One Flesh in Law. POB II, Chapter 4: Husbands and Wives, B

Thomas Fleming


November 3, 2018


Generalizations are the bane of social history, but so is any exclusive concentration on minute details that rules out a more general consideration of human nature.  Men and women, as everyone who has not been perverted by the social sciences knows, are different, and their differences in size, strength, appetites, and temperament have found varied expressions in known societies.  The literate societies of the ancient world can still speak to us through their writings, and no one who has read the Odyssey or the plays of Euripides can doubt that ancient Greeks loved their wives and children, and no one who has read Aeschylus’ Oresteia or Aristophanes’ Lysistrata will accept the feminist propaganda that portrays ancient women as chattel slaves.  The advance of the suicidal ideologies of feminism and Marxism could only take place in societies in which the classics are no longer studied. 

We know a great deal more about the legal position of women in Britain (and America), over the past five or six centuries, than we can ever know about their status in ancient law.  In the Anglo-American tradition of Common Law, the status of wives was defined by the principle of coverture, which meant that the wife's legal identity was merged with that of her husband.   When Hamlet is taken to task for addressing his stepfather as “mother,” he replies: “Father and mother is man and wife, man and wife is one flesh, and so, my mother.”  As Blackstone observes: "By marriage, the husband and wife are one person in law...the very legal being or legal existence of the woman is suspended during marriage, or at least is incorporated or consolidated." 

 [Bracton, f 429b says “Vir et uxor sunt quasi unica persona.” ]

Justice Hugo Black's oft-quoted statement that "the old common-law fiction that the husband and wife are one...has worked out in reality to mean...the one is the husband" is a smart-aleckism--typical of modern jurists who refuse to look at an issue in any light but that provided by current fashion, and it rests upon the assumption--the most degrading imaginable--that women have allowed themselves to be enslaved, throughout human history, by men. 

[For “Man and wife are one, but man is the one” as an old legal joke, see Glanville William’s classic exposition from which I have freely borrowed, “The Legal Unity of Husband and Wife,” Modern Law Review 10 (January 1947), pp. 16-31p. 17.]

Patriarchal institutions are a two-way street, and if men less experienced than Bumble supposed they had the power to control the lives of their womenfolk, they were, in so thinking, obliged to support and protect them.  Anyone may choose to dislike the terms of this division of labor, but the consistent misrepresentation of sex roles as a one-sided tyranny is a myth or, rather, a barefaced lie.  

Even in the old Common Law tradition, man and wife were not so merged that women had no legal identity.  The wife’s position was not that of a possession but of her husband’s ward.  She could, for example, maintain property rights, though they were limited by her husband’s authority.  The implications of coverture and related notions, however, were broad, extending to questions of property, inheritance, divorce, and even criminal prosecutions.  It is often said in American law that one spouse cannot be compelled to testify against another.  This is a misleading understatement.  In fact, husbands and wives were not permitted in the Common Law to give evidence in court for or against one another.    Since a criminal conspiracy requires two parties, a married couple could not be convicted of conspiring together.

As one person, in the eyes of the law and of the Church, husband and wife could not sue each other in tort.  This principle was invoked as late as 1953 in an English case where a master was held accountable for his servant’s negligence that resulted in injury to the servant’s wife.   However, within a decade legal reformers were eliminating this last vestige of coverture in British law.

The husband, at least in law, was the presumed master of the house and, consequently, could be held liable for his wife's torts, including those to which she had been liable before marriage, and for misdemeanors and certain felonies that were performed in his presence and could thus be presumed to be done under his orders.  Until about 1890 an American wife injured in a vehicular accident could not recover damages from a third party if her husband’s driving contributed to the accident.  In some rulings, coverture was cited, but in others, when the principle of coverture had been more or less abandoned, it was argued that in marriage a wife had put herself under her husband’s protection.   One way of looking at this is to say that some part of the older Christian understanding of marriage as a merger of identities survived the decay of coverture.   In cases like that of Mr. Bumble, the husband's complicity did not have to be proved, and he, rather than the wife, was subject to punishment.

Coverture was concerned primarily with property rights. Under English law a single woman could make contracts, sue in her own name, and manage her own property; however, once she married, such rights were merged into her husband's legal identity.  The wife's dowry was put under the control of her husband who, although he could not alienate the property, did not have to account for the rents or income.  On the other hand, "the husband is bound to provide his wife with necessaries by law, as much as himself; and if he contracts debts for them, he is obliged to pay them.....If the wife be indebted before marriage, the husband is bound afterwards to pay the debt." 

A wife was entitled to inherit a third of her husband's property, and this guarantee restricted the husband's  right to alienate this property, unless the wife was willing to sign away her dower rights.  (In South Carolina my own wife had to go through this puzzling ceremony on the two occasions we sold property.)   These are, of course, broad generalizations, since Anglo-American law not only changed over time but also adapted itself to the folkways and attitudes of the different colonies in the New World. 

In a successful marriage between responsible persons, such an arrangement, so far from being burdensome, had many obvious advantages, not the least of which was that ii discouraged the couple from quarreling over financial decisions.  This did not mean, necessarily, that there was nothing to prevent a husband from robbing or cheating his wife.  In a traditional society, even a reckless husband could be checked either by the resentment of his wife's male relatives or by community disapproval, and a woman's dowry was a concrete manifestation of the honor paid her by her family.  This attitude is not restricted to Christian nations.  In ancient Athens, for example, male authority was balanced by a sense of family honor that included the dignity of a married daughter. In Menander's play (4th century B.C.), Epitrepontes (the arbitrators), the point of the comedy is a father's resentment of the way his son-in-law is squandering money, and he tells his daughter that the husband of a rich wife should consider himself her slave.

[Footnotes are difficult in Word Press--at least for me--and, even if they were easy, they would distract the reader.  The final version, however, will include extensive bibliography and notes.]

Thomas Fleming

Thomas Fleming

Thomas Fleming is president of the Fleming Foundation. He is the author of six books, including The Morality of Everyday Life and The Politics of Human Nature, as well as many articles and columns for newspapers, magazines,and learned journals. He holds a Ph.D. in Classics from the University of North Carolina, Chapel Hill and a B.A. in Greek from the College of Charleston. He served as editor of Chronicles: a Magazine of American Culture from 1984 to 2015 and president of The Rockford Institute from 1997-2014. In a previous life he taught classics at several colleges and served as a school headmaster in South Carolina