Background

Little is known about early Virginia Indian law and justice, and what little is known focuses on the Powhatan Indians of Tsenacomoco, a paramount chiefdom of twenty-eight to thirty-two groups in Tidewater Virginia. The Powhatans lived in towns and villages, one or more of which were ruled by weroances, or chiefs. Tsenacomoco as a whole was ruled by a mamanatowick, or paramount chief, who at the time of the English landing in 1607 was Powhatan (Wahunsonacock). When English observers wrote about the Indians' law and justice, they generally emphasized the power of these chiefs and, on occasion, the kwiocosuk, or priests, to define right and wrong behavior and to exact appropriate punishment. William Strachey, in The Historie of Travaile into Virginia Britannia (1612), wrote that the Indians do have "posetive lawes, only the lawe whereby he [Powhatan] ruleth is custome."

Still, the Englishmen were prevented from fully understanding what they observed because they had little knowledge of the Powhatans' language and culture, and had no interpreters for the first year and a half, and few after that. In addition, the English settlers were mostly young men whose understanding even of English law was limited, and their instructions from the Virginia Company of London involved replacing Indian law rather than working within its confines. Under those circumstances, they had little motivation to record any specifics of the Powhatan legal system.

As a result, scholars today know little or nothing of how misbehavior was identified within the Indian community, how culprits were caught, who decided the punishment, and how it was to be delivered. In difficult cases of stealing, it appears that priests were sometimes used as diviners of guilt, while chiefs were probably the ones most involved in enforcing the law. In the end, English colonial accounts amount to a series of sometimes-gruesome anecdotes that make clear only a few actions that the Powhatans considered to be capital crimes, along with the specific manner of their punishment.

Crime and Punishment

Fourteen-year-old Henry Spelman began living first with the mamanatowick Powhatan in 1609 and then later with the Patawomeck Indians on the Potomac River, becoming fluent in the Powhatans' language and serving as an interpreter. In his Relation of Virginia, 1609 (written in 1611 and published in London in 1872), Spelman recorded the following actions as meriting a punishment of death: committing or abetting infanticide, stealing from a fellow Indian, and having an unsanctioned affair. This last crime applied to wives only, and affairs with a husband's consent were permissible. Captain John Smith described a woman accused of "playing the whore" who was made to "sit upon a great stone, on her bare breech twenty foure houres, onely with corne and water, every three dayes, till nine dayes were past, yet he loved her exceedingly."

Spelman wrote that he thought the Indians were "lawless" until he witnessed a series of five executions. The condemned were brought before the chief's house, where his guards "did bind them hand and foote, which being dunn a great fier was made." Then, the condemned's hair, worn long on the left side, was cut with a shell and hung before the chief's house. After this, they were "Beaten with staves till ther bonns weare broken and beinge alive weare flounge into the fier." A man accused not of murder but of robbery was, according to Spelman, "knockt on ye heade and beinge deade his bodye was burnt."

Smith described similarly violent punishments, including one where offenders were cast into "burning coales … to broyle to death." In other cases, Powhatan ordered men to have their heads beaten on a stone. While chiefs seemed to be most involved in law enforcement, the priest Uttamatomakkin, who accompanied Pocahontas to England in 1616, told the Reverend Samuel Purchas that he had personally executed an Indian found guilty of stealing by clubbing him to death.

Disrespect of a chief also warranted death. In The History and Present State of Virginia (1705), Robert Beverley Jr. describes a scene in New Kent County around the time of Bacon's Rebellion (1676). A weroance was giving a speech in the presence of Englishmen when "one of his attendants presumed to interrupt him." Taking this to be a "most unpardonable affront," the chief "instantly took his tomahawk from his girdle and split the fellow's head for his presumption. The poor fellow dying immediately upon the spot, he commanded some of his men to carry him out, and went on again with his speech where he left off, as unconcerned as if nothing had happened." Stealing from foreigners while they were the guests of a chief brought a beating, although presumably it was acceptable to steal from them at other times.

Presumably many other kinds of behavior were identified as being wrong and these behaviors were met with less severe punishments meted out by family members or fellow townsmen. The English records only hint at this, however. In December 1607, while exploring the headwaters of the Chickahominy River, Smith was set upon by a communal hunting party led by Opechancanough. Before being captured, Smith killed one of his attackers, and that warrior's father later tried to kill Smith in revenge. Although Smith was in the chief's custody, Opechancanough apparently did not have the right to call off the father; instead, he removed Smith from the camp. Later in the seventeenth century, two English observers noted that personal revenge for murder was the rule among the Indians they encountered; they added, however, that many crimes were punished with a fine rather than with physical abuse.

Henry Spelman describes one extraordinary instance where physical abuse, although spontaneous and informal, provided a sanctioned release for the wronged person's feelings. Spelman was living with Iopassus (Japazaws), the weroance of Passapantazy in Patawomeck territory, and he considered himself a guest. However, one of the chief's wives, Paupauwiske, considered him a servant and ordered him to carry her baby along when she traveled a long day's journey to visit her family. When Spelman refused, "she strook me 3 or 4 blows, but I beinge loith to bear much hot to hir and puld hir doune giving hir sum blows agayne." At this point, Paupauwiske's co-wife jumped in, "beating me so as I thought they had lamd me." When Iopassus returned home, Spelman confronted him with his version of events, and the chief immediately "tooke up a couwascohocan, which is a kind of paring Iron, and strook at one of them [the wives] with such violenc[e], as he feld her to the ground in manor deade." Fearing for his own safety, Spelman fled to a nearby house, but when the wife regained consciousness she apologized. Spelman's position was not challenged again.

Indian Law and the English

The historian Robert Beverley wrote that exacting revenge for wrongs against the person and against the chiefdom was an obsession among the Indians he encountered. About Powhatan men, Smith wrote, "They are soon moved to anger and so militious that they seldome forget an injury." This behavior was a function of Powhatan teaching and custom and could not be checked, even by the mamanatowick; as a result, it led to long-term feuds and continual, small-scale guerrilla war. When an Englishman wronged an Indian, that person or his or her relatives had a right to exact retribution, which could be directed at the particular Englishmen, a relative, or even a nonrelative. The English could and did appeal to the paramount chief, but he was powerless to intervene. This made relations between the two peoples unstable for many years.

Perhaps ironically, the English colonists borrowed this Indian practice of extending the bounds of revenge to even nonfamily members of the group. In 1641, the General Assembly passed a law "Concerninge Injuries Rec'ed Fr' ye Indians." It stipulated that when an Indian wronged an Englishman and eluded capture, then another Indian of the same group, chiefdom, or tribe was to be detained as a hostage until the culprit was turned in to face English justice. By the end of the century, the English settlers had successfully imposed their legal system on the Indians. Today the two surviving Indian reservations in Virginia have adopted the Code of Virginia, as well as local bylaws that, except in the case of land ownership, closely resemble those of other localities in the state.