Whether the Victorian Era was the best of times or the worst remains a spirited debate today. It was a time when moral chastity reigned supreme and religion dictated social norms in Cincinnati as well as across the U.S. and the “civilized” world. Politicians routinely invoked their God in legislative debates. There were only two recognized genders, and both knew their specific roles.
Many Americans look back now and see barbarism in those times. Others are inspired by a nation that comingled religion and politics, an era when right and wrong were easily defined.
Politicians today invoke their God again (or still) when pushing new laws to ban abortion or roll back the advancement of gay marriage and transgender rights. In a complex world, many Americans wish for “simpler times” when sin was regularly punished by a devout legal system. And yet one sex scandal in 1870s Cincinnati reminds us that laws often exist to buttress those in power at the expense of the powerless.
It began as a wholesome story of first love. John B. Tytus and Nancy A. Dickey met as children in Middletown. His father was a paper manufacturing baron, and her father was also affluent, one of the most respected men in the county.
Tytus and Dickey were playmates as children. Friendship turned to romance when he was roughly 16 and she was 20. He vowed to marry her when he was still a teenager, but he went off to Yale University, then lived in Wisconsin for a while; she had other suitors. Dickey was an Ohio belle: slender, voluptuous, fair-haired, quick witted, well-read, and an engaging conversationalist.
Tytus was also charming and described as being “as handsome a man as she is a woman.” They were young, rich, beautiful people. Middletown’s location between Dayton and Cincinnati enabled them to become star socialites in three different cities.
Over the years their romance was periodically rekindled, and it took a serious turn around 1871. As their encounters grew passionate, Tytus renewed talk of marriage.
One warm summer evening in 1872, the pair went out driving in his covered, horse-drawn carriage. He pulled over alongside the road. The sun set, yearnings flared, hearts raced, and the couple surrendered to passion. It was a shared act, but one that had disproportionate ramifications for a Victorian lady. It was the first time they’d crossed this boundary, but it was not their last. Tytus was frequently gone, but when he came to town they made good use of empty houses and parlor room couches.
Although Tytus had spoken of marriage frequently, it was not until early 1873 that Dickey considered them formally “engaged.” He didn’t get down on one knee and propose and didn’t buy a ring, but she said he specifically asked to marry her, and she accepted.
More passionate encounters ensued, and that April Dickey told Tytus that she was pregnant. He assured her that everything would work out and, she said, reiterated his promise of marriage. His primary response, however, was to purchase medicines and herbal concoctions that were supposed to induce miscarriage. When these remedies failed, Tytus started shopping for an abortion, but those plans went awry.
There were options for a woman in Dickey’s situation, plenty of them, but they all involved risks. Madame Sidney Augustine Frazier, for example, was a Tarot card reader and a midwife, but she allegedly earned most of her income performing abortions.
In spring 1873, Hattie Spearing suffered what could have been one of Dickey’s alternate fates. When Spearing got pregnant, her boyfriend, a struggling blacksmith, announced that she was getting an abortion or otherwise he’d kill her or the infant. So she let him bring her to Cincinnati from the outskirts of Springfield, and Frazier charged $50 for the operation, medications, room, and nursing services (roughly $1,100 today). The boyfriend agreed to pay about half but then disappeared.
Broke, alone, and in trouble, Spearing accepted Frazier’s terms that she work as a house servant until she could pay off her debt. Frazier told her, however, “I’ll not touch you until my money is secured.” Spearing was already four months pregnant, but she did grueling chores for several weeks before finally being admitted to the dark, lantern-lit back room that served as an operating theater. Using a tool that looked like a bent knitting-needle with a ball at the end, along with a syringe containing an undefined liquid, Frazier performed an abortion. Then they waited.
IN 1870s OHIO, the crime of abortion was punishable by one to seven years in the penitentiary even if the woman miscarried or died as a result.
Spearing writhed in agony for at least six hours before her induced miscarriage, a common occurrence in that era. Sometimes the process took days. Her umbilical cord was severed during the procedure, which is why the placenta remained inside her while she lay hemorrhaging for the next eight days.
When a doctor was finally called to the house, he did what he could, but Spearing was on the precipice of death. Deeming it more precarious to have a corpse in the house, Frazier called for an ambulance. At the hospital, the placenta was removed, the bleeding stopped, and Spearing survived.
Initially, she blamed her miscarriage on heavy lifting, keeping her promise not to reveal the truth. But under persistent questioning by Coroner P.F. Maley, she confessed. Spearing didn’t turn on Frazier because she’d almost killed her; she was angry that she’d been taken to the hospital, where her sins were exposed to the public.
Frazier was successfully prosecuted, then sentenced to five years in the penitentiary at hard labor for what the judge called her “very heinous” crime. Maley was instrumental in her prosecution, along with others, and was heralded by The Cincinnati Enquirer for being “Sheriff, Constable, detective, and informer” in abortion cases.
Women like Spearing, however, were not the primary concern of either Maley or the state legal system. Ohio made the crime of abortion punishable by one to seven years in the penitentiary; the sentence was the same regardless of whether “the woman either miscarries or dies in consequence of the procedure.” In fact, killing a woman during an abortion, regardless of how recklessly, had a maximum penalty three years lighter than any other form of manslaughter.
Statements by others suggest that Madame Frazier was performing at least one abortion a week, possibly more, and she was just one of the city’s providers. Only a small percentage of abortions were prosecuted, but that did nothing to change vehement public disdain for the procedure. In praising Maley, The Enquirer asked, “If Coroner Maley does not attend to this work who will, and who will put a stop to the wholesale murder of unborn children if he does not?”
Anyone who helped a woman procure an abortion—including paramours, husbands, friends, and parents—was eligible for a seven-year prison sentence. If Tytus had succeeded in finding a doctor for Dickey, he would have been guilty of the same crime as the doctor. Tytus was desperate and willing to take this risk, but it was a bad time to find a competent physician who was willing to perform an abortion in Cincinnati. An Enquirer editorial called the often quiet, unassuming homes where abortions were performed “the foulest sores on the social body” and noted with enthusiasm that “Doctor Maley is keeping a sharp eye on these places and as fast as the opportunity offers he will bring the occupants, be they men or women, to trial.”
Cincinnati Physician D.W. Mccarthy had been mentioned in a past abortion investigation, but he’d never been charged with the crime. Doctors rarely faced charges for performing abortions unless they botched one badly enough to send a woman to the hospital or the morgue. Nevertheless, McCarthy didn’t want to risk his luck in the present legal environment, so he refused Tytus’s plea to perform an abortion on Nancy Dickey. He did offer an alternative.
McCarthy arranged for Dickey to live with a woman named Mrs. Ducker during the last few weeks of her pregnancy. Ducker concealed both the pregnancy and the birth of a daughter, Alice, in December 1873. McCarthy then performed several ethically questionable services while Ducker raised Alice from birth to the age of 4.
Tytus provided money for Alice’s care through McCarthy, but he also became scarce. According to Dickey, he’d repeated his intention to marry her in May 1873, but that proved disingenuous when he married a strikingly beautiful and extremely rich heiress from one of the wealthiest and most influential families in Ft. Wayne, Indiana.
In the years that followed, Dickey floated between family members and friends without a clear plan for her future. She rarely saw her daughter, entrusting Alice to the care of a stranger who billed her for the service of raising the girl. The birth didn’t bring the joy that it should have, as Dickey remained terrified to let anyone know that she was an unchaste woman with a fatherless child. Finally, in December 1877, after all attempts to reach an amicable resolution with Tytus were exhausted and her only remaining options were desperate, Dickey made the entire sordid tale public by filing a bastardy suit against him.
Family Court and child support payments are relatively recent developments in the law. In the 1800s, the closest equivalent started with filing criminal bastardy charges against the alleged father. Long before blood tests or DNA, the mother had the burden of proving the identity of her child’s father through physical resemblance and testimony about her own sexual history. If the accused either confessed his paternity or was found to be the father by a jury, he was guilty of criminal bastardy. There was no jail time—the punishment was to pay the cost of the child’s care in whatever amount the judge deemed fair.
Dickey also filed a $20,000 civil suit against Tytus for breach of an oral marriage contract, a legally recognized claim in the 1800s. Tytus hired famed Cincinnati attorney T.C. Campbell to defend him. He was a controversial figure with a lot of detractors, but everyone agreed that he was one of the nation’s most effective lawyers.
Bastardy cases began with a preliminary hearing in which the mother accused the defendant of fathering her child, laying out the abbreviated justifications for her claim. The man could concede his paternity, but if he wanted to challenge the allegation he had an opportunity to cross-examine her. A magistrate then decided whether there was sufficient evidence to move the case forward to trial.
The preliminary hearing in the Dickey- Tytus matter was held before the justice of the peace in Middletown. With no legal basis for barring bystanders, the room filled with what The Enquirer described as a “motley crew of corner loafers and libidinous heathens.” In a room packed with gawking men, all intoxicated by the public degradation of this sumptuous fallen socialite, Dickey fumbled, contradicted herself, and became confused during Campbell’s brutal cross-examination.
Questions about when, where, and how often she had had “illicit intercourse” with Tytus had limited legal relevance and seemed to be mostly designed to humiliate and embarrass her—the 19th century version of slut shaming. Dickey became flustered and rattled, but she prevailed. The magistrate ruled that she’d established enough facts to allow the bastardy suit to move forward. Tytus had to post a bond and await a criminal trial in the Court of Common Pleas, as well as a civil suit for the breach of promise to marry.
The breach of promise suit was tried before the criminal bastardy case. In the months between the preliminary hearing on the bastardy case and the start of the civil trial, the Dickey-Tytus affair received almost constant news coverage, partly due to its salacious nature and partly due to the numerous side plots that developed. Rather than breaking Dickey, though, being subjected to public humiliation hardened her mettle. On the first day of the breach of promise trial, she made her way through the packed crowd to take her seat, holding her head high and refusing to show any emotion or embarrassment. Once again, she was the only woman in the room.
Tytus unequivocally denied everything, saying he’d never engaged in “illicit intercourse” with Dickey, he hadn’t asked her to marry him, and Alice was not his child. He had paid for the infant’s care simply out of friendship with Dickey and because he was a gentleman whose generosity had been rewarded with blackmail.
Campbell’s defense strategy was to baselessly imply that Dickey was so promiscuous and of such low moral fiber that her testimony couldn’t be trusted. Vicious and relentless as his tactics were, Campbell failed. The jury believed Dickey, ruling that Tytus had broken his promise to marry her and awarding her $6,000 of the $20,000 in damages that she had sued for (roughly the equivalent of $135,000 today). Dickey had won temporarily, but Campbell did not take defeat well.
Early on Christmas Morning 1877, Dr. McCarthy lay sleeping in bed next to his wife in their Seventh Street home. He’d been billing Dickey and Tytus to help conceal their child for the previous four years. At the insistence of their two children, the McCarthys arose in the earliest hours of Christmas morning to see what Santa had left in the stockings. After this brief excitement, the family went back to bed.
McCarthy was sleeping soundly when his wife nudged him awake with her elbow sometime between 4:30 and 5 a.m. She heard something downstairs. The couple lay silently listening to some movement on the first floor. A man who had been crouched silently at the foot of their bed then stood up, pointed a revolver at them, and told them to keep quiet or he would “blow their brains out.” Nevertheless, Mrs. McCarthy started screaming, “Murder!” and “Police!” The unnerved gunman fled through the bedroom door, down the stairs, and out of the house as neighbors began to awake to the cries for help. Candles and lanterns were lit, warm beds hastily abandoned, and concerned neighbors started gathering in the McCarthy home. No one was hurt, but the doctor’s office had been burglarized.
Oddly, expensive items lay untouched and in the open, but a thief had meticulously broken the lock on three different desks until finding and taking large envelopes labeled “Tytus vs. Dickey.” McCarthy had refused to give Dickey an abortion, but he enabled her to deliver her child in secret and had remained a go-between. He’d kept a series of personal letters between Dickey and Tytus pertaining to the care of their daughter after her birth and seems to have been quietly shopping them around, looking for the highest bidder. As a result, a select few people had read them, and those who’d become familiar with them agreed that the letters corroborated Dickey’s version of events and virtually assured Tytus’s conviction on the bastardy charge.
At the time of the burglary, few people knew that these letters existed, though Tytus and Campbell were among the people in the know. Tytus also seemed to have the only compelling motive to orchestrate an armed burglary solely to steal evidence in his case.
The police charged a career thief named Henry Curtis with the burglary. Following press coverage of the theft and speculation about its motive, Campbell pounced, announcing that he was representing Curtis and then brilliantly using the burglary trial to Tytus’s favor. Under the ruse of defending Curtis, he called Tytus to the stand as a witness and asked him to identify several documents. On cue, he explained that these were copies of the letters that he had sent to McCarthy, copies he’d made before sending the letters and kept for his own records. This wasn’t relevant to Curtis’s defense, and a befuddled prosecutor tried to bring the focus back to Curtis. That’s when he walked blindly into Campbell’s trap.
Simply to placate Campbell and get on with the trial, the prosecutor agreed to stipulate that everything that Campbell was calling “facsimiles” of documents that had been stolen from McCarthy were, in fact, accurate copies of the stolen papers. Campbell then theatrically confronted the prosecutor, demanding to know if he was accusing him or his client of hiring Curtis to commit the burglary. Taken off guard by the attack, the prosecutor vehemently assured the court that he absolutely was not accusing Campbell or Tytus of orchestrating the theft.
For the prosecutor, the sole purpose of the trial was to determine whether Curtis was guilty of burglary. For Campbell, Curtis was a pawn. Campbell successfully used the trial to unwittingly trick the prosecutor into offhandedly authenticating a stack of fake documents and to exonerate himself and Tytus from any involvement in the crime. It was a brilliant piece of chicanery. His primary objective satisfied, Campbell then delivered a solid defense for Curtis. The jury deadlocked six to six, and although he wasn’t acquitted Curtis would remain free. Officially, the stolen letters were never recovered.
Then Campbell released the documents to the press to demonstrate his client’s innocence in the bastardy case. When Dickey and McCarthy had the opportunity to read Tytus’s “copies,” they saw that several were, in reality, whitewashed substitutes removing all of the unequivocal proof of Tytus’s guilt contained in the stolen documents. Even more mysteriously, they concluded that several innocuous letters weren’t copies. They were actually some of the stolen original letters.
The McCarthy burglary officially went unsolved and was quickly forgotten. Meanwhile, a stack of fake documents that portended Tytus’s innocence were unwittingly authenticated in court and made part of his case’s public record.
Following the civil suit for breach of contract of marriage in which Dickey had been awarded a $6,000 judgment, plus costs, Tytus filed bankruptcy to avoid paying the judgment. He was rich, but he earned his money in the most respectable Gilded Age fashion: He inherited it. Technically, Tytus’s father was rich. Tytus’s primary profession was flitting around the upper crust of Milwaukee, Chicago, Indianapolis, Ft. Wayne, Dayton, Middletown, and Cincinnati as a socialite and a playboy. Yes, his gorgeous new wife was also filthy rich, but she was an heiress. When you broke it down on paper, it seemed that Tytus simply lacked the resources to pay Dickey, rendering her initial victory financially useless.
When the criminal bastardy case was scheduled to begin, a courthouse full of sweaty voyeurs waited for hours in the summer heat for the defendant to arrive. He never did. Referring to one of the technical requirements that was unique to criminal bastardy proceedings, Campbell argued that because of a technical error by the judge, the only way that the court still had jurisdiction over Tytus was if he voluntarily appeared for trial—something he had no intention of doing. Based on a trivial error and his mastery of the law, Campbell threw the fate of Dickey v. Tytus into limbo.
Backed into a corner, Dickey was forced to settle the case. She’d reportedly been offered a $5,000 settlement before the breach of promise trial and had rejected it, not because of the money but because of the additional terms. Tytus’s offer required her to deny that he was Alice’s father.
Dickey had been forced to confess that she “surrendered up the dearest jewel of womanhood” on the seat of a buggy, a humiliation she could never completely correct. She drew a firm line at allowing the public record of the case to suggest that she was so unchaste that she couldn’t identify her child’s father. Tytus, however, was equally intransigent. Milwaukee and Chicago newspapers, which also followed the trial, reported that Mrs. Tytus loved her husband undyingly and vowed to stick by his side—unless, of course, he was convicted of bastardy. If that happened, she would be making her own trip to a courthouse. If Tytus admitted paternity, he would lose the heiress.
At loggerheads and with few cards left to play, Dickey folded. She agreed to accept $3,850 with no admission of paternity. Ultimately, she received slightly less. On Christmas Eve 1878, her lawyers filed an entry of satisfaction of judgment with the Butler County Court, stating that they were releasing all further claims to the $6,000 judgment in exchange for $2,905.89 received. Although The Chicago Post and Mail wrote that it “would have been cheaper” for Tytus to have “married Miss Dickey and killed her the next day,” the money she received was only a fraction of her legal bills.
Dickey also lost a motion for injunction to stop publication of a book about her affair with Tytus and the trial. She claimed that it constituted obscenity, but the trial had muddled the legal definition of obscene. If her sex life had been described in a work of fiction, a late 19th-century court may have declared it obscene, but the bar had been blurred by the detailed and salacious coverage of court proceedings in newspapers across the country. Like the national shaming of Monica Lewinsky a century later, Dickey v. Tytus redefined Victorian moral standards for the media.
Dickey’s pleas to keep a photo of her innocent child out of the publication also failed. Mrs. Ducker, the woman who hid Alice’s birth and raised the child for the first four years of her life, cast cold scorn on Dickey as an absentee mother. But despite her righteous indignation, she decided to have little Alice photographed and then filed a copyright claim on the photo, using it to cash in on the scandal.
Written as an obvious truism, The Chicago Tribune said that the “principal sufferer in the case is of course Mrs. Tytus,” whom the paper described as “a dashing society woman with plenty of money.” Dickey probably disagreed. But she lived in a time when Christian values were enshrined in the U.S. legal system, the sin of “illicit sex” had criminal repercussions, and abortion was murder.
The media didn’t think that Nancy Dickey deserved empathy. She was simply a lesson for other women and girls to heed.