From Loss of Services to Loss of Support: The Wrongful Death Statutes, the Origins of Modern Tort Law, and the Making of the Nineteenth-Century Family

The wrongful death statutes enacted in most states during the mid-nineteenth century have long represented a classic moment in the narrative of American legal history. Historians have not observed, however, that American wrongful death statutes amended the English act on which they were modeled to introduce a gender asymmetry peculiar to the United States. Led by New York, most American jurisdictions limited wrongful death actions to "the widow and next of kin" of the decedent, categories that did not include husbands of deceased wives. Thus, a wife could bring a wrongful death action for the death of her husband, but a husband could not bring a wrongful death action on his own behalf for the death of his wife. The wrongful death statutes represent a heretofore unrecognized conjuncture of the beginnings of the modern law of torts with the nineteenth-century legal reconstruction of the family. The statutes moved accident litigation away from an eighteenth-century model of masters suing for loss of the services of a servant, slave, wife, or child, toward the now more familiar model of suits for loss of wages and support. Moreover, the gender asymmetry of the statutes embodied and reproduced a new nineteenth-century conception of the family in which men worked as free laborers and women were confined to relatively narrow domestic roles, removed from the market and dependent for their support on the wages of their husbands. Indeed, the statutes anticipated by over half a century the American welfare state's two-track approach to support for wage-earning men and dependent women.