Amasis’ Foot-Pan and the Meaning of Coverture

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

Bibliography

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).

King Charles Wore White: Some Aristotelian Reflections on Absolute Monarchy

After discussing certain varieties of citizenship, Aristotle identifies the six categories of good and perverted governments in Bk. III, Ch. 7. Throughout the rest of this book Aristotle considers the common government of monarchy. Aristotle lists four sorts of monarchy with some containment by law: (1) Spartan generalship/religious headship, (2) a barbaric kingship over “natural slaves, (3) the sort of elected tyranny present in Athens, or (4) the sort of heroic kingship present in the days of old when kings conquered land for their people (Bk. III Ch. 14). The kind of kingship that interests me most, however, is Aristotle’s fifth type of kingship, which rules the nation as a household is ruled (1284b 29). I would like to dwell on Aristotle’s analogy here in comparing the authority in the largest unit of society (i.e. the polis) to the smallest (i.e. the family).

The Philosopher states that the only forms of monarchy worth considering are the Lacedaemonian and the “absolute” kingship (i.e. kingship as “control of the household” 1285b 31). This type of kingship corresponds to the rule of the family, so Bk. I should provide some illustrations of its appearance. There Aristotle explains “there is one rule exercised over subjects who are by nature free, another over subjects who are by nature slaves.” (1255b 17-18.) Additionally, “[t]he master is not called a master because he has a science, but because he is of a certain character [i.e. a virtuous one], and the same remark applies to the slave and the freeman.” (1255b 20-22). By analogy, then, this absolute monarch rules over free men, as well as of slaves, as the king has “disposal of all.” (See 1285b 29, see also 1253b 1-14 for the various elements of household rule.) The four preceding types of kings fail to attain complete authority as the head has over a household.

Lacedaemonian kingship has stripped the king of all his power so he only leads the people into battle and offers sacrifice; this would, by analogy, be a purely representative father who only represents his family outside the home and says (some of) the prayers inside the home. The king of the barbarians rules over his people as slaves, though he has the love and support of his people (See 1285a 26, the barbarian king’s bodyguard is composed “of citizens”). The relationship between the barbarian king and the fifth type of kingship is analogous not to the head of the household and the household, but to a master and his slaves. Athens’ elected dictatorship (a “presidential” kingship) cannot coincide with this fifth type, as no child can elect his father. The heroic kingship is almost a kingship of utility: the king brings glory to his people, so his people allow his rule until “at a later date [the kings] relinquished several of those privileges, and others the people took from them, until in some states nothing was left to them but the sacrifices.” (1285b 15-17.) (Athens provides an excellent example of the eroded powers of this kingship in the archon basileus.)

After providing his readers with examples of the four “mixed” kingships, Aristotle fails to provide his readers with an example of what his fifth kingship looks like. What is fascinating about this kingship, though, is its relation between the king as head of household and the people, as drawing the analogy out would appear to make the king husband of the polis and father of his people. Thankfully, examples exist outside of Ancient Greece.

The Christian West, inheriting a great deal of pagan baggage of kings with priestly duties, frequently equated coronation to the appointing of bishops. This priest king, though, is not congruent with this fifth type of kingship. The fifth kind of kingship demands the king be husband to the polis and father to his people, not the divine interlocutor of the nation. We have at least one episode of a king treating the office of kingship as such a marital duty:

If it is desired to make a comparison between [coronation] and any other rite of the Church, it is the marriage rite which is really the closest to it. So King Charles I felt, of whom we are told that” His Majesty on that day was cloathed [sic] in white contrary to the custom of his predecessors who were on that day clad in purple. And this he did . . . at his own choice only, to declare that Virgin Purity with which he came to be espoused unto his kingdom.” In marriage a covenant is made with vows between the two contracting parties. To the covenant so made the Church adds her benediction.

(Maxwell Reginald Woolley 197-198.) Putting aside the many other virtues and vices of Charles I, his actions treating his coronation as a marriage illustrate this fifth type of kingship: kingship as husband and father. This kingship has great authority, but the vows made at the coronation limit the kingship within certain contractual bounds.

 

There is a great deal more that can be said about Aristotle’s subsequent thoughts on the difficulties of a monarchy “with the disposal of all,” though this poignant analogy between the king and a husband and father should provide a basis for further thought, particularly as we work through Bk. IV on revolutions. For, if the king is in position as a father, how much the more unnatural to throw him off?

There is still much to talk about in this book, including the potentially somewhat narrow line to be drawn between the kingship of the barbarians and the kingship “with disposal of all.”

For the source of the block quote, see:

Woolley, Reginald Maxwell. Coronation Rites. Cabridge: University Press, 1915.

A quick note on slavery

Since Aristotle’s notes on slavery frequently attract controversy, it may be well worth it to spend some time figuring out exactly what he means.

Even before Aristotle starts talking about slavery, he quotes “the poets” to whom he ascribes the dictum, “It is meet that the Hellenes should rule over the barbarians.” (1.2.8) Aristotle quotes this in a section wherein he considers proper place of slaves and women within a society, and this appears to lay the foundation for his slightly later discussion on slavery. Aristotle starts, then, by illustrating with the example of Greek dominion over barbarians the rightfulness of a slave’s disordered soul to the more ordered soul of his master.

The Philosopher spends a while describing instrumentality through the slave and various justifications of slavery, after which he arrives at an analogy: just as some are born with the bodies of slaves and some are born with the bodies of freemen, so are some born with the minds of slaves and some born with the minds of freemen. Aristotle concludes thusly:

And if this is true of the body, how much more just that a similar distinction should exist in the soul? but the beauty of the body is seen, whereas the beauty of the soul is not seen. It is clear, then, that some men are by nature free, and others slaves, and that for these latter slavery is both expedient and right.

(1.5.36-40) That is to say, so much as some may have a body intended for servitude, and some a body intended for the work of a freeman, even more so are free and slave distinguished in their souls.

Chapter 6 contains a discussion on relative freedom and nobility, according to which Greeks are reluctant to deign anyone a slave but barbarians, save when in the barbarians’ own land. Concluding that both Greek and barbarian believe that “from good men a good man springs,” (1.6.40-42) the Philosopher continues to discern a relationship between slave and master the abuse of which constitutes an injury to both.

Aquinas comments on a “good man” springing from other “good men” in the following:

And sons may also differ from parents in goodness or wickedness not only because of natural bodily disposition but also because of an aspect that does not necessarily result from a natural inclination. And so human beings who are similar to their parents in natural disposition may also, because of a different education and upbringing, be dissimilar even in morals. Therefore, if the children of good parents are good, they will be both reputedly and really good. But if the sons of good parents are wicked, they will be reputedly noble but actually base. And the converse is true about the sons of wicked parents.

Then [Aristotle] shows how it is expedient or inexpedient for some to be slaves, summarily concluding form the foregoing that the difficulty previously posed has some plausibility. And so there is in some cases a distinction between freedom and slavery by law, not by nature. But in other cases, there is a distinction between the two by nature, and it is advantageous in such cases for one person to be a slave and another to be his master. And this is also just.

(Commentary on Aristotle’s Politics, comment on 1255a3-b15.)

Thomas earlier quotes the more succinct and poignant passage from Proverbs: “The stupid will serve the wise.” (Prov. 11:29)

This indicates that slavery, as imagined by Aristotle and briefed by Thomas, is entirely just when dealing with the submission of lazy or wicked souls to better souls. This, it appears, is why Aristotle includes a discussion of the natural subservience of barbarians – as imagined as disordered souls – at the beginning of Politics. The barbarians described at 1.2.8 have no order, and so no ability to establish a polis in which they might work towards the Good. When Aristotle considers the arguments for and against slavery starting in 1.4, he finds a middle ground between slavery by human law and absolute abolition in finding that some people are indeed less suited for for freedom owing to the quality of their souls. As Aristotle believes it is just that someone establish dominion over the barbarians to inculcate virtue within them, so it is just that less ordered souls within a polis be led toward virtue by “masters.”

Those are only some quick thoughts that throw out some terms such as “justice” and “virtue” that may require further background in Politics or Nicomachean Ethics, thought I welcome and encourage additional thoughts on this.

 

Welcome

Hello.

A group of us in and out of the desert, who admire each other’s wit and insight, have come together in an attempt at an online reading group.

Rod Dreher’s book on his “Benedict Option” inspired this endeavor, as many of us have interest in and opprobium for this proposal. Since the release date does not arrive until next year, we have decided to start with Aristotle’s Politics, hoping that that can start a discussion on what a community ought to look like and the ends it ought to have. Suggestions for future readings include From Dawn to Decadence and A Secular Age.

We have agreed to work through Politics a book at a time while taking turns writing a reflection on a chosen book. Commentary from any of the group are welcome at any point, whether or not the book for that week is “theirs,” and constructive comments from outside readers are welcome.