Sexual Slander in Nineteenth-Century England

Sexual Slander in Nineteenth-Century England: Defamation in The Ecclesiastical Courts, 1815-1855

S.M. WADDAMS
Copyright Date: 2000
Pages: 384
https://www.jstor.org/stable/10.3138/9781442679856
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  • Book Info
    Sexual Slander in Nineteenth-Century England
    Book Description:

    Until 1855, slanderous language was punishable in Britain's ecclesiastical courts. Waddams shows how the law worked not only in theory but in practice. The evidence of the witnesses supplies fascinating details of day-to-day events.

    eISBN: 978-1-4426-7985-6
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. List of Illustrations
    (pp. ix-x)
  4. Preface
    (pp. xi-xiv)
    S.M. WADDAMS
  5. Abbreviations
    (pp. xv-2)
  6. Introduction: ‘Grievous and oppressive to the subjects of this realm’
    (pp. 3-14)

    In 1853 a quarrel occurred between neighbours in Merthyr Tydfil, in the course of which Charlotte Jones was supposed to have said to Louisa Roberts, ʻYou are a whore, and a damn whore too.ʼ¹ These words, common in more than one sense, had an uncommon effect, for they led directly to the abolition of a branch of English law that had been in force for more than six hundred years.

    In September 1853 instructions were given to Mr J. Huckwell, a proctor (ecclesiastical court solicitor), to commence proceedings in the Consistory Court of the Diocese of Llandaff, and on 17...

  7. Part I: The Law
    • 1 The Common Law
      (pp. 17-24)

      In English law there was, and still is, an important distinction between libel and slander. Libel (in general, defamation by written words) was actionable in a common law court, and could lead to an award of damages. It was also a crime, and criminal prosecutions for private (i.e., non-political) libels were not uncommon throughout the nineteenth century.¹ Slander (defamation by spoken words) was not a crime, nor was it actionable without proof of special damage, i.e., generally speaking, actual loss capable of measurement in money. There were three exceptions: words imputing a crime punishable at law by imprisonment or by...

    • 2 The Ecclesiastical Law
      (pp. 25-48)

      The details of the ecclesiastical law as it related to defamation are surprisingly difficult to discover, and can often only be deduced from a study of the court records, with the help of such unofficial sources as proctorsʼ correspondence and advocatesʼ opinions, where these survive. There was practically no relevant statute law, and judicial reasons were not reported until the nineteenth century. There are only ten defamation cases reported in all (four during the period of this study). The commentaries on ecclesiastical law adopt a style that can best be described as desultory: they jump from one narrow point to...

  8. Part II: The Courts
    • 3 The Courts and Their Officers
      (pp. 51-64)

      In 1835 there were twenty-six dioceses in England and Wales, four of which (the four northern dioceses), together with Sodor and Man (the Isle of Man), constituted the Province of York; the other twenty-two dioceses formed the Province of Canterbury (see plate 12). In 1836 the refounded diocese of Ripon (formed from parts of Chester and York) and in 1848 the diocese of Manchester (from part of Chester) were added to the northern province. The principal episcopal court in each diocese, generally called the consistory court, had full jurisdiction over all ecclesiastical causes, including defamation. The Ecclesiastical Courts Commission of...

    • 4 Patterns of Litigation
      (pp. 65-78)

      The numbers of defamation cases varied markedly from one diocese to another during the period under study (see table 2, below). There were 703 cases in the diocese of Chester, and none in Ely. In assessing the figures, account must be taken of the population of each diocese (listed as in 1835). From these it will be seen that the dioceses in which defamation cases were most frequent per person were Carlisle, Llandaff, and Gloucester. These figures have no obvious correlation with the strength of the Church of England (as measured either by church attendance, or by the comparative strength...

    • 5 Evidence
      (pp. 79-102)

      One of the principal criticisms of the ecclesiastical courts was that they did not receive oral evidence. With the exception of Gloucester during the twelve-year period mentioned,¹ and the Isle of Man, evidence in defamation cases took the form of written depositions. Only at the very end of the court’s jurisdiction was a statute enacted that permitted the use of oral evidence, and some use was made of this in 1854 and 1855.²

      There were certain points to be made in favour of the system of written depositions. It was convenient for witnesses, who could make an appointment with the...

    • 6 Costs
      (pp. 103-110)

      In any kind of litigation costs are important, but in these defamation cases they were crucial, because they were the only financial orders available. To win a case, but without costs, was scarcely a victory, especially as many judges were known to deny costs specifically in order to signify disapproval of the plaintiffʼs conduct.

      In London, as has been mentioned, there was a conventional sum, called ʻstyle of costs,ʼ awarded against a defendant who submitted immediately and confessed the use of the defamatory words. The conventional sum was, in 1816, £3.3.0.¹ In 1830 it had been reduced to £2.² Such...

    • 7 Penance
      (pp. 111-120)

      The sentence of the court was that the defendant should be canonically corrected, and correction took the form of a ceremony variously called penance, retraction, recantation, reclamation, or declaration, in which the defendant asked pardon of God and of the plaintiff, and promised not to offend again. The form of penance, called a ʻschedule,ʼ varied quite substantially from one diocese to another. An illustration is given of a printed schedule of penance, as used in Hereford (see plate 8). Most dioceses used a manuscript form, as in the example illustrated from Winchester, witnessed by John Keble (plate 9). In earlier...

  9. Part III: The Cases
    • 8 The Parties
      (pp. 123-129)

      The great majority of plaintiffs were women, but there were significant variations in this respect from one diocese to another. In Chester and York about 10 per cent of the total number of cases were brought by men, and in Peterborough more than 25 per cent. But in Bath and Wells, with a total number of 237 cases, there was not one brought by a man, and in London, with a total number of 103 cases, there was only one.¹ One explanation of the discrepancy may be that a steady stream of cases was, to a degree, self-sustaining. People would...

    • 9 The Injury
      (pp. 130-155)

      We come now to ask, what was the injury complained of? The question is related to wide questions of social and sexual history – such as, what was the harm done by an imputation of unchastity? or, looking at the matter from the other side, how valuable was good sexual reputation? – but it is not the same as those questions. The question addressed here is, what was the injury complained of in defamation suits? – a question on which the court records, together with the surviving proctorsʼ correspondence, constitute the bulk of the available evidence. An examination of this...

    • Illustrations
      (pp. None)
    • 10 Motives
      (pp. 156-178)

      Very often the motive for the institution of a lawsuit is obvious, but in the case of a defamation suit in the ecclesiastical court it is not. No monetary award could be made to the plaintiff, except for costs. Truth was not a complete defence, so even a successful suit did not establish that the substance of the slander was false, and did not therefore necessarily vindicate the plaintiffʼs reputation. The performance of penance, where this occurred, can have done little to assist the plaintiff’s interests. In many dioceses the ceremony of penance required the defendant, in retracting the slander,...

    • 11 Consequences
      (pp. 179-186)

      In one aspect the law reflects the values and attitudes of a society, but in another it influences or determines them. The question addressed in this chapter is, what were the effects of this branch of the law on attitudes and behaviour?

      The significance of a branch of the law is not dependent on the frequency of litigation. The importance of matrimonial law, for example, cannot be judged by the number of cases, which was small (fewer than fifty a year in this period). The number of defamation cases in the forty-year period studied here was about three thousand. Evidently...

  10. Postscript: ‘A barbarous state of our law’
    (pp. 187-190)

    The abolition, in 1855, of the defamation jurisdiction of the ecclesiastical courts was not accompanied by any other reform in the law of defamation. The proposal of the Ecclesiastical Courts Commission for a new crime of sexual slander was not implemented, and neither was the common law of slander amended. The consequence was that, for the next thirty-six years, there was no legal remedy for sexual slander unless it caused actual loss.

    The legal position was attacked in strong terms on several occasions. In a case in the House of Lords in 1861, Lord Campbell (whose speech was read after...

  11. Tables
    (pp. 191-198)
  12. APPENDICES
    • Appendix A Illustrative Cause Papers
      (pp. 199-220)
    • Appendix B Occupations of Parties and Parties’ Husbands (Norwich and York) and of Male Plaintiffs (England and Wales)
      (pp. 221-224)
  13. Notes
    (pp. 225-290)
  14. Bibliography
    (pp. 291-294)
  15. Table of Cases
    (pp. 295-312)
  16. Index
    (pp. 313-315)