The Guardianship of a Woman, Part II: One In The Law

[The Guardianship of a Woman FULL ARTICLE PDF here (link stays on-site)]

 

One in the Law

 

But if you want to know what it is that a woman thinks and feels, then ask a real flesh-and-blood woman what she really feels inside, what she really desires, really needs. If I obey him and submit to him it’s because I love him, trust him, believe in him and need him to provide for and protect me. Our earliest laws and oldest legal precedents back up the assumption that husband and wife are to be one flesh, one in the law. Indeed, the common-law made a woman civilly dead whenever she entered into marriage with a man. He was to be her everything in life, in law. She could not contract then without his consent, sue or be sued, nor own and control anything separately from her husband unless special provisions were made via trust or, in specific circumstances, equity[3].

 

The legal term for the status of married women was “coverture,” which meant that wives were “covered” by their husbands in all areas of life, especially the control of property. With few exceptions, husbands could buy and sell property of any kind, real or personal, without the wife’s permission. In turn, wives could rely on courts to force husbands to provide them with the necessities of food, clothing, and shelter.[4]

 

Chancellor James Kent of New York, Writing in Volume II of his Commentaries on American Law, described the common-law doctrine of coverture as it had been carried over into our earliest American law (largely unaltered) as such:

 

The husband is bound to provide his wife with necessaries suitable to her situation, and his condition in life; and if she contracts debts due for them during cohabitation, he is obliged to pay those debts; but for anything beyond necessaries he is not chargeable. He is bound by her contracts for ordinary purchases, from a presumed assent on his part; but if his dissent be previously made known, the presumption of his assent is rebutted, and it is said he is not liable, though the better opinion would seem to be, that he may still be liable; though the seller would be obliged to show, at least, the absolute necessity of the purchase for her comfort.[5]

 

Chancellor Kent goes on to further make clear that it is the marriage that makes the husband liable, as it is his duty as a husband, not a debtor, to provide for his wife and maintain her:

 

But Lord Talbot said, that nothing less than an act of parliament could alter the law; and the rule was fixed, that the husband was liable to the wife’s debts only during the coverture…The husband is liable, not as the debtor, but as the husband. It is still the debt of the wife, and if she survive her husband, she continues personally liable.[6]

 

And if the husband refuses to provide for his wife? Kent states that the laws suggest he may still be liable. If he cannot be charged, then the wife had grounds for a divorce a mensa et thoro, where the court would then order the husband to pay her a fixed maintenance.[7] Blackstone described it thus:

 

In case of divorce a mensa et thoro, the law allows alimony to the wife; which is that allowance, which is made to a woman for her support out of her husband’s estate; being settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case. This is sometimes called her estovers; for which, if he refuses payment, there is (besides the ordinary process of excommunication) a writ at common law de estoveriis habendis, in order to recover it. It is generally proportioned to the rank and quality of the parties. But in case of elopement, and living with an adulterer, the law allows her no alimony.[8]

 

In book three of his Commentaries on the Laws of England, Blackstone states:

 

…The last species of matrimonial abuses is a consequence drawn from one of the species of divorce, that a mensa et thoro; which is the suit for alimony, a term which signifies maintenance: which suit the wife, in case of separation, may have against her husband, if he neglects or refuses to make her an allowance suitable to their station in life. This is an injury to the wife, and the court christian will redress it by assigning her a competent maintenance, and compelling the husband by ecclesiastical censures to pay it. But no alimony will be assigned in case of a divorce of adultery on her part; for as that amounts to a forfeiture of her dower after his death, it is also a sufficient reason why she should not be partaker of his estate when living.[9]

 

There have never been ecclesiastical courts in America as in England, but the common-law generally followed the same course. Alimony was to enforce the husband’s duty to provide for his wife as if the marriage still continued, provided she was not guilty of wrong-doing. Nor could the law dictate how the husband would provide for her nor how he would head his family unless suit was brought against him for wrong-doing. Therefore, alimony might sometimes have been her only remedy if the husband breached his part of the contract of marriage and refused to provide for her.

 

…But as the husband is the guardian of the wife, and bound to protect and maintain her, the law has given him a reasonable superiority over her person…the husband is the best judge of the wants of the family and the means of supplying them, and if he shifts his domicile, the wife is bound to follow him wherever he chooses to go…If the husband abandons his wife, or they separate by consent, without any provision for her maintenance, or if he sends her away, he is liable for her necessaries, and he sends credit with her to that extent. But if the wife elopes, though it be not with an adulterer, he is not chargeable even for necessaries. The very fact of the elopement and separation, is sufficient to put persons on inquiry, and whoever gives the wife credit afterwards, gives it at his peril. The husband is not liable unless he receives his wife back again. The duties of the wife, while cohabiting with her husband, form the consideration of his liability. He is, accordingly, bound to provide for her in his family and while he is not guilty of any cruelty, and is willing to provide her a home, and all reasonable necessaries there, he is not bound to furnish them elsewhere. All persons supplying the food, lodging and raiment, of a married woman, living separate from her husband, are bound to make inquiries, and they give credit at their peril.[10]

 

Though it has been considered as “progress” and “modern” to do away with coverture– and indeed all legal sex distinctions and “stereotypes”- the legal fiction of husband and wife as one person in law- a doctrine perhaps as old as the common law itself[11]– should have never been disturbed by the courts or legislatures.


 

[3] See James Kent, Commentaries on American Law, Volume II, Third Edition (New York, 1827), pp. 149-54 for a wife’s capacity to own, control, or convey property as if she were femme sole (a single woman).

[4] Peter Irons, A People’s History of the Supreme Court: The Men and Women Whose Cases and Decisions Have Shaped our Constitution (Penguin, 2006), p. 11.

[5] James Kent, Commentaries on American Law, Volume II, Third Edition, p. 146.

[6] Ibid., p. 145.

[7] See Ibid., p. 148, n. a: “Houliston v Smyth, 3 Bingham’s Rep. 127. “In this case the court considered the law to be, that if a man rendered his house unfit for a modest woman to continue in it, or if the wife had reasonable ground to apprehend personal violence, she was justified in quitting it, and the husband would be liable for necessaries furnished for her support.”; “The husband is bound to provide his wife with necessaries, when she is not in fault, from a principle of duty and justice; and the duty will raise an assumpsit independent of his consent, and when no consent can be inferred, as in the case of a refusal on his part to provide her with necessaries. If he turns her out of doors, and forbids all mankind from supplying her with necessaries, or if she receive such treatment as affords a reasonable cause for her to depart from his house, and refuse to cohabit with him, yet he will be bound to fulfill her contracts for necessaries, suitable to her circumstances, and those of her husband.” Ibid., pp. 147-48

[8] William Blackstone, Commentaries on the Laws of England. Book the First, Third Edition (Oxford, 1765), pp. 441-42.

[9] William Blackstone, Commentaries on the Laws of England Volume 3 (Chicago, 1979), pp. 94-95.

[10] Kent, Commentaries on American Law Volume II, pp.145-46. Apparently, the opinion of the judges was that if the wife returns yet the husband refuses to receive her, he is liable.

[11] “The common law was the custom of the King’s Court, and an outgrowth of feudal conditions…but it is only in the local custom of numerous cities towns and villages that we can see how different the life of the ordinary people was. In these customs, for example, we find that the position of the married woman was very different from that which the common law assigned her, the complete merging of personality being obviously out of harmony with bourgeois habits. Local customs frequently keep the woman’s property free from her husband’s control, accord her liberty of contract (which was denied at common law), and even allow her to trade separately upon her own account. The extent of these local customs is hardly known. Many custumals have survived, but many others have not…by the merest chance an example of this recently came to light. In defence to an action of account in 1389, it was pleaded that by the custom of the little village of Selby in Yorkshire a husband was not liable for the commitments of his wife incurred in the course of her separate trading…the common law, even so late as 1389, did not extend to all persons and places…there was an incalculably large mass of customary law involving very different principles in numerous different communities of which we only know a fraction.” Plucknett, A Concise History of the Common Law, pp. 313-14.

This passage goes to show that the legal fiction of husband and wife as one in law went back for centuries, but also that many times the principles of coverture did not extend, therefore there is no basis in history for truthfully asserting that women- even married women- could never own or control their own property or earnings.; For the origins of the common law, see generally Arthur R. Hogue, Origins of the Common Law (Indianapolis, 1966).

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