Coverture Describe How Coverture Delineated

Coverture

Describe how coverture delineated men's place in society from women's place in society. Do you believe that coverture was a form of social control over gender, or was it an efficient manner in which to organize society?

Coverture is the legal concept that man and wife are one, and that a woman's property becomes the property of her husband, upon their union, with some exceptions. Upon its surface, it seems to be a blatant way of controlling women as legal persons, however, it might be more apt to say that its origins in ancient times are linked to the concept that women are not adult 'persons' at all, but rather function as chattel or children. "The legal precedents for discrimination against women date back to the beginnings of Western law itself" ("Up from Coverture," Time Magazine, 1972, p.1).

The laws of Classical Athens, although this society has long been praised as the cradle of democracy, classified women in same legal category as slaves, and women passed directly from their father's control to their husband's control upon their marriage. Roman law, the basis of much of English common law makes explicit reference to the "perpetual tutelage of women" under their husbands and father's authority ("Up from Coverture," Time Magazine, 1972, p.1). The romantic notion of bestowing a daughter's "hand in marriage" comes from Roman law, which considered women to be "under the manus (hand)" of fathers or husbands ("Up from Coverture," Time Magazine, 1972, p.1). For a point of comparison, also note that the idea of 'manumission' or freeing a slave, or taking the slave off of the master's hands, is also from Roman law and the word of 'manus.' In other words, women were perpetually under the manus of someone, unlike a male adult slave who could theoretically experience manumission.

Thus, from Roman to canon law into English common law, which formed the basis of America's legal system, the idea of coverture remained and reinforced women's childlike status. Even after single women and widows gained some rights under the law, married women became one, but lesser, upon uniting with their husbands. According to the English legal scholar Sir William Blackstone in 1765: "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 incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing;" the doctrine therefore is called "coverture" (Cited by Lewis, "What is Coverture," 2007).

Under such coverture or bondage, man and women are one, but not equal partners in that 'one.' On a practical level, under coverture, wives could not control their own property "unless specific provisions were made before marriage," such as in the will of a relative, married women "could not file lawsuits or be sued separately, nor could they execute contracts. The husband could use, sell or dispose of her property (again, unless prior provisions [in a will] were made)" without his wife's permission (Lewis, "What is Coverture, 2007). By asserting that man and woman are 'one' it might be seem to be implied that the two jointly shared the property both brought to marriage, and the right to administrate and dispose of that property. However, the unequal status of women was assumed, as a man did not lose his rights to administrate his property or behave as a civic entity.

In contrast, not only did a woman lose her property, however it was won or inherited, but "a married woman could not make contracts, keep or control her own wages or any rents, transfer property, sell property or bring any lawsuit" (Lewis, "Married Women's Property Act: 1848, New York State, 2007). Coverture implied "that economic roles in marriage and the household were gendered. The law assumed that husbands supplied cash or credit and that wives used it to purchase goods" but could not earn their own money, and should not earn their own money (Bailey 2002, p. 361). Women might inherit money from male relatives, although sons were privileged according to the laws of inheritance, but according to separate spheres, or gendered ideology, about the correct role of women in public, professional society, women could not earn money independently and act as independent entities to generate new wealth.

Some legal scholars have argued that the problem with coverture and how it functioned in the legal system was not so much with the legal terms of coverture itself, but the lack of legal identity adult women possessed as citizens (Bailey, 2002, p.352). Coverture, it could be argued, was a necessary system of protection, given the legal disenfranchisement of women, and it was not entirely 'one way,' rather it extended certain privileges and rights to women, as well as took some away. Coverture also imposed obligations upon husbands. "A wife was entitled to be maintained and to make purchases of necessaries as her husband's agent" (Bailey, 2002, p.352). Hence, the caveat to the definition of coverture's prohibition on a married woman entering into a contract: "To this rule there are some exceptions: she may contract when it is for her benefit, such as to save her from starvation," if a husband did not provide her with food ("Coverture," the Electric Law Library, 2007).

If the male failed in his duty towards a particular aspect of coverture's dictates, a woman could be freed from some of her obligations. "One of the most frequent complaints of wives against husbands in the courts was that their husbands "failed to 'provide for' or 'maintain' them," according to the husband's bonds of coverture (Bailey, 2002, p.361). Under coverture as well, wives were accorded some protection against their husbands, for example "they could obtain 'surety for the peace' - a bond which obliged a husband to keep the peace towards his wife - against violent husbands, could retain property in marriage through 'separate estate' - a means by which property could be protected for the sole use of the wife during matrimony - and could protect certain rights through equity courts" (Bailey, 2002, p. 352). Coverture's doctrines acknowledged the presumed lack of agency or independence married women possessed under law and under their husband's control. "Married women enjoyed the evasion or mitigation of punishment in certain types of offences. For example, a wife could not be punished for committing theft in the company of her husband, because the law supposed that she acted under his coercion," in all instances, regardless of the circumstances (Bailey, 2002, p. 352). However, while some legal scholars like Joanne Bailey see this as a boon, one might also wonder if some men pressed their wives to commit crimes, knowing that the wives could not be punished for the transaction, and hoping the law would treat them more leniently, if they blamed their wives' weakness.

A wife's "inability to make financial transactions in their own name also prevented" her from being sued and therefore imprisoned for debt incurred by herself or her husband, presuming that women had no dealings in financial matters, and that the husband was the main breadwinner of the family (Bailey, 2002, p. 352). Women could still purchase goods on credit, although "a married woman could not contract debts in her own name," common law allowed her agency "to purchase necessaries in her husband's name, according to his rank and wealth. A husband's consent to his wife's pledging his credit was assumed from the couple's cohabitation" under English common law (Bailey, 2002, p. 355).

Although in theory married women were seen as "Dead in Law'" as legal persons, in some instances where coverture was the law of the land, they were able to evade its dictates. In England, for example, "three other jurisdictions - equity, ecclesiastical law and customary law - gave women individual rights, redress and opportunities for litigation... studies of ecclesiastical courts, central equity courts, quarter sessions and local courts of requests all show that wives appeared as sole and co-plaintiffs and defendants in very large numbers" (Bailey, 2002, p.353). Coverture may have been an extension of laws disenfranchising and disempowering women, but in practice women found ways to circumvent these restrictions.

In fact, under English common law, the ability to use one's husband's name as credit was used to the advantage by some women. "Separated women pledged their husbands' credit in the absence of a more secure regular maintenance payment and wealthy women may have deliberately amassed large debts in order to force their husbands to agree on a generous maintenance" (Bailey, 2002, p.356). The ambiguities of how a husband should take public steps to deny his the use of his credit worked in women's favor, as whether he ought to do so by giving personal or general notice to traders and retailers, through a newspaper advertisement, or a town crier, seems in dispute, given the evidence of newspaper records and the legal history of the era.

The relationship of debt to a man and a woman under coverture shows that "Rather than illustrating the economic dependency of wives," the legal records "reveal the significance of a woman's economic activities for her husband's reputation. After all, unsettled debts would damage a man's economic status among local traders and could potentially land him in gaol [jail]" (Bailey, 2002, p.357). "Furthermore, 10 per cent of the secondary complaints in the records of marital difficulties were made by husbands accusing their wives of extravagance and financial mismanagement, from 1660-1800 in English legal history (Bailey, 2002, p.359).

While by its nature coverture was patronizing and discriminatory, women in practice were able to use the doctrine to protect themselves, and even as a tool of social empowerment -- or revenge against their husbands. However, no matter how 'creative' women might be within the bounds of the law, there could be no denying coverture's inherent contradictions -- for example, how could widows be presumed to have so much more wisdom upon their husband's death, to administer property, when before they were denied this agency? There are records of feminist organizations lobbying against its presumptions as early as the 1750s (Bailey 2002, p.359).