The Lawful Path Journal
Vol. 3, #1
COVERTURE and the Courts
"Can a Husband Represent His Wife?"
by Gregory Allan
Copyright A.D. 2005, All Rights Reserved
This issue is inspired by a reader whose wife is having problems with a court. He writes, in part:
"My wife is being sued civilly for some credit card debt. ...the new Judge would not allow me to stand next to my wife or speak at all, saying that I am not a Party to the Action, so therefore [I] am not allowed beyond the gate separating the audience from the parties... So my question is:"
As luck would have it, I have some personal experience with this subject. Of all the people I know in the law-reform/study movement, I am the only one I know of who has successfully stood in place of his wife in a courtroom. I'll tell you how I did it.
A word of caution is in order for our women readers. As you peruse this report you may be tempted to think I am anti-woman, or that I somehow believe we should go back to the dark ages. This could not be further from the truth. The commonly accepted roles for women have changed much over the past hundred years. In some ways perhaps for the better; in others, perhaps not.
For the purpose of this report, what I believe doesn't matter one fig. Like it or not, what you believe won't matter either. It is a simple fact that when a class of people gain ground in one area, they nearly always lose ground in another. This report illustrates some of the protections which women have lost, and how those protections might be taken back, if the married couple so-chooses.
In my experience, and the combined experience of others, a simple statutory "grant of powers of attorney" form does not work to allow a non-attorney husband to represent his wife in court. The reasons should become clear as you read on. The only method I know of which works, is presented for you here.
Before I delve deeper into this issue, I'll list a few maxims which seem to support my reader's theory:
The principle my friend is thinking of, is called "coverture." Here's what Black's Law Dictionary (6th) says about it:
"Coverture. The condition or state of a married woman. Sometimes used elliptically to describe the legal disability which formerly existed at common law from a state of coverture whereby the wife could not own property free from the husband's claim or control. Such restrictions were removed by state Married Woman's Property Acts."
Hmmm. This definition makes it appear that the common law is abolished, and coverture is obsolete. It states that "restrictions were removed." Does that also mean that protections were dissolved?
I believe the answer is both yes, and no. Statutory government commonly grants "license," or special privilege, which supercedes the common law. Remember though, that "license" is defined as "permission from competent authority to do that which would otherwise be illegal, unlawful, a trespass, or a tort." In other words, government gives you permission to be a criminal.
1 Blackstone Commentaries (442) has this to say about coverture:
"By marriage, the husband and wife are one person in law, that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french a 'feme-covert,' ...and her condition during her marriage is called her coverture."
The common law placed restrictions upon women for their protection. A modern woman who is married by virtue of a State marriage license is presumed to have the benefit of these criminal statues which supercede common law. In other words, in the absense of any private contract to the contrary, the modern woman is stripped of all her commonlaw protections.
Covenants to the Rescue
Written contracts are a way for people to express their mutual understanding of an agreement in a lasting way. This helps remind the participants, who might have foggy memories over the years, of their obligations. It also is a way of declaring the terms of that agreement to others, such as judges.
Most people these days are either content with the state's definition of marriage, or are not aware of any difference. But some couples want more from a marriage than two years of rocky cohabitation, and a divorce followed by eighteen years of state-ordered child support. This is why any married couple who share beliefs and/or expectations which are greater than, or different than the terms of marriage set forth in state statutes, should enter into a private marriage contract.
The old common law principle of coverture was a recognition that the nuclear family is a system of government separate from state or federal governments. The various state statutes which set forth terms of (non private contract) marriage, are purposely intended to undermine the strength and effectiveness of these competing governments.
In the absence of a written contract, any judge will rightly assume the terms of a marriage agreement to be limited to whatever may be set forth in state statute. But if a written contract is correctly presented into evidence, a judge may be obligated to allow it.
What is to stop a married couple from entering into a private marriage contract, in which the wife places herself under her husband's protection in coverture?
Most modern American women will reject the notion of making themselves subservient to their husbands. They see it as taking a step backward; surrendering hard-won legal rights. Do they take the time to realize that every so-called "right" comes with an equal and opposite duty?
Under the old common law a husband could, and usually did, assume all responsibility for any crimes committed by his wife. If a debt was to be paid, even time served in prison, it was the husband who paid it. The wife stayed home to mind the house and raise the children.
Modern marriage statutes (absent private contract) are trilateral (three-party contracts). The state is the primary party, and the husband and wife each owe their primary duty to the state. In effect, the couple doesn't marry one another. They each marry the state, which places them together in a constructive trust.
We know that contracts which contain illegal terms can be declared void. But all other contracts are binding. Article 1, Section 10 of the United States Constitution states in part:
"No State shall... pass any... Law impairing the Obligation of Contracts..."
So the question arises, "Can the principles of coverture can be deemed to be illegal?" I believe not, although an argument can be made for either case.
For example, many states have a Dower Interest law, which insures that a wife owns a certain undivided percentage of all her husband's property. The terms of this law varies from state to state, but in most cases the wife is deemed to retain her dower interest, even if she explicitly deeds or releases that interest to her husband. It's hers, and she can't give it up. The only way she can divest herself of the property is to join with her husband in a deed granted to a third party.
However, this example calls the marriage statutes themselves into play, and pre-supposes the absence of a private marriage contract containing terms to the contrary. In contrast, my position (that the husband can and should be able to buy and sell property without his wife's signature) is supported by the following maxim:
"Every one may renounce or relinquish a right introduced for his own benefit." Coke on Magna Charta and Old Acts, 183; Wingate's Maxims of Law, p. 483; The People v. Van Rensselaer, 9 N.Y. 291, 333.
As to the sources of case law supporting each argument, atheists and secular humanists, have no higher authority than government to look to. But Christians recognize a higher authority. Fortunately, such higher authority is even recognized by the U.S. Supreme Court.
The following cite is paraphrased from scribblings I've carried around in my dayplanner for years, but should be helpful to anyone with reason to look for the actual cite:
"Religious Freedom: U.S. vs. Seeger 380 U.S. 163
Whenever I construct paperwork intended for the courts, I always try to keep the above priciples in mind.
Scriptural Rights and Duties
What does the Bible say about the proper relationship between husband and wife?
My Own Experience in Court
In 1997, my wife was served with a summons to appear in court on a civil matter.
As we have a private marriage contract which places her under my coverture, it was my duty to respond on her behalf.
Our Contract is a private matter between us, and we have no wish to disclose the terms of the full contract to any outside parties. However, it is in our mutual best-interest to disclose certain terms and conditions to others, from time to time.
So I drafted a declaration in affidavit form, to be signed by my wife, in which she gave notice of the existence of our private marriage contact, and quoted the terms which placed her under my coverture. Armed with this document, my Bible, and the other items which I would need to participate in the civil action, I walked into court in her stead. That's right, I appeared, and she did not.
When the case was called, I stood up and walked across the bar. I should mention here, that I had already met this judge on several occasions, and he knew me immediately upon sight. So the following paraphrased conversation should be instructive, if you're paying close attention.
The judge proceeded to order everything I had asked for, as though my wife had done the asking. His comment was made to save face, and to obscure from witnesses the fact that I had succeeded in my objective. He didn't actually lie, in that he did not allow me to represent my wife. He simply accepted, based on the evidence before him, that I was my wife.
It should be noted that a warrant was never issued against her for failure to appear, as would certainly have been the case if "she" had not appeared.
I've decided to make a declaration, similar to the one mentioned here, available for sale on our website. It contains all the substance of the one I used successfully as described above, but has been updated with the benefit of my study and experience over subsequent years. The package also includes a second document, which is necessary to make the first one "appear" in court, pursuant to rules of evidence. You can find it at this link: http://www.lawfulpath.com/cat/index.php?p=Catalog&i=0#coverture.
That's all for now. May God bless and keep you on the lawful path.
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(Isaiah 33:22) For the Lord is our judge, the Lord is our lawgiver, the Lord is our king; he will save us.
Copyright 1996, 2014, by Gregory Allan; All rights reserved.