24 May 2017
Kate Hunter is a final year Law PhD student in the Law School. Here she shares some of the research from her thesis.

It is often thought that a married woman in the long eighteenth century possessed little to no legal autonomy distinct from her husband. Certainly, the doctrine of coverture actively restricted married women’s contractual capacity. However, it is argued here that this restriction was circumvented in practice by the women themselves who contracted regardless. Additionally - and somewhat ironically – an element of autonomy was regained by utilising the marriage settlement itself, through the provision of pin money and the like. Examined through the lens of social history, it is clear that the common notion of a married woman being totally reliant on her husband just does not hold true.

Widow Blackacre in The Plain Dealer by William Wycherely observed that ‘matrimony to a woman is worse than excommunication in depriving her of the benefit of the law’. It is true that in the long eighteenth century, upon marriage a woman lost her legal autonomy and this was only regained should she outlive her spouse. Her status as a feme covert surrendered her contractual rights to be subsumed into those of her husband, but despite the legal consequences of coverture, in practice, wives were able to retain an element of independence through the provision of pin-money and, later, jointure. As well as this, it was commonplace for a woman to contract in her husband’s name, and indeed many of these contracts were entered into and executed without a problem, the issue came, of course, when the bill went unpaid or was disputed by a disgruntled husband who objected to his wife’s excessive spending. Manby v Scott established that a husband was only liable for those items contracted for by his wife which were necessary to her, such as food and clothing. These necessaries were to be determined according to the social standing of her husband, and for anything beyond this, the response of the law was to render such contracts voidable. This was no doubt much to the dismay of the trader with whom she had contracted, but it was reasoned by the courts that this was a risk that was borne by the tradesman when knowingly contracting with a wife in such a way. This rule even extended in Montague v Espinasse to contracts where the circumstances ought reasonably to have placed the tradesman on similar notice; here a bill of £83 for ‘diamond rings, necklaces and bracelets’ was deemed too extravagant to possible amount to necessaries and thus the contract was voidable.

The method of payment at this time was that goods would often be purchased on credit with the final bill becoming payable at the end of the month. With this in mind, it is easy to see why debts could accrue and indeed, for particularly profligate wives, it was not unknown for a husband to take out an advertisement in a local newspaper warning traders from contracting with his spouse. By placing the tradesman on notice, Etherington v Parrot ruled that the bill was not payable and thus the husband was not liable. Therefore although the doctrine of necessaries established a safeguard to protect against spurious spending, it was perfectly possible for a wife to contract for items beyond necessaries should the tradesman be willing. Thus, whilst coverture operated to restrict a married woman’s contractual autonomy, social practices countered this and restored, at least in practice, part of the contractual capacity that a woman lost upon marriage. 

This manipulation of coverture was not the only means by which married women obtained independence from their husbands. The provision of pin money by a husband to his wife was in addition to him shouldering the burden of her debts for necessaries, with this separate allocation being intended for her own personal use for entertainments and the like. Given that this payment ran counter to the legal position that upon marriage a woman’s property and assets were placed under the control of her husband, the concept of pin money was not received well by some commentators. The Spectator ran a rather scathing article in February 1711 condemning the practice as ‘furnishing [the wife] with arms’ against her husband by allowing her to possess a separate income which was ‘as unnatural as separate beds’. Even the courts deemed pin money a somewhat excessive provision, with Lord Brougham in Howard v Digby highlighting the absurdity in a husband being liable for the debts of his wife whilst also providing her with her own distinct income. When also taking into account jointure which settled money on a wife for her use after her husband’s death, it would seem that rather than a woman being wholly disadvantaged by marriage, she also stood to gain both throughout the union and as a widow. As a widow a woman regained her contractual capacity, and was thus free to use the money obtained from the marriage in whichever way she chose. Much like today, the mortality rate for men during the period was higher than that of women, and so it was most likely that a woman would outlive her husband anyway and be left with the assets attained from the marriage along with the ability to distribute these according to her own wishes. Ultimately, given these practices, the common conception of a married woman in the long eighteenth century as lacking independence - certainly from a contractual perspective - is not entirely true and means did exist which returned an element of capacity to wives.  

So perhaps it is time to reconsider how we view married women in this period, it is true that legal doctrine on the face of it restricted their contractual capacity but the social reality was to dictate otherwise.