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A Distant Heritage

A Distant Heritage: The Growth of Free Speech in Early America

Copyright Date: 1994
Published by: NYU Press
Pages: 216
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  • Book Info
    A Distant Heritage
    Book Description:

    Historians often rely on a handful of unusual cases to illustrate the absence of free speech in the colonies - such as that of Richard Barnes, who had his arms broken and a hole bored through his tongue for seditious words against the governor of Virginia. In this definitive and accessible work, Larry Eldridge convincingly debunks this view by revealing surprising evidence of free speech in early America.Using the court records of every American colony that existed before 1700 and an analysis of over 1,200 seditious speech cases sifted from those records, A Distant Heritage shows how colonists experienced a dramatic expansion during the seventeenth century of their freedom to criticize government and its officials. Exploring important changes in the roles of juries and appeals, the nature of prosecution and punishment, and the pattern of growing leniency, Eldridge also shows us why this expansion occurred when it did. He concludes that the ironic combination of tumult and destabilization on the one hand, and steady growth and development on the other, made colonists more willing to criticize authority openly and officials less able to prevent it. That, in turn, established a foundation for the more celebrated flowering of colonial dissent against English authority in the eighteenth century.Steeped in primary sources and richly narrated, this is an invaluable addition to the library of anyone interested in legal history, colonial America, or the birth of free speech in the United States.

    eISBN: 978-0-8147-2253-4
    Subjects: History

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Charts
    (pp. ix-x)
  4. Acknowledgments
    (pp. xi-xii)
  5. Abbreviations
    (pp. xiii-xviii)
  6. Introduction: Leaving the Shadow
    (pp. 1-4)

    Historians have long stood in the shadow of a presupposition masquerading as a conclusion, namely that no political free speech existed in seventeenth-century America. Leonard Levy, an eighteenth-century specialist and still the premier historian of colonial free speech, summarized the state of scholarly opinion on the subject in his 1985 revision ofLegacy of Suppression. After noting some seditious speech prosecutions on the Chesapeake, Levy observed that “in neighboring Maryland during the seventeenth century, there was as little freedom of expression as in Virginia.” “A glance at New York and Pennsylvania,” he continued, “indicates that speech and press were as...

  7. ONE The Boundaries of Colonial Speech
    (pp. 5-19)

    Governments regulate expression across a wide spectrum, and to accomplish varied ends. Ultimately, the goal is to maintain a well-ordered society—to uphold prevailing moral and social values, to preserve public peace, to maintain respect for authority. Colonial governments were no different. In this chapter I outline the various areas of expression that colonial authorities regulated and the reasons why they did so. I place seditious speech within a broader context, then explain the kinds of words they considered seditious. These tasks are essential. The broader goals and context within which officials defined and punished seditious speech add perspective. Without...

  8. TWO Seditious Speech Law
    (pp. 20-41)

    English seditious speech laws originated in the thirteenth century, eventually crossing the Atlantic to become established in the colonies. Those laws were the foundation upon which prosecution and punishment stood. They were also, in a sense, the one major constant in an ever-evolving universe of control over expression. To appreciate the important changes in freedom of speech that occurred during the seventeenth century, one must first understand the stable foundation the law provided.

    The earliest stages of English seditious speech law date from the reign of Edward I, who ascended to the throne in 1272. Edward’s rule marked an important...

  9. THREE The Nature of the Words
    (pp. 42-66)

    Early colonial authorities sought to control expression across a wide spectrum in the interests of maintaining ordered society and stable government. Within that spectrum, laws against seditious speech of various types figured prominently, and they retained their essential elements throughout the seventeenth century. Yet the gulf between theory and practice, between statute and enforcement, was substantial. In this chapter we will explore how colonial officials put seditious speech law into practice. We will examine the types of actual cases officials pursued and assess changes in the nature of the words prosecuted across the century, in the colonies as a whole...

  10. FOUR Between the Millstones
    (pp. 67-90)

    Throughout the seventeenth century, colonists well understood William Hoskins’s observation that to be a defendant drawn into the criminal justice system was to be “ground as copper between two millstones.”¹ Here we will explore the nature of that system as seditious speakers confronted it, from discovery and arraignment through trial and conviction. What courts were like, conflicts of interest, procedural protections, availability of attorneys, the role of juries and appeals—each will command our attention in turn. Though many aspects of the system remained essentially static across time, in some areas—especially the increasingly successful employment of juries and the...

  11. FIVE Sanctions in Decline
    (pp. 91-113)

    Colonists tried for seditious words in the 1600s more often than not found themselves convicted and facing punishment. Early in the century, that prospect was a looming terror, for the possibility of disfigurement and other hardly less alarming forms of corporal punishment was very real. Short of those, profound public humiliation, banishment, prison in chains, and other penalties most frightening to contemplate awaited. The situation was very different by the end of the century. By the 1690s, very few seditious speech defendants need have trembled when before the bench, for use of all the truly menacing sanctions had declined dramatically...

  12. SIX A Growing Leniency
    (pp. 114-131)

    Across the seventeenth century, colonial officials increasingly abandoned a variety of harsher sanctions in punishing seditious words, adopting in the process milder penalties as replacements. Here we examine those expanding penalties, then explore in turn the decline of multiple sanctions, the rise of remittances, and the growing inclination to either forgo prosecutions or abandon them once begun. Each of these developments contributed substantially to an unmistakable pattern of growing leniency toward seditious speech in the early colonies.

    Fines were by far the most common punishments pronounced against offenders in the seventeenth century. That was true not just for seditious speech,...

  13. SEVEN Fruits of Circumstance
    (pp. 132-142)

    Across the seventeenth century, colonial authorities came to punish seditious speech much more mildly, abandoning humiliation, exclusion, and bodily injury in favor of milder sanctions including small fines and admonition. They also abandoned the older propensity for multiple punishments of a single seditious speech offense, remitted penalties they had pronounced, and increasingly left unprosecuted clear and known instances of the crime. As this softening process continued, colonial officials also gradually changed in the kinds of words they chose to prosecute as seditious.Scandalum magnatumcases increasingly centered on misprision issues; false news prosecutions for words against leaders faded in favor...

  14. Notes
    (pp. 143-174)
  15. Bibliography
    (pp. 175-194)
  16. Index
    (pp. 195-198)
  17. Back Matter
    (pp. 199-199)