Pornography’s Past: Sexual Publishing



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OBSCENITY REGULATION AND ITS CONSEQUENCES

IN MID-NINETEENTH-CENTURY AMERICA

This paper explores the historical foundation of two of the United States’ most enduring cultural and legal formations: commerce in pornography and prohibitions on obscenity. Although the American pornography industry is now a massive business with revenues of more than ten billion dollars a year, the development of erotic publishing in the nineteenth-century United States has received surprisingly little scholarly attention.[1] By way of comparison, the history of pornography in the European context has been the subject of numerous, richly informative treatments.[2] Moreover, legal scholarship on the early history of American obscenity law has been exceedingly thin, considering only a handful of appellate cases and statutes for most of the period preceding the twentieth century and for the entire period preceding the adoption of the notorious “Comstock Act” of 1873 that banned “obscene literature,” including information on contraception and abortion, from the mail.[3]

Part I sets the stage by summarizing the formal law of obscenity and considering what that jurisprudence teaches us about moral censorship in early nineteenth-century America. As I show below, legal doctrine conveys the impression that American morals law was both dominant and profoundly assimilationist. In short, treatise writers and judges interpreted the law of obscenity to permit states to suppress any speech or conduct that had a tendency to corrupt “public morality.” These elite expressions of law have led some influential historians to conclude that a highly repressive, Protestant legal order ruled uncontested over the arena of morals regulation.[4] However, excessive emphasis on legal doctrine obscures the true depth of resistance to moral reform and the actual operation of morals laws in nineteenth-century America.

Part II charts the application of obscenity doctrine “on the ground” by cataloguing obscenity prosecutions in the nation’s communications capital, culled from my review of the archives of the New York County Court of General Sessions, the city’s principal criminal court, between 1790 and the Civil War.[5] Part III draws on a range of primary sources, including court archives, business records of publishers, pulp fiction, works of popular health reform, sermons, moral reform tracts, and rare surviving examples of erotica, to reconstruct the specific meaning of “obscenity” in mid-nineteenth-century American law.

In Part IV, I consider the consequences of antebellum obscenity regulation. Specifically, I argue that the day-to-day practice of regulation stimulated, rather than suppressed, the creation of an American erotic publishing industry and the construction of a national community of pornography readers.[6] As I discuss in detail below, obscenity prosecutions promoted such commerce in a number of ways. They inspired purveyors of sexual literature to develop new methods of interstate marketing and distribution in an effort to circumvent local regulation. They spurred the production of new genres of erotic writing that exploited and manipulated the taboos on sexual expression erected by obscenity law. And they generated publicity for the sex publishing trade just as it was emerging on a significant scale. All of these consequences ultimately subverted and displaced the cultural authority of legal prohibitions on sexual speech that were laid out in legal treatises or statute books. Thus, despite the sweeping pronouncements found in nineteenth-century jurisprudence about the state’s power to protect public morality, antebellum obscenity regulation did not operate in a positivistic or linear fashion to suppress immorality.[7]

Throughout this study, I focus on events in New York City during the two decades before the Civil War. In this period, New York secured its position as the nation’s largest city and its financial and manufacturing capital.[8] As a leading historian of the city has observed: “By the 1850s, New York had become a metropolis, a great organization of powers and skills that strengthened its commercial and cultural dominance of the nation while making it a major presence in world society.”[9] Significantly, by the middle of the century, New York had pushed aside its chief rivals, Boston and Philadelphia, to establish itself as the undisputed center of the nation’s book and newspaper publishing industries.[10] Most importantly for our purposes, by the end of the 1850s, New York had emerged as the headquarters for a network of pornographic publishers who led the nation in producing and marketing sexual writing. New York’s prominence in the field of sexual stimulation was firmly cemented by the early 1860s, when its publishers and dealers became notorious for exploiting the massive demand for mail-order erotica created by soldiers serving in both the Southern and Northern armies during the Civil War.

Before I begin, a caveat about terminology. While “obscenity” was a widely used term in nineteenth-century America, “pornography” was not. Throughout the antebellum period, Noah Webster’s American Dictionary of the English Language broadly defined “obscenity” as “impurity in expression or representation; that quality in words or things which presents what is offensive to chastity or purity of mind; ribaldry.”[11] “Pornography,” a relative neologism derived from the Greek words porne (prostitute) and graphos (writing), did not appear in any version of Webster’s dictionary from its first edition in 1828 through 1860. In 1864, it introduced an entry for pornography, defining it primarily as a “treatment of, or a treatise on, the subject of prostitutes or prostitution.” The second listing narrowly defined it as “licentious painting employed to decorate the walls of rooms sacred to bacchanalian orgies, examples of which exist in Pompei.”[12] Only in 1913 was “pornography” defined in its more modern sense as “licentious painting or literature.”[13]

The relatively late coinage of the term “pornography” and its rather obscure meaning in the nineteenth century does not mean, however, that explicit sexual representations did not exist in the nineteenth-century United States. On the contrary, this paper will demonstrate that a wide range of commercial erotica circulated extensively in the decades before the Civil War. I often refer to these publications generically as “erotic speech” or “sexual representations.” When I do use the word “pornography,” I use it in the specific sense proposed by historian Peter Wagner. As he has articulated, pornography is “the written or visual presentation in a realistic form of any genital or sexual behavior with a deliberate violation of existing and widely accepted moral and social taboos.”[14]

THE DOCTRINE OF OBSCENITY

By the second decade of the nineteenth century, the landscape of Anglo-American law provided ample doctrinal support for prosecuting sexual representations. As early as 1811, the Chief Judge of the Court of Appeals of New York, James Kent, wrote a widely cited opinion upholding the importation of English common-law doctrines that enabled New York State to suppress immoral speech, despite protections for freedom of speech and freedom of religion in the state constitution.[15] Though People v. Ruggles dealt specifically with blasphemy, Kent warmly approved prosecutions against other publications “which corrupt moral sentiment, as obscene actions, prints and writings.”[16] In rejecting the claim that the republican form of government in New York prevented criminal charges for a crime like blasphemy, Kent’s opinion drew on eighteenth-century political theory, which posited a fundamental opposition between liberty and license.[17] By classifying blasphemy and obscenity as dangerous forms of license or “licentiousness,” he justified suppression of immoral speech as a vehicle for preserving republican liberty.

Soon thereafter, the highest courts of two states, Pennsylvania and Massachusetts, expressly recognized the English common-law crime of obscene libel on American soil.[18] This doctrine gave sweeping authority to the state to punish “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.”[19] As an early nineteenth-century English treatise further explained the wide-ranging offense of obscene libel: “It 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.”[20] Following the lead of English jurists, the Supreme Court of Pennsylvania declared in 1815 that “an offence may be punishable, if in its nature and by its example, it tends to the corruption of morals,” including the exhibition of an “obscene” picture.[21] On the doctrinal level, therefore, obscene libel was one of several tools that New York authorities had at their disposal to punish speech or acts that injured no particular person but had a tendency to corrupt public morality.[22]

In addition to obscene libel, New York authorities could tap the longstanding common-law tradition of criminal nuisance. This doctrine permitted states to suppress “such inconvenient or troublesome offenses, as annoy the whole community in general.”[23] Among the forms of criminal nuisance recognized by American courts were public displays that violated a community’s norms of decency and morality. The Supreme Court of Connecticut, for instance, early on declared: “Every public show and exhibition, which outrages decency, shocks humanity, or is contrary to good morals, is punishable at common law.”[24] Technically, unlike other criminal nuisances, moral nuisances required no showing of inconvenience or harm to the general public aside from the asserted immorality of the challenged conduct.

Though no court in New York had expressly recognized obscenity, the combination of Judge Kent’s ruling in Ruggles and precedents in neighboring states meant that, by the beginning of the 1820s, New York authorities had at least two broad doctrines at their disposal to punish “licentious” speech: obscene libel and criminal nuisance. Nonetheless, for the next two decades, prosecutions for obscenity were few and far between.

II. CHARTING NEW YORK OBSCENITY PROSECUTIONS, 1790-1860

Despite the precedents set forth in Part I, the crime of obscenity first emerged as a significant category of morals regulation in New York City only at the beginning of the 1840s. Before then, actual prosecutions relating to “obscene” speech were exceedingly rare.[25] Indeed, from the time the Court of General Sessions for New York County began to keep records of prosecutions in 1790 through 1840, I have located only two isolated references to indictments for obscenity.[26] One involved charges against two storekeepers in 1824 for selling Memoirs of a Woman of Pleasure (commonly known as Fanny Hill)[27] and the other involved charges against a shopkeeper in 1834 for displaying lewd prints.[28]

Over the next two decades, however, the records of the New York County district attorney’s office and the minutes of the Court of General Sessions for New York County contain scores of indictments for obscenity. Table 1 distills the available archival data on prosecutions involving “obscene” books in antebellum New York.[29] It lists each prosecution by date of indictment, name of defendant, occupation of the defendant, nature of the charge, and the specific material deemed to be “obscene.” Where possible, it also notes the outcome of the prosecution.[30]

Typically, these cases arose when policemen or court officers caught men or boys selling small numbers of bawdy books in public places and used their testimony to develop cases against bookstore owners who supplied them.[31] Many times, the officers were able to use the testimony of storeowners to reach up the chain of distribution to the publishers who fueled the trade.[32] Indeed, over the course of the two decades at issue, the arrest of street peddlers or bookstore proprietors resulted in raids and indictments against all of the city’s major publishers of erotic literature.[33]

III. THE MEANING OF OBSCENITY IN ANTEBELLUM NEW YORK

In this section, I survey the various kinds of sexual genres that publishers distributed in book or pamphlet form in antebellum New York and analyze the types of representations that triggered prosecutions for obscenity. Specifically, how did criminal authorities distinguish between publications that were “obscene” and those that were non-“obscene”? Moreover, what can obscenity prosecutions tell us about the legal and literary culture of the publishing capital of the mid-nineteenth-century United States?

Given the fragmentary nature of the legal records and the fact that many of the condemned works were destroyed or have disappeared, determining how authorities mapped the divide between “obscene” and acceptable speech with any precision is not a straightforward task. Despite these archival lacunae, criminal indictments have preserved a significant number of “obscene” texts, providing historians with valuable evidence to reconstruct the meaning of obscenity in antebellum legal culture. These records, together with newspaper articles, popular fiction, moral reform tracts, and other primary sources from the period, help to illuminate the boundaries between “obscene” and non-“obscene” speech that emerged in mid-nineteenth-century New York.

A. The Obscene: Fancy Books and Female Desire

As Table 1 shows, the grand jury for New York County identified twenty separate books as “obscene” between 1840 and the Civil War.[34] Publishers’ circulars and other advertisements indicate that dealers commonly marketed these titles as “fancy” books, an indication of what we would today think of as their extreme, “hard-core” quality.[35] But what do these indictments tell us about what made a particular book “fancy” to publishers and “obscene” to regulators?

First, almost all of the books condemned as “obscene” in antebellum New York contained explicit, detailed descriptions of a wide range of sexual activities. Many of these would have been regarded as quite transgressive in their day, such as sex between women, orgies, masturbation, and public sex. The book that provoked the most prosecutions, Memoirs of a Woman of Pleasure, included graphic accounts of no less than thirty-nine different sexual encounters.[36] Judging from the indictments, many of the prosecuted volumes also contained “fancy” pictures, i.e., explicit illustrations of nudity and sex.[37]

Second, the specific passages identified as “obscene” in the indictments usually focused on female sexual desire or sexual pleasure, often told by women in the first person. It is evident that affirmations of this sort overtly threatened new middle-class values that prescribed sexual purity and “passionlessness” for women. Indeed, a primary cultural achievement of the middle class in the antebellum era was its assertion of fundamental sexual differences between men and women. By eliding sexual difference and flouting bourgeois values such as female domesticity and female chastity, pornography narrated by women appeared to be especially shocking and dangerous.[38]

The grand jury for New York County presented its first indictments against two publishers of “obscene” books, Richard Hobbes and Henry R. Robinson, in 1842.[39] The records of these cases in the district attorney’s files provide an excellent guide to New York City’s inventory of bawdy books as well as the construction of obscenity in the initial phase of the city’s effort to regulate its sex publishing trade.

Perhaps because Hobbes was thought to be the most prolific publisher of lewd books in 1840s New York, the district attorney drafted his indictment with special thoroughness. It began by relating several passages that demonstrated the obscenity of one of the central texts of the antebellum pornography market, John Cleland’s eighteenth-century classic, Memoirs of a Woman of Pleasure. The indictment specified three paragraphs from the book, ranging from rather tame descriptions of sexual intimacy to an explicit account of heterosexual anal intercourse.[40] It began by recounting a scene in which Fanny’s heterosexual desires are aroused by spying on her brothel companion having sex with an Italian customer:

“The young Italian (still in his shirt) stood gazing and transported at the sight of beauties that might have fired a dying hermit; his eager eyes devoured her, as she shifted attitudes at his discretion; neither were his hands excluded their share of the high feast, but wandered, on the hunt of pleasure, over every part and inch of her body, so qualified to afford the most exquisite sense of it.”[41]

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.”

The Hobbes indictment transcribed additional excerpts from three of the 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.[42] The specific selection seemed well calculated to shock the bourgeois sensibilities of the grand jury, accustomed as they were to public expressions of female chastity, with its rapturous, quasi-religious narration by a woman of her delight in sexual intercourse and mutual orgasm:

“Oh, what rapturous exquisite delight as I took it, when it rushed in and filled the whole deep cavity where I felt it swell and throb as if it would burst with its exertions within. I strained and struggled with him to the utmost of my strength, and seemed inspired beyond my natural powers in every effort. I screamed with excessive extacy [sic], and, oh! god of burning lust! At the last flush and overwhelming flow of bliss that gushed into me from him, my senses were wholly entranced and the whole world of love seemed swallowed up in the heavenly sweet delirium.”

Another passage provided a scene from the Confessions of a Voluptuous Young Lady of High Rank, one of the hottest selling and most frequently prosecuted fancy books in antebellum New York, though no copies survive today. The full title of this work emphasized the theme of female sexual pleasure and assertiveness: 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.[43] Like the previous “obscene” excerpt, this one from the Confessions highlighted a first-person narration by a woman (presumably the voluptuous lady aristocrat of the title) of the experience of sexual penetration by a male lover.

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.” 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 ensuing decades.[44]

The Hobbes bill also declined to offer an example from The Curtain Drawn Up, or The Education of Laura, a translation of another libertine Enlightenment classic, Mirabeau’s Le Rideau Leve ou L’education de Laure.[45] 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.[46] Two of the three passages emphasized Laura’s preoccupation with sex and her eager sexual spectatorship. This item from her diary, for instance, focused on the heroine’s obsessive observation of male genitalia:

“Arrived at home. I failed not to profit by the knowledge I had acquired through Isabella and, like her, procured myself each day the most delicious sensations of pleasure, and frequently my heated imagination urged me to double the dose. I thought of nothing but a man, and I never saw one without fixing my eyes upon that part which I knew contained the idol of my desires, and which the very idea of filled me with a fire that was insupportable.”[47]

According to the indictments, the Hobbes edition of The Curtain Drawn Up supplemented such descriptions with numerous prints of men and women in various acts of copulation.[48]

The indictment against the second publisher, Henry R. Robinson, named exactly the same nine books that Hobbes was charged with selling.[49] It also included the same three excerpts from Memoirs of a Woman of Pleasure that were quoted in the Hobbes indictment. The eight other titles named were summarily alleged to contain “divers [sic] wicked, false, feigned, impious, impure, bawdy, and obscene matters wherein are represented the most gross and filthy scenes of lewdness and obscenity.”[50]

The repetition of books in the bills against Hobbes and Robinson suggests that they comprised the entire corpus of erotic works sold by New York publishers that authorities considered “obscene” in early 1840s New York. When we turn to obscenity prosecutions for the1850s, we see that five of the books named in the earlier cases—Memoirs of a Woman of Pleasure, The Curtain Drawn Up or the Education of Laura, The Lustful Turk, The Confessions of a Voluptuous Young Lady of High Rank, and Memoirs of the Life and Adventures of the Celebrated Mademoiselle Celestine of Paris—also appear in indictments for the 1850s, an indication that they constituted a core of popular pornographic texts that were known to be subject to prosecution.[51] Other titles, such as The Adventures of Silas Shovewell and The Secret Habits of the Female Sex, first surface in indictments during the 1850s but then recur multiple times, suggesting that they were recent additions to the inventory of New York publishers but soon joined the canon of fancy books.

By the 1850s, district attorneys routinely declined to include specific passages deemed to be obscene in their indictments, out of an alleged concern with protecting the modesty of the court’s records. Though the 1850s indictments are therefore less revealing to historians, there is evidence that first-person female narrations of sexual desire continued to be a trigger for classifying particular works as “obscene.”

The ban on overt discussion of female sexuality even applied regardless of the erotic content of the publication. The repeated prosecution of sellers of The Secret Habits of the Female Sex in the 1850s is a prime case in point. Published by the New York firm H. S. G. Smith & Co. (an alias for publisher Frederic Brady), The Secret Habits of the Female Sex was allegedly written by Dr. Jean Dubois.[52] Despite its salacious title, The Secret Habits of the Female Sex was actually an extremely dour if sensationalized anti-masturbation tract.[53] Clever marketing by publishers with a reputation for printing pornography, along with the title’s allusions to the mysterious sexual practices of women and its French author, probably misled men into buying the book for the purpose of sexual arousal or satisfying their curiosity about female sexuality.[54] Moreover, the book’s inclusion of letters from sexually aroused girls and young women, even though they dwelled on the morbid consequences of their sexual explorations, ran directly afoul of the legal taboo on expressions of female desire.

Significantly, all of the books named as obscene in the 1842 indictments against Hobbes and Robinson were published originally in England or France, indicating that American authors had not yet begun to develop sexual arousing themes, at least for commercial distribution. Though perhaps new to the American market, many of the books in the Hobbes and Robinson indictments dated from the eighteenth century and had already been through numerous editions—and multiple obscenity prosecutions—in their countries of origin. Other books in the Hobbes and Robinson inventories were brought to the New York market at lighting speed, however. To take one example, The Autobiography of a Footman, which was first published in the London “gentlemen’s” journal, The Exquisite, in 1842, became available in book form in New York the very same year.[55] This rapidity not only manifests the heavy dependence of New York publishers on British content, but also highlights the close connections between pornographers in London and their counterparts in New York. Even in the 1850s, when at least one New York publisher began to experiment with offering erotica composed by American authors, European imports continued to dominate both the New York market for fancy print and the records of obscenity prosecutions.[56]

Extant court records also suggest that, throughout the antebellum era, the books likely to provoke prosecution for obscenity were expensive purchases. The very first obscenity indictment in New York in 1824 involved the sale of Memoirs of a Woman of Pleasure for three and a half dollars at an exclusive “fancy goods” store that specialized in imported consumer products.[57] That high price, equivalent in today’s terms to roughly $65, meant the book in question was a truly “fancy” item, available only to the elite.[58] More than twenty years later, when police arrested a boy in 1847 for peddling copies of books like The Lustful Turk and List of all the Gay Houses (a guide to brothels) in the lobby of the elegant Astor hotel, he was charging two dollars for Memoirs of a Woman of Pleasure, an amount that placed it well beyond the reach of working-class readers, the best-paid of whom averaged earnings of only six dollars a week.[59] Another title named in an 1857 indictment, The Adventures and Intrigues of the Duke of Buckingham, Charles the Second and the Earl of Rochester, which was advertised as a “fancy, fancy book” by a fictitious French importer named “Jean Rosseau,” also sold for two dollars.[60]

The high price of fancy books stemmed from a number of factors. First, it reflected the quality of their printing and binding; most explicit erotica was produced in hardcover editions rather than as paperback pamphlets. While paperbacks in this era usually sold for a quarter or even a dime (hence the term “dime novel”), bound books cost between 75 cents and $1.25.[61] Second, as noted above, the explicit text of “obscene” books was often supplemented by graphic illustrations of sex or nudity. The inclusion of such prints raised the price of explicit erotica even above the cost for the average hardcover book.

B. The Immoral But Non-Obscene

Fancy books containing unambiguous accounts of sex and nudity were not the only forms of sexual discourse available in the New York marketplace. In analyzing the legal culture of the antebellum metropolis and reconstructing the meaning of obscenity, it is instructive to consider not only what kinds of sexual representations triggered prosecutions but also what kinds did not.

1. Pulp Fiction and the World of the “Racy”

The proliferation of American sensation fiction in the late 1840s and 1850s provides an especially revealing guide to the meaning of obscenity in antebellum New York. This genre originally derived from European “city mystery” novels and British “penny dreadfuls.”[62] The American version, often called “yellow-jacket literature” (a reference to the garish yellow covers of these early paperbacks) spun narratives in which, according to one contemporary critic, “murder, forgery, adultery, and all other crimes are treated as common occurrences of life.”[63] In particular, American sensation fiction reveled in portraying “tales of criminal underworlds, urban squalor, and elite luxury and decadence.”[64] The most risqué examples also specialized in graphic, horrifically detailed depictions of violence and torture combined with euphemistic, titillating references to sexual license.[65] The sexual scenes, while elliptical in content, nonetheless raised highly provocative themes. As David Reynolds has pointed out, the sexual practices alluded to in sensation fiction included “incest, sadomasochism, homosexuality, group sex, miscegenation, child sex, [and] mass orgies.”[66] Because of its obsession with the dark secrets and sexual excesses of life in the big city, literary critics Joseph Ridgely and George Looby have appropriately termed this body of literature “American porno-gothic.”[67]

The leading publishers of “American porno-gothic” novels were often the same men who published the expensive books that typically provoked indictment for obscenity. Frequently using a separate imprint to distinguish the genres, they marketed this relatively safe category of indecent sensation literature as “racy” rather than “fancy” reading. Racy fiction was also intended to be cheap. These novels were usually issued as paperbacks that cost a quarter or less. Often no more than a hundred pages, small enough to fit in a pocket, and illustrated only with a few rough woodcuts, they were designed to be read quickly and probably disposed of with similar dispatch.[68]

Native New Yorker George Thompson wrote much of the most sexually scandalous and violent sensation fiction that was published in New York in the late 1840s and 50s. While living in Boston and New York during his twenties and early thirties, Thompson participated in a raucous, bohemian subculture of writers, reporters, actors, and theater producers who made their living from popular entertainment.[69] For his part, Thompson churned out lurid blends of graphic violence and euphemistic sex with tillating titles like The Ladies’ Garter, (c.1851), The Gay Girls of New York (1854), and The Bridal Chamber, and Its Mysteries (1856).[70] A late nineteenth-century bibliographer of erotica estimated that Thompson had produced a hundred books; references to more than sixty of these survive today along with twenty-five novels in their entirety.[71]

In what he described as his “own peculiar style,” Thompson perfected the art of inverting conventional sources of mid-nineteenth-century moral and social authority.[72] In blatant mockery of those who envisioned the city as an orderly, well-governed society, Thompson’s novels presented the metropolis as bizarre, carnivalesque, and terrifying. It was a world where ministers were always licentious and immoral, middle-class women were always faithless and lecherous, and judges were always lawless and unjust.[73] The criminal protagonist of Thompson’s Harry Glindon, or, the Man of Many Crimes characteristically justified his own lawlessness by declaring that “society is badly organized, and the world is full of abuses.” As proof he referenced “the ‘bloated Judge’ who, though universally revered, ‘punishes a culprit for a trivial offence’ while being ‘himself a drunkard, an adulterer, and a villain,’ the ‘distinguished statesman’ with ‘his pockets full of bribe-money,’ and the ‘inhuman, cruel’ rich man who takes ‘advantage of his position to oppress the poor devils under his control.’”[74]

Sex and violence, often linked together, were Thompson’s signature vehicles for expressing these themes of disorder and darkness. As his leading biographers, David Reynolds and Kimberly Gladman, have noted, his works “are filled with gore, sex, and perversity to such a degree that Thompson can be identified as the most shockingly sensational and openly erotic American writer of his day.”[75] In certain respects, Thompson even qualifies as the American Marquis de Sade. As historian Lynn Hunt has remarked, Sade “specialized in the cataloguing of pornographic effects. Rape, incest, parricide, sacrilege, sodomy and tribadism, pedophilia and all the most horrible forms of torture and murder were associated with sexual arousal in the writings of Sade.”[76] Similarly, Thompson strove to eroticize many of the most culturally taboo forms of sex, violence, and even death. Unlike Sade, however, Thompson wrote about sex with a coy allusiveness and naughty winks to the reader. In a characteristic passage from one his most popular novels, City Crimes, Thompson relates an incestuous sexual triangle comprising a lecherous mother, her equally lascivious daughter, and the captain of a ship whom they have seduced: “And clasping both ladies around the waists, he kissed them alternately, again and again. That night was one of guilty rapture to all the parties; but the particulars must be left to the reader’s imagination.”[77]

In contrast to this elliptical treatment of sex, Thompson lavished explicit detail on descriptions of violence, horror, and torture. As discussed in Part IV, sensation novelists like Thompson thus learned to substitute violence for the sex that the law prohibited them from showing.

The preoccupation of mid-nineteenth-century American sensation fiction with sexual transgression, violence, and crime often led moral reformers and others to condemn it as immoral and dangerous.[78] They were especially concerned about the dangers such books presented for young, working-class readers. In their eyes, shop girls and mechanics seemed peculiarly susceptible to the charms of cheap literature, though they acknowledged that well-off individuals sometimes succumbed to its temptations as well. An anonymous 1855 book by a Chicago doctor, The Confessions and Experience of a Novel Reader, was emblematic of growing concern over the harms of sensation novels:

“If any one has any doubts as to the fearfully rapid increase of this public poison—a demoralizing literature, the real ‘Pandora’s box of evil passions’—the flood gate, from beneath whose slimy jaws runs a stream of pollution, sending forth its pestilential branches to one great ocean of immorality, let such a one take a trip with me through the length and breadth of our land.”

According to the doctor, the very survival of the nation depended on the suppression of licentious literature. Otherwise, it threatened to “subvert the purity of our Republican institutions” and “foster elements of revolution, which…will crush us in the might and majesty of our fancied security.”[79] Journalist Lambert Wilmer also castigated pulp novels and “Satanic Journalists.” Foreshadowing the campaigns of Anthony Comstock against “Vampire Literature”[80] several decades later, Wilmer warned that sensation literature taught young people “atheism, obscenity, contempt and defiance of the law, the arts of the seducer, the mysteries of brothels, the practice of pugilism, the tricks of swindlers, the operations of house-breakers, the excusableness of adultery, and the legality of assassination.”[81]

Another journalist mourned the growing prevalence of what he too called “Satanic Literature:” “Got up in cheap form, rendered attractive by meretricious engravings and exaggerated titles, these pernicious books are thrust into almost every accessible place, and are infecting to the core a large portion of the youth of the country.”[82] Even less violent versions of titillating literature, often referred to as “French fiction” or “voluptuous novels,” were frequently condemned as immoral. Prominent ministers like Henry Ward Beecher, for instance, attacked the hypocrisy of supposedly reputable, upstanding publishing firms like Harper Brothers for profiting from the sale of “the obscene school of French novels.”[83]

Despite this widespread censure of antebellum pulp fiction, its cultural associations with obscenity, and its extensive circulation within the antebellum metropolis, authorities in New York apparently did not consider it “obscene” as a matter of law. Thus, in the formative decades of obscenity regulation, district attorneys, grand jurors, and other public officials did not define obscenity in a way that encompassed the mixture of graphic violence and sexual titillation that flourished in mid-nineteenth-century popular literature.

2. Quasi-Scientific Literature on Human Anatomy,

Marital Sex, Reproduction, and Family Limitation

A second major category of writing that touched on sexual matters but largely escaped indictment for obscenity in 1840s and 1850s New York was quasi-medical information, ostensibly designed for married people or “those about to marry,” about human anatomy, sexual technique, reproduction, contraception, and abortion. Though often condemned by moral reformers, many of the most popular titles, such as Frederick Hollick’s The Marriage Guide and Thomas Low Nichols’ Esoteric Anthropology, were published in New York and circulated freely there.[84] Historian Janet Brodie, for instance, has substantiated the increasing volume and explicitness of books on reproductive control and sexual anatomy that became available to lay audiences after 1850, calling it a veritable “boom” in self-help literature.[85] Thinly veiled advertisements for contraceptive devices and abortionists in popular newspapers and mail circulars were also common.[86]

As Brodie notes, while a few publishers of books on reproductive control were recognized as reputable, on the whole the business “was neither openly accepted nor respectable.”[87] Nonetheless, there is no record in antebellum New York of any successful prosecution specifically directed at a seller of literature on contraception or abortion. On one occasion in 1847, wealthy abortionist Ann Restell’s husband, Charles Lohman, was indicted for selling The Married Woman’s Private Medical Companion.[88] This tract, published just a few months before under the pseudonym “Dr. A.M. Mauriceau,” contained plainly marked sections offering advice on the “prevention of pregnancy” and providing information on methods of abortion.[89] But the case file in the district attorney’s papers make clear that this indictment was triggered by the perception that the book was really just an extended advertisement for the flourishing abortion practice of the notorious “Madame Restell,” who was then facing trial for manslaughter.[90] Even under those circumstances, authorities did not pursue Lohman’s prosecution for obscenity.[91] Nor did Lohman’s indictment impede sales of The Married Woman’s Private Medical Companion, which went through nine editions between 1847 and 1860.[92]

Other antebellum cities showed less tolerance for literature of this sort. In Philadelphia, for instance, populist health reformer Frederick Hollick was indicted for obscene libel in 1846 for distributing a collection of his popular lectures on health, sex, and anatomy called The Origin of Life: A Popular Treatise on the Philosophy and Physiology of Reproduction in Plants and Animals, including the details of human generation with a full description of the male and female organs.[93] A second indictment charged Hollick with circulating “obscene” pictures in the form of anatomical illustrations included in the book.[94] A third bill stemmed from his use of a life-size paper-mache model of a naked woman on his lecture circuit.[95]

Hollick’s philosophy was indeed controversial in its day. In his lectures and writings, he emphasized the importance of sexual pleasure for married couples and argued that the “sovereignty of each partner over her or his own body must be honored.”[96] He also offered advice on contraception, advertised condoms, and promoted the use of aphrodisiacs like tea, coffee, and marijuana to improve sexual performance and enjoyment.[97] Hollick, however, was never prosecuted in New York, even though The Origin of Life (1845) and his next book, The Marriage Guide (1850), were both published there and he lectured frequently in the city. This restraint reflected a significant commitment on the part of New York officials to free commerce in quasi-scientific works on health reform, physiology, and reproductive advice.

3. Artistic Representations of Sex

A final category of publications that escaped prosecution was comprised of contemporary literary works that contained sexual allusions. A revealing example is Walt Whitman’s Leaves of Grass, first published in New York in 1855. Many critics charged that Whitman’s frank treatment of sexual desire was obscene and some urged prosecution. A review in the New York Criterion, for instance, concluded: “Thus, then, we leave this gathering of muck to the laws which, certainly, if they fulfill their intent, must have power to suppress such obscenity.”[98] Earlier that decade, commentators heaped similar abuse on Nathaniel Hawthorne's The Scarlet Letter, attacking it as an immoral book that encouraged sexual license.[99] Cultural arbiters opposed to “the licensed libertinism of our established literature” also denounced Byron’s Don Juan and Rousseau’s Confessions.[100] Despite these criticisms, criminal authorities in New York City consistently declined to censor publishers of “serious” literature that offended moral sensibilities. This restraint caused the tabloid National Police Gazette to complain about an alleged double standard for reputable publishers of poetry and clandestine purveyors of “coarser books”: “The strictly moral may go further than they have yet gone, and seize upon certain editions of modern poetry, and confiscate them for immorality—an immorality that exceeds in its pernicious effects anything that the coarser books, surreptitiously sold on street corners and up sheltering alleys, contain.”[101]

IV. OBSCENITY REGULATION AND ITS CONSEQUENCES

By the mid-nineteenth century, New York sex publishers viewed obscenity regulation as a significant enough problem that they began to strategize about ways to maneuver around it. After all, several prosecutions for obscenity in the 1840s had resulted in prison sentences for the defendants.[102] For instance, the man that Anthony Comstock considered the most prolific pornographer of the nineteenth century, Williams Haynes, received three months in prison in 1846 for selling an illustrated copy of The Curtain Drawn Up, or The Education of Laura in a public square.[103] By the 1850s, however, fewer prosecutions ended in incarceration of the defendants. Indeed, despite indictments of the decade’s major publishers of erotica — Haynes, Charles Walker, Thomas Gillen, George Akarman, and Frederic Brady—none were convicted or even stood trial.[104]

Nonetheless, in the minds of antebellum pornographers, the law of obscenity posed very real risks for both their property and their liberty. At a minimum, purveyors of indecent texts wanted to protect significant investments of capital from police raids and confiscations. This fear was entirely rational, given several spectacular seizures of publishers’ stock in both the 1840s and 1850s. They also wanted to minimize the necessity for kickbacks to local police, judges, and court officers, an increasingly common necessity that consumed a large portion of their profits.[105] Moreover, because they operated in a zone of criminalized speech whenever they marketed or sold fancy publications, New York pornographers pursued their trade in the omnipresent “shadow of the law” and its punishments, constantly confronted with and responsive to the threat of arrest and imprisonment.[106]

The experience of one of New York’s leading pornographers, Frederic A. Brady, is illustrative of the obstacles and risks that the ban on obscenity posed for New York’s mid-nineteenth-century sexual entrepreneurs.[107] His troubles began in a typical way, when a police officer arrested three men in 1858 for peddling “obscene” books and prints in the street and they told the police they had purchased the items from Brady.[108] According to their affidavits, Brady sought to evade arrest by avoiding direct sales of “obscene” books to customers and selling them instead to peddlers like themselves, who would then hawk them on the streets, docks, and hotels of the city. They also testified that Brady supplied agents from outside the city by mail.[109]

Based on the depositions of the peddlers, Mayor Daniel Tiemann issued a warrant authorizing the police to search Brady’s premises.”[110] Two officers then “descended” on Brady’s establishment on Ann street, the center of the city’s licentious book trade, seized his entire stock of books and prints, and arrested the publisher.[111] An article in the New York Times described Brady as “an older offender in this line” and previewed his legal defense. Relying on the customary legal tolerance for the merely racy, Brady questioned how the seized books could be obscene when they were “openly sold by all the trade”:

“Brady is said to be an old offender in this line, but claims that the books seized in the present case are openly sold by all the trade. The Recorder said he intended to break up this business, and would send every one convicted of being engaged in it to the Penitentiary.”[112]

Unable to secure the heavy $5000 bail, Brady was “locked up in the Tombs,” the city’s jail, awaiting indictment.[113] A credit agent for R. G. Dun & Co., a predecessor of Dun & Bradstreet, filed an informative report on Brady during this time, capturing both the rewards and the steep personal and economic risks of Brady’s line of work:

“Jan. 25. 58. His business has been rather a profitable one for a few years past—and it is thought, he has made money—Has paid his bills very promptly and been in fair credit. Always apparently flush with means sufficient for his bus. but he has lately experienced [illegible] reverses, from which he may find it difficult to extricate himself, without incurring a heavy penalty. He was arrested by the police for selling obscene books, and being unable to procure $ in bail, he was incarcerated in the Tombs, where he now is, awaiting the action of the “Grand Jury” and his stock (of books &c.) seized.”[114]

Soon thereafter, the grand jury presented two indictments against Brady for having and selling “Obscene Publications.”[115]

Brady ultimately managed to avoid conviction and even trial on his two obscenity indictments. A later newspaper article on police corruption hinted that he may have solicited the services of a notorious local gambler and thief, Marcus Cicero Stanley, to settle his case by paying bribes and delivering a promise that he would leave the trade.[116] But Brady was not able to extricate himself from the law before suffering the indignity of imprisonment and at least the temporary loss of his business property, such as his inventory of printed books, stereotype plates used for printing new editions, and other tools of his trade.[117] Though it did not result in conviction, Brady’s arrest therefore represented precisely the kind of run-in with criminal authorities that mid-nineteenth-century pornographers sought to minimize or, better yet, avoid altogether.

A. New Methods of Marketing and Distribution

One important consequence of mid-nineteenth-century obscenity regulation was the development of new channels for marketing and distributing “obscene” publications. As noted above, the threat of prosecution led publishers like Frederic Brady to eschew direct sales to customers in the city and instead use a network of agents and peddlers. I’ve suggested elsewhere how the prosecution of publishers for obscenity that began in the 1840s also inspired the cutting edge of New York pornographers to embrace the relative privacy and anonymity of mail-order sales by the end of the 1850s.[118] By exploiting the mail system and other vehicles of interstate commerce, such as private express companies, to advertise and deliver their goods, these men hoped to create an inconspicuous, safe system for marketing and selling their products.[119]

At least one publisher, George Akarman, went so far as to abandon metropolitan sales of publications that he delicately described as “in opposition to law.”[120] As he explained his strategy, “none of those books which were condemned by the law have ever been sold or distributed by me in this city.” Instead, like several of his colleagues in the trade, he sold such books by mail order to customers whom he described as “discreet gentlemen from out of state.”[121]

The interstate nature of this commerce, it was hoped, would enable sex publishers to thwart local efforts to regulate them. In their view, obscenity prosecutions were legitimate only in the context of the public sale of the most explicit forms of erotica within the borders of New York. Like lawyers for Internet pornographers today who maintain that “community standards” no longer have clarity or even relevance in a medium without borders, early mail-order pornographers saw interstate distribution as a solution to the problem of local regulation.[122] Because of procedural problems of proof and jurisdiction, mail-order sales also helped publishers avoid prosecution in the out-of-state localities where they shipped their products. Thus, an unanticipated consequence of obscenity prosecutions in antebellum New York was that they inspired resourceful sexual entrepreneurs to pursue new methods of marketing and distribution, such as a nationwide system of advertising, payment, and delivery of pornography via the mails.[123] In this respect as in others, local obscenity regulation had the ironic, counterproductive effect of expanding, rather than suppressing, markets for “obscene” publications.

B. New Genres of Erotic Representation

A second significant consequence of the first two decades of obscenity regulation in New York was that they spurred the development of new genres of erotic speech. This development involved both “fancy” representations that violated legal conventions of obscenity and “racy” representations that deliberately skirted the perceived borders of the “obscene.”

1. Female Sexual Subjectivity: The World of Venus’ Miscellany

Theorists of sexuality long ago explained the importance of prohibition to sexual desire. As Sigmund Freud declared early in the twentieth century: “Some obstacle is necessary to swell the tide of the libido to its height; and at all periods of history, wherever natural barriers in the way of satisfaction have not sufficed, mankind has erected conventional ones to be able to enjoy love.”[124] Later in the century, Georges Bataille argued that the pleasure of pornography depends on an accompanying prohibition that it appears to transgress and thereby “completes.”[125] More recently, theorists like Michel Foucault and Judith Butler have explored the “productive and multiple possibilities of the law,”[126] teaching the ways in which ostensible instruments of “repression” and “prohibition” instead publicized sex, promoted sexual discourse, and created the conditions for new forms of desire.[127] As Foucault has reinterpreted Freud’s theory of sexual repression, “what is involved is the production of sexuality rather than the repression of sex.”[128]

The origins of obscenity regulation in nineteenth-century America confirm the insights of these theorists. By banning the kind of passages excerpted in Part III from Fanny Hill, The Cabinet of Venus Unlocked, and The Curtain Drawn Up, obscenity prosecutions conveniently interposed a legal prohibition that helped to arouse interest in depictions of sexual acts. By singling out expressions of female sexual desire for special condemnation, they also spurred demand for illicit literature about the erotic subjectivity and sexual assertiveness of middle-class women.

In 1856, an innovative editor, publisher, and all-around sexual entrepreneur named George Akarman decided to tackle the obscenity prohibition head on when he unveiled his latest project, a weekly sex journal called Venus’ Miscellany.[129] Far more explicit than any periodical yet published in New York, Venus’ Miscellany offers a fascinating view of the emergence of indigenous American pornography. It also provides a rich, indeed virtually unparalleled, perspective on the mid-nineteenth-century erotic imagination, a perspective that challenges much of the received wisdom about the history of pornography.[130] Among other things, the paper’s persistent eroticization of female sexual agency calls into question those interpretations that identify the sexual subordination of women as the central convention of Victorian erotic writing.[131]

The most distinctive feature of Venus’ Miscellany, highlighted in the letters to the editor that contained the most graphic sex, was its affirmation of female sexual desire. Significantly, the women of Venus’ Miscellany were never portrayed as prostitutes. Instead, they were valorized as desiring subjects who engaged in sex for their own amusement and pleasure. To be sure, the paper carried a fair number of testimonies from men boasting of their sexual conquests of young virgins. But many more of the letters offered sexual confessions from women. Though one strongly suspects Akarman as the author, the first-person female narration is nonetheless noteworthy, demonstrating a new attention to female subjectivity and women’s control over sexuality in American erotic publishing.[132]

A series of correspondence between “Maria C.” and another married woman is emblematic of this theme.[133] With these letters, Akarman cleverly combined a classic pornographic device, dating back to Aretino’s sixteenth-century Ragionamenti (1534-36), of a dialogue between two women with the modern, democratic tool of reader participation. In the first letter, a woman named “Maria C.” reveals that her “husband has a peculiar taste which he desires me to gratify.”[134] The “peculiar taste” is having his wife tell him whether she has ever been “naughty” with other men. Maria relates that, while reading a “spicy” book together one night (George Thompson’s Amours of Margurite of Burgundy[135]), her husband suddenly urges her to tell him whether she had “enjoyed the delights of love” before their marriage. When she confesses to one affair, he responds enthusiastically. As she recounts:

“[P]resently disrobing me, he smothered me with kisses on every part of my person, and declared it was the most delightful moment he had ever enjoyed with me, nor did he withdraw from the ardor of his embrace till he had three times subdued himself in my arms, all the time whispering the delight he felt and urging me to tell him all about it.”

But should she gratify her husband’s voyeuristic desires by confessing her dalliances since their marriage? Confused, she solicits advice not from the male editor but from other female readers. “If you publish this perhaps some of your readers whose husbands have the same kind of desire, will be able to answer even better than you.”

In answer to Maria’s request, the very next issue brings a response from a married woman who has seen Maria’s letter.[136] Predictably, this woman wholeheartedly endorses Maria’s disclosures to her husband and her adultery too. “Be assured,” she counsels, “that the greater pleasurist your husband finds you, the more he will love you, and the oftener he will take you to his arms.”

Maria’s correspondent then confesses to being an avid “free-lover,” a reference to the free love movement of the 1850s, a middle-class, bohemian cause that opposed marriage and supported sexual relationships rooted in “passional attraction” rather than law.[137] “My husband and I,” she relates, “found out the first night, the true secret of Love. The consequence is, that we are both pleasurists. He enjoys whom he pleases. Perhaps I sometimes wander myself.” One of the pleasures she describes is that she and her husband, primed by reading the latest issue of Venus’ Miscellany, pursue a menage a trois with their female neighbor, Martha, every Saturday night. “Satisfied myself,” the writer explains, “I turn my back.” As she blithely puts it: “Why be jealous and wicked?”

Two months later, Maria writes to inform the editor that she has followed her correspondent’s advice about confessing her affairs to her husband.[138] As a result, she and her husband “now enjoy one continued stream of happiness, heightened to the highest degree by pleasurable conversation, and in the height of ecstasy by softly whispered confessions.” But Maria takes her friend’s advice about “pleasurism” to heart as well, and begins to pursue a torrid relationship with her married female neighbor, “Mrs. S.” Indeed, she reports that she and Mrs. S. “have enjoyed each other’s society twenty times since I last wrote to you.”

Maria further relates that when she confesses the lesbian affair to her husband, he is not angered in the slightest by her betrayal; on the contrary, the revelation throws him into another “ecstasy of delight.” Given his taste for voyeurism, he of course declares “he must be a witness of the scene.” Generously, Maria permits her husband to watch her make love to her neighbor by “peeping through a hole he had made in the door.” She also provides a description of her mutual oral sex with Mrs. S., including a moment that presumably pleased male readers by having her spying husband take her place in bed:

At length, as we had before arranged, I had her in such a position, her back to the door, and our heads and tails somehow so mixed that we were laying at reverse ends, when my husband crept softly in and assisted me in completing the pleasure, without for the moment her becoming aware of it.”

Clearly, these letters were designed both to parody the free love movement and to titillate male audiences with depictions of women making love, a continuing staple of twenty-first century male fantasy.[139] But in the course of providing that parody and that titillation, Venus’ Miscellany also recognized the possibility of sexual desire between women, thereby reproducing and publicizing extant social possibilities and alternative constructions of sexuality.

One obvious question is, were women like Maria purely figments of the male editor’s imagination? Presumably, yes. Akarman clearly believed there was a demand among contemporary male readers for stories that eroticized female sexual agency and male passivity. The paper’s inversion of outward cultural prescriptions for middle-class wives—passionlessness and submissiveness—must have produced a delicious thrill of transgression for middle-class male audiences.

At the same time, though, we should not reject the possibility that some women may have derived sexual pleasure from reading Venus’ Miscellany. Several daily papers expressed horror over the apparent appeal of Venus’ Miscellany to women. As the New York Times remarked: “It is a disgraceful fact, that out of 3,300 subscribers, nearly one half were females. Females also were employed in stitching the sheets of the works and in coloring the plates…. Contributions to the literary content of the paper, in many cases written by females, and of the most obscene description, were also found.”[140]

Moreover, female passionlessness was an ideological aspiration of the bourgeoisie, not a social reality.[141] We can surmise that numerous antebellum women read sexual advice literature and manuals on contraception.[142] In addition, scores of adventuresome middle-class women in New York City attended meetings that openly discussed free love and the perils of sexual monogamy and marriage.[143] More provocatively, Rachel Maines has demonstrated that many middle and upper-class women sought out doctors and spas that offered sexual massages and clitoral hydrotherapy treatments in the mid-nineteenth century.[144] George Thompson salaciously alluded to this practice in his 1849 novel, New-York Life: The Mysteries of Upper Tendom Revealed. He described a particular doctor who developed a flourishing medical practice by attending to the “private parts” of various respectable New York matrons. According to Thompson, the doctor always made “an examination, per vaginam. His ‘daily fingerings,’ when he applies an ointment to his patient’s private parts, assures him a lively business from women who are doctored for no other reason than liking the medicine.”[145]

In all likelihood, when New York’s daily newspapers claimed that half of Venus’ Miscellany’s readers were women, their motives were just as sensationalistic as Thompson’s. But the shock value of attributing a desire for sexual stimulation to women may also have conveyed an unsettling truth—that female readers could use Venus Miscellany’s tales of independent women, depictions of sexual variations, and affirmations of woman’s right to sexual pleasure to forge erotic fantasies of their own.

2. The Origins of the Brown-Covered Wrapper:

Pornography for the American Middle Class

By the time he launched Venus’ Miscellany, Akarman was well aware of the risks and burdens that obscenity law imposed, especially for a paper like his. He published Venus’ Miscellany under an alias, “James Ramerio.” He kept plenty of cash on hand to pay bribes to local authorities who threatened him or his agents with arrest.[146] And he dreamed of escaping the web of obscenity regulation altogether by creating a subscription-only paper that would travel exclusively through the discreet, private medium of the interstate mails.[147]

Akarman’s pathbreaking decision to forego local, street-level commerce in fancy publications like Venus’ Miscellany did not just alter his method of distribution. It also affected the ways in which he edited the paper, ways that dovetailed with his ambition to build a national, middle-class audience for erotic publications. The stylistic effects of Akarman’s desire to circumvent the threat of obscenity prosecutions are best appreciated by comparing Venus’ Miscellany with an earlier breed of sexually titillating periodicals, known as the “flash” press. These newspapers first appeared in New York in the early 1840s and were primarily devoted to chronicling the world of New York prostitution.

A fundamental difference between the flash press and Venus’ Miscellany is a shift in editorial tone from speaking to a particularized metropolitan or at most regional market to addressing a homogeneous, national one. The flash papers catered to a distinctive urban audience and assumed the familiarity of readers with the rowdy New York sporting scene. They offered gritty commentary on local politics, reviews of New York theatrical and sporting events, and detailed information about the location, employees, and cleanliness of various New York brothels. In sharp contrast, Venus’ Miscellany rarely mentioned New York people or places. Indeed, Akarman edited the paper in such a way as to remove it from any particular urban provenance and to position it within a hazier, national setting. His chief strategy for achieving this transcontinental reach was to print raunchy letters to the editor from supposed readers in rural hamlets, small towns, and cities across the United States.

A second difference was that Venus’ Miscellany printed erotic fiction and generic sexual humor rather than salacious gossip. The flash editors had reveled in exposing sexual transgressions among the city’s financial, religious and political elite as well as among their own milieu of urban sportingmen and brothel madams. But Venus’ Miscellany rarely mentioned real-life individuals and almost never printed sexual gossip. Instead, Akarman relied on correspondence from purported readers to provide an air of verisimilitude. In so doing, he both widened his potential audience and reduced the risk that an offended party would press to have him indicted for obscenity, as had often happened to his predecessors in the sporting press.

A third distinction is that, while the flash papers were defiantly low-brow, loud, and vulgar in their appeal, Akarman imagined an audience of readers who were refined, middle or upper-class, and above all inconspicuous. This change was at least in part a product of his legal strategy to steer Venus’ Miscellany away from the type of customers who could buy it from any newsboy on the street and toward the out-of-town subscribers who possessed the financial resources and sophistication to negotiate mail-order subscriptions and purchases. Akarman’s ideal customer was thus one who wished his copy of Venus’ Miscellany to arrive in a post office box concealed in a discreet paper wrapper, not to be “thrust in the face” of passersby in the public streets.[148]

One of Akarman’s most ingenious tactics for reaching a more upscale audience was to develop a new domestic setting for erotic fantasies. Very deliberately, he moved sex out of the street and out of the brothel, which had been the principal subjects of the flash press, and into the newly idealized, middle-class “home.” Historian Christine Stansell has described how the bourgeoisie transformed the traditional household into a “home” in this period: “The ‘home,’ their own term for the domestic setting, had become for them a pillar of civilization, an incubator of morals and family affections, a critical alternative to the harsh and competitive world of trade and politics.”[149] Many of Venus Miscellany’s fictional encounters took place in this recently created haven of safety and affection. In this way, Akarman cleverly appealed to new middle-class tastes by appropriating the accoutrements of bourgeois life as fodder for the sexual fantasies of his desired middle-class audience. Of course, the prevailing ideology of domesticity celebrated the home not only as a source of security and order, but also as the particular sphere of women’s moral power, piety, and virtue.[150] Venus Miscellany’s association of the middle-class home with female sexual license thus made it especially transgressive and, as Akarman presumably hoped, especially exciting to his intended audience.

One of the remarkable things about Akarman’s aspirations for a national, middle-class readership was how well his marketing and editing strategies appear to have worked. Admittedly, it is difficult to know the actual audience for Venus’ Miscellany with any certainty. Akarman claimed the paper had a national circulation of 49,000 readers and newspaper reports following his obscenity arrest in 1857 confirm the broad geographic reach of the paper. They listed subscribers in rural locales like Williamsport Pennsylvania, Bergen New York, Kensington Connecticut, and Lane Station Illinois, small cities like Lexington, Utica, and Wilmington, and major urban centers like Philadelphia and Boston (but not New York).[151] With its flair for the sensational and hyperbolic, the New York Herald claimed that “the persons who buy these things are the leading men of the country—preachers, teachers and guides of the people; members of the national Congress; lights of the pulpit, the bench and the bar; thunderers upon the political rostrum; presidents of councils and caucuses and conventions; [and] directors of banks and insurance offices.”[152]

As for Akarman’s legal strategies, they failed to spare him from arrest when an outraged out-of-town parent whose child had received one of his advertising circulars in the mail demanded that New York officials shut down his business. When the metropolitan police seized the contents of his post office box, they found letters from customers containing “money, postage stamps, orders for The Venus Miscellany, contributions to its columns, and orders for obscene books.”[153] But despite several run-ins with the police and occasional confiscations of his stock, Akarman managed to escape imprisonment throughout his long career. Indeed, for the rest of the 1850s and through the 1860s and early 1870s, he continued to profit from selling erotic publications to the national audience that he had helped to create.[154]

3. Obscenity Law and The Explosion of Racy Representations

Another effect of the construction of an obscenity taboo was to stimulate demand for a distinct style of salacious sensation literature, described in Part III as the “racy,” that self-consciously skirted but did not transgress the boundary of obscenity. In Beneath the American Renaissance, literary scholar David Reynolds has argued that the indirectness that characterized sexual expression in even the most lurid examples of New York’s sensation fiction stemmed from “deep-seated guilt” about sexual desire and the “residual repressiveness of a Puritan conscience.”[155] This guilt, writes Reynolds, “engendered a notably furtive quality in erotic expression, as seen in … the prevalent use of euphemisms like ‘snowy globes.’”[156] One is indeed struck when reading these texts by the wide disparity between the vivid, detailed presentation of violence and the allusive, elliptical presentation of sex and the human body. However, I suggest that the “odd combination of furtive sexuality and unbridled violence”[157] that Reynolds observes in the popular fiction of the 1840s and 50s, rather than expressing puritanical guilt, instead reflected the legal culture in which sensation writers produced their texts and the strategic maneuvering of individuals working in the field of popular entertainment.

For writers and publishers, a crucial feature of late antebellum legal culture was the existence of criminal bans on certain types of sexual representations, especially in explicit form. Even though racy sensation novels were not subject to prosecution in mid-nineteenth-century New York, the genre of the racy was thus strongly informed by the law of obscenity. Indeed, it is no accident that New York publishers like Frederic Brady and George Akarman began to produce large quantities of sexually titillating, racy novels just as “obscenity” was emerging as a category of municipal regulation in their home jurisdiction. This new category of legal regulation provided a symbolic prohibition that stimulated a fascination with sexual representations, a form of desire that publishers of racy books rushed to satisfy in a safe, non-criminal context.

Authors and publishers who operated within the legal culture of antebellum New York quickly learned to manipulate the law of obscenity to their advantage. Thus, George Thompson could well have been the novelist criticized by physician William Sanger for his calculated ability to titillate readers by hinting at sexual disclosure without exposing himself or, more likely, his publisher, to prosecution. In his monumental 1859 work, History of Prostitution, Dr. Sanger blamed “licentious literature” for driving men to brothels and fueling the expansion of prostitution.[158] The chief culprit was not explicit sexual writing, which after all was expensive and relatively scarce, but the widespread dissemination of titillating paperbacks that stopped short of “absolute obscenity.” He singled out one novelist as particularly dangerous. Like Thompson, this sly author “writes in a strain eminently calculated to excite the passions, but so carefully guarded as to avoid absolute obscenity, and embellishes his works with wood cuts, which approach lasciviousness as nearly as possible without being indictable.”[159]

Thompson was particularly adept at invoking the law of obscenity in order to invest his tales with an aura of illicit excitement. One of his favorite stylistic devices was to draw attention to a sexual scene and then abruptly “draw the curtain” or “draw the veil.” He often attributed such restraint to a desire to avoid censure by authorities and, presumably, legal censorship. In a typical passage from one of his novels, Thompson begins to describe a dinner party served by naked adolescents that turns into an orgy between the teenagers and the adult guests, a scene he claims has actually taken place in New York. Just as the sexual action takes off, Thompson pulls back: “Our ready pen longs—yea, longs to glide off into the most delicious details…But Society, like a grim and harsh pedagogue, flourishes its rattan of censure above our devoted pate, and talks of ‘morality,’ and propriety.”[160] Thompson’s calculated omission of explicit sexual acts only heightened the prurience of his plots and invested the point at which he “drew the curtain” or “drew the veil” with extra frisson. In so doing, he also fetishized the perceived boundary between the “obscene” and the non-“obscene,” as evidenced by the prolonged leering at partially clothed women, exposed cleavages, and the like that runs throughout his work.

Sensation novelists like Thompson thus sought to profit from the distinction between those merely suggestive or racy works that “excite[d] the passions” by flirting with obscenity and those works, to use Sanger’s words, of “absolute obscenity” that were frequent targets of indictment. At a basic level, authors and publishers of racy books employed literary indirection because doing so spared them from the threat of prosecution.[161] And they more than made up for what they could not show in terms of sex with exceedingly graphic portrayals of violence, which were not considered legally “obscene.”

But deference to the obscenity taboo also offered the benefit of stimulating general interest in commercial sexual representations, enhancing the appeal of sensation novels that approached but did not transgress the legally constructed boundary of the “obscene.”[162] At the same time, by inscribing the prohibition on explicit representations of sex in their writing, racy authors invited its violation in illegal fancy books produced by the same men who marketed racy paperbacks.[163]

Thus, once again, we see that legal regulation of obscenity had the paradoxical effect of expanding the universe of sexual representations available for public consumption. By inciting the production of the racy as well as the fancy, the obscenity taboo dramatically increased the sheer volume of sexual discourse that was commercially available in the antebellum city. To give just one example, the Tribune reported that during the raid on Akarman’s establishment in 1857, the police found only “several dozens of volumes of the most obscene and filthy stuff that ever disgraced language, with illustrations to match,” but “several thousand specimens of yellow-covered literature.”[164] Similarly, Akarman estimated his ratio of “humble pamphlets” of racy fiction that circulated freely to those bound books that were “in opposition to law” at nearly 20:1.[165]

Sensation novels also multiplied the types of sexual practices that were represented in antebellum culture. At their most tame, racy books re-worked and re-presented the once scandalous subjects of the 1840s flash press—prostitution, sex crimes, the misdeeds of the rich and powerful – but made them more palatable by coating them with a veneer of fiction. At other times, sensation novels thematized subjects that were understood as far more transgressive than prostitution. While eliding the description of actual sex acts, racy novels therefore reproduced sexual possibilities that were at least as provocative as those in the books that prosecutors typically regarded as obscene. And they did so in a relatively democratic, inexpensive medium that was available to a mass audience.[166] Thus, the interdiction on “obscene” speech did little to enforce order or improve the morals of the metropolitan community; rather than limit “indecent” sexual expression, it encouraged the circulation of risqué sensation fiction that permeated antebellum culture with a multiplicity of “licentious” representations.

C. Censorship and Publicity

Several episodes from mid-nineteenth-century New York capture the ways in which obscenity prosecutions promoted commerce in sexual speech and produced more, rather than less, of what authorities considered “obscene.” The first is a relatively routine, even mundane notice from a popular tabloid paper in 1855 reporting an arrest for the sale of “obscene books”:

“OBSCENE BOOKS.—James Tivner, of 68 Centre Street, made an affidavit before Judge Osborne, on Thursday last, setting forth that he had called at the store of one John Atcheson, 76 Nassau street, and purchased a book called “The Mysteries of Venus; Or, The Amatory Life and Adventures of Miss Kitty Pry,” and that he believes that the sale and circulation of such books have a demoralizing tendency, as they are of a highly immodest character…The collection of books and prints seized were presented at the office of the Mayor. They were of the most beastly and revolting nature. There are other shops of the kind in the city, which we hope may soon be similarly visited. Such panders to the most degrading of vices, should be severely punished.”[167]

A couple of points about this item stand out. First, even though the paper in which it appeared had a reputation for tawdry and immoral content, it endorsed obscenity prosecutions by egging on severe punishment for the sale of books of “an immodest character.” Second, it disclosed the address of the bookseller and the title of the allegedly “beastly and revolting” book, providing curious readers with knowledge about the forbidden literature and precisely where to purchase it.

It is a truism of modern communications that censorship creates free advertising for the suppressed expression, boosting publicity and circulation far beyond what it otherwise would have had. What is noteworthy is how swiftly pioneers of sexual expression in the antebellum United States grasped the positive relationship between censorship and publicity. From the very beginning, authors and publishers who were charged with obscenity learned to make strategic use of the notoriety that such prosecutions generated.

Consider the experience of the popular health reformer and sexual science advocate, Frederick Hollick. As noted in Part III, Hollick was arrested for selling copies of The Origin of Life, a collection of his lectures on human anatomy, sexual happiness in marriage, reproduction, and contraception, in Philadelphia in 1846. At his subsequent obscenity trial, the court required Hollick to post $1,000 in security that he would not sell his book in that city pending continuation of the trial and admonished that if Hollick’s lectures “contain language as low and obscene as some that is found in his book[,] he had better suspend them for the present.”[168]

Despite this defeat in the courtroom, the enterprising Hollick soon triumphed over his would-be censors. Rather than stand trial again in Philadelphia, Hollick skipped out on his bail and relocated his headquarters to the more welcoming legal and publishing environment of New York City.[169] In the tenth edition of The Origin of Life published in 1846, Hollick proclaimed: “I am happy to state, that, during this persecution, my practice has been more extensive than before, and that it is still on the increase. I am now preparing to resume my lectures, at the proper season, and I have also written and published some new scientific works—for the million!”[170] Hollick later characterized his obscenity prosecution in Philadelphia as “an absurd and bungling attempt” that “not only failed, most completely,” but also “increased the popularity of both books and lectures by a hundred fold, while the would-be monopolists of knowledge became truly pitiable objects of public scorn and contempt.”[171]

Nor did the capacity of sexual censorship to promote the very object it sought to suppress escape the notice of antebellum commentators. Indeed, the most widely expressed objection to obscenity regulation (far more than concerns about restrictions on freedom of speech or freedom of the press) was the fear that such prosecutions only served to publicize the evils they were ostensibly intended to eradicate. By the 1850s, critics began to question the propriety of the city’s methods for condemning “obscene” texts, given the tremendous publicity that dramatic arrests, noisy police raids, book burnings, and the like generated for the alleged wrongdoers. As demonstrated by the above item in the Sunday Atlas, enforcement of obscenity laws almost always gave notoriety to the publishers being prosecuted and provided the curious with a guide to forbidden works.[172] Moreover, observers readily grasped the close connections between prosecuting “obscenity” and the “natural effect” such actions had in exciting interest in “obscene” literature. Writing in 1857, on the heels of a raid on Akarman’s publishing firm, the New York Herald concluded that it was an “open question” whether obscenity prosecutions were “of any particular benefit to public morals,” especially since the “natural effect of the seizure[s] will be to whet…bad appetites, instead of destroying them.”[173]

CONCLUSION

By mobilizing the doctrine of obscenity to suppress sexual speech and protect public morals, New York authorities ironically stimulated, rather than suppressed, the proliferation of transgressive sexual representations. The strategic agency of publishers in seeking to outmaneuver local forms of obscenity regulation was especially critical to this dynamic. As publishers increasingly oriented their marketing and distribution techniques toward the mail and mail-order purchases in order to evade local prosecutions, they helped to create a national, middle-class audience of readers who discreetly consumed pornography in the privacy of their homes. They also learned to manipulate the taboo on “obscene” speech in order to incite popular interest in erotic representations. One striking effect of the legal proscription on portrayals of female lust was the creation of a new type of fancy periodical that specialized in female sexual subjectivity and circulated exclusively through interstate commerce. Another was the production of a huge body of violent, racy “almost porn” that self-consciously skirted the perceived border of “obscenity.” Finally, the first generation of American publishers to confront obscenity regulation quickly devised ways to exploit the publicity that followed from prosecution in order to heighten the allure of censored publications and to increase their circulation.

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[1] Sixty Minutes: Porn in the U.S.A. (CBS television broadcast, Nov. 21, 2003, reprinted at ) [hereinafter Porn in the U.S.A.] (“It is estimated that Americans now spend somewhere around $10 billion a year on adult entertainment, which is as much as they spend attending professional sporting events, buying music or going out to the movies”).

[2] For some of the best scholarship, see THE INVENTION OF PORNOGRAPHY: OBSCENITY AND THE ORIGINS OF MODERNITY, 1500-1800 (Lynn Hunt, ed. 1996); ROBERT DARNTON, THE LITERARY UNDERGROUND OF THE OLD REGIME (1982); ROBERT DARNTON, THE FORBIDDEN BESTSELLERS OF PRE-REVOLUTIONARY FRANCE (1995); IAIN MCCALMAN, RADICAL UNDERWORLD: PROPHETS, REVOLUTIONARIES AND PORNOGRAPHERS IN LONDON, 1795-1840 (1993); LYNDA NEAD, VICTORIAN BABYLON: PEOPLE, STREETS AND IMAGES IN NINETEENTH-CENTURY LONDON (2000); LISA Z. SIGEL, GOVERNING PLEASURES: PORNOGRAPHY AND SOCIAL CHANGE IN ENGLAND, 1815-1914 (2002).

[3] The official title of this Act was An Act for the Suppression of Trade in and Circulation of Obscene Literature and Articles of Immoral Use. 17 STATUTES AT LARGE 598 (1873) [hereinafter Comstock Act]. Its popular name reflects the critical lobbying role played by America’s most famous and aggressive censor, Anthony Comstock, in securing passage of the Act and his nearly forty-year tenure as a special agent of the Post Office overseeing its enforcement. For valuable studies of Comstock, see NICOLA KAY BEISEL, IMPERILED INNOCENTS: ANTHONY COMSTOCK AND FAMILY REPRODUCTION IN AMERICA (1997); PAUL S. BOYER, PURITY IN PRINT: BOOK CENSORSHIP IN AMERICA FROM THE GILDED AGE TO THE COMPUTER AGE (2002). See also an insightful early biography, HEYWOOD BROUN & MARGARET LEECH, ANTHONY COMSTOCK: ROUNDSMAN OF THE LORD (1927). For examples of the legal literature’s reliance on a handful of appellate decisions and statutes for obscenity regulation in the pre-Comstock era, see, e.g., EDWARD DE GRAZIA, CENSORSHIP LANDMARKS (1969); MORRIS L. ERNST & ALAN U. SCHWARTZ, CENSORSHIP: THE SEARCH FOR THE OBSCENE (1964); MARJORIE HEINS, NOT IN FRONT OF THE CHILDREN: “INDECENCY,” CENSORSHIP, AND THE INNOCENCE OF YOUTH (2000); JAMES C. N. PAUL & MURRAY L. SCHWARTZ, FEDERAL CENSORSHIP: OBSCENITY IN THE MAIL (1961); FREDERICK F. SCHAUER, THE LAW OF OBSCENITY (1976). A recent work of cultural history about nineteenth-century struggles over sexual speech has helped to fill in the gaps in our knowledge about pre-Comstock America. See HELEN LEFKOWITZ HOROWITZ, REREADING SEX: BATTLES OVER SEXUAL KNOWLEDGE AND SUPPRESSION IN NINETEENTH-CENTURY AMERICA (2002). But this work does not address the project of this paper: an analysis of the operation and consequences of early forms of obscenity regulation and an in-depth consideration of the ways in which obscenity prosecutions paradoxically promoted commerce in sexual representations.

[4] In this respect, this paper challenges recent interpretations of nineteenth-century morals regulation offered by several legal historians, especially William Novak and Herbert Hovenkamp. See WILLIAM J. NOVAK, THE PEOPLE’S WELFARE: LAW AND REGULATION IN NINETEENTH-CENTURY AMERICA 149-189 (1996) (characterizing infringements on individual liberties in the name of protecting public morality as an “easy case”); Herbert Hovenkamp, Law and Morals in Classical Legal Thought, 82 IOWA L. REV. 1427 (1997) (arguing that there was widespread support for extensive morals regulation in nineteenth-century America). By drawing exclusively on legal doctrine or on the language of statutes, these works have inaccurately portrayed antebellum morals regulation as a widely accepted structure of authority. The People’s Welfare, for instance, relies for sources principally on the formal language of state statutes and municipal ordinances, supplemented by the uninterrogated pronouncements of elite lawyers who wrote appellate cases and compiled treatises on various areas of legal doctrine, such as criminal law and nuisance law. As a result, it largely neglects to explore whether the law “on the books” was actually enforced or the degree of popular resistance to morals regulation. See Harry N. Scheiber, Private Rights and Public Power: American Law, Capitalism, and the Republican Polity in Nineteenth-Century America, 107 YALE. L.J. 823 (1997) (book review) (pointing out the need for historians to investigate enforcement of laws cited by Novak).

[5] The Court of General Sessions had jurisdiction over felonies and all other indictable offenses except for capital crimes. Mike McConville & Chester Mirsky, The Rise of Guilty Pleas: New York, 1800-1865, 22 J. L. & SOC’Y 443, 443 (1995).

[6] On the construction of national communities of readers (outside the context of pornography) and the importance of imaginatively shared reading practices to modern nationalism, see BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND SPREAD OF NATIONALISM (1983).

[7] For contemporary scholarship on the unintended cultural consequences of modern legal regulation, see, e.g., Richard H. Pildes, The Unintended Cultural Consequences of Public Policy: A Comment on the Symposium, 89 MICH. L. REV. 936, 937-38 (1991); Cass R. Sunstein, Paradoxes of the Regulatory State, 57 U. CHI. L. REV. 407, 412-29 (1990); Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN L. REV. 247, 261-62 (1996).

[8] Between 1830 and 1860 the city’s population quadrupled; between 1850 and 1860 alone it expanded from 515,000 to 813,000. Population of the 100 Largest Cities and Other Urban Places in the United States: 1790-1990, U.S. Bureau of the Census at . A major factor in this population increase was the entry of immense numbers of immigrants. By 1855, nearly thirty percent of city residents had been born in Ireland and another fifteen percent in Germany. The vast majority of these immigrants had lived in the city only a short period, arriving since 1845. Economic production took pace at a similarly dizzying pace. See generally AMY BRIDGES, A CITY IN THE REPUBLIC: ANTEBELLUM NEW YORK AND THE ORIGINS OF MACHINE POLITICS (1984).

[9] EDWARD K. SPANN, THE NEW METROPOLIS: NEW YORK CITY, 1840-1857 313 (1981); see also BRIDGES, supra note 8, at 39 (“New York was the commercial, financial, and by 1860 the industrial center of the union, extending its tentacles of trade over its continental hinterland and in the process becoming the economic center of a fledgling world power”).

[10] On New York’s preeminence in book publishing, see RONALD ZBORAY, A FICTIVE PEOPLE: ANTEBELLUM ECONOMIC DEVELOPMENT AND THE AMERICAN READING PUBLIC (1993). By 1856, New York City publishers produced nearly forty percent of the total dollar value of all American-made books. Id. at 12. On New York’s preeminence in newspaper publishing, see DAN SCHILLER, OBJECTIVITY AND THE NEWS: THE PUBLIC AND THE RISE OF COMMERCIAL JOURNALISM (1981); MICHAEL SCHUDSON, DISCOVERING THE NEWS: A SOCIAL HISTORY OF AMERICAN NEWSPAPERS (1981).

[11] See, e.g., entry for “Obscenity” in AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (Noah Webster, ed., 1844). In this Paper, I use the term “obscenity” to denote how legal actors applied the doctrine of obscenity to a particular social context, specifically to the book publishing trade in antebellum New York, rather than in the broad sense described by Webster, in which “obscenity” is a synonym for any form of impurity.

[12] Entry for “Pornography,” AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1864). This dual meaning of “pornography”—denoting both sexually explicit Roman frescoes and scientific, reform-minded treatments of prostitution—followed mid-nineteenth-century British usage. In The Secret Museum, Walter Kendrick argues that English curators and cataloguers coined versions of the term “pornography” around the middle of the nineteenth century to describe the sexually explicit paintings found on the walls of Pompeii. In particular, “pornographer” first appeared in English in 1850, in an art history book on ancient artifacts such as those excavated at Pompeii. In that work, the appellation “pornographer,” literally translated from the Greek pornographoi, meant painters of prostitutes. At almost exactly the same time, historians of prostitution began to use the term “pornographer” to refer both to ancient painters who depicted prostitutes for decorative and erotic purposes and to ancient writers who discussed prostitution in a scholarly fashion. For the first usage of “pornography” in the English language, the Oxford English Dictionary cites an 1857 medical dictionary, where it was defined as “a description of prostitutes or of prostitution, as a matter of public hygiene.” For more on the etymology of “pornography” in England, see WALTER KENDRICK, THE SECRET MUSEUM: PORNOGRAPHY IN MODERN CULTURE 1-32 (1987).

[13] Joan Hoff, Why Is There No History of Pornography? in FOR ADULT USERS ONLY: THE DILEMMA OF VIOLENT PORNOGRAPHY 39 (Susan Gubar & Joan Hoff, eds., 1989). By then, “pornography” as a reference to medical descriptions of prostitutes had slipped to second place. Id.

[14] PETER WAGNER, EROS REVIVED: EROTICA OF THE ENLIGHTENMENT IN ENGLAND AND AMERICA 7 (1988).

[15] People v. Ruggles, 8 Johns. 290 (1811).

[16] People v. Ruggles, 8 Johns. at 297. In upholding Ruggles’ blasphemy conviction, Kent affirmed the validity of a seventeenth-century English precedent that established Christianity as part of the common law, Rex v. Taylor, 1 Vent. 293 (1676). For a more extensive discussion of the Ruggles case, see LEONARD W. LEVY, BLASPHEMY: VERBAL OFFENSE AGAINST THE SACRED, FROM MOSES TO SALMAN RUSHDIE (1993); Sarah Barringer Gordon, Blasphemy and the Law of Religious Liberty in Nineteenth-Century America, 52 AMERICAN QUARTERLY 682 (2000) [hereinafter Gordon, Blasphemy]; Robert C. Post, Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment, 76 CAL L. REV. 297 (1988).

[17] The distinction between liberty and license was central to eighteenth-century political thought, especially civic republicanism, and deeply influenced American political and constitutional theory throughout the eighteenth and nineteenth centuries. For further discussion of the importance of this distinction to antebellum jurisprudence in the context of the crime of blasphemy, see Gordon, Blasphemy, supra note 16. See also Norman Rosenberg, PROTECTING THE BEST MEN: AN INTEPRETIVE HISTORY OF THE LAW OF LIBEL (1986) (on importance of the liberty-license opposition in nineteenth-century libel law); GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787 23 (1998) (discussing meaning of license in eighteenth-century republican theory); Sarah Barringer Gordon, “The Liberty of Self-Degradation”: Polygamy, Woman Suffrage, and Consent in Nineteenth-Century America, 87 J. AMERICAN HISTORY 815, 817-23 (1996) (discussing distinction between liberty and licentiousness).

[18] Obscenity was the last form of libel to emerge as a common-law crime in England. Rex v. Curll (1727) 2 Str. 788. The others were individual libel, seditious libel, and blasphemous libel. Colin Manchester, A History of the Crime of Obscene Libel, 12 J. OF LEG. HIS. 36 (1991). The early American cases were Commonwealth v. Sharpless, 1 S. & R. (Pa.) 91 (1815), and Commonwealth v. Holmes, 17 Mass. 335 (1821), both reprinted in DE GRAZIA, CENSORSHIP LANDMARKS, at 35-41.

[19] FRANCIS LUDLOW HOLT, THE LAW OF LIBEL 73 (1816).

[20] THOMAS STARKIE, II A TREATISE ON THE LAW OF SLANDER AND LIBEL 155 (1813).

[21] Commonwealth v. Sharpless, reprinted in DE GRAZIA, CENSORSHIP LANDMARKS, at 38. In the Sharpless case, six men from Philadelphia were charged with exhibiting “a certain lewd, wicked, scandalous, infamous, and obscene painting, representing a man in an obscene, impudent, and indecent posture with a woman” for money. Id. at 35.

[22] On the broad doctrinal support for legal suppression of immorality in nineteenth-century America, see generally NOVAK, supra note 4, at 149-89 (1996). On the “bad tendency” test and its widespread use by nineteenth-century jurists to punish many kinds of purportedly dangerous speech, see DAVID M. RABBAN, FREE SPEECH IN ITS FORGOTTEN YEARS (1997).

[23] WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND: A FACSIMILE OF THE FIRST EDITION OF 1757-1769 4:167 (1979).

[24] Knowles v. State of Conn., 3 Day 103 (1808).

[25] The municipality’s lack of interest in prosecuting obscenity before 1840 presents a picture of morals enforcement that is quite at odds with the portrait of extensive regulation that William Novak depicts. See NOVAK, supra note 4, at 149-89.

[26] For the period relevant to this study, the borders of New York County were equivalent to present-day Manhattan.

[27] See People v. Joseph Bonfanti, June 9, 1824 (obscene libel); People v. Joseph McLelland, June 9, 1824 (obscene libel). All references to prosecutions in New York are to the manuscript District Attorney Indictment Papers for the New York County Court of General Sessions [hereinafter CGS Indictment Papers or Indictment Papers, CGS], which are held in the New York City Municipal Archives and Record Center in New York, New York.

[28] The 1834 indictment is missing from the CGS Indictment Papers, but it is recorded in the Minutes of the Court of General Sessions [hereinafter CGS Minutes], May 17, 1834, at 153. The CGS Minutes are held in the New York City Municipal Archives and Record Center in New York, New York.

[29] See Table 1 in the Appendix. Typically, the case file for each prosecution contains an initial complaint from a citizen or a police officer filed in a police court, a record of bail, a referral from the police court to the district attorney’s office for presentment of the complaint to the grand jury of the Court of General Sessions, and an indictment listing the charges, as well as the names and addresses of witnesses to be called at trial before the Court of General Sessions. Occasionally, the records are more complete, offering a wealth of evidence in the form of witness testimony or exhibits containing the allegedly obscene material.

[30] Outcomes were the most difficult category to determine. Sometimes the clerk of the Court of General Sessions would note the result on the cover page of the indictment. Other times the outcome could be found in the CGS Minutes, which contained a day-by-day log of court activity. Police reports in daily newspapers were also useful. Other times, however, cases were never pursued after indictment, leaving no record of a formal conclusion to the proceeding.

[31] In 1842, for instance, the arrest of one street peddler, Edward Scofield, led to the arrest of three bookstand operators and two bookstore proprietors who had furnished him with books and prints. See People v. Francis Kerrigan, Sept. 28, 1842; People v. Cornelius Ryan, Sept. 28, 1842; People v. Hiram Cure, Sept. 28, 1842; People v. James Jones, Sept. 28, 1842; People v. Charles Heustis, Sept. 28, 1842; People v. William Bradley, Sept. 28, 1842 (all in Indictment Papers, CGS).

[32] For example, the arrest of the storeowners in the Scofield case led to the indictments of publishers Richard Hobbes and Henry R. Robinson in 1842. See People v. Richard Hobbes, Sept. 28, 1842; People v. Henry R. Robinson, Sept. 28, 1842 (both in Indictment Papers, CGS). In 1853, the arrest of bookstore owner William Gazeley led to the indictment of a particularly notorious pornographer, William Haynes. See People v. Albert Gazeley, Sept. 22, 1853; People v. William Haynes, Oct. 18, 1853 (both in Indictment Papers, CGS)

[33] See Table 1 in the Appendix. Contemporaneous cases involving “obscene” newspapers are treated separately in my forthcoming dissertation, “Sexual Speech and Obscenity Regulation in New York, 1825-1875,” chapters 2-3.

[34] See Table 1 in the Appendix.

[35] Years later, an undercover agent for the New York Society for the Suppression of Vice used this meaning of the term “fancy” when he asked a target of an investigation: “Those pictures you have exhibited are well enough, but can’t you get something for us a little ‘stronger’ or more fancy?” D. M. BENNETT, ANTHONY COMSTOCK: HIS CAREET OF CRUELTY AND CRIME 1047 (1971)(1878).

[36] This figure represents Peter Wagner’s count. See Peter Wagner, Introduction to FANNY HILL OR MEMOIRS OF A WOMAN OF PLEASURE at 28 (Peter Wagner, ed. 1985) [hereinafter FANNY HILL]. It was not until 1964 that the New York Court of Appeals declared that Fanny Hill was not obscene and could therefore be sold legally in New York. See People v. Bookcase, Inc, 201 N.E.2d 14 (N.Y. 1964).

[37] In a typical passage from one charge, the forbidden books were said to contain “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.” See People v. Richard Hobbes, Sept. 28, 1842 (Indictment Papers, CGS).

[38] The literature on sexual difference, domesticity, and bourgeois class formation is extensive. See especially NANCY F. COTT, THE BONDS OF WOMANHOOD: “WOMAN’S SPHERE IN NEW ENGLAND, 1780-1835 (1997) [hereinafter COTT, BONDS OF WOMANHOOD]; BARBARA LESLIE EPSTEIN, THE POLITICS OF DOMESTICITY: WOMEN, EVANGELISM AND TEMPERANCE IN NINETEENTH-CENTURY AMERICA (1981); KATHARYN KISH SCLAR, CATHARINE BEECHER: A STUDY IN AMERICAN DOMESTICITY (1973); Passionlessness: An Interpretation of Victorian Sexual Ideology, 1790-1850, 4 SIGNS 219 (1978) (arguing that evangelical women devised ideology of female passionlessness in order to elevate cultural status of bourgeois women in antebellum America) [hereinafter Cott, Passionlessness].

[39] People v. Richard Hobbes, Sept. 28, 1842; People v. Henry R. Robinson, Sept. 28, 1842 (both in Indictment Papers, CGS). Along with the two publishers, the same grand jury presented indictments against five print shop owners and bookstand operators whom the publishers had supplied on charges of “Obscene Books.” See People v. Francis Kerrigan, Sept. 28, 1842; People v. Cornelius Ryan, Sept. 28, 1842; People v. Hiram Cure, Sept. 28, 1842; People v. James Jones, Sept. 28, 1842; People v. Charles Heustis, Sept. 28, 1842; People v. William Bradley, Sept. 28, 1842 (all in Indictment Papers, CGS).

[40] People v. Richard Hobbes, Sept. 28, 1842 (Indictment Papers, CGS). The original edition of Memoirs of a Woman of Pleasure also contained a famous description of anal intercourse between men, but this scene was apparently excised from most copies sold in the nineteenth century. Lisa Z. Sigel, GOVERNING PLEASURES: PORNOGRAPHY AND SOCIAL CHANGE IN ENGLAND, 1815-1914 31 (2002).

[41] People v. Richard Hobbes, Sept. 28, 1842 (Indictment Papers, CGS). The quoted passage can be found in FANNY HILL, supra note 36, at 67. The second passage, plucked from Fanny’s extensive description of an orgy among four couples in volume two, ended abruptly in mid-sentence: “And as he kissed, he gently inclined his head, till it fell back on a pillow disposed to receive it, and leaning himself down all the way with her, at once countenanced and endeared her fall to her. There, as if he had guessed our wishes, or meant to gratify at once his pride in being the master, by title of present possession, of beauties delicate beyond imagination—” It was surely no accident that the district attorney truncated this passage right before the moment of revelation, with the man’s “discovery” of the woman’s breasts. As the sentence continued in Cleland’s original, “he discovered her breasts to his own touch and common view.” Id. at 152. The final selection, though intended as comedy, was the most explicit. While working at a “refined” brothel for rich gentlemen, Fanny has become frustrated with her clients’ increasingly elaborate sexual fetishes (her last customer had been obsessed with deflowering virgins) and offers herself free of charge to a sailor in a public house. When the sailor attempts anal intercourse, she at first protests. To her complaint he replies, “Any port in a storm.” See People v. Richard Hobbes, Sept. 28, 1842 (Indictment Papers, CGS); FANNY HILL, supra note 36, at 178. Many of the indictments against the other defendants charged with selling obscene books in 1842 repeat the three passages from Fanny Hill quoted in the Hobbes indictment. See People v. Francis Kerrigan, Sept. 28, 1848; People v. Francis Kerrigan, Sept. 28, 1848; People v. Hiram Cure, Sept. 28, 1848; People v. William Bradley, Sept. 28, 1848(all in Indictment Papers, CGS).

[42] In eighteenth and nineteenth-century pornography, “cyprian” was a common term for prostitute. To my knowledge, no copies of this work survive.

[43] An edition put out by London publisher William Dugdale carried this bawdy notation on the title page: “London: Printed by STROKEALL & CO., Ten Inches up Red Lane, Maidenhead, Sportsman’s Square.” See Peter Mendes, CLANDESTINE EROTIC FICTION, at 80-81.

[44] The exclusion of “obscene” materials in order to preserve the “chastity” of court records was a recognized exception to the requirement that indictments specify the nature of the offensive language or conduct with precision. For this exception, see Commonwealth v. Holmes, 17 Mass. 335 (1821).

[45] A London copy of The Curtain Drawn Up, or The Education of Laura is held at the Kinsey Institute in Bloomington, Indiana. The title page indicates it was translated “From the French of the Comte Mirabeau” and published in 1818. The place of publication was bawdily described as “London Putitin, Rogers and Co., Nineinch Street.”

[46] People v. James Jones, Sept. 28, 1842; People v. Charles Heustis, Sept. 28, 1842 (both in Indictment Papers, CGS).

[47] A third excerpt depicted a ménage a trois between two women and a man that featured a graphic description of a sexually assertive older woman masturbating a man to climax. Id.

[48] Id.

[49] People v. Henry R. Robinson, Sept. 28, 1842 (Indictment Papers, CGS).

[50] Id.

[51] Nearly three decades later, Anthony Comstock’s first round-up of New York pornography dealers for obscenity involved the sale of two of these titles: The Curtain Drawn Up and The Confessions of a Voluptuous Young Lady of High Rank. See People v. James McDermott, March 14, 1872 and People v. William Brooks and Charles Brooks, March 14, 1872 (both in Indictment Papers, CGS).

[52] A copy of The Secret Habits of the Female Sex published by H. S. G. Smith & Co. of New York in 1848 is held in the collection of the Kinsey Institute Library in Bloomington, Indiana. Another copy, published in New York by J.H. Farrell, is held at the American Antiquarian Society in Worcester, Massachusetts.

[53] The practice of marketing didactic anti-masturbation tracts as vehicles for sexual titillation dated back at least to the beginning of the eighteenth century in England, when notorious publishers like Edmund Curll, “one of the tsars of early eighteenth-century English pornography,” produced Onania, or The Heinous Sin of Self-Pollution, and All Its Frightful Consequences in Both Sexes Considered (1708). See WAGNER, supra note 14, at 6, 23. See also THOMAS LAQUEUR, SOLITARY SEX (2003).

[54] Copies of The Secret Habits of the Female Sex sold in New York may also have contained objectionable illustrations. For instance, the 1848 edition published by H. S. G. Smith & Co. presented an engraving of a naked, nubile young woman as its frontispiece.

[55] On The Exquisite, see SIGEL, supra note 40, at 45-48.

[56] All but two of the fifteen books condemned as obscene in 1850s New York originated in either England or France.

[57] People v. Joseph Bonfanti, June 9, 1824 (Indictment Papers, CGS). Information about Bonfanti’s store comes from People v. Levi Fitcher, Nov. 7, 1826 and People v. William Greenough, Sept. 11, 1828 (both in Indictment Papers, CGS).

[58] For conversion tables, see . See also ZBORAY, supra note 10, at 11.

[59] Id. at 11 (“However economically secure, skilled white male workers made only about $1 a day; women often made a quarter of that…. Even most paperbacks stood outside the reach of workers”).

[60] People v. George Ackerman, Sept. 25, 1857 (Indictment Papers, CGS).

[61] See id. (“Prices for hardcover books during the antebellum years commonly ranged between 75 cents and $1.25, about half that of the late eighteenth century”).

[62] See generally Kimberly R. Gladman, Upper Tens and Lower Millions: City Mysteries Fiction and Class in the Mid-Nineteenth Century (Ph.D. dissertation, New York University, 2001) (discussing European sources of sensation literature).

[63] Satanic Literature, 2 NATIONAL MAGAZINE 25 (1853).

[64] MICHAEL DENNING, MECHANIC ACCENTS: DIME NOVELS AND WORKING-CLASS CULTURE IN AMERICA 85 (1998).

[65] DAVID S. REYNOLDS, BENEATH THE AMERICAN RENAISSANCE: THE SUBVERSIVE IMAGINATION IN THE AGE OF EMERSON AND MELVILLE 212 (1988) (“The distinguishing feature of the American erotic writing of the 1840s was its unique combination of prurient sexuality and grisly gore”).

[66] Id. at 223.

[67] Christopher Looby, George Thompson’s “Romance of the Real”: Transgression and Taboo in American Sensation Fiction, 65 AMERICAN LITERATURE 651 (1993); Joseph Ridgely, George Lippard’s The Quaker City: The World of the American Porno-Gothic, 7 STUDIES IN LITERARY IMAGINATION 77 (1974) (coining term “Amerian porno-gothic”). A sub-genre of “American porno-gothic” literature focused on the secrets and horrors of urban life, especially in major centers like New York City. Scholars generally refer to these mid-nineteenth-century American novels as “city mysteries.” On city mysteries in Europe and America, see generally Gladman, supra note 62.

[68] David S. Reynolds & Kimberly R. Gladman, Introduction to VENUS IN BOSTON AND OTHER TALES OF NINETEENTH-CENTURY CITY LIFE, at xi-xii (David S. Reynolds & Kimberly R. Gladman, eds., 2002).

[69] According to his autobiography, Thompson was born in New York in 1823. George Thompson, MY LIFE: OR THE ADVENTURES OF GEO. THOMPSON (1854), reprinted in Reynolds & Gladman, supra note 68, at 315. For a full discussion of Thompson’s life and work, see id. at ix-liv. See also REYNOLDS, BENEATH THE AMERICAN RENAISSANCE, at 219-224.

[70] Literary scholars have vigorously debated the political implications of Thompson’s fiction. David Reynolds has interpreted Thompson’s novels as politically oppositional and subversive. See id. at 211-224. In contrast, Christopher Looby has argued that they performed a reactionary function by channeling political opposition into voyeurism and by reaffirming the value of bourgeois domestic ideology while pretending to critique it. See Looby, supra note 67, at 680-85.

[71] HENRY SPENCER ASHBEE, BIBLIOGRAPHY OF PROHIBITED BOOKS 218 (1962) (1880); Reynolds & Gladman, supra note 68, at xi-xii.

[72] Editorial Salutation, THE WEEKLY WHIP, Feb. 12, 1855, at 1 (“our own peculiar style”).

[73] For example, in one of Thompson’s bestselling novels, City Crimes, a wife “becomes so bored and sexually frustrated by her proper husband, whom she calls a ‘canting religionist’ always ‘discoursing upon the pleasures of the domestic circle, and such humbugs,’ that she arranges with her daughter Josephine to have him killed so they can lead a life of shameless promiscuity.” Reynolds & Gladman, supra note 68, at xxxv.

[74] Reynolds & Gladman, supra note 68, at xliv (quoting HARRY GLINDON, OR THE MAN OF MANY CRIMES: A STARTLING NARRATIVE OF THE CAREER OF A DESPERATE VILLAIN 15 (1854)).

[75] Id. at xi.

[76] Lynn Hunt, Introduction: Obscenity and the Origins of Modernity, 1500-1800 to THE INVENTION OF PORNOGRAPHY.

[77] Reynolds & Gladman, supra note 68, at xxxvii.

[78] Indeed, Karen Halttunen has argued that the sadomasochistic tendencies of American sensation fiction arose precisely because middle-class reformers, such as anti-slavery advocates, were developing new humanitarian sensibilities that made representation of pain immoral and revolting. In this sense, the grotesque violence featured in racy novels flew in the face of all that moral reformers were trying to achieve. See KAREN HALTTUNEN, MURDER MOST FOUL: THE KILLER AND THE AMERICAN GOTHIC IMAGINATION 60-90 (1998).

[79] Reynolds & Gladman, supra note 68, at xxvi (quoting CONFESSIONS AND EXPERIENCE OF A NOVEL READER 11 (1855)).

[80] Anthony Comstock, Vampire Literature, CLIII NORTH AM. REV. 160 (1891).

[81] LAMBERT A. WILMER, OUR PRESS GANG: OR, A COMPLETE EXPOSITION OF THE CORRUPTIONS AND CRIMES OF AMERICAN NEWSPAPERS 334, 375 (1859). For other iterations of the devilish effects of sensation fiction, see Satanic Literature, 2 NATIONAL MAGAZINE 25 (1853).

[82] Satanic Literature, 2 NATIONAL MAGAZINE 25 (1853).

[83] BROOKLYN EAGLE, May 24, 1852, at 3. One of the principals of Harper Brothers, James Harper, was a staunch temperance man who had been elected mayor in 1844 by running on an anti-alcohol, anti-immigrant, pro-moral reform platform. SPANN, supra note 9, at 37.

[84] FREDERICK HOLLICK, THE MARRIAGE GUIDE: OR, NATURAL HISTORY OF GENERATION; A PRIVATE INSTRUCTOR FOR MARRIED PERSONS AND THOSE ABOUT TO MARRY, BOTH MALE AND FEMALE: IN EVERY THING CONCERNING THE PHYSIOLOGY AND RELATIONS OF THE SEXUAL SYSTEM AND THE PRODUCTION OR PREVENTION OF OFFSPRING—INCLUDING ALL THE NEW DISCOVERIES NEVER BEFORE GIVEN IN THE ENGLISH LANGUAGE (1850); T.L. NICHOLS, M.D., ESOTERIC ANTHROPOLOGY: A COMPREHENSIVE AND CONFIDENTIAL TREATMENT ON THE STRUCTURE, FUNCTIONS, PASSIONAL ATTRACTIONS AND PERVERSIONS, TRUE AND FALSE PHYSICAL AND SOCIAL CONDITIONS, AND THE MOST INTIMATE RELATIONS OF MEN AND WOMEN (1854). On the wide range of marriage and sex manuals discussing contraception or abortion, see JANET FARELL BRODIE, CONTRACEPTION AND ABORTION IN NINETEENTH-CENTURY AMERICA 180-203 (1994).

[85] BRODIE, supra note 84, at 180-203.

[86] See id.; Kathleen L. Endres, ‘Strictly Confidential’: Birth-Control Advertising in a 19th Century City, 63 JOURNALISM QUARTERLY 748 (1986); Marvin Olasky, Advertising Abortion During the 1830s and 1840s: Madame Restell Builds a Business, 13 JOURNALISM HISTORY 49 (1986).

[87] BRODIE, supra note 84, at 194.

[88] People v. Charles Lohman alias Dr. A. M. Mauriceau, Sept. 15, 1847 (Indictment Papers, CGS). Doggett’s New York Directory for 1847-48 identifies Lohman’s occupation as publisher. For a summary of his case, see Table 1.

[89] On Lohman and THE PRIVATE WOMAN’S MEDICAL COMPANION, see BRODIE, supra note 84, at 231; SREBNICK, AMY GILMAN SREBNICK, THE MYSTERIOUS DEATH OF MARY ROGERS: SEX AND CULTURE IN NINETEENTH-CENTURY NEW YORK 100-102 (1995); HOROWITZ, REREADING SEX, at 209. On Restell, see CLIFFORD BROWDER, THE WICKEDEST WOMAN IN AMERICA: MADAME RESTELL THE ABORTIONIST (1988).

[90] The complainant in Lohman’s case, James B. Lloyd, wrote to district attorney John McKeon bringing The Married Woman’s Private Medical Companion to his attention and emphasizing Lohman’s connection to Restell: “This book contains about 160 pages and its sole object is the advertising of Madame Restell’s pills under the name of M. De Someaux’s Preventive to Conception.” According to Brodie, the pills were to be used as a douching solution. BRODIE, supra note 84, at 231. Complaining that “this Lohman boasts of having sold over twenty five thousand of these books in less than three months” and that he advertised both his book and Restell’s abortion practice extensively in newspapers throughout the country, Lloyd implored the district attorney to take action against the “immense … dealings of this couple in wholesale murder.” People v. Charles Lohman alias Dr. A.M. Mauriceau, Sept. 15, 1847 (Indictment Papers, CGS). On Restell’s prosecution, see People v. Caroline Lohman alias Ann Lohman alias Madame Restell, Sept. 7, 1847 (Indictment Papers, CGS). A transcript of the trial was published as Wonderful Trial of Caroline Lohman, alias Restell with Speeches of the Counsel, Charge of Court and Verdict of the Jury [n.p.n.d.]. For other another indictment of Restell in 1847 see People v. Ann Lohman, alias Caroline Lohman, alias Madame Restell, Dec. 15, 1847 (Indictment Papers, CGS). See also SREBNICK, supra note 92, at 99-107.

[91] People v. Charles Lohman alias Dr. A.M. Mauriceau, Sept. 15, 1847 (Indictment Papers, CGS); BROWDER, supra note 89, at 77, 103; HOROWITZ, REREADING SEX, at 209.

[92] BRODIE, supra note 84, at 231.

[93] April Haynes, The Trials of Frederick Hollick: Obscenity, Sex Education, and Medical Democracy in the Antebellum United States, 12 JOURNAL OF THE HISTORY OF SEXUALITY 543 (2003). Though Hollick was adamant about the populist nature of his health reform movement, Haynes characterizes his followers as middle-class, not working-class. Bourgeois women seemed particularly taken with his lectures. And Hollick’s male supporters defended the morality of the physical and anatomical information he conveyed to women. A group of Philadelphia men who styled themselves “Friends of Dr. Hollick” declared in 1846: “Resolved, That we consider the information imparted by Dr. Hollick in his Lectures to us, our wives and daughters, as eminently beneficial in their moral and physical tendency, and that we believe females have a right in common with us to obtain a knowledge of their own structure.” Id. at 565.

[94] Id. at 550.

[95] Id. at 543, 550.

[96] Id. at 552.

[97] Id. (characterizing Hollick’s philosophy as “sex-positive”).

[98] NEW YORK CRITERION, Nov. 10, 1855, at 4.

[99] See William B. Lockhart & Robert C. McClure, Literature, the Law of Obscenity, and the Constitution, 38 MINN. L. REV. 295, 325 (1954); ALBERT MORDELL, NOTORIOUS LITERARY ATTACKS 122 (1926) (describing 1850s denunciations of The Scarlet Letter).

[100] See, e.g., Satanic Literature at 25. In 1823, an English court of equity had denied copyright protection to Don Juan on the grounds that it was obscene. See Colette Colligan, Obscenity and Empire: England’s Obscene Print Culture in the Nineteenth Century 70-74 (Ph.D. dissertation, Queen’s College, Kingston, Ontario, 2002). Likewise, in the following decade, American literary critics charged publishers of Swinburne’s POEMS AND BALLADS (1866) with immorality in connection with his Anactoria and Hermaphroditus poems. A relatively gentle notice in the North American Review concluded that those poems “represent forms of passion so very abnormal and impure, that the mere contemplation of them seems to smutch and stain.” 104 NORTH AM. REV. 289, 291 (1866).

[101] The Immoral Literature of the Day, NATIONAL POLICE GAZETTE, Dec. 8, 1866, at 2. The Police Gazette was presumably aware of several highly publicized international prosecutions of literary obscenity that had taken place in recent years. In 1857, for instance, French authorities tried the publisher and printer of Madame Bovary, as well as Flaubert himself, on charges of obscenity. KENDRICK, supra note 12, at 105-115. Though all the defendants were acquitted, just a few months later French prosecutors obtained a conviction against Charles Baudelaire, who had recently published Les Fleurs du Mal, for “offenses against public morality.” Id. at 113, 115.

[102] See Table 1 in the Appendix.

[103] People v. William Hain, July 17, 1846 (Indictment Papers, CGS); N.Y. TRIBUNE, July 23, 1846, at 2.

[104] See Table 1 in the Appendix.

[105] William Haynes’ wife, for instance, told Comstock in 1872 that she and her husband would have been wealthy if they had not been forced to pay blackmail to New York police detectives. See Arrest Records of the New York Society for the Suppression of Vice, Manuscript Division, Library of Congress, entry for “William Haynes.” See also Letter of Anthony Comstock to Rep. Clinton L. Merriam, dated January 18, 1873, in support of An Act for the Suppression of Trade in and Circulation of Obscene Literature and Articles of Immoral Use, CONGRESSIONAL GLOBE, 42nd Congr., 3rd sess., Appendix at 168-69 [1873] (Haynes “has for years been the victim of black mail by the detectives of New York city, and in this manner has been practically licensed by them to do business”).

[106] For a now classic account of how social actors operate within the “shadow of the law,” see Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 951 (1979). See also MICHAEL GROSSBERG, A JUDGMENT FOR SOLOMON 2 (1996) (applying the concept of bargaining in the shadow of the law to a nineteenth-century child custody dispute).

[107] People v. Frederick Brady alias Henry S.G. Smith, Feb. 12, 1858 (Selling Obscene Publications); People v. Frederick Brady alias Henry S.G. Smith, Feb. 12, 1858 (Having Obscene Publications) (both in Indictment Papers, CGS).

[108] See People v. Charles J. Walker, Dec. 23, 1857 (affidavits of John W. Reynolds and John Hackett)(Indictment Papers, CGS).

[109] People v. Frederick Brady alias Henry S.G. Smith, Feb. 12, 1858 (Selling Obscene Publications); People v. Frederick Brady alias Henry S.G. Smith, Feb. 12, 1858 (Having Obscene Publications) (both in Indictment Papers CGS).

[110] Police Intelligence. Selling Obscene Books, N.Y. TIMES, Jan. 26, 1858, at 5.

[111] Id.

[112] Id.

[113] Id.

[114] Entry for “Frederic A. Brady. Publisher,” New York, Vol. 192, p. 581, R.G. Dun & Co. Collection, Baker Library, Harvard Business School.

[115] People v. Frederick Brady alias Henry S.G. Smith, Feb. 12, 1858 (Selling Obscene Publications); People v. Frederick Brady alias Henry S.G. Smith, Feb. 12, 1858 (Having Obscene Publications)(both in Indictment Papers, CGS).

[116] The Charges Against Officers of the Mayor’s Squads, N.Y. TIMES, March 5, 1859, at 1.

[117] It is unclear whether Brady was able to obtain the return of the confiscated inventory, as noted in the Dun credit report shortly after his imprisonment.

[118] See Donna I. Dennis, Obscenity Law and the Conditions of Freedom in the Nineteenth-Century United States, 27 LAW & SOC. INQUIRY 369, 392 (2002) (review essay) (discussing Akarman’s understanding of morals regulation as a local matter and his turn to the mails in an effort to evade local obscenity prosecutions).

[119] From the opposing corner, this is how Anthony Comstock conveyed the benefits of the U.S. mail for nineteenth-century purveyors of erotica: “The mail of the United States is the great thoroughfare of communication leading up into all our homes, schools and colleges. It is the most powerful agent, to assist this nefarious business, because it goes everywhere and is secret.” Anthony Comstock, FRAUDS EXPOSED 391 (1969)(1880) (emphasis in original).

[120] The Seizure of Obscene Literature—Letter of George Akarman to the Editor of the Herald, N.Y. HERALD, Sept. 20, 1857, at 8.

[121] Id.

[122] Cf. Miller v. California , 413 U.S. 14, 24 (1973) (stating test for obscenity as “(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value”).

On recent challenges to the “contemporary community standards” test in the context of Internet pornography, see, e.g., Mark Cenite, Federalizing or Eliminating Online Obscenity Law As An Alternative To Contemporary Community Standards, 9 COMM. L. & POL’Y 25 (2004); Yuval Kamiel, Pornography, Community and the Internet—Freedom of Speech and Obscenity on the Internet, 30 RUTGERS COMPUTER AND TECH. L. J. 105 (2004).

[123] In shifting to the mail, publishers were greatly aided by a fortuitous change in postal regulations in 1851 that allowed bound books to be transported in the mails for the first time. Richard John, SPREADING THE NEWS: THE AMERICAN POSTAL SYSTEM FROM FRANKLIN TO MORSE 39 (1995); Richard B. Kielbowicz, Mere Merchandise or Vessels of Culture? Books in the Mail, 1792-1942, 82 PAPERS OF THE BIBLIOGRAPHICAL SOCIETY OF AMERICA 169, 176-77 (1988).

[124] SIGMUND FREUD, THE MOST PREVALENT FORMS OF DEGRADATION IN EROTIC LIFE (1912) in 4 COLLECTED PAPERS 203 (Joan Riviere trans., 1959).

[125] GEORGES BATAILLE, EROTISM: DEATH & SENSUALITY 63 (Mary Dalwood trans., 1986) (1957) ("[t]ransgression does not deny the taboo but transcends it and completes it"). Bataille pointed out how outlets for sexual expression that appear to be subversive, such as pornography, in actuality operate as forms of repression and social control. In this scheme, pornographers want to maintain cultural taboos against frank depictions of sex so that they may offer fulfillment by transgressing them. See id. at 36 (arguing that a transgression "suspends a taboo without suppressing it"). See also JESSICA BENJAMIN, THE BONDS OF LOVE: PSYCHOANALYSIS, FEMINISM, AND THE PROBLEM OF DOMINATION (discussing Bataille); Herbert Marcuse explored similar themes in Eros and Civilization. See HERBERT MARCUSE, EROS AND CIVILIZATION (1966).

For examinations of the ways that contemporary obscenity law invites and proliferates sexual images through its powers of taboo and transgression, see Amy Adler, The Perverse Law of Child Pornography, 101 COLUM. L. REV. 209, 246-50 (2001) (discussing the “dialectic between prohibition and transgression” in the context of child pornography law); David Cole, Playing by Pornography’s Rules: The Regulation of Sexual Expression, 143 U. PA. L. REV. 111, 167 (1994) (“Much of pornography’s appeal lies in approaching and transgressing the social taboos that we develop to regulate it”); Robert C. Post, Censorship and Silencing, in CENSORSHIP AND SILENCING: PRACTICES OF CULTURAL REGULATION (Robert C. Post ed., 1998). See also CATHARINE MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 162 (1987) (“obscenity law, like the law of rape, preserves the value of, without restricting the ability to get, that which it purports to both devalue and to prohibit. Obscenity law helps keep pornography sexy by putting state power—force, hierarchy—behind its purported prohibition on what men can have sexual access to”).

[126] JUDITH BUTLER, EXCITABLE SPEECH: A POLITICS OF THE PERFORMATIVE 117 (1997) (“prohibition does not seek the obliteration of the prohibited desire; on the contrary, prohibition pursues the reproduction of prohibited desire and becomes itself intensified through the renunciations it effects…[T]he prohibition not only sustains, but is sustained by, the desire that it forces into renunciation").

[127] MICHEL FOUCAULT, THE HISTORY OF SEXUALITY: AN INTRODUCTION 158 (Robert Hurley trans., 1990) (“What we now perceive as the chronicle of a censorship and the difficult struggle to remove it will be seen rather as the centuries-long rise of a complex deployment for compelling sex to speak, for fastening our attention and concern upon sex”).

[128] Id. at 114.

[129] The first surviving issue of Venus’ Miscellany, dated January 31, 1857, is numbered Volume I, Whole No. 12. This suggests publication began in November 1856.

[130] For an extended analysis of Venus’ Miscellany and the mid-nineteenth-century erotic imaginary, see my dissertation, “Sexual Speech and Obscenity Regulation in New York, 1825-1875,” ch. 7.

[131] For scholarship on nineteenth-century pornography that interprets it as a medium that oppressed women, see STEVEN MARCUS, THE OTHER VICTORIANS: A STUDY OF SEXUALITY AND PORNOGRAPHY IN MID-NINETEENTH-CENTURY ENGLAND (1964) (portraying Victorian pornography as an exclusive male genre in which men control, objectify, and violate women). See also Joan Hoff, Why Is There No History of Pornography? in FOR ADULT USERS ONLY: THE DILEMMA OF VIOLENT PORNOGRAPHY 30 (Susan Gubar & Joan Hoff, eds., 1989) (“Without gender analysis, no analysis or definition of pornography will expose its basic sexism or its function as an ideological representation of patriarchy and an exercise in the ‘practice of power and powerlessness’”).

[132] Venus’ Miscellany also included stories about cross-dressing and reversal of gender roles. See, e.g., Dear Venus, VENUS’ MISCELLANY, June 6, 1857, at 3. In a mainstream culture that presented sexual differences between men and women as innate and inevitable, such stories provided a titillating counterpart to normative conventions as well as comic release.

[133] This series appeared in the correspondence columns of issues of VENUS’ MISCELLANY dated May 9, 1857, May 16, 1857, and July 11, 1857.

[134] Mr. Editor, VENUS’ MISCELLANY, May 9, 1857, at 3.

[135] An excerpt from Thompson’s latest novel, The Mysteries of Bond Street, or the Seraglios of Upper Tendom, also appeared in the May 9 issue.

[136] To Maria C., VENUS’ MISCELLANY, May 16, 1857, at 3.

[137] On free love, see generally HAL D. SEARS, FREE LOVE IN HIGH VICTORIAN AMERICA (1977); JOHN C. SPURLOCK, FREE LOVE: MARRIAGE AND MIDDLE-CLASS RADICALISM IN AMERICA (1988).

[138] My Dear Sir, VENUS’ MISCELLANY, July 11, 1857, at 3.

[139] Another use of the free love movement for the purpose of sexual titillation was George Thompson’s Fanny Greeley; Or, Confessions of a Free-love Sister Written by Herself, published by H.S.G. Smith sometime in the 1850s. For a description of Fanny Greely, see ASHBEE, supra note 71, at 210-217.

[140] Immense Seizure of Obscene Works—Ackerman Again in Trouble, N.Y. TIMES, Sept. 16, 1857, at 5.

[141] Several historians of sexuality have ably advanced this point, with a corresponding critique of the notion of a “repressive” nineteenth century. See PETER GAY, THE BOURGEOIS EXPERIENCE: VICTORIA TO FREUD (1984-1998); KAREN LYSTRA, SEARCHING THE HEART: WOMEN, MEN, AND ROMANTIC LOVE IN NINETEENTH-CENTURY AMERICA (1989); CHRISTINE STANSELL, CITY OF WOMEN: SEX AND CLASS IN NEW YORK, 1789-1860 171-92 (1987); Carl N. Degler, What Ought To Be And What Was: Women’s Sexuality in the Nineteenth Century, 79 AM. HIST. REV. 1467 (1974).

[142] BRODIE, supra note 84, at 102.

[143] See, e.g., The Free-Lovers’ Troubles, N.Y. TIMES, Oct. 20, 1855, at 2 (describing large number of women present at free love meeting broken up by the New York City police).

[144] On the popularity of sexual massage and hydrotherapy among bourgeois women in the nineteenth century, see RACHEL P. MAINES, THE TECHNOLOGY OF ORGASM: “HYSTERIA,” THE VIBRATOR, AND WOMEN’S SEXUAL SATISFACTION 72-81(1998).

[145] GEORGE THOMPSON, NEW-YORK LIFE: THE MYSTERIES OF UPPER-TENDOM REVEALED 78 (1849), as cited in REYNOLDS, BENEATH THE AMERICAN RENAISSANCE, at 219.

[146] Akarman allegedly often “boasted that he had money enough to buy up all the Justices in the city.” Great Seizure of Obscene Literature, N.Y. HERALD, Sept. 16, 1857, at 5.

[147] A Publishing Establishment Broken Up, N.Y. TRIBUNE, Sept. 5, 1857, at 5 (“The sheet was not publicly sold, and was only to be obtained by addressing a letter, with the money to [James Ramerio], Box No. 4,046, General Post Office”).

[148] Cf. Not Stopped Yet, N.Y. SUN, Aug. 24, 1842, at 2.

[149] STANSELL, CITY OF WOMEN, at 41. As Mary Ryan further summarized this new idealization of the “private” domestic sphere: “The adjective public…began to designate an unstructured and intimidating social space. To be in a public space was to be in a crowd of strangers, adrift in the anarchy of the streets. Middle-class urbanites would beat a hasty retreat from this alien public world; they would seek their refuge in a private home.” MARY P. RYAN, CRADLE OF THE MIDDLE CLASS: THE FAMILY IN ONEIDA COUNTY, NEW YORK, 1790-1865 234 (1981) (emphasis in original). See also COTT, BONDS OF WOMANHOOD, at 63-100.

[150] STANSELL, CITY OF WOMEN, at xii (“Designating themselves moral guardians of their husbands and children,” women of “the emerging bourgeoisie…became the standard-bearers of piety, decorum and virtue in Northern society. They claimed the home as the sphere of society where they could most effectively exercise their power”). On domesticity and bourgeois class formation, see also sources cited in note 38, supra.

[151] See, e.g., A Publishing Establishment Broken Up, N.Y. TRIBUNE, Sept. 5, 1857, at 5.

[152] The Moral Condition of the Country, N.Y. HERALD, Sept. 18, 1857, at 4.

[153] A Publishing Establishment Broken Up, N.Y. TRIBUNE, Sept. 5, 1857, at 5.

[154] Entry for “George Ackerman” in “Names and Description of Persons dealing in Obscene Literature, not Arrested, but from whom stock was seized during the year 1872. Also those forced to give up, and get out of the business, during the same year,” Papers of the New York Society for the Suppression of Vice, Library of Congress, Manuscript Division.

[155] REYNOLDS, BENEATH THE AMERICAN RENAISSANCE, at 222.

[156] Id.

[157] Id. at 223.

[158] On the pervasiveness of prostitution in 1850s New York, see, e.g., TIMOTHY GILFOYLE, CITY OF EROS: NEW YORK CITY, PROSTITUTION, AND THE COMMERCIALIZATION OF SEX, 1790-1920 119-178 (1992).

[159] WILLIAM W. SANGER, HISTORY OF PROSTITUTION 522 (1858).

[160] George Thompson, THE HOUSEBREAKER 20-21, as quoted in Looby, supra note 67, at 658.

[161] On the relationship between censorship and literary allusion, see ANNABEL M. PATTERSON, CENSORSHIP AND INTERPRETATION: THE CONDITIONS OF WRITING AND READING IN EARLY MODERN ENGLAND (1984).

[162] On the general popularity of American erotic sensation fiction in the 1840s and 1850s, see REYNOLDS, BENEATH THE AMERICAN RENAISSANCE, at 211 (noting the “great vogue” enjoyed by such literature beginning in the 1840s).

[163] To aid this process, characters in sensation fiction often referred to forbidden fancy literature. For example, in The Mysteries of Bond Street; or, The Seraglios of Upper Tendom, Thompson locks his innocent heroine in a brothel where she is surrounded by copies of Fanny Hill, The Lustful Turk, and “the filthy work entitled The Education of Laura.” GEORGE THOMPSON, MYSTERIES OF BOND STREET; OR, THE SERAGLIOS OF UPPER TENDOM (1857).

[164] A Publishing Establishment Broken Up, N.Y. TRIBUNE, Sept. 16, 1857, at 5.

[165] See The Seizure of Obscene Literature—Letter of George Akarman to the Editor of the Herald, N.Y. HERALD, Sept. 20, 1857, at 8.

[166] On the appeal of sensation fiction to urban, working-class audiences, see generally DENNING, supra note 64.

[167] OBSCENE BOOKS, N.Y. ATLAS, Feb. 18, 1855, at 2.

[168] Haynes at 559.

[169] Id. at 573.

[170] Id. at 573-574 (quoting Hollick’s introduction to the tenth edition of THE ORIGIN OF LIFE at xxxv). Though it first appeared in 1846, THE ORIGIN OF LIFE went through ten editions in one year. BRODIE, supra note 84, at 360 and 199.

[171] Id. at 563 (quoting HOLLICK, THE MARRIAGE GUIDE, at 420).

[172] See, e.g., OBSCENE BOOKS, N.Y. ATLAS, Feb. 18, 1855, at 2.

[173] The Obscene Literature Again—Effects of Fourierism, N.Y. HERALD, Sept. 20, 1857, at 4.

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