Crime and Punishment in American History - Lawrence M. Friedman [137]
The doctrine of coverture, like many others, was English in origin and respectably old. The treatise writers felt that it was part of American law as well. The case law talks about it, and so do the scholars, well into the nineteenth century. Joel Bishop treated it seriously in 1858: the “feme covert” (married woman) is, he wrote, “under certain obligations of obedience, affection, and confidence” toward her husband. In return for this, the law “allows her this indulgence, that, if through constraint of his will she carries her duty of obedience to the excess of doing unlawful acts, she shall not suffer for them criminally.”12
Very few reported cases actually seem to turn on the doctrine. Was it ever part of the living law? One careful study of colonial Pennsylvania turned up precious little evidence that courts took it seriously. In Pennsylvania, at least, a “woman seemed almost never to be the recipient of leniency because of her alleged legal subservience to her mate.”13 The doctrine was codified in a few states in the nineteenth century.14 But most likely there was not much enthusiasm for applying it in practice.
Sally Freel was convicted of murder in the second degree in Arkansas in 1860. She had (allegedly) aided and abetted her husband in the killing. In her appeal she invoked the doctrine of coverture. An Arkansas statute excused married women “acting under the threats, commands or coercion of their husbands.” But this did not save her. Upholding her conviction, the Arkansas court said that “Marriage does not deprive the wife of the legal capacity of committing crime,” and “the mere presence of her husband does not excuse her.”15 The doctrine was a two-edged sword. In Mulvey v. State16 James Mulvey was convicted of selling liquor without a license. Mulvey was a policeman; his wife owned a grocery store in Mobile. Two men went into the store and asked for whiskey. Mulvey “directed his wife, who was then behind the counter,” to give the men what they wanted. They drank and paid twenty cents. The court upheld Mulvey’s conviction. “As a general principle, when the wife acts under the coercion of the husband . . . she is not responsible.... Criminally, she is not guilty.” Mulvey, “by his conduct . . . made his wife’s act his own.”as
By mid-century probably, and certainly by the century’s end, the doctrine was crumbling to dust. Men and women stood equal in the eyes of the criminal law. Subordination of wives was not a legal dogma anymore. Signs of this change had been visible in earlier case law. In 1854 in Pennsylvania, a woman named Samantha Hutchinson was indicted “as a common scold.” She was convicted, but the appellate court threw the case out. How could there be behavior, the court wondered, that was criminal “when acted by a woman, and innocent and lawful when acted by a man”? In the age of “barbarism” women were regarded “as the slave and not the companion of man.” That was the age “when women were burnt as witches, and men had their ears nailed to a pillory.” Under “Christian civilization” women were entitled to “equality of right and consideration.”18at
The Woman Victim
Whatever this Pennsylvania judge may have thought, and however the formal law put it, the “companion of man” was very far from equality with her companion in actual fact. Women were, for one thing, disproportionately victimized, as we have said. Men raped, abused, and beat thousands of women. Domestic violence was an everyday matter, and overwhelmingly it ran in one direction, that is, from man to woman, not the other way around. The formal law, of course, condemned brutality toward women, although its attitude toward wife-beating, as we shall see, was a shade ambivalent. Rape was a felony, and penal codes took it very, very seriously. In many states it carried that dread sign of seriousness, the