1. 33 Minn. 151, 152.

2. See, for example, Friedman, Lawrence M., History of American Law 105–229 (2d ed. 1985)Google Scholar; Hall, Kermit L., The Magic Mirror: Law in American History 106–67 (1989).Google Scholar

3. Grossberg, Michael L., Governing the Hearth: Law and the Family in Nineteenth-Century America (1985)Google Scholar; Zainaldin, Jamil S., The Emergence of a Modern American Family Law: Child Custody, Adoption, and the Courts, 1796–1851, 73 Nw. U. L. Rev. 1038 (1979)Google Scholar; Griswold, Robert L., Family and Divorce in California, 1850–1890 (1982).Google Scholar

4. The law epitomized the family in the legal fiction of marital unity that placed all legal authority in the husband. See Basch, Norma L., Invisible Women: The Legal Fiction of Marital Unity in Nineteenth-Century America, 5 Feminist Stud. 346 (1979).CrossRefGoogle Scholar Traditional patriarchy placed absolute authority over the family in the hands of the father. Developed as an English political ideology, traditional patriarchalism's ideal was “to establish, maintain, and enforce harmonious, hierarchical relations from family to kingdom.” Kann, Mark E., On the Man Question: Gender and Civic Virtue in America 47–48 (1991).Google Scholar

5. Wood, Gordon S., The Radicalism of the American Revolution 229–43 (1992)Google Scholar; Fliegelman, Jay, Prodigals and Pilgrims: The American Revolution Against Patriarchal Authority, 1750–1800 (1982).Google Scholar

6. Lewis, Jan, The Republican Wife: Virtue and Seduction in the Early Republic, 44 Wm. & Mary 687 (3d 1987).Google Scholar During the late eighteenth and early nineteenth centuries the meaning of virtue changed from a male/political term to a female/sexual one. Bloch, Ruth H., The Gendered Meaning of Virtue in Revolutionary America, 13 Signs 37 (1987)CrossRefGoogle Scholar; Riley, Denise, “Am I That Name” Feminism and the Category of “Women” in History 40 (1988)Google Scholar. The home became the arena in which the new post-Revolutionary “republican wife” and later “Victorian mother” played her role as nurturer and educator of the succeeding generations of republican men. This domestic ideology is the belief that the home is the primary arena for the teaching of morality and conduct. Since women dominate this sphere, they have a public influence through their efforts at home. Laqueur, Thomas, Making Sex: Body and Gender from the Greeks to Freud 293 n. 29 (1990).Google Scholar

7. “The republican family encouraged modifications in almost all the doctrines, rules, and statutes that dealt with the household and its members.” Grossberg, supra note 3, at 12.

8. Basch, Norma, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York 200–202 (1982)Google Scholar; Stein, Marlene, Introduction: Marriage and Property in, Women in American Law 120 (Stein, Marlene ed. 1985)Google Scholar; Chused, Richard H., Married Women's Property Law: 1800–1850, 71 Geo. L.J. 1359, 1400 (1983).Google Scholar Canada's experience with liberal legislation reflected a similar judicial hostility to women's rights. Backhouse, Constance, “Pure Patriarchy”: Nineteenth-Century Canadian Marriage, 31 McGill L.J. 265 (1986)Google Scholar; and idem, The Tort of Seduction: Fathers and Daughters in Nineteenth-Century Canada, 10 Dalhousie L.J. 45 (1986).Google Scholar

9. Hindus, Michael S. and Withey, Lynne E., The Law of Husband and Wife in Nineteenth-Century America: Changing Views of Divorce in 2 Women and the Law: A Social and Historical Perspective 141 (Kelly Weisberg, D. ed. 1982).Google Scholar

10. Grossberg, supra note 3, at 293–94.

11. Sinclair, M. B. W., Seduction and the Myth of the Ideal Woman, 5 L. & Ineq. J. 33, 46–50 (1987).Google Scholar In her study of Canadian seduction law Constance Backhouse found that judges were antagonistic to women whose fathers brought suit under Canada's liberal 1837 seduction statute. Canadian judges viewed the action of seduction as a reflection of the moral decay of the Canadian family. Tort of Seduction, supra note 8, at 46, 55. See also Griswold, supra note 3, at 100.

12. Grossberg, supra note 3, at 301.

13. Michael Grossberg has labelled these judges “judicial patriarchs.” Grossberg, supra note 3, at 290. Given the prominent role that the concept of patriarchy plays in feminist scholarship to explain male domination of women in capitalist societies, I prefer to emphasize the judges' paternalism. While judges and legislators may have helped produce patriarchal results, their motivation seems to have had paternalist roots. In this regard Grossberg has recently referred to nineteenth-century judges as “paternal patriarchs” in Institutionalizing Masculinity; The Law as a Masculine Profession, in Meanings for Manhood: Construction of Masculinity in Victorian America 133, 142 (Carnes, Mark C. & Griffen, Clyde eds. 1990)Google Scholar. Griswold, Robert L. also uses the concept in Law, Sex, Cruelty, and Divorce in Victorian America, 1840–1900, 38 Amer. Q. 721, 738 (1986)CrossRefGoogle ScholarPubMed; and idem, Divorce and the Legal Redefinition of Victorian Manhood in, Meanings for Manhood 96–111.Google Scholar Mark E. Kann calls this same phenomenon “liberal patriarchy” in supra note 4, at 26–32 (1991); and idem, Individualism, Civic Virtue, and Gender in America, in 4 Studies in American Political Development 46, 75 (Orren, Karen S. & Skowronek, Stephen eds. 1990).Google Scholar

14. “[M]iddle-aged men… were the ones encumbered with the duty to exercise patriarchal leadership. They bore the burden of securing women's domesticity and channeling young men into military service. They had responsibility for micromanaging women's and young men's behavior to protect social order.” Kann, supra note 4, at 30. See also Hearn, Jeff, Men in the Public Eye 21 (1992)CrossRefGoogle Scholar and Walby, Sylvia, Women's Employment and the Historical Periodization of Patriarchy, in Politics of Everyday Life 143 (Corr, Helen & Jamieson, Lynn eds. 1990).Google Scholar

15. In his treatise on tort law nineteenth-century Judge Thomas M. Cooley approved of a privilege for fathers who candidly discussed suitors with their daughters. He recognized “the agitation and alarm which paternal feelings would naturally experince when an alliance believed to be improper was proposed.” 1 Cooley, Thomas M., Treatise on the Law of Torts or the Wrongs which Arise Independently of Contract 438 (1st ed. 1878)Google Scholar. Georgia Judge Lumpkin rejected testimony in a slander case because he feared that the charge would “stimulate assaults upon the virtue of a young woman, however innocent she might be in her deportment.” Beggarly v. Craft, 31 Ga. 309, 316 (1860).

16. Later in the century courts became fearful that suits for seduction and breach of promise to marry were being used as tools of extortion. Slander, however, did not present the same threat since in most slander cases the issue was whether the defendant's speech was actionable, not whether the defendant had spoken the truth.

17. The fact that many women participated in the public workplace did not alter the fact that the judges' conception of appropriate behavior relied on the separate spheres ideology. Richard Chused points out that while antebellum feminists protested the relegation of women to the home, most middle-class women accepted domesticity as the norm. Chused, supra note 8, at 1423. A corollary to the separate spheres was the “cult of domesticity” first brought to historians' attention by Welter, Barbara Rush in The Cult of True Womanhood, 1820–1860, 18 Am. Q. 151 (1966)CrossRefGoogle Scholar. “True womanhood” emphasized four values: piety, purity, submissiveness, and domesticity. Rothman, Ellen K., Hands and Hearts 50–51, 91, 184 (1984)Google Scholar. On the reality of female participation in the public sphere and male concern with the domestic, see, for example, Waciega, Lisa, A “Man of Business”: The Widow of Means in Southeastern Pennsylvania, 1750–1850, 44 Wm. & Mary Q. 40 (3d 1987)CrossRefGoogle Scholar; Lystra, Karen, Searching the Heart 11, 122 (1989)Google Scholar; Jeffrey, Julie Roy, Frontier Women: The Trans-Mississippi West 7–45 (1979)Google Scholar. The literature on the “separate spheres” was launched by Cott, Nancy F., The Bonds of Womanhood 197–99 (1977)Google Scholar. See also Kerber, Linda K., Separate Spheres, Female Works, Woman's Place: The Rhetoric of Woman's History, 75 J. Am. Hist. 9 (1988)CrossRefGoogle Scholar; Kelly, Joan, The Doubled Vision of Feminist Theory in, Women, History, and Theory 51, 57–9 (1984)Google Scholar; Kerber, Linda K. et al. , Beyond Roles, Beyond Spheres: Thinking about Gender in the Early Republic 46 Wm. & Mary Q. 565 (1989)CrossRefGoogle Scholar; Smith-Rosenberg, Carroll, Hearing Women's Words: A Feminist Reconstruction in, Disorderly Conduct: Visions of Gender in Victorian America 11–13 (1985)Google Scholar. For an overview of the debate see Helly, Dorothy O. & Reverby, Susan M., Introduction: Converging on History, in Gendered Domains 1–17 (Helly, Dorothy O. & Reverby, Susan M. eds. 1992).Google Scholar For an English comparison, see Catherine Hall, White, Male and Middle-Class: Explorations in Feminism and History 9–32 (1992).

18. Kerber et al., supra note 17, at 565. For a similar conclusion focusing on labor law, see Vander Velde, Lea S., The Gendered Origins of the Lumley Doctrine, Binding Men's Consciences and Women's Fidelity, 101 Yale L.J. 775 (1992).CrossRefGoogle ScholarSee, generally, Ortner, Sherry B. & Whitehead, Harriet, Introduction: Accounting for Sexual Meanings in, Sexual Meanings: The Cultural Construction of Gender and Sexuality 37 (Ortner, Sherry B. & Whitehead, Harriet eds. 1981).Google Scholar

19. “As judges reassessed the place of women in the law, they began to view women as a dependent class with particular claims on the conscience of the bench and a special set of rights independent of either property ownership or male prerogatives.” Grossberg, supra note 3, at 38.

20. “Of all the treasures cherished by a woman, her reputation for chastity is the dearest.” Jones v. Jones, 60 Tex. 460 (1883) as quoted in Griswold, Law, Sex, Cruelty, supra note 13, at 728.

21. “Every woman is presumed to be chaste and every man to be honest until the contrary be shown.” Shilling and wife v. Carson by her next friend, 27 Md. 175, 188 (1867). Haltunnen, Karen, Confidence Men and Painted Women: A Study of Middle-Class Culture in America, 1830–1870Google Scholar; and Kasson, John F., Rudeness and Civility: Manners in Nineteenth-Century Urban America 96–103 (1990)Google Scholar. For the nineteenth century's ethic of male honesty and “fidelity to contract,” see Wallace, Anthony F. C., Rockdale 18–21 (1978).Google Scholar

22. Wyatt-Brown, Bertram, God and Dun & Bradstreet, 40 Bus. Hist. 432 (1966)CrossRefGoogle Scholar.

23. D'Emilio, John & Freedman, Estelle B., Intimate Matters: A History of Sexuality in America 70, 132–33 (1988)Google Scholar. This paralleled similar developments in Great Britain. Davidoff, Leonore, L'Esperance, Jean & Newby, Howard, Landscape with Figures: Home and Community in English Society in, The Rights and Wrongs of Women 139, 157–59 (Mitchell, Juliet & Oakley, Ann eds. 1976).Google Scholar By the nineteenth century middle-class women had lost their traditional association with lust and became invested with the quality of innate purity. Then in mid-century a sexual ideology that stressed female passionlessness emerged. This set of beliefs played a role in sharpening judicial reaction to sexual epithets. Griswold, Law, Sex, Cruelty, supra note 13, at 725–27. See also Cott, Nancy, Passionlessness: An Interpretation of Victorian Sexual Ideology, 1790–1850, 4 Signs 219 (1978).Google Scholar

24. D'Emilio and Freedman, supra note 23, at 70–71.

25. Wilson v. Beighler and wife, 4 la. 427, 429 (1857). In True and wife v. Plumley, 36 Me. 466 (1853) the court referred to the “utter debasement” implied in words that charged the “habit of prostitution for the sake of gain” (at 480). In England the “fallen woman” metaphor supported the double standard of sexual behavior. Thomas, Keith, The Double Standard, 20 J. Hist. Ideas 195 (1955).CrossRefGoogle Scholar Chastity epitomized female virtue; its value required seeing a woman's function as purely sexual.

26. Gilfoyle, Timothy J., Strumpets and Misogynists: Brothel “Riots” and the Transformation of Prostitution in Antebellum New York City, 68 N.Y Hist. 45 (1987).Google Scholar

27. State v. Branson and Miller, 18 S.C.L. (2 Bail.) 149, 150 (1831).

28. Vanderlip and wife v. Roe, 23 Pa. 82, 84 (1854). In a case where an unmarried woman was called a “whore,” a Texas court concluded that the jury's large damage award was influenced by “their sense of the shamelessness and enormity of using such language to a female.” Linney v. Maton, 13 Tex. 449, 457 (1855).

29. The English did not make sexual slanders against women actionable per se until the Slander of Women Act, 54 & 55 Viet. c. 51 (1891).

30. In Wilcox v. Webb and wife, 1 Blackf. 258 (Ind. 1823) the court, commenting on Indiana's recently adopted slander statute, said that it was “in its nature remedial, giving a remedy for a pre-existing moral right” (at 258). In the nineteenth century chastity was more than a category of sexual behavior, it was also a moral category. Davidson, Arnold, Sex and the Emergence of Sexuality, in Forms of Desire: Sexual Orientation and the Social Constructionist Controversy 89, 117 (Stein, Edward ed. 1990)Google Scholar; see also Stratton, Jon, The Virgin Text: Fiction, Sexuality, and Ideology 43 (1987).Google Scholar

31. Post, Robert, The Social Foundation of Defamation Law: Reputation and the Constitution, 74 Stan. L. Rev. 691 (1986).Google Scholar

32. For an application of this idea to the antebellum law of slander see King, Andrew J., The Law of Slander in Early Antebellum America, 35 Am. J. Leg. Hist. 1 (1991).CrossRefGoogle ScholarHorwitz, Morton J., The Transformation of American Law 81 (1975). 33.Google ScholarSee infra, text at note 59.

33. See infra, text at note 164.

34. Griffin and wife v. Moore, 32 Md. 246, 251 (1875).

35. For example, in Berry v. Carter and wife, 4 Stew. & P. 387 (Ala. 1833) the court reversed a lower court judgment for the plaintiff and held that it was not actionable to say of a married woman “she is not chaste and I have kept her.” The court went on to say that the plaintiffs should be gratified because the jury verdict manifested “the purity of Mrs. Carter's character… fixing the offence of moral, although not legal slander” upon the defendant (at 390). This reflected a more general judicial desire to craft a sharp distinction between law and morality. Horwitz, supra note 32, at 265. For an example from the law of contracts see 1 Dane, Nathan, General Abridgement and Digest of American Law 100 (1823).Google Scholar

36. This study does not include libel because the contemporaneous legal test for libel—“false and malicious writing published of another… which render him contemptible or ridiculous in public estimation, or expose him to public hatred or contempt, or hinder virtuous men from association with him”—made allegations of sexual misconduct actionable per se, and, therefore, did not raise the same problems for the courts. Cooley, supra note 15, at 240–41.

37. Ingram, Martin, Courts, Church, Sex and Marriage in England 292–319 (1987).Google Scholar The ecclesiastical courts' remedies of repentance and apology rather than monetary damages did not easily fit the common law.

38. Actions for sexual slander remained in the jurisdiction of the ecclesiastical courts until mid-nineteenth-century legislation gave jurisdiction over to the common law courts. However, even during the time that the ecclesiastical courts retained jurisdiction, litigants could still sue in common law courts if they alleged special damage.

39. Minor, Smith v., 1 N.J.L. 16 (1790)Google Scholar. See infra, text at note 71.

40. For nineteenth-century women success meant marrying well. Lebsock, Suzanne, The Free Women of Petersburg: Status and Culture in a Southern Town 166 (1984)Google Scholar. Pease, Jane H. & Ladies, William H. Pease, Women & Wenches: Choice & Constraint in Antebellum Charleston & Boston 2 (1990)Google Scholar. See also Hartog, Hendrik, Marital Exits and Marital Expectations in Nineteenth-Century America, 80 Geo. L.J. 95 (1991).Google Scholar In Biggs v. State, where a husband was prosecuted for attempting to murder his wife's attacker, the court asked: “In what has society a deeper concern than in the protection of female purity, and the marriage relation?… And if the wife is too weak to save herself, is it not the privilege of the jury to say whether the stron arm of the husband may not interpose, to shield and defend her from pollution?” 29 Ga. 723, 729 (1860). Sinclair, supra note 11, at 99. For evidence that sixteenth-century marriage also displayed a non-economic side see Quaife, G., Wanton Wenches and Wayward Wives: Peasants and Illicit Sex in Early Seventeenth-Century England 143–64 (1979)Google Scholar.

41. See infra, text at note 93.

42. See infra, text at note 163.

43. Basch, Norma, Relief in the Premises: Divorce as a Woman's Remedy in New York and Indiana, 1815–1870, 8 L. Hist. Rev. 1 (1990).CrossRefGoogle Scholar For Indiana's pre-1873 reputation as “a jurisdiction of easy and ready divorce” see Wires, Richard, The Divorce Issue and Reform in Nineteenth-Century Indiana 1 (1967).Google Scholar

44. Grossberg, supra note 3, at 298–302 and Griswold, Law, Sex, Cruelty, supra note 13, at 738.

45. Prior to reforming its pleading system in 1852 Indiana followed common law rules of joinder that required husbands to join in suits involving their wives. Thereafter husbands still joined suits under the rules of coverture until 1879 when the state allowed married women to bring tort actions under their own names. Logan v. Logan, 77 Ind. 558 (1881). In these figures, I have counted the person who was the actual victim or accuser as revealed by the case report. The preponderance of male defendants probably reflects the financial ability of men to pay damages.

46. Unique among American jurisdictions, Indiana's statute permitted men to sue for allegations of incest, sodomy, and bestiality. While there were occasional suits for accusations of sodomy in other jurisdictions, Indiana's three cases under this statute were for bestiality.

47. New York's common law punished bestiality and sodomy with sufficient severity to make such accusations actionable per se. The state's experience with the special damage exception spurred its number of cases. See infra, text at note 115.

48. The greater proportion of female plaintiffs in Indiana is probably due to the Indiana statute that gave women the per se cause of action.

49. Since Indiana's statute gave women a cause of action for fornication and adultery, it made it easier for them to sue. However, even in states whose statutes made the action available to men, women predominated. For example, in Illinois, from 1835 – 80, often cases, nine were brought by women; in Missouri, from 1833–80, of six cases, four were brought by women. The Indiana court affirmed that its statute was adopted to aid women. In Wilson v. Barnett, 45 Ind. 163 (1873) the court said that “out of favor to females and as a protection to the character of that sex, the legislature enacted” the statute (at 169). In rejecting a narrow reading of its common law of slander the Pennsylvania supreme court said: “It is not to be supposed, that Pennsylvania entertains a less appreciation of the character of her citizens, or that her laws do not afford protection against a slanderer, especially of woman, equal with her sister states.” Burford v. Wible, 32 Pa. 95, 99 (1858). For the gendered nature of the action in the colonial period, see Norton, Mary Beth, Gender and Defamation in Seventeenth-Century Maryland, 44 Wm. & Mary Q. 3 (3d ser. 1987)CrossRefGoogle Scholar; Thompson, Roger, Sex in Middlesex: Popular Mores in a Massachusetts County 169–89 (1986).Google Scholar

50. For examples of the anger of the jilted suitor see: Hatch v. Potter and wife, 7 111. (2 Gilm.) 125 (1845) (“She slept with me one night before she was married, and I screwed her.”) Richardson v. Roberts, 23 Ga. 215 (1857) (“John Banes would have married Mary Jane Roberts, if it had not been for me, I prevented him, her child was Nathaniel Griggs'.”) For parental reaction see Moody v. Baker, 5 Cow. 351 (N.Y. 1826); Hawver v. Hawver, 78 111. 412 (1875) (father-in-law accused his daughter-in-law of unchastity); Schmisseur v. Kreilich, 92 111. 347 (1879) (“The girl, Kreilich, has acted [made] the whore with my boy”)

51. Snell v. Snow, 54 Mass. (13 Mete.) 278 (1847) (“she is a bad girl” held not actionable); Dodge v. Lacey, 2 Ind. (2 Cart.) 212 (1850) (“not a decent woman” held not actionable).

52. Hosley v. Brooks and wife, 20 111. 115 (1858); K. v. H., 20 Wis. 289 (1866); Schurich v. Kollman and wife, 50 Ind. 336 (1875).

53. Emmerson v. Marvel, by his next friend, 55 Ind. 265 (1876) (“She was getting fat; some one had slipped up on the blind side of her” held actionable.) “[W]ords having a provincial meaning will be used and understood in the province, the locality, with such meaning, and if that meaning be an actionable one, the words, in the province, will be, per se, actionable” (at 270). “You have had old John Tilton up here on top of you once; you are like an old boaring sow, and a bulling cow” held not actionable. Edgerley and wife v. Swain, 32 N.H. 478 (1855).

54. Gluckman, Max, Gossip and Scandal, 4 Current Anthropology 307, 308 (1963)Google Scholar; West, James[Carl Withers] Plainville, USA 162 (1945).Google Scholar

55. Jones, Deborah, Gossip: Notes on Women's Oral Culture, 3 Women's Stud. Int. Q. 193, 196 (1980)CrossRefGoogle Scholar; Handelman, Don, Gossip in Encounters, The Transmission of Information in a Bounded Social Setting, 8 Man 210–27 (1973)Google Scholar. On the frontier women used gossip to maintain standards. Jeffrey, supra note 17, at 86.

56. Most of these cases occurred before the Civil War. Castleberry and wife v. Kelly and wife, 26 Ga. 606 (1858); Patterson and wife v. Edwards and wife, 7 111. (2 Gilm.) 720 (1845) (“Mrs. Edwards… has raised a family of children by a negro”); Calloway v. Middleton and wife, 9 Ky. (2 A. K. Marsh.) 372 (1820) (married woman accused of bearing a mulatto child); Morris v. Barkley, 11 Ky. (1 Litt.) 64 (1822) (male plaintiff accused of keeping a Negro woman and having a child by her); Wagaman v. Byers, 17 Md. 183 (1861) (“He was with that black woman, and got the pox from her, it was the pox; he got the disease from that nigger, and gave it to his wife”); Hudson v. Garner and wife, 22 Mo. 423 (1856); Horton and wife v. Reavis, 6 N.C. (2 Murph.) 380 (1818); Watts v. Greenlee, 12 N.C. (1 Dev.) 210 (1827); 13 N.C. (2 Dev.) 115 (1828–30) (unmarried female accused of sexual contact with an African-American); Smith v. Hamilton, 44 S.C.L. (10 Rich.) 44 (1856) (unmarried female plaintiff accused of bearing a mulatto child). In the majority of these cases the defendants won on ostensibly procedural grounds. It cannot be determined whether the courts were less hospitable to plaintiffs in these cases. However, since married plaintiffs figured in most of the cases (two married men, five married women and only two unmarried women), the courts may have felt less need to interpret the cause of action liberally.

57. Castleberry v. Kelly, 26 Ga. at 609.

58. See infra, note 108.

59. Sexual slander shared the same evidentiary problems as the general law of slander. See King, supra note 32, at 32–39; Townshend, John, A Treatise on the Wrongs Called Slander and Libel 247–55, 328–36 (1868).Google Scholar

60. Richardson v. Roberts, 23 Ga. 215, 221 (1857). In Hosley v. Brooks and wife, 20 III. 115 (1858) the court refused to allow the defendant to justify the slander because the plaintiff had a reputation for being a “virago.” “We are not of the opinion that if she was quarrelsome, that affected her general character for chastity, or would excuse, or in the least palliate a groundless charge against her of incontinence…” (at 117). “Because she may have been a virago at other times, the defendant had no right to falsely asperse her character for chastity” (at 119). The nineteenth century retained the common law action against a common scold. Commonwealth v. Mohn, 52 Pa. St. 243 (1866); Greenwault, Charlotte and Moody's, Sarah Cases, 4 Rogers New-York City-Hall Recorder 174 (1819).Google ScholarSee also Rysman, Alexander, How the “Gossip” Became a Woman, 17 J. Comm. 176 (1977)CrossRefGoogle Scholar; Trofimenkoff, Susan Mann, Gossip in History, 1985 Hist. Papers 1 (1985).Google Scholar

61. Dame v. Kenney, 25 N.H. 318, 320–21 (1852).

62. Knight v. Foster, 39 N.H. 576 (1859) ruled that the defendant could not show specific acts to prove his suspicions. Smalley v. Anderson and wife, 20 Ky. (4 T.B. Monr.) 367 (1827) held that neighborhood reports could not be used to justify the slander. In Regnier v. Cabot and wife, the court said “In my judgment, character is too valuable to permit it, in a court of justice to be destroyed, or even sullied by a report derived from a majority of three persons only. It is general, and not partial, reputation in the neighborhood where the party resides which, in legal contemplation, establishes character for good or evil.” 7 111. (2 Gilm.) 34, 41 (1845). See also Clark v. Munsell, 47 Mass. (6 Met.) 373 (1843); Case v. Marks, 20 Conn. 248 (1850). On the other hand, some courts allowed such evidence. Conroe v. Conroe and wife, 47 Pa. St. 198 (1864) (trial court erred in rejecting defendant's offer of evidence of plaintiff's reputation for chastity). “If her reputation for chastity was bad before the slander… can it be said that the injury sustained by her from the wrong of the defendant is the same as it would have been if her reputation for chastity had been untarnished? Is a defendant who has destroyed a plaintiff's paste jewelry to be held to the same measure of compensation as he who has destroyed diamonds?” (at 201).

63. Graham v. Stone and Stone, 5 How. Pr. 15, 18 (N.Y. 1851).

64. Kelley and wife v. Dillon, 5 Ind. 426, 427 (1854) (defendant's wife reported a ramor that accused an unmarried female of having had a child out of wedlock). The court drew a line between “rumors and suspicions, and general rumors and suspicions” (at 428). In Kenney v. McLaughlin and wife, the court rejected the defense that the defendant had merely repeated a common story. “The danger is an obvious one… that bad men may give currency to slanderous reports, and then find in that currency their own protection from the just consequences of a repetition.” 71 Mass. (5 Gray) 3, 7 (1855). See also Moberly v. Preston and wife, 8 Mo. 462 (1844); Inman v. Foster, 8 Wend. 602 (N.Y. 1832). A minority of courts followed the old English rule that the only way for a defendant to avoid liability was to reveal to the plaintiff the identity of the author of the original slander. Townshend, supra note 59, at 253–54. Connecticut allowed proof of a common story to reduce the damages. Treat v. Browning, 4 Conn. 408 (1822).

65. Odgers, W. Blake, The Law of Libel and Slander 172–73 (5th ed. 1881)Google Scholar. Quoted in Branstetter and wife v. Dorrough, 81 Ind. 527, 531 (1882).

66. Called the “occasion” defense. Townshend, supra note 64, at 45–46.

67. Adcock and wife v. Marsh and wife, 30 N.C. 360, 363 (1848) [citing Cockayne v. Hodgkisson, 172 Eng. Rep. 1091 (N.P. 1833)].

68. Id. at 364. In Jellison and wife v. Goodwin, the trial court instructed the jury that the presumption of malice could be rebutted if the defendant had performed “some legal or moral duty.” 43 Me. 287, 288 (1857).

69. Byam v. Collins and wife, 111 N.Y. 143, 151 (1888). Blocker v. Schoff, 83 la. 265 (1891) (friendship rejected as basis for the privilege defense).

70. Branstetter and wife v. Dorrough, 81 Ind. 527, 531 (1882).

71. Smith v. Minor, 1 N.J.L. 16 (1790).

72. See King, supra note 32, at 15. The defendant argued that the accusation attributed “to her nothing more than an act of moral turpitude, namely fornication, and mere pregnancy, neither of which exposed her… to any human punishment” (id. at 18).

73. Smith v. Minor, 1 N.J.L. at 20.

74. Id. at 22.

75. Id. at 23.

76. Id. at 25. Kinsey was also pleased that New Jersey would provide a financial remedy for an offense for which the English ecclesiastical courts only gave a “spiritual punishment” (at 25).

77. 2 Johns. 115 (N.Y. 1807). As long as the rules of coverture precluded married women from suing in their own names, common law pleading required husbands to join their wives in suit. In cases based on special damage alone, only the husband could sue. The gravamen of the husband's action was the loss of his wife's services. In 1862 New York gave married women the right to sue in their own names for “injury to her person or character.” 1862 N.Y. Laws, c. 172, s. 3.

78. 1 N.Y Laws 123. The statute allowed the justice of the peace to place the convict at hard labor for up to sixty days. An earlier case in the mayor's court had proceeded on the theory that to call a woman a “whore” was actionable. Mount, Clark v., Judicial Opinions Delivered in the Mayor's Court of the City of New-York 18 (1802)Google Scholar. After a verdict in favor of the plaintiff, the court arrested judgment because some of the counts were defective. The issue of actionability was not raised. Apparently, Kent was unaware of this decision.

79. Brooker v. Coffin, 5 Johns. 188 (N.Y. 1809).

80. Id. at 191–92

81. Id. at 191. Technically, infamous (or ignominious) punishment referred to two categories of punishment: first, mutilation, whipping, branding, and imprisonment at hard labor; and second, loss of civil rights. See McCuen v. Ludlum, 17 N.J.L. 12, 18 (1839). At the outset New York applied Brooker strictly. Widrig v. Oyer and wife, 13 Johns. 124 (N.Y. 1816) (accusation of procuring an abortion held not actionable). The court made an exception for allegations of maintaining a whore house. In Martin v. Stillwell, 13 Johns. 275 (N.Y. 1816) the court upheld an action for an accusation of keeping a bawdy house on the grounds that it was indictable as a common nuisance. See also Bush v. Prosser, 13 Barb. 221 (N.Y. 1852); Wright v. Paige, 36 Barb. 438 (N.Y. 1862).

82. “The case of Brooker v. Coffin, appears to have reached the true principle applicable to this subject, and thereby to reconcile the conflicting definitions in the earlier English cases.” Annotation, Brooker v. Coffin, 1 American Leading Cases 76, 86. “There is perhaps no rule more just and reasonable than that laid down in Brooker v. Coffin.” McCuen v. Ludlum, 17 N.J.L. 12, 17 (1839). Brooker is the rule “which prevails in most of the states.” A. C. Freeman, Annotation, Coburn v. Harwood, 12 Am. Dec. 39, 41 (1879). Pennsylvania's Judge John Bannister Gibson called Brooker's approach “a sound distinction” because it made misdemeanors not actionable. Andres and wife v. Koppenheafer, 3 Serg. & Rawle 255 (Pa. 1817); Burton v. Burton, 3 Greene 316 (la. 1851) (Brooker called the “true rule” at 317). By 1875 the U.S. Supreme Court cited Brooker approvingly as applying to any offense that was criminally indictable, though not technically ignominious, if it involved moral turpitude and would affect social standing. Pollard v. Lyon, 91 U.S. 225, 234 (1875).

83. “[A]s by the laws of this state, the breach of chastity, in every form – from adultery to mere lascivious carriage – is punishable by statute… these charges have become words actionable in themselves.” Frisbee v. Fowler and wife, 2 Conn. 707, 708 (1818) (Swift, C.J.). Treat v. Browning, 4 Conn. 408, (1822). Walton v. Singleton, 7 Serg. & Rawle 449 (Pa. 1821); Klumph v. Dunn, 66 Pa. St. 141 (1870).

84. See infra, text at note 96.

85. 1808 N.C. Sess. Laws 570.

86. North Carolina interpreted “incontinency” to mean unchastity, that is, the commission of the crimes of fornication or adultery. However, having a lascivious disposition was not actionable per se. McBrayer and wife v. Hill, 26 N.C. (4 Ired.) 136 (1843), nor was “she keeps a disorderly house.” Pitts v. Pace, 52 N.C. (7 Jones) 558 (1860).

87. In a suit between two men over an incest accusation the court applied its strict view requiring that the words impute a crime subject to infamous punishment. Eure v. Odom, 9 N.C. (2 Hawks) 52 (1822). “Incest, however grievous it may be as a crime foro eoeli, is not, as such, punishable in foro seculi” (at 54). Bardaglio, Peter W., Families, Sex, and the Law: The Legal Transformation of the Nineteenth-Century Southern Household 7 (Ph.D. diss., Stanford University, 1987)Google Scholar; Ayers, Edward L., Vengeance and Justice 117 (1985).Google Scholar

88. 5 Ky. (2 Bibb) 473 (1811).

89. Id. at 474.

90. Id.

91. Act of 1811, 4 Littell, W., The Statute Law of Kentucky 385 (1814).Google Scholar In M'Gee v. Wilson, Judge Boyle criticized the legislature's solution because it marred the legal distinction between libel and slander. 16 Ky. (6 Litt.) 187 (1814).

92. 11 Ky. (1 Litt.) 64 (1822). See also Philips v. Wiley, 12 Ky. (2 Litt.) 153 (1822) (suit by male plaintiff accused of fornication held actionable per se on the authority of Morris v. Barkley).

93. 1813 Ind. Acts 110.

94. The first section of the Indiana statute applied only to women. Allegations of fornication or adultery against a man were not actionable per se. Lumpkins by his next friend v. Justice and wife, 1 Ind. (1 Cart.) 557 (1849). Women, on the other hand, received heightened protection since the courts said that the accusation of “whoredom” served as a general charge of unchastity. Branstetter and wife v. Dorrough, 81 Ind. 527 (1882).

95. Other courts recognized an action by men for sexual slander if sodomy was criminalized. In Coburn v. Harwood the court reversed a judgment for a male plaintiff accused of sodomy because Alabama had not criminalized the act. The court observed that sodomy was an act of the “highest moral turpitude” though not indictable at common law. Minor 93 (Ala. 1822). See also Estes v. Carter, 10 la. 400 (1860); and Davis by his next friend v. Brown, 27 Ohio St. 326 (1875) denying men a per se cause of action.

96. 1823 111. Laws 82. The Illinois statute also made it easier to sue for accusations of false swearing. See Blair and wife v. Sharp, 1 111. (Breese) 30 (1820).

97. 5 S.C.L. (3 Brev.) 241 (1812).

98. Id.

99. Robert W. and wife v. L.L., 11 S.C.L. (2 Nott & McC.) 204, 205 (1819). (“I caught Lucy W. in bed with Ephraim L.”)

100. 1824 S. C. Acts, c. 4., s. 3. Freeman v. Price, 18 S.C.L. (2 Bail.) 115 (1831). (“It would be difficult to impute want of chastity to a female more completely and directly, than by calling her a strumpet”) (at 115). In 1822 Mississippi adopted a statute to suppress dueling. It created an action for words spoken which were “in common acceptation” considered as insults, and would lead to “violence and breach of the peace.” In Thomas and wife v. Norman and wife, Walker 387 (Miss. 1831) the court ruled that although words accusing a married woman of unchastity were actionable under the statute if spoken in the presence of her husband, the statute did not cover words spoken by one woman of another.

101. Welter, supra note 17; Ryan, Mary P., The Empire of the Mother: American Writing about Domesticity 143–44 (1985).Google Scholar

102. Griswold, Law, Sex, Cruelty, supra note 13, at 722. Changes in the tort of seduction also mirrored emergence of this Victorian view of women. Sinclair, supra note 11, at 99.

103. Griswold, Law, Sex, Cruelty, supra note 13, at 727.

104. “If any person shall falsely use, utter or publish words, which, in their common acceptation, shall amount to charge any person with having been guilty of fornication or adultery, such words, so spoken shall be actionable.” 1845 Mo. Rev. Code 100. This statute followed that of Illinois, supra note 96.

105. 1837 Ark. Acts 729 (Act of December 13, 1837). In 1869 Arkansas criminalized sexual slander. Roe and wife v. Chitwood, 36 Ark. 210 (1880).

106. 1838 Md. Laws c. 114. Maryland's legislative response was attributed to dissatisfaction with the decision in Stanfield v. Boyer, 6 H. & J. 248 (Md. 1824) in which the court ruled not actionable calling an unmarried woman a “whore.” Griffen and wife v. Moore, 43 Md. 246, 249, 252 (1875). Terry v. Bright, 4 Md. 430 (1853) (calling an unmarried woman a “whore and bitch” held actionable under the statute). In 1888 Maryland amended the statute making the action available to “any woman, single or married.” 1881 Md. Laws, c. 444.

107. “[A]ll words spoken and published of any female person of this State, falsely and maliciously imputing to such female, a want of chastity, shall be … actionable in themselves.” 1839 Ala. Acts 96. Williams and wife v. Bryant and wife, 4 Ala. 44 (1842). In Sidgreaves v. Myatt, 22 Ala. 617 (1853) the court mistakenly referred to this statute as having been adopted in 1830. In 1852 Alabama's revised code rewrote the language to incorporate libel: “Any words, written, spoken or printed, of any female, married or unmarried, falsely imputing to her a want of chastity, are actionable, without proof of special damages.” Ormond, John J. et al. , The Code of Alabama 417 (1852)Google Scholar. Smith v. Gaffard, 31 Ala. 45 (1857).

108. Clark, R. H. et al. , The Code of the State of Georgia 512 (2d. 1852).Google Scholar The statute also stated that “any disparaging words productive of special damage flowing naturally therefrom” were slanderous. Lewis v. Hudson, 44 Ga. 568 (1872) remarked that Georgia's statute went “further” than any other state. An 1859 statute protected white women: “Any charge or intimation against a free white female of having sexual intercourse with a person of color, is slanderous without proof of special damage” (id. at 512). This statute was adopted to cure the result in Castleberry and wife v. Kelly and wife, 26 Ga. 606 (1858) in which the court ruled not slanderous the defendant's statement: “Your wife's sister … had a negro child, and that is not all, negroes have been with your wife” (at 606) because it did not charge a criminal offense.

109. “If the laws of the country did not protect female character from such slanderous imputations [whoring] we should deeply regret it.” Pledger and wife v. Hathcock, 1 Ga. (1 Kelly) 550 (1846). Watson v. McCarthy, 2 Ga. (2 Kelly) 57 (1847) (allowing suit by male accused of having a venereal disease). “[W]e are of the opinion it would partially, if not wholly, exclude him from society; it would most certainly exclude him from all good society” (at 59).

110. 25 Mass. (8 Pick.) 384 (1829).

111. Id. at 385. Brown v. Nickerson, 71 Mass. (5 Gray) 1 (1855) upheld an action for an accusation of drunkenness punishable by a five-dollar fine. In Buckley v. O'Niel, 113 Mass. (17 Browne) 193 (1873) the court said that a per se slander could be found if the language “conveys a criminal imputation” (at 193). Parker had complained a year earlier that slander cases were the most frustrating because “it has not been found that any general rule can be applied, by which the merits can be tested.” Shute v. Barrett, 24 Mass (7 Pick.) 81(1828). Rhode Island considered Miller a “better rule” than Brooker because “the defamatory effect of words charging a disgraceful offence is substantially the same, whatever the form of criminal procedure under which the offence be punished.” Kelley v. Flaherty and wife, 16 R.I. 234, 235 (1888). Brooker was criticized as too vague in Skinner v. White, N.C. (1 Dev. & Bat.) 471 (1836). “It lacks precision; we are compelled to search moral and ethical authors, rather than legal writers, in order to ascertain whether the case made be within the rule” (at 474); see also Beck v. Stitzel, 21 Pa. 522 (1853).

112. Tennessee liberalized its reading of Brooker to allow suits for accusations of indictable misdemeanors that involved moral turpitude. The modification occurred in a case involving an accusation of selling liquor to African-Americans on Sunday. Smith v. Smith, 34 Tenn. (2 Sneed) 473 (1855). See also Iowa's experience, infra, text at note 198.

113. See infra, text at note 164.

114. In an 1826 case the lawyer for a defendant accused of calling a male clergyman an adulterer argued against liability for his client because in New York “even the female is not protected by the law against such an imputation; though no one is so much injured by it.” Demarest v. Haring, 6 Cow. 76, 88 (N.Y. 1826).

115. Horwitz, supra note 32, at 71–74. Judges manipulated the concept of causation to achieve this result.

116. “The modern … doctrine is, that the action of slander was not designed to punish the defendant for general ill will to his neighbors, but to afford the plaintiff redress for a specific injury.” Howard v. Sexton, 4 Comstock 157, 161 (N.Y. 1850). See also Bush v. Prosser, 13 Barb. 221 (N.Y. 1852), Henry v. Norwood, 4 Watts 347, 351 (Pa. 1835).

117. Moody v. Baker, 5 Cow. 351 (N.Y. 1826).

118. Wend. 506 (N.Y. 1828).

119. Id. at 508.

120. Id. at 509. The plaintiff's attorney cited Moore v. Meagher, 127 Eng. Rep. 745 (K.B. 1807). In a very brief opinion that did not discuss the law, the court upheld an action by an unmarried woman who alleged that the defendant's slander had deprived her of gratuitous services thus increasing her living expenses. The earliest cases recognizing actions based on special damages were based on the impact of slander on a woman's marriage prospects. Davis v. Gardiner, 76 Eng. Rep. 897 (K.B. 1593).

121. Id. at 510. This dictum, based on Moore v. Meagher, opened the door to a liberal reading of the special damage category.

122. 13 Wend. 253 (N.Y. 1835).

123. Id. at 253. She asked for five thousand dollars in damages.

124. Id. at 254.

125. Id. Commenting on New York's reluctance to provide a legislative remedy, a Texas court said that its own legislature had failed to act out of “inadvertence.” Linney v. Maton, 13 Tex. at 454.

126. Id. “She does not indeed allege in terms a pecuniary loss, but alleges that which must necessarily involve such loss” (id. at 255).

127. 19 Wend. 305 (N.Y. 1838). The plaintiff alleged that the defendant accused her of fornication.

128. Kennedy v. Gifford, 19 Wend. 296 (N.Y. 1838) involved the accusation that “everybody knows that she [the plaintiff] has had a litter of pups by old Troop” (at 297). Accusations of bestiality were actionable per se since bestiality was a crime under New York law. Goodrich v. Woolcott, 3 Cow. 231 (N.Y. 1824), aff'd. 5 Cow. 714 (N.Y. 1825) (“He has been with a sow”).

129. Id. at 330–31.

130. Young v. Miller, 3 Hill 21 (N.Y. 1842). New York punished landmark removal with indictment, fine, and imprisonment. The defendant had argued that in applying Brooker the court must adhere to a distinction between legal and moral infamy. See also Alexander v. Alexander, 9 Wend. 141 (N.Y. 1832) where the court allowed a slander action for an accusation of forging plaintiffs signature on a petition to the legislature, a misdemeanor.

131. Id. at 22

132. Id. at 25. In libel the offense imputed did not even have to be legally punishable.

133. Beach and wife v. Ranney and wife, 2 Hill 309 (N.Y. 1842). Mrs. Beach's initial suit in her own name was defeated in Beach v. Beach and wife, 2 Hill 260 (N.Y. 1842). Mrs. Beach was legally separated from her husband. She tried to sue her husband claiming her separation agreement made her a femme sole. After she lost her first case, she filed again, this time joining her husband's name. For a close examination of the relevance of this case to family law, see Hartog, supra note 40, at 95.

134. The defendant successfully challenged her slander count on grounds that only a husband could sue on a special damage theory.

135. Beach v. Ranney, 2 Hill at 312.

136. Id. at 314.

137. “A man is not responsible for all the remote and possible consequences which may result from his act” (at 314).

138. Olmsted v. Brown, 12 Barb. 657 (N.Y. 1852).

139. Id. at 662.

140. Id. at 666. In Hicks v. Foster the court said, “We must stop at some point in the path of consequences, or we shall be involved in a labyrinth of difficulties, speculation and perplexities…. These rules have not always been applied in the same manner, hence it is difficult to reconcile all the cases.” 13 Barb. 663, 665 (N.Y. 1853).

141. Fuller v. Fenner, 16 Barb. 333, 335 (N.Y. 1853). “The disease is so easily counterfeited in some cases … that juries should be charged to be very cautious in finding a verdict for the plaintiff on slight grounds” (at 336). “Mental suffering cannot be directly proved as a fact by any one besides the sufferer, but is a matter of inference from causes which naturally tend to produce it. It cannot be measured aright by outward manifestations; for there may be a show of great distress where little or none is felt. And great distress may be concealed and borne in silence with an apparently quiet mind.” Stowe v. Heywood, 89 Mass. (7 Allen) 118, 124 (1863).

142. Williams and wife v. Holdredge, 22 Barb. 396 (N.Y. 1854). Accusations of venereal disease were actionable per se under the contagious disease theory. Townshend, supra note 59, at 184–86.

143. Terwilliger v. Wands, 17 N.Y. 54 (1858). Annotation, 72 Am. Dec. 426 (1886).

144. Terwilliger's appeal also raised two questions. First, whether he could sue the defendant for the consequences of the repetition of the rumor if no one communicated it to the plaintiff, and second, whether the suit could be maintained if a third party reported the defendant's words to the plaintiff. On the first point, the court said that the special damages had to be the natural and immediate consequence of the defendant's words. But, in this case, the wrongful act was the repetition. Since the plaintiff never heard the original accusation from the defendant himself, it could not have caused his injury.

145. Terwilliger v. Wands, 17 N.Y. at 62.

146. Id. at 59. Additionally, the court sustained the nonsuit because the special damage alleged was inadequate.

147. Id. at 60.

148. Id. at 61.

149. Id. at 63.

150. Americans of the mid-nineteenth century became obsessed with appearance and authenticity. See, generally, Haltunnen and Kasson, supra note 21.

151. Terwilliger v. Wands, 17 N.Y at 64.

152. Griswold, Divorce, supra note 13, at 100.

153. 17 N.Y. 442 (1858). The victim's husband sued for loss of his wife's services as a result of the slander.

154. Id. at 444.

155. Id.

156. Id.

157. Id. at 445.

158. Id. The Texas court also chafed at its inability to make slanders against women actionable. “It is a matter of regret and surprise that this blot upon the common law should have been suffered by legislative authority to remain so long a stigma upon our jurisprudence. In no other case can it be more fairly presumed that the scandal, if believed, will produce detriment, than when a female is charged with incontinence.” McQueen and another v. Fulgham, 27 Tex. 463, 469 (1864).

159. Bassil [Bassell] v. Elmore, 65 Barb. 627, 634 (N.Y. 1866), aff'd 48 N.Y. 561 (1872). “In morals, the original wrongdoer is justly held responsible for all the consequences of his wrongful act…. But in law, where the object is to obtain compensation for the wrong, each person engaged in it must be responsible for the natural and immediate consequences of his own actions, and each is held for his own share in the injury” (at 635).

160. Id. at 635.

161. Id. at 635–36.

162. 2 Albany L.J. 309–10 (1870). A reference to Lord Brougham's comment in Lynch v. Knight where he said that he agreed with Lord Campbell's statement (which he was reading to the court) in which Campbell lamented “the unsatisfactory state of our law, according to which the imputation by words, however gross, on an occasion, however public, upon the chastity of a modest matron, or a pure virgin, is not actionable without proof that it has actually produced special temporal damage to her.” Brougham added: “The only difference of opinion which I have with my noble and learned friend is, that instead of the word ‘unsatisfactory,’ I should substitute the word ‘barbarous.’ I think that such a state of things can only be described as a ‘barbarous’ state of our law in that respect.” 11 Eng. Rep. 854, 861 (H.L. 1861). Several weeks later the Journal reprinted an article from the English Law Times urging the English courts to redress the “evil.” Slandered Chastity and Special Damages, 2 Albany L.J. 490, 491 (1870).Google Scholar

163. 1871 N.Y. Laws, c. 219. The statute also specified that a married woman could sue in her name and the recovery would be her separate property. Mason v. Stratton, 1 N.Y.S. 511 (1888). The statute came too late for Pettibone v. Simpson and wife, 66 Barb. 492 (N.Y. 1873) where the court affirmed the nonsuit of an unmarried female accused of illicit intercourse because she failed to prove that the refusal of gratuitous entertainment was the “direct result of the speaking” (at 494). Similarly, in Anonymous, 60 N.Y. 262 (1875) where the court affirmed a judgment for a defendant who had accused an eighteen-year-old girl of masturbation. “The defendant deserves punishment, but the action of slander will not afford a remedy” (at 265). In 1874 the California Civil Code defined slander as “a false and unprivileged publication other than libel … [that] imputes to him impotence or a want of chastity.” 1 Civil Code of the State of California 24 (1874).Google Scholar

164. Sexton v. Todd, Ohio (Wright) 316 (1833) (“Sarah Sexton has gone to Kentucky to have a bastard child”) (at 317).

165. Judge Wright ruled the common report defense was limited by the plaintiff's acquiescence in aiding the story's circulation. The defense required proof of a general report that the defendant believed. If the report defense was established, the jury would give damages to cover the plaintiffs expenses in clearing her name (i.e., the actual loss).

166. Sexton v. Todd, Ohio (Wright) at 320–21.

167. Id. at 321. The jury awarded the plaintiff $301.

168. Wilson v. Runyon, Ohio (Wright) 651 (1834) in which the female plaintiff, an unmarried school teacher, sued the defendant for calling her a “slut” who had “slept with Elijah Harper.” The second case was Watson v. Trask, 6 Ohio 532 (1834).

169. In Watson v. Trask, a libel suit arising from a dispute over patent rights, Wright interpreted Brooker to sustain slander suits for any charge of moral turpitude that would subject the victim to exclusion from society. Wright's expansion of the Brooker rule had no basis in the existing case law. His use of the exclusion rationale was probably a misreading of the category of slanders alleging contagious diseases.

170. Wilson v. Robbins, Ohio (Wright) 40 (1834).

171. Id.

172. Id.

173. Id. The court observed that if “it be advisable to alter the law, it is better for the legislature to do it” (at 40). “There is probably no class of cases where the feelings of a jury are more liable to improper excitement, and to be controlled by impulse, rather than by sober and unimpassioned judgments, than in slander.” Simpson v. Pitman, 13 Ohio 365, 366 (1844).

174. Malone v. Stewart and wife, 15 Ohio 319 (1846).

175. By “hermaphrodite” the defendant probably meant a human being with the sexual organs of both male and female. Later in the century the term “hermaphrodite” meant a lesbian when applied to a woman. Ian Hacking, Making Up People, in Forms of Desire, supra note 29, at 69, 96.

176. Malone v. Stewart, 15 Ohio at 320.

177. Id.

178. Id.

179. Id. at 320–21.

180. Id. at 321.

181. Id.

182. Haywood v. Foster, 16 Ohio 88 (1847).

183. Dial v. Holter, 6 Ohio St. 228, 242 (1856) (accusation of removing a cornerstone). Ohio law made it a crime to deface landmarks punishable by a five-hundred-dollar fine or thirty days imprisonment.

184. Later legal commentators also displayed little sympathy for the Malone decision. One annotation said the decision had pushed the law “to a very irrational extent.” (Brooker, supra note 82, at 90); another called it an “extraordinary doctrine” (Freeman, supra note 82, at 45). Malone “has not been followed, as far as we have been able to examine, by any other court, but, on the contrary, its correctness has been denied or questioned, and we think, with propriety.” Abrams v. Foshee and wife, 3 la. 274, 281 (1856).

185. 2 Western Law Monthly 248 (1859).

186. In Dial v. Holter the court used sodomy as an example of a charge of “moral depravity.” See supra note 183, at 242.

187. McKean v. Folden, 2 Western Law Monthly, at 248.

188. Id. at 249.

189. Id.

190. Id.

191. Id.

192. Id. at 249–50. Nash attacked the evil of retrospective legislation. “It is a dangerous power; since no one can tell what is, or is not law, until he knows the personal sentiments and opinions of each judge, not on the law as it is, but on the law as it should be, according to his peculiar moral views and opinions. A judge cannot be guilty of a greater wrong than when he substitutes his own private opinions for what has clearly been settled as the law. The General Assembly is clothed with authority to make law, and the change should be made by it, not by the courts – if it is to be made. In the one case, it will be prospective; in the other, retrospective” (at 250).

193. Alfele v. Wright, 17 Ohio St. 238 (1867). Alfele took the position that even if Ohio didn't have common law crimes, if the act charged was a common law crime elsewhere and involved high moral turpitude, the court should treat it as actionable per se.

194. Murray and wife v. Murray and wife, 290, 291 (1871) (Sup. Ct. Cincinnati, 1870) (“She is not a decent woman; she had a bastard child by her husband before her marriage” held actionable per se). Burnett v. Ward, 36 Ohio St. 107 (1880). (“She slept with John Fox” held actionable per se.)

195. Davis by his next friend v. Brown, 27 Ohio St. 326, 330–31 (1875). Accusations between men of carrying venereal disease were actionable per se under the common law. Kaucher et al. v. Blinn, 29 Ohio St. 63 (1875).

196. Cox and wife v. Bunker and wife, 1 Morris 269 (Ia. 1844). (“Mrs. Bunker is a dirty, lying bitch and a whore”) (at 269).

197. Id. at 270.

198. Id. at 271.

199. Id.

200. Dailey v. Reynolds, 4 Greene 354 (la. 1854). “Miss Dailey, had taken hold of his … arm, and urged him into her room, and had placed her arm around his neck, and wanted to kiss him” (at 354).

201. Id. at 355.

202. Id.

203. Id. at 356.

204. 3 Ia. 274 (1856). In 1851 Iowa had repealed its 1843 statute that had criminalized abortion. 1851 Iowa Acts, c. 167, s. 10.

205. Id. at 281.

206. Id. at 280.

207. Smith v. Silence, 4 Ia. 321 (1856).

208. Truman and wife v. Taylor and wife, 4 Ia. 424 (1857).

209. Id. at 426–27. In Wilson v. Beighlerand wife, 4 la. 427 (1857) the court sustained a demurrer where the plaintiff failed to allege that the persons who heard the words (“she had a child in Indiana”) understood them to apply to the plaintiff.

210. Smith v. Silence, 4 Ia. at 323.

211. 10 Ia. 400 (1860). Iowa law did not criminalize sodomy.

212. Cleveland v. Detweiler, 18 Ia. 299 (1865). (“[Mary Cleveland] had been caught in the act with the dog, and the dog had died from the effect of it”)

213. Id. at 301–2.

214. Id. at 302.

215. Id. at 302. In Georgia v. Kepford, 45 Ia. 48 (1876) the court ruled that an accusation of the crime of adultery made against a man was actionable per se.

216. Id. at 302–3. Followed in Haynes v. Richie and wife, 30 Ia. 76 (1870). “We have no hesitation in holding that charging a woman with beastiality is to impute to her a debasement and depravity of thought and sentiment not involved in any other possible accusation, and is an imputation of unchastity of the gravest and grossest character” (at 77).

217. Griswold, Law, Sex, Cruelty, supra note 13, at 724.