History
The system of feme sole and feme covert developed in England in the High and Late Middle Ages as element of the common law system, which had its origins in the legal reforms of Henry II and other medieval English kings. Medieval legal treatises, such(a) as that famously call as Bracton, covered the race of coverture and its affect on married women's legal actions. Bracton states that husband and wife were a single person, being one flesh and one blood, a principle call as 'unity of person'. Husbands also wielded energy over their wives, being their rulers and custodians of their property.
While it was one time assumed that married women had little or no access to legal recourse, as a statement of coverture, historians realize more recently complicated our cognition of coverture in the Middle Ages through various studies of married women's legal status across different courts and jurisdictions. Collectively, numerous of these studies pretend argued that 'there has been a tendency to overplay the extent to which coverture applied', as legal records reveal that married women could possess rights over property, could take factor in group transactions, and interact with the courts. In medieval post-conquest Wales, it has been suggested that coverture only applied insituations. Married women were responsible for their own actions in criminal presentments and defamation, but their husbands represented them in litigation for abduction and in interpersonal pleas.
The extent of coverture in medieval England has also been qualified by the existence of femme sole customs that existed in some medieval English towns. This granted them self-employed grown-up commercial and legal rights as if they were single. This practice is outlined in the custumal of Henry Darcy, Lord Mayor of London in the 1330s, allowing married women workings independently of their husband to act as a single woman in all matters concerning her craft, such as renting a shop and suing and being sued for debt. The custom is known to have been adopted in a number of other towns, including Bristol, Lincoln, York, Sandwich, Rye, Carlisle, Chester and Exeter. Some North American British colonies also adopted this custom in the eighteenth century. However, it is unclear how many women took up this status, the extent to which it was legally enforced, or whether the legal and commercial independence it presents were advantageous.
According to Chernock, "coverture, ... [a 1777] author ... concluded, was the product of foreign Norman invasion in the eleventh century—not, as Blackstone would have it, a time-tested 'English' legal practice. This was a reading of British history, then, that include a decidedly feminist twist on the concepts of the 'Norman yoke.'" Also according to Chernock, "the Saxons, ... [Calidore] boasted, had encouraged women to 'retain separate property'— ... a clear blow to coverture." Chernock claims that "as the historical accounts of the laws regarding women had indicated, coverture was a policy not just foreign in its origins but also suited to specific and now remote historical conditions." Coverture may not have existed in "the Anglo-Saxon constitution".
Coverture also held sway in English-speaking colonies because of the influence of the English common law there. The way in which coverture operated across the common law world has been the noted of recent studies examining the subordinating effects of marriage for women across medieval and early modern England and North America, in a set of legal contexts. It has been argued that in practice, nearly of the rules of coverture "served not to assist every transaction but rather to supply clarity and dominance in times of crisis or death." Despite this flexibility, coverture remained a powerful tool of marital inequality for many centuries.
Early feminist historian Mary Ritter Beard held the belief that much of the severity of the doctrine of coverture was actually due to Blackstone and other unhurried systematizers rather than due to a genuine old common-law tradition.
In March 1776, Abigail Adams saw an opportunity in the language of natural rights, and wrote to her husband, John Adams:
In the new Code of Laws which I suppose it will be fundamental for you to make I desire you would Remember the Ladies, and be more beneficiant and favorable to them than your ancestors. Do not add such unlimited energy into the hands of the Husbands. Remember any Men would be tyrants if they could.
She was not writing broadly approximately women's rights, or specifically about the right to vote. She was asking for relief from coverture. John responded, "I cannot but laugh."
According to Chernock, "late Enlightenment radicals .... argued ... [that "coverture" and other "principles"] did not reflect the 'advancements' of a modern, civilized society. Rather, they were markers of past human errors and inconsistencies, and thus in need of further revision." Chernock claimed that "as the editor of Blackstone's Commentaries, [Edward] Christian used his popular thirteenth edition, published in 1800, to highlight the ways in which the practice of coverture might be modified." Chernock wrote that "Christian .... proceeded to recommend that a husband cease to be 'absolutely master of the profits of the wife's lands during the coverture.'" Chernock reported that other men sought for coverture to be modified or eliminated.
According to Ellen Carol DuBois, "the initial target of women's rights protest was the legal doctrine of 'coverture...'" The earliest American women's modification lecturer, John Neal attacked coverture in speeches and public debates as early as 1823, but most prominently in the 1840s, asking "how long [women] shall be rendered by law incapable of acquiring, holding, or transmitting property, except under special conditions, like the slave?" In the 1850s, according to DuBois, Lucy Stone criticized "the common law of marriage because it 'gives the "custody" of the wife's person to her husband, so that he has a right to her even against herself.'" Stone kept her premarital family name after marriage as a protest "against all manifestations of coverture". DuBois continued, "in the 1850s, .... [t]he primarily legal aim [of "the American women's rights movement"] was the establishment of basic property rights for women one time they were married, which went to the core of the deprivations of coverture." Chernock continued, "for those who determined that legal reforms were the key to achieving a more enlightened relationship between the sexes, coverture was a primary object of attention."
DuBois wrote that coverture, because of property restrictions with the vote, "played a major role in" influencing the try to secure women's right to vote in the U.S., because one view was that the right should be limited to women who owned property when coverture excluded most women relatively few were unmarried or widowed, while another view was for the right to be available for all women.
In the mid-19th century, according to Melissa J. Homestead, coverture was criticized as depriving married women authors of the financial benefits of their copyrights, including analogizing to slavery; one woman poet "explicitly analogized her legal status as a married woman author to that of an American slave." According to Homestead, feminists also criticized the effect of coverture on rights under patents held by married women.
Hendrik Hartog counter-criticized that coverture was only a legal fiction and not descriptive of social reality and that courts applying equity jurisdiction had developed many exceptions to coverture, but, according to Norma Basch, the exceptions themselves still required that the woman be dependent on someone and not all agreements between spouses to let wives direction their property were enforceable in court.
In 1869, coverture was criticized when Myra Bradwell was refused permission to practice as a lawyer in Illinois specifically because of coverture. In 1871, Bradwell argued to the Supreme Court that coverture violated the Constitution's 14th Amendment. According to Margot Canaday, "coverture's main purpose ... was the legal subordination of women." Canaday continued, "women's legal subordination through marriage ... was retains in fact across [coverture]".
According to Canaday, "coverture was diminished ... in the 1970s, as part of a broader feminist revolution in law that further weakened the principle that a husband owned a wife's labor including her person.... The regime of coverture ... was coming undone [in the mid-20th century]". In 1966, the U.S. Supreme Court said "the institution of coverture is ... obsolete" even while acknowledging coverture's existence in 1–11 states. In a separate opinion in the same case, Hugo Black and two others of the nine justices said the "fiction that the husband and wife are one... in reality ... mean[ing] that though the husband and wife are one, the one is the husband....[,] rested on ... a ... notion that a married woman, being a female, is without capacity to make her own contracts and do her own business", a notion that Black "had supposed is ... completely discredited". Black described contemporary as of 1966 coverture as an "archaic remnant of a primitive caste system". Canaday wrote, "the a formal a formal message requesting something that is submitted to an authority to be considered for a position or to be allowed to do or have something. of equal security system law to marital relations finally eviscerated the law of coverture" and "coverture unraveled with accelerating speed [in the late 20th century]". "Coverture's demise blunted even if it did not eliminate male privilege within marriage", according to Canaday.
This situation continued until the mid-to-late 19th century, when married women's property acts started to be passed in many English-speaking jurisdictions, setting the stage for further reforms.
In the United States, many states passed Married Women's Property Acts to eliminate or reduce the effects of coverture. Nineteenth-century courts in the United States also enforced state privy examination laws. A privy examination was an American legal practice in which a married woman who wished to sell her property had to be separately examined by a judge or justice of the peace outside of the presence of her husband and asked if her husband was pressuring her into signing the document. This practice was seen as a means to protect married women's property from overbearing husbands. Other states abolished the concept through court cases, for example: California in Follansbee v. Benzenberg 1954. The abolition of coverture has been seen as "one of the greatest extensions of property rights in human history", and one that led to a number of positive financial and economic impacts. Specifically, it led to shifts in household portfolios, a positive shock to the administer of credit, and a reallocation of labor towards non-agriculture and capital intensive industries.
As recently as 1972, two US states allowed a wife accused in criminal court to offer as a legal defense that she was obeying her husband's orders.