Ch. 4.1. Primary Source: William Blackstone on Marriage and Coverture, 1765
The most famous summary of traditional marriage under English Common Law, including the system of coverture, was written by the English jurist William Blackstone in his Commentaries on English Law (1765–1769), Book I, ch. 15 (“Of Husband and Wife”). The excerpts below summarize the Common law principles that applied to the marriage contract, including age at marriage, parental consent, etc., as well as the dissolution of this contract through divorce. The key passages on coverture are in paragraphs 8-14. Titles indicating the subject matter of each paragraph have been added within brackets.
Scholars have often criticized a tendency among many readers to take Blackstone’s “textbook” description at face value. Today too, one would get a false view of the law from reading legal treatises by themselves, without being aware of the many ways in which legal principles are adjusted in concrete cases. That is, Blackstone’s remarks represent one person’s generalizations rather than a full view of how the law worked in practice. For an example of how a personal perspective may affect even a textbook like Blackstone’s, can you detect any biases in Blackstone’s account of historical change in paragraph 14 on corporal punishment? But once allowances are made for the inevitable over-generalizations or personal views, this summary is still valuable as an introduction to traditional marriage law, much of which remained in place well into the nineteenth century.
[1] [Introduction] [Another] private relation of persons is that of marriage, which includes the reciprocal duties of husband and wife; or, as most of our elder law books call them, of baron and feme. In the consideration of which I shall in the first place inquire, how marriages may be contracted or made; shall next point out the manner in which they may be dissolved; and shall, lastly, take a view of the legal effects and consequence of marriage.
[2] [Marriage as a Civil Contract] Our law considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to the ecclesiastical law… In this civil light, the law treats it as it does all other contracts; allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract, in the proper forms and solemnities required by law.
[3] [Consent] First, they must be willing to contract. “Consent, not cohabitation, makes the marriage,” is the maxim of the civil law in this case, and it is adopted by the common lawyers, who indeed have borrowed (especially in ancient times) almost all their notions of the legitimacy of marriage from the canon and civil laws.
[4] [Age] Secondly, …all persons are able to contract themselves in marriage, unless they labor under some particular disabilities, and incapacities… The first of these legal disabilities is… having another husband or wife living…The next legal disability is want of age… Therefore if a boy under fourteen, or a girl under twelve years of age, marries, this marriage is… imperfect; and, when either of them comes to the age of consent aforesaid, they may disagree and declare the marriage void, without any divorce or sentence in the spiritual court…
[5] [Parental Consent] Another incapacity arises from want of consent of parents or guardians… By several statutes…, whosoever marries any woman child under the age of sixteen years, without consent of parents of guardians, shall be subject to fine, or five years imprisonment: and her estate during the husband’s life shall go to and be enjoyed by the next heir… And… by statute…, it is enacted that all marriages… where either of the parties is under twenty-one…, without the consent of the father, or, if he be not living, of the mother or guardians, shall be absolutely void…
[6] [Summary of Criteria for Marriage Contract] As the law now stands…, no marriage by the temporal law is…void that is celebrated by a person in orders [i.e., a cleric], — in a parish church or public chapel (or elsewhere, by special dispensation) — in pursuance of banns or a license, — between single persons, — consenting, — of sound mind, — and of the age of twenty-one years; — or of the age of fourteen in males and twelve in females, with consent of parents or guardians…
[7] [Divorce] To consider the manner in which marriages may be dissolved…, there are two kinds of divorce, the one total, the other partial; the one…from matrimonial bonds, the other merely from bed and board. The total divorce…must be for some of the canonical causes of impediment…, and those, existing before the marriage, as is always the case in consanguinity…, or arising afterwards, as may be the case in… corporal imbecility… Divorce from bed and board is when… it becomes improper or impossible for the parties to live together: as in the case of intolerable ill temper, or adultery, in either of the parties… In England adultery is only a cause of separation from bed and board… In case of divorce from bed and board the law allows alimony to the wife; which is that allowance, which is made to a woman for her support out of the husband’s estate…
[8] [Coverture: Definition] Having thus shown how marriages may be made, or dissolved, I come now, lastly, to speak of the legal consequences of such making… 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 everything; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture.
[9] [Coverture: Legal Capabilities & Duties] Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence… A woman indeed may be attorney for her husband; for that implies no separation from, but is rather a representation of her lord. And a husband may also bequeath anything to his wife by will; for that cannot take effect till the coverture is determined by his death. The husband is bound to provide his wife with necessaries by law, as much as himself; and if the contracts debts for them, he is obliged to pay them: but for anything besides necessaries, he is not chargeable. Also if a wife elopes, and lives with another man, the husband is not chargeable even for necessaries…
[10] [Coverture: Debts, Injuries, Suits] If the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together. If the wife be injured in her person or her property, she can bring no action for redress without her husband’s concurrence, and in his name, as well as her own: neither can she be sued, without making the husband a defendant. There is indeed one case where the wife shall sue and be sued as a feme sole [single woman], viz. where the husband has abjured the realm, or is banished: for then he is dead in law; and, the husband being thus disabled to sue for or defend the wife; it would be most unreasonable if she had no remedy, or could make no defense at all.
[11] [Coverture: Criminal Law] In criminal prosecutions, it is true, the wife may be indicted and punished separately; for the union is only a civil union. But, in trials of any sort, they are not allowed to be evidence for, or against, each other: partly because it is impossible their testimony should be indifferent; but principally because of the union of person… But where the offense is directly against the person of the wife, this rule has been usually dispensed with: and therefore… in case a woman be forcibly taken away, and married, she may be a witness against such her husband, in order to convict him of felony. For in this case she can with no propriety be reckoned his wife; because a main ingredient, her consent, was wanting to the contract…
[12] [Coverture applies only in Common Law, not in Civil or Ecclesiastical Law] In the civil law the husband and wife are considered as two distinct persons; and may have separate estates, contracts, debts, and injuries: and therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband.
[13] [Common-Law Exceptions to Coverture] But, though our law in general considers man and wife as one person, yet there are some instances in which she is separately considered; as inferior to him, and acting by his compulsion. And therefore all deeds executed, and acts done, by her, during her coverture, are void, or at least voidable; except it be a fine [a type of property transfer], or the like matter of record, in which case she must be solely and secretly examined, to learn if her act be voluntary. She cannot by will devise lands to her husband, unless under special circumstances; for at the time of making it she is supposed to be under his coercion. And in some felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excuses her: but this extends not to treason or murder.
[14] [Corporal Punishment] The husband also (by the old law) might give his wife moderate correction. For, as he is to answer for her misbehavior, the law thought it reasonable to entrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children; for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds; and the husband was prohibited to use any violence to his wife, other than what lawfully and reasonably pertains to the husband for the rule and correction of his wife… But…in the politer reign of Charles the Second [1660-85], this power of correction began to be doubted: and a wife may now have security of the peace against her husband; or, in return, a husband against his wife. Yet the lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehavior.
[15] [Conclusion] 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 favorite is the female sex of the laws of England.