In the Anglo-American tradition of Common Law, the status of wives was defined by the principle of coverture, which meant that the wife’s legal identity was merged with that of her husband. [i] When Hamlet is taken to task for addressing his stepfather as “mother,” he replies: “Father and mother is man and wife, man and wife is one flesh, and so, my mother.” (IV.3. 54-55) As Blackstone observes: “By marriage, the husband and wife are one person in law…the very legal being or legal existence of the woman is suspended during marriage, or at least is incorporated or consolidated.”[ii]
Justice Hugo Black’s oft-quoted quip (though he did not originate it) that “the old common-law fiction that the husband and wife are one…has worked out in reality to mean…the one is the husband” is a smart-aleckism[iii]–typical of modern jurists who refuse to look at an issue in any light but that provided by current fashion, and it rests upon the assumption–the most degrading imaginable–that women have allowed themselves to be enslaved, throughout human history, by men. Patriarchal institutions are a two-way street, and if men ever supposed they had the power to control the lives of their womenfolk, they were, in so thinking, obliged to support and protect them. Anyone may choose to dislike the terms of this division of labor, but the consistent misrepresentation of sex roles as as a one-sided tyranny is a myth or, rather, a barefaced lie.
Even in the old Common Law tradition, man and wife were not so merged that women had no legal identity. The wife’s position was not that of a possession but of her husband’s ward. She could, for example, maintain property rights, though they were limited by her husband’s authority.[iv] The implications of couverture and related notions, however, were broad, extending to questions of property, inheritance, divorce, and even criminal prosecutions. Husbands and wives were not permitted to give evidence in court for or against one another. Since a criminal conspiracy requires two parties, a married couple could not be convicted of conspiring together.[v] As one person, in the eyes of the law and of the church, husband and wife could not sue each other in tort. This principle was invoked as late as 1953 in an English case where a master was held accountable for his servant’s negligence that resulted in injury to the servant’s wife.[vi] Within a decade legal reformers were eliminating this last vestige of coverture in British law.[vii]
The husband, at least in law, was the presumed master of the house and, consequently, could be held liable for his wife’s torts, including those to which she had been liable before marriage, and for misdemeanors and certain felonies that were performed in his presence and could thus be presumed to be done under his orders. In criminal cases the husband’s complicity did not have to be proved, and he, rather than the wife, was subject to punishment.[viii] Until about 1890 an American wife injured in a vehicular accident could not recover damages from a third party if her husband’s driving contributed to the accident. In some rulings, coverture was cited, but in others, when the principle of coverture had been more or less abandoned, it was argued that in marriage a wife had put herself under her husband’s protection.[ix] One way of looking at this is to say that some part of the older Christian understanding of marriage as a merger of identities survived the decay of coverture.
Coverture was concerned primarily with property rights. Under English law a single woman could make contracts, sue in her own name, and manage her own property; however, once she married, such rights were merged into her husband’s legal identity. The wife’s dowry was put under the control of her husband who, although he could not alienate the property, did not have to account for the rents or income. On the other hand, “the husband is bound to provide his wife with necessaries by law, as much as himself; and if he contracts debts for them, he is obliged to pay them…..If the wife be indebted before marriage, the husband is bound afterwards to pay the debt.”[x]
A wife was entitled to inherit a third of her husband’s property, and this guarantee restricted the husband’s right to alienate this property, unless the wife was willing to sign away her dower rights. (In South Carolina my own wife had to go through this puzzling ceremony on the two occasions we sold property.) These are, of course, broad generalizations, since Anglo-American law not only changed over time but also adapted itself to the folkways and attitudes of the different colonies in the New World.[xi]
In a successful marriage between responsible persons, such an arrangement, so far from being burdensome, had many advantages, not the least of which was that it discouraged the couple from quarreling about financial decisions. In a traditional society, even a reckless husband could be checked either by the resentment of his wife’s male relatives or by community disapproval, and a woman’s dowry was a concrete manifestation of the honor paid her by her family. This attitude is not restricted to Christian nations. In ancient Athens, for example, male authority was balanced by a sense of family honor that included the dignity of a married daughter. In Menander’s play (4th century B.C.) Epitrepontes (the arbitrators), the point of the comedy is a father’s resentment of the way hs son-in-law is squandering money, and he tells his daughter that the husband of a rich wife should consider himself her slave.
The Common Law was remarkably flexible and could adapt itself, almost infinitely, to changing circumstances. In the English Court of Chancery, a device was found to protect a wife’s interest in her property and to enable her to carry on business. This device, known as the wife’s separate equitable trust, could arise by an agreement made with her husband before or after her marriage or as the result of a gift or bequest from her husband or another party. Under this arrangement, women were able to dispose of their estate by will or gift or transfer ownership through sale.[i] In America, a wife might have problems enforcing the terms of these trusts, but the circumstances of life in the New World made it imperative for married women to do business in their husbands’ absence, and the principles of equity provided many a loophole in the solid wall of coverture. Under some circumstances a wife could execute contracts or act as her husband’s agent in receiving payment. These practices were not, strictly speaking, in accord with Common Law and could be denied in court; they were, nonetheless, a practical necessity.[ii]
In 19th century Petersburg, Virginia, these legal chicanes were used “to keep property in the family–to achieve some measure of economic security when times were hard, husbands failed, and creditors closed in.” Although the purpose had little to do with empowerment, “Separate estates make it clear that the status of women could improve without the help of overt feminism.”[iii]
In most of the United States down to the War between the States, a man had not only legal but economic control over his wife and children, and even when the various Married Women’s Acts were passed, giving wives the right to make contracts and wills, the man of the family remained in fact the lord and master in his own home. The liberation of married women from their husband’s authority was not undertaken, by and large, for feminist reasons; it was, instead, a response to rapidly changing conditions in 19th century America. Population increases meant markets for a variety of goods, and new technologies rendered many women’s skills obsolete. Where earlier generations of women had spent much of their time spinning, weaving, and sewing, 19th century women could easily purchase ready-made cloth or even clothes. One early feminist (Ernestine Rose) expressed amusement that widows were guaranteed their looms and spinning wheels:
These wise law-makers, who seem to have lived somewhere about the time of the flood, did not dream of spinning and weaving by steam-power. When our great-great-grandmothers had to weave every article of apparel worn by the family, it was, no doubt, considered a very good law to allow the widow the possession of the spinning-wheels and the weaving-looms. But, unfortunately for some laws, man is a progressive being; his belief, opinions, habits, manners, and customs change, and so do spinning-wheels and weaving looms.[iv]
For Ernestine Rose and other feminists of the 1850’s, economic and social changes had to find expression in laws giving property rights to married women. The various Married Women’s Property Acts, passed between 1835 and 1850, began by giving married women control over their gifts and inheritances, and by 1860 New York, for example, had also granted them the right to sue, make contracts, and retain control of their earnings,[v] and by the end of the centuries such rights were almost universal in the United States.
The case for married women’s rights was made in a variety of ways, and, since these laws were passed before the advent of women’s suffrage, some male legislators and voters apparently believed that the time had come to protect the interests of their sisters and daughters against men less responsible than themselves. Hard times often served as an incentive, since debtor families were eager to protect property from confiscation by putting it into a wife’s hands. In Oregon, disputes among husbands, wives, and creditors helped give rise to the first federal law giving women property rights (The Oregon Donation Act of 1850).[vi] The bill’s advocates emphasized that in going to Oregon, women had put themselves outside the protection of their kinfolks and needed certain economic privileges which, by attracting female settlers, would help to populate the West. Much of the concern was fueled by the plight of widows who lacked the right to receive federal land. The debate was singularly free of feminist rhetoric; on the contrary, the motive of Oregon’s chief lobbyist was apparently the “desire to surround wives with sufficient protections so they could act as a moral bastion and source of comforts to their husbands.”[vii]
To conclude: Western legal systems have always been able to adapt to changing circumstances, and it is not always fair to read into Roman or 19th century legislation a feminist attempt or a statist desire to intrude into the arcana of marriage. There can be sound practical reasons for permitting women to teach school or hill the sick, and such professions might even be encouraged without seriously undermining the natural balance of power between the sexes or the dynamic integrity of marriage. The radical liberation of women that has taken place since the War Between the States, then, is the result of feminist ideology and has little or nothing to do with any social exigencies.
[i] Kamowitz, pp. 38-39, speaks of a “rudimentary contractual capacity for married woman.]
[ii] Salmon 42 ff.]
[iii] Free Women of Petersburg, p. 58
[iv] extract in Women Together p.38]
[v] McGlen & O’Connor 272-73.
[vi] [Chused AJLH 85].
[vii] 733: [Chused L&HR 84 46 1850, R.C. 85, p.5 ]
[i] Bracton, f 429b says “Vir et uxor sunt quasi unica persona.”
[ii] Blackstone, 433
[iii] For “Man and wife are one, but man is the one” as an old legal joke , see Glanville William’s classic exposition from which I have freely borrowed , “The Legal Unity of Husband and Wife,” Modern Law Review 10 (January 1947), pp. 16-31p. 17.
[iv] Williams, p. 18.
[v] Williams, pp. 20-21.
[vi] O. Kahn-Freund“Master’s Liability to Servant’s Wife for Injury Due to Servant’s Neligence.” The Modern Laws Review 16 (July 1953), 376-378.
[vii] O. M. Stone, Ninth Report of the Law Reform Committee (Liability in Tort between Husabnd and Wife.” Modern Law Review 24 (July 1961) 48-86.
[viii] Bracton 144-144b is looser: A wife is not held liable to her husband’s theft, because she is in his potestas; on the other hand, while she should not accuse him nor disclose his theft, she must not act as his accomplice, and if stolen property is found locked up in a place to which she alone holds the keys, she can be held liable. p.428, Bracton’s De Legibus et Consuetudinibus Angliae, ed. G.E. Woodbine, Cambridge, MA: Harvard), II ]
[ix] Margo Schlanger, “Injured Women before Common Law Courts, 1860-1930. Harvard Women’s Law Journal 21 (1998), 79-140, especially pp. 86-102
[x] Blackstone I.15, p.431; cf. H. Clark, The Law of Domestic Relations in the United States, pp. 181-87.
[xi] On diversity, see M. Salmon 1986, 3-13.]