...century, the United States Supreme Court's decision in Roth v. United States, (2) and later in Miller v. California, (3) loosened restrictions on the sale of sexually explicit material to adults. The standard narrative picks up again in the late twentieth century with the efforts of feminist theorists and activists Catharine MacKinnon and Andrea Dworkin to suppress pornography as a violation of women's civil rights. (4) It ends with present-day controversies over the flood of sexually explicit images on the Internet and panic over child pornography. (5)

However, a significant untold history of both sexual representation and obscenity prosecution precedes the usual starting point of this narrative. (6) This early history helps to explain how pornography emerged as a cultural and economic phenomenon in American life. (7) It also offers valuable perspectives on the meaning and function of obscenity law, fundamental issues that continue to bedevil American law and policy. In particular, the legal history offered here illuminates the ways in which obscenity prohibitions often encouraged, rather than suppressed, the growth of an American pornography trade. (8) It also demonstrates the significant role that obscenity law played in shaping commercial and cultural constructions of sexual desire.

Part I of this Article provides a brief summary of the doctrine of obscenity as it arose in English common law and developed in the United States in the first half of the nineteenth century. In essence, nineteenth-century American jurists, following the lead of English treatise writers, routinely asserted that government officials had the authority to suppress any speech or conduct that had a tendency to corrupt public morality, including the authority to punish the sale of "obscene" publications. Relying solely on these elite expressions of law and on the language of state statutes that purported to regulate morality, one might well conclude that state and local governments seamlessly exercised the power to police morality and suppress indecency in nineteenth-century America. (9)

But fully understanding the operation of obscenity law in American culture and society requires looking beyond formal law. (10) Part II therefore examines the ways in which obscenity doctrine was applied "on the ground" in the context of specific criminal prosecutions involving the sale of obscene books in New York City between the early 1840s, when significant numbers of obscenity cases first arose, and the start of the Civil War in 1861. This discussion relies heavily on data compiled from the unpublished District Attorney Indictment Papers for the principal criminal court in New York County at that time, the Court of General Sessions. (11)

New York City provides a natural focal point for this inquiry for several reasons. By the middle of the nineteenth century, it was not only the largest city in the United States; it was also the site of the country's principal financial, manufacturing, and cultural institutions. (12) In addition, in the decades leading up to the Civil War, New York established itself as a communications capital, pushing aside its chief rivals, Boston and Philadelphia, to lead the nation's burgeoning publishing industries. (13) Most importantly for this Article, by the start of the Civil War, New York had emerged as the headquarters for an ambitious, entrepreneurial network of publishers who pioneered the production and marketing of sexual writing in the United States. The city's preeminence in the field of sexually stimulating publications was widely recognized by the early 1860s, when its publishers and dealers earned national notoriety for exploiting the escalating demand for mail-order erotica among Civil War soldiers. (14)

In an effort to delineate the early meaning of obscenity, Part II goes on to explore a wide range of non-legal primary sources, including rare surviving examples of erotica, pulp fiction, popular guides to health, anatomy, and reproduction, moral reform tracts, and advertising circulars of publishers who specialized in pornography. Together with evidence from obscenity indictments, these documents clarify how government officials in the antebellum era first drew the boundaries between illicit, "obscene" speech and indecent, but legally permissible (i.e., non-"obscene") speech. In particular, they reveal the type of representation that lay at the heart of antebellum constructions of the obscene, namely, overt depictions of female passion and pleasure. At the same time, they show that government authorities generally tolerated several other forms of writing that many mid-nineteenth-century moral reformers vociferously condemned as indecent and immoral. Examples of genres that escaped prosecution for obscenity include health manuals that provided advice on birth control and abortion and sensational novels that combined graphic violence with euphemistic sex.

Part III analyzes the social, economic, and cultural consequences that attended the rise of obscenity prosecutions. (15) This section demonstrates that, rather than eradicating lewd writing, legal restrictions on obscenity paradoxically promoted the proliferation of erotic representations in at least three distinct ways. First, obscenity prosecutions inspired entrepreneurial publishers of illicit sexual literature to turn to new methods of interstate advertising and distribution via the U.S. mail. Designed to circumvent local regulation, these strategies had the additional effect of extending markets for erotica across the nation. Second, obscenity prosecutions spurred the production of new genres of sexually stimulating publications. These innovations included America's first pornographic periodical, which sought to profit from legal prohibitions on female eroticism by disseminating forbidden stories of independent, sexually assertive women to mail-order customers throughout the United States. They also included luridly sensational, so-called "racy" novels, which self-consciously skirted the perceived border of obscenity and eroticized graphic violence as a substitute for illicit depictions of sex. Third, obscenity cases generated valuable publicity for New York's erotic publishing industry just as it was establishing itself as a new medium of commerce and communication. Each of these developments subverted the formal power of antebellum governments to suppress indecent publications, even while treatise writers and other legal commentators championed state authority to restrict such commerce under the law of obscenity.

I. THE DOCTRINE OF OBSCENITY

Throughout the nineteenth century, elite sources of American law made sweeping doctrinal pronouncements declaring that states and localities had inherent power to regulate morality. (16) Treatise writers frequently cited the suppression of indecency through the prosecution of obscene speech as a paradigm of morals regulation. (17)

A major source for obscenity doctrine in the United States was the English common law of obscene libel. In England, the King's Bench first recognized obscenity as an offense in 1727. (18) The occasion was the conviction of the notorious British pornographer Edmund Curll for printing Jean Barrin's anti-Catholic novel about a group of sexually overheated nuns, seductively entitled Venus in the Cloister; or The Nun in her Smock. (19) Over the next century, English jurists developed a broad definition of obscene libel. Francis Ludlow Holt, a leading English authority on libel, included a chapter on "Libels Against Morality and the Law of Nature" in his landmark treatise, The Law of Libel. As a general matter, Holt explained, an "indictment at common law may be supported for any offence which is against public morals, decency, and good manners." (20) Obscene libel, by extension, "comprehended every species of representation, whether by writing, by picture, or by any manner of sign or substitute, which is indecent and contrary to public order and natural feeling." (21) While blasphemous and seditious libel were understood as attacks on religion and the state, respectively, an obscene representation was perceived as an affront against "public decency," "public order," and "natural feeling." As another nineteenth-century English authority described the wide-ranging offense of obscene libel, "[i]t is now fully established, that any immodest and immoral publication, tending to corrupt the mind, and to destroy the love of decency, morality, and good order, is punishable." (22)

In the United States, as early as the second decade of the nineteenth century, appellate courts began to cite the English common law of obscenity with approval. In 1811, James Kent, chief judge of the Supreme Court of New York, wrote a widely admired opinion in People v. Ruggles (23) upholding the importation of English common-law doctrines that enabled state and local authorities to punish immoral speech. Although Ruggles dealt specifically with blasphemy, Kent warmly sanctioned prosecutions against other publications "which corrupt moral sentiment," such "as obscene actions, prints and writings." (24) In rejecting the claim that New York's republican form of government and constitutional protection for religious liberty prevented criminal charges for blasphemy, Kent's opinion invoked a fundamental opposition between liberty and license. (25) By classifying blasphemy and obscenity as dangerous forms of "license" or "licentiousness," Kent justified suppression of immoral speech as a vehicle for preserving, rather than threatening, republican liberty.

Soon thereafter, the highest courts of Pennsylvania and Massachusetts expressly recognized the English common-law crime of obscene libel on American soil. (26) In Commonwealth v. Sharpless, the first American appellate case to deal directly with the legality of commerce in sexual representations, the Supreme Court of Pennsylvania affirmed the conviction of six men from Philadelphia for exhibiting a painting of a "man in an obscene, impudent, and indecent posture with a woman." (27) In reaching its decision, the court held that any offense "may be punishable, if in its nature and by its example, it tends to the corruption of morals." (28) In 1821, the Supreme Judicial Court of Massachusetts upheld the conviction of a printer for publishing a "lewd, wicked, scandalous, infamous and obscene printed book." (29)

In a matter of decades, the law of obscene libel was well established in the criminal law of American states. Francis Wharton's influential Treatise on the Criminal Law of the United States tersely but strongly reaffirmed the validity of the common-law principles first articulated in Sharpless: "It is an indictable offence at common law to publish an obscene book or print; or to publicly utter obscene language; and so of any offence tending to corrupt the morals of the people." (30) Consequently, on the doctrinal level, obscene libel provided an expansive tool that state and local officials could use to ban seemingly "indecent" or "immodest" expression that injured no particular person, but merely had a tendency to corrupt "the morals of the people." (31)

In addition to obscene libel, local and state officials seeking to restrict supposedly indecent or immoral publications could tap the longstanding common-law tradition of criminal nuisance. William Blackstone, the leading authority on English law for antebellum Americans, described this doctrine as permitting governments to suppress "such inconvenient or troublesome offenses, as annoy the whole community in general." (32) Among the earliest forms of criminal nuisance recognized by American courts were public displays that violated a community's norms of decency and morality. As the Supreme Court of Errors of Connecticut declared in 1808, "[e]very public show and exhibition, which outrages decency, shocks humanity, or is contrary to good morals, is punishable at common law." (33) By 1850, the United States Supreme Court summarily concluded that "It]he suppression of nuisances injurious to public health or morality is among the most important duties of government." (34) Moreover, unlike other types of criminal nuisances, prosecutions involving moral nuisances required no showing of harm to the "community in general," aside from the morally offensive example of the challenged speech or conduct.

II. OBSCENITY LAW IN PRACTICE: DEFINING THE OBSCENE IN THE NATION'S PUBLISHING CAPITAL

In the twentieth century, Justice Potter Stewart famously claimed the meaning of obscenity was self-evident, remarking "I know it when I see it." (35) For much of the nineteenth century, the formal definition of obscenity was similarly open-ended, though even more expansive than what Justice Stewart had in mind. As discussed in Part I, antebellum jurisprudence broadly defined obscenity as any representation that had a tendency to promote indecency or corrupt public morality, without troubling to develop a more precise standard. (36) Given the seemingly limitless reach of this formulation, one might expect that a vast range of representations were condemned as obscene. However, this was not the case.

As a general matter, the intense censorship of sexual writing engineered by Anthony Comstock during the last three decades of the nineteenth century, which involved the destruction of more than thirty-six tons of obscene books, (37) has meant that few of the erotic texts that circulated in the nineteenth century, including the antebellum period, have survived. Fortunately, however, the indictment papers of the New York County District Attorney have preserved a significant number of extracts from texts identified as obscene, providing scholars with valuable evidence to reconstruct the meaning of obscenity in its formative era. These records, together with rare instances of extant erotic books, publishers' catalogues and advertisements, newspaper articles about obscenity prosecutions, sensational novels, moral reform tracts, and other primary sources from the period, illuminate the initial distinctions drawn between obscene and non-obscene speech. These distinctions had important consequences for the development of the pornography trade in both New York and the nation at large.

A. The Obscene: "Fancy" Books and Female Desire

A review of antebellum indictments reveals that New York grand juries identified twenty separate books (listed in Table 1) as obscene between 1842, when municipal officials began to prosecute obscenity cases in substantial numbers, and the Civil War. (38) Most of these books were originally printed in England or France. (39) New York publishers likely pirated the texts, set them onto stereotype plates, and reprinted the books at will, common practices in the publishing industry in an era before the United States adopted an international copyright law. (40) Whatever their provenance, publishers' circulars and other advertisements indicate that dealers commonly marketed these titles as "fancy," a nineteenth-century term for what we might now describe as extreme or "hard-core." (41) But what do these indictments tell us about what made a particular book "fancy" to publishers and "obscene" to regulators?

First, the court records reveal that almost all of the forbidden books either described or directly referred to sexual conduct. Many of the activities they depicted would have been regarded as quite transgressive at the time, such as sex between women, orgies, masturbation, and public sex. The book that provoked the most prosecutions, John Cleland's eighteenth-century English classic, Fanny Hill or Memoirs of a Woman of Pleasure, included graphic accounts of no less than thirty-nine different sexual encounters. (42)

Second, the specific passages identified in the indictments as obscene often focused on female sexual desire or sexual pleasure, usually narrated by women in the first person. As historians of gender have made clear, new middle-class norms that arose in the first half of the nineteenth century prescribed sexual purity and "passionlessness" for women. (43) Indeed, a primary cultural achievement of the antebellum bourgeoisie was its assertion of fundamental sexual differences between men and women. By eliding sexual difference and highlighting feminine pleasure, erotic tales narrated by women flew in the face of bourgeois conventions enshrining female piety and chastity.

The first grand jury indictments issued against publishers of obscene books in New York County, both from 1842, are illustrative. The defendants were Richard Hobbes, a publisher from Westchester County who supplied bookstore and bookstand proprietors in the city with erotica, and Henry R. Robinson, a celebrated political caricaturist and lithographer who operated a large retail print shop in Manhattan. (44) The district attorney's files in these two cases provide an excellent guide both to New York s inventory of bawdy literature and to the legal construction of obscenity at the onset of municipal efforts to regulate sexual publications.

The indictments against Hobbes and Robinson identified the same nine books, a coincidence that suggests these titles comprised the entire corpus of erotic works sold by New York publishers that authorities considered obscene in early 1840s New York. (45) All of the books named were published originally in England or France, a sign that American authors had not yet begun to develop sexually arousing themes, at least for commercial distribution. (46)

The Hobbes indictment began with three passages from one of the central texts of the antebellum market for "fancy" books, Memoirs of a Woman of Pleasure, better known today as Fanny Hill. (47) This work, which Cleland wrote in 1748 to get out of debtors' prison in London, recounts the life of the eponymous heroine, a humble country girl forced to move to the city after the death of her parents and become a prostitute. (48) The first excerpt depicted a scene in which the young Fanny's heterosexual desires are aroused by spying on her brothel companion having sex with an Italian customer. (49) The second selection was plucked from Fanny's extensive description of an orgy among four couples in Volume Two, while the third offered an explicit account of her experience of anal intercourse. (50) According to the indictment, this Hobbes edition of Fanny Hill also contained "wicked, false, feigned, impious, impure, bawdy, and obscene prints, representing and exhibiting men and women in the act of carnal copulation, in various attitudes and postures." (51)

The Hobbes indictment transcribed additional excerpts from three other allegedly obscene books. One was chattily entitled The Cabinet of Venus Unlocked in a Series of Dialogues Between Louisa Lovestone and Mariana Greedy, Two Cyprians! Of the Most Accomplished Talent in the Science of Practical Love. (52) The selection chosen by the district attorney, which conveyed a rapturous, quasi-religious narration by a woman of her delight in sexual intercourse and mutual orgasm, seemed well calculated to offend the bourgeois sensibilities of the grand jury, accustomed as they were to public affirmations of female piety and purity. (53)

Another part of the indictment quoted a scene from The Confessions of a Voluptuous Young Lady of High Rank. Though no copies survive today, the full title of this book, The Confessions of a Voluptuous Young Lady of High Rank. Disclosing her Secret Longings and Private Amours Before Marriage. Forming a Curious Picture of Fashionable Life and Refined Sensuality, emphasized the theme of female ardor. According to Henry Spencer Ashbee, the leading nineteenth-century bibliographer of erotica, the text of this work related the sexual confessions of an unusually amorous "heroine-authoress, Tilly Touchitt." (54) Like the "obscene" excerpt from The Cabinet off Venus Unlocked, the one taken from The Confessions highlighted a detailed narration by the female protagonist of her experience of sexual penetration. (55)

The Hobbes indictment concluded by noting that the "most gross and filthy scenes of lewdness and obscenity" from Memoirs of the Life and Adventures of the Celebrated Courtesan Mademoiselle Celestine of Paris were "not fit or proper to be used, named, or mentioned in any language, or in any Court of Justice." (56) The same reticence marked the district attorney's treatment of the Hobbes editions of The Lustful Turk and The AutoBiography of a Footman, reflecting a strategy that would become increasingly common in the coming years. (57)

The bill against Hobbes also declined to offer an example from The Curtain Drawn Up, or The Education of Laura, an asserted translation of another libertine Enlightenment classic, Mirabeau's Le Rideau Leve ou L'Education de Laure. (58) Fortunately for scholars, accompanying indictments against a print shop owner and a bookstand operator who sold this book included three allegedly obscene selections from the edition produced by Hobbes. (59) Just as the Hobbes indictment defined obscenity in terms of female sexual knowledge and desire, the other indictments focused on passages from The Curtain Drawn Up that conveyed the heroine's preoccupation with sex and her eager erotic spectatorship. (60)

Turning to obscenity prosecutions for the 1850s, five of the books condemned in the earlier cases--Memoirs of a Woman of Pleasure, The Curtain Drawn Up, The Lustful Turk, The Confessions of a Voluptuous Young Lady of High Rank, and Memoirs of the Life and Voluptuous Adventures of the Celebrated Courtesan Mademoiselle Celestine of Paris--also appear in indictments for this decade, an indication that they constituted a core of popular erotic texts that authorities regarded as obscene. (61) Other titles, such as The Adventures of Silas Shovewell and The Secret Habits of the Female Sex, first surfaced in indictments during the 1850s, but then recurred multiple times, suggesting that they were recent additions to the inventory of New York publishers that soon joined the pornographic canon. Moreover, even though at least one New York publisher began to experiment with selling erotica composed by American authors in the mid-1850s, European imports continued to dominate...

NOTE: All illustrations and photos have been removed from this article.



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