Blackstone’s Figure of Coverture: Disabilities the Wife Lies Under

face of a prisoner

Despite enduring recognition of William Blackstone’s stylistic sophistication, Blackstone’s figure of coverture in his Commentaries on the Laws of England has been widely and consistently under-appreciated. Blackstone’s general approach to law emphasized central Enlightenment themes of individual liberty and rationality. Blackstone did not view the Bible as the fundamental legal text. Given that orientation, consider Blackstone’s figure of coverture:

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 at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing^

This idea of the husband and wife’s unity of persons in law closely parallels the biblical description of the husband: he “clings to his wife and they become one flesh.”^ Blackstone figuratively replaced the clinging husband with the biblical, maternal image of being under God’s wings:

Because thou hast been my help, therefore in the shadow of thy wings will I rejoice

I have gathered thy children together as a hen doth gather her brood under her wings^

These biblical allusions would have been obvious and provocative to Blackstone’s Enlightenment contemporaries. While Blackstone throughout his Commentaries emphasized the deep historical roots of common law, unity of person was not the main idea governing the law of husband and wife in England prior to the eighteenth century or even prior to the nineteenth century.^ The husband and wife’s unity of person did not apply to courts of equity, under civil law, in ecclesiastical courts, or in most daily experience. Many women in fact have taken credit and contested credit in England from at least 1300 right up through the development of modern feminism.^ ^ What then was Blackstone, an Enlightenment figure celebrated for graceful, elegant writing^, doing with his figure of coverture?

Widely misunderstood among legal scholars grimly hacking away at dead men, Blackstone’s influential figure of coverture seems to have been meant as an entertaining legal fiction. Blackstone concluded his description of coverture thus:

These are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit. So great a favourite is the female sex of the laws of England.^

Some have perceived irony in this passage, but have misplaced it. Where is the husband with respect to “the disabilities, which the wife lies under”? The husband is on top of the wife in the biblical, procreative missionary position associated with the sexual unity of persons. Blackstone recognized significant disabilities associated with that position:

If an action be brought against a husband and wife for the debt of the wife, when sole, and the plaintiff recovers judgment, the capias {warrant to arrest and imprison until the debt is paid} shall issue to take both the husband and wife in execution: but, if the action was originally brought against herself, when sole, and pending the suit she marries, the capias shall be awarded against her only, and not against her husband. Yet, if judgment be recovered against a husband and wife for the contract, nay even for the personal misbehaviour, of the wife during her coverture, the capias shall issue against the husband only: which is one of the greatest privileges of English wives.^

The eighteenth-century gender literature emphasized sex-based assignment of earning and spending within a unified family budget: “The duty of the husband is to get money and provision: and of the wife’s, not vainly to spend it.”^ Getting money and provision often involved taking on debt. Ensuring that a wife did not vainly spend money could be difficult for a husband. If a husband or wife incurred debts that were not paid, the husband, not the wife, would be imprisoned.

In England during the two centuries before Blackstone’s Commentaries, the abstract incorporation of the wife into the legal person of her husband significantly concerned personal liberty. Married women were not imprisoned for debt. Married men were. Debtors comprised the vast majority of prisoners in late seventeenth and early eighteenth century England. The prevalence of debtors in prison in England in 1670 was roughly twice that of the prevalence of imprisonment for all reasons in England and across the world in 2009. About 95% of prisoners for debt in early-modern England were men. Risk of debt imprisonment was a significant legal disability for men enjoying the marital position. Blackstone’s figure of coverture humorously referred to a highly significant gender inequality under law: sex-discriminatory legal protection for women from pervasive debt imprisonment.

Leave a comment (will be included in public domain license)

Your email address will not be published.