Women Should Not Own Property?
In Defence of coverture!
Women should not be allowed to own Property
Owning property what does it mean
The layperson’s understanding of property ownership is normally overly simplistic and devoid of nuance. Lay people normally understand ownership of property to be the right to do as they would with it. Certainly, in England and other common law jurisdictions this is not the case. Ownership of property is quite complex, and it is much simpler to talk about ownership in the context of property rights. Ownership of property does not give owners the powers to do what they will with property they own. Owners are beholden to legal limitations such as the property rights of others if they exist. There are exceptions to this that are dependent on the type of property. Law prevents the use of specific types of property in specific ways. Pets cannot be sexually abused by their owners; this is a fair restriction on the property rights of the owner.
Ownership of property can be seen as the lawful exclusive possession of something subject to limitations with administrative responsibilities over it. Meaning the owner is responsible for fulfilling the obligations associated with the property1.
A property owner may own land subject to legal conditions and limitations, such as taxes equitable interests and contract rights. A landowner only owns the land for so long as he pays taxes for it. If he were to stop doing this, his land would be repossessed by the state. There is no such thing as complete ownership in practice, land can be compulsorily purchased or otherwise taken off the owner for whatever reason. Having a freehold of land is the closest one can be to owning land in absolute. The freehold of land means that the owner owns land until such time as he sells it, or the state chooses to take it2. The only true owner of property can be those who have the power to take it for themselves. Anybody could have their property rights increased or restricted by the state. This has always been the case. The Roman Republic regularly confiscated land to give to veterans. The armies of both Pompey and Caesar desired land in Italy following the end of their military service. This meant the confiscation of it from its previous owners3. Individuals can only have property rights to which ownership is just one. Other property rights such as beneficial interest in property is not necessarily overridden by ownership. In fact, in the case of trusts the beneficial interest overrides the legal ownership. Trustees are responsible for property for a set time this is tactically ownership. Trustees of money such as funds land managers and so on normally charge fees. This covers the administrative burden placed upon them by owning property in law. Trust property is normally set up to protect the interests of the owner in equity. This could be because they are underage or in the case of pensioners, they may not have the expertise to invest wisely.
How people owned property historically
The manner to which property would be owned would depend on the time and place. Specifically, whether money was in widespread use would be a key factor in how property is owned. Money could be in paper, gold, coins, or an electronic format and different types of money can lead to different forms of property ownership. This is because how static the money supply is would affect the use of credit and thus how people and property interact with one another. In societies where money is widely used, property ownership often takes place by way of a simple transaction between equal individuals. Gold or another store of value will be exchanged for land or another form of goods. These types of transactions normally do not impose obligations on persons outside of the transaction.
Whereas in societies where the use of money is less widespread property ownership will be the result of future obligations such as Oaths. In these societies money of a type would still be used but mostly for outgroup merchants however, such people would be unable to use future obligations as means of exchange. As merchants would frequently move location and belong to a different socio-ethnic groups, land ownership based on oaths is fundamentally hierarchical. Peasants are lower on the great chain of being than their landlord, thus giving the landlord positive obligations for their welfare. Landowners would allow their peasants to farm the land in return for service. This form of property ownership which is commonly known as feudalism existed in ancient Greece prior to the fifth century BC, ancient China and Japan. This form of ownership normally exists in closed societies without free trade. Free trade by its free nature does not require good faith, so future obligations cannot be used as a unit of exchange. Property ownership acquired by future obligations can only work if the populations remain static, allowing there to be deep sentimental bonds between parties. The reason that males owned the property arose from this system is that for the most part men were better placed to fulfil the future obligations tied to the land. Normally landownership was tied to military service as well as payment of in the form of agricultural goods4. This ownership structure would apply to peasants and Lords alike. Merchant classes that were often foreign would have a different system for property ownership.
Oath based property ownership becomes impossible with the rise of the merchant class. The industrial revolution led to urbanisation and this in turn led to most of the population that lived in cities being more interchangeable. Thus, urbanisation led to high trust communities beginning to shrink. This created the need for a different form of property ownership; for example, social bonds which exist within a village for those inhabitants who have lived there for generations. Strong bonds are essential for oath-based property ownership. Without these bonds oaths can be freely broken with little consequence to the oath breaker. Urbanisation required a universal currency to allow trade to take place.
The logistical issues around carrying large amounts of coinage and the risk of fraud made buyer to seller credit the most common form of exchange5. Urbanisation meant credit could not be given out on trust alone, so banks and the courts had a greater role in transactions. Property ownership became more legalistic therefore no longer requiring good faith between parties which meant that consequences for bankruptcy and late payments became more common. Penalties such as the incarceration in a debtors' prison were common remedies for unpaid debts. From this point onwards the reason for coverture changed. It would not be true to say that women lacked the capacity to own property because they were unable to fulfil the obligations for the ownership of property.
Instead, the exclusion of married women from property ownership seemed to be care based. Any society needs stable families for the society to continue. Coverture ensured that married women could not go to debtors' prison thus protecting the caring role of mothers. Although women could not own property in the strict sense and did not have property rights independent of their husband, this did not mean that their husbands were free to dispose of their property on a whim.
Historically in the Christian world marriage has existed as the joining of two people together so there is no wonder that the married couple and the family would have one legal identity. Men would have greater legal power and responsibility over their wives. The reason for the continued use of coverture seems to be a compromise between the liberal individualistic view of humanity and the older more collectivist view. Coverture was an attempt to allow for greater market participation whilst also protecting the interests of the family.
Is it true to say women could not own property.
In the legalistic sense it is true to say that prior to the Married Women’s Property Act6, married women did not have any property rights independent of their husband. Although this does not necessarily mean that they had no rights in relation to the property of their husband. It is often argued that coverture made women and children the slaves of their husband and father7. Although one can understand why this argument would be made it is not a fair argument. The concept of equal rights is historically new, only really arising from the Enlightenment. Prior to this revolution of ideas care systems have been the historic norm with each cast having different rights and obligations. Different casts being awarded different freedoms and obligations does not make them slaves. Historically freedom has been understood to mean different things to different people. A classical liberal understanding of freedom would be freedom from the state and freedom to do as one pleases with respect to property rights and not harming others8. Whereas historically in most places and times the state was not able to be a significant intrusion into people’s lives. Technological limitations have meant that the scope of intrusion by the state into the private lives of its subjects has been limited to the elites.
Most civilisations realise that absolute freedom is an impossibility. Economic freedom will enslave man with vice whereas economic restrictions will allow man to be spiritually free9.
Most religions from Christianity to Buddhism recognise this fact and try to mitigate it with religious teachings. The Christian concept of sin is seen as a form of enslavement that creates distance between man and God. Buddhists have similar concepts that perform a similar function in relation to the differences between Buddhism and Christianity10. The laws of most civilisations try and balance the issue of freedom and often do this by a caste system. Different castes are awarded different types of freedom because those castes are seen as better able to enjoy different types of freedom.
Coverture in the 18th and 19th century can be seen as a way of allowing for freedom of contract whilst protecting the interests of the family. Coverture would normally mean that the property of wealthy women would be protected by way of a trust11. In practice this would mean that the husband’s property to be subject to the market with little legal protection. Husbands would have the freedom to contract with their own property some of which may have come from their wives, depending on the marital settlement. But this freedom was not without consequences unless husbands saw fit to create a trust for their own financial protection. Husbands could gamble away their property on the market or card table risking debtors' prison if unable to pay debts. Wives would be freely able to do the same because of agency rights12. However, their husbands would suffer most of the consequences13. Both rich and poor wives were the implied agents of their husband. This meant that they could freely spend their husband’s money as they pleased, unless their implied agency was withdrawn by the husband14. However, under such circumstances husbands were required to give a suitable living allowance to the wife that is reflective of the means of the husband.
In practice wealthy married women did not technically have property rights, although for the most part they could freely access their own property and that of their husband. Subject to a few exceptions wives could not freely dispose of their own or their husband’s property. Such a decision would often require the consent of both parties15. Comparing this to modern marital law such consent is needed for similar transactions of jointly owned property such as cars and houses. Married women at this time still had a high degree of economic freedom even though they did not have property rights. The political impact of wealthy women social clubs such as Society for Female Artists and women-only Kensington Society are an example of the political influence that wives had without owning property.
Most poor women were less well protected by the law as they could not have a trust set up for the protection of their property16. However, this did not make them helpless! The work and technological constraints of men during this era meant they would have very little time to do general household purchasing or engage in the homely activities. Men at this time would be dependent on female family members to eat. Prior to the 1920s children would not leave home until they were married, to do otherwise would be unworkable. Working full-time and completing essential homely duties such as cooking, and childcare would be improbable. Historically both men and women have depended on one another to survive.
Women would work among themselves to do all activities related to the children, food and the home. This gave them extra-legal powers over the husband because if your wife was annoyed you may starve. Agency rights of poorer women allowed them to collect their husbands' wages. Such wages would be put towards household and care-based expenses although in theory men oversaw finances and home life. This in fact was done by women. This is not to say that women were not unfairly treated or vulnerable to poor behaviour by the husbands. It just was not the case that coverture made women helpless. The agency rights meant that all married women could behave like equal partners in different roles even if they were not. Coverture seemed to negatively impact richer middle-class women more than the aristocratic and poorer women.
Aristocrats normally have their financial freedom curtailed by trusts and other legal instruments to stop them bankrupting the family. Such bankruptcies were not uncommon but aristocratic families learnt the importance of trust for keeping wealth in the family. Whereas poor women through their agency rights could access all their and their husband's property. Wealthy middle-class women that were of a more intellectual disposition would suffer the most through coverture because it would be very difficult for these women to start a business independently of the husband. That said, many of the issues that female intellectuals struggled with were not directly because of coverture. Medical, legal and artistic professions normally barred women from entering. This led to these women starting their own social clubs and organisations which became training grounds for political feminism.
Does this have any benefits for society or women
Coverture at the time had a societal function that was not the result of an organised conspiracy of men deciding to oppress women. Oath based economics allowed property to be owned without the widespread use of money during the Middle Ages. In the early modern period, freedom of contract at a time when money was scarce required there to be a credit-based unit of exchange.
Today the value of money is so debased that it is normal for huge debts to be written off without lenders going out of business. This is because the money supply is infinitely expanding because there is not a gold standard grounding the money supply. Instead, central banks print money leading to rocketing inflation rates. Such money only retains a degree of value for so long as the value is recognised by rest of the world. The US dollar is only the global reserve currency because it is backed up by the US military. If a country were to try and depart from the dollar as its reserve currency it will either be bombed into the Middle Ages or must backtrack on its plans. The hedge money of the US dollar has been consistently declining for some time now. The recent Russia Ukraine conflict has led to many countries not using the dollars to purchase oil and other commodities on international markets. This will mean over time that the ability of the US government to create more dollars to pay for public services, pensions and so on will rapidly decrease. Once this happens there will need to be a money supply that is in line with goods to avoid hyperinflation.
When the money supply is commodity-based or in line with the production of goods the lending of money is high-risk and thus the cost of borrowing money is higher. Historically money is not lent without security. So, when conventional security is not available loans are taken against the person. This meant that when the borrower was unable to pay back the loan the borrower would be sold into slavery. In England this existed in the form of debtor's prison, borrowers would work to pay off the debt. If a debtor owed a hundred shillings and their labour could be sold for a shilling a week their time in debtors' prison would expire in about 2 to 3 years depending on the interest rate17. In ancient Athens prior to the fifth century loans were taken out against the person. When the lender was unable to be paid the borrower and their family would be sold into slavery by the lender to recover the debt. In ancient Rome women could own property and take out loans, if they failed to repay it, they could be sold into slavery to recover the debt. Towards the latter half of the Roman Empire this practice was quite common18. The Roman Empire collapsed because of factors that were related to a decrease in fertility rates. It would seem reasonable to assume that these lending practices were significant factors in that problem. Coverture was a way of ensuring that capital could be mobile, ensuring that businesses could be financed, and material prosperity created. More importantly the practice of the coverture in the early modern period protected the Christian moral order from economic liberalism. Coverture tried to ensure that people were recognised as individuals within families and not as atomised economic units to be enslaved by vice. Even so the increased urbanisation led to an increase in depraved vices such as alcoholism and prostitution. That said protecting the family unit from the worst excesses of the market served both the material and moral function.
Coverture and the protection it gave married women was argued to be a hinderance on the market and its ability to work fairly. This was because women were not personally responsible for the contracts they made and thus, could not be held accountable. Wives could make contracts after their husband had clearly restricted the agency rights. Such contracts were unenforceable and would leave the seller with little to no contractual rights.
Protection of the vulnerable has made debts difficult to recover because assets can be protected from lenders based on the equitable rights that a wife, child or other might have. It was not uncommon for mortgage lenders to be unable to recover a property because the wife and or children had an overriding interest in the property giving them the legal right to occupy it for such time as they needed to. The last of these cases were heard in the 1970s.
Even after coverture ended mortgage lenders must still make a reasonable effort to do due diligence into the equitable rights that others may have to a property to stop the equitable rights of others from hindering the recovery of security.
Although coverture was not a great deal for married women it was far from a form of slavery that Sarar Chaperone described it as19. The implied agency and equitable rights women had ensured that they were generally not powerless whilst protecting them and the family from debtors' prison. Protecting families is a moral as well as a material good. The Married Women’s Property Act was only enabled by the ending of debtor's prison in 1869. There was a significant crossover between the advocates of the married women’s property act and the abolitionists of debtor's prison.
What do I think?
The economic and social conditions which made the early form of coverture necessary are no longer present, same is true for the later form of coverture. It would be hard to convince a reasonable person that coverture would be the in the best interests of anybody today for so long as unsecure credit is easily available there is no logical reason for coverture.
Recent geopolitical events that form part of the decline of Western power will change the monetary system and thus will change the system of property ownership. When it becomes impossible for the money supply to be expanded to cover the costs of poor financial decisions then loans based on personal security may become necessary.
If such a system is recreated that resembles the Greco-Roman form this will likely have a negative impact on the fertility rate as well as a moral decline that arises from the material focus of the society. When societies are focused on material prosperity this focus leads to the neglect of higher moral values, which, in the material sense leads to depraved vices becoming more widespread.
Whereas, if a trust-based form of property ownership is recreated it will be the result of the collapse of universally workable systems of exchange. This may be the most suitable form of property ownership if the decline of Western financial power leads to the collapse of universal units of exchange. A coverture-based system may become necessary for the continuation of civilisation if the collapse of the currency leads to a technological collapse. The freedom to own property is only appealing for so long as the obligations tied to that property remained low and outside of land, easements, covenants and taxes. Land ownership comes with considerably less obligations than was the historical norm. Wise people will be reluctant to acquire property that comes with excessive obligations.
The reason The Bugatti Veyron and Mercedes McLaren did not appreciate in value as was expected was because ownership of those cars meant taking on excessive maintenance costs as a condition of insurance. This meant that they were not a suitable investment car, reducing the market to those wealthy enough to treat such cars as toys and causing them to depreciate in the value. The same is true for owning property if ownership of that property comes with service obligations or the risk of debtor's prison. If the obligations tied to property ownership significantly rise either in financial or other material terms, then property ownership will be unsuitable for most people. People are generally amenable to the idea that their freedom to do must be limited for their own welfare.
Women, especially married women are very clever creatures and even when it would on the face of it seem that they have very little power, they in fact do. Preventing women from owning property while married allows women to cleverly use their power and influence in the shadows. This power and influence seem to work better in more patriarchal societies; the Royal Harem of the Ottoman and other Empires were able to wield vast amounts of power through their sons and husbands20. This is a problem to which patriarchy has failed to find a solution for because feminine influence often gives power without responsibility. Many of the Emperors of the late Roman Empire were able to take power because of the clever schemes of power-hungry mothers despite them being utterly unsuitable for the role of Emperor. When such Emperors were inevitably overthrown often their mothers would escape the worst of punishments. Emperor Nero depended on the support of his mother Agrippina the Younger who was a significant powerbroker at the time. Unlike others Agrippina was brutally murdered by her son in 59 AD.
The great chain of being as it is conventionally understood does a poor job of considering immaterial soft power. Any future coverture system of ownership that arises because of changes to the financial system should seek to balance soft feminine power as well as hard male power. Not doing this would lead to the material sex-based interests hindering the rebirth of civilisation.
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