Feminism and the History of Marital Law: Basch and Stetson on the Rights of Wives

Abstract

From the time of the Norman conquest to the mid-nineteenth century, English marital law was based on the jurisprudential concept of baron et feme. This concept, which American state courts also continued to recognize into the nineteenth century, assumed that a married couple should be treated legally as a single unit. The power to act for that unit, as well as the unit's rights of inheritance and property, was vested in the husband. The wife was considered afeme covert, under the cover or protection of her husband. While courts of equity could and did recognize special exceptions, they were expensive to obtain and almost invariably were granted in response to concerns of wealthy families. The overwhelming majority of English and American wives continued to exist in the eyes of the law under what was called coverture, which entitled them to certain limited rights within marriage and provided some security in the event they were widowed. But as far as the state was concerned, coverture also rendered them the legal dependents of their husbands and deprived them of the exercise of a number of rights to which a single woman, or feme sole, was entitled (e.g., the right to make a binding contract and the right to take court action on her own). Exactly how the legal concept of coverture affected the lives of most English and American wives is difficult to determine, though work is beginning to be done on issues related to that question. What is easy to determine is the strong opposition of English and American feminists to a doctrine that relegated their married sisters to a category of legal responsibility roughly equivalent to that afforded infants and idiots. Two recent books have taken as their grand theme this historic confrontation between feminism and the