Coverture’s decline, moreover, is linked to a second significant transformation in husbands’ and wives’ legal relationship to each other—focusing on what the law defines as marital consortium: the investment that husbands and wives acquire in each other’s company. Consortium becomes a crucial doctrine in tort cases when third-party actions damage that investment, either intentionally or through negligence. The extreme case occurs when one of the spouses disappears or becomes incapacitated as a consequence of third-party action. In cases of third-party negligence causing injury or death to husband or wife, the spouse suffering the loss can sue third parties for loss of marital consortium (of course, courts and juries distinguish between the amounts and grounds of awards for injury and death, but those differences matter little for this discussion). Meanwhile, in so-called heart-balm actions, a wronged spouse could sue a third party for two types of intentional interference with the marriage relationship. First, in cases of adultery, the aggrieved spouse claimed damages from the third-party lover in a suit for criminal conversation, claiming, among other harms, loss of consortium. In the second category of heart-balm actions, alienation of affections, the plaintiff accused the defendant of injuring or breaking up the marriage.
No evidence of adulterous sexual relations was necessary for this second type of action, nor was adultery by itself sufficient to claim alienation of affections. In fact, such suits could be brought against relatives and friends not just for theft of affections, but more broadly for injuriously and unjustifiably meddling with the marital relationship. A 1934 review noted that “probably. .. more suits for alienation of affections are brought against parents and other very close relatives of the alienated spouse than against any other class of persons” (Brown 1934: 483). In contrast with the pecuniary emphasis of other nineteenth-century domestic jurisprudence, heart-balm cases often extended beyond immediate financial losses to compensation for such nonmonetary damages as loss of companionship. Yet plaintiffs often received large awards. (Clark 1968: 266).
As it happens, heart-balm actions also occurred outside of marriage. In cases of broken commitments to marriage, jilted fiancees could sue for breach of promise, while parents of a seduced woman claimed damages from the seducer. The reasoning was directly parallel to that applied for the disruption of a marital relationship: the investment that one party had in a relation to the other (Tushnet 1998; VanderVelde 1996). However, the relative significance of these two kinds of claims (intentional and negligent interference with marital consortium), the substance of the loss, and the gender symmetry of consortium rights, all changed substantially over time (see Brown 1934; Clark 1968; Fox 1999; Hartog 2000; Holbrook 1923; Keeton 1984; Korobkin 1998; Lippman 1930). As usual, change resulted from the convergence ofthree different causes: general alterations in social practice outside the law, political pressure, and internal developments within the legal field.
The relative importance of intentional and negligent actions involving loss of consortium claims seesawed throughout the nineteenth and twentieth centuries. Heart-balm actions boomed between the late nineteenth century and the 1930s, with successful plaintiffs receiving significant compensation. Between the 1930s and the 1950s, however, reformers successfully acted to reduce such claims. One of the major arguments was a hostile worlds complaint. Heart-balm actions, in the view of its reformers, put an unseemly monetary price on priceless companionship. Yet consortium claims did not disappear with these restrictions. Disputes over negligence had often figured in heart-balm cases, and as their numbers dwindled, negligence soon became the primary basis for consortium claims. In its two major forms, injury and wrongful death, spouses laid claims for harm to their marital relationship. In cases of both injury and death, the law recognized the surviving spouse’s loss of some or all of the companion’s contribution to the relation.
What losses were spouses suing for? The substance of consortium claims altered significantly over time. In cases of injury or death, nineteenth-century courts were very reluctant to make consortium awards for anything but material losses. They resisted assigning value to marital companionship as such. In close correspondence to coverture, early-nineteenth-century courts compensated husbands exclusively for the pecuniary loss of their wives’ services. Later, however, courts moved increasingly toward recognizing companionship as a loss, in addition to material services. As they did so, they oscillated between treating companionship and service as indissolubly linked and treating them as legally separable.
Even in the 1930s, Leon Green complained that at least in death actions, courts “deny any substantial protection to the relational interest” of surviving spouses: “It would seem that both legislatures and courts have looked upon the death action more as a form of insurance, or as an emergency relief for the survivors against the poorhouse, rather than as a method of protecting the relational interest or as compensating for any injury done to such interest” (Green 1934: 472-73). By then, in fact, the law was already changing, however slowly. Indeed, at the beginning of the decade in a Columbia Law Review article on the “breakdown of consortium,” Jacob Lippman, an influential opponent of separating material and relational interests, had noted that “courts have undertaken to break up consortium into two component parts, practical (service) and spiritual (affection, companionship, etc), completely overlooking the fact that in its inception and in its very nature consortium was and must be an indestructible entity” (Lippman 1930: 672-73).
By the 1960s, consortium awards regularly included compensation for lost companionship. Homer Clark’s Law of Domestic Relations offers the following definition:
Apart from support, consortium could be summed up as referring to the variety of intangible relationships prevailing between spouses living together in a going marriage. In earlier times there was more emphasis upon the wife’s services than today when it is coming to be recognized that the parties’ mutual affection, with all that that implies, is more important than the wife’s household chores. (Clark 1968: 261)
After the 1930s, as courts ruled out heart-balm compensation, they became more generous in awards for related damages of injury and wrongful death.
In addition to shifts in the relative importance of intentional versus negligent actions and the substance of the claimed loss, the gender symmetry of legal claims noticeably changed as well. Who could sue? For the most part, since 1800 American law has defined consortium very asymmetrically. Husbands were the sole plaintiffs in early — nineteenth-century actions, suing for both intentional and negligent interference with their marital rights over a wife’s services—much as a master was entitled to recover for loss of a servant’s labor. After the mid-nineteenth-century enactment of wrongful death statutes by most states, and for most of the rest of that century, husbands generally lost their claims in connection with a wife’s services. Meanwhile, wives could now bring wrongful death actions for loss of their husband’s wages and support (Witt 2000, 2004).
By the late nineteenth century, wives also gained legal access to claims for intentional disruption of the marital relationship, as courts allowed them to sue for alienation of affection and criminal conversation. Yet women were still not permitted to claim damages when their husbands were injured. Why this persistent exclusion? Courts argued that because the husband recovered damages for his loss of earning capacity, he was therefore able to continue supporting his wife. In such cases, additional awards to the wife would entail either illegitimate double recovery for the same injury or provide inappropriate compensation for nonpecuniary loss. Only after the 1950 landmark case of Hitaffer v. Argonne Co. (183 F.2d 811 (D. C. Cir. 1950)), did states regularly start equalizing husbands and wives’ entitlements for loss of consortium in cases of injury (on gender and loss of consortium actions, see Ridgeway 1989).
Notice the law’s inconsistencies concerning who could legally claim loss of consortium and for what. During late-nineteenth — and early-twentieth-century cases, wives could not sue for loss of their husband’s consortium if he was negligently injured, yet they could do so when another woman intentionally seduced him. Both men and women, meanwhile, were denied recovery for the sentimental aspects of consortium in death or injury cases but allowed such compensation in heart-balm suits.