A BLOT ON THE CERTIFICATE: DOWER AND WOMEN’S …

Dower and Women's Property Rights 87

"A BLOT ON THE CERTIFICATE": DOWER AND WOMEN’S PROPERTY RIGHTS IN COLONIAL NEW SOUTH WALES

A.R. Buck

“Those laws which concern women do not seem at first glance either just or complimentary”, noted a correspondent to Blackwood's Edinburgh Magazine in 1856 (Anon. 1856:379). “At the first glance”, the article continued,

it is reasonable to suppose that the masculine law-maker has made use of his advantages for the enslavement of his feebler companion. Mrs Browning’s

“Women sobbing out of sight,Because men made the laws,”

appears, in fact, a real condition, when we glance at the surface and outside of the question; and we are disposed, in immediate indignation, to break a lance upon the grand abstract tyrant, Man, who keeps this princess in a perpetual dungeon (ibid.).

Such supposition was entirely fallacious, however, reasoned the writer, as women were protected in marriage by their husbands. Not only was this state of affairs confirmed by nature, moreover, but “the law has no choice but to confirm it, and all honest expediency and suitableness justifies this ordination of God and of man” (1856:386). Such conclusions are, of course, open to question. Yet perhaps the correspondent to Blackwood’s had noted perceptively the limitations of a particular type of explanation of the relationship between women and law in the nineteenth century; an explanation which focused primarily on the emotive morality of power relations derived from gender difference. It is, in part, the

88 Australian Journal of Law and Society Vol 4, 1987

purpose of this paper to question that focus and move beyond it in order to understand the changing relationship between women, property and the law during the nineteenth century.

I

In November 1878, when an early Married Women’s Property Bill was being debated in New South Wales, a series of letters appeared in the Sydney Morning Herald warning against the consequences of changing the legal status of married women. If such a Bill passed, one writer argued, “she may occupy her time in earning money ... and may spend it upon her own luxury, dress, or extravagance, or even drink for that matter” (7 November 1878). In amongst sentiments of that sort, however, is recorded a dissenting voice. On 7 November 1878, a letter appeared which reads, as will be obvious, more in sorrow than in anger:

As the law is at present, if she happened to be a good natured fool and is left with money or property, she marries and her husband is master of all, a schemer who can give promissory notes before marriage to stave off creditors, and at the end of the first year she finds herself without money, or if her credit be good, left by her scheming husband so much in debt that it takes her whole income to pay the interest of that which her husband robbed her and left her to struggle through as best she can ... I only wish I could tell of my few years experience, but it would take too long; let it suffice that there are many men of this description; I am sorry to say, a great many (ibid.).

The letter was signed, “A Sufferer”. It was this obviously moral dimension of the question of women’s legal status, on which law reformers in nineteenth century Australia, like their British counterparts, focused their attention.1

Women lost all control over their property in the early nineteenth century. As far as the law was concerned, their actual identity was submerged in that of their husband’s. Under English common law the property of a woman was, to all intents and purposes, her gift to her husband upon marriage. With minor exceptions, her personal property became his absolutely, allowing him to dispose of it during his lifetime by alienation and after his death by will. All rents from her lands, both freehold and leasehold, and all her income, either by her own labour or given to her as a gift, became his absolutely. Accordingly, she could neither devise her land by will, nor bequeath her personal property, without the consent of her husband. Indeed, a married woman before the law was in the same position as a minor, criminal or lunatic (Cobbe 1868).2

The iniquity of this situation became increasingly apparent during the nineteenth century. In England in 1854, in a social climate conducive

Dower and Women’s Property Rights 89

to law reform, yet publicly ignorant of the plight of married women, Caroline Norton published a short essay entitled, “English Laws for Women in the Nineteenth Century” (Norton 1982). This was a moving and personal indictment of the treatment women suffered under English law. A writer of some significance, Caroline Norton was accused by her husband of infidelity, cast out of the house and denied access to her children while he, with the full force of the law behind him, continued to receive all the income from her writings. Drawing upon the state of affairs represented by the Caroline Norton case, an organised and highly effective body of feminist resistance came into existence in England in the second half of the nineteenth century. This wave of resistance was organised principally as a movement for the reform of the married women’s property law (see e.g. Englishwoman’s Review 1879:79ff). After decades of campaigning, and the marshalling of sympathetic members of Parliament, a series of Married Women’s Property Acts were passed in the 1870s and 1880s. The most important of these was the Married Women’s Property Act of 1882, which put wives on an equal footing with their husbands in regard to the ownership of property.

One implication of the contemporary concern with the emotive moral dimensions of the existing law is that it divorced the status of women from the changing concept of property and contemporary perceptions about the role of law in society. The primacy of gender within a moral context has similarly been stressed by those historians who have confined their study of the relationship between women, property and law to an examination of the married women’s property law.3 A recent book on the history of the married women’s property law in nineteenth century America, for example, is subtitled: “The Legal Foundations of FemaleEmancipation” (Rabkin 1980). Another recent work, by Lee Holcombe, charts the English movement behind the reform of the married women’s property law in detail (Holcombe 1983). She notes both the movement’s self-perception of success with the passage of the Married Women’s Property Act of 1882, together with the community between that movement and the later movement behind the campaign for female suffrage. From the point of view of the history of women’s legal status, Holcombe’s is a story of success (1983:234).

Because the agitation behind the Married Women’s Property Acts was successful, moreover, some historians have tended to extrapolate from this success a general improvement in the legal status of women in relation to property during the nineteenth century. John Mackinolty, for example, in his survey of the Married Women’s Property Acts in New South Wales, argues that: “The nineteenth century achieved the removal of most of the legal disadvantages of the married woman in respect of property” (Mackinolty 1979:75). I would argue, however, that the nineteenth century witnessed, not a simple advancement of married women’s legal status in relation to property, but in some very important senses a regression. Indeed, I would argue that to confine the study of the legal status of married women in relation to property to the Married Women’s


Property Acts has been itself myopic and the conclusions that have been drawn are at the best partial and at the worst misleading.

Such a focus reveals, I believe, the limitations of a liberal historiography in two respects. First, it takes for granted the notion of private property in the market in a surprisingly ahistorical fashion. Property needs to be looked at historically, as a concept that has undergone marked change, and has not always been expressed in a commodity form. Secondly, it limits the discussion of law and its relation to property to a very narrow level: as a neutral regulator of capitalistic property relations. In consequence, some extremely interesting questions regarding both the changing concept of property and assumptions about the role of law in society, together with consideration of how these questions have affected, and been affected by, women, have been left unexplored.

In order to see beyond the question of morality imposed by gender relations, beyond a view of law as simply the regulator of capitalistic property relations, and beyond the ahistorical assumption that property always takes a commodity form, it is necessary to shift the focus away from the Married Women's Property Acts to another law which does not fit into the neat categories such a focus imposes. It is for this reason that I wish to shift the focus to a study of the law of dower. Dower was the ancient right enshrined in English law which afforded married women one-third of the freehold lands of her husband, to be enjoyed during her widowhood. Seen within the context of the law ofinheritance, a study of dower may reveal implications behind thecompeting claims of the old law with the new assumptions in regard to property. From such a vantage point, perhaps we can look at law and property in terms of rights, and at a specific law which was found to be in conflict with changing ideas and expectations of property. As such, a study of the law of dower will, I believe, reveal economic and social dimensions to the relationship between women, property and law beyond simply the moral ones associated with gender difference.

nWith a probable Saxon ancestry, dower was recognised in English

law by the time of King Edmund, on condition of the widow’s chastity, in order to forestall any complication of the inheritance (Holdsworth1942:189-197). By the eleventh century, this condition was limited tomarriages which had resulted in issue. These early forms of dower were contingent upon agreement by each of the parties concerned and, in consequence, left the wife in a somewhat precarious position. It would appear, for example, that by the time of Edward I devices to defeat a woman’s right in order to secure complete freedom of alienation were quite common. “It is evident”, argues Holdsworth, “that if the widow’s rights were to be adequately secured, they must be defined by a fixed rule of law”. This is an important point - indeed, point of view - and


one to which we shall return. By the fourteenth century, dower contingent upon the act of the parties concerned was slowly being replaced by dower created by law. By the fifteenth century it would appear that common law dower was fixed in its final form, at one third of the freehold lands of which the husband was seised at any time during the marriage. This legal protection was, moreover, seen to be a moral right. “This is the more reasonable,” it was argued,

as, during the coverture, the wife can acquire no property of her own. If before her marriage she had a real estate, this by the coverture ceases to be hers; and the right thereto, while she is married, vests in her husband. Her personal estate becomes his absolutely, or at least is subject to his control; so that unless she has a real estate of her own (which is the case of but few,) she may by his death be destitute of the necessaries of life; unless provided for out of his estate, either by a jointure, or dower. As to the husband’s personal estate, unless restrained by special custom, which very rarely takes place, he may give it all away from her. So that his real estate, if he has any, is the only plank she can lay hold of, to prevent her sinking under her distress. Thus the wife is said to have a moral right to dower (Sir Joseph Jekyll, quoted in Cruise 1824:1 162-163).

Over the centuries, however, but particularly with the rise in the late seventeenth century of that most complex of conveyancing procedures, the strict settlement, alternative provisions were made for wives, and the husband’s obligations to dower were evaded by conditions written into the marriage settlement. Dower otherwise restricted the testamentary capacity of the landowner to perpetuate the land/family nexus in patrilineal succession. This was of special concern to the aristocratic landowner, whose social position depended, in large measure, on the perpetuation of a secure nexus between landownership on a vast scale and an aristocratic title premised on patrilineal succession. In a very real way, the role of the wife within the landed elite was limited to that of child-bearer; in particular, to bear a son who would inherit the title and the estate. To be able to claim one-third of that estate as her own - even though an ancient right legitimised by law - would weaken the mechanics of corporate inheritance, whereby the estate and the title were maintained intact, both for the individual family and for the class which those families comprised.

The emergence, consolidation and justification of dower were associated with feudalism, wherein the obligations placed on the landowner to his family and his class to perpetuate the nexus between land and family predominated over the economic opportunities that would be offered by a commercial market in landed property. By the early nineteenth century, however, the opportunities for the commercial exploitation of land, by way of market transactions and mortgage finance,


were multiplying rapidly. Dower intruded on this also. It did so by reducing the degree of control afforded the landowner as potential vendor or mortgagee. If not attended to in the marriage settlement, every piece of land to be mortgaged or sold would be subject to dower. In other words, even if previously alienated or mortgaged, one-third of any lands owned by her husband during her marriage could be claimed by a widow, unless her right to dower had been previously barred.

In early nineteenth century England this was a problem of serious concern to landowners. In 1828 a Royal Commission was established to investigate the law of real property in England with a view to recommending appropriate legislative reform. In their first report of 1829 the Commissioners argued that, as estates in England were now sold more freely than ever, it was desirable that the power to sell would be free of the “burden” of dower (Real Property Commission, First Report 1829:16). Besides, they argued, dower was universally evaded by recourse to conveyances of a highly artificial form. The most commonly used methods were by a fine, or by conveyance to uses to bar her dower. In the first, a fictitious suit was instituted and with the consent of the court an agreement was entered into between the parties as to the disposal of the land in question. The second method conferred absolute dominion over the legal estate, preventing that estate from vesting in the purchaser in such a way as to make the estate subject to the vendor’s wife’s dower. But the Commissioners found such conveyances inconvenient because they were so complicated, and because unskilled conveyancing could lead to “serious mischiefs” (p 17). “In sum”, the Commissioners felt, “dower exists in great extent of injury to proprietors and purchasers” (ibid.). In the context of a profitable market in land and through mortgage finance, this was how dower was seen: as an “injuryto proprietors and purchasers”. The ancient rights of the wife were not mentioned. The complexities of the law in making provision to bar the wife’s right to dower could lead widows into litigation by “mischievous temptation”, it was argued (ibid.). Thus was it felt to be mischievous temptation to attempt to gain what by law and by ancient right was hers! Indeed, the Commissioners felt that dower existed only “to a comparatively small extent for widows, and to some extent also to their injury, in leading them into, or inviting them into, litigation” (p 18).

Married women must have been relieved to know that it was, after all, reasons of altruism that were motivating the Real Property Commissioners to recommend rendering ineffectual their ancient right at law. For, when presented with the knowledge that the present law was universally evaded, the Commissioners’ solution was to recommend legitimating that evasion by force of law. To begin with, they recommended the retention of dower upon all estates of inheritance, but then, intestacy was practically unknown among the propertied classes. More to the point, they recommended that, in the cases of wills, a provision made out of the personal estate should not thereby deprive the widow of her dower in the real estate unless the will expressly or by


clear implication so directed. What the Commissioners were proposing, in other words, was that, if the husband disposed of his lands by will against the wife’s right of dower, he could, by his will, decree such right to be discharged without making any further disposition. “We endeavoured”, they noted in conclusion, “of devising some method of giving to the wife her dower in a form which might put her in possession without legal process” (p 19). But the Commissioners did not come up wdth any form which did not hazard “injury much more commensurate to other parties interested in the lands, and endangering an increase in litigation” (ibid.). Unfortunately for married women, they had only the force of law and ancient right behind them, a poor competitor to “other parties interested in the lands”.

The Commissioners’ recommendations found form in the Dower Act of 1833 (3 & 4 Will IV, c 105). With its passing, the power of the landowner over his lands was strengthened and the authority of the husband increased. While at law the wife still retained her right of dower, it was provided in practice that this right could be entirely circumvented and her destiny left to the discretion of her husband alone. The logic of the Dower Act of 1833 was rooted in the interests of “proprietors and purchasers” in an economic climate of increasing opportunity for the capitalistic exploitation of landed property.

mSuch was the law which was adopted in New South Wales in 1836 (7

Will IV, No 8). The New South Wales Dower Act was of especial importance to buyers and sellers of property in the colony, as the machinery for effecting a bar to dower, such as a fine or a conveyance to uses to bar dower, had never existed in New South Wales. Indeed, as no Supreme Court had been established in the early years of the colony there was no machinery for the alienation of a wife’s lands. To remedy this situation, power had been given in 1819, by way of proclamation, to married women to alienate their jointure, dower, or other estates of freehold or inheritance. This proclamation was confirmed in 1825 by an Act of Council which gave the married women power to bar the power and to alienate their lands by means of a deed duly executed and acknowledged (6 Geo IV, No 2). As with a fine (for which the Act of Council was a substitute) provision was made for the woman to be separately examined, in order to determine that she was acting of her own free will. The existence of this very provision alone would indicate that the wife may have had something to lose by the barring of the dower. Yet with the passage of the Dower Act in New South Wales this necessity was dispensed with. The interests of “proprietors and purchasers” prevailed. The colonial Act provided that, with regard to women married since 1 January 1837, dower did not apply to any lands that had been absolutely disposed of by the husband by sale or by his will. It was also provided that the husband could wholly deprive his wife of her right to dower by so declaring in his will, or by any deed. This


provision was later applied to any transfer under the Real Property Act of 1862. The husband could, moreover, exclude the wife from enjoyment of dower even if he died intestate, by executing a declaration to the contrary. Such a practice was, it would seem, a common one (Kemp 1903:298). The logic of those who would go to the trouble of making provision in order to deprive one’s wife of her right to dower and yet not to the trouble of making a will is a subject which could easily warrant some investigation.

Yet the conclusions writers have drawn hitherto have been concerned, not with the motives of husbands in depriving their wives of dower, but with the wives who claimed their right. C.H. Currey, for example, felt that the situation in respect of dower in New South Wales showed that “the wives of ex-convicts sometimes held purchasers from their husbands at their mercy” (Currey 1929:342). This was, indeed, the view held by the arch-conservative James Norton, whom Currey used to substantiate his claim. When Norton gave evidence to a select committee on the question of dower on 5 September 1850, he provided examples of women who had appeared in the colony to claim dower from a purchaser who was unaware that the vendor had married (Select Committee on The Real Property and Dower Bills: NSWLC Votes and Proceedings 1850, vol. II; in evidence, 5 September 1850). But whether these women “only discovered an interest in their errant spouses when they learned that they had possessed property in the colony” (Currey 1929:342), as Currey so authoritatively claims, is, perhaps, open to conjecture.

The problems to which James Norton referred, however, were perceived to be so great and titles to land felt to be so unduly prejudiced as a result, that a Bill to amend the law of dower was brought forward in 1850. The purpose of the Bill was to prevent dower from attaching to lands that had been owned in the colony by the husband if the wife had not also resided in the colony when those lands had been acquired. It was also intended that dower should not comprise an estate in landed property but only an amount equivalent to the unimproved value of the original purchase. Such provisions would, of course, remove substantial inconveniences in transferring landed property. This consideration was not mentioned, however, when the Bill was defended in the Legislative Council by W.C. Wentworth, who argued rather that: “where the wife by her own laches had failed to make her position known to any person who might purchase property from her husband in this colony, she had no right to complain of being prevented from acquiring a subsequent benefit from this property” (Sydney Morning Herald 21 September 1850).

James Norton continued this curious moral argument in evidence to the Select Committee which was established to report on the Bill. Norton not only approved of the principles of the Bill as “perfectly just”, but noted to the committee that he had “always felt the extreme injustice which had resulted from the existing state of the law” (Select Committee


on the Real Property and Dower Bills, NSWLC Votes and Proceedings 1850, vol. II; in evidence, 5 September 1850). Needless to say, the injustice of which he spoke was that done to the purchasers and not to the women. G.K. Holden also expressed this view when he argued that an English wife should have no right to dower in the colony. “I apprehend”, he noted:

that when she married in England she never could have considered it part of her matrimonial contract that she should have Dower out of land that her husband might purchase in New South Wales, any more than out of land which might be purchased by him in South America, where she would not be entitled to Dower (in evidence, 18 August 1850).

The point of Holden’s argument crystallised in his next sentence, when he submitted that: “The law of Dower here is a mere accident, and I think clean titles with regard to third parties, much more important” (in evidence, 18 August 1850). Such was the perspective of an economically rationalist mentality, where “clean titles” took precedence over a wife’s legal right. There was, however, some defence of those rights. “It appears to me”, submitted Robert Johnson, “that Dower is a legal right, and that it would be unjust to deprive a widow of her legal right because she might be absent or unknown” (in evidence, 13 August 1850). Indeed, since the English Dower Act of 1833, dower only attached to women married in England before 1834. By far the more popular view, however, was that any “injustice” was done more by the prevailing law than by the proposed amendment. Indeed, the prevailing sentiment was that of Norton who argued that it was “of great importance to get rid of the remaining old cases” (in evidence, 5 September 1850).

Consequently, an “Act to amend the Law of Dower in certain respects” was passed in 1850 (14 Vic, No 27), whereby no widow was entitled to dower unless it should be provided either: (1) that she resided in the colony as the wife of the deceased while he still owned the land; or (2) that the purchaser had notice, before or at the time of the sale, of the fact of the deceased owner having been married to her. The widow was also required to show, in cases where the defendant derived title through the purchaser from the deceased owner, that before the defendant purchased, the claimant (i.e. the widow) had in fact resided in the colony, or that the defendant had become acquainted with the fact of the marriage. In order to remedy other inconveniences to the purchaser, it was also enacted that when the land had been alienated the claim to dower was to be limited to one-third of the estimated rent of the land. The amount of rent was to be determined by reference to the state of improvement in which it was at the date of the alienation. The effect of this was to deprive the widow of any estate in the lands of her husband and to reduce dower to the recovery of merely one-third of the estimated rents of the unimproved land.


One can see, therefore, that the benefits accruing to women from the operation of the law of dower had been substantially reduced in New South Wales by 1850. The adoption in 1836 of the English Dower Act of 1833 assured that dower was only likely to operate for those women married in New South Wales before 1 January 1837, and although dower still existed in law its operation could be entirely circumvented by a simple acknowledgement to that effect by the husband in his will. The colonial Act of 1850 had even denied to the widow the enjoyment of the land itself, reducing her portion to a mere money payment. In other words, the material benefits of dower had been severely reduced and provision made for the effective circumvention of those benefits. Yet what remained was the law itself, and because the law remained the ancient right continued to be legitimated by the tradition and existence of that law. It had been pointed out by the Attorney-General J.W. Plunkett, during debate over what would become the Act of 1850, that the measures contemplated by the Bill constituted “a direct interference with vested rights. The right of the widow to dower was as complete as the right of any honourable member of his freehold estate” (Sydney Morning Herald 21 September 1859). One may be excused for thinking that the sentiments thus articulated were enshrined in the law of England. But as W.C. Wentworth pointed out in answering the Attorney- General’s argument: “The position and circumstances of England were totally different” (ibid.). What implications, then, lay in the peculiarity of the colonial context in regard to the question of dower?

“The circumstances of this colony”, argued James Martin during debate of the Dower Bill on 21 September 1850, “were so very different from those of England that the sound reasoning which would apply to one country would be wholly inapplicable to the other” (ibid.). In a way that Martin could not possibly anticipate, those circumstances would change even more dramatically with the discovery of gold and the social upheaval which accompanied the influx of population. The changes that social upheaval would exert on the concept of property would have far reaching impact on the question of law and legal rights. As Robert Richard Torrens noted in 1857: “In Australia, the great mass of the people are, or confidently expect to become, landed proprietors. In Australia, therefore, ‘thorough law reform’ is essentially ‘the people’s question’” (Torrens 1859:7).

The idea of property itself, moreover, was undergoing a fundamental change. “In a country like this”, as Robert Johnson described it in the New South Wales parliament in 1856, “where landed property was transferred as frequently as any other property so possessed” (Sydney Morning Herald 21 August 1856), realty and “mere” chattels were losing their distinguishing features. The English notion of property in land as an inheritance, where it was visibly linked to the perpetuation of a family, was giving way to a perception of property as a mere commodity, to be bought and sold like a watch. Indeed, this was the thrust behind the passage of major reforms to the property law in the Australian


colonies, such as the Torrens Real Property Acts. When Henry Gawler was asked by the South Australian Royal Commission into Intestacy in 1873 whether the object of his proposals concerning the Torrens system was to “enable property to become a marketable commodity”, he replied unequivocally: “that is one of the objects which the Act wished to attain” (Report of the Commission on the Intestacy, Real Property and Testamentary Causes Act of 1873, SA Parliamentary Papers 1873:44). Such was the context in which debate over dower in New South Wales took place.

When the question of abolishing dower was again raised during the Royal Commission into the operation of the Real Property Acts in 1879, opinion was divided into two quite distinct perspectives on the question. On the one hand, the opposition to dower was based on its very real imposition on the “freedom” of the husband (or more specifically - the landowner) to alienate his property and effectively realise its potential on the market as a profitable commodity. On the other hand, dower was defended as a married woman’s right, both ancient and expressed by law, and as such was her due. Why the opposition to dower took such an obviously commercial dimension is explicable within the context of the changing perception of property and its relation to law in New South Wales in the second half of the nineteenth century. It was in particular the democratic or egalitarian nature of the perception of property as a commodity of which contemporaries were aware. This was what Torrens referred to when he called law reform in Australia “the people’s question”. In the context of colonial Australian society, defining land as a commodity carried a democratic and egalitarian legitimacy. It is in this context that we can understand the appeal of C.K. Holden’s concern with “clean titles”, as well as the logic behind opposition to the law of dower in the second half of the nineteenth century. To support dower in such a climate was to appear to be opposed to the egalitarian dimension of property as much as to the naked self interest of capitalist expectations of property.

In discussing the difficulties attendant upon registering land under the Real Property Act, the purpose of which was to make land more attractive commercially, one of the witnesses to the Real Property Commission of 1879, Alfred Cape, noted: “another troublesome matter ... and that is the practise of noting dower” (Real Property Inquiry Commission, Votes and Proceedings NSWLA 1879-1880, vol. 5; in evidence, 6 May 1879). If an applicant desired to convert land from old title to the more saleable Torrens title which was introduced in 1863, he was required, not only to state in his application whether he was married, and if married before or on 1 January 1837 whether his wife was entitled to dower, but indeed to negate dower by statutory declaration. Consequently, the married women’s ancient right was denied in relation to all lands under Torrens title. As the purpose of Torrens title was to render land more saleable, so the exclusion of dower was effected for just that purpose. The fact that dower had even to be noted, however,


aggravated Alfred Cape. “There are very many certificates”, he claimed, “issued in which dower is noted as an encumbrance, and the chances are ten to one, owing to the lapse of time since the Dower Act, there is no dower at all, and yet it is a blot on the certificate” (ibid.). Accordingly, he approved of its abolition.

For some men, however, it was a question of the woman’s right and was not concerned with the commercial activities of the land market. “I know that dower”, argued Edmund Burton to the Commission, “has sometimes been a very great protection to a woman. For my own part, I consider a man’s wife is his first creditor, and I would certainly give her preference over all others” (in evidence, 17 March 1879). Generally, however, prevailing opinion favoured the absolute abolition of dower. When asked of the position of women who had married before 1837, another witness, Edward Ward, replied: “ninety-nine cases out of a hundred who were married before 1837 have not the slightest idea of having any interest in the land of their husbands” (in evidence, 14 March 1879). His implication was obvious. Take advantage of women’s ignorance of their rights in order to abolish those rights. For those who saw commercial property relations as normal and desirable, and an ancient right at law as a hindrance to the effective operation of those relations, dower was indeed nothing more than “a blot on the certificate”.

In its recommendations the Commission recognised the logic of the property market by advocating that “women married before the year 1837, shall be put on the same footing with respect to women married in or after that year” (p 1039). In other words, the provisions of the Dower Act were to be applied retrospectively. The Commissioners claimed to make this recommendation “without injustice” to those women so affected by granting them “the privilege of retaining all their present rights by lodging in the General Registrar-General’s office within a limited time notice to that effect” (p 1037). If, however, Edward Ward was indeed correct in claiming that ninety-nine out of a hundred women in such a position were ignorant of their right, the “privilege” became a somewhat meaningless one.

The Commissioner’s recommendations were drafted into the Dower Abolition Bill of 1881. The motion for the second reading of the Bill was moved by Samuel Terry in the Legislative Assembly on 7 October 1881. “The widow no doubt derives a right to one-third of the property of a husband who dies intestate”, he admitted. But the consequence was that “in some cases it absolutely prevents the sale of land on the market”. The priorities for Samuel Terry were quite clear: “The sooner thispossible right of dower is done away with the better ... It is an encumbrance from the past, and ought to be removed, and that quickly” (Parliamentary Hansard (NSWT) 7 October 1881:1492). In opposing the Bill, however, Robert Smith brought the focus to bear on the motives of those, like Terry, who supported the Bill, when he noted that:


the Bill would affect a most important change in the law; it would deprive widows entitled to dower of their rights. No doubt it would be convenient to a large number of professional men if this Bill were passed. Having purchased an estate on which dower might be claimed, he had a personal interest in the passing of the Bill; but notwithstanding this, he would be no party to deprive widows of their right to dower (p 1493).

Indeed, Smith was unequivocal in his explanation for the appearance of the Bill:

The reason why this Bill was introduced was that some honourable members had recently purchased estates, and the purchases could not be completed speedily because of claims to dower (ibid.).

As Smith was well aware, there were competing conceptions of the law of property. On the one hand, those who opposed the law of dower saw property as the basis of market relations. On the other, those who supported the law of dower saw the law as a source of ancient rights which took precedence over the needs of the market. Smith’s critique was echoed by James Norton Jnr. in the Legislative Council on 24 November 1881 when he suggested that: “The Bill is probably introduced in the interests of property buyers and sellers, to save costs and trouble, even so far as to deprive bereaved women of their means of living” (p 2157). And that, in a nutshell, encapsulated the logic behind the arguments for the “reform” of the law of dower in nineteenth century New South Wales. The Bill lapsed on that question, but dower, like the aged wife who had married before 1837, was soon to die a quiet death. The Probate Act of 1890 was a major legislative measure which consolidated and rationalized the entire law of inheritance in New South Wales (54 Vic, No 25). Dower was one of its victims. As B.A. Helmore notes in his standard text on the law of real property in New South Wales: “The subject of dower is now of academic interest only” (Helmore 1961:274).

IV

What the debate over the “reform” of the law of dower in colonial New South Wales reveals are two quite distinct and opposing perceptions of dower, each revealing totally different priorities. According to the first, dower was seen as an ancient right - enshrined in law and legitimated by tradition, part of a woman’s due. It was a right, moreover, that was seen to have a moral legitimacy - as dower provided for her what she lost by the marriage. For the second, dower was seen as a burdensome interference on the profitable exploitation of land as a commodity on the market. And indeed it was just that. The resort to fines and conveyances to uses to bar dower in England, and the requirements established by the Act of 1825 in New South Wales were


obstructive to the free transfer of land. Further, the existence of dower on every piece of land owned by a proprietor did necessitate complex and costly conveyancing, and, of course, there was always the danger (for the purchaser) that dower might be attached to land which was otherwise thought to be “free”. In mid-nineteenth century New South Wales, there was a strong desire to make land as freely available for transfer as possible. In addition the freedom to own and exploit land carried egalitarian legitimacy. In this context dower would be seen by many as a technical obstruction and to talk of rights would be seen as feudal and outdated. Consequently, the concern for “clean titles” becomes understandable, as does the success of the arguments for the reform of a law like dower in nineteenth century New South Wales. Those arguments marshal an “egalitarian” opposition to a “feudal” law. But, of course, my point is that egalitarianism was called upon in order to secure the smooth operation of capitalist property relations (Buck 1987). While the motivation for the reform of the law of dower may have been economic, its implications were social and legal. For what it meant to have this new concept of property (commodity-oriented and egalitarian) secured in law was that ancient rights accorded to particular groups in society - in this case married women - which had been enshrined in law were jettisoned along the way in favour of the logic of the market.

The implication this had for women’s legal status in regard to property in colonial New South Wales was that in one sense, in a way I have tried to make clear, there was an actual regression. And that regression, moreover, was the result of the very process of legal rationalisation which aimed at the removal of so-called feudal anomalies from the law. This is not to deny that in other areas, particularly with regard to the Married Women's Property Acts, there was a clear advance. Rather, my purpose has been, in part, to highlight the implications behind the idea of “advance” and “regression”. If one assumes that capitalist relations in land or moveable property are normal and immutable (and by implication desirable), and then looks at the case of a social group (such as m&rried women) being excluded from this sphere because of power relations based on gender difference (i.e. their status consequent upon marriage), then one could conclude that any legal change designed to widen the ambit of participation in capitalist relations in property is an advance. Yet this conclusion reveals, I believe, the limitations and priorities of a liberal historiography which places the freedom of the property owner in the market place (modern bourgeois man) before the moral rights of individuals and social groups, who had those rights legitimated by tradition and through law. Such a historiographical perspective reveals not only an immutable and ahistorical perception of property, but simply assumes the interests of all individuals to be coexistent with the interests of modern bourgeois man. Consequently, because of the myopic focus on the married women’s property law the notion of “advancement” has established itself in the historiography of women, property and the law in the nineteenth century. Ironically, “advancement” has been seen because the interests of modern bourgeois


man have not been challenged. Rather, those writers who have focused on the emotive morality of power relations based on gender difference, who have adopted this notion of “advancement”, have assumed that the interests of all individuals (male and female) are co-existent with the interests of modern bourgeois man.

My purpose in this paper has been to highlight the relativity of notions of “advancement” by focusing on the “regressive” aspects of the abolition of dower. It is important to recognise, however, that the abolition of dower was not “regressive” only in the sense that it deprived married women of certain “feudal” rights. It was also regressive in the sense that it was a further instance of the imposition of the logic of the market on social relations. Dower was finally abolished because it inhibited the commodification of land. Dower was a law which recognised (in its very existence as much as through its operation) that the rights of individuals and groups can have precedence over capitalist relations of private property - the logic of the market - and that while a law such as that existed it was a powerful symbol, not of the feudal system from which it sprang but of resistance to the logic of the market.

It was, therefore, because of a growing commitment to capitalistic attitudes to property, unfettered by the obligations which the feudal system had imposed, that male legislators removed the ancient right of dower from married women and widows. The nineteenth century may indeed have witnessed, as Elizabeth Barrett Browning put it,

Women sobbing out of sight,Because men made the laws.

To confine ourselves to the morality of gender conflict which that passage expresses, however, is to give us but a partial perspective on the relationship between property, women and English law in the nineteenth century. The emphasis needs to be taken away from “men” in her couplet, I would argue, and more attention focused on the social context within which “men made the laws”, in order to explain why some men, in opposition to other men, made the laws they did.

Endnotes

1. The contemporary English literalure is voluminous. For a vciy good introduction to thequestion see the papers on Married Women's Property in the Transactions of the National Association for the Promotion of Social Science, in particular: Transactions NAPSS. 1867:292: 1868:36-7. 130-33.238-49. 276-81: 1869:33-5. 241-6:1881:248-9: 1882:208-9. The colonial perspective on the question is well illustrated in the editorials of the Sydney Morning 11 era Id 2 December 1871 and The Maitland Mercury 4 December 1871.


2. See also "Married Women's Properly". All the Year Round, n.s.. vol. 4. 1870: "History of the Married Women's Property Bill". Englishwomen's Review. 1873.

3. See. for example: N. Basch. In the Eyes of the Law: Women. Marriage and Property in Nineteenth-Century New York (1982) Cornell University Press. Ithaca: Speth. "The Married Women's Property Acts 1839-1865: Reform. Reaction or Revolution?" in Weislmrg (ed.). Women and the Law, vol. 2 (1982) Cambridge: P. Lucie. "Marriage and Law Reform in Nineteenth- Century America" in E.M. Craik (ed.), Marriage and Property (1984) Aberdeen University Press. Aberdeen: R.H. Chused. "Married Women’s Property Law: 1800-1850" (1983) 71 Georgetown Law Journal 1359-1425: idem. "Late Nineteenth Century Married Women's Property Law: Reception of the Early Mamed Women's Property Acts by Courts and Legislatures" (1985) 29 American Journal of Legal History 3-35: V. Ullrich, 'The Reform of Matrimonial Property Law in England During the Nineteenth Century" (1977-78) 9 Victoria University of Wellington Law Review 13-35: L. Holcombe. "Victorian Wives and Property: Reform of the Married Women's Property Law. 1857-1882" in M. Vicinus (ed.). A Widening Sphere: Changing Roles for Victorian Women (1977) Indiana University Press. Bloomington.

References

Anon.. "The Laws Concerning Women" (1856) 79 Blackwood's Edinburgh Magazine 379.Buck, A.R.. "The Logic of Egalitarianism: Law. Property and Society in Mid-Nineteenth Century New South Wales" (1987)5 Law in Context 18.Cobbe. I7.. "Criminals. Idiots. Women and Minors. Is the Classification Sound? A Discussion on the Laws Concerning the Property of Married Women" Fraser's Magazine December 1868.Cruise, W.. Digest of the Laws of England Respecting Real Property (3rd edn 1824) Butterworth. London. 6 vols.Currey. C.. "Chapters in the Legal History of New South Wales 1788-1863" (1929) LLD. University of Sydney.Helmore. B.A.The IawofReal Propertyin New South Wales (1961) Law Book Co.. Sydney. Holcombe, L.. Wives and Property: Reform of the Married Women's Property Law in Nineteenth Century England (1983) Toronto University Press. Toronto.Holdsworth. W.. A History of English Law, vol. Ill (7th edn 1942) Methuen. London.Kemp. RE.. Principles of the Law of Real Property in New South Wales (1903) Law Book Co..Sydney.Mackinolty. J.. "Hie Married Women's Property Acts" in J. Mackinolty and H. Radi (eds), In Pursuit of Justice: Australian Women and the Law 1788-1979 (1979) Hale & Ire monger. Sydney. •Norton. C, Caroline Norton's Defence: English Laws for Women in the Nineteenth Century (1982) Academy Chicago. Chicago.Rabkin, P.A.. Fathers to Daughters: the Legal Foundations of Female Emancipation (1980)Greenwood Press. Westport.Real Property Commission - First Report, British Parliamentary Papers (1829) vol. X.Real Property Inquiry Commission Votes and Proceedings NSWLA (1879) vol. 5.Report of the Commission on the Intestacy Real Property and Testamentary Causes Act of 1873.SAPP (1873).Select Committee on the Real Property and Dower Bills. Votes and Proceedings NSWLC (1850) vol.2.

Torrens. R.R. The South Australian System of Conveyancing by Registration of Title (1859) Register and Observer General Printing Offices. Adelaide.

Documents

A BLOT ON THE CERTIFICATE: DOWER AND WOMEN’S …