Sexual Slander in Nineteenth-Century England: Defamation in the Ecclesiastical Courts, 1815-1855. . - Reviews - book review

Journal of Social History, Summer, 2002 by Angus McLaren

Sexual Slander in Nineteenth-Century England: Defamation in the Ecclesiastical Courts, 1815-1855. By S. M. Waddams (Toronto: University of Toronto Press, 2000. xvi plus 3l5pp. $75.00).

In the early nineteenth-century there were few better ways to settle old scores than hurling sexual insults at one's antagonists. "I have bull'd thy wife," claimed one man's tormenter, "Yes, damn thee I've fucked her scores of times, and she's fetched me to fuck her when thy pillock wouldn't stand." Women were even more likely to be subjected to such taunts. "I was not married with a big belly," screamed one woman at another. Charges of promiscuity ranged from "You have been rode by all Cheltenham" to "All the crofters at Dunstead have shag'd thee." We know of such salty exchanges because they resulted in slander charges. One 1841 neighborly argument degenerated into a shouting match that led to four suits being brought before the Norwich ecclesiastical court. Though the ecclesiastical courts continued until the mid-nineteenth century to deal also with the probate of wills and matrimonial offenses, Waddams--a professor of law--focuses his interesting study on how the courts treated cases of defamation. While he primarily provides a detailed account of how the law was administered, the depositions he analyzes, revealing as they do the social context in which insults were traded, make the work of obvious interest to social historians investigating sex and gender issues.

Waddams first explains that libel was treated as either a common law or criminal offense. Slander in contrast was only treated as a criminal offense when special damages were claimed for imputing to the victim a crime or loathsome disease, or disparaging his or her trade. As they could not encroach on areas handled by their secular counterparts, the ecclesiastical courts were left with slanders pertaining to sexual misconduct. For example, they could not deal with a offense in which someone was called a thief (since stealing was a crime), but they could respond to a case in which a woman was called a whore or bitch.

In the nineteenth century the Church of England courts--almost moribund and amateurish outside of London and York--still decided the civil rights of all English subjects, even non-Christians. Twenty-six dioceses each had a consistory court with defamation cases providing about one quarter of their business. The proctor (an ecclesiastical court solicitor) launched the defamation proceedings. "Attorneys," who were later to become solicitors, acted as the go-betweens. Waddams notes that untrained judges enjoyed their position as a sinecure, but does not pursue the question of the professionalization of the law.

Waddams' view is that slander suits were hard to defend, but judges obviously sought to discourage them. If one were cited for sexual slander the simplest response was to affirm and pay the two pound fine. Refusal to appear would result in a contempt finding which could lead to an order of imprisonment. If the suit went forward one could eventually be liable for both a fine and court costs, judges using the assigning of costs as a way of discouraging slander. Nevertheless the middle-classes had good reason to view the proceedings with distaste. If the suit were fought, only written, secret, depositions were accepted by the court. Ironically the result was that sometimes the exact words at issue were missed. The two witnesses required to testify to the slander--most often neighbors--were usually coached. The self-incrimination of the defendant was allowed. So too were the attempts made on both sides to discredit witnesses with charges of immorality, bias, and bribery. Plaintiffs were likewise portrayed as trou blesome and litigious; or quiet and industrious. Was the truth a defense? In theory--as in the criminal law of libel--it was not. In practice it sometimes was or at least could reduce the penalty. Civil--that is, common law lawyers--mistakenly imagined evidence of justification would work, as in cases in which one claimed to be only repeating another's slurs. Provocation could provide grounds for mitigation, as in situations in which two women called each other whore. What about a good faith argument? Some clergymen were allowed to use the defense of "privilege," but paternalistic employers who might want to warn their apprentices against "whores and rogues" were warned to be tactful, and not "publicly and maliciously" single out any particular woman. If one were found guilty, penance in the vestry before the plaintiff could be required. Unless the plaintiff took measures to stop it, this might result in a scandalous re-broadcasting of the original slander.

Such scandals added fuel to the demands for reform. The nineteenth-century public regarded penance as outmoded and divorce legislation as needed, Brougham led the campaign for the abolition of the ecclesiastical courts, arguing that they were exploited by lawyers to inflate petty squabbles. Defamation cases declined after 1.835 and the courts' jurisdiction over such suits was finally lost in 1855. When divorce was introduced in 1857 so too was the courts' surveillance of matrimonial offenses.