LawJournalVolume11


Brandeis University Law Journal 2023-2024, Volume 11

Coverture: For the Benefit of All Man[kind]

Audrey Kiarsis139

Coverture was a central facet of 18th and 19th-century
jurisprudence and legal thinking. Coverture stipulated that
upon entering into a marriage contract, the legal identity of a
wife would be entirely subsumed by that of her husband. At a
time when the courts, both state and federal, often functioned
as agents of marginalization, coverture was presented as a
system intended to protect and provide for the very women it
legally incapacitated. This paper examines the motivations
behind coverture, how it perpetuated a patriarchal society
devoid of female socio-political mobility, and its practical
consequences in legal precedent and doctrine.

I. Introduction

William Blackstone writes in his 1769 Commentaries on the
Laws of England:

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 said to be {...} under the
protection and influence of her husband {...}; and her
condition during her marriage is called her coverture.140

140 Sir William Blackstone, renowned 18th Century English legal scholar
and philosopher, upon whose writings the U.S. Constitution was heavily
based;William Blackstone, Commentaries on the Laws of England,
Volume 1: A Facsimile of the First Edition of 1765-1769 15 (1979),
https://press.uchicago.edu/ucp/books/book/chicago/C/bo3636418.html (last
visited Nov 30, 2023).

139 Brandeis University Undergraduate, Class of 2025.

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This “coverture” was a facet of the common law until the
mid-late 19th century. At its core, coverture was the absorption
of the complete legal identity of a wife into that of her
husband. By modern legal standards, this may appear drastic;
however, coverture prevailed throughout American law for
decades, with roots in English common law.141 Legislators,
judges, and lawyers who were instrumental in perpetuating this
practice often justified it based upon the assumed ineptitude of
women.142 Such assumptions regarding female ineptitude were
enough to warrant that their care be placed solely in the hands
of one better equipped to guide and manage them throughout
their life.143 However, the question regarding whether coverture
was enacted and maintained with the best interests of women in
mind, namely their reproductive and homemaking capacities,
remains unclear.

As distressing as it may be, one must consider if
coverture was merely wielded as a tool by which a
disingenuous patriarchy could keep women in a state of
permanent subjugation and legal incapacitation. While outright
discrimination against women on the basis of sex alone would
be blatantly unconstitutional by today’s standards, the law
could very well have provided an alternative avenue to
perpetuate such subjugation. Under the guise of due process,
and with foundations in both 18th century English legal doctrine
and American jurisprudence, subjugation was lent a measure of
constitutionality, allowing proponents to surmount objections
of arbitrariness and discrimination.144

This paper begins by exploring 19th century legal
documents and court opinions detailing how coverture was
treated by the judges and legal professionals that put it into

144 Blackstone, supra note 140.
143 Id.

142 BARNES’ LESSEE v. IRWIN, 2 U.S. 199 (1793), Justia Law,
https://supreme.justia.com/cases/federal/us/2/199/ (last visited Dec 6, 2023).

141 Blackstone, supra note 140.

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practice, followed by an examination of writings from some of
the philosophical and feminist minds who argued against it.
Court opinions and legal documents lay the groundwork for
establishing the true intentions behind coverture and its
supporters by providing a sample of the rationale shared in its
defense. The writings to follow, those authored by the very
women subject to coverture’s limitations, will hold a mirror to
the preceding justifications and reveal whether or not they
conveyed the purported benefits. In seeking answers to these
questions of intent and legality, special attention is paid to
court cases, judicial opinions, and articles by legal scholars and
professionals, as these are the few perspectives properly
informed on the law with an adequate grasp of its history and
nuances.

Upon the conclusion of these examinations, it ought to
be apparent that the true impacts of coverture were not in the
interest of women, nor were they ever intended to be. Rather,
coverture was a re-packaging of patriarchal values and white,
upper-middle class, male socio-political dominance, designed
to pass as constitutional legislation under the guise of
American legal doctrine.145

II. The Fragility of the Feminine

Coverture was first formally conceptualized by
Blackstone, in Book the First: Chapter the Fifteenth: Of
Husband and Wife of his Commentaries on the Laws of
England, yet he offers little decisive explanation as to why
such a system not only exists but is needed in the first place.
Fortunately, surviving texts serve to illustrate the thoughts of
philosophical and legal scholars on the subject of coverture and

145 Review of The Law of Infancy and Coverture; Traités du Contrat de
Mariage, de la Puissance du Mari, du Contrat de la Communauté, et du
Douaire, Pothier, 26 NorthAm. Rev. 316 (1828),
https://www.jstor.org/stable/25102704 (last visited Dec 6, 2023).

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the female sex at various points throughout the 18th and 19th
centuries. John Stuart Mill, widely considered to be the greatest
English-language philosopher of the 19th century,146 wrote on
this very subject.147 He, like many during the 18th and 19th
centuries, wholeheartedly believed that women belonged in a
place of total subjugation and dependence upon men.148 This is
especially evident in his 1870 pamphlet entitled The Subjection
of Women, where he writes:

It had been decided, on the testimony of experience,
that the mode in which women are wholly under the
rule of men, having no share at all in public concerns,
and each in private being under the legal obligation of
obedience to the man with whom she has associated her
destiny, was the arrangement most conducive to the
happiness and well being of both.149

Mill asserts that the state most conducive to the satisfaction of
men and women alike is the latter’s complete dependence
upon, and allegiance to, the former. While coverture is not
mentioned outright in this passage, this allusion to a “legal
obligation of obedience” is clear. Specific words such as
“mode” and “arrangement” are effective stand-ins for
coverture. By using these allusions in place of the term itself,
Mill’s word choice serves to soften the impact of an otherwise
clinical and harsh term, which conjures to mind all manner of
oppression. His further inclusion of the phrase “on the
testimony of experience” lends this excerpt a sense of authority

149 Id. at 3.

148 John Stuart Mill, The Subjection of Women (1870),
https://jstor.org/stable/60244766 (last visited Nov 30, 2023).

147 Id.

146 Christopher Macleod, John Stuart Mill, in The Stanford Encyclopedia
of Philosophy (Edward N. Zalta ed., Summer 2020 ed. 2020),
https://plato.stanford.edu/archives/sum2020/entries/mill/ (last visited Dec 6,
2023).

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beyond the academic, by citing real-world experience rather
than philosophy or legal doctrine. For all these reasons, Mill’s
writing champions coverture as an institution in service of the
people, and one desired by them as conducive to their general
quality of life.

This pamphlet is certainly later in time than the height
of coverture-related legal discourse, as by the mid to late 19th
century, coverture was slowly being phased out of the
courtroom.150 That being said, it serves as an excellent example
of the pervasive mindset that the subjugation of women,
specifically in a legal sense, would facilitate the happiness and
well-being of men and women alike.151

Mill’s explanation is one affirming that by subjugating
women, and giving men complete dominion over them, society
would be preserved in its most natural, pleasant state. Mill was
a philosopher, not an attorney, judge, or legal scholar. His
perspective on coverture is helpful when establishing a more
general explanation of the issue, but it falls short of reliable
legal doctrine or precedent. To that end, court cases dealing
with coverture offer unique insight into the legal rationale
behind decisions regarding the rights of women.

In the 1793 Pennsylvania Supreme Court case Barnes’s
Lessee v. Irwin, et al., Chief Justice M’Kean wrote a majority
opinion regarding the right of women to give away property
acquired prior to entering their coverture.152 In keeping with the
trend thus far, Justice M’Kean stipulated “by the maxims and
rules of the law she is disabled, as having no will of her
own.”153 Here, M’Kean identifies the “maxims and rules of the
law” as the source of women’s disability, demonstrating the

153 Id.
152 Barnes’ Lessee v. Irwin, 2 U.S. 199 (1793), supra note 142.
151 Mill, supra note 148.

150 MarriedWomen and the Law: Coverture in England and the Common
LawWorld, (2013), https://www.jstor.org/stable/j.ctt32b7jq (last visited
Dec 6, 2023).

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manner in which the legal system was blatantly used as a tool
to deprive women of portions of the basic rights and autonomy
enjoyed by the opposite sex. M’Kean goes on to offer an
explanation for this facet of common law, stating, “[t]he reason
or ground of a wife’s being disabled {...}, is, from her being
under the power of the husband, not from want of judgment, as
in the case of an infant, or idiot.”154

M’Kean here makes a crucial, and telling admission; it
is not some mental or physical handicap that demands the legal
subjugation of women, rather it is a product of the dominance
allotted to a husband upon entering into the contract of
marriage.155 The implication of this is that coverture was not, in
fact, a condition rendered for the protection of women from
themselves, as would be warranted in the case of an inherently
vulnerable individual like a child or disabled person. Rather,
this condition is an artificial one, arising solely from the legally
recognized dominance of men. “Artificial” in this context is
descriptive of coverture as a fabrication. Coverture was
fabricated for women in the sense that it would never have
arisen naturally by virtue of any general defect in the
constitution of women, it had to be forcibly created and
assigned a purpose by a legal system desiring a measure of
control over them.156

The 1864 case of Drury v. Foster further illustrates the
true nature of coverture. The U.S. Supreme Court was tasked
with determining if a deed signed by Mrs. Foster was
enforceable without the added signature of her husband.157 In
the opinion delivered by Justice Nelson, he opened with the
acute observation that coverture “exist[s] by statute and the
common law for her protection, in consideration of her

157 Drury v. Foster, 69 U.S. 24 (1864), Justia Law,
https://supreme.justia.com/cases/federal/us/69/24/ (last visited Dec 6, 2023).

156 Barnes’ Lessee v. Irwin, 2 U.S. 199 (1793), supra note 142.
155 Id.
154 Id. at 202.

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dependent condition, and to guard her against undue influence
and restraint.”158 The inclusion of words relating to protection
and guarding indicate that coverture was, at the very least,
presented as existing for the sake of women. However,
Nelson’s opinion identifies the marriage contract, “her
dependent condition,” as the primary justification for a
woman’s condition under coverture. This is made evident by
his inclusion of the phrase “in consideration of,” which can be
taken to mean as a result of, or because of.159 To rephrase
Nelson’s writing in simpler terms, he acknowledges that
coverture exists because of the condition of women as
dependent upon men.

Nelson’s sentiment was similar to that expressed by
M’Kean. Both opinions establish that coverture was not solely
intended to protect women and their interests, nor was it an
institution necessarily arising from the nature of women
themselves.160 Rather, it was an effective tool employed to keep
men in power and to keep women as the helpless subjects of
their totalitarian control.161 The arbitrary deprivation of the
rights of women would have been deemed brazenly
unconstitutional, so those wishing to maintain this authority
needed a pretext in which to ground it, and a legitimate avenue
through which they could exercise it. As the previous cases
have demonstrated, this pretext was found in the ineptitude of
women themselves, demanding a level of protection contingent
upon their domination by men. The law provided the ideal
avenue through which to carry out this “necessary” oppression,
as it lent the legitimacy of any other hallowed legal doctrine of
American jurisprudence.

161 Barnes’ Lessee v. Irwin, 2 U.S. 199 (1793), supra note 142 at 202; Drury
v. Foster, 69 U.S. 24 (1864), supra note 157 at 33.

160 Barnes’ Lessee v. Irwin, 2 U.S. 199 (1793), supra note 142 at 202; Drury
v. Foster, 69 U.S. 24 (1864), supra note 157 at 33.

159 Id.
158 Id. at 33.

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III. Challenges to Coverture Arise

The preceding cases certainly indicate that the
condition of coverture was more a product of male dominance
than a necessary means of protecting women. Such verdicts,
however, are by their very nature, tailored to the individual
case at hand. To answer questions regarding coverture as it
pervaded both the legal sphere and society as a whole, sources
containing broader reasoning are essential. To supplement the
opinions of Barnes’s Lessee v. Irwin, et al. and Drury v. Foster,
one must draw from 18th and 19th century sources that discuss
the issues posed by coverture in light of more general public
discourse, beyond the scope of the courtroom.

An excellent touchstone that offers context within
which one can better place and interpret Justice M’Keen and
Nelson’s opinions is the April 1828 issue of The North
American Review. In a piece entitled “The Law of Infancy and
Coverture,” author Peregrine Bingham explores societal
standards and perceptions for and of so-called civilized
women. Within the first few paragraphs, Bingham notes coldly
that “a spirit [men], {...} has too often presided over the
formation of the laws, which fix the rights and obligations of
woman in the social scheme.”162 Bingham’s inclusion of the
phrasing relating to the frequency of instances of oppression
indicates his distaste for the role men have long played in
regulating the place of women, both in society and under the
law.

Bingham goes on to describe the place of women in
various cultures, and upon reaching what he considers the most
civilized world, Europe, he points to the equality European
women have as something for Americans to strive towards. It
is evident that Bingham himself believes women to be

162 Review of The Law of Infancy and Coverture; Traités du Contrat de
Mariage, de la Puissance du Mari, du Contrat de la Communauté, et du
Douaire, Pothier, supra note 145 at 316.

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inherently deserving and capable of enjoying the same rights
and freedoms as men when he writes that “just equality with
the other sex, which the sober and rational pursuit of their
common felicity requires she should possess.”163 By including
language such as “sober,” “rational,” and “common,” Bingham
acutely emphasizes how straightforward and indisputable this
stance ought to be.164 He thereby insists that the rights of
women are nothing short of undeniable and should be treated
as such by any individual with the capacity for rational thought
and reasoning.

Bingham concedes that if the rights of women were to
be left solely to a competition of physical strength, women
would surely lose.165 This is an interesting point, that because
men have the power to bestow and deny the rights of women,
largely as they see fit, it becomes something that reflects well
on the men that do, and appreciated by the women that
benefit.166 Put simply, if women are at the mercy of men from a
purely physical standpoint, every action taken by men to
benefit women is one taken not out of necessity, but out of
generosity.167 A generous act is commonly understood to be a
commendable one on the part of the giver, and something
worthy of gratitude on the part of the recipient. By framing the
capacity to bestow rights upon women as a gift, Bingham
portrays the act of granting women such privilege as socially
desirable and in good taste.168 These sentiments, taken together,
demonstrate Bingham’s belief that women are perfectly
capable of, and deserving of, exercising rights.

168 Id.
167 Id. at 316, 317.

166 Review of The Law of Infancy and Coverture; Traités du Contrat de
Mariage, de la Puissance du Mari, du Contrat de la Communauté, et du
Douaire, Pothier, supra note 145.

165 Id.
164 Id.
163 Id. at 317.

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Despite his evident belief in the capacity of women to
occupy a position in society on par with that of men, Bingham
asserts that the promises of men to improve the status of
women are oftentimes performative and done in the interest of
securing said “gift and its acceptance,” which “are alike
honorable to humanity.”169 Seeing as these promises are
applauded as honorable, there is little incentive to fulfill them,
as the desired effect of garnering praise has already been
achieved. Given this stance, it is unsurprising that Bingham
pointedly states, “the disabilities incident to a married woman
are not designed for her benefit and protection; but for the
security of her husband.”170 This directly answers the question
posed at the outset of this paper—was coverture a system for
preserving the best interests of women, or was it merely a tool
employed to keep women in a state of permanent subjugation,
and legal incapacitation, thus furthering the interests of men?

Bingham is convinced of the latter, as is evidenced by
his stance that coverture was never enacted for the benefit or
protection of women, but rather for that of her husband.171
Unlike the opinions of Justice M’Keen and Nelson, Bingham’s
conclusion that coverture was for the benefit of men alone was
reached not in the narrow legal context of a specific court case,
but through careful consideration of what the author had
experienced in everyday life. His reflections on the civilized
world, as well as his recognition of the performative
inclinations of men, are illustrative of a perspective shaped by
the broader influences of society and dynamic socio-political
affairs.172 It is this broad perspective that fleshes out the narrow
ones offered in Barnes’s Lessee v. Irwin, et al. and Drury v.
Foster, providing a framework in which to better contextualize
them. Bingham’s “The Law of Infancy and Coverture” serves

172 Id. at 318, 319.
171 Id.
170 Id. at 332.
169 Id.

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as but one example of the growing defiance of coverture and
the limitations it posed upon women.

While Bingham’s writings are certainly invaluable for
the purpose of framing and expanding upon relevant court
opinions in light of broader social contexts, they are limited by
the perspective of their author, a man, to whom the regulations
of coverture did not apply. The voices of women, the true
victims of this legal means of systematic oppression, are
integral to understanding its real-life consequences. To that
end, the following writings come from female authors, sharing
their thoughts on an institution they themselves were subject to,
with or without their consent.

Judith Sargent Murray was a preeminent female
essayist and early proponent of women’s equality during the
late 18th century.173 In 1790, Murray penned an article entitled
“On the Equality of the Sexes,” for an edition of The
Massachusetts Magazine.174 In this article, Murray challenges
long-held assumptions regarding her sex, quipping, “suffer me
to ask, in what the minds of females are so notoriously
deficient, or unequal.”175 She continues,

May not the intellectual powers be ranged under these
four heads – imagination, reason, memory and
judgment. The province of imagination hath long since
been surrendered to us, and we have been crowned and
undoubted sovereigns of the regions of fancy. Invention
is perhaps the most arduous effort of the mind; this

175 Id. at 132.

174 Judith Murray, On the Equality of the Sexes., Digital.library.upenn,
https://digital.library.upenn.edu/women/murray/equality/equality.html (last
visited Dec 6, 2023).

173 Kerri Alexander, Biography: Sarah Moore Grimké, NationalWomen’s
HistoryMuseum,
https://www.womenshistory.org/education-resources/biographies/sarah-moo
re-grimke (last visited Dec 6, 2023).

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branch of imagination hath been particularly ceded to
us, and we have been time out of mind invested with
that creative faculty.176

Here, Murray is describing how the female mind is uniquely
capable. By referencing categories of intellect often attributed
to women, such as being “fanciful” and overly imaginative,
Murray reclaims them as pillars of one form of “intellectual
power”—imagination. This, in turn, is a reclamation of the
very traits identified by cases such as Barnes’s Lessee v. Irwin,
et al. and Drury v. Foster as justifications for the existence of
coverture. By doing so, Murray reframes these alleged
deficiencies of women as strengths.177 This resultantly negates
the need for coverture arising from her position under the
dominance of the husband as described by Justice M’Kean and
her condition of dependence upon him as described by Justice
Nelson.178

In place of these justifications, Murray’s writings
indicate that the obligation to provide protection and
benevolent influence described by Blackstone was not so much
born of necessity, as for the security of the position of the
husband as concluded by Bingham.179 In short, Murray’s
writings identify the aforementioned characteristics of women
as strengths of the mind and character. Given the numerous
justifications of coverture as contingent upon these
characteristics as weaknesses, Murray’s reframing of them
necessitates a different justification.180 It is here that the
recurrent idea of coverture being used as a tool benefitting the
dominance of men seems the only viable explanation in their
stead.

180 Murray, supra note 174 at 132, 133.
179 Blackstone, supra note 140.
178 BARNES’ LESSEE v. IRWIN, 2 U.S. 199 (1793), supra note 142.
177 Id.
176 Id. at 132, 133.

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Murray does concede certain shortcomings common to
her sex, but here too she identifies men as the party at fault,
rather than the women themselves.181 When it comes to
knowledge and education, for example, she points to the fact
that women cannot reasonably be expected to possess any
significant measure of the former without proper access to the
latter.182 In Murray’s own words, “Are we deficient in reason?
We can only reason from what we know, and if an opportunity
of acquiring knowledge hath been denied us, the inferiority of
our sex cannot fairly be deduced from thence.”183 Women have
long been condemned as irrational, prone to fit and fancy, and
as such, unfit for aspects of life demanding critical thought and
reasoning.

Murray offers a logical explanation: women cannot
exercise sound reason if they are denied the opportunity to
learn when and how to do so.184 That is, if men are able to keep
women from educating themselves on reason and its proper
uses, then women cannot be expected to be reasonable. It is not
the fault of women that they have been denied the chance to
learn and expand their knowledge, it is merely a consequence
of the patriarchal and misogynistic society that prevailed
during the 18th and 19th centuries.185 Women were relegated
from a young age to realms of domesticity, which excluded any
manner of higher education.186 Since women were handicapped
in such a manner, their full intellectual potential could never
truly be reached. The rest of society would have to pass
judgment upon women who had been unfairly stunted by
reduced opportunities for self-improvement and learning.187

187 Id. at 133.
186 Id. at 132, 133.
185 Id.
184 Id.
183 Id.
182 Id.
181 Id. at 133.

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Continuing on the topic of education, Murray illustrates
her point with a poignant observation:

May we not trace [judgement’s] source in the difference
of education, and continued advantages? {...} how is
the one exalted, and the other depressed, by the
contrary modes of education which are adopted! The
one is taught to aspire, and the other is early confined
and limited. As their years increase, the sister must be
wholly domesticated, while the brother is led by the
hand through all the flowery paths of science. Grant
that their minds are by nature equal.188

The above quote is evidence that, like Bingham, Murray
contends that women have the capacity for rational thought and
intelligence equal to that of men. However, from a young age
that capacity is cultivated in males, and stunted in females,
leaving women at an increasingly large disadvantage as both
sexes age.189 Murray’s perspective on the issue is unique. She
herself is a woman, and is thus better equipped to speak on the
topic than most philosophical and legal writers of the time (as,
needless to say, the vast majority were men). Murray went
through life knowing firsthand what it was to be viewed and
treated as a second-class citizen, deprived of opportunities
equal to those of men. This firsthand experience is key, as her
writing comes from experience, rather than speculation. This is
evident from her repeated use of the words “we,” us,” and
“our,” whereby she includes herself in the women whose fate
has been so constricted by men.190

The perspective of women on coverture and their own
alleged disabilities is invaluable. To that end, the writings of
Sarah M. Grimké, renowned 18th century abolitionist and

190 Murray, supra note 174.
189 Id.
188 Id.

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women’s rights advocate, offer themselves up as an ideal
companion to those of Judith Sargent Murray.191 In an 1837
letter addressed to her sister entitled “Legal Disabilities of
Women,” Grimké laments and systematically proposes
solutions to the numerous laws that existed solely to restrict the
rights and legal identities of women.192 The opening lines of
this letter echo the sentiments expressed hitherto,

There are few things which present greater obstacles to
the improvement and elevation of woman to her
appropriate sphere of usefulness and duty, than the laws
which have been enacted to destroy her independence,
and crush her individuality; laws which, although they
are framed for her government, she has had no voice in
establishing, and which rob her of some of her essential
rights.193

Like Murray, Grimké asserts that the distinct lack of equality
between women and men is a direct result of laws that have
limited the independence and identity of the former.194 That is
to say women, given the proper chance through education, are
perfectly capable of the self-improvement proposed by
Grimké.195 Murray and Grimké wholeheartedly believe women
to possess capabilities equal to those of men, though both agree
that their sex has been unjustly hindered in this pursuit by the
laws and restrictions imposed by the latter.

Moreover, the “laws” to which Grimké attributes the
oppression of women, she also condemns as merely contrived

195 Grimké, supra note 192.
194 Id.
193 Id. at 1.

192 Sarah M. Grimké, 30_Letter_XII_legal_disabilities_grimke.Pdf, Civics
Online, http://www.civics-online.org/library/formatted/texts/grimke.html
(last visited Jan 21, 2024).

191 Alexander, supra note 173.

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for their benefit.196 Grimké’s comment that these laws “are
framed for her government” speaks to the central question of
coverture. These laws, of which coverture was essentially an
performative amalgamation used the prevailing belief in the
dependencies and vices of the “fairer sex” as an excuse to
secure male power.197 The inclusion of the word “framed”
suggests the laws were presented as being in the best interest of
women, but were, in reality, a way by which the law and courts
could deny women many of their most fundamental rights.198
Suffice to say, the courts did not have the best interests of
women in mind and chose, on numerous occasions, to uphold
their legal yoke by men.

Recalling one sentiment shared by Murray, it is men
who have prevented women from expanding their knowledge.
Thus, any judgments passed on the intelligence of the female
sex are flawed, as they are based on the functioning of stunted
minds rather than educated ones.199 Grimké appears to share in
her observation that women had been systematically made
ignorant by men such that the former lacked the proper
knowledge and confidence to challenge the decrees of the
latter.200 In combination with this, and in keeping with the
prevailing mindset of the time, women were thought of as
being “placed completely in the hands of a being subject like
herself to the outbursts of passion, and therefore unworthy to
be trusted with power.”201 In this manner, women were both
denied knowledge and autonomy directly, and taught they
lacked the basic capacity to make use of either. However, like
Murray, Bingham, and M’Kean, Grimké, too, rejects this
assumption, finding no fault with the intellectual powers of

201 Id. at 3.
200 Grimké, supra note 192 at 1.
199 Murray, supra note 174 at 132, 133.
198 Id.
197 Id. at 1.
196 Id.

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women themselves.202 Instead, she echoes the sentiments
expressed hitherto, rejecting the notion that the laws and
doctrines consolidated under coverture were, in truth, intended
for the betterment and protection of womankind.203 Grimké
decidedly concludes that, “the laws which have generally been
adopted in the United States, for the government of women,
have been framed almost entirely for the exclusive benefit of
men, and with a design to oppress women, by depriving them
of all control over their property, is too manifest to be
denied.”204 There can be no doubt that women of the time,
those best equipped to speak on the true nature and
implications of the coverture that afflicted them, did not view it
as a state intended for their protection, nor one warranted by
the nature of their sex. Rather, coverture was established and
perpetuated as an instrument of their own oppression, rendered
unto them, heedless of their objections, by the very men sworn
to guard and shepherd them.

IV. Conclusion

After close examination of case law, legal
commentaries, scholarly publications, and the writings of
prominent female thinkers, an indisputable set of historical
facts has emerged which recounts the repressive nature of
coverture. The works of Blackstone and Mill serve to illustrate
the mindset and rationalizations of those in support of the
coverture of women, chiefly that it is a condition deemed
necessary for the protection of women and one under which
society will be the most stable. This is a sentiment echoed by
Nelson in Drury v. Foster as well. The cases of Drury v. Foster
and Barne’s Lessee v. Irwin, however, demonstrate that in
practice, at least in the realm of the courts, coverture was more

204 Id. at 4.
203 Id.
202 Id. at 3, 4.

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Brandeis University Law Journal 2023-2024, Volume 11

contingent on the husband and the state of marriage itself,
rather than any disabilities or deficiencies found inherent
within women.

To expand upon this idea, Bingham, Murray, and
Grimké concur that coverture was a condition arising from the
relationship of women to men, rather than the state of women
themselves. Furthermore, they identify it as one knowingly
tailored for the benefit of men and the protection of their
assumed superiority, at the expense of women and their
intellectual and legal opportunities. Hence, it may be concluded
that coverture was never a product of the needs of women as
inferior beings. Any such inferiority referenced at the time was
demonstrably either entirely absent or merely manufactured by
a system of imposed ignorance created by men.

In all, this article has described how coverture was a
scheme intended to subjugate women and deprive them of their
legal identity. In doing so, coverture’s true purpose was to
elevate men to a status far above women, thus protecting mens
rights and ensuring their dominance. By perpetuating such a
system, American jurisprudence not only allowed for the
patriarchy to extend itself into the legal sphere, but also
actively endorsed it.

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