Coverture is the doctrine of English law and social practice, imported to America and many Commonwealth nations, in which a female person had no legal identity. From birth a girl was covered by her father. This held as long as she was a “virgin” or “maiden”, hence the surname she was given at birth, her father’s name, was her “maiden name”. Upon marriage a man and wife became one entity, and that entity was the man. This changeover was symbolized by the change of name. Miss Name of Father became Mrs. Name of Husband and, legally, all rights to her were signed over to her husband. In the words of Sir William Blackstone, whose “Commentaries on the Laws of England” were to form the backbone of English law, and the foundation of American law, from the time of their writing in the 1760s:
“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or … is incorporated and consolidated into that of the husband.”
The writers of the “1848 Seneca Falls Declaration of Sentiments” put it much more succinctly. A wife was “civilly dead.”
While lived experience could be more flexible, this was not something that women could count on. If it came to a dispute, it was the letter of the law that prevailed. Since, legally, she did not exist, a married woman could not enter into contracts in her own right, bring suit or be sued, or own a business. A married woman could not own anything. Not just property, all of which, even if it came with her at marriage, belonged completely and totally to her husband, nothing at all. She did not own the clothing she wore. Any children she gave birth to belonged to her husband and were his to do with as he liked. If she were divorced the children were still the property of the husband. It was not just the “fruits of her body” which belonged to her husband, but the body, itself. The legal line was drawn at the point of death. A man was entitled to beat his wife as he saw fit, providing he did not actually kill her. Consent by the wife to sexual intercourse was a given. By definition she could not be raped. Sir Mathew Hale stated in 1736 that:
“the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.”
But surely those dusty 18th century words cannot be relevant today, can they? Let’s walk them forward in time:
“A husband also cannot be guilty of a rape upon his wife.” (1822, Archbold, A Summary of the Law Relative to Pleading and Evidence in Criminal Cases.)
“A husband cannot be guilty of rape on his wife.” (1949, R v Clarke.)
In fact, most state criminal codes in the US were written to include a “marital rape exemption”. Let me be crystal clear, this was specific language, written into law, which defined rape as “sexual intercourse with a woman, not your wife, by force and against her will”. Legally a wife’s body belonged to her husband. This is not ancient history. The first state to remove its marital rape exemption was Nebraska, in 1976. Other states followed suit, to an extent, although many still did not put marital rape on a par with “real” rape, requiring higher levels of proof, and lower levels of penalty. The last states to hold onto full marital rape exemptions were Oklahoma and North Carolina, which only let them go in 1993. Thirteen states still distinguish between marital and non-marital rape.
Allow me to make this more personal. Were it not for marital rape exemptions, I would not exist. This is not a situation which makes for a happy, healthy childhood and family life, and I was by no means alone in my generation. When people extol the value of a “traditional” family, these are the traditions they are upholding.
Marital rape laws are by no means the last vestiges of coverture. It took Title VII of the Civil Rights Act of 1964 before women could no longer legally be passed over for promotions because they were married. Women could still be excluded from juries in the US until 1975. When you hear the phrases “gender wage gap” and “rape culture” you can make connections to coverture. The shadow of coverture shows up in tax matters, employment and housing. It is the reason that when a mortgage or loan application is drafted, the husband’s name is frequently listed first. It rears its head whenever a woman is confronted with the decision of whether to marry and, if so, which surname she should use. And, of course, it is there when we decide how to name our children.
Before you are tempted to criticize someone for their name choice, whether it is to change or retain a surname, it’s important to understand the power and pervasiveness of the historical legacy which is woven into so many aspects of law and society. There is no ideal or consequence-free choice, and we have to work within our own complexities. The issue of names, alone, undertaken by individuals, is not enough to effect real change. And it is important to remember that women are not the only ones affected by the legacy of coverture.The very definition and nature of marriage which is so hotly debated at the moment is intimately linked to it. We need to address whatever aspects we can, from family law, to signing contracts, to gay marriage. The broadening of legal definitions of family membership and privilege can go a long way to helping to erode the inequities that seem so natural and normal a part of life that many people hardly ever see them.
There are many good resources on the topic of coverture, names, and the history of marriage law. If you are willing to go through something book length, try:
Linda K. Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York: Hill and Wang, 1999).
featured: Marriage Alter Ego, by D Sarle.
Title page of a 1771 American edition of Blackstone’s Commentaries on the Laws of England.
Portrait of William Blackstone (1723-1780) after Gainsborough.
sketch of wedding couple, 1893.
West Oak (love ain’t the problem, stand up against (h)8), by Eddie.
written names: Mr. and Mrs. Walter Drake, from “American etiquette and rules of politeness” (1883).