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.

Modern Debt Imprisonment Disproportionately Affects Men

face of a prisoner

While high-income countries no longer imprison persons for non-payment of private debts, some imprison persons for nonpayment of government-determined parental financial obligations. Debt imprisonment for government-determined parental financial obligations, like older forms of debt imprisonment, raises the ratio of men to women in prison.

Government-determined parental financial obligations are imposed predominately upon men. Men currently have much worse technological and legal choices for avoiding unplanned parenthood than do women. Many government-determined parental financial obligations, typically called child support, are imposed on men through default judgment not even requiring proof of service.^ Thus many men learn that the government has declared them to have the legal status of father only after arrears on government-determined parental financial obligations have accrued. Among men actually engaged in fathering a child, sex biases in child custody create sex biases in the imposition of government-determined parental financial obligations. While a mother gets custody of a child at the child’s birth, an unmarried man must take specific legal actions to gain custody of a child. Among cases of arrears for government-determined parental financial obligations, 49% concern parties who were never married to each other.^ In addition, deeply rooted, stereotype-based beliefs about gender contribute to women predominately receiving physical custody of children following divorce. Men are thus much more likely than women to be subject to government-determined parental financial obligations.

In the U.S. today, government-determined parental financial obligations are probably more dangerous to men’s personal liberty than private debt ever was. Government-determined parental financial obligations are typically set as a share of income and are effective for at least eighteen years. Specific judicial action is required to have the on-going financial obligation adjusted to reflect a change in a man’s income-earning circumstances, such as loss of job. Under U.S. federal law, arrears in these payments cannot be forgiven, nor can they be discharged in bankruptcy court. In addition, government-determined parental financial obligations in the U.S. often automatically continue to increase while a man has been imprisoned for not paying the obligations.

Government-determined parental financial obligations are relevant to men’s disproportionate imprisonment. The number of orders active against men for government-determined parental financial obligations has averaged about 7 million from 1993 to 2007. Such obligations probably keep in prison on any given day about 45,000 men. That’s equivalent to about 20% of the total number of women under incarceration.