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Wronged in Her Dearest Rights: Plaintiff Wives and the Transformation of Marital Consortium, 1870–1920

Published online by Cambridge University Press:  11 February 2013

Kimberley A. Reilly
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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.” 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.” 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.

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Law and History Review , Volume 31 , Issue 1 , February 2013 , pp. 61 - 99
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Copyright © the American Society for Legal History, Inc. 2013

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References

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. Blackstone, William, Commentaries on the Laws of England, Vol. 3, Of Private Wrongs (1768; repr., Chicago: University of Chicago Press, 1979), 142–43Google Scholar.

3. Beth, Loren P., John Marshall Harlan: The Last Whig Justice (Lexington, KY: University Press of Kentucky, 1992), 12–13Google Scholar; Gordon, James W., “Did the First Justice Harlan Have a Black Brother?” Western New England Law Review 15 (1993), 159–238Google Scholar; and Przybyszewski, Linda, The Republic According to John Marshall Harlan (Chapel Hill: University of North Carolina Press, 1999), 23Google 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 Simmons, William J., Men of Mark: Eminent, Progressive, and Rising (Cleveland: George M. Rewell & Co., 1887), 613–16Google 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 Korobkin, Laura Hanft, Criminal Conversations: Sentimentality and Nineteenth-Century Legal Stories of Adultery (New York: Columbia University Press, 1998), 121–58Google 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. Grossberg, Michael, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985), 33–63Google Scholar (on the breach-of-promise suit); Siegel, Reva B., “‘The Rule of Love’: Wife-Beating as Prerogative and Privacy,” Yale Law Journal 105 (1996): 2117–207CrossRefGoogle Scholar (on domestic assault in tort and criminal law); and Siegel, Reva B., “The Modernization of Marital Status Law: Adjudicating Wives' Rights to Earnings, 1860–1930,” Georgetown Law Journal 82 (1994): 2127–211, esp. 2199–210Google Scholar (on wives' earnings laws). On the growing importance of affect in marriage more generally, see Cott, Nancy F., Public Vows: A History of Marriage and Nation (Cambridge, MA: Harvard University Press, 2000), 15–23Google Scholar; Basch, Norma, Framing American Divorce: From the Revolutionary Generation to the Victorians (Berkeley: University of California Press, 1999), 24–30, 123–40Google Scholar; Lystra, Karen, Searching the Heart: Women, Men, and Romantic Love in Nineteenth-Century America (New York: Oxford University Press, 1989), 192–226Google 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 Griswold, Robert L., “Law, Sex, Cruelty, and Divorce in Victorian America, 1840–1900,” American Quarterly 38 (1986): 721–45CrossRefGoogle ScholarPubMed; and on women's predominance in suits for nervous shock, see Welke, Barbara Young, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920 (New York: Cambridge University Press, 2001), 171–202Google 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 Welke, Barbara Young, Law and the Borders of Belonging in the Long Nineteenth Century United States (New York: Cambridge University Press, 2010)CrossRefGoogle Scholar. See also Kerber, Linda K., No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York: Hill and Wang, 1998)Google Scholar.

15. Reeve, Tapping, The Law of Husband and Wife, of Parent and Child, Guardian and Ward, Master and Servant, 4th ed. by Eaton, James W. Jr. (Albany: William Gould, Jr., and Co., 1888), 90 n.1Google Scholar; and Weinstein, Jeremy D., “Adultery, Law, and the State: A History,” Hastings Law Journal 38 (1986): 220–21Google 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 Stone, Lawrence, Road to Divorce: England, 1530–1987 (New York: Oxford University Press, 1990), 231–36CrossRefGoogle 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 Hartog, Hendrik, Man and Wife in America: A History (Cambridge, MA: Harvard University Press, 2000), 137Google Scholar.

18. Bishop, Joel Prentiss, 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), 1:27Google Scholar; Schouler, James, 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), 53Google Scholar; and Boydston, Jeanne, Home and Work: Housework, Wages, and the Ideology of Labor in the Early Republic (New York: Oxford University Press, 1990), 142–55Google Scholar.

19. Schouler, James, A Treatise on the Law of the Domestic Relations; Embracing Husband and Wife, Parent and Child, Guardian and Ward, Infancy, and Master and Servant, 3rd ed. (Boston: Little, Brown, and Co., 1882), 69Google Scholar; Bishop, Commentaries on the Law of Married Women, 1:13; Tiffany, Walter C., Handbook on the Law of Persons and Domestic Relations (St. Paul: West Publishing Co., 1896), 49Google Scholar; Schouler, Treatise on the Law of the Domestic Relations, 12; Stanley, Amy Dru, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (New York: Cambridge University Press, 1998), 210–17CrossRefGoogle Scholar; and Siegel, “Modernization of Marital Status Law.”

20. Howe, Julia Ward, “Men, Women, and Money,” Forum 5 (1888): 463Google Scholar; Cott, Public Vows, 15–23; Basch, Framing American Divorce, 123–40; Lystra, Searching the Heart, 6–9; 227–37; and Grossberg, Governing the Hearth, 4–9.

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. Basch, Norma, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (Ithaca: Cornell University Press, 1982), esp. 224–32Google Scholar; Warbasse, Elizabeth B., The Changing Legal Rights of Married Women, 1800–1861 (New York: Garland Publishing, 1987), esp. 300–307Google Scholar; Chused, Richard H., “Married Women's Property Law: 1800–1850,” Georgetown Law Journal 71 (1983): 1359–425Google Scholar; Siegel, Reva B., “Home as Work: The First Woman's Rights Claims concerning Wives' Household Labor, 1850–1880,” Yale Law Journal 103 (1994): 1073–217, esp. 1082–85CrossRefGoogle Scholar; Siegel, “Modernization of Marital Status Law,” 2133–38; Shammas, Carole, “Re-Assessing the Married Women's Property Acts,” Journal of Women's History 6 (1994): 9–30CrossRefGoogle Scholar; Stanley, From Bondage to Contract, 199–217; and Welke, Law and the Borders of Belonging, 46–47, 66.

24. Stanton, Elizabeth Cady, Anthony, Susan B., and Gage, Matilda Joslyn, eds. History of Woman Suffrage, Vol. 1, 1848–1861, 2nd ed. (Rochester, NY: Charles Mann, 1889), 64Google 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. Bishop, Joel Prentiss, 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), 1:569Google Scholar; Rodgers, Walter C., A Treatise on the Law of Domestic Relations (Chicago: T. H. Flood and Co., 1899), 133–34Google 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 Schouler, James, 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), 71Google Scholar.

45. Tiffany, Law of Persons and Domestic Relations, 78; Bishop, New Commentaries on Marriage, 1:568; Bigelow, Melville M., Elements of the Law of Torts for the Use of Students, 4th ed. (Boston: Little, Brown, and Co., 1891), 171 n.3Google Scholar; Cooley, Thomas M., The Elements of Torts (Chicago: Callaghan and Co., 1895), 80–81Google 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. Ingra, Anna R., “Male Providerhood and the Public Purse: Anti-Desertion Reform in the Progressive Era,” in The Sex of Things, ed. de Grazia, Victoria (Berkeley: University of California Press, 1996), 188–211Google Scholar; and Willrich, Michael, “Home Slackers: Men, the State, and Welfare in Modern America,” Journal of American History 87 (2000): 460–89CrossRefGoogle 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 Bigelow, Melville M., Elements of the Law of Torts for the Use of Students (Boston: Little, Brown, and Co., 1878), 154–55Google 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 Robertson, Stephen, “Seduction, Sexual Violence, and Marriage in New York City, 1886–1955,” Law and History Review 24 (2006): 334CrossRefGoogle 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 Long, Joseph R., 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; Andrews, James De Witt, American Law: A Treatise on Jurisprudence, Constitution and Laws of the United States (Chicago: Callaghan and Co., 1900), 670–71Google Scholar; Burdick, Francis M., 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), 278Google Scholar; and Spencer, Edward W., 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), 136–37Google Scholar. For casebooks in which Kroessin appeared as the leading case on wives' right to crim. con., see Woodruff, Edwin H., A Selection of Cases on Domestic Relations and the Law of Persons (New York: Baker, Voorhis & Co., 1897), 195–97Google Scholar; Smith, Jeremiah, Cases on Selected Topics in the Law of Persons (Cambridge, MA: Harvard Law Review Publishing Association, 1899), 707–709Google Scholar; and Mordecai, Samuel F., Remedies by Selected Cases, Annotated (Durham, N.C.: [s.n.], 1910), 498–500Google 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 Rotundo, E. Anthony, American Manhood: Transformations in Masculinity from the Revolution to the Modern Era (New York: Basic Books, 1993), 121–28Google Scholar; D'Emilio, John and Freedman, Estelle B., Intimate Matters: A History of Sexuality in America (New York: Harper & Row, 1988), 178–83Google Scholar; Rothman, Ellen K., Hands and Hearts: A History of Courtship in America (1984; repr. Cambridge, MA: Harvard University Press, 1987), 183–89Google 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, 1:694–95Google Scholar; and Cooley, Thomas M., A Treatise on the Law of Torts: Or the Wrongs Which Arise Independent of Contract (Chicago: Callaghan and Co., 1879), 227Google 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; Pivar, David J., Purity Crusade: Sexual Morality and Social Control, 1868–1900 (Westport, CT: Greenwood Press, Inc., 1973)Google Scholar; Leach, William, True Love and Perfect Union: The Feminist Reform of Sex and Society, 2nd ed. (Middletown, CT: Wesleyan University Press, 1989), 81–98Google Scholar; and Brandt, Allan M., No Magic Bullet: A Social History of Venereal Disease in the United States Since 1880, rev. ed. (New York: Oxford University Press, 1987), 7–51Google 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. Griswold, Robert L., Adultery and Divorce in Victorian America, 1800–1900, Legal History Program Working Papers, ser. 1 (Madison: Institute for Legal Studies, 1986), 2–5, 13Google 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 Peck, Epaphroditus, The Law of Persons; or, Domestic Relations (Chicago: Callaghan and Co., 1913), 44 n.46Google 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, Tiffany, Walter C., Handbook on the Law of Persons and Domestic Relations, 2nd ed. by Cooley, Roger W. (St. Paul: 1909), 87–88Google Scholar; and Wigmore, John Henry, Select Cases on the Law of Torts: With Notes, and a Summary of Principles (Boston: Little, Brown, and Co., 1912), 1:155–62Google 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 Hasday, Jill Elaine, “Contest and Consent: A Legal History of Marital Rape,” California Law Review 88 (2000): 1373–505CrossRefGoogle 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. Canaday, Margot, “Heterosexuality as a Legal Regime,” in The Cambridge History of Law in America, 3 vols., eds. Grossberg, Michael and Tomlins, Christopher (New York: Cambridge University Press, 2008), 3:442–71Google Scholar.