By Larry D. Eldridge. New York: New York University Press. 1994. Pp. xv, 198. $37.50.
To state the obvious, the right to free expression occupies an important place in modern U.S. law. The extraordinary significance of this right leads naturally to scholarly attempts to find its origin in U.S. history, out of both a sense of curiosity and a desire to learn from the past. In A Distant Heritage, Larry Eldridge(1) looks for the origin of the right to free expression in the formative days of our republic, specifically in the laws and legal practices of the seventeenth-century colonies.
Eldridge's explicit purpose is to rebut the "resilient orthodoxy," an orthodoxy that he attributes to Leonard Levy,(2) that "no political free speech existed in seventeenth-century America" (p. 1). Eldridge claims to have made the startling discovery that American colonists in the 1600s "experienced a dramatic expansion of their freedom to criticize government and its officials across the seventeenth century" (p. 3). This expansion was grounded in a "foundation laid deep and firm in colonial experience" (p. 142). Indeed, for later colonists who led the revolt against Britain, American colonial practices in the 1600s constituted nothing less than "a tradition of freedom passed down from the time of their parents' grandparents" (p. 142).
These are broad claims -- claims too ambitious for even Eldridge's truly impressive historical research to substantiate. Readers expecting to find in Eldridge's book an explanation of the early colonial origins of the First Amendment's protection of free expression will be disappointed.
Eldridge begins A Distant Heritage with a brief examination of colonial controls on the broad range of activities that modern authorities would now consider exercises of the right to free expression. Seventeenth-century colonial authorities placed sharp limits on citizens' sexual activities, dress, treatment of citizens belonging to higher social classes, and attitudes toward members of the opposite sex (pp. 5-7). By reviewing colonial controls on this wide range of activities, Eldridge illustrates that seditious speech laws were merely one part of a broader colonial attempt to regulate citizen behavior in order "to maintain a moral society" (p. 5).
Eldridge then proceeds to narrow his focus to seditious speech. He distinguishes three types of seditious speech the utterance of which colonial authorities punished: scandalum magnatum, government criticism, and false news.(3) According to Eldridge, scandalum magnatum was the "slandering or scandalizing [of] great men in the realm" (p. 10). Later discussion makes clear that scandalum magnatum included at least two different types of offenses: personal insults against particular citizens of great social or governmental stature (p. 43), and "misprision charges," or allegations of official incompetence, unfairness, or disloyalty (p. 45). The broad category of government criticism included harsh words about the government generally (pp. 28, 53-54), its statutes (pp. 28, 52), and specific exercises of its power (p. 28). Rules against false news covered untrue words about individual government officers as well as inaccurate reporting of events.(4)
Within this discussion of the three types of seditious speech, Eldridge pauses to note two interesting historical legal facts. First, in a world ruled primarily by judge-made common law, many colonies chose to regulate seditious speech by statute (pp. 23-31). Second, despite their diverse religious and legal foundations, the various British colonies "used strikingly similar statutes and methods to enforce [rules against seditious speech]" and "demonstrated a notable consistency in the types of punishments authorized against [such speech]" (p. 34). Both results are surprising given...