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Married Women and the Law

Married Women and the Law: Coverture in England and the Common Law World

Tim Stretton
Krista J. Kesselring
Copyright Date: 2013
Pages: 328
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  • Book Info
    Married Women and the Law
    Book Description:

    Explaining the curious legal doctrine of "coverture," William Blackstone famously declared that "by marriage, husband and wife are one person at law." This "covering" of a wife's legal identity by her husband meant that the greatest subordination of women to men developed within marriage. In England and its colonies, generations of judges, legislators, and husbands invoked coverture to limit married women's rights and property, but there was no monolithic concept of coverture and their justifications shifted to fit changing times: Were husband and wife lord and subject? Master and servant? Guardian and ward? Or one person at law? The essays in Married Women and the Law offer new insights into the legal effects of marriage for women from medieval to modern times. Focusing on the years prior to the passage of the Divorce Acts and Married Women's Property Acts in the late nineteenth century, contributors examine a variety of jurisdictions in the common law world, from civil courts to ecclesiastical and criminal courts. By bringing together studies of several common law jurisdictions over a span of centuries, they show how similar legal rules persisted and developed in different environments. This volume reveals not only legal changes and the women who creatively used or subverted coverture, but also astonishing continuities. Accessibly written and coherently presented, Married Women and the Law is an important look at the persistence of one of the longest lived ideas in British legal history. Contributors include Sara M. Butler (Loyola), Marisha Caswell (Queen’s), Mary Beth Combs (Fordham), Angela Fernandez (Toronto), Margaret Hunt (Amherst), Kim Kippen (Toronto), Natasha Korda (Wesleyan), Lindsay Moore (Boston), Barbara J. Todd (Toronto), and Danaya C. Wright (Florida).

    eISBN: 978-0-7735-9013-7
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. I-IV)
  2. Table of Contents
    (pp. V-VI)
  3. Figures and Tables
    (pp. VII-VIII)
  4. Preface
    (pp. IX-2)
  5. 1 Introduction: Coverture and Continuity
    (pp. 3-23)

    On a Sunday morning in 1891, Emily Jackson emerged from church only to be kidnapped by her estranged husband and his accomplices, and then imprisoned in his house. When the police refused to intervene, Emily’s siblings turned to the courts. The justices in Queen’s Bench declined to assist, observing that “though generally the forcible detention of a subject by another isprima facieillegal, yetwhere the relation is that of husband and wife, the detention is not illegal.” Days later, however, the Court of Appeal reversed this decision, saying that husbands had no right to lock up or beat...

  6. 2 Discourse on the Nature of Coverture in the Later Medieval Courtroom
    (pp. 24-44)

    Alice, widow of the fifteenth-century Norwich merchant Nicholas Crome, may well be one of the most authentic commentators on the nature of coverture in later medieval England. A woman with substan tial property, she was a regular target for eager suitors looking to ad vance in society. According to her bill of complaint, when she rejected John Williamson’s proposal of marriage, he decided to persuade her in a more heavy-handed fashion. He abducted her, bringing her to an unfamiliar town, where he “shut her into an house within four locks by the space of five weeks.” Despite her imprisonment, persistent...

  7. 3 Coverture and Its Discontents: Legal Fictions on and off the Early Modern English Stage
    (pp. 45-63)

    Although coverture was certainly quite real in its constraining influence on early modern women’s lives and property relations, it was nonetheless grounded in a legal fiction – that of marital unity of person – a counterfactual premise known to be false, yet purport edly “accepted” as true.¹ The degree and nature of this acceptance, however, is no simple matter and should not be taken for granted. For the truth of legal fictions concerns that which is “rightly or lawfully such,” rather than that which is “consistent with fact” or represents “the thing as it is” (OED, “true,adj.,n., andadv.,” 3.a.,...

  8. 4 Poor Law, Coverture, and Maintaining Relations in King’s Bench, 1601–1834
    (pp. 64-87)

    As the sixteenth century drew to a close, Elizabeth I’s last parliaments began drafting the most important statute of the Tudor legislative efforts to control and alleviate poverty. The final result of their efforts, the Act for the Relief of the Poor (1601), outlined a system of man datory, locally based taxation and disbursement intended to provide not only relief for the impotent, but also work for the able-bodied and apprenticeships for poor children.¹ This “new” poor law program, together with the many subsequent amending and explanatory acts that followed it up to 1834, comprised what is known, in retrospect,...

  9. 5 Coverture and the Criminal Law in England, 1640–1760
    (pp. 88-112)

    In 1751, John Barras accused Thomas Sharp of breaking into his house and stealing £18 in gold. In his examination before the Justices of the Peace (JPS), Sharp offered an unusual defence. He “confessed that he stole the said purse and money and gave the same to his wife, but that he did it very unwillingly being forced to it by his said wife and who broke open a window in the said house and swore she would stabb him if he would not get into the said house and fetch out the money, which upon her said threats he...

  10. 6 Women and Property Litigation in Seventeenth-Century England and North America
    (pp. 113-138)

    While women in the seventeenth-century English world remained subordinates at the level of both household and state, they nevertheless appeared as litigants before the courts to protect their rights to property. Under both English and American law, a woman’s marital status primarily defined her legal identity: under common law, the doctrine of coverture meant that married women had no legal standing apart from their husbands. Though coverture seriously circumscribed the ability of married women to pursue cases in common law courts, the availability of legal jurisdictions other than common law, especially equity and ecclesiastical law, provided women with alternative avenues...

  11. 7 The Sailor’s Wife, War Finance, and Coverture in Late Seventeenth-Century London
    (pp. 139-162)

    For coverture to work properly the husband needed to be there in person a good part of the time. Otherwise how could his wife be “at one” with him? It was a problem familiar to many early modern maritime households: a sailor’s long absences from home and high likelihood of mortality made it hard to sustain the fiction that he and his wife were a single legal entity, merged in body and spirit. And the tension grew more visible in the later seventeenth and early eighteenth centuries as expanding trade and the growing frequency and intensity of naval warfare sent...

  12. 8 Written in Her Heart: Married Women’s Separate Allegiance in English Law
    (pp. 163-191)

    In the summer of 1617 a young English merchant lay dying in the Polish town of Elbing. Nicholas Stephenson had left his family’s lands in Suffolk to become a citizen of London and member of the Skinners Company. Then he had joined the Eastland Company trading in the Baltic. He had married a Polish wife, Barbara, and had a young son, Richard. Now, seriously ill, he called the chaplain of the company, Nathaniel Ward, and Theophilus Eaton, one of the leading Eastland merchants, to help him draw his will.¹ If Stephenson himself did not realize it, certainly Ward, who was...

  13. 9 Tapping Reeve, Nathan Dane, and James Kent: Three Fading Federalists on Marital Unity
    (pp. 192-216)

    Coverture was supposed to operate in the United States in the same way it operated in the rest of the common law world. Generally speaking, a married woman was incapable of owning property or making a contract. She was, like a slave, an extension of her husband’s household and not a full legal person. As William Blackstone famously put it, referencing Sir Edward Coke’sCoke Upon Littleton, “by marriage, the husband and wife are one person in law” and that person was the husband, “under whose wing, protection, andcover, she performs every thing.”¹ English law was generally taken to...

  14. 10 “Concealing Him from Creditors”: How Couples Contributed to the Passage of the 1870 Married Women’s Property Act
    (pp. 217-239)

    Late nineteenth-century England adopted a law that forever changed the property rights of married women: the Married Women’s Property Act of 1870 gave women married after 1870 the right to own and control many forms of personal property and earnings made in a trade carried on separately from the husband. Contemporaries hailed the act as a major achievement of the women’s movement because they believed that it had the potential to alter women’s independence, investment decisions, and wealth. In 1857, a slightly different version of the bill to reform the property rights of married women was defeated in parliament. In...

  15. 11 Coverture and Women’s Agency: Informal Modes of Resistance to Legal Patriarchy
    (pp. 240-263)

    Mr Bumble, in Charles Dickens’s iconic novelOliver Twist, disputed the idea that the husband has complete control over his wife. When told that he was more culpable in the destruction of the trinkets that would identify Oliver’s mother than his wife, the finder of the trinkets, Bumble snorted at the idea that a wife ever acts under her husband’s command: “If the law supposes that,” said Mr Bumble, “the law is a 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...

  16. Conclusion
    (pp. 264-272)

    The essays in this volume have traced some of the many exceptions to coverture, the ways individuals worked around or ignored its strictures, and its variability across time and place. In so doing, they have also indicated both the persistence and power of coverture, and some of the reasons for that persistence and power. That coverture proved flexible in practice and its rationales adaptable to different contexts contributed to its longevity, we argue. Here, we offer a few final thoughts and suggestions for future work.

    Taking an unusually long chronology, from medieval to modern, and considering an array of regions...

  17. Contributors
    (pp. 273-276)
  18. Index
    (pp. 277-282)