Marriage, Coverture and Criminal Law in Eighteenth and Nineteenth-Century England
William Blackstone, writing in the second half of the eighteenth century, famously defined marriage as husband and wife becoming ‘one person at law’. Historians have since demonstrated the lack of practical implementation of this concept in eighteenth and nineteenth-century English marital law and wider society. Much of this work has tackled the extent to which the doctrine of coverture, which removed a wife’s ability to control property, was eschewed in private law, for example through the use of separate estate trusts. There have been fewer investigations into the impact of coverture in a criminal law setting. This paper examines a series of cases in which coverture was used as an informal defence in criminal proceedings in which a married woman was indicted for a crime relating to the sale of goods, or convicted of a crime in which the punishment was pecuniary. The extent to which husbands were held responsible for their wives’ criminal activity when the crime was one married women theoretically could not commit, and the extent to which husbands were responsible for fines bestowed upon wives who theoretically had no means to pay, will be discussed in relation to Blackstone’s characterisation of marriage. Studying coverture holistically, across private and public law, reveals the limits of the doctrine with greater clarity. Judicial attitudes point towards a similar disconnect between marriage law in theory and in practice as has been evidenced by scholars of the law concerning marital property in the early modern and modern period.
Emily Ireland is a Researcher on the Australian Research Council Discovery Project ‘A New History of Law in Post-Revolutionary England, 1689-1760’. Her PhD thesis, for which she was awarded a 2020 University of Adelaide Dean’s Commendation and Doctoral Research Medal, explored married women’s litigation in the eighteenth-century English Court of Chancery. She is the author of a growing number of publications on eighteenth and nineteenth-century women and the law, including ‘Rebutting the Presumption: Rethinking the Common Law Principle of Marital Coercion in Eighteenth-and Nineteenth-Century England’ (Journal of Legal History, 2019). She has also conducted research for the South Australian Law Reform Institute.