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When Your Money Is Not Your Own: Coverture and Married Women In Business in Colonial New South Wales

  • Catherine Bishop
Extract

In 1860 and again in 1864, Alexander Spiers appeared before the insolvency court in Sydney, endeavoring to explain his failure in business. He was described as a milliner in the records but he had never made a bonnet in his life. The real milliner and businesswoman was his wife, Ann Spiers, who had been running her business since her marriage in 1846. She made purchasing and pricing decisions, managed staff, was the front person in the shop, and advertised in newspapers. She told the insolvency court in 1860 that her husband “used to keep the books and attend to the house business but he never sold anything in the shop. He used to mark the goods occasionally.” Alexander Spiers similarly distanced himself. “My wife put the value upon the articles in our stock,” he said. “She is much better acquainted with their value than myself.” In spite of this, it was Alexander Spiers' name that was on the insolvency papers. Under the law of coverture, he was responsible for his wife's debts and her business legally belonged to him.

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cathbishop@bigpond.com
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1. “Alexander Spiers, Haberdasher Insolvency,” Supreme Court Insolvency Files (SCIF), February 7, 1860, (Sydney, State Records of New South Wales (SRNSW)), NRS 13654, 04770; “Alexander Spiers, Milliner Insolvency,” SCIF, October 27, 1864, SRNSW, NRS 13654, 06861; Sands, John, Sands Sydney Directory (Sydney: John Sands, 1858–1900), 1868; and Sydney Morning Herald (SMH), September 7, 1846, 1, November 28, 1868, 12.

2. Recent international scholarship has uncovered their presence. See discussion later in this article.

3. Bishop, Catherine, “A Virtual Walk Down Pitt Street in 1858,” in Labour History and Its People: Twelfth Biennial Labour History Conference, ed. Nolan, Melanie (Canberra: Australian Society for the Study of Labour History, Canberra Region Branch; National Centre of Biography, Australian National University (ANU), 2011).

4. This dichotomy has been challenged in academic scholarship for some years; see for example, Vicinus, Martha ed., A Widening Sphere: Changing Roles of Victorian Women (Bloomington and London: Indiana University Press, 1977); and Scott, Joan Wallach, Gender and the Politics of History (New York: Columbia University Press, 1999), 43. Nevertheless, it remains a pervasive trope, primarily, perhaps, because separate spheres and domesticity rhetoric dominates the archive.

5. See Susan B. Anthony Center for Womens Leadership, “Susan B. Anthony and Elizabeth Cady Stanton,” University of Rochester http://www.rochester.edu/SBA/suffrage_sba_ecs.html (June 1, 2013).

6. See, for example, Higman, B. W., Domestic Service in Australia (Carlton, Vic.: Melbourne University Press, 2002); Kingston, Beverley, My Wife, My Daughter, and Poor Mary Ann: Women and Work in Australia (Melbourne, Victoria: Nelson, 1975); Ryan, Edna and Conlon, Anne, eds, Gentle Invaders: Australian Women at Work (Ringwood, Vic.: Penguin, 1989); and Anderson, Margaret, “Good Strong Girls: Colonial Women and Work,” in Gender Relations in Australia: Domination and Negotiation, ed. Saunders, Kay and Evans, Raymond (Sydney: Harcourt Brace Jovanovich, 1992), 225–42.

7. Deacon, Desley, “Political Arithmetic: The Nineteenth-Century Australian Census and the Construction of the Dependent Woman,” Signs 11 (1985), 2747; and Alford, Katrina, “Colonial Women's Employment as Seen by Nineteenth-Century Statisticians and Twentieth-Century Economic Historians,” Labour History 51 (1986): 110

8. See, for example, Lewis, Susan Ingalls, Unexceptional Women: Female Proprietors in Mid-Nineteenth Century Albany, New York, 1830–1885 (Columbus: Ohio State University Press, 2009); Sparks, Edith, Capital Intentions: Female Proprietors in San Francisco (Chapel Hill: University of North Carolina Press, 2006); Venet, Wendy Hamand and Murphy, Lucy Eldersveld, eds., Midwestern Women: Work Community and Leadership at the Crossroads (Bloomington: Indiana University Press, 1997); and Catherine Bishop, “Commerce Was a Woman: Women in Business in Colonial Sydney and Wellington,” (PhD diss., ANU, 2012).

9. “Introduction,” Decisions of the Superior Courts of New South Wales, 1788–1899, Division of Law, Macquarie University http://www.law.mq.edu.au/research/colonial_case_law/nsw/site/introduction/ (March 9, 2014).

10. This notion was not uncontested. See Catherine Bishop and Angela Woollacott, “Business and Politics as Women's Work: The Australian Colonies and the Mid-Nineteenth Century Women's Movement,” Journal of Women's History (2015) forthcoming.

11. Grimshaw, Patricia, Lake, Marilyn, McGrath, Ann, and Quartly, Marian, eds., Creating A Nation (Ringwood Victoria: McPhee Gribble, 1994), 104; and McIntyre, Stuart, A Concise History of Australia (Cambridge: Cambridge University Press, 1999), 98.

12. Linge, G. J. R., Industrial Awakening: A Geography of Australian Manufacturing 1788–1890 (Canberra: ANU Press, 1979), 5859.

13. Historical Census and Colonial Data Archive, ANU http://hccda.ada.edu.au/, July 1, 2014.

14. Dicey, A. V., Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century (London: Macmillan, 1920), 384–86, quoted in Holcombe, Lee, Wives and Property: Reform of the Married Women's Property Law in Nineteenth-Century England (Toronto: University of Toronto Press, 1983), 49.

15. Holcombe, Wives and Property; and Holcombe, Lee, Victorian Ladies at Work; Middle-Class Working Women in England and Wales 1850–1914 (Newton Abbot: David & Charles, 1973).

16. See discussion later in the article.

17. Kercher, Bruce, “Perish or Prosper: The Law and Convict Transportation in the British Empire, 1700–1850,” Law and History Review 21 (2003): 527–84.

18. See Marcus v. Healey 1840, The Australian, June 27, 1840, 2.

19. After 1832, all convicts were subject to attaint after changes in laws in England; however, as Kercher describes, judges recognized local priorities. Kercher, “Perish or Prosper,” 560–64.

20. Ibid., 565.

21. Doe dem Clark v. Smithers (1834), Ibid, 565–66; and “Decisions of the Superior Courts of New South Wales.”

22. Doe dem Tugwell v. Farrell, Sydney Chronicle, August 14, 1847, 2; and Doe dem Cotton v. Farrell, SMH, August 30, 1847, 3. See also Wilson v. Pickering, SMH, October 6, 1853, 3; Browne v. Tindall, SMH, August 3, 1860, 2; and Empire, February 24, 1860, 2.

23. Kercher, Bruce, An Unruly Child: A History of Law in Australia (St Leonards, NSW: Allen & Unwin, 1995), 50; and Kercher, Bruce, Debt, Seduction and Other Disasters: The Birth of Civil Law in Convict New South Wales (Leichhardt, NSW: The Federation Press, 1996), 7071.

24. Hilary Golder, “Loopholes and Tactics: How Many Married Women Became Economically Active and Independent,” paper presented at “Lost in a Woman's World: Women in Nineteenth Century Australia,” Society of Australian Genealogists' Conference, November 2008. See also Golder, Hilary and Kirkby, Diane, “Mrs. Mayne and Her Boxing Kangaroo: A Married Woman Tests Her Property Rights in Colonial New South Wales,” Law and History Review 21 (2003): 585605.

25. Chused, Richard H., “Married Women's Property Law 1800–1850,” The Georgetown Law Journal 71 (1982–83): 13591426; Oldham, James, “Creditors and the Feme Covert,” in Law and Legal Process: Substantive Law and Procedure in English Legal History, ed. Dyson, Matthew and Ibbetson, David (Cambridge: Cambridge University Press, 2013): 217–45; Pearlston, Karen, “Married Women Bankrupts in the Age of Coverture,” Law and Social Enquiry 34 (2009): 265–99; and Pearlston, Karen, “What a Feme Sole Trader Could Not Do: Lord Mansfield on the Limits of a Married Woman's Commercial Freedom,” in Worth and Repute: Valuing Gender in Late Medieval and Early Modern Europe: Essays in Honour of Barbara Todd, ed. Kippen, Kim and Woods, Lori (Toronto: Centre for Reformation and Renaissance Studies, 2010): 309–33.

26. Kay, Alison C., The Foundations of Female Entrepreneurship: Enterprise, Home and Household in London, c.1800–1870 (New York and London: Routledge, 2009); and Nicola Phillips, Women in Business, 1700–1850, (Woodbridge: Boydell, 2006).

27. Finn, Margot, “Women, Consumption and Coverture in England, c 1760–1860”, The Historical Journal 39 no 3 (1996): 707.

28. Doucet, Nicholas Benjamin, Fundamental Principles of the Laws of Canada as They Existed under the Natives, as They Were Changed under the French Kings, and as They Were Modified and Altered under the Dominion of England, vol. 2, Articles 232–39(Montreal: John Lovell, 1841). I am grateful to Bettina Bradbury for this reference. Bradbury, Bettina, Wife to Widow: Lives, Laws and Politics in Nineteenth-Century Montreal (Vancouver: University of British Columbia Press, 2011), 85. See also Young, Brian, “Getting around Legal Incapacity: The Legal Status of Married Women in Trade in Mid-Nineteenth-Century Lower Canada,” in Canadian Papers in Business History, ed. Baskerville, Peter (Victoria, British Columbia: Public History Group University of Victoria, 1989), 5; and Sparks, Capital Intentions, 79–81.

29. Salmon, Marylynn, Women and the Law of Property in Early America (Chapel Hill: University of North Carolina Press, 1986); and Evan Roberts, “Her Real Sphere? Married Women's Labor Force Participation in the United States, 1860–1940” (PhD diss., (University of Minnesota, 2007).

30. SMH, September 11, 1854, 5.

31. See Kercher, Debt, Seduction, 76.

32. Miss DeMetz taught until 1868. The Australian, December 30, 1833, 3; SMH, November 3 1843, 3, January 2, 1868, 1; and Fords Sydney Commercial Directory for the Year 1851 (Sydney: W & F Ford, 1851). Another example was Mary Scrutton's school, which was affected by her husband's insolvencies. “Robert Law Scrutton, Surry Hills, Clerk Insolvency,” SCIF, January 10, 1844, SRNSW, NRS 13654, 01153; “Robert Law Scrutton, Sydney, Accountant Insolvency,” SCIF, January 3, 1848, SRNSW, NRS 13654, 01716.

33. Marshall v. Cardwell, SMH, November 13, 1855, 4; and Empire, November 13, 1855, 4.

34. SMH, November 13, 1855, 4.

35. Sydney Chronicle, September 5, 1846, 2. Similarly, Becke and Another v. Hopson and Another, SMH, July 7, 1864, 8. For contrast, see Ivey v. Kingsbury, The Australian, September 3, 1846, 3.

36. Macarthur probably had legal documents naming her as her husband's agent. Bruce Kercher notes that wives with absent husbands were able to sue in their own names in the early years of the colony, but this was not so by the 1830s. Kercher, An Unruly Child, 50.

37. This was also evident in neighboring New Zealand, where Mrs. Goodbraid and Mrs. Frost both failed in court purely because of absent husbands. Daily Southern Cross, January 30, 1867, 4; November 8, 1867, 4.

38. See Durand v. Williams, SMH, July 10, 1862, 2; July 11, 1862, 3. The coverture defense could be a delaying tactic. See Salway v. Jones, SMH, February 12, 1863, 5.

39. Southland Times, August 1, 1866, 3. Barron was a businesswoman and mother of Joseph Ward, New Zealand prime minister (1906–1912). Judith Bassett, “Barron, Hannah Ward – Biography”, Te Ara – the Encyclopedia of New Zealand http://www.TeAra.govt.nz/en/biographies/2b7/1 (June 1, 2013). See also Terrett v. Cockerill, SMH, July 7, 1855, 3.

40. This allowed a wife to run up credit in her husband's name for items deemed ‘necessary’, which could be a contested notion. See Erica Rappaport, ‘“A Husband and His Wife's Dresses”: Consumer Credit and the Debtor Family in England, 1864–1914’ in The Sex of Things: Gender and Consumption in Historical Perspective, ed. Victoria de Grazia and Ellen Furlough (Berkeley: University of California Press, 1996), 163–87.

41. Sydney Herald (SH), March 11, 1833, 2; SG, April 5, 1832, 2; and The Australian, January 6, 1834, 4.

42. Hearson v. Brown 1832, Decisions of the Superior Courts of New South Wales; SH, October 1, 1832, 1. See also “The Glorious Uncertainty of the Law,” SG, July 11, 1835, 3; and Lehane v. Pendray, SMH, September 29, 1842, 3; October 8, 1842, 2; November 18, 1845, 3; August 5, 1846, 2.

43. SH, April 17, 1841, 2. See also Australian Trust Company v. Berry, SMH, October 14, 1856, 2; McCartney v. Dieckman, SMH, September 21, 1849, 2; and Paling v. Cox, SMH, September 14, 1864, 2.

44. SMH, June 7, 1867, 5.

45. As Jane Hetherington: Illawarra Mercury, January 6, 1860, 2; June 15, 1860, 4; As Jane Crozier: Examiner (Kiama) March 11, 1862, 2; June 17, 1862, 2; July 8, 1862, 2; Kiama Independent and Shoalhaven Advertiser, March 30, 1865, 2; April 26, 1866, 2; February 21, 1867, 2; March 7 1867, 2; March 21, 1867, 3; May 28, 1868, 2; August 19, 1869, 2; and SMH June 7, 1867, 5. On December 9, 1869 Jane Crozier is listed in the Register of Orders under the Deserted Wives Act, 1858–1948, SRNSW, 13476 (Register of Orders).

46. An Ordinance for the Support of Destitute Families and Illegitimate Children, New Zealand (October 26, 1846).

47. Golder, Hilary and Kirkby, Diane, “Land, Conveyancing Reform and the Problem of the Married Woman in Colonial Australia,” in Law, History, Colonialism: The Reach of Empire, ed. Kirkby, Diane and Coleborne, Catherine (Manchester: Manchester University Press, 2000), 207–20; Wright, Nancy E. and Buck, A. R., “The Transformation of Colonial Property: A Study of the Law of Dower in New South Wales, 1836 to 1863,” University of Tasmania Law Review 23 (2004): 97127; Macdonald, Charlotte, “Land, Death and Dower in the Settler Empire: The Lost Cause of ‘the Widows Third’ in Nineteenth-Century New Zealand,” Victoria University of Wellington Law Review 41 (2010): 493518; and Bradbury, Bettina, “From Civil Death to Separate Property: Changes in the Legal Rights of Married Women in Nineteenth-Century New Zealand,” New Zealand Journal of History 29 (1995): 4046. See also Holcombe, Wives and Property.

48. Levels of maintenance were not specified, and it was not clear how the orders were to be enforced. Barlow v. Barlow, SMH, February 12, 1845, 3; Barker v. Hutchinson, SMH, November 19, 1847, 2; and Anthony v. Jones, SMH, February 17, 1858, 3.

49. SMH, October 21, 1843, 1. See also Jane Coleman (poulterer), SMH, January 16, 1855, 1; and Ellen Carroll (butcher). SMH, June 7, 1860, 1.

50. A few exceptions included Margaret Seymour, SMH, April 21, 1854, 5; April 27, 1855, 5; and anonymous case, SMH, November 4, 1846, 3.

51. SMH, September 22, 1849, 3; May 6 1850, 2; May 6, 1850, 2; August 28, 1850, 3; March 24, 1851, 2; June 8, 1850, 4.

52. G.P. Walsh, “Nichols, George Robert (Bob) (1809–1857),” National Centre of Biography, Australian National University http://adb.anu.edu.au/biography/nichols-george-robert-bob-4296/text6957.

53. An Act to Amend the Act for the Maintenance of Deserted Wives and Children, New South Wales (August 25, 1858), para. 6.

54. Ibid., para. 4, 5. See Clark v. Hart, SMH, November 25, 1865, 4. See also the Australian Mutual Provident Society Incorporation Act (1857), which protected women's policies from their husbands, SMH, October 26, 1850, 2; March 5, 1857, 4. See also debates about legislation, SMH, June 23, 1858, 4; June 26, 1858, 5; July 31, 1858, 5.

55. Golder, Hilary, Divorce in Nineteenth Century New South Wales (Kensington, NSW: New South Wales University Press, 1985).

56. Comments by members of the Legislative Council indicated concern that marriages not be permanently dissolved. See, for example, SMH, November 14, 1857, 5.

57. The uniqueness of the South Australian case is interesting, and possibly reflects the strong nonconformist presence. South Australia was also the first colony to grant women the vote.

58. See Holcombe, Wives and Property, chap. 4, 5.

59. SMH, June 2, 1863, 3; June 3, 1863, 5.

60. For custody, see Atkinson v. Barton 1841, Decisions of the Superior Courts of New South Wales, 1788–1899. See also Britcher v. Britcher, SMH, February 14, 1866, 2; May 19, 1866, 5; Empire, January 23, 1874, 3; Register of Orders. For violent husband returning, see Margaret Cunningham, SMH, December 20, 1856, 4.

61. See Register of Orders under the Deserted Wives Act, 1858–1948, SRNSW, 13476 (Register of Orders).

62. SMH, June 1, 1843, 3; June 10, 1864, 1; January 6, 1869, 1; February 22, 1871, 8; Ex parte Craddock, SMH, November 9, 1858, 2; George Boyle White (transcribed by Jenny McCarthy and Les Dalton), Diary, 1875, SLNSW, CY4700, May 21 1875; and “Jane Craddock, Bourke Street Sydney Insolvency,” SCIF, 1864, SRNSW, NRS 13654, 06491. For other examples of businesswomen who took advantage of the legislation, such as Frances Cowell, Margaret Allison, Goodlet Chauncy and Elizabeth Bene, see Bishop, ‘Commerce Was a Woman’, 2012, Chapter 4, especially 202 ff.

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Law and History Review
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