Extract from my essay, ‘Minerva’s favourite Sholar’: Penelope Aubin Reconsidered. The full article is available on the Research Articles section here.
Only widows and unmarried women over twenty one had an individual legal identity. The legal identity of
women under twenty one was vested in the father, that of a wife in her husband. Blackstone explains, ‘By marriage, the husband and wife are one person in law.’ Thus ‘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'(I,p.442). Since wives had no separate legal identity, injuries to the wife could be considered as injuries to the husband and legal action would be brought in both names. If the injury to the wife was severe and deprived the husband of her ‘company and assistance’, he could bring a separate legal action to obtain ‘satisfaction in damages'(III,p.140). There are clear parallels with the offence of beating a man’s servant so that he cannot ‘perform his work’, an injury based on ‘the property which the master has by his contract acquired in the labour of the servant'(pp.141-3); the implications for the marriage contract are significant.