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

Abstract

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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kim.reilly@gmail.com
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This list contains references from the content that can be linked to their source. For a full set of references and notes please see the PDF or HTML where available.

Reva B. Siegel, “‘The Rule of Love’: Wife-Beating as Prerogative and Privacy,” Yale Law Journal 105 (1996): 2117–207

Robert L. Griswold, “Law, Sex, Cruelty, and Divorce in Victorian America, 1840–1900,” American Quarterly 38 (1986): 721–45

Lawrence Stone, Road to Divorce: England, 1530–1987 (New York: Oxford University Press, 1990), 231–36

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

Carole Shammas, “Re-Assessing the Married Women's Property Acts,” Journal of Women's History 6 (1994): 930

Michael Willrich, “Home Slackers: Men, the State, and Welfare in Modern America,” Journal of American History 87 (2000): 460–89

Jill Elaine Hasday, “Contest and Consent: A Legal History of Marital Rape,” California Law Review 88 (2000): 1373–505

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Law and History Review
  • ISSN: 0738-2480
  • EISSN: 1939-9022
  • URL: /core/journals/law-and-history-review
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