The law of coverture was inherited from English common law and regulated legal transactions between husbands and wives. Most significantly, it established a sharp distinction between a legally independent unmarried woman and a married wife. Single women obviously did not enjoy full legal citizenship, for example, with respect to voting or jury duty. Nevertheless, they enjoyed almost all other legal and economic rights, including the right to direct economic enterprises in their own names. By marrying, however, a woman lost such entitlements. Although widows retained ownership of their personal effects and acquired rights to fixed shares (typically a third) of their husbands’ estates, at the husband’s death women lost their prior claims to the rest of the marital property (on dower, see Dubler 2003).
In its pristine form, coverture treated husband and wife as indistinguishable legal actors from the perspective of the outside world, but highly differentiated from the point of view of the marriage contract. This had some surprising consequences; under coverture, for instance, a wife could legally act as her husband’s agent. The so-called law of necessaries specified and limited a wife’s right in these regards. The law provided wives with some legal recourse by making a husband directly responsible to a merchant for the purchases made by his wife. Yet even this entitlement to pledge a husband’s credit faced stringed limits. Necessaries were so ambiguously defined that merchants were reluctant to risk extending credit to a wife for goods which might fall outside that class. Moreover, husbands were entitled to determine where necessaries should be purchased and could terminate a wife’s authority to pledge his credit by demonstrating that he had provided the necessaries or a sufficient allowance to obtain them. The law, in fact, was explicitly concerned with protecting husbands from the “mad” expenditures of “extravagant” wives.
Within marriage, in its eighteenth – and early-nineteenth-century form, coverture therefore implied enormous economic inequality. By law, all personal property or real estate a wife owned, or any income she earned outside of the household, belonged to her husband. So did her domestic and sexual services. In exchange, husbands were legally responsible for supporting their wives. In fact, any legally binding transaction conducted by the wife passed through her husband. Coverture’s legal implications, furthermore, deprived wives of most legal recourse against wrongs inflicted upon them by their husbands. (In some circumstances, however, coverture provided separated women with claims on support from their estranged husbands [Hartog2000: 125].)
Through legal and political struggle, however, American courts gradually chipped away at both aspects of coverture. First, husband and wife became increasingly capable of acting as legally independent agents, and second, within their marriages, wives gained greater economic autonomy. For instance, as it did for inventions by slaves, nineteenth-century patent law denied the husband—or master—the right to patent his wife’s invention (Kahn 1996; Kahn and Sokoloff 2004: 395). Mid-nineteenth-century married women’s property acts granted married women rights over the possessions they brought to the marriage or that they gained by inheritance. After the 1860s, a few state legislatures passed laws allowing women control over their earnings—so long as the income was obtained by labor outside of the household.
Linda Kerber (1998) has dramatically portrayed a series of legal and political struggles that produced changes in coverture. Kerber concentrates on legal relations between women and the American state. She shows, for example, how through conflicts over such matters as taxation, jury duty, and military service women acquired rights and obligations directly tying them to the state, rather than mediating all such rights and obligations through their husbands. The Nineteenth Amendment, granting women the vote, marked a major transformation in women’s legal status. To be sure, these changes occurred very slowly. Kerber locates two major challenges to coverture as late as the 1990s: demands for recognition of same-sex marriages and the Supreme Court’s Planned Parenthood decision of 1992. Both cases, Kerber observes, confirmed that marriage might confer legal rights on the spouses, but those rights then belonged to the individuals, not their partners. Once political rights no longer depended on marital status, coverture had virtually disappeared.
The 1990s culminated a series of changes that had being going on for several decades. As Hartog observes in his legal history of American marriage, “We have lived through a striking transition in marital law and marital behavior.. . including the obliteration of legal language that once established and defined distinctive marital identities and the apparent triumph of an egalitarian and contractual conception of marriage” (Hartog 2000: 3). Thus, coverture in the United States virtually disappeared as a legal doctrine and practice during the waning twentieth century. Its transformation and eventual abolition systematically altered the correspondences among media, transactions, and relations with respect to marriage.