Law of Coverture
By Sarah Becker © 2016
“By marriage, the husband and wife are one person in law,” British jurist Sir William Blackstone said in 1765,” that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything.” As Martha Custis Washington learned a woman’s “legal status, wealth, children, place and manner of life were controlled” by her husbands.
“The history of marriage is one of both continuity and change,” U.S. Supreme Court Justice Anthony Kennedy wrote in Obergefell v. Hodges. “Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage…Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.”
Hening’s Collection of the Laws of Virginia refers to femes covert, “orphans, femes covert and persons of unsound mind,” beginning in 1657-8. In 1789, President George Washington’s inaugural year, former First Lady and Democratic presidential hopeful Hillary Clinton would have been a feme covert; the property of her husband, unable to vote or hold elective office.
“I desire you would Remember the Ladies, and be more generous and favorable to them than your ancestors,” Abigail Adams wrote husband John in 1776. “Remember all Men would be tyrants if they could. If perticular care and attention is not paid to the Laidies, we…will not hold ourselves bound by any Laws in which we have no voice, or Representation.” The Declaration of Independence declared “that all men are created equal.”
English-American common law, gender hierarchy, separate spheres, and marital ‘unity’ defined the rules of engagement. In New York, in 1832, bridegroom and newspaper editor Robert Dale Owen, of Scotland and Indiana “wrote a bold” marriage contract: “Of the unjust rights which in virtue of this ceremony an iniquitous law tacitly gives me over the person and property of another, I cannot legally, but I can morally divest myself. And I hereby…declare that I consider myself…utterly divested, now and during the rest of my life, of any such rights….” New Yorker Elizabeth Cady Stanton took note. The State of New York passed its model Married Women’s Property Act in 1848.
“[Man] has never permitted [woman] to exercise her inalienable right to elective franchise,” Quakers Lucretia Mott and Elizabeth Cady Stanton wrote in their 1848 Seneca Falls Women’s Rights Convention Declaration of Sentiments. “He has compelled her to submit to laws, in the formation of which she had no voice; made her, if married, civilly dead; taken from her all rights in property, even to the wages she earns; and usurped the prerogative of Jehovah himself, claiming it as his right to assign for her a sphere of action, when that belongs to her conscience and her God.” Marital rape, a discussion topic in 1848, did not become a crime until 1976.
“In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not sexual orientation,” former U.S. Supreme Court Justice Antonin Scalia said in 2011.
Amendment 14, Sec. 1 states: “No State shall…deny to any person within its jurisdiction the equal protection of the laws. Sec. 2 refers only to “male inhabitants” when the “right to vote at any election…is denied.” Margaret Brent, an unmarried landowner and attorney, a feme sole asked the Maryland colonial Assembly for the right to vote in 1648.
Two women sought the Presidency in the late 1800s. Equal Rights Party candidate Victoria Woodhull, a divorcee, did so in 1872. She was vilified, in part for having previously “placed a bill in the hands of Gen. Butler and Senator Anthony…in regard to woman suffrage.” Washington, D.C. attorney Belva Lockwood, the first woman admitted to practice before the U.S. Supreme Court, accepted the Party’s nomination in 1884 and 1888.
“We shall never have equal rights until we take them,” Belva Lockwood said, “nor respect until we command it.”
“The law relating to married women makes the family a barony, a monarchy, a despotism, of which the husband is the baron, king, or despot, and the wife the dependent, serf or slave,” The Washington Post wrote in 1896. “The English common law in all its harshness and inflexibility, brought by our forefathers across the sea to this country, had been but little modified by statute, as affecting the marital relation and especially property rights incident thereto.”
“By the common law the identity of the wife in relation to her civil status was almost entirely swallowed up in the personality of her husband,” The Post continued. “In the eye of the law she was entirely irresponsible. She could enter into no contract or engagement. The law classed her with idiots, lunatics, and infants, as persons under disabilities, with this distinction in favor of idiots, lunatics, and infants that while their contracts and engagements were for the most part only voidable, hers were entirely void.”
“In but few of the States have the disabilities of women been entirely removed,” The Post concluded. “The primal doctrine that woman by marriage loses her legal individuality remains almost entirely intact.”
“Why should any married woman be given the privilege of suffrage, as she, being one with her husband, can only vote as he does?” The Alexandria Gazette asked. Enter suffragist Alice Paul and the 1913 National Women’s Party. With the Party’s help the 19th Amendment was ratified in August 1920, but not before Lucy Burns and others did jail time in the Occoquan Workhouse.
Amendment 19, Sec. 1: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”
Alice Paul extended her women’s campaign to include the now defunct Equal Rights Amendment (ERA). The Amendment died with the 1980 election of President Ronald Reagan, former Trump Campaign Chairman Paul Manafort’s one-time boss. Manafort opened his international consulting business in Alexandria in 1984.
Ronald Reagan, the oldest man to successfully run for presidential office, opposed the ERA. On his command, the 1980 Republican platform “reversed its 40 year tradition of support.” Reagan, in lieu of, nominated the first woman U.S. Supreme Court Justice and signed a congressionally mandated proclamation commemorating Women’s History Week (P.L. 97-28).
“As volunteers, women have provided invaluable service and leadership in American charitable, philanthropic and cultural endeavors,” President Reagan said in 1982. “And, as mothers and homemakers, they remain instrumental in preserving the cornerstone of our Nation’s strength—the family.”
After seven years in office President George Washington, of no political party, was weary of divisive politics. When he declined a third presidential term others were encouraged to compete. Today we stand ready to welcome the first woman President in 227 years. Or do we?
On November 8th voters will go to the polls and elect America’s next President. Will it be Democrat Hillary Clinton, the first female presidential nominee of a major political party, or Republican businessman Donald Trump? Trump claims “Crooked Hillary lacks political stamina.” Hillary decries the Donald’s “locker room banter.”
“I have few illusions and no money, but I’m staying for the finish,” presidential candidate Margaret Chase Smith exclaimed. “When people keep telling you, you can’t do a thing you kind of like to try.” Senator Margaret Chase Smith (R-ME) tried and failed in 1964, as did African-American Congresswoman Shirley Chisholm (D-NY) in 1972. Anti-abortion candidate Ellen McCormack ran for president in 1976 and 1980.
Martha Custis Washington realized legal individuality only when widowed. Never was she able to vote.