, in her careful attention to the shifts in common law and its partial use (hardly unusual for the times), as a tool in forming and purging religious and social identity, and in her courage in grappling with an eclectic range of concepts from anthropology, human geography, social theory, and sociology. It is convincingly argued that the revival of punishment by banishment itself helped change common law in New England, while only later in the seventeenth century was the English common law principle of belonging by birthright applicable, and then not uniformly. Thus it was necessary from an early stage to consider the criteria for belonging in geographically circumscribed communities that were always more than churches.

Although Goodman acknowledges the difficulties of processing seventeenth-century argument through later concepts and contemporary theory, her prose and conceptual discrimination do not always overcome them (e.g., pp. 17, 113, 149). The problems are not, however, ad hoc, but a consequence of her principal endeavour, to give past figures and texts what ‘they deserve’, assimilation to ‘transhistorical’ categories (p. 7), that is – more modestly – modern ones. In this context, her handling of sovereignty and nationalism are both problematic and inadequately informed. It seems assumed that the geographical ambit of the law went in tandem with notions of sovereignty, (and that with power) when common lawyers could regard sovereignty as an alien and redundant category. At one point, via Foucault, Goodman conflates law with sovereignty (a minority idealization characteristic of seventeenth-century absolutists). Pressing Foucault and Habermas into the service of ‘subject–sovereign’ relations and the ‘public sphere’ (p. 107), results in an unclear and unduly modernizing account of Quaker resistance. Attention to the casuistic reasoning that dogged both law and religious apologetics would have given a more plausible picture.

Goodman is also well aware of the distortions caused by nationalist teleologies, yet sees nationalism as ‘in the air’ (p. 21) and banishment helping to give it substance. But if the concept is presupposed, premature substance is easily achieved by question-begging re-description. Thus Coke’s references to ‘countrie’ and patria (p. 16) are summarized as about the nation, a conceptual massaging that ends with the anachronism of Coke’s ‘nationalism’ (p. 150...