Coverture perhaps ranks first among the old-timey villains of contemporary law professors. It supposedly represents an antiquated misogynistic habit to systematically oppress women by “covering” their legal personhood with that of their husband, and its demise with the Married Women’s Property Acts is seen as an important victory against the nefarious patriarchy. However, as we must never assume that our ancestors were so cartoonishly unjust, we owe it to them to briefly examine what the purpose of coverture might have been.
Because this blog has, up to this point, dealt with a reading of Aristotle, we will examine some of Aristotle’s thoughts regarding the place of the family in the polis and the role of the husband in the family. These issues will provide an introduction to some of the theoretical concerns potentially undergirding coverture. Then we will actually define coverture and try to figure out what its purpose actually was.
Aristotle gives the family a primary significance in his Politics in that it is the fundamental unit of all human society. As he says, “In the first place there must be a union of those who cannot exist without each other; namely, of male and female, that the race may continue.” (Politics 1251a 26-28.) Without it the human race ceases, so Aristotle places it at the foundation of human society. The family is established “for the supply of men’s everyday wants.” (id. 1252b 12-13.) Families band together in a village to aim at the supply of “something more than daily needs.” (id. 1252b 15-17.) The family, then, is necessarily the smallest unit of society, but in order to interact even on the village level it will need some way to act as some unified whole.
If the family (as opposed to the individual) is the smallest societal unit, then it must have a way to interact within the polis as a whole. Each family first requires unity within itself, to which end a single figurehead, generally the father, represented the family. (id. 1252b 22-25.) The husband heads the family as an equal to the wife, as his relationship to her is not “royal” (as it is with his children) but a “constitutional rule” (i.e. the rule of a balanced commonwealth). (id. 1259a 40-41.)
As the man and the woman are equals, Aristotle makes an analogy to explain how the man may exercise headship:
Nevertheless, when one rules and the other is ruled we endeavor to create a difference of outward forms and names and titles of respect, which may be illustrated by the saying of Amasis about his foot-pan. The relation of the male to the female is of this kind . . . .
(id. 1259b 7-9.) The saying about Amasis comes from Herodotus, where Amasis, after becoming ruler of Egypt, found people grumbling against him because he had once been a commoner like them. He proceeded to refashion a foot-pan in which people had washed their feet as an idol, and, seeing the people marvel at it, he told them that he was like the idol in that he was once common but had been refashioned as their ruler. The Egyptians then accepted him as their ruler. (Histories ii 172.)
Aristotle appears to be saying that the unity of the family under the headship of the husband is necessary because any group of people (including a family as much as the Egyptian people) needs a head in order to act as a whole and that will lead the members of that body toward the good. It is true that Aristotle does distinguish between the virtues of a man and a woman. (Politics 1260a 20-31.) But we do not have to accept Aristotle’s thoughts on the virtues particular to man and woman, or that a man is by nature “fitter” to govern the family, to recognize the practicality, if not the necessity, in having a single head to the political unit of the family. (id. 1259b 1-7, 1260a 20-30.)
With Aristotle’s thoughts on marriage in mind, let us turn to Blackstone’s definition of coverture:
By marriage, the husband and wife are one person in the 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, protecture, and cover, she performs everything; and is therefore called in our law-french a feme-covert, foemina viro co-operata; it is said to be covert-baron, or under the protection of the husband, her baron, or lord; and her condition during the marriage is known as her coverture.
(Commentaries, 441-442.) The abolition the wife qua legal entity seems rather severe. Consider the situation further, though. As Blackstone continues to tell us, “a man cannot grant anything to his wife, or enter into a covenant with her. . . .” (id., 442.) This only describes the outward effects of a husband and wife’s particular legal unity, and prevents the husband from escaping debts by granting his possessions to his wife. Similarly, the common law obliged a husband marrying a wife with debts to pay those debts himself, thereby preventing the parties from using marriage as a way to avoid debts. (id., 443.) Coverture, then, did not deprive the wife of rights so much as unite the woman and the man for the more efficient management of the household under the somewhat arbitrary headship of the husband. (See Politics 1259a 37, 1259b 1-10.)
These restrictions are not unique to English law, either. Under Roman law, neither husband or wife could make grants to each other during the marriage. (Studies in Roman Law, 103.) Similarly under Roman law, the wife’s property came entirely under the husband’s control. (id., 101.)
Under Scottish law the wife remained nominally independent in a number of ways, but her husband’s consent was generally required in matters relating to real property. (id., 114.) In Scotland, the husband would still be the administrator of those lands for the duration of the marriage. (id., 114.) Indeed, the common law of Scotland remained much the same as that of England, and gave the husband the vast majority of the wife’s property at the time of the marriage. (id., 114-115.) Again we see the woman united legally united to the man for the duration of the marriage for more efficient, and just, management of the household.
What we see from in Aristotle as much as under Roman and English law is a tendency to unite the legal personhood of the wife and the husband into one entity. This protected the family from being preyed upon as individuals, and consolidated the possession and debts of both under headship of a single individual. Of course this doctrine could potentially be abused, as, for example, a profligate husband could sometime fritter away the wealth he gained from marrying his wife, or a woman could be denied a suit in tort for her husband beating her (though this also applied vice versa). But the occasional misuse of a law does not make a law unjust.
Our ancestors who formulated the idea of coverture were addressing a complex problem, and their answer would inevitably be imperfect. Reflecting on this now defunct notion, though, should not be an occasion to rejoice at the march of progress. Rather, we ought to turn our attention to contemporary legal and societal notions of marriage, and the ways we may have gone too far in another direction while dealing while addressing the ills of coverture.
Aristotle, The Basic Works of Aristotle, ed. Richard McKeon (New York: Random House, 1941).
William Blackstone, Commentaries on the Laws of England: Vol. 1 Including Books I & II (Chicago: Callaghan and Company, 1884).
Herodotus, The Histories trans. Aubrey de Sélincourt (London: Penguin Books, 2003).
Donald MacKenzie, Studies in Roman Law (William Blackwood and Sons: Edinburgh, 1915).