Coverture

This article is about a law in family relationships. For other uses, see Couverture (disambiguation).

Coverture was a legal doctrine in English common law under which a married woman's legal existence was considered to be merged with that of her husband. Upon marriage, she had no independent legal existence of her own, in keeping with society's expectation that her husband was to provide for and protect her. Under coverture a woman became a feme covert, whose legal rights and obligations were mostly subsumed by those of her husband. An unmarried woman, or feme sole, retained the right to own property and make contracts in her own name.

Coverture was well established in the common law for several centuries and was inherited by many other common law jurisdictions, including the United States. According to historian Arianne Chernock, coverture did not apply in Scotland, but whether it applied in Wales is unclear.^[1]

After the rise of the women's rights movement in the mid-19th century, coverture was increasingly criticised as oppressive, hindering women from exercising ordinary property rights and entering professions. Coverture was first substantially modified by late-19th-century Married Women's Property Acts passed in various common-law jurisdictions, and was weakened and eventually eliminated by later reforms. Certain aspects of coverture (mainly concerned with preventing a wife from unilaterally incurring major financial obligations for which her husband would be liable) survived as late as the 1960s in some states of the United States.

Principle

Under traditional English common law, an adult unmarried woman was considered to have the legal status of feme sole, while a married woman had the status of feme covert. These terms are English spellings of medieval Anglo-Norman phrases (the modern standard French spellings would be femme seule "single woman" and femme couverte, literally "covered woman").^{[citation needed]}

The principle of coverture was described in William Blackstone's Commentaries on the Laws of England in the late 18th century:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage.^[2]

A feme sole had the right to own property and make contracts in her own name, while a feme covert was not recognized as having legal rights and obligations distinct from those of her husband in most respects. Instead, through marriage a woman's existence was incorporated into that of her husband, so that she had very few recognized individual rights of her own. As expressed in Hugo Black's dissent in United States v. Yazell, "This rule [coverture] has worked out in reality to mean that though the husband and wife are one, the one is the husband."^[3] A married woman could not own property, sign legal documents or enter into a contract, obtain an education against her husband's wishes, or keep a salary for herself. If a wife was permitted to work, under the laws of coverture, she was required to relinquish her wages to her husband.^{[citation needed]} On the other hand, a feme couvert could not be sued or sue in her own name.^[4] In certain cases, a wife did not have individual legal liability for her misdeeds since it was legally assumed that she was acting under the orders of her husband, and generally a husband and a wife were not allowed to testify either for or against each other.^[5]

A queen of England, whether she was a queen consort or a queen regnant, was generally exempted from the legal requirements of coverture, as understood by Blackstone.^[6]

History

Portrait of an English married couple, circa 1780

The system of feme sole and feme covert developed in England in the High and Late Middle Ages as part of the common law system, which had its origins in the legal reforms of Henry II and other medieval English kings. Medieval legal treatises, such as that famously known as Bracton, described the nature of coverture and its impact on married women's legal actions. Bracton states that husband and wife were a single person, being one flesh and one blood, a principle known as 'unity of person'. Husbands also wielded power over their wives, being their rulers and custodians of their property.^[7]

While it was once assumed that married women had little or no access to legal recourse, as a result of coverture, historians have more recently complicated our knowledge of coverture in the Middle Ages through various studies of married women's legal status across different courts and jurisdictions.^[8] Collectively, many of these studies have argued that 'there has been a tendency to overplay the extent to which coverture applied', as legal records reveal that married women could possess rights over property, take part in business transactions, and interact with the courts.^[9] In medieval post-conquest Wales, it has been suggested that coverture only applied in certain situations. Married women were responsible for their own actions in criminal presentments and defamation, but their husbands represented them in litigation for abduction and in interpersonal pleas.^[10]

The extent of coverture in medieval England has also been qualified by the existence of feme sole customs that existed in some medieval English towns. This granted them independent commercial and legal rights as if they were single. This practice is outlined in the custumal of Henry Darcy, Lord Mayor of London in the 1330s, allowing married women working independently of their husband to act as a single woman in all matters concerning her craft, such as renting a shop and suing and being sued for debt.^[11] The custom is known to have been adopted in a number of other towns, including Bristol, Lincoln, York, Sandwich, Rye, Carlisle, Chester and Exeter.^[12] Some North American British colonies also adopted this custom in the eighteenth century.^[13] However, it is unclear how many women took up this status, the extent to which it was legally enforced, or whether the legal and commercial independence it offered were advantageous.^[14]

According to Chernock, "coverture, ... [a 1777] author ... concluded, was the product of foreign Norman invasion in the eleventh century—not, as Blackstone would have it, a time-tested 'English' legal practice. This was a reading of British history, then, that put a decidedly feminist twist on the idea of the 'Norman yoke.'"^[15] Also according to Chernock, "the Saxons, ... [Calidore] boasted, had encouraged women to 'retain separate property'— ... a clear blow to coverture."^[16][a] Chernock claims that "as the historical accounts of the laws regarding women had indicated, coverture was a policy not just foreign in its origins but also suited to particular and now remote historical conditions."^[17] Coverture may not have existed in "the Anglo-Saxon constitution".^[17]

Coverture also held sway in English-speaking colonies because of the influence of the English common law there. The way in which coverture operated across the common law world has been the subject of recent studies examining the subordinating effects of marriage for women across medieval and early modern England and North America, in a variety of legal contexts.^[18] It has been argued that in practice, most of the rules of coverture "served not to guide every transaction but rather to provide clarity and direction in times of crisis or death."^[18] Despite this flexibility, coverture remained a powerful tool of marital inequality for many centuries.^[18]

Coverture in Early Modern England

Before 1870 in England, any money or property received by a married woman in her own name (either through a wage, from investment, by gift, or through inheritance) instantly became absorbed into the property of her husband, as did any property or money held by a woman at the time of her marriage. Thus, under the Common Law doctrine of coverture the identity of the wife became legally absorbed into that of her husband, effectively making them one person in respect of most matters concerned with the ownership and management of land, of payment for goods, and the obtaining of credit.^[19]

Where a woman had brought a dowry into the marriage, simply as property, this would also be absorbed into her husband's ownership and control; except that freehold title to any dowered land remained legally hers and it could not be sold by the husband without the consent of the wife. Should the wife survive her husband as a widow, any dowered land reverted to her ownership; and she might also have right to lifetime income from a third of the total value of her husband's estate^[20]. However, dowered land could still be seized by the husband's creditors during the marriage for non-payment of his debts. From the 17th century onwrds however, dowries as property were commonly secured as a trust to the benefit of the offspring of the marriage in a 'separate estate'^[21]. In this form the dowry provided by a bride's father was to be used for his daughter's financial support as 'pin money' throughout her married life and into her widowhood, and was also a means by which the bride's father was able to obtain from the bridegroom's father a financial commitment to the intended marriage and to the children resulting therefrom^[22]. A dowry could also be applied to support primogeniture when effected by entail and a 'strict settlement'^[23].

Once a woman became married, she had no current claim in Common Law to any property she might then receive, as her husband had full control and could do whatever suited him: "Thus, a woman, on marrying, relinquished her personal property—moveable property such as money, stocks, furniture, and livestock—to her husband's ownership; by law he was permitted to dispose of it at will at any time in the marriage and could even will it away at death".^[24] For example, any copyrighted material would have the copyright pass to the husband on marriage. Even in death, a woman's husband continued to have control over her former property. Before the Act was passed, women lost all Common Law ownership over their property when they became married: "From the early thirteenth century until 1870, English Common law held that most of the property that a wife had owned as a feme sole came under the control of the husband at the time of the marriage".^[24] Nevertheless coverture was always recognised as a convenient legal fiction, and so was never applied absolutely; a wife's property could be seized by credtiors for her husband's unpaid debts, but a wife could not be tried for her husband's crimes.

However, the Common Law is not the only law of England; and in other English bodies of law - especially Equity) - other principles applied. English courts of Equity, particularly the Court of Chancery, became from the 17th century onwards increasingly amenable to allowing legal devices to evade or negate the perceived injustices of coverture ^[25]. Within English Law, the Common Law was concerned with real property and inheritance, and here coverture ruled; but courts of Equity were concerned with Wills and Trusts, and were very ready to allow these legal devices to be developed in ways that constrained unlimited control by a husband over their wives' goods, property and inheritance. This was spurred by a particularity of the status of women in the Common Law of England; "English property law was distinctive in two respects: first, married women under coverture were even more restricted than in the rest of Europe; second, single women enjoyed a position unique in Europe as legal individuals in their own right, with no requirement for a male guardian"^[26]. As a 'feme sole' the legal status of an unmarried woman or widow in England did not differ from that of a man. In circumstances of high adult mortality, many women passed between the status of 'feme sole' and 'feme covert' through successive marriages and widowhoods over an extended period. Many women, at all levels of society, were consequently very concerned to find ways of maintaining effective ownership in a subsequent marriage, of property and dowry that they had brought from a previous marriage; and they had the money to pay lawyers to find legal ways of doing so, and sympathetic courts willing to accommodate them.

Amy Erickson presents the evidence for the legal outcomes ^[27], noting that legally enforceable devices to moderate or evade coverture are observed in around 10% of English marriages in the Early Modern period. In more humble marriages these relied on bonds; but where considerable degrees of property were involved, then a Trust would be established before marriage in which the bride's property was held as a 'separate estate' out of the control of her husband^[28]. But although this could ensure that property brought into a marriage would not be misused by an improvident or incompetent husband; these arrangements had disadvantages for the wife

1. the wife's separate estate was now under the control of trustees, not the wife herself. The trustees might well not be amenable to acting the way the wife wanted;
2. the prime purpose of the trust was to deliver the property complete to its eventual owners - the offspring of the marriage. Consequently the wife would commonly have access to income not the capital itself;
3. arrangements for the control of the separate estate functioned better in respect of funds held in interest-bearing securities, rather than land. In landed property - the core business of the Common Law - coverture was more difficult to evade;
4. the trustees - usually the family lawyers for the wife's parents - would take fees from administering the separate estate; so these devices could only be feasible where significant sums of money were being settled;
5. Separate estates were most easily established prior to a daughter's first marriage - and the practice became effectively universal in even relatively modestly propertied families. If a wife received an inheritance in the course of her marriage, the testator could specify that this should be conveyed into her separate estate; but otherwise such a legacy would come to the husband through coverture. The wife might seek to have the Court of Chancery create a separate estate on her behalf during a marriage. However, the legal costs involved in doing so made this unavailable to the vast majority of the population.^[29]

The Married Women's Property Act 1870 provided that wages and property which a wife earned through her own work or inherited would be regarded as her separate property and by the Married Women's Property Act 1882, this principle was extended to all property, regardless of its source or the time of its acquisition.^[30] The Act also protected a woman not only from her husband gaining control of her property but also from people that worked for him, his creditor, "These acts generally exempted married women's property from attachments by creditors of their husbands".^[31]

Criticism

Early feminist historian Mary Ritter Beard

Early feminist historian Mary Ritter Beard held the view that much of the severity of the doctrine of coverture was actually due to Blackstone and other late systematizers rather than due to a genuine old common-law tradition.^[32]

In March 1776, Abigail Adams saw an opportunity in the language of natural rights, and wrote to her husband, John Adams:

In the new Code of Laws which I suppose it will be necessary for you to make I desire you would Remember the Ladies, and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could.^[33]

She was not writing generally about women's rights, nor specifically about the right to vote. She was asking for relief from coverture. John responded, "I cannot but laugh."^[34]

According to Chernock, "late Enlightenment radicals ... argued ... [that 'coverture' and other 'principles'] did not reflect the 'advancements' of a modern, civilized society. Rather, they were markers of past human errors and inconsistencies, and thus in need of further revision."^[35] Chernock claimed that "as the editor of Blackstone's Commentaries, [Edward] Christian used his popular thirteenth edition, published in 1800, to highlight the ways in which the practice of coverture might be modified."^[17] Chernock wrote that "Christian ... proceeded to recommend that a husband cease to be 'absolutely master of the profits of the wife's lands during the coverture.'"^[17] Chernock reported that other men sought for coverture to be modified or eliminated.^[36]

Writer, lawyer, women's rights advocate, and early coverture opponent, John Neal

According to Ellen Carol DuBois, "the initial target of women's rights protest was the legal doctrine of 'coverture'".^[37] The earliest American women's rights lecturer, John Neal^[38][39] attacked coverture in speeches and public debates as early as 1823,^[40] but most prominently in the 1840s,^[41] asking "how long [women] shall be rendered by law incapable of acquiring, holding, or transmitting property, except under special conditions, like the slave?"^[40] In the 1850s, according to DuBois, Lucy Stone criticized "the common law of marriage because it 'gives the "custody" of the wife's person to her husband, so that he has a right to her even against herself.'"^[42] Stone kept her premarital family name after marriage as a protest "against all manifestations of coverture".^[43] DuBois continued, "in the 1850s, ... [t]he primarily legal goal [of 'the American women's rights movement'] was the establishment of basic property rights for women once they were married, which went to the core of the deprivations of coverture."^[44] Chernock continued, "for those who determined that legal reforms were the key to achieving a more enlightened relationship between the sexes, coverture was a primary object of attention."^[17]

DuBois wrote that coverture, because of property restrictions with the vote, "played a major role in" influencing the effort to secure women's right to vote in the U.S.,^[45] because one view was that the right should be limited to women who owned property when coverture excluded most women (relatively few were unmarried or widowed),^[46] while another view was for the right to be available for all women.^[47]

In the mid-19th century, according to Melissa J. Homestead, coverture was criticized as depriving married women authors of the financial benefits of their copyrights,^[48] including analogizing to slavery; one woman poet "explicitly analogized her legal status as a married woman author to that of an American slave."^[49] According to Homestead, feminists also criticized the effect of coverture on rights under patents held by married women.^[50]

Hendrik Hartog counter-criticized that coverture was only a legal fiction and not descriptive of social reality^[51] and that courts applying equity jurisdiction had developed many exceptions to coverture,^[52] but, according to Norma Basch, the exceptions themselves still required that the woman be dependent on someone^[53] and not all agreements between spouses to let wives control their property were enforceable in court.^[54]

Publisher and activist Myra Bradwell

Hulda Regina Graser, femme sole, femme consort (1897)

In 1869, coverture was criticized when Myra Bradwell was refused permission to practice as a lawyer in Illinois specifically because of coverture.^[55] In 1871, Bradwell argued to the Supreme Court that coverture violated the Constitution's 14th Amendment.^[55] According to Margot Canaday, "coverture's main purpose ... was the legal subordination of women."^[56] Canaday continued, "women's legal subordination through marriage ... was maintained in fact across [coverture]".^[57]

According to Canaday, "coverture was diminished ... in the 1970s, as part of a broader feminist revolution in law that further weakened the principle that a husband owned a wife's labor (including her person). ... The regime of coverture ... was coming undone [in the mid-20th century]".^[58] In 1966, the U.S. Supreme Court said "the institution of coverture is ... obsolete"^[59] even while acknowledging coverture's existence in 1–11 states.^[59] In a separate opinion in the same case, Hugo Black and two others of the nine justices said the "fiction that the husband and wife are one... in reality ... mean[ing] that though the husband and wife are one, the one is the husband....[,] rested on ... a ... notion that a married woman, being a female, is without capacity to make her own contracts and do her own business",^[60] a notion that Black "had supposed is ... completely discredited".^[60] Black described modern (as of 1966) coverture as an "archaic remnant of a primitive caste system".^[60][61] Canaday wrote, "the application of equal protection law to marital relations finally eviscerated the law of coverture"^[62][b] and "coverture unraveled with accelerating speed [in the late 20th century]".^[57] "Coverture's demise blunted (even if it did not eliminate) male privilege within marriage", according to Canaday.^[63]

Abolition

This situation continued until the mid-to-late 19th century, when Married Women's Property Acts started to be passed in many English-speaking jurisdictions, setting the stage for further reforms.

In the United States, many states passed Married Women's Property Acts^[64] to eliminate or reduce the effects of coverture. Nineteenth-century courts in the United States also enforced state privy examination laws. A privy examination was an American legal practice in which a married woman who wished to sell her property had to be separately examined by a judge or justice of the peace outside of the presence of her husband and asked if her husband was pressuring her into signing the document. This practice was seen as a means to protect married women's property from overbearing husbands.^[65] Other states abolished the concept through court cases, for example: California in Follansbee v. Benzenberg (1954).^[66] The abolition of coverture has been seen as "one of the greatest extensions of property rights in human history", and one that led to a number of positive financial and economic impacts. Specifically, it led to shifts in household portfolios, a positive shock to the supply of credit, and a reallocation of labor towards non-agriculture and capital intensive industries.^[67]

As recently as 1972, two US states allowed a wife accused in criminal court to offer as a legal defense that she was obeying her husband's orders.^[68]

Analogous concepts outside the common law system

In the Roman-Dutch law, the marital power was a doctrine very similar to the doctrine of coverture in the English common law. Under the marital power doctrine, a wife was legally a minor under the guardianship of her husband.^[69]

Under the Napoleonic Code – which was very influential both inside and outside of Europe – married women and children were subordinated to the husband's/father's authority.^[70] Married French women obtained the right to work without their husband's consent in 1965.^[71] In France, the paternal authority of a man over his family was ended in 1970 (before that parental responsibilities belonged solely to the father who made all legal decisions concerning the children); and a new reform in 1985 abolished the stipulation that the father had the sole power to administer the children's property.^[72] Neighboring Switzerland was one of the last European countries to establish gender equality in marriage: married women's rights were severely restricted until 1988, when legal reforms providing gender equality in marriage, abolishing the legal authority of the husband, came into force (these reforms had been approved in 1985 in a referendum, with 54.7% votes in favor).^{[73][74][75][76]}

In 1979, Louisiana became the last of the states of the U.S. to have its Head and Master law struck down. An appeal made it to the Supreme Court of the United States in 1980, and in the following year the Court's decision in Kirchberg v. Feenstra effectively declared the practice of male rule in marriage unconstitutional, generally favoring instead a co-administration model.

Outside the legal realm

The doctrine of coverture carried over into English heraldry, in which there were established traditional methods of displaying the coat of arms of an unmarried woman, displaying the coat of arms of a widow, or displaying the combined coat of arms of a couple jointly, but no accepted method of displaying the coat of arms of a married woman separately as an individual.^[77]

The traditional practice by which a woman relinquished her name and adopted her husband's name (e.g., "Mrs. John Smith") is similarly a representation of coverture, although usually symbolic rather than legal in form.^[78]

In some cultures, particularly in the Anglophone West, wives often change their surnames to that of their husbands upon getting married. Although this procedure is today optional, for some^[who?] it remains a controversial practice due to its tie to the historical doctrine of coverture or to other similar doctrines in civil law systems, and to the historically subordinated roles of wives; while others^[who?] argue that today this is merely a harmless tradition that should be accepted as a free choice.^[79] Some jurisdictions consider this practice as discriminatory and contrary to women's rights, and have restricted or banned it; for example, since 1983, when Greece adopted a new marriage law which guaranteed gender equality between the spouses,^[80] people in Greece are required to keep their birth names for their whole life, although they may add their spouse's name to their own,^[81] and they may petition for a name change for "serious" reasons.

Cultural references

The phrase "the law is an ass" was popularized by Charles Dickens' Oliver Twist, when the character Mr. Bumble is informed that "the law supposes that your wife acts under your direction". Mr. Bumble replies, "if the law supposes that ... the law is a [sic] ass – a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience – by experience."^[82]

The television show Frontier House follows three families who are trying to survive six months in the Montana countryside, including growing their own crops and surviving the winter. It takes place during presidency of Abraham Lincoln, who was president when the Homestead Act of 1862 became law. During the show it is noted that coverture was still in effect, so only single women could claim land under the Homestead Act, because married women lost most of their rights.^[83]

See also

• Baron and feme
• Curtesy
• Dower
• Jure uxoris ‒ phrase related to a man holding titles of his wife via coverture
• Marriage bar
• Martin v. Massachusetts – an unsuccessful 19th century challenge to coverture in the U.S.
• Rule of thumb
• Wali (Islamic legal guardian)

Explanatory notes

1. Calidore was a pseudonymous author ("probably ... Andrew Macdonald") of a letter to The Gentleman's Magazine, vol. 58, p. 101 (February, 1788).
2. Black's reference to "equal protection law" includes in particular the Fourteenth Amendment to the United States Constitution, ratified in 1868 following the Civil War; though originally intended to recognize equal rights for racial minorities, its wording was not specific to any distinction between classes of people and it was applied to gender in the 20th century.