Money for Honor: Damages for Criminal Conversation

M o n e y fo r H o n o r: D a m a g e s fo r C rim in a l C o n v e r s a tio n S U S A N S T A V E S ZYXWVUTSRQPONMLKJIHGFEDCBA In the notorious common-law action for criminal conversation eighteenth-century husbands whose wives had committed adultery could recover monetary damages from the men who had cuckolded them. Hus­ bands were to be compensated for the loss of their honor as a conse­ quence of the adultery and for the loss of the wife's consortium, it being assumed that the husband could not condone the adultery by continuing to live with a guilty wife.1 Such suits afforded contemporaries consider­ able amusement and titillation, but also provoked embarrassment and anxiety, particularly over what was sometimes felt to be the fundamental impropriety of exchanging honor for money. This litigation and the atti­ tudes toward it raise fundamental questions about the meaning of money, the relationship between money and class, the expectations of the rights and responsibilities within marriage, of whether or not wives may be con­ sidered the property of their husbands, or more generally, of whether there is any such thing as property in persons. I plan to explore these is­ sues further at a later time; here, however, I wish to focus primarily on the relation between class and the award of damages. In criminal conversation the courts tried to adjust damages to an esti­ mate of how much honor the individual plaintiff had lost; how much honor each plaintiff had lost, in turn, depended in part on how much honor he was adjudged to have had initially. Counsel for both sides en­ gaged in argument about what constituted honor and judges and juries tried to quantify honor so as to give appropriate damages. Though it was 279 280 / STAVESZYXWVUTSRQPONMLKJIHGFEDCBA sometimes suggested that only the vulgar would declare their cuckoldom in open court and demand monetary damages under such circumstances, the facts are that gentlemen and aristocrats were frequent plaintiffs in these cases and that, the more wellborn they were, the more money they demanded and got. John C. Lassiter in a recent article on TSRQPONMLKJIHGFEDCBA s ca n d a lu m m a g n a t u m from 1497 to 1773 has suggested that the decline of that action, which allowed peers to collect damages for derogatory words spoken against them even when those words would not have been actionable if spoken against a person of lesser status, reflected a declining sense of "hi­ erarchical social order" in the later eighteenth century.2 There is a signifi­ cant difference between s ca n d a lu m m a g n a t u m damages and damages ad­ justed to the plaintiffs rank in criminal conversation, since the former makes an absolute distinction between peers and commoners while the latter invokes a continuous scale from the greatest peer to the lowliest ser­ vant. Yet the criminal conversation litigation reveals "hierarchical social order" firmly entrenched in one aspect of late eighteenth-century legal theory and practice, and fails to show the more pleasing challenge Lassi­ ter finds to the "double standard observed by the law for nearly two cen­ turies," at least if we consider high rank and low rank sufficiently double. Moreover, despite the horror with which the contemporary transition to a cash economy was greeted by conservative spokesmen for the upper classes, when there was cash to be gotten in the form of crim. con. dam­ ages, not only did upper-class plaintiffs appear willing to take it, but they considered themselves entitled to more cash by way of compensation for the same injury than humbler men in the professions or in trade. Criminal conversation cases, no doubt largely because of the salacious and scandalous evidence presented, seem among the most extensively re­ ported eighteenth-century civil actions. Newspapers like the L o n d o n D a ily A d v e r t is e r and later T h e L o n d o n T im e s...