Kimberley A. Reilly is a research fellow at the Center for International and Comparative Law at the University of Baltimore School of Law <firstname.lastname@example.org>. She thanks Matthew Lindsay, Amy Dru Stanley, Christine Stansell, Kathleen Conzen, Aaron Lecklider, Ann Holder, David Tanenhaus, and the anonymous readers of Law and History Review for their suggestions and critiques of various drafts of this article.
In 1871, Mary Ann Harlan brought an unprecedented suit against her neighbors, Elliot and Mary Clark, before the Superior Court of Cincinnati. She alleged that they had “wrongfully and maliciously enticed away” her husband, Robert Harlan, from their home, thus depriving her of Robert's “society, protection, and support.”1 The common law had long given husbands the right of action to sue third parties who enticed away, harbored, alienated the affections of, or seduced their wives. In these types of marital torts, a husband sought damages for the loss of his wife's “consortium,” a term that expressed his property in her services and society. At the time of Mary Ann's suit, however, wives had no such reciprocal right. In part, this was an outcome of the common law doctrine of marital unity, or coverture, under which a wife's legal identity was merged into that of her husband upon marriage. Unable to sue or be sued, she had to be joined by him in a legal action. Courts were hardly amenable to the idea of allowing husbands to join in suits involving their own marital transgressions, where they would stand to profit from their misdeeds if any damages were awarded. More fundamentally, however, the limitation of wives' access to legal remedies was an expression of the hierarchical nature of marital unity. No less an authority than eighteenth-century English jurist William Blackstone, the most influential expositor of the common law, put the reason plainly: “the inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior; and therefore the inferior can suffer no loss or injury.”2 According to this theory, a wife was not barred from bringing such a suit simply because of her legal disabilities under coverture; as a subordinate in the marriage relation, she lacked any reciprocal claim to her husband's society. Mary Ann's case, then, hinged on whether she had the right to bring her suit.
The Harlans were a couple of some note within Cincinnati's African American community. Robert, then a rising figure in Ohio's Republican party, had been born a slave in the family of James Harlan, father of Supreme Court Justice John Marshall Harlan. Some historians have speculated that he may have been the justice's half-brother.3 Freed in 1848, Robert had traveled widely and made a fortune in California during the Gold Rush, but had lost much of it by the time he married Mary Ann in 1868 because of poor investments and a failed horse-racing venture in England.4 Perhaps this was why, as Elliott Clark's lawyer suggested during the trial, Robert married Mary Ann: she was a woman of some wealth. But after a year of married life, Robert left his home with Mary Ann to reside with the Clarks. The Clarks' lawyer described Robert's motives as honorable; the couple “found they could not agree,” and Robert effected a separation, leaving Mary Ann in possession of her property. But Robert's choice to live with the Clarks apparently incensed Mary Ann. She and Mary Clark were not on good terms, and when she attempted to visit her husband at the Clark home, Elliott had “rudely repulsed her, and shut the door in her face.”5
However commonplace her motivations, Mary Ann Harlan's suit for the loss of her husband's consortium was exceptional—“anomalous,” in the words of the presiding judge.6 It broke not only with the longstanding common law rule, but with cultural assumptions about the innate differences between men and women. Men brought suits of enticement and harboring against other men for interfering with their possessory rights to their wives: their legal entitlement to their bodies, labor, and companionship. But the very notion of a man being “enticed” or “harbored” by someone else was incommensurate with entrenched understandings of male freedom and husbandly authority. If Robert had left Mary Ann, Elliott Clark's lawyer maintained, it could only have been of his own volition and not as a result of improper intervention by the Clarks. Robert's will was his own, and “he had a right to go” where he pleased.7
Remarkably, however, the Cincinnati court rejected the Blackstonian theory that wives had no claim to the consortium of their mates, and ruled that Mary Ann had a right to sue the Clarks for enticing and harboring Robert. “If the husband's right to claim damages for the loss of his wife's society…arise[s] by virtue of the contract of marriage,” it argued, “the same result, for stronger reasons, should follow the loss of the husband's consortium by the wife.” The court did not apply the legal theory that motivated traditional suits of enticement and harboring, which would have entailed granting wives property in the person their husbands. Rather, drawing on the state's 1861 married women's property statute, it conceptualized wives' entitlement as a property right, rooted in the marriage relation, to their husbands' economic support, protection, and companionship.8 These were “obligations,” it explained, that a husband solemnly undertook and faithfully abided “to her to whom he has pledged his affections until the bond is severed by death.” Although this reasoning reinforced wives' economic dependence on their husbands, it also imagined them to have equality in the emotional sphere of their union. Rejecting “the old idea of conjugal servitude,” which made a wife “a chattel under the control of her husband,” it endorsed a model of marriage in which “each [spouse] must have their separate interest, controlled only by mutual affection and regard.”9
Clark v. Harlan was the first in a wave of late nineteenth-century suits that would establish the right of aggrieved wives to seek damages from third parties who instigated discord in their marriages.10 It also marked the beginning of a reconstruction in the meaning of consortium, and thus courts' reconceptualization of what was valued—and worthy of legal protection—in the marriage relation. This article examines the emergence of wives' right of action for enticement, harboring, alienation of affections, and criminal conversation (or “crim. con.,” as it was commonly known). Drawing on appellate opinions, treatises, periodicals, and archival court records, it charts the little-known history of this doctrinal transformation, and probes its implications for the legal and cultural construction of marriage in this era.11 Courts endowed wives with a right to their husbands' society and companionship by categorically rejecting the common law ideal of marriage as a gendered hierarchy in which husband and wife were akin to master and servant. In its place, they articulated a modern marital regime in which spouses had equal entitlements in the emotional realm of their union. According to these decisions, couples were not joined by the status relations of dominion and dependency that characterized the doctrine of marital unity; rather, husbands and wives were bound by intimacy and mutual regard.
This article begins by sketching the historical context of civil actions for lost consortium. Then, in three parts, it argues that wives' suits were central in redefining consortium and marital unity between 1870 and 1920. The first part analyzes the initial extension of these actions to wives in the late nineteenth century. Courts reconstructed the definition of consortium to exclude wifely services, and simultaneously discovered for plaintiff wives a property right in their husbands' society and companionship. These decisions granted a married woman theoretical parity in the emotional sphere of her union, but did not accord her property in the person of her husband, as a married man had in his wife. The second part demonstrates the limits of wives' newfound entitlement in the realm of affect. Wives' right to the protection, society, and companionship of their husbands did not give them equal access to husbands' traditional actions to recover for lost consortium under the common law. Gendered differences in nineteenth-century courts' conceptualization of husbands' and wives' consortium generated disparate constructions of wives' actions for harboring, enticement, and alienation of affections, and it barred entirely wives' suits for crim. con. and loss of consortium due to third-party negligence. Part three examines the eventual extension of the action for crim. con. to wives in the early twentieth century. It argues that this reversal in the common law disavowed the nineteenth-century sexual double standard by expanding wives' marital entitlements to include the sexual fidelity of their husbands.
At first glance, the story of wives' access to these torts appears comparable to trends in other areas of the law toward interpreting marriage as an emotional bond rather than a hierarchical relation of male headship and female subjection. Through the nineteenth century, many Americans viewed marriage not as a regime of inequality, but as an institutionalized expression of mutual love and devotion. Scholars have shown that by the late nineteenth century, jurists increasingly conceptualized marriage in these affective terms.12 Likewise, wives' newfound right to their husbands' consortium appears to mirror the enhancement of other legal remedies for women in the emotional realm, such as divorce on the grounds of marital cruelty and recovery in tort for “nervous shock.”13
In important respects, however, the emergence of wives' property in their husbands' consortium challenges historians' understanding of the construction of marital unity and the role of emotion in the marriage relation in this era. When courts recognized wives' claims to the consortium of their mates, they did more than acknowledge the growing centrality of mutual affection to the marriage bond. Rather, they conceptualized marital companionship itself as the property of wives, no less than husbands. In these cases, then, marital intimacy and companionship functioned not as a rhetorical veil that masked the persistence of patriarchal legal arrangements (although clearly such inequalities did persist), but as a new, legally enforceable right of married women. Moreover, courts justified wives' access to civil remedies for lost consortium on the basis of their parity and reciprocity with husbands. By contrast, women's suits for divorce on the grounds of marital cruelty and nervous shock succeeded by virtue of the plaintiffs' distinct physical and mental frailty as women.
What remains significant about these decisions is not that they succeeded in equalizing the respective marital entitlements of husbands and wives; given the disparate construction of wives' suits, and the broader scope of wives' continued legal subordination in this era, this was far from the case.14 They demonstrate, instead, how jurists who rejected the conspicuous sexual hierarchy of coverture nonetheless reproduced wifely subordination in a modern marital regime that emphasized spousal reciprocity. For the affective sphere in which courts cast wives as the equals of their husbands also marked the limits of wives' parity. Even as judges and law writers redefined consortium by refuting the notion that a wife was her husband's servant, they strengthened his title to her body and sexuality. If we view this era, then, not only as a capstone to the “long nineteenth century,” but as the foundation of the “long twentieth,” the story of consortium's transformation illuminates the persistence of gender hierarchy within modern marriage's putatively equal plane of spousal intimacy and companionship.
When Mary Ann Harlan petitioned the court in 1871, enticement and harboring were well-established torts. They had originated in eighteenth-century England, and gave a husband a cause of action against anyone who persuaded his wife to leave him, or who withheld her from him. Closely related was the suit for alienation of affections, an American tort that developed in the mid-nineteenth century. A husband could bring suit against anyone who estranged his wife from him, even “without proof of [her] elopement or adultery.”15 Crim. con. gave a husband a right of action against another man who had sex with his wife without his consent. Scholars have traced its roots to thirteenth-century royal writs of abduction and ravishment, but the modern suit emerged in the late seventeenth century as form of trespass vi et armis, by force and arms.16 Although the action was typically brought by a husband in response to his wife's adultery, it could also be used to recover damages if she were raped. Indeed, whether the sexual act in question was rape or adultery, or whether the wife was seduced or the instigator of the affair, was immaterial to the husband's suit. As Tapping Reeve, an early nineteenth-century judge and authoritative analyst of American family law, explained, “adherence to a maxim” without “the least foundation in common sense” that a wife under coverture was “destitute of a will, and therefore could not have consented to commit adultery” made the yawning gap between rape and infidelity moot. The rules of crim. con. imagined the defendant “as a ruffian, who accomplishes his purpose by brutal violence, and not as an unprincipled seducer, who, by art and intrigue, commits the greatest of all injuries.” Although there were important differences among them, the actions for enticement, harboring, alienation of affections, and crim. con. all expressed unequivocally a husband's property in his wife's services, companionship, sexuality, and body. As legal historian Hendrik Hartog writes, these actions “punished others for interfering with or taking that which belonged to [a man] as a husband.”17
The common law doctrine of marital unity presented a husband's sovereignty over his wife as an organic expression of sexual difference. In his 1871 Commentaries on the Law of Married Women, Joel Prentiss Bishop located the husband's “right to command” and the wife's “duty of obedience” in “the law of nature, which gave strength to the man and feebleness and dependence to the woman.” Likewise, James Schouler's 1870 disquisition on the law of domestic relations propounded the view that a husband's authority over and property in his wife was a consequence of “the laws of nature and divine revelation.” Man's competitive nature and property in his own labor underwrote a husband's duty to render economic support, just as woman's capacity for childbearing and reputed domesticity obliged her, once married, to provide household services and wifely solace.18 Indeed, nineteenth-century judges and treatise writers defined these mutual rights and responsibilities as “co-extensive,” a wife's “services and the comfort of her society being in fact the legal equivalent” of her husband's support. Yet the couple's fulfillment of these obligations was no simple contractual exchange. While the agreement to marry was considered a contract, marriage itself was a “status,” the terms of which expressed a hierarchical relation that was unalterable by the married pair. As Bishop explained, if an engaged couple agreed that, as husband and wife, “the woman should be the master and the man should obey her,” this arrangement would become invalid upon their marriage, and “the law would settle the question of rule” in favor of the man. Similarly, a husband's promise to pay his wife money for her household services or sexual intercourse, confirmed fellow treatise writer Walter Tiffany, would be “void for want of consideration,” as the wife would be “doing…something which she is already bound in the law to do.” The doctrine of marital unity bound sexual difference to legal capacity in order to assure, in the words of Schouler, “that identity of interests which is essential to domestic happiness.”19
Law writers understood a wife's duty at common law to labor for her husband and capitulate to his will not as a condition of servitude, but as an expression of marital affection. The popular idealization of marriage as a loving and romantic union, which emerged after the Revolution, appeared to contemporaries to temper the most hierarchical aspects of the common law schema. In both sentimental descriptions of what it meant to be a wife, and in the legal concept of consortium, the duties of “affection” and “service” were enmeshed. Women's rights reformer Julia Ward Howe, for example, recognized the economic transaction at the heart of the marital relation that made wives' household labor “something which they should be thankful to do in order to have a roof over their heads and a piece of bread in their mouths.” Even Howe, however, subscribed to the view that these responsibilities were wifely “service…, elected through affection, and glorified by it.”20 The mutuality of a couple's devotion, however, did not bear upon their respective legal entitlements to consortium. A wife's domestic labor, solicitude, and sexual companionship were the valuable property of her husband, to which she had no reciprocal claim. “The husband has a right to the comfort and assistance of his wife,” averred the Supreme Court of New York in an 1856 landmark alienation of affections suit. “The wife owes to the husband the duty of living with him, and seeking to promote his interests and happiness, and by preventing the performance of that duty a wrong is done to him, involving a pecuniary loss as well as a loss of peace and comfort in the marriage relation.”21
The Cincinnati court's finding in Clark v. Harlan, however, reflected a sea change in the law of husband and wife that had begun in the antebellum period. Even as Bishop's 1871 treatise endorsed the theory of “the wife's subjection to the will of the husband,” he complained that “the position of women in the community, and particularly…the wife in relation to her husband” was in “a state of ferment” on account of the passage of the married women's property laws, or “married women's acts,” as they were commonly known. Schouler similarly described the law as “unsettled” and “confused,” the result of a contest between the “opposing schemes” of common and civil law.22 Beginning with Mississippi in 1839, states began to enact laws allowing wives to possess the property they owned at the time of marriage, or acquired through gift or inheritance after marriage. These laws also allowed wives to sue, be sued, and contract in their own names. By 1865, twenty-nine states had adopted some version of the married women's acts, a reform that would continue through the end of the nineteenth century. Scholars have emphasized the profound limitations of these acts: the statutes were intended to secure wealth within families and protect husbands against creditors, rather than equalize the relation of husband to wife; they were collectively piecemeal and narrow in their conception; and they were construed by judges to dramatically limit their effects.23 For contemporaries, however, they represented a significant challenge to the theory of marital unity and wifely subjection. Women's rights advocates hailed the 1848 passage of New York's property act, too optimistically, as “the death-blow to the old Blackstone code for married women in this country.” Elements of coverture would continue to hold sway over aspects of wives' legal identities, and treatise writers would continue to place the doctrine of marital unity at the center of the relation, well into the twentieth century. The acts did eliminate one barrier to wives' suits for loss of consortium, however, as they authorized a married woman to bring such suits on her own behalf, and allowed her to possess any damages awarded.24
However, the married women's acts alone could not authorize a wife's action against a third party who enticed, alienated the affections of, or seduced her husband. Suits brought by husbands hinged on their possession of their wives' services and society, but wives, as inferior parties at common law, had no reciprocal claim. Coverture endowed husbands with all that their wives possessed: their property, services, companionship, and bodies. These torts remedied violations of men's personal dominion. The very rationales that entitled husbands to damages dispossessed wives. The recognition of plaintiff wives' claims to loss of consortium therefore necessitated a transformation in the meaning of “consortium” itself.25
Courts in the late nineteenth century found a right of action for plaintiff wives by extracting “services” from the definition of consortium and rejecting the Blackstonian characterization of the wife as an obedient servant to her sovereign. Surprisingly, the first landmark cases to deny service as a necessary element of suits for loss of consortium were brought by plaintiff husbands in the 1880s. The 1883 Massachusetts case Bigaouette v. Paulet established the rule that the essence of a crim. con. suit was the violation of the husband's exclusive right to sexual intercourse with his wife, and not the loss of her services. “A husband is not the master of his wife,” the Massachusetts court wrote, “and can maintain no action for the loss of her services as a servant. His interest is expressed by the word consortium,—the right to the conjugal fellowship of the wife, to her company, cooperation and aid in every conjugal relation.” One year later, in Rinehart v. Bills, Missouri's high court agreed that neither a wife's adultery, nor her “elopement”—and by extension, the loss of her services—were necessary preconditions to a husband's suit for alienation of affections. Rather, the essence of the wrong was “the alienation of his wife's affections with malice or improper motives.”26
Bigaouette and Rinehart significantly redefined consortium, thus laying the groundwork for a legal recognition of wives' reciprocal claims to it. By disentangling wifely services from the legal concept of consortium, they eliminated a significant bar to wives' right of action for crim. con., alienation of affections, and similar torts, as married women certainly had no claim to the services of their husbands. Moreover, in rejecting service as a basis of these torts, these decisions promoted a less overtly hierarchical vision of the marriage relation, protecting marital affection and sexual intimacy over a wife's obligations as an economic dependent. However, even as the courts adjudicating these suits undermined the ideal of marital unity by dispossessing husbands of their wives' services, they strengthened the terms under which a man was due recompense for violations to his wife's body, sexuality, and emotional fidelity.
The particularities of these two cases demonstrate their broader limitations in advancing the equality of wives. Hermine Bigaouette was 4 months pregnant when her husband's supervisor threatened to fire her husband if she did not submit to his sexual advances. After he raped her, he held a gun to her and threatened to “blow her brains out” if she ever told her husband. She was bruised and injured from the event, but as she alone kept the house, she continued to perform her “ordinary domestic duties,” even though they caused her “pain and difficulty.” When her husband, Noel, learned of the assault after the birth of their child, he brought a suit for crim. con. against his supervisor for the loss of Hermine's “comfort, assistance, society and benefit” as a result of her physical and mental injuries.27 A lower court ruled that Noel had no cause of action, because Hermine's injuries had not resulted in the loss of her services. But the Supreme Court of Massachusetts located the injury to the husband in crim. con. not in the wife's services, nor in the intangible rights of “comfort” or “assistance,” but in the husband's absolute entitlement to his wife's body and sexuality: “the defilement of the marriage bed” and “his exclusive right to marital intercourse with his wife, and to beget his own children.” The fact that Hermine was raped, and not seduced, was no bar to the suit, said the court, because the “original and essential wrong” to the husband was the “corrupting” of his wife's body, not her mind. Nor did it matter that the rape did not cause her to lose affection for Noel. Loss of the wife's affection, company, and assistance were only matters of aggravation, the court explained. The “peculiar and exclusive” nature of a husband's property in his wife's body always presumed his loss of consortium if she had sexual intercourse without his consent.28 Likewise, in the case of Rinehart v. Bills, the plaintiff husband suffered no loss of services. Nor did he claim the loss of his wife's comfort or society. He learned that she had been courted by a family friend—through letters, presents, and “bright promises of future happiness”—only when she confessed her plans to elope with this suitor and begged her husband's forgiveness in order to “remain with him as his wife.” The Missouri Supreme Court found in favor of the husband, characterizing the friend's “salacious and seductive” overtures as “a wrong inflicted on the sanctity of [the husband's] home.” A wife's affections could be alienated from her husband, it concluded, “notwithstanding her continued residence under her husband's roof” and her sexual faithfulness.29 These two suits would serve as the legal framework within which courts would characterize consortium as a reciprocal emotional entitlement of both spouses. As they authorized wives' claims to the consortium of their husbands, however, they refigured the very nature of the marital assistance a wife was obliged to provide. According to the combined logic of these holdings, a wife was no longer the servant of her husband; now her duty to her mate hinged on her complete fidelity of body and mind.
Within the decade, two New York decisions in suits brought by wives for alienation of their husbands' affections relied on Bigaouette and Rinehart to uphold the plaintiffs' causes of action, and other jurisdictions would soon follow. The New York courts rejected the argument that wives had no property in their husbands' consortium because they were not entitled to their husbands' services. Loss of services, they held, was no longer an element of the suit.30 Despite the strong claim of the Massachusetts court in Bigaouette that husbands were not the “masters” of their wives, most authorities asserted that husbands still possessed their wives' domestic labor.31 But by the late nineteenth century, treatise writers corroborated the view that “consortium” was something separate from household services. The 1891 edition of Joel Bishop's treatise on marriage and divorce recognized that a husband's alienation of affections suit could be maintained “though [his wife] neither leaves him nor yields her person to the seducer.” Chicago lawyer William C. Rodgers similarly distinguished between “loss of services” and “loss of consortium and conjugal society” in his 1899 family law treatise. Walter Tiffany cited the clear distinction between services and consortium expressed by Indiana's Appellate Court in 1892. The court explained that although “the theory of such an action was originally the loss of services,” modern authorities judged loss of “consortium” to be basis of the alienation of affections suit.32
As courts adjudicating these marital torts purged “services” from the definition of consortium, they simultaneously established that wives—inferior parties at common law—had a right to the society of their husbands. There was some precedent in the English ecclesiastical courts, which had allowed both wives and husbands to bring suit for restitution of marital rights in the wake of a spouse's desertion.33 But most judicial opinions, with varying rationales, simply rejected the Blackstonian characterization of wives as subordinate parties who had no claim to the affections or companionship of their husbands. Many relied on the statutory intervention of the married women's property acts to justify wives' claims, stressing with virtual uniformity that state legislatures had abrogated the common law doctrine. “The common law dominion of the husband over the property and personal rights of the wife has been taken from him” by statute, asserted the Supreme Court of Ohio in 1878.34 Courts following this theory held, as Clark v. Harlan had, that upon marriage both husband and wife acquired a property in the conjugal society of the other, which a wife could now claim in her separate estate.35
Other jurisdictions went further, declaring that a wife's right of action would lie even at common law. Bennett v. Bennett (1889) was the one of the first to express this theory, and became a leading case. The New York Court of Appeals reasoned that, given the old requirement that wives be joined by husbands in such suits, the absence of any legal precedent was “not surprising.” Instead, it relied on the maxim that “the law will never suffer an injury and a damage without a remedy.” It contended that consortium was a “natural right” as well as a “legal right” of both spouses that emerged from the marital relation, entitling both to “the comfort, companionship, and affection of the other.” Connecticut's Supreme Court of Errors refused in even stronger terms the premise that a wife's inferiority at common law gave her no claim to her husband's consortium. “No theory of the law as to the merger of the rights of the wife in those of the husband could include her right to his conjugal affection and society,” it insisted. “Although all other debts and rights to her might go to him” upon marriage, the court maintained, there remained “this particular debt from him to her absolutely alone and beyond the reach of the law of merger.”36 Such holdings were hardly exemplars of logical reasoning, failing to explain how a wife could have had a right at common law that she was unable to enforce. However, they expressed judges' firm belief that wives' common law disabilities in the arena of marital love and affection were at odds with modern conceptions of the marriage relation. “Why should he have a right of action for the loss of her society,” asked the court in Bennett, “unless she also has a right of action for the loss of his society?… Since her society has a value to him capable of admeasurement in damages, why is his society of no legal value to her?”37 Such rhetorical queries enlarged what a husband owed his wife beyond mere sustenance.
Judicial opinions frequently expressed distaste toward the notion that a wife could have no remedy at law when her husband was enticed, alienated from her, or seduced. However, if courts no longer conceived of wives as legal inferiors in the realm of marital society and affection, neither did they understand them to be the equals of men. Some courts invoked the frailty of women as a rationale for broadening their legal entitlement to consortium.38 At the same time, they distinguished sharply between the vulnerability of women—which demanded vigilant judicial safeguarding—and wives' old status as subordinates under the doctrine of marital unity. The latter was “barbarous” according to the Supreme Court of Indiana, which characterized the logic that denied wives the society of their husbands “revolting to every right-thinking person's sense of justice.” The Supreme Court of Michigan concurred that there was “no adequate ground for denying to a deserving woman, foully wronged in her dearest rights, the redress that the law gives without question to her husband under like circumstances.” It described the denial of the wife's suit as “a relic of the barbarity of the common law, which, in effect, made the wife the mere servant of her husband.”39 Such judicial sentiments dovetailed with a growing cultural disapprobation in the late nineteenth century toward those aspects of coverture that characterized a married woman as utterly subject to the will of her mate. Wives' economic dependency in marriage continued to be accepted, even embraced, through much of the twentieth century, but the critique of relations of dependency that led to the abolition of slavery had also subverted other supposedly organic domestic hierarchies, such as master and servant, and husband and wife. “In these days,” remarked James Schouler of the postbellum era, “we dislike to call any man master.” In the wake of slavery's demise, judges found the most blatant inequalities presumed by the doctrine of marital unity to be increasingly unpalatable.40
Public reaction was favorable to judicial decisions granting wives the right to recover for the loss of their husbands' consortium.41 Those few jurisdictions that denied wives' right of action were roundly condemned. Like judges, journalists and legal commentators described wives' lack of legal redress to their husbands' enticement or alienation as a form of servitude. When the Grand Forks Daily Herald reported on the denial of a wife's enticement suit in Minneapolis in 1885, it contended that the ruling made her no more than “chattel property” who was “in duty bound to slave for her husband.” Capturing the sentiment that a wife was entitled to the constancy of her spouse, the paper remarked that many women “wouldn't wipe their feet on such a husband, much less flatter him with a $10,000 lawsuit.”42 Responses in newspapers and magazines to the decisions of two high courts in Maine and Wisconsin that denied wives' right of action for enticement and alienation of affections suits drew upon similar language. The Chicago Tribune was typical in arguing that these rulings revived “the old common law notion that the wife is a slave of her husband,” and scoffed that the Wisconsin opinion was “not creditable to the bench from which it comes.” This paper, like others, identified the decision in Bennett v. Bennett, upholding a wife's right of action, as embodying “the true principle of today, that a wife is the equal of her husband.”43 For these commentators and judges alike, to bar a wife from legal redress for her husband's faithlessness was a debasing form of injustice, at odds with modern understandings of her marital entitlements.
By the 1890s, the vast majority of jurisdictions recognized a wife's possession of her husband's consortium. Treatises now described spouses' “right to each other's society and comfort” as “reciprocal.”44 This, in combination with the redefinition of consortium to exclude services, led most law writers to conclude that a wife could, either on statutory grounds or at common law, bring an action against a third party who interfered with her marital rights.45 Courts' recognition of married women's standing in these suits elevated the importance of the intimate and emotional realm in marriage. Marital comfort and companionship were no longer conceived as duties that a wife owed her husband as his inferior, but were described as mutual, constitutive elements of the marriage relation. Judges in these cases defined the obligations a husband assumed upon marriage as both his wife's “maintenance” and her “comfort and enjoyment. To these means of happiness, so far as practicable, she is entitled.”46
Yet even as these early rulings broadened the entitlements of married women, they did not place wives on an identical legal footing with their husbands. Despite the claims of courts that they sought to “put the husband and wife upon an exact equality before the law,” elements of the common law—and the presumption of sexual difference that underlay them—produced a gendered disparity in the construction of these causes of action.47 A married woman's possession of her husband's consortium should have, theoretically, enabled her to bring a suit for enticement, harboring, alienation of affections, or crim. con. on the same grounds as a married man. Yet even the most liberal rationale for the wife's right of action for these torts did not endow her with property in her husband's person, as a married man had in his wife. Rather, she could now lay claim to the emotional obligations—society and comfort—and financial support that she was owed by virtue of her status as a wife.
The deceived and abandoned wife who had lost her husband was a powerful rhetorical figure in the opinions of courts that upheld a married woman's right to recover. Michigan's high court, for example, stressed the “mental anguish and suffering” that were inflicted on a wife whose husband deserted her at the urging of his family.48 Indiana's Supreme Court argued stridently on behalf of an aggrieved wife in an enticement and alienation of affections suit: “If there is any such thing as legal truth and legal right, a wronged wife may have her action in such a case as this, for in all the long category of human rights there is no clearer right than that of a wife to her husband's support, society, and affection. An invasion of that right is a flagrant wrong, and it would be a stinging and bitter reproach to the law if there were no remedy… . [She is] clothed…with the right to appeal to the courts to redress the wrong inflicted by one who tortuously wrested from her the support, society, and affections of the husband.”49 For the Indiana court, the injury to the “wronged wife” was not the trespass of her property in her husband by the defendant; rather, it was the invasion of her right to remain a wife—with the affective and economic benefits her status entailed—against the interference of other women.
Courts' emphasis on the deserted wife was not merely rhetorical. Appellate courts found a right of action for plaintiff wives only when they alleged that a third party had prompted their abandonment, thus depriving them of the society, comfort, protection, and support of their husbands. These last two elements—protection and support—lay outside both the formal definition of consortium and doctrinal boundaries of these torts at common law. Certainly, husbands who pursued such suits could claim the loss of neither. They reflected, instead, a recognition of married women's economic dependency at law, and a late nineteenth-century preoccupation with male desertion and the vulnerability of abandoned wives.50 Wives in these cases sought, and courts recognized, damages for more than lost support. Judges rebuffed defendants who argued that wives' actions for enticement, harboring, or alienation of affections duplicated their legal remedy in alimony.51 It was “no answer,” argued Brooklyn's City Court, to counsel a wife in such circumstances to seek divorce and, “crying for bread, possibly obtain an order” for maintenance from her husband, because the crux of such suits was the loss of the husband's companionship and society.52 In successful suits, however, the wife's abandonment was key. Unlike the male plaintiff in the influential alienation of affections suit Rinehart v. Bills, wives did not, as a rule, receive damages merely because their husbands became enamored with other women even while their marriages remained intact.53 Likewise, when a married woman sued for enticement, harboring, or alienation of affections, she stood on vastly different legal ground than did a married man. Courts recognizing the legal claims of wives to the consortium of their mates resisted conceptualizing husbands as vulnerable to being harbored, because they were unwilling to contravene husbands' entitlements to freedom of movement and association. As defense attorneys reminded judges, a man's “will must be his guide,” because men possessed the autonomy and liberty that the law denied women. And in enticement and alienation of affections suits, courts had difficulty imagining men as the objects of inappropriate persuasion or seduction, when the common law and late nineteenth-century mores validated the authority of their volition. For plaintiff wives, this meant significant limitations in bringing an action for harboring, and stricter evidentiary requirements in their suits for enticement and alienation of affections against female defendants.54
Although the success of a nineteenth-century wife's suit required her abandonment, abandonment alone could not sustain her action for harboring. When Susie Warner sued Lucinda Miller, a brothel owner, for enticing and harboring her husband, she testified that she confronted the defendant on the issue of withholding her husband from her: “I asked defendant if Mr. Warner came there, and she said ‘What if he does come here?’…and I says, ‘It is a good deal to me, for he is my husband, and this is his child,’ and she says, ‘That has nothing to do with me,’ and I says, ‘I came here to ask you not to harbor him any more and give him up,’ and she says, ‘No; I will not give him up.’”55 In a suit instigated by a husband against another man, this testimony would likely have been damning for the defendant, as courts were generally suspicious of outside interference into the marital relation. A male defendant's motives were certainly relevant, but as James Schouler warned, such interference, “whatever the motives, is, on the part of male strangers, exceedingly perilous, generally open to misconstruction, and never to be encouraged. They should leave the parties to their lawful remedies against one another.”56 The judge's charge to the jury in Susie Warner's suit, however, effectively denied harboring as a sole right of action for wives. “The case differs slightly from an action… brought by the husband for harboring his wife,” he explained. Unlike a married woman, Mr. Warner “has the right to say where he shall live, and, within certain limits, he has that freedom of choice in many respects which the law does not accord to the wife. Hence, I say to you, that for mere harboring,—that is, from the fact that Warner went to this house of prostitution,—no action can be maintained by Mrs. Warner.”57 In this respect, courts proved unwilling to usurp husbands' freedom to go wherever they wanted, and meet whomever they pleased, even in the name of deserted and betrayed wives. The presiding judge in Clark v. Harlan worried that sustaining actions by wives such as harboring might encourage suits “on every occasion [that husbands] were absent from home seeking their own pleasure or even attending to business.”58
In enticement and alienation of affections cases, courts set a higher evidentiary bar for wives' suits against other women than for analogous actions brought by husbands against male third parties. The intentions of the defendant in either case were relevant. But where a plaintiff husband had to show merely the male defendant's unwarranted “interference” into the private realm of his marital relations, plaintiff wives had to prove definitively that the female defendant had instigated the adulterous relationship.59 This disparate construction was grounded in the presumption that men and women had unequal degrees of volition in their involvement in such affairs, and therefore should be held to different standards of accountability. Courts were highly mistrustful of male defendants—who, presumably, had the wherewithal to avoid such entanglements—and held them responsible for infringing upon a husband's entitlement to the solicitude and companionship of his wife, even if the wife had instigated the liaison. But the cultural presumption of male sexual aggression and female vulnerability made nineteenth-century courts unwilling to hold female defendants similarly liable for their mere involvement with a married man. Therefore, the success of a plaintiff wife's suit hinged on whether her husband or his paramour had instigated the affair. As Joel Bishop summarized, “the complaining wife must show the defendant to have been the seducer or enticer of the husband,” and not “a woman whom he has led into an illicit relation.”60
In an 1886 enticement and alienation of affections suit, for example, a New York judge instructed jurors that they could find a verdict against the female defendant—the daughter of the owners of a boardinghouse where the plaintiff wife and her husband lived—only if it “affirmatively appear[ed]” that the young woman was the “seducer and enticer” of the plaintiff's husband. The judge cast doubt on the accusation even as he presented it: “Now, gentlemen, if there were in fact guilty relations between the parties…, such guilty relations must have been maintained at the solicitations of the defendant. The plaintiff's husband is over forty years of age, having been married to the plaintiff nearly twenty years. He was not a young and inexperienced man. If you find that there was this wickedness between the plaintiff's husband and the defendant, but that…he enticed the defendant into illicit relations with him, then the plaintiff's case is not made out.”61 Four years later, an Illinois Circuit Court judge similarly wrestled with matters of “common knowledge” about the sexual agency of men and women as he charged the jury. Asking the jurors to consider whether the female defendant had led the plaintiff's husband “from the path of virtue” while he was still a married man, the judge mused on the nature of men, women, and sexual conquest:
Such ruminations on wooing and winning did not appear in suits brought by husbands, however, because the unspoken presumption of male blandishment formed the foundation of such torts. In the influential 1881 suit Modisett v. McPike, for example, Morton Modisett sued Aaron McPike, a family friend, for alienating his wife's affections and encouraging her to leave him. McPike and other witnesses testified that Modisett's wife had left him because he was a “habitual and abandoned drunkard” who had “abused and maltreated” her over the years. On this basis, a jury had found that Modisett's wife had just cause to leave him, and returned a verdict in favor of McPike. But Missouri's Supreme Court disagreed, holding that neither Modisett's misconduct, nor the reasonableness of his wife's decision to leave him, constituted a defense for McPike. “The wife may have a just cause for separation or divorce, but she may elect to abide by her situation, and remain with her husband nonetheless,” it opined. “If she chooses to do so, no stranger has the right to intermeddle with the domestic and marital relations of husband and wife, and if he voluntarily does so he is amenable for the consequences.” For the Missouri court, a wife's sensible decision to leave her abusive husband did not mitigate her presumed susceptibility to the persuasion and seduction of another man. Where the question of who had instigated the relationship was the crux of an enticement or alienation of affections suit against a female defendant, courts presumed male defendants to have made such overtures.63
We know as a matter of common knowledge and observation, that, as a general rule, men woo and women are wooed and won; that men seduce and allure and lead women from the path of virtue, and that women are allured, seduced, and led astray; but we also know, from common observation, that this general rule does not always hold, and that sometimes women woo men; that sometimes women allure, seduce, and debauch men; that women, upon occasion, induce, allure, and persuade men to abandon and desert their wives, and form new relations, lawful or unlawful. It will be for the jury to say…in this case…whether the issue stands proved or unproved.62
If the limited construction of wives' claims to consortium produced a doctrinal disparity between husbands' and wives' suits for enticement, harboring, and alienation of affections, it would bar completely wives' action for crim. con. At common law, crim. con. expressed in the starkest terms a husband's complete proprietorship of his wife's body and sexuality. Its premise was that sexual intercourse with a married woman, no matter the circumstances, was an injury to her husband. Neither the degree of the wife's consent nor the unhappiness of her marriage was relevant to the action (although these factors could increase or diminish damages). In the late nineteenth century, even as courts increasingly recognized married women's entitlement to consortium, courts adjudicating husbands' crim. con. suits bluntly reasserted their possessory rights over their wives. In the 1883 case Cross v. Grant, for instance, the Supreme Court of New Hampshire held that a husband's infidelity and cruelty toward his wife, and her consequent separation from him, were no bar to his action for crim. con. The defense contended that the married women's acts abolished the action for crim. con., as the husband was no longer his wife's “lord and master. She is his partner.” It urged, moreover, that the plaintiff had already lost the society and companionship of his wife through his own “ill treatment” of her, and questioned, “what did he have which could have been taken from him or…interfered with?” But the plaintiff prevailed, contending that a husband still maintained “the right to protect his home from pollution,” and the right to seek damages “when the sanctity of his home has been profaned.” As the court explained, if the husband, “by his conduct, compels the separation from him of his wife, he may, as to her, have lost his legal right to the solace and comfort of her society, but not as to all the world. His consent is not thereby extended to other men for sexual commerce with her.”64 Wives' newfound property in their husbands' obligations to provide society, companionship, and support did not disrupt husbands' longstanding property in the bodies of their wives. This inequality in the respective constructions of consortium for husbands and wives presented a formidable obstacle to married women bringing suits for crim. con., for the action was fundamentally about women's bodies: their purity or debauchment, and their reproduction of legitimate or “spurious” offspring.
Early decisions that appeared to establish a theoretical basis for plaintiff wives' crim. con. suits reproduced this inequity. A leading case was Foot v. Card (1889), in which Laura Foot sued Maria Card for alienation of her husband's affections, claiming that Card had seduced him. Wives typically sued other women for enticement when they alleged seduction; but enticement was predicated on abandonment, and Foot remained married to her husband at the time of the suit. Foot's suit, then, was similar to an action for crim. con. in its narrow focus on adulterous acts.65 Card, for her defense, admitted that she had maintained an adulterous relationship with Laura Foot's husband for 15 years, and had thus deprived Foot of his conjugal affections and society, but contended that the law had no “mode of redress for this wrong.” As Card's attorney insisted, “none of the profession have ever thought that a woman could be sued for seduction any more than she could be prosecuted for rape,” for it was “physically impossible for a man to be seduced…. He must always be equally or more than equally guilty in the offense of adultery.”66 Even as Connecticut's Supreme Court of Errors ruled in favor of Laura Foot, the opinion replicated the rationales found in wives' alienation of affection suits, rather than husbands' actions for crim. con. It conceptualized Laura Foot's injury not in terms of the infringement on her exclusive right to sexual intercourse with her husband, but in her loss of the full measure of love and companionship she was owed by him. Spouses were obliged to give one another “the fullest possible measure of conjugal affection and society; the husband to the wife all that the wife owes to him,” the court explained. Card's 15-year affair with Laura Foot's husband had permitted Foot only a “remnant,” at best, of what “the marriage contract entitled her to enjoy and required her husband to give.” Recognizing consortium as a wife's “valuable right,” the Connecticut court nonetheless characterized Foot's property in her husband's companionship as divisible; indeed, her injury was the product of his divided emotions. By contrast, a husband's property in his wife's body was complete. Under the theory of crim. con., he retained no measure of her prior purity if she were “debauched,” even if the act was against her will. Foot v. Card thus broadened the basis on which a wife could recover in cases of adultery, rejecting as a prerequisite her literal abandonment by her husband; yet, it did so in terms that emphasized a wife's right to her husband's society and affections, rather than her property in his body.67
The question of whether the act of seducing a husband was, by itself, actionable by his wife remained unsettled in the years immediately following the Foot decision. At issue was whether courts would establish a disparate construction of crim. con. for plaintiff wives as they had done in alienation of affections and enticement suits. This would have meant reconceptualizing crim. con. as a suit for harm to the affective elements of the marital relation in the wake of a husband's adulterous affair. The Supreme Court of New Hampshire took this approach in Seaver v. Adams (1890). As in Foot v. Card, the plaintiff wife sued for alienation of affections rather than crim. con., alleging that the female defendant had seduced her husband, but she did not claim the loss of his support, or abandonment. The New Hampshire court could find no reason “in natural justice…why the right of the wife to maintain an action against the seductress of her husband should not be co-extensive with his right of action against her seducer.” However, its rationale sidestepped the issue of a wife's right to sexual constancy, and it emphasized instead that the “gist of the action” was loss of the spouse's “affection, society, or aid.”68 By contrast, when Maine's Supreme Court ruled on a crim. con. suit brought by a plaintiff wife who did allege loss of support, it appeared to reject entirely the proposition that wives were entitled to their husbands' consortium. The law provided an injured wife with redress through suits for divorce and alimony, the court maintained, as well as criminal proceedings for adultery. But it dismissed the notion that a married woman could recover “pecuniary compensation from her husband's paramour,” because a husband's infidelity could never cast doubt upon the legitimacy of his wife's children so long as she remained “virtuous.” As to a wife's expectation of monogamy from her husband, or the sanctity of their marital bed, the court remained silent.69
The highly influential 1895 Minnesota case Kroessin v. Keller largely resolved the question of whether a wife could sue for crim. con. Mary Kroessin alleged that Wilhelmina Keller, the wife of a prominent Minnesota state senator, “debauched and carnally knew” her husband, thereby alienating his affections and resulting in the loss of his comfort, society, aid, and assistance. Kroessin's suit, which sought $20,000 in damages, was considered scandalous news in Senator Keller's home district, and he accused Mary Kroessin and her husband of suing his wife in order to “extort money from him.”70 Regardless of her motivations, Kroessin's suit focused squarely on the issue of whether a wife had a right of action against another woman merely for having sexual intercourse with her husband, for she did not claim abandonment, loss of support, or even that Wilhelmina Keller instigated the affair. Like a typical crim. con. suit brought by a husband, Mary Kroessin's complaint presumed that her husband's role in instigating the sexual act—whether seducer or seduced—was immaterial to her cause of action. But the Supreme Court of Minnesota found otherwise. It sharply distinguished between the many cases holding that a wife had a right of action against someone who enticed away her husband, or alienated her husband's affections and caused him to abandon her, and the tort of crim. con. And it rebuked prior decisions that had found in favor of wives when the basis of their suit was solely a husband's adulterous intercourse, because those justices had relied on enticement and alienation of affections suits as authorities. “The courts rendering these decisions do not seem to have considered that there is, and must inevitably be, a marked distinction between [those actions]…and one similar to crim. con.,” the Minnesota court insisted. “We think the difference noticeable and material.”71
For the Minnesota court, the “difference” had everything to do with the sex of the plaintiffs. Like the court in Doe v. Roe, it stressed that a husband's infidelity could neither impose on a wife “the support of children not [her] own,” nor “cast discredit” on those children who were legitimately hers. Equally significant, though, was its belief that a wife faced no public “disgrace” when her husband committed adultery. Indeed, this argument lay at the heart of the defense's brief to the court. As Wilhelmina Keller's attorneys contended, “the word cuckold is one of the most disgraceful epithets that can be applied to a husband—and the fact that there is no corresponding word…to apply to the wife” demonstrated “the absence of the idea” that she could be a “sufferer” in like circumstances. Implicitly, then, a wife's unfaithfulness imperiled her husband's status in the eyes of the community, because a married man was supposed to exclusively possess and control his wife's sexuality; no such control was imputed to a wife over her husband, however, and thus no public shame could attach to her as a result of his infidelity.
Finally, the Minnesota court was troubled by the related question of whether a female defendant could be held responsible for instigating an adulterous affair with a married man. Courts ruling on alienation of affections and enticement suits brought by plaintiff wives had grappled with this very issue. The result had been the disparate constructions of those torts for plaintiff wives, and the requirement that they demonstrate the female defendant's active and intentional seduction of the husband. However, when faced with a suit in which a wife sought damages for her husband's illicit sexual intercourse alone, the Minnesota court had difficulty measuring Kroessin's harm against that of her husband's lover. Mary Kroessin was no abandoned woman, and her husband may very well have pursued Wilhelmina Keller. In this and other crim. con. suits brought by wives, the court worried about what it “might have to inquire into, upon the trial of an action of this kind. Would it be held, following the old rule…that it was no defense for the female sued to allege and prove that she was the party seduced, and that the greater wrong and injury had been inflicted upon her, and not upon the plaintiff wife? [O]r would the contrary rule prevail? But we need not consider the subject further, for a moment's reflection will suggest the remarkable results flowing from the adoption of either rule.” Should defenseless women be held accountable for the licentious natures of men, the court asked? And when the harm was simply a husband's infidelity, how to determine the party who had been more greatly injured: the betrayed wife or the debauched other woman? For the Minnesota Supreme Court, these difficulties were sufficient to disallow crim. con. as an action for wives.72
The court's distinction in Kroessin between wives' access to crim. con. and other torts for loss of consortium proved overwhelmingly compelling for treatise writers in the years following the decision. In his 1896 family law treatise, for example, Walter Tiffany affirmed that wives had, “by the great weight of authority,” a right of action for enticement and alienation of affections, but not for crim. con. “When we consider the grounds upon which the action for criminal conversation rest[s], it would seem clear that a wife could not maintain such an action against another woman for having intercourse with her husband, and it has been so held,” contended Tiffany, citing Kroessin. Other law writers of treatises and casebooks agreed that the reasoning in Kroessin that denied wives the action appeared “conclusive.”73
Kroessin thus made evident the differences between husbands' and wives' respective consortium. A married woman was entitled to her husband's emotional and economic support, and she could sue for damages when these were lost through his abandonment of her at the encouragement of another. But in the case of his sexual inconstancy, the law did not register her injury. Judges might have acknowledged that wives suffered emotionally when they were betrayed by their husbands. The vengeful wife was a mainstay of sensational newspaper accounts and pulp sagas.74 But aggression and power, not vulnerability and purity, lay at the heart of late nineteenth-century conceptions of male sexuality. Unlike a husband's entitlement to the exclusive enjoyment and control of his wife's sexuality, there was nothing about her husband's body or sexuality, at law or in culture, that a wife was imagined to possess. Men had no virtue to be “debauched;” and even if they had, their wives were not gifted with it upon marriage. “A husband can maintain an action for criminal conversation against one who commits a rape upon his wife,” explained Tiffany, parsing the reasoning behind husbands' and wives' disparate access to the suit. Even if a woman could “[compel] a man, against his will, to have intercourse with her,” he insisted, “it would hardly be contended that this alone would give a man's wife a right of action.” In the face of this theoretical violation of her husband's body and sexuality, a wife was understood to sustain no loss.75
The same logic that limited wives' rights to the affective realm, and thus foreclosed their suits for crim. con., prevented them from recovering for loss of consortium because of third-party negligence. Under the common law, a husband had long been able to sue per quod consortium amisit a third party who negligently injured his wife. Such suits enabled husbands to recover for the loss of their wives' services and society, and any money spent on their care. In theory, wives' access to torts for enticement and alienation of affections should have enabled them to recover in similar instances. However, early twentieth-century courts unanimously denied such suits when brought by wives. A wife's entitlement to her husband's consortium endowed her with the right to his affection, intimacy, protection, and support. In cases of the husband's negligent injury, however, where there was no abandonment or emotional betrayal, judges found it difficult to comprehend that a wife suffered any harm beyond the temporary loss of economic support, which could be recompensed through the husband's separate recovery.76
Suits brought by husbands for loss of consortium as a result of third-party negligence were common at the turn of the century, and courts distinguished carefully between an injured wife's cause of action and her husband's corresponding claim. As the leading case Skoglund v. Minneapolis Street Ry. Co. (1891) articulated it, the basis of the husband's suit was not the injury itself to the wife (for which, in most states, she was entitled to recover in her own separate suit under the married women's property acts), but rather “the consequence of the injury in depriving him of his common-law right to her society or services, or in imposing on him the common-law duty to care for her.”77 This right was not disturbed by the separation of wives' services from the definition of consortium in alienation of affections and crim. con. suits in the 1880s and 1890s. In 1897, for example, the Supreme Judicial Court of Massachusetts recognized that decisions such as Bigaouette v. Paulet and Bennett v. Bennett had explicitly separated “loss of service” from “loss of consortium,” but nonetheless insisted that the husband “still has a right to [the wife's] society and assistance, which is different in character and degree from that which other people have, or which she is at liberty to give them.” Even as it equivocated on “the extent of these duties” and their relation to “consortium,” the court remained certain that husbands retained a right to collect damages when their wives were negligently injured, and that such a right was lodged in the remnants of marital unity.78
However, when a wife sought compensation for the loss of a husband's aid and society, and the increased burden of care she assumed as a result of his injury, courts characterized these damages as “indirect,” and therefore non-compensable. When Betsey Goldman brought an action in 1900 for loss of consortium against the man whose negligent management of a horse resulted in an injury to her husband, the Supreme Court of New York County rejected her cause of action. It described the personal costs to her as “that which usually occurs to a wife from the illness of a husband.” It recognized only the family's increased financial burden, and contended that these were recoverable through the husband's suit against the defendant, which would recompense him for “loss in earning power and expenses of sickness.” As for the loss of her husband's society, the court boldly asserted that a wife's “interest in the husband's life and companionship is not a right of property, or derived from a contract of bargain and sale,” and, therefore, it fell outside those rights enumerated by the state's married women's acts.79 Nine years later, Melinda Feneff sued her husband's employer for loss of consortium after it was held liable for the husband's workplace injuries. Her husband, a railroad brakeman, had been injured when his locomotive collided with another train.80 Feneff contended that the defendant's negligence had caused her “great suffering and anxiety,” that she had “been obliged to assume heavy and arduous duties…, and that she lost the comfort, society, aid and assistance of her husband” because of his injuries. But the Supreme Judicial Court of Massachusetts, like the New York court in Goldman, found that losses suffered by “persons whose relations to the injured party are purely domestic” were “too remote to be made the subject of an action.” Crucially, it differentiated between the economic and emotional obligations of husband and wife, contending that the “diminished value of the husband's consortium with his wife” was limited to “the diminished value of the work that [he] can do for the support of his wife and…minor children.” For this loss, the husband could recover from the negligent defendant, and his wife and dependents could be “expected to share to some extent” in this award. It recognized no injury to the wife, however, “when the only effect on [her] right of consortium is that, through the physical or mental disability of the [spouse], the companionship is less satisfactory and valuable than before the injury.” Such damages, it concluded, were “not direct, but only consequential.”81
Third-party negligence cases reveal the limits of the affective and economic property that wives possessed in their husbands' consortium. In the context of a suit for alienation of affections or enticement, a married woman's claim to the affection, aid, and support of her husband produced a powerful moral and legal basis for her right of action when an interloper persuaded her husband to disregard or desert her. However, as these loss of consortium negligence suits illustrate, it provided no rationale for recovery when a husband retained all former feeling for his wife and remained with her, but became, in the language of Feneff, “less satisfactory and valuable” as a companion because of his injuries. The ideal of womanly devotion that made a wife's claim appear righteous when her husband abandoned her rendered her disloyal and mercenary when she sought to collect for any accidental impairment to his society. By contrast, when the Supreme Court of New Hampshire reaffirmed a husband's access to such suits in 1916, it found but “one satisfactory and logical answer” to the question of whether a husband suffered a loss when the companionship of his injured wife was impaired. He was entitled, it held, to “the whole of his wife's marital affection, and to the whole of such society and comfort as her physical state and mental attitude render her capable of affording him. He who steals any substantial part of that affection, or disables her physically or mentally from rendering such aid and comfort, is guilty of an infringement of the husband's rights and should be required to make compensation.”82
The disparate constructions of wives' actions for loss of a husband's consortium in the nineteenth century encumbered their suits for alienation of affections, enticement, and harboring, and barred completely their actions for crim. con. and third-party negligence. Despite those restrictions, however, by the end of the century wives' property in the consortium of their mates was a well-established legal interest. The strength of this entitlement would justify extending to wives the right of action for crim. con. in the early twentieth century. Significantly, in reversing the common law doctrine, courts rejected the nineteenth-century sexual double standard that saw no injury to the wife in her husband's faithlessness. As marriage was increasingly understood to be founded on sexual compatibility and mutual exclusivity, a husband's infidelity appeared as injurious to a wife as his abandonment once had. In granting wives access to crim. con., however, judges did not find for plaintiff wives a property right in their husbands' bodies or sexuality. Rather, they extended the reach of wives' affective entitlements in consortium by collapsing the distinction between crim. con. and alienation of affections suits, and explicitly recognizing a husband's sexual betrayal as a violation of the emotional contract of marriage.
Three early twentieth-century cases were instrumental in blurring the legal distinction between these torts, and thus strengthening wives' right to sue for crim. con. In the 1903 case Hart v. Knapp, the Connecticut Supreme Court of Errors rejected the disparate construction established for plaintiff wives in alienation of affections suits by drawing on the rules of crim. con. Celia Hart sued Anna Knapp for committing adultery with her husband, winning his affections, and causing him to abandon her. Relying on the higher bar established for female defendants in such cases, Knapp claimed in her defense that Hart's husband “seduced her, and [that] she was the victim of his wiles.” But the Connecticut court rejected this argument, emphasizing that she was “a widow, of full age, with full knowledge that Hart was the husband of the plaintiff.” Knapp committed adultery “with full knowledge that it was wrongful, and that it would…result in harm to the plaintiff.” Attributing uncharacteristic agency to a female defendant, it emphasized that “persuasion” and “enticement” were not the equivalent of “duress,” and that “what the defendant did with Hart, she did of her own free will; and she is responsible to the wife for the results of her conduct with the husband, even if it be true that he persuaded her.” Significantly, in justifying this conclusion, the court took recourse to the common law rules of husbands' crim. con. suits, under which the wife's active participation in, or even instigation of, the adulterous affair was “of no avail as a defense” to a male defendant. Even as it described Celia Hart's injury in terms of the emotional harm she experienced as a result of her husband's infidelity—the “sur[est] means…to estrange husband and wife, and stifle all affections that ever existed between them”—it nonetheless recognized her husband's unfaithfulness as an injury, and characterized it as one in which his volition in the affair was immaterial.83 Three years later in Nolin v. Pearson, the Supreme Judicial Court of Massachusetts agreed that a husband's adultery in and of itself constituted a compensable wrong to his wife. Ruling on a wife's suit against another woman for alienation of her husband's affections and crim. con., it equated a husband's inconstancy not with private betrayal, but with affective injuries of an explicitly public, reputational nature. “The loss of the essential element of matrimonial fellowship afforded by the husband's society and exclusively given to [the wife] by the contract of marriage, when accomplished by his seduction at the inducement of another woman,” it contended, “is an injury as tangible and from which she may suffer as acutely and with more disastrous consequences to herself than from loss of reputation caused by libel or slander in which compensatory damages for mental suffering may be assessed.”84 The Washington D.C. Court of Appeals likewise confirmed, in stronger terms, a wife's right of action for crim. con. Dodge v. Rush (1906) was unambiguous in its rejection of the sexual double standard. Even as it acknowledged that “the injurious consequences of a wife's adultery may be more far reaching” because of potential “embarrassments in respect of the legitimacy of her children,” the D.C. court nonetheless argued that a wife's conjugal right to her spouse's sexual fidelity was “in principle the same, substantially, as his. Whatever the ancient doctrine may have been,” it urged, “modern morals and law recognize the equal obligation and right of husband and wife. Nor can the consent of either to his or her defilement affect the right of action of the injured spouse against the other wrongdoer.”85
Collectively, these cases rejected the presumption in Kroessin v. Keller that a husband's infidelity was merely a personal betrayal, producing no injury worthy of legal remedy. Consequently, they represented an important departure from courts' implicit acceptance of the sexual double standard only decades earlier. “Modern morals,” in the language of the Dodge opinion, had transformed expectations of what spouses owed each other in the realm of sexual constancy.86 In these decisions, monogamy was more than an abstract moral standard; it was an obligation emerging from the marriage relation that formed the emotional core of the union. Therefore, it was legitimately within the law's reach. The Massachusetts High Court in Nolin considered a wife's right to her husband's sexual fidelity a matter of “public policy,” rather than a private matter best resolved by the married couple. It recognized that the law could not demand of a married woman “exclusive marital aid and affection” while permitting her husband the “liberty to enter upon a course of conduct which may render further marital relations on her part impossible.” A husband's adultery, the court acknowledged, could destroy a marriage not only when he abandoned his wife for another woman, but also when his wife refused to remain married to him when he had been unfaithful to her.87
In theory the law in most states had long held husbands and wives to the same standard of monogamous behavior by allowing either party to bring adultery as a sole ground for divorce, and by subjecting both husbands and wives to criminal sanction for straying from their marriage vows.88 This theoretical statutory equality was belied in practice, however. Throughout the nineteenth century, husbands were far more likely than wives to bring adultery as a sole grievance in suits for divorce. Undoubtedly, this was because judges in divorce cases, like those adjudicating enticement and crim. con. suits, conceived of a wife's infidelity as a more serious transgression than a husband's. Because the legal and social consequences of adultery were more severe for wives than for husbands, courts presumed the innocence of an accused wife, and devised more stringent evidentiary requirements to protect women from unwarranted charges of infidelity. However, wives' petitions for divorce on the sole ground of adultery declined in the postbellum era, and courts became less likely to grant those petitions, even though the evidentiary requirements for determining a husband's unfaithfulness were comparatively more lenient. When high courts began to sustain wives' suits for crim. con. in the early twentieth century, then, they were departing from not only the common law rule, but also the longstanding social and legal presumption that husbands and wives should be held to different standards of sexual constancy.89
The first wave of suits recognizing wives' right of action for crim. con. strengthened their entitlement to husbands' monogamous behavior by conceptualizing sexual betrayal as a violation of the emotional obligations contracted by marriage. These decisions inextricably linked emotional and sexual fidelity, binding plaintiff wives' right to sue for crim. con. to their action for alienation of affections. Hart and Nolin lodged the harm done to plaintiff wives in the realm of affect: a husband's affair resulted not in the defilement of the marital bed, or the debauchment of his body, but in the loss of mutual affection and the burden of mental suffering. In Dodge, the D.C. court was even more explicit that in both alienation of affections and crim. con. suits, the “gist of the action…is said to be the loss of consortium—that is, the loss of the conjugal fellowship, company, co-operation, and aid of the husband or wife.”90
As courts increasingly recognized wives' right to sue for crim. con., they simultaneously found irrelevant its distinction from the tort for alienation of affections. In New Jersey, for example, the 1910 alienation of affections suit Sims v. Sims reversed the 1903 crim. con. and alienation of affections suit Hodge v. Wetzler, which had denied wives both actions. Neither opinion noted differences between the suits, and dwelled instead on the question of whether wives had any right to their husbands' consortium. As Hodge asserted, “loss of consortium” was the “gist of the action” in both suits. The Vermont Supreme Court went further in 1912, finding not only that loss of consortium was the basis of both suits, but also, following Hart v. Knapp, that proof of adultery presumed a loss of spousal consortium in a wife's alienation of affections suit, no matter whether the female defendant was seducer or seduced. By 1913, judge and Yale Law School lecturer Epaphroditus Peck's treatise on domestic relations registered the collapse of distinctions between the torts, and their attendant spheres of emotion and sex. “A distinction might fairly be made between…[the wife's action for] adultery alone, and that for alienation of the husband's affections,” Peck observed, but most jurisdictions affirmed or denied the suits “without distinction.”91
By the second decade of the twentieth century, courts ruling on wives' crim. con. suits no longer conceptualized a husband's adultery as a private betrayal that produced no compensable injury or loss. Instead, they described his sexual inconstancy as a violation of the marriage contract, and held his paramour responsible for her participation in harming the wife. This doctrinal reversal hinged on the construction of sexual fidelity as an affective entitlement. In crim. con. suits brought by wives, courts recognized an emotional injury prompted by the revelation of a husband's faithlessness. This finding reflected the degree to which jurists and the public alike had embraced the ideal of a single moral standard for husbands and wives, and understood sexual exclusivity to be a fundamental component of the modern marital bond. The old common law rule that a wife had no entitlement to the fidelity of her mate had become “obsolete and abhorrent,” in the estimation of Peck, because “public sentiment” demanded spousal equality in the rights of “conjugal affection, society and chastity.”92 In this context, a husband's infidelity now appeared as damaging to a wife as his abandonment once had. Indeed abandonment was no longer necessary for a wife to prevail.93
Even as the recognition of wives' action for crim. con. endorsed mutual sexual monogamy in marriage, the affective construction of that right made more stark the preservation of husbands' proprietorship in their wives' bodies and sexuality. In early twentieth-century crim. con. suits brought by husbands, courts continued to conceptualize their harm as a loss of sexual property rather than an affective injury. In the 1904 case Tinker v. Colwell, the United States Supreme Court confirmed, in language that was remarkably unchanged from the postbellum era, that the “essential injury to the husband consists in the defilement of the marriage bed, in the invasion of his exclusive right to marital intercourse with his wife and to beget his own children.” It explicitly characterized the husband's claim to his wife's sexuality as “a property right” of “the highest kind, upon the thorough maintenance of which the whole social order rests.” This was no abstract property in the affective realm of the marital union, although a cuckolded husband certainly experienced “wounded feelings and honor.” Rather, a husband possessed “personal and exclusive rights with regard to the person of his wife” which were “interfered with or invaded” when her body was made available to another man (consensually or not) for sexual intercourse.94
Courts adjudicating husbands' criminal conversation suits in the early twentieth century affirmed this proprietorship by maintaining a clear distinction between husbands' entitlements to their wives' bodies and their claims to their wives' affections. Proof that a wife's affections had been alienated was unnecessary in a crim. con. suit, explained the Supreme Court of Colorado in 1908, because “the essential injury to the husband consists in the defilement of the marriage bed.” The emotional harm a husband suffered—“the wound given to his feelings, his affections, and his pride by the act of the defendant”—could be considered in deciding damages, but was not the core of the action. This separation of the sexual and emotional aspects of the wife's consortium was affirmed in a number of cases that held, in sharp distinction from wives' suits, that alienation of affections and criminal conversation were separate actions. “The law affords two separate and distinct remedies…, and the facts which will support the former will not support the latter,” the Court of Appeals of Kentucky maintained in 1916. In contradistinction to courts' holdings on plaintiff wives' suits for alienation of affections, it held that in a husband's action, proof of the wife's infidelity was only relevant for determining damages; it could not be used to establish the cause of action.95
The transformation of consortium reveals the terms in which the marriage relation was reconstructed at the turn of the last century. In recognizing plaintiff wives' possession of the consortium of their husbands, courts rejected the older status relation of male mastership and female servitude in favor of spousal parity and reciprocity rooted in marital intimacy. The emergence of this new entitlement broadened wives' legal privileges. Moreover, it acknowledged and strengthened the importance of emotional fidelity in married life and, as wives gained access to the suit for crim. con., the centrality of sexual constancy to that affective bond. As courts endowed wives with the consortium of their mates, however, they also demonstrated the limits of spousal equality within the sphere of marital intimacy and companionship. When jurists produced disparate constructions of wives' suits for harboring, enticement, and alienation of affections, they emphasized married women's need for the “protection and support” of their husbands, and therefore perpetuated wives' social and economic dependency. Further, in adjudicating suits for crim.con., they preserved and strengthened the rule that a wife's body and sexuality were the exclusive property of her husband, denying to wives a reciprocal right.
The story of consortium's transformation illuminates the legal and cultural terms in which marital unity was reconceptualized in this era. Courts did not revolutionize marriage, but they remade it in significant and lasting ways. At a moment when wives were increasingly conceived as independent economic and political actors whose interests were separate from—even in competition with—their husbands', courts redefined “consortium” to exclude married women's labor in favor of their emotional obligations to their spouses. Margot Canaday has suggested that the decline of coverture was facilitated by the emergence of heterosexuality as a legal regime that perpetuated the subordination of women.96 If this is the case, we can see in consortium's shift in emphasis from wives' labor to their companionship—from status to affect—the lineaments of this modern marital order. The changing meaning of consortium thus reveals the possibilities and limits of spousal equality within the most intimate realm of marriage. For if the erosion of coverture meant that a husband was no longer his wife's sovereign, he retained, in the eyes of the law, continued dominion over the marital bed.
1.“A Novel Suit,” Cincinnati Daily Gazette, November 17, 1870, 4; and Clark v. Harlan, 1 Cinc. Super. Ct. R. 418 (Ohio Super. 1871).
2. William Blackstone , Commentaries on the Laws of England, Vol. 3, Of Private Wrongs (1768; repr., Chicago: University of Chicago Press, 1979), 142–43 [Google Scholar].
3. Loren P. Beth , John Marshall Harlan: The Last Whig Justice (Lexington, KY: University Press of Kentucky, 1992), 12–13 [Google Scholar]; James W. Gordon , “Did the First Justice Harlan Have a Black Brother?” Western New England Law Review 15 (1993), 159–238 [OpenURL Query Data] [Google Scholar]; and Linda Przybyszewski , The Republic According to John Marshall Harlan (Chapel Hill: University of North Carolina Press, 1999), 23 [Google Scholar]. DNA tests performed in 2001 could not establish a genetic link between descendents of Robert Harlan and John Marshall Harlan. See Associated Press, “DNA tests show no link between Supreme Court justice and slave,” LexisNexis, September 2, 2001, http://www.lexisnexis.com/ (August 10, 2011).
4.“A Couple of Noted Divorce Cases,” Cincinnati Daily Gazette, December 4, 1874, 3; Beth, John Marshall Harlan, 12–13; and Gordon, “Did the First Justice Harlan Have a Black Brother?” 159–60, 174–82. See also William J. Simmons , Men of Mark: Eminent, Progressive, and Rising (Cleveland: George M. Rewell & Co., 1887), 613–16 [Google Scholar].
5.“A Novel Suit,” 4; and “Has a Woman Any Estate or Property in Her Husband's Society and Counsels?” Cincinnati Daily Gazette, February 13, 1871, 4.
6.“A Novel Suit,” 4.
7.“Has a Woman Any Estate or Property in Her Husband's Society and Counsels?” 4.
8. Clark v. Harlan, 422. On the passage of the married women's property acts, see the sources cited in n.23 below.
9. Clark v. Harlan, 422–23. Mary Ann and Robert Harlan divorced in 1874. See “A Couple of Noted Divorce Cases,” 3. After Elliot Clark's death, Robert married Mary Clark. They remained husband and wife until Mary Clark Harlan's death in 1885, but her will disinherited Robert. See “Mrs. Robert Harlan's Last Will and Testament,” New York Freeman, April 25, 1885, n.p.; and Gordon, “Did the First Justice Harlan Have a Black Brother?” 182 n.73.
10.For public notice of the ruling as a “first,” see Editorial, Chicago Tribune, November 19, 1870, 2; “Ohio,” American Law Review 6 (April 1872): 583; Afternoon Topics, Critic (Washington, D.C.), December 1, 1870, 4; Saturday Evening Post, December 17, 1870, 4; Sayings and Doings, Harper's Bazaar 3 (December 17, 1870): 810; and About Women, Daily Evening Bulletin (San Francisco), December 24, 1870, 2.
11.The emergence of wives' right of action for these marital torts has received virtually no historical attention. The only significant scholarship on this legal development is Laura Hanft Korobkin , Criminal Conversations: Sentimentality and Nineteenth-Century Legal Stories of Adultery (New York: Columbia University Press, 1998), 121–58 [Google Scholar]. Our approaches and conclusions differ considerably. Korobkin, a law and literature scholar, is interested in demonstrating the material influence of the literary genre of sentimentality on legal rationales, and she characterizes a range of torts (enticement, alienation of affections, crim. con.) as “criminal conversation.” By contrast, my interest is in delineating the unevenness of wives' access to these torts across time in order to probe the transformation of consortium in this era, and in understanding the relationship between these doctrinal shifts and changes in the construction of marital unity in law and culture.
12. Michael Grossberg , Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985), 33–63 [Google Scholar] (on the breach-of-promise suit); Reva B. Siegel , “‘The Rule of Love’: Wife-Beating as Prerogative and Privacy,” Yale Law Journal 105 (1996): 2117–207 [OpenURL Query Data] [CrossRef] [Google Scholar] (on domestic assault in tort and criminal law); and Reva B. Siegel , “The Modernization of Marital Status Law: Adjudicating Wives' Rights to Earnings, 1860–1930,” Georgetown Law Journal 82 (1994): 2127–211, esp. 2199–210 [OpenURL Query Data] [Google Scholar] (on wives' earnings laws). On the growing importance of affect in marriage more generally, see Nancy F. Cott , Public Vows: A History of Marriage and Nation (Cambridge, MA: Harvard University Press, 2000), 15–23 [Google Scholar]; Norma Basch , Framing American Divorce: From the Revolutionary Generation to the Victorians (Berkeley: University of California Press, 1999), 24–30, 123–40 [Google Scholar]; Karen Lystra , Searching the Heart: Women, Men, and Romantic Love in Nineteenth-Century America (New York: Oxford University Press, 1989), 192–226 [Google Scholar]; and Grossberg, Governing the Hearth, 4–9, 33–152.
13.On the rise of wives' divorce suits on the grounds of marital cruelty, see Robert L. Griswold , “Law, Sex, Cruelty, and Divorce in Victorian America, 1840–1900,” American Quarterly 38 (1986): 721–45 [OpenURL Query Data] [CrossRef] [Google Scholar]; and on women's predominance in suits for nervous shock, see Barbara Young Welke , Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920 (New York: Cambridge University Press, 2001), 171–202 [Google Scholar].
14.The exclusion of women, people of color, and the disabled from full legal personhood and citizenship in this period is powerfully detailed in Barbara Young Welke , Law and the Borders of Belonging in the Long Nineteenth Century United States (New York: Cambridge University Press, 2010) [CrossRef] [Google Scholar]. See also Linda K. Kerber , No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York: Hill and Wang, 1998) [Google Scholar].
15. Tapping Reeve , The Law of Husband and Wife, of Parent and Child, Guardian and Ward, Master and Servant, 4th ed. by James W. Eaton, Jr. (Albany: William Gould, Jr., and Co., 1888), 90 n.1 [Google Scholar]; and Jeremy D. Weinstein , “Adultery, Law, and the State: A History,” Hastings Law Journal 38 (1986): 220–21 [OpenURL Query Data] [Google Scholar]. The first enticement suit was Winsmore v. Greenbank, Willes 577, 125 Eng. Rep. 1330 (1745). The leading cases in establishing the suit for alienation of affections in the United States were Bennett v. Smith, 21 Barb. 439 (N.Y. Sup. 1856) and Heermance v. James, 47 Barb. 120 (N.Y. App. Div., 1866).
16.Blackstone, Commentaries, Vol. 3, 139; Weinstein, “Adultery, Law, and the State,” 212–16; and Lawrence Stone , Road to Divorce: England, 1530–1987 (New York: Oxford University Press, 1990), 231–36 [CrossRef] [Google Scholar]. Royal writs of abduction were limited to punishing acts of violence that disrupted the king's peace. A husband seeking a writ therefore had to allege damage to himself, such as theft or property damage, alongside a claim of adultery. By contrast, crim. con. (and related suits for loss of consortium) remedied not the loss of physical property, but injury to the husband's relational interest in his wife; Weinstein, “Adultery, Law, and the State,” 212–19; and Korobkin, Criminal Conversations, 44–45, 49.
17.Reeve, Law of Husband and Wife, 4th ed., 90–91; and Hendrik Hartog , Man and Wife in America: A History (Cambridge, MA: Harvard University Press, 2000), 137 [Google Scholar].
18. Joel Prentiss Bishop , Commentaries on the Law of Married Women: Under the Statutes of the Several States, and at the Common Law and in Equity, 2 vols. (Philadelphia: Kay and Bro., 1873–1875), 1:27 [Google Scholar]; James Schouler , A Treatise on the Law of the Domestic Relations; Embracing Husband and Wife, Parent and Child, Guardian and Ward, Infancy, and Master and Servant (Boston: Little, Brown, and Co., 1870), 53 [Google Scholar]; and Jeanne Boydston , Home and Work: Housework, Wages, and the Ideology of Labor in the Early Republic (New York: Oxford University Press, 1990), 142–55 [Google Scholar].
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21. Bennett v. Smith, 441.
22.Bishop, Commentaries on the Law of Married Women, 1:675; and Schouler, Treatise on the Law of the Domestic Relations, 10.
23.Married women's property reform encompassed two phases. The first phase was intended to protect the property a woman acquired through gift or inheritance against her husband's creditors, but generally did not give a married woman control over it. The second phase, often termed “earnings acts,” recognized wives as separate legal actors, and (theoretically) gave them ownership of their earnings. Norma Basch , In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (Ithaca: Cornell University Press, 1982), esp. 224–32 [Google Scholar]; Elizabeth B. Warbasse , The Changing Legal Rights of Married Women, 1800–1861 (New York: Garland Publishing, 1987), esp. 300–307 [Google Scholar]; Richard H. Chused , “Married Women's Property Law: 1800–1850,” Georgetown Law Journal 71 (1983): 1359–425 [OpenURL Query Data] [Google Scholar]; Reva B. Siegel , “Home as Work: The First Woman's Rights Claims concerning Wives' Household Labor, 1850–1880,” Yale Law Journal 103 (1994): 1073–217, esp. 1082–85 [OpenURL Query Data] [CrossRef] [Google Scholar]; Siegel, “Modernization of Marital Status Law,” 2133–38; Carole Shammas , “Re-Assessing the Married Women's Property Acts,” Journal of Women's History 6 (1994): 9–30 [OpenURL Query Data] [CrossRef] [Google Scholar]; Stanley, From Bondage to Contract, 199–217; and Welke, Law and the Borders of Belonging, 46–47, 66.
24. Elizabeth Cady Stanton , Susan B. Anthony , and Matilda Joslyn Gage , eds. History of Woman Suffrage, Vol. 1, 1848–1861, 2nd ed. (Rochester, NY: Charles Mann, 1889), 64 [Google Scholar]; Hartog, Man and Wife in America, 287–308; and Cott, Public Vows, 156–63. On the passage of the New York act, see Basch, In the Eyes of the Law, 136–61; and Warbasse, Changing Legal Rights of Married Women, 205–29.
25.On this point, my analysis differs from Laura Korobkin's. Korobkin credits the passage of the married women's property acts with prompting this doctrinal change. As my work demonstrates, the acts were a precondition for courts' recognition of wives' right of action, but by themselves could not form the legal basis to authorize wives' suits. Korobkin, Criminal Conversations, 126–27.
26. Bigaouette v. Paulet, 134 Mass. 123 (1883), 124; and Rinehart v. Bills, 82 Mo. 534 (1884), 537. Rinehart strengthened the theory articulated in Heermance v. James (1866) that the substance of the action for alienation of affections was not “pecuniary loss, or loss of services” but “the loss of comfort and society of the wife.” Heermance v. James, 123.
27.Plaintiff's writ, April 9, 1877, Bigaouette v. Paulet case file, Social Law Library, Boston, Massachusetts; and Bigaouette v. Paulet, 123–24.
28. Ibid., 125, 126.
29.Defendant's Answer, Abstract and Abridgement of the Record in the Cause, Rinehart v. Bills case file, Missouri State Archives, Jefferson City, Missouri, 5; and Rinehart v. Bills, 536, 538.
30. Baker v. Baker, 16 Abb. N. Cas. 293 (N.Y. Sup. 1885), 294-95; and Bennett v. Bennett, 116 N.Y. 584 (1889), 587. See also Warner v. Miller, 17 Abb. N. Cas. 221 (N.Y. Sup. 1885), 222. (The court argued, “I do not think that we must resort to the idea that a husband can maintain such action only because his wife's services are due him and he loses her services when her affections are alienated and she deserts him.”).
31.Even after the passage of the married women's earnings statutes beginning in the 1850s, the vast majority of courts defined wives' household labor as “service,” and therefore the possession of their husbands. This definition of services encompassed unpaid and paid work in the home, even when it was performed for a third party (such as taking in boarders). See Stanley, From Bondage to Contract, 210–17; Siegel, “Modernization of Marital Status Law;” and Cott, Public Vows, 168–69.
32. Joel Prentiss Bishop , New Commentaries on Marriage, Divorce, and Separation: As to the Law, Evidence, Pleading, Practice, Forms and the Evidence of Marriage in All Issues on a New System of Legal Exposition, 2 vols. (Chicago: T. H. Flood and Co., 1891), 1:569 [Google Scholar]; Walter C. Rodgers , A Treatise on the Law of Domestic Relations (Chicago: T. H. Flood and Co., 1899), 133–34 [Google Scholar]; Tiffany, Law of Persons and Domestic Relations, 75; and Adams v. Main, 3 Ind. App. 232 (1892), 234–35.
33.Blackstone, Commentaries, Vol. 3, 94. See also Westlake v. Westlake, 34 Ohio 621 (1878), 626; and Bishop, New Commentaries on Marriage, 1:567. Early plaintiff wives' alienation of affections and enticement suits also uniformly referenced the English case Lynch v. Knight, 9 H. L. Cas. 577 (1861), in which a wife suing for slander sought additional damages for loss of her husband's consortium. Opinions in that case were so divided, however, that it was cited by American courts as precedent on both sides of the question of whether wives had a right to such a recovery.
34. Westlake v. Westlake, 627.
35. Clark v. Harlan, 422–23. See also Westlake v. Westlake; Baker v. Baker; Bennett v. Bennett, 597–99 (Bradley, J., concurring); Jaynes v. Jaynes, 39 Hun. 40 (N.Y. Sup. 1886); and Mehroff v. Mehroff, 26 Fed. 13 (C.C. Kansas 1886).
36. Bennett v. Bennett, 590; and Foot v. Card, 58 Conn. 1 (1889), 10. See also Breiman v. Paasch, 7 Abb. N. Cas. 249 (N.Y. City Ct. 1879); Warner v. Miller; Churchill v. Lewis, 17 Abb. N. Cas. 226 (N.Y. Sup. 1886); and Bassett v. Bassett, 20 Ill. App. 543 (1886).
37. Bennett v. Bennett, 591.
38.See, for example, Clark v. Harlan; Breiman v. Paasch; and Haynes v. Nowlin, 129 Ind. 581 (1891).
39. Haynes v. Nowlin, 583, 582; and Warren v. Warren, 89 Mich. 123 (1891), 129–30.
40.Schouler, Treatise on the Law of the Domestic Relations, 7. On the comparison of marriage to slavery in the postbellum era, see Stanley, From Bondage to Contract, 73–84; 175–217; and Elizabeth B. Clark, “Matrimonial Bonds: Slavery and Divorce in Nineteenth-Century America,” Law and History Review 8 (1990): 25–54.
41.On favorable reactions to the opinion in Bennett v. Bennett, for example, see Woman's Journal 20 (December 28, 1889): 409; and Independent 42 (March 13, 1890): 13.
42.East Grand Forks Items, Grand Forks Daily Herald, February 21, 1885, 4.
43. Doe v. Roe, 82 Me. 503 (1890); Duffies v. Duffies, 76 Wis. 374 (1890); and “Has a Wife a Right to Her Husband's Society?” Chicago Tribune, September 12, 1890, 6. See also, Editorial, Central Law Journal 31 (September 26, 1890): 214; Editorial Notes, Independent 42 (October 9, 1890): 13; and “A Wife's Legal Rights,” Troy Weekly Times (Troy, NY), October 16, 1890, 6.
44.Tiffany, Law of Persons and Domestic Relations, 78. See also, Bishop, New Commentaries on Marriage, 1:568; and James Schouler , A Treatise on the Law of the Domestic Relations; Embracing Husband and Wife, Parent and Child, Guardian and Ward, Infancy, and Master and Servant, 5th ed. (Boston: Little, Brown, and Co., 1895), 71 [Google Scholar].
45.Tiffany, Law of Persons and Domestic Relations, 78; Bishop, New Commentaries on Marriage, 1:568; Melville M. Bigelow , Elements of the Law of Torts for the Use of Students, 4th ed. (Boston: Little, Brown, and Co., 1891), 171 n.3 [Google Scholar]; Thomas M. Cooley , The Elements of Torts (Chicago: Callaghan and Co., 1895), 80–81 [Google Scholar]; and Rodgers, Treatise on the Law of Domestic Relations, 134–35. Schouler remained equivocal, despite his acknowledgment that a wife was entitled to her husband's consortium. Schouler, Treatise on the Law of the Domestic Relations, 5th ed., 73 n.1.
46. Bennett v. Bennett, 597 (Bradley, J., concurring).
47. Seaver v. Adams, 66 N.H. 142 (1890), 142–43.
48. Warren v. Warren, 126.
49. Haynes v. Nowlin, 582, 585.
50. Anna R. Ingra , “Male Providerhood and the Public Purse: Anti-Desertion Reform in the Progressive Era,” in The Sex of Things, ed. Victoria de Grazia (Berkeley: University of California Press, 1996), 188–211 [Google Scholar]; and Michael Willrich , “Home Slackers: Men, the State, and Welfare in Modern America,” Journal of American History 87 (2000): 460–89 [OpenURL Query Data] [CrossRef] [Google Scholar].
51.For examples of these arguments, see Brieman v. Paasch, 254 (attorney for defendant); and “Has a Woman Any Estate or Property in Her Husband's Society and Counsels?” 4.
52. Breiman v. Paasch, 253.
53.A thorough review of successful appellate suits brought by wives before 1900 reveals only two cases, Foot v. Card and Seaver v. Adams (discussed later in this section), in which a wife sought damages for the alienation of her husband's affections in the absence of his desertion.
54.Irving Browne, “The Husband-Seducer,” American Law Review 26 (1892): 43. See also “Has a Woman Any Estate or Property in Her Husband's Society and Counsels?” 4.
55. Warner v. Miller, 225.
56.Schouler, Treatise on the Law of the Domestic Relations, 5th ed., 71–72. Significantly, the word “male” appeared for the first time in the fifth edition (1895) of Schouler's treatise.
57. Warner v. Miller, 224.
58.“A Novel Suit,” 4.
59.Husbands and wives also brought actions for harboring or alienation of affections against the parents of their estranged spouses. In such cases, plaintiffs of either sex had to definitively show malice, because courts presumed parents to have honorable motives in encouraging a child to separate from a spouse. See Hutcheson v. Peck, 5 Johns. 196 (N.Y. Sup., 1809); Schouler, Treatise on the Law of the Domestic Relations, 58; and Melville M. Bigelow , Elements of the Law of Torts for the Use of Students (Boston: Little, Brown, and Co., 1878), 154–55 [Google Scholar].
60.Bishop, New Commentaries on Marriage, 1:568. See also, Schouler, Treatise on the Law of the Domestic Relations, 5th ed., 73 n.1 (“…the rival woman should be shown to have enticed knowingly and directly, so as to actively interfere with a wife's privileges.”).
61. Churchill v. Lewis, 229–30.
62. Waldron v. Waldron, 45 Fed. 315 (C.C. Ill. 1890), 316, 319–20.
63. Modisett v. McPike, 74 Mo. 636 (1881), 645, 646–47. See also Tiffany, Law of Persons and Domestic Relations, 78; and Hartpence v. Rogers, 143 Mo. 623 (1898). But see Tasker v. Stanley, 153 Mass. 148 (1891).
64. Cross v. Grant, 62 N.H. 675 (1883), 679–81, 686. See also, Michael v. Dunkle, 84 Ind. 544 (1882); Jacobson v. Siddal, 12 Ore. 280 (1885); Moore v. Hammons, 119 Ind. 510 (1889); and Bedan v. Turney, 99 Cal. 649 (1893).
65.Connecticut's state reporter correctly classified the action as an alienation of affections suit, but the headnotes of Shepard's Atlantic Reporter, a regional reporter, labeled it a crim. con. suit; 18 Atl. Rep. 1027.
66. Foot v. Card, 2–4. On the blurred line between “seduction” and “rape” at the turn of the century, see Stephen Robertson , “Seduction, Sexual Violence, and Marriage in New York City, 1886–1955,” Law and History Review 24 (2006): 334 [OpenURL Query Data] [CrossRef] [Google Scholar].
67. Foot v. Card, 8, 11.
68. Seaver v. Adams, 143, 144 (quoting Bigelow, Elements of the Law of Torts, 153).
69. Doe v. Roe, 503, 504.
70.Paper Book, Calendar No. 159, Kroessin v. Keller case file, Minnesota State Law Library, St. Paul, Minnesota, 3–4; and “A Sauk Centre Scandal,” St. Paul Daily Globe, March 16, 1894, 1. See also “Sensational Damage Suit,” Bismarck Daily Tribune, March 17, 1894, 1. I thank Jeff Manuel for his assistance in helping me access the Kroessin case file.
71. Kroessin v. Keller, 60 Minn. 372 (1895), 375.
72. Ibid., 374; and Appellant's Brief, Calendar No. 159, Kroessin v. Keller case file, 3.
73.Tiffany, Law of Persons and Domestic Relations, 78, 81; and Joseph R. Long , A Treatise on the Law of Domestic Relations (St. Paul: Keefe–Davidson Co., 1905) [Google Scholar], 226 n.371. See also Cooley, Elements of Torts, 81 n.4; James De Witt Andrews , American Law: A Treatise on Jurisprudence, Constitution and Laws of the United States (Chicago: Callaghan and Co., 1900), 670–71 [Google Scholar]; Francis M. Burdick , The Law of Torts: A Concise Treatise on the Civil Liability at Common Law and Under Modern Statutes for Actionable Wrongs to Person and Property (Albany: Banks and Co., 1905), 278 [Google Scholar]; and Edward W. Spencer , A Treatise on the Law of Domestic Relations and the Status and Capacity of Natural Persons as Generally Administered in the United States (New York: Banks Law Publishing Co., 1911), 136–37 [Google Scholar]. For casebooks in which Kroessin appeared as the leading case on wives' right to crim. con., see Edwin H. Woodruff , A Selection of Cases on Domestic Relations and the Law of Persons (New York: Baker, Voorhis & Co., 1897), 195–97 [Google Scholar]; Jeremiah Smith , Cases on Selected Topics in the Law of Persons (Cambridge, MA: Harvard Law Review Publishing Association, 1899), 707–709 [Google Scholar]; and Samuel F. Mordecai , Remedies by Selected Cases, Annotated (Durham, N.C.: [s.n.], 1910), 498–500 [Google Scholar].
74.See, for example, “A Pitched Battle on the Streets,” Indianapolis Sentinel, May 13, 1873, 8; “A Wife's Revenge,” Chicago Tribune, July 8, 1883, 2; and “A Woman's Deed: A Young Man Killed by Mistake,” Philadelphia Inquirer, March 24, 1884, 1.
75.Tiffany, Law of Persons and Domestic Relations, 82. On Victorian perceptions of male sexual aggression, see E. Anthony Rotundo , American Manhood: Transformations in Masculinity from the Revolution to the Modern Era (New York: Basic Books, 1993), 121–28 [Google Scholar]; John D'Emilio and Estelle B. Freedman , Intimate Matters: A History of Sexuality in America (New York: Harper & Row, 1988), 178–83 [Google Scholar]; Ellen K. Rothman , Hands and Hearts: A History of Courtship in America (1984; repr. Cambridge, MA: Harvard University Press, 1987), 183–89 [Google Scholar]; and Robertson, “Seduction, Sexual Violence, and Marriage,” 342–43.
76.On the husband's separate suit per quod consortium amisit, see Blackstone, Commentaries, Vol. 3, 140; Bishop, Commentaries on the Law of Married Women, 1:694–95; and Thomas M. Cooley , A Treatise on the Law of Torts: Or the Wrongs Which Arise Independent of Contract (Chicago: Callaghan and Co., 1879), 227 [Google Scholar].
77. Skoglund v. Minneapolis Street Ry. Co., 45 Minn. 330 (1891), 331. But in Washington, D.C., for example, wives could not bring their own suits for personal injuries. See Snashell v. Metropolitan Railroad Co., 19 D.C. 399 (1890).
78. Kelley v. New York, N. H. & H. R. Co., 168 Mass. 308 (1897), 311–12.
79. Goldman v. Cohen, 63 N.Y. Supp. 459 (N.Y. Sup. 1900). The court in Goldman recognized that the law was willing to “inflict heavy damages on the enticer or seducer,” but these, it claimed, were for “punishment and atonement rather than compensation.” However, in alienation of affections and criminal conversation suits, damages were understood to be compensatory, and could be mitigated if it were shown that the plaintiff's regard for his or her spouse was compromised by, for example, abuse or prior acts of adultery. See, for example, Browning v. Jones (1893), in which the court described the loss of consortium in a crim. con. suit as an “invasion of rights…. Hence whatever damages arise therefrom, as loss of consortship,…should be regarded as natural and proximate.” Browning v. Jones, 52 Ill. App. 597 (1893), 605.
80.On the husband's injury and suit, see Feneff v. Boston & Maine Railroad, et al., 196 Mass. 575 (1907).
81. Feneff v. New York Central & Hudson River R.R. Co., 203 Mass. 278 (1909), 279–82. Goldman v. Cohen and Feneff v. New York Central & Hudson River R.R. Co. were endorsed by Brown v. Kistleman, et al., 177 Ind. 692 (1912); Stout v. Kansas City Terminal Ry. Co., 172 Mo. App. 113 (1913); Gambino v. Manufacturers Coal and Coke Co., 175 Mo. App. 653 (1913); and Patelski v. Snyder, 175 Ill. App. 24 (1913). Courts would not recognize a wife's right to recover for the loss of consortium resulting from third-party negligence until the 1950 case Hitaffer v. Argonne Co., 183 F.2d 811 (D.C. Cir. 1950). Courts permitted wives' suits for loss of consortium when their husbands' injuries resulted from more intentional harm, such as the sale of morphine and other injurious drugs. See, for example, Flandermeyer v. Cooper, 85 Ohio St. 327 (1912).
82. Guevin v. Manchester Street Ry., 78 N.H. 289 (1916), 296. In a notable departure from the common law consensus, the high courts of Massachusetts and Connecticut held husbands to the same standards as wives, and found against their right of action for loss of consortium for negligent injury. As the Connecticut court argued, the modern definition of consortium no longer included the services of the wife; and injury alone was not “calculated to change the feelings of the parties toward each other, to diminish their love and affection, to lessen the sweetness of their companionship, or to weaken the desire to do all that is incumbent upon the parties to a marital union.” Marri v. Stamford Street R. R. Co., 84 Conn. 9 (1911), 17. See also Bolger v. Boston Elevated Ry. Co., 205 Mass. 420 (1910).
83. Hart v. Knapp, 76 Conn. 135 (1903), 139, 140. At issue in Knapp's appeal was the lower court judge's charge to the jury, in which he instructed that “the defendant, if she committed adultery with the husband of the plaintiff is liable for damages in the action, whether the husband sought and solicited the defendant or the defendant [solicited] the husband of the plaintiff.” Charge to the Jury, Supreme Court, 3rd Dist., June Term, 1903, Vol. 35, Hart v. Knapp case file, Connecticut State Library, Hartford, Connecticut, 11. As Knapp's lawyer pointed out in his appellant brief, these instructions were “as though the action was brought by a husband against another man for criminal conversation.” Brief of Appellant, Supreme Court, 3rd Dist., June Term, 1903, Vol. 35, Hart v. Knapp case file, 2.
84. Nolin v. Pearson, 191 Mass. 283 (1906), 288–89.
85. Dodge v. Rush, 28 App. D.C. 149 (1906), 153.
86.By the early twentieth century, the “single moral standard” of sexual behavior had become a dominant ideal (if not practice) among middle-class Americans. This elevation of sexual exclusivity in marriage was an outgrowth of three intertwined social movements: feminism, social purity (which sought to eradicate prostitution), and sex hygiene (which worked to eliminate venereal disease). Although their membership and methods varied widely, all three movements assailed the presumption that men and women should be held to different standards of sexual conduct. Freedman and D'Emilio, Intimate Matters, 150–56, 173–78, 203–208; David J. Pivar , Purity Crusade: Sexual Morality and Social Control, 1868–1900 (Westport, CT: Greenwood Press, Inc., 1973) [Google Scholar]; William Leach , True Love and Perfect Union: The Feminist Reform of Sex and Society, 2nd ed. (Middletown, CT: Wesleyan University Press, 1989), 81–98 [Google Scholar]; and Allan M. Brandt , No Magic Bullet: A Social History of Venereal Disease in the United States Since 1880, rev. ed. (New York: Oxford University Press, 1987), 7–51 [Google Scholar].
87. Nolin v. Pearson, 286.
88.In the nineteenth century, three states—North Carolina, Texas, and Kentucky—held husbands and wives to different statutory standards for divorce. These states allowed for divorce on the basis of a wife's single act of infidelity, but required a husband to be living in a state of adultery for the petition to succeed. Criminal laws more frequently discriminated against wives: a husband's act of intercourse with an unmarried woman was often considered fornication, whereas a wife's extramarital sexual act constituted adultery. Robert L. Griswold , Adultery and Divorce in Victorian America, 1800–1900, Legal History Program Working Papers, ser. 1 (Madison: Institute for Legal Studies, 1986), 2–5, 13 [Google Scholar]. Far more explicit was the English statutory double standard, which allowed husbands to obtain a divorce for the wife's adultery alone, but required wives to combine a charge of adultery with another complaint, such as extreme cruelty or desertion. Hartog, Man and Wife in America, 328 n.2
89.Griswold, Adultery and Divorce in Victorian America, 4–7, 30–34; and Hartog, Man and Wife in America, 331 n.21.
90. Dodge v. Rush, 152.
91. Sims v. Sims, 79 N.J.L. 577 (1910); Hodge v. Wetzler, 69 N.J.L. 490 (1903); Miller v. Pearce, 86 Vt. 322 (1912); and Epaphroditus Peck , The Law of Persons; or, Domestic Relations (Chicago: Callaghan and Co., 1913), 44 n.46 [Google Scholar]. Earlier treatises and casebooks reflected the transition toward allowing wives' action for crim. con. by citing cases both for and against it. See, for example, Walter C. Tiffany , Handbook on the Law of Persons and Domestic Relations, 2nd ed. by Roger W. Cooley (St. Paul: 1909), 87–88 [Google Scholar]; and John Henry Wigmore , Select Cases on the Law of Torts: With Notes, and a Summary of Principles (Boston: Little, Brown, and Co., 1912), 1:155–62 [Google Scholar].
92.Peck, Law of Persons, 44.
93.See, for example, the alienation of affections suit Rott v. Goerhing, 33 N.D. 413 (1916), 419 (The court asserted that “to hold that the flagrant wrongs inflicted upon plaintiff's marital rights cannot be redressed…unless the wrongdoer has actually succeeded in destroying the home by causing an actual abandonment thereof by the husband is contrary not only to common sense, but to our notions of natural justice.”).
94. Tinker v. Colwell, 193 U.S. 473 (1904), 484, 481 (emphasis mine). At issue in Tinker was whether a judgment of $50,000 recovered against the defendant in a crim. con. suit was discharged by the defendant's bankruptcy. The Court ruled that because the judgment in question was for “willful and malicious injuries to the person or property of another,” it was not discharged. Tinker v. Colwell, 480. The persistence of husbands' property in their wives' bodies can also be seen in the marital rape exemption, which survived unmodified through much of the twentieth century. See Jill Elaine Hasday , “Contest and Consent: A Legal History of Marital Rape,” California Law Review 88 (2000): 1373–505 [OpenURL Query Data] [CrossRef] [Google Scholar].
95. Stark v. Johnson, 43 Colo. 243 (1908), 244, 245; and Merritt v. Cravens, 168 Ky. 155 (1916), 165. See also Purdy v. Robinson, 117 N.Y.S. 295 (N.Y. Sup. 1909); and Watkins v. Lord, 31 Idaho 352 (1918).
96. Margot Canaday , “Heterosexuality as a Legal Regime,” in The Cambridge History of Law in America, 3 vols., eds. Michael Grossberg and Christopher Tomlins (New York: Cambridge University Press, 2008), 3:442–71 [Google Scholar].