When One and One Make Two

Abstract

One time-honored feature of the common law that made its way into American marital regimes was the legal fiction of marital unity. As a doctrine cited daily in the courtrooms of the nineteenth century, marital unity not only evoked the closeness and permanence of the marriage bond but it also provided the starting point for spelling out spousal rights and duties. The gist of the fiction was simple enough. In the eyes of the law, the husband and wife were one person, and that person was the husband. Jurists, or course, understood that in some legal circumstances a husband and wife needed to act as two persons. Yet with marital unity as a fundamental premise, the law routinely obliterated the wife's independent legal identity while it invested the husband with great responsiblities and powers. As Blackstone, one of the century's best-selling legal commentators described it, the wife's legal existence was subsumed by that of her husband "under whose wing, protection, and cover, she performs everything: and is therefore called in our law-french a feme covert . . . and her condition during her marriage is called her coverture." 1