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“All for Keeping His Own Negro Wench”: Birch v. Benton (1858) and the Politics of Slander and Free Speech in Antebellum Missouri

Published online by Cambridge University Press:  21 July 2011

Extract

In August 1849, outspoken proslavery Missouri Supreme Court Judge James H. Birch sued Unionist Senator Thomas Hart Benton of Missouri for slander because he had publicly accused Birch of having kept “his own negro wench” and whipped his wife because she had dared to complain about it. On first impression, the lurid accusation and resulting lawsuit might seem merely colorful window dressing for the virulent sectional politics of the late antebellum period. Benton's objectionable utterances certainly exemplify the verbal pyrotechnics that, after the Mexican War, often accompanied public debate over the question of whether African-American bondage was to extend across the continental United States. But the vituperation that gave rise to Birch v. Benton, in fact, marked the beginning of one of the most widely-publicized episodes in the struggle pitting the champion of Jacksonian democracy in the trans-Mississippi Southwest against a powerful cadre of proslavery leaders who sought to end his thirty-year career in the United States Senate. According to legal historian Gerald T. Dunne, the politicized nature of the case and its contentious appeal to the Missouri Supreme Court provided the critical catalyst for lawmakers in the state to amend its constitution in 1850 to replace lifetime tenure for judges with periodic voter choice. The landmark constitutional revision both instituted popular election of judges and shook up the composition of the proslavery high court, including the removal of Judge Birch.

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Copyright © the American Society for Legal History, Inc. 2011

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26. Barnard & Wife v. Boulware (1838), rep. 456; Perselly v. Bacon (1855), rep. 336; Birch v. Benton (1858), rep. 158; and Chandler v. Coghill (1862). See also the Appendix to this article and notes 46 and 47 below.

27. “A Citizen,” St. Louis Missouri Gazette, December 4, 1813, 3; May 13 and July 29, 1815; “Dialogue Between a Farmer and Mechanic,” July 27, 1816, 2–3; August 9,1817; St. Louis Missouri Gazette Extra, August 5, 1815, 1; supplement to the Missouri Gazette, October 21, 1815,1; St. Louis Missouri Gazette and Public Advertiser, October 20, 1818, 3; Foley, William E., A History of Missouri. Volume I. 1673–1820 (Columbia and London: University of Missouri Press, 1971; reprinted 1999), 197202Google Scholar.

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29. McCurdy, Stump, Bar, and Pulpit, 76; Letter from Warsaw, Jefferson City Jefferson Inquirer, July 1, 1848, 2; Stevens, Walter B., ed., The Brown-Reynolds Duel: A Complete Documentary Chronicle of the Last Bloodshed Under the Code Between St. Louisans (St. Louis: The Franklin Club, 1911)Google Scholar; McCurdy, Stump, Bar, and Pulpit, 90; and McCandless, Perry, A History of Missouri: Volume II 1820 to 1860 (Columbia and London: University of Missouri Press, 1971; reprinted, 2000), 258–88Google Scholar.

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31. St. Louis Missouri Republican, December 9 and 23, 1828; F. H. Martin to Daniel Dunklin, July 24, 1835; Daniel Dunklin to F. H. Martin, September 26, 1835, Dunklin Papers, Western Historical Manuscripts Collection, University of Missouri, Columbia [hereafter WHMC]; St. Louis Missouri Argus, June 19, 1835; April 15, 1836; April 22, 1836; April 14, 1837; Nathaniel Patten, in St. Charles Clarion, reprinted in St. Louis Missouri Argus, May 26, 1837; Adam B. Chambers to George C. Sibley, September 25, 1839, Sibley Papers, Missouri Historical Society [hereafter MHS], St. Louis; Liberty Weekly Tribune, November 18, 1853; Jefferson City Jefferson Inquirer, June 23, 1849; Fayette Boon's Lick Times, October 19, 1844; July 22, 1815; August 9, 1817; St. Louis Missouri Gazette, June 27, 1828, Fayette Missouri Intelligencer; Lyon, “The Pioneer Editor in Missouri, 112–202; Spotts, Carl . B., “The Development of Fiction on the Missouri Frontier (1830–1860),” Missouri Historical Review 28 (1934): 279Google Scholar; Viles, Jonas, “Old Franklin: A Frontier Town of the Twenties,” Mississippi Valley Historical Review 9 (1923): 9CrossRefGoogle Scholar.

32. Blackstone, Commentaries, 3:122–26; 4:150. See Nelson v. Musgrave, 10 MO 648 (1847).

33. Habermas, The Structural Transformation of the Public Sphere, 51–56.

34. McCurdy, Stump, Bar, and Pulpit, 61, 75, 85–87; Foley, A History of Missouri, 200–202; Lyon, The Pioneer Editor in Missouri, 114–31; Steward, Duels and the Roots of Violence in Missouri, 100–132; and Vaughn v. Harris (1851).

35. Richardson v. Roberts, 23 GA 215, 221 (1857); King, “Constructing Gender,” 78; and Kamensky, Jane, Governing the Tongue: The Politics of Speech in Early New England (New York and Oxford: Oxford University Press, 1997), 21Google Scholar, 48, 125, 155, 175, 190.

36. Semi-Weekly St. Louis Enquirer, August 19, 1820, 1; Declaration, Vaughn v Harris (filed 1851), rec. 1–5; and McCurdy, Stump, Bar, and Pulpit, 85–87.

37. St. Louis Missouri Gazette and Public Advertiser, April 19, 1820, 2; Ken Mueller, “Benton and the People: White Nationalism on the Jacksonian Frontier, 1782–1858” (unpublished PhD diss., Saint Louis University, 2008), 118–20; and McCurdy, Stump, Bar, and Pulpit, 84–87.

38. Blackstone, Commentaries, 3:122–23. Not since the territorial period had the courts of final review in Upper Louisiana and Missouri adjudicated a political slander case. Of considerable import was the total dearth of high court decisions through the period 1805–1860 reviewing scandalum magnatum actions or those brought in response to oral utterances tending to scandalize a magistrate or other public official. Nor did any of the trial courts in the fifteen Missouri counties examined in this study adjudicate any actions of this kind. The high benches presiding over Upper Louisiana and Missouri never ruled on any civil libel action brought by a public official in response to derogatory words regarding his fitness for or performance in office. And these same courts reviewed only two criminal libel prosecutions brought on behalf of an elected or appointed official. See slander actions in the county courts of common pleas and circuit court records and case files of the General Court of the Territory of Louisiana, the Territory of Missouri, and the Supreme Court of the State of Missouri, 1805–60, MSA.

The selected local venues and associated trial court records for inclusive years are as follows: St. Louis Court of Common Pleas, Court of Quarter Sessions, Circuit Court, and Criminal Court, 1805–60; Cape Girardeau Court of Common Pleas, Court of Quarter Sessions, and Circuit Court, 1806–50; Ste. Genevieve Court of Common Pleas, Court of Quarter Sessions, and Circuit Court, 1805–18; Washington County Circuit Court, 1814–1854; Cooper County Circuit Court, 1818–1845; Madison County Circuit Court, 1818–60; Boone County Circuit Court, 1820–33; Saline County Circuit Court, 1821–60; Platte County Circuit Court, 1839–49; Mississippi County Circuit Court, 1845–60; Oregon County Circuit Court, 1845–60; Stone County Circuit Court, 1852–60; Webster County Circuit Court, 1855–60; and Phelps County Circuit Court, 1857–60. The trial court minute books and case files for the counties and periods referenced above are either on microfilm at the MSA, Jefferson City, or available only at the MSA, St. Louis. For each of the counties and periods, except for St. Louis County, 1836–60 and Howard County, 1831–60, see also the Missouri Judicial Records Database, MSA http://www.sos.mo.gov/archives/judiciary/allcourts/default.asp. See note 49 and main text for note 46.

39. Rosenberg, Protecting the Best Men, 130–52; and People v. Croswell, 3 Johns. Cas. 337 (NY 1804).

40. Curtis, Free Speech, “The People's Darling Privilege”, 155–75, 216–40.

41. Rosenberg, Protecting the Best Men, 151–52.

42. Ibid., 145–56; Grimke, Frederick, Considerations Upon the Nature and Tendency of Free Institutions (Cincinnati: H.W. Derby & Co., 1848)Google Scholar; Steward, William H., “Law of Libel,” Western Law Journal 2 (1845): 465–72Google Scholar; and Root v. King, 4 Wend. 113, 119–34 (NY 1829).

43. Rosenberg, Protecting the Best Men, 130–52.

44. MO Const. (1820), Declaration of Rights, Sec. 16, Art. 13.

45. Kent observed that the standard set out in the Missouri constitution was matched only by that adopted statutorily in 1799 by New Jersey and that contained in the 1817 Constitution of Mississippi. Commentaries on American Law, 2:12–22; MS Const. (1817), Secs. 6–8, Art. 1.

46. The following libel actions arose in the selected local venues during the inclusive years: Calvin v. Pritchett (1811, St. Louis); Brown v. Pritchett (1811, St. Louis); Ditch v. Gilleland (1817, St. Louis); U.S. v. Gilleland (1817, St. Louis); U.S. v. Venables (1819, St. Louis); Hanley v. Wilson (1820, St. Louis); U.S. v. Letcher (1820, St. Louis); Barton v. Russell (1822, St. Louis); Rule v. Mason (1823, St. Louis); Foreman v. Brooks & Keemle (1830, St. Louis); Davis v. Renfroe (1837, Cape Girardeau); Boydston v. Rupe (1841, Platte); State v. Webber (1846, St. Louis); State v. Reed (1848, St. Louis); Field & Keemle v. Sass (1849, St. Louis); and Williams v. Williams (1856, Webster).

47. Commonwealth v. Clapp, 4 MA 168 (1808), in Nelson v. Musgrave, 10 MO 648 (1847); Nelson v. Musgrave, rec. 20, MSA; McCorkle v. Binns, 5 Binn. 349, Am. Dec. 420 (PA 1812).

48. Keemle & Field v. Sass, rec. 17, MSA; Keemle & Field v. Sass, 12 MO 501–4 (1849); Cooper v. Greeley, 1 Denio. 347 (1845); and People v. Croswell, 3 Johns. 354 (NY 1804).

49. Declaration, Vaughn v. Harris, rec. 1–5, MSA; Bill of Exceptions, ibid., 21–22; Indictment, Webber v. The State, rec. 2–3, MSA; Webber v. The State, 10 MO 5 (1846); Indictment, Reed v. The State, rec. 1–2, MSA; and Reed v. The State, 10 MO 380 (1848).

50. Louis Missouri Argus, May 30, June 1 and 3, 1840; November 22, 1839; August 1, 2, and 17, 1840; November 9, 1840; and McCandless, “Punishment Under the Law or by the Cudgel,” 121–32.

51. Lawson, John Davison, ed., American State Trials, 17 vols. (St. Louis: Thomas Law Books, 1914–36), 16:182Google Scholar, 100–105, 126–35, 180–91, 234–49.

52. Nelson, Thomas R., A Full and Accurate Report of the Trial of William P. Darnes (Boston: Tuttle, Dennet and Chisholm, 1841), 2930Google Scholar, 39, 51, 67–68, 143–44.

53. Lawson, American State Trials, 16:182.

54. Quoted in Steward, Duels and the Roots of Violence in Missouri, 147.

55. St. Louis Missouri Gazette, July 22, 1815; August 28, 1818; St. Louis Missouri Argus, February 16, 1838; Jefferson City Jefferson Inquirer, June 25, 1853; Smith, Elbert B., “Now Defend Yourself, You Damned Rascal,” American Heritage 9 (1958): 4447, 106Google Scholar; McCandless, “Punishment Under the Law or by the Cudgel,” 121–32; Steward, Duels and the Roots of Violence in Missouri, 6–78, 100–132; Lyon, The Pioneer Editor in Missouri, 73–86, 114–34; and McCurdy, Stump, Bar, and Pulpit, 69–148.

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58. Missouri Intelligencer October 2, 1830; and March 12, 1831.

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60. Chambers, William N., “Thomas Hart Benton: Editor,” Missouri Historical Review 46 (1952): 336Google Scholar. See also Benton, Thomas Hart, St. Louis Enquirer, April 21, 1819Google Scholar.

61. Chambers, “Thomas Hart Benton,” 345.

62. St. Louis Missouri Gazette, June 9 and 23, 1819; November 3, 1819; St. Louis Missouri Gazette Extra, n. d. This newspaper clipping is located in the Thomas Hart Benton Papers, MHS; United States v. Richard R. Venables, St. Louis County Circuit Court, August term 1819, MSA; Missouri Gazette and Public Advertiser, St. Louis, April 19, 1820, 2; and Steward, Duels and the Roots of Violence in Missouri, 49, 78.

63. Chambers, William N., Old Bullion Benton (Boston: Little, Brown, and Company, 1956), 140Google Scholar; Benton, Thirty Years' View, 1:128–30; and Register of Debates, Twenty-first Cong., First Sess., February 9, 1830; February 11, 1830, 146 and 159.

64. Deposition of Francis Wilkerson, Birch v. Benton (filed 1857), rec. 151; Deposition of Charles C. Birch, ibid., 180–81; and Deposition of James H. Birch, Jr., ibid., 185–87, 189.

65. Deposition of Charles C. Birch, ibid., 180–85; and Deposition of James H. Birch, Jr., ibid., 185–93.

66. Deposition of Charles C. Birch, ibid., 184; Deposition of James H. Birch, Jr., ibid., 186–88; Deposition of Francis Wilkerson, ibid., 157; Deposition of Winslow Turner, ibid., 194; Schedule 4, The Whole Number of Persons Within the Division, Howard County, State of Missouri, 1840 Manuscript Census Returns, 11; Schedule 1, Free Inhabitants, Clinton County (1850), 836; and Schedule 2, Slave Inhabitants. Ibid., 472.

67. Deposition of Noah Essig, Birch v. Benton (filed 1857), rec. 197–98. Essig referred to “Chitties [sic] Medical Jurisprudence” and to the speeches of Lord Thomas Erskine (Lord Chancellor 1806–7) in the case of Hatfield, ibid. 200. See “Lord Erskine's Illustrations,” in Joseph Chitty, A Practical Treatise on Medical Jurisprudence, 2nd American ed. (Philadelphia: Carey, Lea & Blanchard, 1836), 357–58; and Deposition of Henry Essig, Birch v. Benton (filed 1857), rec. 203.

68. Chitty, A Practical Treatise, 394–95. Deposition of Noah Essig, Birch v. Benton (filed 1857), rec., 198; and Deposition of Laura Wilkerson, ibid., 147.

69. Liberty The Weekly Tribune, August 3, November 23, 1849; May 23, 1851; and March 24, 1854.

70. Answer of Defendant, Birch v. Benton (filed 1857), rec. 14–17.

71. Deposition of John Terrill, ibid., 127.

72. Statement of James N. Burns, ibid., 125; Cockrill v. Dye, 33 MO 367 (1863); and Banton G. Boone, “A Cause Célèbre—Birch v. Benton,” in Stewart, The History of the Bench and Bar of Missouri, 379.

73. Dunne, The Missouri Supreme Court, 46; Banton G. Boone, “A Cause Célèbre,” 377–80, 383.

74. King, “The Law of Slander,” 1–2. For case file details of the eighty-three appellate slander appeals under study, consult Missouri Supreme Court Historical Database, MSA http://www.sos.mo.gov/archives/judiciary/supremecourt/

And see the Appendix and Table 1. The General Assembly organized counties and circuit courts in quick succession beginning in the mid-1820s. For original maps of the District of Louisiana, Territory of Louisiana, Territory of Missouri, and the state of Missouri, see http://www.osagecounty.org/maps/map-index.htm

75. Town dwellers brought virtually all the libel prosecutions. See note 46 above. Rosenberg, Protecting the Best Men, 101–53; and Friedman, Lawrence M., Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy (Stanford: Stanford University Press, 2007), 2262Google Scholar.

76. King, “Constructing Gender,” 71–81. See note 38 and the Appendix to this article.

77. Blackstone, Commentaries, 3:122–23; Mahan v. Berry (1837); Perselly v. Bacon (1855); Johnson v. Dicken (1857); Birch v. Benton (1858); McManus v. Jackson (1859); and Starkie, Thomas, A Treatise on the Law of Slander, Libel, Scandalum Magnatum, and False Rumours (New York: Collins and Hannay, 1832), 956Google Scholar.

78. Estes v. Antrobus (1822); Pasley v. Kemp (1856); Atteberry v. Powell (1860); and Weaver v. Hendrick (1860).

79. Laws of the State of Missouri, 2 vols. (St. Louis: E. Charless, 1825), 2:740Google Scholar; King, “The Law of Slander,” 16–17; and Waddams, S. M. Stephen Michael, Sexual Slander in Nineteenth-Century England: Defamation in the Ecclesiastical Courts, 1815–1855 (Toronto, Buffalo, and London: University of Toronto Press, 2000), 1750CrossRefGoogle Scholar.

80. See Table 2 and the Appendix to this article; and Spindel, Donna J., “The Law of Words: Verbal Abuse in North Carolina to 1730,” American Journal of Legal History 39 (1995): 3137CrossRefGoogle Scholar.

81. Thelan, David, Paths of Resistance: Tradition and Dignity in Industrializing Missouri (New York and Oxford: Oxford University Press, 1986), 272–75Google Scholar; McCurdy, Stump, Bar, and Pulpit, 93; Foley, The Genesis of Missouri, 285–86; Wyatt-Brown, Bertram, Honor and Violence in the Old South (New York and Oxford: Oxford University Press, 1986), 3637Google Scholar, 198–99; 211–12; Bynum, Victoria, Unruly Women: The Politics of Social and Sexual Control in the Old South (Chapel Hill and London: The University of North Carolina Press, 1992), 9899Google Scholar; Bailey, Frederick G., ed., Gifts and Poison: The Politics of Reputation (New York: Schocken Books, 1971), 124Google Scholar, 281–89; Rosenberg, Protecting the Best Men, 15–17, 21–27; King, “The Law of Slander,” 2–5; and Spindel, “The Law of Words,” 25–42.

82. John Butler, Jesse Demint, & Andrew Simison, before New Madrid Commandant Pierre Antoine Laforge, New Madrid Colonial Archives, box 13, docs. 1365, 1358, MHS; Banner, Stuart, Legal Systems in Conflict: Property and Sovereignty in Missouri, 1750–1860 (Norman: University of Oklahoma Press, 2000), 5861Google Scholar; and Arnold, Morris S., Unequal Laws Unto a Savage Race: European Legal Traditions in Arkansas, 1686–1836 (Fayetteville: The University of Arkansas Press, 1985), 1718Google Scholar, 49–52, 110.

83. Conclusions regarding damage awards were derived from all case reports and files under study in which that information was included: Fine v. Lafaye (1805); Smith T v. Austin (1806); Widewall v. Lafton (1807); Buat v. Scott (1807); Seavers v. Byrne (1809); Bower & Wife v. Byrne (1809); Wallis v. Treat (1810); Baker v. McCullock (1811); Baker v. McCullock (1812); Hagan v. Bringier (1812); Davis v. Lewis (1815); Shrader v. Phillips (1816); Orchard v. Howell (1858); Woodson v. Scott (1855); Desire v. Perrault & Wife (1831); Small v. Breeze (1834); Seymour v. Walker (1847); Huntington & Wife v. House (1856); Orchard v. Howell (1858); Birch v. Benton (1858); and Coble v. McDaniel (1863).

84. Declaration, Fine v. Lafaye (1805), rec. 1–2; Declaration, Bower & Wife v. Byrne (1809), rec. 1; Declaration, Baker v. McCullock (1811), rec. 1; Declaration, Hagan v. Bringier (1812), rec. 1; Declaration, Anthony v. Stephens (1822), rec. 1; Declaration, Desire v. Perrault & Wife (1831), rec. 1–2; Adams v. Hannon (1833), rep. 222; Declaration, Harris v. Woody (1845), rec. 4; Declaration, Seymour v. Walker (1847), rec. 1; and Petition, Orchard v. Howell (1858), rec. 2–3.

85. Regarding the innuendo, see Adams v. Hannon (1833), rep. 222–23. See also Edgar v. McCutchen (1846), rep. 768; and Hudson v. Garner & Wife (1856), rep. 431–33. According to the Court, no innuendo was necessary when the words uttered were, in and of themselves, slander per se. Perselly v. Bacon (1855), rep. 336. Regarding the colloquium, see Dyer v. Morris (1835), rep. 215–16; Church v. Bridgman & Wife (1839); Hibler v. Servoss (1839); Mahan v. Berry (1837), rep. 24; Palmer v. Hunter (1844); and Harris v. Woody (1845), rep. 113.

86. 6.Art. 7, sec. 10 “An Act to Reform the Pleading Laws of the State of Missouri,” Laws of the State of Missouri, 2nd sess. (Jefferson City: James Lusk, 1847); sec. 55, art. 6, ch. 128, Revised Statutes of the State of Missouri, (1856), 2:1240; Wells, Robert W., Observations on the Pleadings and Practice of the Courts of Justice of Missouri: and, a Radical Change Therein Recommended, in a Letter Addressed to the “Metropolitan” (Jefferson City: Metropolitan Office, 1847), 113Google Scholar; and Law of the State of Missouri Regulating Pleadings and Practice in Courts of Justice (St. Louis: Missouri Republican Steam Power Press, 1849)Google Scholar, vi, 5–6, 26, 70, 98–114. See Stieber & Wife v. Wensel (1854), rep. 513; Perselly v. Bacon (1855), rep. 330–32; and McManus v. Jackson (1859), rep. 59–60. See also Childs v. Bank of Missouri (1852) and Dowd v. Winters & Wife (1855). The new code of practice did not eliminate entirely the use of the colloquium. The Missouri Supreme Court maintained that, in some cases, such as those involving an accusation of “swearing a lie,” it was incumbent upon a plaintiff to include averments in his or her petition, including a colloquium if necessary, to make clear the context in which the words had been spoken when such was necessary to determine whether the utterance was actionable. Gordon v. Gordon (1850); Perselly v. Bacon (1855), rep. 330; Hudson v. Garner & Wife (1856), rep. 428–29; and McManus v. Jackson (1859), rep. 59.

87. See, for example, Declaration, Buat v. Scott (1807), rec. 3; Declaration, Bower & Wife v. Byrne (1809), rec. 1; Declaration, Baker v. McCullock (1811), rec. 1; Declaration, Hagan v. Bringier (1812), rec. 1; Declaration, Davis v. Lewis (1815), rec. 1; Declaration, Shrader v. Phillips (1816), rec. 2; and Petition, Weaver v. Hendrick (1860), rec. 2.

88. In 1822, the Court held that it was sufficient for a plaintiff to prove that the slanderous words were “substantially the same” as those charged in the plaintiff's petition. Estes v. Antrobus (1822), rep. 140. See also Watson v. Musick (1828), rep. 24; Cooper v. Marlow (1832); Williams v. Harrison (1834), rep. 411; Berry v. Dryden (1842); Self v. Gardner (1852). But it was not sufficient to prove that the words contained substantially the same charge in different phraseology, for equivalent words were not sufficient. The jury had to be satisfied that as many of the identical words as essentially constituted the slander had been proved precisely as laid, If the defendant uttered enough of the identical words laid to carry with them the slanderous imputation, malice was presumed. Pasley v. Kemp (1856), rep. 412; Street v. Bushnell (1857); Birch v. Benton (1858), rep. 154; and Atteberry v. Powell (1860), rep. 429.

89. Plea, Fine v. Lafaye (1805), rec. 4; Plea, Bower & Wife v. Byrne (1809), rec. 1; Plea, Baker v. McCullock (1811), rec. 2–3; Plea, Baker v. McCullock (1812), rec. 2; Plea, Davis v. Lewis (1815), rec. 2; Plea, Desire v. Perrault & Wife (1831), rec. 2; Martin v. Miller (1832); Hibler v. Servoss (1839), rep. 24; Stewart v. Small (1839), rep. 526–28; Cox v. Capron (1847); Sutton v. Smith (1850), rep. 122–24; Gordon v. Gordon (1850); Tindle & Wife v. Nichols (1854); Evans v. Franklin (1858), rep. 253; Atteberry v. Powell (1860), rep. 434; and Coble v. McDaniel (1863), rep. 363.

90. Anthony v. Stephens (1822), rep. 255; Church v. Bridgman & Wife (1839), rep. 190; Moberly v. Preston & Wife (1844), rep. 462; Sutton v. Smith (1850), rep. 25; Evans v. Franklin (1858), rep. 252; Atteberry v. Powell (1860), rep. 429; and Coble v. McDaniel (1863), rep. 363. See also Nelson v. Musgrave, 10 MO 648 (1847).

91. Anthony v. Stephens (1822), rep. 255; Church v. Bridgman & Wife (1839), rep. 193; Moberly v. Preston & Wife (1844), rep. 464–65; and Answer, Birch v. Benton (filed 1857), rec. 14–17.

92. Church v. Bridgeman & Wife (1839), rep. 193.

93. Sec. 56, ch. 128, Revised Statutes of the State of Missouri (1856), 2:1240.

94. Dick Steward discusses or at least mentions eighty-four affairs and duels in the period from 1806 to 1860. Duels and the Roots of Violence in Missouri, 1–167. Of the fifty-seven affairs of honor and duels for which he identifies precipitating language, five (8.77%) of them resulted from utterance of the word “liar,” five from utterance of the word “coward,” and six (10.52%) from utterance of the word “poltroon,” constituting 28.06% altogether. The fourth most common precipitating utterances were those insulting a man's wife, family member, or family, totaling four (7.01%), whereas the fifth most common were words charging breach of official duty, totaling 3 (5.26%). See, generally, Greenberg, Kenneth S., Honor and Slavery (Princeton, New Jersey: Princeton University Press, 1996), 323Google Scholar; Bruce, Violence and Culture in the Antebellum South, 30–31.

95. McClane v. Harris (1826); Pasley v. Kemp, (1856); Orchard v. Howell (1858); Birch v. Benton (1858); Weaver v. Hendrick (1860); Coble v. McDaniel (1863); and Stewart v. Small (1839); Shrader v. Phillips (1816). See Blackstone, Commentaries, 4:169; King, “Constructing Gender,” 68; Spindel, “The Law of Words,” 25–42; and Mary Beth Norton, “Gender and Defamation in Seventeenth-Century Maryland,” William and Mary Quarterly 44 (1987): 3–39.

96. See, for example, Declaration, Buat v. Scott (1807), rec. 3; Declaration, Bower & Wife v. Byrne (1809), rec. 1; Declaration, Baker v. McCullock (1811), rec. 1; Declaration, Hagan v. Bringier (1812), rec. 1; Declaration, Davis v. Lewis (1815), rec. 1; Declaration, Shrader v. Phillips (1816), rec. 2; and Petition, Weaver v. Hendrick (1860), rec. 2.

97. When established, the presumption of law in favor of the defendant required that the plaintiff prove actual malice. Starkie, A Treatise on the Law of Slander (1832), 201, 223.

98. Deposition of John Terrill, Birch v. Benton (filed 1857), rec. 126–27; Deposition of William Evans, ibid., 154–57; Deposition of Marion Johns, ibid., 159; Deposition of Hannah Riley, ibid., 160–61; Deposition of Laura Wilkerson, ibid., 157; Deposition of Winslow Turner, ibid., 194–95; Deposition of Noah Essig, ibid., 201; and Deposition of Henry Essig, ibid., 202–4.

99. Deposition of Hannah Riley, ibid., 161; Deposition of Laura Wilkerson, ibid., 157; and Deposition of Winslow Turner, ibid., 194–95.

100. Report of a speech by Thomas Hart Benton, Jefferson City Jefferson Inquirer, November 24, 1849, 2; Swindler, William F., “The Southern Press in Missouri 1861–64,” Missouri Historical Review 35 (1941): 395Google Scholar; and Taft, William H., Missouri Newspapers (Columbia: University of Missouri Press, 1964), 50Google Scholar, 64–65.

101. Deposition of William McKee, Birch v. Benton (filed 1857), rec. 135–36; “Exhibit A,” ibid., 140–47; Deposition of Richard Phillips, ibid., 205–7; “Exhibit B,” ibid., 207–15; and Clark, Albert M., “The Supreme Court of Missouri,” Missouri Historical Review 37 (1943): 165–66Google Scholar.

102. “Exhibit A,” Birch v. Benton (filed 1857), rec. 148; and “Exhibit B,” ibid., 212, 215.

103. “Exhibit A,” ibid., 143.

104. King, “Constructing Gender,” 66–71, 88.

105. See items 2, 6, 7, 8, 11, 23, 31, 34, 37, 44, 53, 60, 62, 63, 67, 69, 70, and 78 in the Appendix to this article.

106. See note 102 above.

107. White, Deborah Gray, Ar'n't I a Woman? Female Slaves in the Plantation South (New York and London: W.W. Norton and Co., 1985; rev. ed. 1999), 2830Google Scholar.

108. Statement of James N. Burns, Birch v. Benton (filed 1857), rec. 124; White, Ar'n't I a Woman?, 31–46; Clinton, Catherine, The Plantation Mistress: Woman's World in the Old South (New York: Pantheon, 1983), 110–22Google Scholar; Wyatt-Brown, Honor and Violence, 64–70, 87–91, 200, 208–9, 295–98, 307–18; John B. Gordon, Fourth of July Address delivered at Columbia, Missouri, Columbia Missouri Intelligencer and Boon's Lick Advertiser, July 11, 1835, 1; Burke, Diane Mutti, “‘May We as One Family Live in Peace and Harmony’: Relations Between Mistresses and Slave Women in Antebellum Missouri,” in Women in Missouri History: In Search of Power and Influence, ed. Whites, Lee Ann, Neth, Mary C., and Kremer, Gary R. (Columbia and London: University of Missouri Press, 2004), 6481Google Scholar; McCurdy, Stump, Bar, and Pulpit, 52–53, 156, 164–65; and Phillips, Missouri's Confederate, 124–29.

109. Affidavit, Thomas Hart Benton, Birch v. Benton (filed 1857), rec. 33; Deposition of Henry Essig, ibid., 203–4; Deposition of Austin A. King, ibid., 178–80; Letter of James H. Birch to the editor of the Independence Occidental Messenger, July 16, 1853, in Deposition of William McKee, “Exhibit B,” ibid., 148–49; and St. Louis Missouri Republican, August 1, 1853.

110. Fox-Genovese, Elizabeth, Within the Plantation Household: Black and White Women of the Old South (Chapel Hill and London: The University of North Carolina Press, 1988), 236–39Google Scholar; Edwards, Laura F., Gendered Strife and Confusion: The Political Culture of Reconstruction (Urbana and Chicago: University of Illinois Press, 1997), 178–83Google Scholar, 207–10; and McCurry, Stephanie, Masters of Small Worlds: Yeoman Households, Gender Relations, & the Political Culture of the Antebellum South Carolina Low Country (New York and Oxford: Oxford University Press, 1995), 130–31Google Scholar, 176–79, 181–87.

111. Deposition of Charles S. Birch, Birch v. Benton (filed 1857), rec. 180; Deposition of James H. Birch, Jr., ibid., 185, 188–91; and Deposition of Harriet Gobin, ibid., 160.

112. The Court's Instructions to the Jury, ibid., 223–26.

113. Boone, “A Cause Célèbre,” 378; Mering, John Vollmer, The Whig Party in Missouri (Columbia: University of Missouri Press, 1967), 81117Google Scholar, 135–55, 201–46.

114. Boone, “A Cause Célèbre,” 378.

115. Magers, Roy V., “The Raid on the Parkville Industrial Luminary,” Missouri Historical Review 30 (1935): 3946Google Scholar; and History of Clay and Platte Counties, 171–73, 189, 191, 203, 207.

116. Boone, “A Cause Célèbre,” 381–82.

117. Scharf, Thomas, History of Saint Louis City and County, 2 vols. (Philadelphia: Louis H. Everts & Co., 1883), 2:1494Google Scholar; George W. Shields, “The Old Bar of St. Louis,” in Stewart, The History of the Bench and Bar of Missouri, 120-22, 384, 391–92, 506.

118. Bay, Reminiscences of the Bench and Bar of Missouri, 324–30.

119. Brief for Plaintiff in Error, Birch v. Benton (filed 1857); Birch v. Benton (1858), rep.158–60; Brooker v. Coffin, 5 John. (NY) 188 (1809); Starkie, Thomas, A Treatise on the Law of Slander and Libel: And Incidentally of Malicious Prosecutions, 2 vols. (Albany, New York: C. Van Benthuysen and Co. 1843), 1:43Google Scholar; and King, “Constructing Gender,” 83–84.

120. Birch v. Benton (1858), rep.160–61; and Court's Instructions for Plaintiff, Birch v. Benton (filed 1857), rec. 223–24.

121. Birch v. Benton (1858), rep. 158; sec. 14, “Crimes and Punishments,” Laws of the State of Missouri (1825), 1:284; and secs. 1 & 11, ch. 1, Revised Statutes of the State of Missouri (1856) 2:977.

122. Street v. Bushnell (1857), rep. 333. See also Berry v. Dryden (1842), rep. 325.

123. King, “The Law of Slander,” 42–43; Birch v. Benton, rep. 158–59; Starkie, A Treatise on the Law of Slander (1843), 43. See Starkie, A Treatise on the Law of Slander (1832), 23, 26.

124. See discussions in main text at notes 32 and 38 above.

125. The Missouri Supreme Court never adopted the common law rule concerning the privileged oral utterances of judges and legislators before the Civil War. A holding in Weaver v. Hendrick, however, maintained that words constituting slander per se implied malice, except when the words were spoken in the discharge of some public or private duty, or in the exercise of some right. In these circumstances, a plaintiff had to prove malice. Weaver v. Hendrick (1860), rep. 506, citing 1 Starkie, A Treatise on the Law of Slander, 210.

126. Boone, “A Cause Célèbre,” 381.

127. Bock, Gisela, “Challenging Dichotomies: Perspectives on Women's History,” in Writing Women's History: International Perspectives, eds. Offen, Karen, Pierson, Ruth Roach, and Rendall, Jane (Bloomington: Indiana University Press, 1991), 117Google Scholar.

128. Parts of the Depositions of James H. Birch, Jr., Charles C. Birch, and Winslow Turner Read to the Jury by Plaintiff, Birch v. Benton (filed 1857), rec. 215–16. See also “Speech of the Honorable James H. Birch in reply to those of the Honorable Thomas H. Benton; delivered in the court house at Liberty Missouri, on Monday, the 16th day of July, 1849” (Jefferson City: Metropolitan Power Press, 1849), SHSM; Deposition of James H. Birch, Jr. Birch v. Benton (filed 1857), rec. 191–93; and W. H. Woodson, History of Clay County (Topeka, KS: Historical Publishing Company, 1920), 151.

129. St. Louis Missouri Argus, July 22 and 29, 1836; Kielbowicz, “The Law and Mob Law,” 572–73, 579, 587–88, 592–97; and Nerone, Violence Against the Press, 114–15.

130. Parkville Industrial Luminary, March 30, 1855, reprinted in National Anti-Slavery Standard, June 2, 1855; George S. Park to St. Louis Missouri Democrat, May 10, 1855, reprinted in National Anti-Slavery Standard, June 2, 1855; Kielbowicz, “The Law and Mob Law,” 571–73, 590; Magers, “The Raid on the Parkville Industrial Luminary,” 39–46; History of Clay and Platte Counties, 171–73, 189, 191, 203, 207.

131. Curtis, Free Speech, “The People's Darling Privilege,” 125–30, 194–98; and Rosenberg, Protecting the Best Men, 40–44, 130.

132. See note 25 above; Blackstone, Commentaries, 4:123,150–53; Curtis, Free Speech, “The People's Darling Privilege,” 195–96; and Nerone, Violence Against the Press, 9.

133. 33.Sec. 10, art. 1, ch. 47, Revised Statutes of the State of Missouri (St. Louis: J. W. Dougherty, 1845), 342Google Scholar; secs. 10–12, art. 1, ch. 50, Revised Statutes of the State of Missouri, 2 vols. (Jefferson City: James Lusk, Public Printer, 1856), 1:556–57Google Scholar; and Missouri Platte County Self-Defensive Association, in Negro-Slavery, No Evil, or the North and the South, ed. Stringfellow, Benjamin F. (St. Louis: M. Niedner & Col, 1854), 6Google Scholar.

134. Curtis, Free Speech, “The People's Darling Privilege,” 131. See Missouri Supreme Court Historical Database, MSA, referenced at note 74 above and Missouri Judicial Index Database, MSA, referenced at note 38 above; and Nerone, Violence Against the Press, 91.

135. Curtis, Free Speech, “The People's Darling Privilege,” 216–40; and Loughran, The Republic in Print, xix, 1–4, 348–49. See also Brown, Richard D., The Strength of a People: The Idea of an Informed Citizenry (Chapel Hill: University of North Carolina Press, 1996), 154–95Google Scholar.

136. Ayers, What Caused the Civil War, 140, 142, 205, n. 8; and Anderson, Imagined Communities (1983), 1–8. See also Pasley, Jeffrey L., “The Tyranny of Printers”: Newspaper Politics in the Early American Republic (Charlottesville and London: University of Virginia Press, 2001), 1322Google Scholar, 35.

137. Shoemaker, Floyd, “Missouri's Proslavery Fight for Kansas, 1852–1855,” Missouri Historical Review 48 (1954): 4154Google Scholar, 49 (1954): 325–40; Atchison, “David R. Atchison,” 502–15; Baltimore, Lester B., “Benjamin F. Stringfellow: The Fight for Slavery on the Missouri Border,” Missouri Historical Review 62 (1967): 1429Google Scholar; Harrell, David E. Jr., “James Shannon: Preacher, Educator, and Fire Eater,” Missouri Historical Review 63 (1969): 161–62Google Scholar; and Ayers, What Caused the Civil War, 140–41.

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“All for Keeping His Own Negro Wench”: Birch v. Benton (1858) and the Politics of Slander and Free Speech in Antebellum Missouri
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