I have opined previously that patriarchy, far from being oppression of women by men, was largely a piece of theatre, an illusion. By observing the formalities associated with a man being “master in his own house”, the man’s blushes were spared: no one need ever acknowledge his domestically subservient position, though everyone really knew. The law of coverture is generally regarded, especially by feminists, as a quintessentially patriarchal device. They are right – but only if we adopt the interpretation of patriarchy as illusion. Looking behind the smoke and mirrors of coverture into how it was interpreted in practice reveals that it too was really a façade of male power concealing a female power within.

I have drawn upon the following sources for the account which follows (which relates to the UK),

• Margot Finn, Women, consumption and coverture in England, c. 1760–1860, The Historical Journal, 39, pp 703-722 doi:10.1017/S0018246X0002450X. Available here.
• Joanne Bailey, Favoured or oppressed? Married women, property and ‘coverture’ in England, 1660–1800, Continuity and Change 17 (3), 2002, 351–372. Cambridge University Press DOI: 10.1017/S0268416002004253. Available here.
• Stephen J. Ware, A 20th Century Debate About Imprisonment for Debt, available here.
• Malcolm J George, Riding the Donkey Backwards: men as the Unacceptable Victims of Marital Violence, The Journal of Men’s Studies, Volume 3, No.2, November 1994, 137-159. Available here.

A grossly distorted picture is easy to conjure if one selects only the benefits to one sex and only the disbenefits to the other. Then one can spin a tale of oppression out of straw. The feminist depiction of coverture is such a case (as, indeed, is the feminist depiction of history generally).

Until around the mid-Victorian period, English Common Law had held that a married couple constituted a single legal entity. This was the legal equivalent of the Christian “one flesh”. Under the system of coverture, the husband was the manifestation of the legal entity whilst the wife’s legal status became covert, i.e., hidden. The law of coverture is a favourite of the feminists as an example of historical female oppression. Whilst an unmarried woman could own property and enter into legal contracts in her own right, this was denied to a married woman under coverture because she was held to be legally tied to her husband who must act for them as a couple in legal matters. I am no apologist for the system of coverture, but feminists will never tell you of the flip side of the arrangement.

Pause to consider for a moment the great boon that being legally non-existent might be to the unscrupulous or the criminal.

Since the man was the manifest legal entity he became responsible for crimes – or torts – committed by his wife. The most common example of this were the Victorian debtors’ prisons. Some 10,000 people, 95% to 98% of them men, were imprisoned yearly for debt in the Victorian era. This was at a time when 20% of prisoners sentenced for criminal offences were women, and it is reasonable to suppose that women were responsible for incurring at least 50% of debts, perhaps far more. A debt might have been due to the wife’s profligacy or carelessness, but it was the husband who went to prison.

The aspect of the law of coverture which feminists do not bother to mention was known as the principle of “necessaries”. A man was obliged to provide financially for his wife. In fact, it was not only marriage but also cohabitation which created this obligation. The principle of “necessaries” under coverture meant that the wife – or common law wife – could enter a ‘contract’ for goods, or purchase any goods, on credit if they were deemed to fall under the aegis of “necessaries”. This could be done unilaterally without the husband’s knowledge, though he would still be responsible for honouring the debt. This was, of course, a practical necessity because wives were usually charged with maintaining the household and hence spending the bulk of the domestic monies.

What constituted “necessaries” was highly class and social status dependent. Thus, for a woman of high social status such items as a carriage, expensive lace clothing and the hire of servants would be deemed “necessaries” because they were expected of a woman in her position. The law of “necessaries” effectively gave women great powers of consumption without legal responsibility for the consequences.

In practice, though, the bulk of legal cases to recover debt related to the lower orders, inevitably. That wives were supposedly legally invisible under coverture was given the lie by the fact that the courts were full of married women in debt cases. Frequently it was the wife in court representing her endebted husband despite the latter being liable. This was partly so the husband did not lose a day’s pay in attending court. But it was also because the wife was recognised as the person who had contracted the debt. And it was also tactically wise since a woman was more likely to gain a sympathetic ear with the court. Records indicate that women were more likely than men to obtain preferential terms for the debt repayment, such as repayment in instalments. Should the wife lose the case, however, it was the husband who might end up in prison, not her.

Wives’ legal non-existence was further betrayed as fictional when the creditor was also represented in court by his wife, who was quite likely to have sold the goods in the first place. So the courts might feature two warring women, both of whom were formally representing their husbands, neither of whom were present. Margot Finn has described coverture in every day practice as “existing in a state of suspended animation” as women did, in reality, exercise considerable influence, both legally and financially. When coverture truly was called into play was in deciding who went to prison.

Sometimes the husband was ruled not liable for the debt, but the burden still did not fall upon the wife, who was protected by her legal standing of being incapable of contracting debt. The loss in such cases fell to the hapless tradesman.

Bailey adduces evidence that, in practice, wives maintained during marriage substantial property interests of their own, there being other laws in operation which protected their interests and which were dominant over the common law of coverture, de facto if not de jure. To quote Margot Finn, “seventeenth- and eighteenth-century women enjoyed substantially more economic authority than the literature on coverture would suggest….Maxine Berg’s analysis of probate accounts in eighteenth-century Sheffield and Birmingham similarly emphasizes that women played an important economic role as executors and guardians in some cities, where moreover they ‘did own real property and, in most cases… disposed of it as they wished’”

Wives frequently took an active part in their husbands’ business and this also required that they be delegated powers of agency, whether formally or informally. This might, in some cases, extend to legal Power of Attorney. Such arrangements were also a practical necessity if the husband’s business required his physical absence from the home for long periods, in which case the wife was effectively left as the business agent in the home town.

Bailey asks whether there is any evidence for a great distinction before, during and after marriage in women’s purchasing habits, or other financial powers. She concludes there is little evidence of any significant distinction in practice. The ostensible legal annihilation of women in marriage under coverture would appear to be another instance of the largely illusory nature of patriarchy.

The beneficial aspects of coverture for wives did not stop with access to credit underwritten by their husbands whilst the marriage lasted. The law of “necessaries” extended even to separated wives. An estranged wife could continue to run up debts with which to burden her ex-husband. This was commonly used as a tactic to force the husband to agree divorce terms favourable to the wife. Such estranged wives could, and did, push the strategy as far as having the husband imprisoned until he gave them what they wanted.

There are recorded cases such as this one: a man returned home from a business trip to discover that his wife had sold everything he possessed and set herself up in alternative accommodation with the proceeds. He was now destitute but there was nothing he could do. He could bring no case against his wife because she and he were deemed to be legally identified, and one cannot sue oneself.

So, is the feminist portrayal of coverture as patriarchal oppression of women the true and undistorted picture of historical reality? Clearly not.

Even after the 1869 Act for the Abolition of Imprisonment for Debt, imprisonment was still retained for certain cases of debt, including the financial provision for wives – hence the law of “necessaries” continued even after this act. And this is despite the fact that, starting in 1870, there were a succession of Married Women’s Property Acts which reversed the parts of coverture relating to wives’ property and allowed married women to own property and capital in their own right.

A common feminist fallacy is that wives enjoyed no legal protection from their husbands’ violence in these periods. There were, in fact, many statutes which provided protection (though the stigma around marital violence was undoubtedly not what it is today). With some irony, given its reputation, coverture was itself one of the legal mechanisms for such protection. Under coverture, abused wives could obtain a ‘surety for the peace’, a bond which obliged a husband to keep the peace towards his wife – a forerunner of today’s injunction orders.

The law of coverture effectively placed a legal obligation upon husbands to ensure their wives obeyed the law. In fact, coverture had its origins in common law and hence in ancient custom and practice which had also obliged husbands to make sure their wives behaved themselves. A particularly egregious example of this is the Skimmington Ride. It is still the case today that society has a hard time accepting that some men may be the victims of partner abuse, rather than the perpetrator. In historical times things were no better – in fact worse. A man who allowed himself to be abused by his wife would be punished for it by his community. A husband was expected to control his wife. If she beat him, then this was regarded as a failing on his part. The punishment was the Skimmington Ride, in which the man was obliged to ride a donkey through the town facing backwards, and thus looking ridiculous, whilst the populace would bang pots and pans and jeer and mock him by calling out insults. The modern equivalent, I suppose, is the male victim of partner violence who phones the police only to find that he is the one they arrest.

Feminists have held coverture as a clear example of male privilege. But the feminist presentation of the law of coverture and related laws as a great boon for men and oppression for women is a gross distortion. What such laws were truly designed to do was to impose responsibilities upon men, and to provide for the punishment of men should they fail to fulfil these responsibilities. At a time when a large proportion of paid work, sufficient to maintain a family, was gruellingly hard manual labour which women physically could not do, it is easy to see why society placed these burdens upon men. Coverture does not embody male privilege but male obligation. No doubt feminists would say “patriarchy hurts men too”. But if it was patriarchy which imposed these laws, it was the ruling elite that was the patriarch, and they imposed the burden of responsibility on the other men. In reality, it was hardly patriarchy but necessity which truly imposed the burden. This would continue to be the case until technology made all our lives so much easier.

In common with other aspects of what feminists interpret as patriarchal oppression, coverture was part of a system which tied men into obligations of resource provision for their wives (a situation which evolved as a surrogate for the provisioning of children). The ultimate dismantling of coverture, and the full legal independence of the sexes, was part of the process which weakened men’s social and legal binding into the family. From the feminist perspective this was part of their overarching program to “smash the patriarchy”. Indeed it was. But one’s perspective on how desirable that might be hinges upon the meaning one attaches to “patriarchy”. From the feminist perspective of patriarchy as oppression of women, its demolition is an unmitigated good. But the alternative perspective is that patriarchy was merely an illusion, a piece of theatre, designed to encourage men to commit to obligations which self-interest would reject. From this perspective the dismantling of coverture was relief of men’s obligations and hence more a cause for men’s celebration than women’s.

So, both parties are happy, then.

Except, of course, that they are not.