The Lawful Path Journal<\/p>\n
http:\/\/www.lawfulpath.com<\/a><\/p>\n Vol. 3, #1<\/p>\n COVERTURE and the Courts<\/p>\n “Can a Husband Represent His Wife?”<\/p>\n by Gregory Allan<\/p>\n Copyright A.D. 2005, All Rights Reserved<\/p>\n This issue is inspired by a reader whose wife is having problems with a court.<\/p>\n He writes, in part:<\/p>\n “My wife is being sued civilly for some credit card debt. …the new Judge would<\/p>\n not allow me to stand next to my wife or speak at all, saying that I am not a<\/p>\n Party to the Action, so therefore (I) am not allowed beyond the gate separating<\/p>\n the audience from the parties… So my question is:”<\/p>\n “Isn’t it a maxim of law that a husband has the right to stand beside, and even<\/p>\n speak for, his wife in court?”<\/p>\n As luck would have it, I have some personal experience with this subject. Of all<\/p>\n the people I know in the law-reform\/study movement, I am the only one I know of<\/p>\n who has successfully stood in place of his wife in a courtroom. I’ll tell you<\/p>\n how I did it.<\/p>\n A word of caution is in order for our women readers. As you peruse this report<\/p>\n you may be tempted to think I am anti-woman, or that I somehow believe we should<\/p>\n go back to the dark ages. This could not be further from the truth. The commonly<\/p>\n accepted roles for women have changed much over the past hundred years. In some<\/p>\n ways perhaps for the better; in others, perhaps not.<\/p>\n For the purpose of this report, what I believe doesn’t matter one fig. Like it<\/p>\n or not, what you believe won’t matter either. It is a simple fact that when a<\/p>\n class of people gain ground in one area, they nearly always lose ground in<\/p>\n another. This report illustrates some of the protections which women have lost,<\/p>\n and how those protections might be taken back, if the married couple so-chooses.<\/p>\n In my experience, and the combined experience of others, a simple statutory<\/p>\n “grant of powers of attorney” form does not work to allow a non-attorney husband<\/p>\n to represent his wife in court. The reasons should become clear as you read on.<\/p>\n The only method I know of which works, is presented for you here.<\/p>\n Maxims<\/p>\n Before I delve deeper into this issue, I’ll list a few maxims which seem to<\/p>\n support my reader’s theory:<\/p>\n “A wife follows the domicile of her husband.” Trayner, Latin Legal Maxims and<\/p>\n Phrases, etc.<\/p>\n “Husband and wife are considered one person (as one flesh and blood) in law.”<\/p>\n Coke on Littleton, 112; Jenkins’ Eight Centuries of Reports, English Exchequer.<\/p>\n “A wife is not her own mistress, but is under the power of her husband.” Coke’s<\/p>\n Institutes, 5-108<\/p>\n “All things which are the wife’s are the husband’s.” Bracton, de Legibus et<\/p>\n Consuetudinibus Angliae; 2 Kent’s Commentaries on American Law.<\/p>\n “Although the property may be the wife’s, the husband is the keeper of it, since<\/p>\n he is the head of the wife.” Coke on Littleton, 112.<\/p>\n Coverture<\/p>\n The principle my friend is thinking of, is called “coverture.” Here’s what<\/p>\n Black’s Law Dictionary (6th) says about it:<\/p>\n “Coverture. The condition or state of a married woman. Sometimes used<\/p>\n elliptically to describe the legal disability which formerly existed at common<\/p>\n law from a state of coverture whereby the wife could not own property free from<\/p>\n the husband’s claim or control. Such restrictions were removed by state Married<\/p>\n Woman’s Property Acts.”<\/p>\n Hmmm. This definition makes it appear that the common law is abolished, and<\/p>\n coverture is obsolete. It states that “restrictions were removed.” Does that<\/p>\n also mean that protections were dissolved?<\/p>\n I believe the answer is both yes, and no. Statutory government commonly grants<\/p>\n “license,” or special privilege, which supercedes the common law. Remember<\/p>\n though, that “license” is defined as “permission from competent authority to do<\/p>\n that which would otherwise be illegal, unlawful, a trespass, or a tort.” In<\/p>\n other words, government gives you permission to be a criminal.<\/p>\n 1 Blackstone Commentaries (442) has this to say about coverture:<\/p>\n “By marriage, the husband and wife are one person in law, that is, the very<\/p>\n being or legal existence of the woman is suspended during the marriage, or at<\/p>\n least is incorporated and consolidated into that of the husband: under whose<\/p>\n wing, protection, and cover, she performs every thing; and is therefore called<\/p>\n in our law-french a ‘feme-covert,’ …and her condition during her marriage is<\/p>\n called her coverture.”<\/p>\n The common law placed restrictions upon women for their protection. A modern<\/p>\n woman who is married by virtue of a State marriage license is presumed to have<\/p>\n the benefit of these criminal statues which supercede common law. In other<\/p>\n words, in the absense of any private contract to the contrary, the modern woman<\/p>\n is stripped of all her commonlaw protections.<\/p>\n Covenants to the Rescue<\/p>\n Written contracts are a way for people to express their mutual understanding of<\/p>\n an agreement in a lasting way. This helps remind the participants, who might<\/p>\n have foggy memories over the years, of their obligations. It also is a way of<\/p>\n declaring the terms of that agreement to others, such as judges.<\/p>\n Most people these days are either content with the state’s definition of<\/p>\n marriage, or are not aware of any difference. But some couples want more from a<\/p>\n marriage than two years of rocky cohabitation, and a divorce followed by<\/p>\n eighteen years of state-ordered child support. This is why any married couple<\/p>\n who share beliefs and\/or expectations which are greater than, or different than<\/p>\n the terms of marriage set forth in state statutes, should enter into a private<\/p>\n marriage contract.<\/p>\n The old common law principle of coverture was a recognition that the nuclear<\/span><\/strong><\/p>\n family is a system of government separate from state or federal governments. The<\/span><\/strong><\/p>\n various state statutes which set forth terms of (non private contract) marriage,<\/span><\/strong><\/p>\n are purposely intended to undermine the strength and effectiveness of these<\/span><\/strong><\/p>\n competing governments<\/span><\/strong>.<\/p>\n In the absence of a written contract, any judge will rightly assume the terms of<\/p>\n a marriage agreement to be limited to whatever may be set forth in state<\/p>\n statute. But if a written contract is correctly presented into evidence, a judge<\/p>\n may be obligated to allow it.<\/p>\n What is to stop a married couple from entering into a private marriage contract,<\/p>\n in which the wife places herself under her husband’s protection in coverture?<\/p>\n Most modern American women will reject the notion of making themselves<\/p>\n subservient to their husbands. They see it as taking a step backward;<\/p>\n surrendering hard-won legal rights. Do they take the time to realize that every<\/p>\n so-called “right” comes with an equal and opposite duty?<\/p>\n Under the old common law a husband could, and usually did, assume all<\/p>\n responsibility for any crimes committed by his wife. If a debt was to be paid,<\/p>\n even time served in prison, it was the husband who paid it. The wife stayed home<\/p>\n to mind the house and raise the children.<\/p>\n Modern marriage statutes (absent private contract) are trilateral (three-party<\/p>\n contracts). The state is the primary party, and the husband and wife each owe<\/p>\n their primary duty to the state. In effect, the couple doesn’t marry one<\/p>\n another. They each marry the state, which places them together in a constructive<\/p>\n trust.<\/p>\n We know that contracts which contain illegal terms can be declared void. But all<\/p>\n other contracts are binding. Article 1, Section 10 of the United States<\/p>\n Constitution states in part:<\/p>\n “No State shall… pass any… Law impairing the Obligation of Contracts…”<\/p>\n So the question arises, “Can the principles of coverture can be deemed to be<\/p>\n illegal?” I believe not, although an argument can be made for either case.<\/p>\n For example, many states have a Dower Interest law, which insures that a wife<\/p>\n owns a certain undivided percentage of all her husband’s property. The terms of<\/p>\n this law varies from state to state, but in most cases the wife is deemed to<\/p>\n retain her dower interest, even if she explicitly deeds or releases that<\/p>\n interest to her husband. It’s hers, and she can’t give it up. The only way she<\/p>\n can divest herself of the property is to join with her husband in a deed granted<\/p>\n to a third party.<\/p>\n However, this example calls the marriage statutes themselves into play, and<\/p>\n pre-supposes the absence of a private marriage contract containing terms to the<\/p>\n contrary. In contrast, my position (that the husband can and should be able to<\/p>\n buy and sell property without his wife’s signature) is supported by the<\/p>\n following maxim:<\/p>\n “Every one may renounce or relinquish a right introduced for his own benefit.”<\/p>\n Coke on Magna Charta and Old Acts, 183; Wingate’s Maxims of Law, p. 483; The<\/p>\n People v. Van Rensselaer, 9 N.Y. 291, 333.<\/p>\n As to the sources of case law supporting each argument, atheists and secular<\/p>\n humanists, have no higher authority than government to look to. But Christians<\/p>\n recognize a higher authority. Fortunately, such higher authority is even<\/p>\n recognized by the U.S. Supreme Court.<\/p>\n The following cite is paraphrased from scribblings I’ve carried around in my<\/p>\n dayplanner for years, but should be helpful to anyone with reason to look for<\/p>\n the actual cite:<\/p>\n “Religious Freedom: U.S. vs. Seeger 380 U.S. 163<\/p>\n 5 Indicia for mandatory consideration; all five must be true:<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Religious Conscience – Belief in God<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Beliefs are truly and sincerely held<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Beliefs make up individual identity<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Growing out of religious training and belief<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Based upon a duty: “I have no choice.”<\/p>\n Cannot be:<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Political<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Sociological<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Philosophical<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Economic<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Personal Moral Code”<\/p>\n Whenever I construct paperwork intended for the courts, I always try to keep the<\/p>\n above priciples in mind.<\/p>\n Scriptural Rights and Duties<\/p>\n What does the Bible say about the proper relationship between husband and wife?<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Husband and wife are regarded as one flesh. Gen. 2:23-24; Matt. 19:5; Mark<\/p>\n 10:8; Eph. 5:31.<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Marriage bonds are of God, and not to be put asunder by any man. Matt. 19:6;<\/p>\n mark 10:9.<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Man is not independent of woman, nor is woman independent of man. 1 Cor.<\/p>\n 7:4; 1 Cor. 11:11.<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Husbands are to have authority over their wives. Gen. 3:16; 1 Cor. 11:3,<\/p>\n 7-9; Eph. 5:23.<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Husband to provide for the family. 1 Tim. 5:8.<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Wives are to obey their husband. 1 Cor. 14:34; Titus 2:5.<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Wives to be in subjection to their husbands. Gen. 3:16; Eph. 5:22, 24; Col.<\/p>\n 3:18; 1 Pet. 3:1, 5-6.<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 Wife not to usurp authority over the man. 1 Tim. 2:12; Titus 2:5.<\/p>\n \u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 The wife is not to raise questions in the church but to ask through her<\/p>\n husband. 1 Cor. 14:34<\/p>\n (Compilation taken from A Handbook of Bible Law, by Charles A. Weisman)<\/p>\n My Own Experience in Court<\/p>\n In 1997, my wife was served with a summons to appear in court on a civil matter.<\/p>\n As we have a private marriage contract which places her under my coverture, it<\/p>\n was my duty to respond on her behalf. Our Contract is a private matter between<\/p>\n us, and we have no wish to disclose the terms of the full contract to any<\/p>\n outside parties. However, it is in our mutual best-interest to disclose certain<\/p>\n terms and conditions to others, from time to time.<\/p>\n So I drafted a declaration in affidavit form, to be signed by my wife, in which<\/p>\n she gave notice of the existence of our private marriage contact, and quoted the<\/p>\n terms which placed her under my coverture. Armed with this document, my Bible,<\/p>\n and the other items which I would need to participate in the civil action, I<\/p>\n walked into court in her stead. That’s right, I appeared, and she did not.<\/p>\n When the case was called, I stood up and walked across the bar. I should mention<\/p>\n here, that I had already met this judge on several occasions, and he knew me<\/p>\n immediately upon sight. So the following paraphrased conversation should be<\/p>\n instructive, if you’re paying close attention.<\/p>\n Judge:\u00c2\u00a0 “Who are you?”<\/p>\n Me:\u00c2\u00a0 “I am here with regard to this matter.”<\/p>\n Judge:\u00c2\u00a0 “Are you a party to this matter?”<\/p>\n Me:\u00c2\u00a0 “Yes, sir.”<\/p>\n Judge:\u00c2\u00a0 “What is your name?”<\/p>\n Me:\u00c2\u00a0 “For purposes of this hearing, my name is (my wife’s name).”<\/p>\n I have to break here long enough to say that the judge’s expression was<\/p>\n priceless. But even funnier, was the expression on the face of the court<\/p>\n reporter. Court reporters, in my experience, never show any emotion, or even<\/p>\n look up from their work to view the proceedings. This one stopped typing, and<\/p>\n turned completely toward me with an expression so odd I can’t even describe it.<\/p>\n The judge recovered his composure after a few seconds, and continued:<\/p>\n Judge:\u00c2\u00a0 “Do you have any identification?”<\/p>\n Me:\u00c2\u00a0 “Yes, sir.” (Whereupon I held up the declaration I’d previously prepared.)<\/p>\n Judge:\u00c2\u00a0 “Hand it to the bailiff please.” (The bailiff gave the declaration to<\/p>\n the judge, and he studied it for several minutes.)<\/p>\n Judge:\u00c2\u00a0 “I cannot allow you to represent your wife.”<\/p>\n Me:\u00c2\u00a0 “Sir, it is not my intention to represent my wife.”<\/p>\n Judge:\u00c2\u00a0 “Then why are you here?”<\/p>\n Me:\u00c2\u00a0 “For purposes of this hearing, I am my wife.”<\/p>\n Judge:\u00c2\u00a0 (after a long pause) “Take a seat over there (points to the table where<\/p>\n my wife would have been directed to sit). I’ll hear from the other party’s<\/p>\n attorney first, and then you’ll be allowed to speak.”<\/p>\n The opposing attorney had her say (interesting, in this case, that the attorney<\/p>\n was a woman).<\/p>\n Judge:\u00c2\u00a0 (to me) “Do you have anything to say?”<\/p>\n Me:\u00c2\u00a0 “Yes, sir.”\u00c2\u00a0 I proceeded to present my case, uninterrupted. When I was<\/p>\n finished, the judge said:<\/p>\n Judge:\u00c2\u00a0 “I have exercised my discretion to allow you to speak today, although I<\/p>\n cannot allow you to represent your wife. In the interest of equity, my ruling is<\/p>\n as follows…”<\/p>\n The judge proceeded to order everything I had asked for, as though my wife had<\/p>\n done the asking. His comment was made to save face, and to obscure from<\/p>\n witnesses the fact that I had succeeded in my objective. He didn’t actually lie,<\/p>\n in that he did not allow me to represent my wife. He simply accepted, based on<\/p>\n the evidence before him, that I was my wife.<\/p>\n It should be noted that a warrant was never issued against her for failure to<\/p>\n appear, as would certainly have been the case if “she” had not appeared.<\/p>\n I’ve decided to make a declaration, similar to the one mentioned here, available<\/p>\n for sale on our website. It contains all the substance of the one I used<\/p>\n successfully as described above, but has been updated with the benefit of my<\/p>\n study and experience over subsequent years. The package also includes a second<\/p>\n document, which is necessary to make the first one “appear” in court, pursuant<\/p>\n to rules of evidence. You can find it at this link:<\/p>\n http:\/\/www.lawfulpath.com\/cat\/#coverture<\/a>.<\/p>\n That’s all for now. May God bless and keep you on the lawful path.<\/p>\n –Gregory.<\/p>\n ——————————————————————————<\/p>\n If you received this newsletter from a friend, and wish to subscribe, please<\/p>\n visit our front page, and enter your email in the subscribe box.<\/p>\n http:\/\/www.lawfulpath.com<\/a>.<\/p>\n ——————————————————————————–<\/p>\n (Isaiah 33:22) For the Lord is our judge, the Lord is our lawgiver, the Lord is<\/p>\n our king; he will save us.<\/p>\n ========================================<\/p>\n The Lawful Path\u00c2\u00a0\u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 -\u00c2\u00a0\u00c2\u00a0\u00c2\u00a0\u00c2\u00a0 http:\/\/lawfulpath.com<\/a><\/p>\n —<\/p>\n No virus found in this outgoing message.<\/p>\n Checked by AVG Anti-Virus.<\/p>\n Version: 7.0.323 \/ Virus Database: 267.7.8\/22 – Release Date: 6\/17\/05<\/p>\n","protected":false},"excerpt":{"rendered":" The Lawful Path Journal http:\/\/www.lawfulpath.com 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 … Continue reading