UBC Theses and Dissertations

UBC Theses Logo

UBC Theses and Dissertations

If the evil ever occurs : the 1873 Married Women's Property Act : law, property and gender relations… Falcon, Paulette Yvonne Lynnette 1991

Your browser doesn't seem to have a PDF viewer, please download the PDF to view this item.

Item Metadata

Download

Media
831-UBC_1991_A8 F36.pdf [ 5.46MB ]
Metadata
JSON: 831-1.0098743.json
JSON-LD: 831-1.0098743-ld.json
RDF/XML (Pretty): 831-1.0098743-rdf.xml
RDF/JSON: 831-1.0098743-rdf.json
Turtle: 831-1.0098743-turtle.txt
N-Triples: 831-1.0098743-rdf-ntriples.txt
Original Record: 831-1.0098743-source.json
Full Text
831-1.0098743-fulltext.txt
Citation
831-1.0098743.ris

Full Text

" i f the e v i l ever occurs": The 1873 Married Women's Property Act: Law, Property and Gender Relations i n 19th Century B r i t i s h Columbia. By PAULETTE YVONNE LYNETTE FALCON .A., The University of B r i t i s h Columbia, 1984 k THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTERS OF ARTS i n THE FACULTY OF GRADUATE STUDIES (DEPARTMENT OF HISTORY) We accept t h i s thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA October 1991 ©Paulette Yvonne Lynette Falcon, 1991 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of The University of British Columbia Vancouver, Canada DE-6 (2/88) Abstract This study w i l l examine the circumstances surrounding the passage of the B r i t i s h Columbia Married Women's Property Act, 1873 and the j u d i c i a l response to i t . The statute was an attempt on the part of l e g i s l a t o r s to c l a r i f y and f a c i l i t a t e married women's actions i n the marketplace, while accomodating new ideas about women's place i n society. But despite the rhe t o r i c about women's right s and the b i l l ' s more e g a l i t a r i a n p o t e n t i a l , i t pr e c i p i t a t e d no domestic revolution. The courts, i n turn, ignored the l e g i s l a t i o n ' s more l i b e r a l provisions and interpreted i t s o l e l y as a protective measure. Notwithstanding t h e i r d i f f e r e n t views on gender r e l a t i o n s and marital property reform, l e g i s l a t o r s and judges shared common b e l i e f s about the importance of family l i f e . Consequently, the law defended women's legal r i g h t s as family members more than as in d i v i d u a l s . Overall, the b i l l represented a compromise. Although i t was meant to a l l e v i a t e some of a wife's legal d i s a b i l i t i e s so that she could p a r t i c i p a t e more f r e e l y i n the economic l i f e of the community, i t was also grounded i n the V i c t o r i a n paternalism of the l e g i s l a t o r s who enacted i t and the judges who enforced i t . As a re s u l t , despite the challenge presented by the provisions of the Married Women's Property Act, the doctrine of marital unity proved remarkably r e s i l i e n t . i i i Table of Contents Abstract i i Acknowledgement i v Frontispiece v Introduction 1 Chapter I: Women, Family, and Property Law i n 19th Century B r i t i s h Columbia 14 Chapter I I : The B r i t i s h Columbia Married Women's Property Act, 1873 37 Chapter I I I : Women, Property and the Courts i n B r i t i s h Columbia 68 Conclusion 90 Bibliography .97 i v Acknowledgement There are several people I would l i k e to acknowledge. F i r s t , my supervisor, Dr. Peter Ward, for encouraging me to pursue t h i s study and for his e d i t o r i a l expertise. Dr. Arthur J . Ray, for f i n a n c i a l support i n the form of a research assistantship and for spurring me on. Dr. Dianne Newell for her timely advice and astute observations, and Dr. Robert A.J. McDonald for his challenging questions. I am also indebted to colleagues and friends, Tina Loo, Jennifer Fox, Pamela Fox, J i l l Wade, Ruth Gumpp, Louise Robert, Colleen Graham, and most e s p e c i a l l y Ramona Rose, for a l l the reasons she w i l l understand. F i n a l l y , I would l i k e to thank my family; Dennis, Paul, Denise, Marion, Jeanette, and my mother, L i l y Lee Regan, for t h e i r unwavering f a i t h i n me. THE COMET. Vol. 1. •'\\l,al>nr ix tnontlhf irrowj ought ntvtr to be cotist'dutionally r\(jht.n VICTORIA, B. C , FEBRUARY 5>ia»: 1873. Xo. 5 The effects of Mr. Bearer's Woman's Rights Bill on Robert Smallcy, Junr. WOMAN'S RIGHTS BILL. ;«nd immediately afterwards procure a —— .bottle of strychnine, without laying her-We give aborc an illustration showing self liable to suspicion. what may result fro.n the passing of thej 4 . A n y o f i n s u r a n c c c f l c c l c d Women's rights Bill should it become law. by a married man on his own life with-out the knowledge of his wife, shall be Toid. The reader will immsginc the mother looking after her rents. We also publish n copy of the bill for the benefit of our 'subscribers: T . After the passing of this Act the woman shall be the man and the man -•hail be the woman. ' S. That the woman shall, with or without the consent of her husband, be at liberty to earn wages cn the outside, 'either by artistic skill or otherwise: and that in the event of her earnings exceed-ing her husband's. She can, if she choose, declare her marriage null and void. 3. A married woman may, in her own name, insure the life of her husband, 5. After the passing ot this Act, any married woman may engage in all kinds of athletic sports, such as horee-racinc, foot-racing, standing high jump, and tossing the caber, and, also, own inter-ests in dry dock and dyking companies, without lowering ber standing in society. C. Any married . woman " going th rough" on any of the qamcs enumer-ated aboTC, shall be at liberty to draw on her husband, and the husband refus-ing her demands, shall be guilty of a misdemeanor. 1. Any married woman shall be at liberty to carry a night-keyr and attend 1 Introduction On January 30, 1873, B r i t i s h Columbia l e g i s l a t o r s , with a c e r t a i n degree of trepidation on the part of some, passed the Married Women's Property Act. The b i l l was designed to ensure that the married women of the province, l i k e t h e i r counterparts i n England and Ontario, would enjoy c e r t a i n l i m i t e d property rig h t s which had been previously denied them. The proposed l e g i s l a t i o n was neither r a d i c a l nor innovative, yet i t sparked considerable controversy as l e g i s l a t o r s and ordinary c i t i z e n s a l i k e argued the r e l a t i v e merits of what the l o c a l press c a l l e d the "Women's Rights B i l l " . The impetus for the statute came from male l e g i s l a t o r s who enacted a law which, at lea s t t h e o r e t i c a l l y , gave women more autonomy. That these men did so, seemingly against male interests and i n the absence of a v i s i b l e feminist movement reveals much about nineteenth century English Canadian ideas about law, family and gender r e l a t i o n s . This study w i l l examine the circumstances surrounding the passage of the Married Women's Property Act and the j u d i c i a l response to i t . The statute was an attempt on the part of l e g i s l a t o r s to c l a r i f y and f a c i l i t a t e married women's actions i n the marketplace, while accomodating new ideas about women's place i n society. But despite the rhe t o r i c about women's rights and the b i l l ' s more e g a l i t a r i a n p o t e n t i a l , i t pre c i p i t a t e d no domestic 2 revolution. The courts, i n turn, ignored the l e g i s l a t i o n ' s more l i b e r a l provisions and interpreted i t s o l e l y as a protective measure. Notwithstanding t h e i r d i f f e r e n t views on gender r e l a t i o n s and marital property reform, l e g i s l a t o r s and judges shared common b e l i e f s about the importance of family l i f e . Consequently, the law defended women's legal r i g h t s as family members more than as i n d i v i d u a l s . Overall, the b i l l represented a compromise. Although i t was meant to a l l e v i a t e some of a wife's legal d i s a b i l i t i e s so that she could p a r t i c i p a t e more f r e e l y i n the economic l i f e of the community, i t was also grounded i n the V i c t o r i a n paternalism^ of the l e g i s l a t o r s who enacted i t and the judges who enforced i t . As a r e s u l t , despite the challenge presented by the provisions of the Married Women's Property Act, the doctrine of marital unity proved remarkably r e s i l i e n t . For t h i s reason the study w i l l explore the ways in which economic, s o c i a l and id e o l o g i c a l forces shaped the laws that defined, and were defined by, women's r o l e and status i n the V i c t o r i a n family of B r i t i s h North America. Other scholars have examined the subject of women, property and the law, and the i r work provides a t h e o r e t i c a l 1. According to Webster's Dictionary. 3rd. ed., 1976 paternalism i s defined as "the care of control of subordinates (as by a government or employer) i n a f a t h e r l y manner. A system under which an authority undertakes to supply needs or regulate conduct of those under i t s control i n matters a f f f e c t i n g them as individuals as well as i n th e i r r e l a t i o n s to authority and to each other." I would emphasize the benevolent nature of t h i s paternalism as i t affected women i n the V i c t o r i a n period. 3 framework from which to s t a r t . Considering the fundamental importance of property i n determining status and power, i t i s not surpr i s i n g that historians have been interested i n how the law has defined women's property r i g h t s . In esta b l i s h i n g the law as a key to understanding women's place i n society, American women's legal h i s t o r i a n Marylynn Salmon pointed out that: Although a woman's legal r i g h t s constitute only one of several strands necessary for defining her status, control over property i s an important baseline for learning how men and women share power i n the family.2 In t h e i r e f f o r t s to understand law, gender r e l a t i o n s , and the d i s t r i b u t i o n of power within the family, h i s t o r i a n s have made women's status a major theme i n the l i t e r a t u r e . In doing so they have l a i d the groundwork for debate over the central question of why and under what circumstances, the rules governing women's property changed. To date, Canadians have touched upon, but far from exhausted the major issues presented i n the far more extensive body of work written by B r i t i s h and American scholars.3 2. Marylynn Salmon, Women and the Law of Property i n Early America. (Chapel H i l l : The University of North Carolina Press 1986), x i i . 3. Very l i t t l e work has been done i n Canada s p e c i f i c a l l y on women and the c i v i l law and property. See for example, Constance B. Backhouse, "Married Women's Property Law i n Nineteenth Century Canada", Law and History  Review 6, no.2 ( F a l l 1988) 211-57; Backhouse, " NPure Patriarchy': Nineteenth Century Canadian Marriage," McGill  Law Journal 31 (March 1986) 264-312; and Peter Ward, Courtship. Love and Marriage i n Nineteenth Century English 4 The question of women's status i s the central theme i n the l i t e r a t u r e on women's property law. But although there i s a consensus amongst historians that, by the nineteenth century, ideas about the family were markedly d i f f e r e n t from e a r l i e r times, and that these changes affected women's status, h i s t o r i a n s of women and those of the family have approached the topic from very d i f f e r e n t angles. Each has studied the law as an external measure of in t e r n a l change within the family. However, i n the context of leg a l r i g h t s , family h i s t o r i a n s considered these rig h t s p r i m a r i l y i n r e l a t i o n to the family as a whole, whereas feminist h i s t o r i a n s focussed on the rights of women as i n d i v i d u a l s . Thus, d i f f e r i n g i n i t i a l assumptions have determined the kinds of questions which have been asked, and the conclusions which have been drawn. Many family historians argue that nineteenth century family relationships were transformed by the r i s e of what Canada (Montreal: McGi11-Queen's University Press 1990), 32-49. Although Backhouse refers b r i e f l y to B r i t i s h Columbia, these works focus primarily on eastern Canada. On B r i t i s h Columbia s p e c i f i c a l l y , no comprehensive study e x i s t s aside from two very early t r e a t i s e s on women and the law. See Helen Gregory MacGill, Daughters. Wives and Mothers i n B r i t i s h Columbia: Some Laws Regarding Them. 2nd ed., (Vancouver: The Moore Pr i n t i n g Co. Ltd., 1913) and C.B. Townley, Points i n the Laws of B r i t i s h Columbia regarding  the Legal Status of Women. (Vancouver: B r i t i s h Columbia P o l i t i c a l Equality League, c.1911). For an overview of MacGill's involvement i n law and legal reform see E l s i e MacGill, My Mother the Judge. (Toronto: Ryerson Press 1955). 5 Lawrence Stone defines as "af f e c t i v e individualism".^ Marriages, previously arranged according to economic and family considerations, were e s s e n t i a l l y c a l c u l a t i v e , emotionally distant arrangements i n which family needs came before those of the i n d i v i d u a l . However, a growing emphasis on i n d i v i d u a l r i g h t s coupled with a increasing tendency to choose partners on the basis of emotion and a f f e c t i o n , meant that marriage became an a f f a i r of the heart, not the head. The family, hitherto subject to community scrutiny, became a refuge from the outside world, i n which women's r o l e was that of nurturer i n a separate but equal domestic sphere. Women's status i n thi s new e g a l i t a r i a n marriage rose accordingly.5 Having established the companionate marriage as the basis for V i c t o r i a n family r e l a t i o n s h i p s , h i s t o r i a n s of the family then looked at changing property r i g h t s as one measure of women's higher status. In terms of the law, family historians examined how property was transmitted through pre-mortem and inheritance patterns. To t h i s end, they were interested i n how these practices affected the family's s t r u c t u r a l , economic and demographic c h a r a c t e r i s t i c s . Women's dowry, pre-nuptial 4. Lawrence Stone, The Family. Sex and Marriage i n England 1500-1800. (New York: Penguin Books Ltd. Abridged Ed. 1984), 22. 5. For an overview of the "sentiments approach" i n family history, see Michael Anderson, Approaches to the  History of the Western Family 1500-1914. (London: MacMillan Press, Ltd., 1980), 39-64. 6 agreements, dower rights and w i l l s , provided a basis for discussing women's changing legal status.^ i n his i n f l u e n t i a l work on the English family, Lawrence Stone maintained that before the age of sentiment, women were subject to the "near absolute authority of the husband."7 In the Canadian context, Peter Ward found that "feminine autonomy grew su b s t a n t i a l l y from at lea s t the 1850's onward."8 The c r u c i a l point for such family h i s t o r i a n s as these was that legal changes a f f e c t i n g women r e f l e c t e d new perceptions of the family, s p e c i f i c a l l y the idea of the companionate marriage. In th e i r view, the laws did not f a i l to achieve women's equality because they were never designed for t h i s purpose. Rather, legal reform was undertaken to make women's po s i t i o n as family members more equitable, thereby r e f l e c t i n g t h e i r improved status i n the family. Although women's historians agree that by the end of the nineteenth century women's property r i g h t s had improved su b s t a n t i a l l y , they regard family h i s t o r i a n s conclusions about women's status as overly o p t i m i s t i c . In a c r i t i q u e of family history, Rayna Rapp, E l l e n Ross and Renate Bridenthal noted that because family historians view the family as a 6. Anderson, Approaches to the History of the Western  Family . 48-49; Anderson describes the Household Economics approach which emphasizes these'practices , 65-84. 7 . Stone, The Family. Sex and Marriage i n England 1500- 1800 . 221. 8. Peter Ward, Courtship. Love and Marriage i n Nineteenth-Century English Canada. 175. 7 homogeneous unit, they f a i l to address the c o n f l i c t i n g i n t e r e s t s that sometimes e x i s t between family members. In fact, according to them: There are four assumptions which obscure the h i s t o r i c a l experience of women i n famil i e s : that the family i s a natural unit...that i t i s the only one i n which s i g n i f i c a n t emotional contact takes place, that sexes and generations experience families i n the same way and that t h e i r needs and inter e s t s are i d e n t i c a l . . . and that the best way to conceptualize r e l a t i o n s among family members i s under the rubric of ro l e with i t s implications of harmony and of a process of simple "training" i n how to f i l l them. 9 Consequently, women's historians have looked beyond the ide a l of the companionate marriage to explore how the concept of separate but equal spheres both oppressed and empowered women. From a feminist h i s t o r i c a l perspective, women's economic, s o c i a l and legal d i s a b i l i t i e s were perpetuated by th e i r exclusion from public l i f e . Nevertheless, women used th e i r p o s i t i o n as "angels of the house" to j u s t i f y t h e i r s o c i a l reform a c t i v i t i e s , including demands for legal change.10 y . Rayne Rapp, E l l e n Ross, and Renate Bridenthal, "Examining Family History", Judith Newton, M. Ryan and J. Walkowitz, eds., Sex and Class i n Women's History. (London: Routeledge and Kegan Paul 1983), 241. 10. In the Canadian l i t e r a t u r e , see for example, Carol Lee Bacchi, Liberation Deferred? The Ideas of the English- Canadian Suffragists 1877-1918. (Toronto: University of Toronto Press 1983) and Linda Kealey, ed. , A Not  Unreasonable Claim: Women and Reform i n Canada. 1880s-1920s. (Toronto: The Women's Press 1979). 8 In the growing f i e l d of women's leg a l history, three i n t e r - r e l a t e d l i n e s of inquiry regarding women's status and property law have emerged: statutory reforms i n i t i a t e d by l e g i s l a t o r s and legal professionals within the l e g a l system i t s e l f , s t r u c t u r a l economic changes, and the ro l e of nineteenth century feminists i n leg a l reform. By the 1850's, i n England, the United States, and Canada, many l e g i s l a t o r s and legal professionals urged reform of married women's property laws. Peggy Rabkin's study of the American c o d i f i c a t i o n movement indicates the extent to which legal reform i n several areas of the law was thought to be necessary.il S i m i l a r l y , Constance Backhouse's work i n Canada documents l e g i s l a t i v e e f f o r t s to reform marital property law and j u d i c i a l interpretations of those laws.12 Structural economic changes also made i t necessary to change property laws a f f e c t i n g women, p a r t i c u l a r l y i n North America where commercial markets and debtor-creditor r e l a t i o n s 11. Peggy A. Rabkin, "The Origins of Law Reform: The Social Significance of the Nineteenth-Century C o d i f i c a t i o n Movement and Its Contribution to the Passage of the Early Married Women's Property Acts." Buffalo Law Review 24 (1974-75), 683-760. 12. Constance B. Backhouse, "Married Women's Property Law i n Nineteenth Century Canada", 211-57. See also Backhouse, Petticoats and Prejudice: Women andd Law i n Nineteenth Century Canada. (Toronto: The Osgoode Society, 1991), 177-80 i n which property laws are discussed b r i e f l y . 9 rendered e x i s t i n g l e g i s l a t i o n inadequate .13 The t h i r d issue - that of women's rol e i n leg a l reform - i s central to a feminist h i s t o r i c a l perspective . 1 4 By placing women at the center of h i s t o r i c a l inquiry, scholars have analyzed the ways i n which women a c t i v e l y sought and influenced l e g a l change. However, i n cer t a i n instances, t h i s approach presents d i f f i c u l t i e s . Nineteenth century feminists worked to change the laws regarding married women's property, using a va r i e t y of strategies including p e t i t i o n s , l e t t e r writing campaigns and public speaking engagements.I 5 Yet, statutes were also 1 J . See for example, Norma Basch, In the Eyes of the  Law: Women. Marriage and Property i n Nineteenth-Century New York, (Ithaca: Cornell University Press, 1982); Marylynn Salmon, Women and the Law of Property: Richard H. Chused, "Late Nineteenth Century Married Women's Property Law: Reception of the Early Married Property Acts by Courts and Le g i s l t o r s " , American Journal of Legal History. 29, No .1, (January 1985), 3-35. 1 .^ See Basch, In the Eyes of the Law: Lee Holcombe, Wives and Property: Reform of the Married Women's Property  Law i n Nineteenth-Century England. (Toronto: University of Toronto Press 1983); Dorothy Stetson, A Woman's Issue: The  P o l i t i c s of Family Law Reform i n England. (Westport: Greenwood Press 1982); Mary Lyndon Shanley, Feminism.  Marriage and the Law i n Vi c t o r i a n England. 1850-1895. (Princeton: Princeton Universtiy Press 1989); For an overview of wmen's legal history see, Norma Basch, "The Emerging Legal History of Women i n the United States: Property, Divorce and the Constitution", Signs: Journal of  Women and Culture i n Society. 1986, Vol. 12, No.l, 97-117; and Mary Lyndon Shanley, "Suffrage, Protective Labor L e g i s l a t i o n , and Married Women's Property Laws i n England", Signs: Journal of Women and Culture i n Society. 1986, Vol. 12, No. 1, 62-77. 15. For e a r l i e s t feminist e f f o r t s i n Canada, see Backhouse, "Married Women's Property Law", 222-223; also c i t e d i n Ward, Courtship. Love and Marriage. 40. 10 passed without the influence of such campaigns. Norma Basch argues that l e g i s l a t o r s ' willingness to enact such laws under these conditions presents a major challenge for scholars of women's legal history, arguing that: From a feminist h i s t o r i c a l perspective, one central and troubling question i s why male l e g i s l a t o r s gave women le g a l r i g h t s that had been denied them for centuries.16 From Basch s observation, we can begin to grasp the complex and ambiguous nature of law and gender r e l a t i o n s . I t i s not enough to document gender bias i n the law based on the knowledge that men did, i n fact, make the laws, and women were, indeed, r e s t r i c t e d by them. Basch's question about male l e g i s l a t o r s requires scholars to move beyond t h i s obvious fact to examine legal continuity as well as change. Basch argues, for instance, that despite the enormous s o c i a l and economic changes that occurred i n nineteenth century New York, the legal doctrine of marital unity, which subsumed women's legal i d e n t i t y under that of t h e i r husbands, endured.17 Both Basch and Marylynn Salmon point out the importance of considering i d e o l o g i c a l and s o c i a l factors as well as economic forces to explain the passage of marital property l e g i s l a t i o n . Salmon's American study revealed that, on i t s own 16. Basch, "The Emerging Legal History of Women", 103. 1 7. Basch, In the Eyes of the Law. 225-226. 11 . . .economic change could foster l e g a l rules that both benefitted and harmed married women. There was no d i r e c t c o r r e l a t i o n between economic change and an expansion of women's r i g h t s . The nature of a s p e c i f i c l e g a l reform, whether i t improved the po s i t i o n of women or not, depended on forces other than economic ones. The most important determining forces were i d e o l o g i c a l and social.18 In terms of Basch's question about male l e g i s l a t o r s , then, we must be aware of contemporary feminist influences but, at the same time, recognize that l e g i s l a t o r s and the j u d i c i a r y were not concerned primarily with women's equality, but with t h e i r membership i n the family. This i s a c r u c i a l d i s t i n c t i o n to keep i n mind, and one that benefits from drawing upon both feminist and family h i s t o r i c a l perspectives. The work of two family historians suggests ways i n which we might approach the question Basch posed. In his study of love, courtship and marriage i n nineteenth century English Canada, Peter Ward touches upon the issue of married women and th e i r property, and i n doing so, of f e r s a broader i n t e r p r e t a t i o n of the meaning of these laws. He acknowledges the law's pat r i a r c h a l nature, but argues that scholars have defined patriarchy too narrowly by assuming i t to mean simply "men's supremacy over women". But patriarchy was a system of s o c i a l organization i n which a l l family members, husbands, wives and children, placed the int e r e s t s 18. Salmon, Women and the Law of Property. 190. of the family f i r s t rather than t h e i r own. The law also placed the interests of the family before those of the i n d i v i d u a l . In doing so, Ward observes that the law ...defended the family as a s o c i a l i n s t i t u t i o n . . . I t strengthened the family as the primary unit i n community l i f e . The law gave no consideration to equality within the family. Instead i t lent i t s support to the s o l i d a r i t y of family l i f e . 1 9 Ward's observations provide a useful s t a r t i n g point from which to explore Basch's question. If we begin with the premise that male l e g i s l a t o r s and the j u d i c i a r y acted i n what they perceived to be the interests of the family, then we must take into account t h e i r ideas about both male and female roles and r e s p o n s i b i l i t i e s . In t h i s context, Michael Grossberg discusses the j u d i c i a l response to domestic r e l a t i o n s laws. Judges, too, were influenced by V i c t o r i a n ideas about gender r o l e s , and they translated ...the era's gender assumptions into binding rules. It i s i n views towards gender that a portion of the d i s t i n c t i v e f a b r i c of issues i n domestic r e l a t i o n s law becomes clear, p a r t i c u l a r l y the r o l e that ideal images of family members have played i n legal change.20 Neither Ward nor Grossberg deny that women's leg a l capacity was l i m i t e d but the family h i s t o r i a n s ' perspective reminds 19. Ward, Coutship. Love and Marriage. 49. 20. Michael Grossberg, "Crossing Boundaries: Nineteenth Century Domestic Relations Law and the Merger of Family and Legal History", American Bar Foundation Research Journal. ( F a l l , No. 4, 1985), 808. us that, for Victorians, the family was ce n t r a l , and both men and women were s o c i a l i z e d i n p a r t i c u l a r ways to meet f a m i l i a l goals. It i s with these points i n mind that t h i s study addresses the question of why male l e g i s l a t o r s i n B r i t i s h Columbia enacted a married women's property act and why the courts responded to i t as they did. 14 Chapter I: Women, Family, and Property Law i n 19th Century B r i t i s h Columbia "...laws, customs and usuages of a bygone age,..." On January 15, 1873, an e d i t o r i a l i n the V i c t o r i a Daily Standard discussed the proposed Married Women's Property Act then being considered i n the l e g i s l a t u r e . In doing so, the writer proclaimed: We are assuredly l i v i n g i n a progressive period of the world's h i s t o r y . Many laws, customs and usuages (si c ) of a bygone age, that may have answered t h e i r purpose very well when f i r s t introduced, have outgrown t h e i r day of usefulness and are now i l l adapted to the purpose for which they were o r i g i n a l l y i n s t i t u t e d or to meet the requirements of the present more enlightened generation. Among these i s the law which gives the husband absolute proprietary rig h t s to the property of his w i f e . . . l Just what was the law, and how had i t outgrown i t s usefulness? To understand the implications of the 1873 statute, we must f i r s t know something about how the law previously dealt with married women's property. At the outset i t i s important to note that l e g i s l a t i o n was only one aspect of the law and that statutes functioned i n association with common law and the law of equity to constitute the body of laws that affected married women's property. It i s l e g i s l a t i o n , however, that best r e f l e c t s contemporary concerns as lawmakers formulated public p o l i c i e s based on th e i r community's needs, and t h e i r own ideas about family l i f e . 1. V i c t o r i a Daily Standard. 15 January 1873. 15 I n t h e e a r l y n i n e t e e n t h c e n t u r y , t w o b o d i e s o f B r i t i s h l a w d e f i n e d m a r r i e d w o m e n ' s p r o p e r t y r i g h t s . U n d e r c o m m o n l a w , m a r r i e d w o m e n h a d n o s e p a r a t e p r o p e r t y r i g h t s a p a r t f r o m t h e i r h u s b a n d s . B u t t h e l a w o f e q u i t y e n a b l e d f a m i l i e s t o d r a w u p m a r r i a g e s e t t l e m e n t s o r e s t a b l i s h o t h e r t r u s t s t h a t w o u l d p r o v i d e s e p a r a t e e s t a t e s f o r t h e i r w i v e s a n d d a u g h t e r s . W h e n c o l o n i a l s e t t l e r s c a m e t o t h e n e w w o r l d , t h e y b r o u g h t t h e s e s a m e l a w s w i t h t h e m . B u t i n B r i t i s h N o r t h A m e r i c a , a c c e s s t o e q u i t a b l e d e v i c e s w a s e v e n m o r e l i m i t e d t h a n i n B r i t a i n . I n a d d i t i o n , c o l o n i a l l e g i s l a t o r s s o m e t i m e s f o u n d i t n e c e s s a r y t o d r a f t n e w l e g i s l a t i o n t o m e e t l o c a l e c o n o m i c a n d s o c i a l c o n d i t i o n s . S u c h w a s t h e c a s e i n E a s t e r n C a n a d a a n d i n t h e c o l o n y o f V a n c o u v e r I s l a n d w h e r e l e g i s l a t o r s i n t r o d u c e d t h e e a r l i e s t s t a t u t e s r e f o r m i n g t h e c o m m o n a n d e q u i t y l a w t r a d i t i o n s o f m a r i t a l p r o p e r t y . T h e s e f i r s t B r i t i s h N o r t h A m e r i c a n s t a t u t e s w e r e d e s i g n e d o n l y t o p r o t e c t d e s e r t e d w i v e s p r o p e r t y a n d e a r n i n g s i n c a s e s o f m a r r i a g e b r e a k d o w n . L e g i s l a t o r s w e r e n o t c o n c e r n e d w i t h w o m e n ' s l e g a l o r e c o n o m i c e q u a l i t y , b u t w i t h s a f e g u a r d i n g w o m e n i n t h e i r c a p a c i t y a s w i v e s a n d m o t h e r s w h e n m e n n e g l e c t e d t h e i r f a m i l i a l d u t i e s . O n V a n c o u v e r I s l a n d , w i t h i t s p r e d o m i n a n t l y m a l e p o p u l a t i o n , l e g i s l a t o r s , c o m m u n i t y l e a d e r s a n d g o v e r n m e n t o f f i c i a l s t r i e d t o e n c o u r a g e a s o l i d f a m i l y p r e s e n c e . T h e b i l l i n t r o d u c e d b y l e g i s l a t o r s i n 1862 w a s i n t e n d e d t o p r o t e c t e x i s t i n g f a m i l i e s w h e n h u s b a n d s d i d n o t . B u t i n o r d e r t o 16 understand why th i s early l e g i s l a t i o n was necessary, we must f i r s t examine B r i t i s h law regarding marital property because i t provided the basic framework for Canadian law. The law i n B r i t i s h Columbia as i n a l l Canadian provinces except Quebec, stems from B r i t i s h common law,2 which was o r i g i n a l l y derived from feudal law and C h r i s t i a n doctrine. In time, j u d i c i a l decisions were embodied i n case law or a body of jurisprudence that was based on past decisions of the court. Under B r i t i s h common law a married woman came under the legal protection of her husband. The legal f i c t i o n or doctrine of marital unity, or coverture, had profound implications for women. The s i t u a t i o n was summed up i n 1856 i n The Upper Canada Law Journal: The natural rights of man and woman are, i t must be admitted, equal; entering the married state, the woman surrenders most of them; i n the possession of c i v i l r i g h t s before, they merge i n her husband; i n the eye of the law she may be said to cease to exist.3 In p r a c t i c a l terms, t h i s meant that a married woman could not sue or be sued i n her own name, make a w i l l , or contract with either her husband or a t h i r d party. A l l her r e a l and personal property was controlled by her spouse. She could not c o l l e c t rents or p r o f i t s from her re a l property, nor 2. Law i n Quebec i s based on a c i v i l law t r a d i t i o n and w i l l not be dealt with here. For an overview of the B r i t i s h legal t r a d i t i o n i n Canada see Gerald L. G a l l , The Canadian  Legal System. 2nd ed. (Toronto: Car swell Legal Publications, 1983), chap. 4. 3 . The Upper Canada Law Journal . 2 (1856): 217. 17 could she engage i n business or trade without his consent. Furthermore, he was e n t i t l e d to a l l her earnings or wages. Although the law required a wife's written consent before her husband could s e l l her re a l property, he could dispose of her personal property as he wished. In e f f e c t , a married woman's legal capacity was li m i t e d severely under common law, as was her a b i l i t y to act i n her own economic i n t e r e s t s . In the event of separation or desertion by the husband, a wife, under common law, had l i t t l e recourse. She could not sue her spouse for maintenance because the law did not recognize her as a separate legal e n t i t y . If she supported herself, her husband could s t i l l claim a l l of her earnings and income. She could attempt to obtain c r e d i t from merchants for the necessities of l i f e , but creditors were often reluctant to take such r i s k s . In short, wives who l i v e d apart from t h e i r spouses were dependent upon the i r husband's goodwill to provide for them. If such goodwill was not forthcoming, these women were extremely vulnerable. But common law was only one branch of the law that determined women's property r i g h t s . Under the law of equity, women's po s i t i o n was improved su b s t a n t i a l l y . In the B r i t i s h l e g a l system, the law of equity evolved as a corr e c t i v e to common law. In equity, a woman could have a separate estate and she enjoyed special protection because of her married status. The usual device for protecting a woman's r e a l or 18 personal property was to s e t t l e i t on her as a t r u s t . A pre- or post-nuptial agreement was drawn up and often a trustee was appointed to manage her assets. Depending upon the terms of the agreement, a woman might exercise considerable control over her estate. In some instances, she could carry on business, make contracts, and sue or be sued i n r e l a t i o n to her separate property. She could also make a w i l l to dispose of her estate. In cases of separation, a deed of separation could be drawn up to provide maintenance for the wife. A husband who deserted his wife could be ordered by the court to provide support for her. Under the law of equity, married women could enjoy many of the benefits of property ownership, while s u f f e r i n g few of the l i a b i l i t i e s . Overall, t h e i r husbands were s t i l l l e g a l l y responsible for them. But although women's legal status i n equity was far better than under common law, these advantages were availa b l e only to those who could a f f o r d to engage i n the lega l proceedings necessary to e s t a b l i s h such t r u s t s . In B r i t a i n , the common law/equity system created sharp differences i n the legal status of r i c h and poor women. For the fortunate few, equity provided varying degrees of legal and f i n a n c i a l autonomy. For the poor, i t had l i t t l e meaning. Such le g a l forms could not defend the i n t e r e s t s of the poor, most of whom could not afford recourse i n c i v i l courts, and who therefore l i v e d material l i v e s bounded more 19 by popular custom than by any set of formal rules. Nevertheless, by the 1850's, B r i t i s h feminists and l e g a l reformers a l i k e were c a l l i n g for new l e g i s l a t i o n that would bridge the gap between common law and equity, improving a l l women's legal status, regardless of t h e i r s t a t i o n i n l i f e . 4 This same body of law, with a l l of i t s flaws, was i n h e r i t e d by c o l o n i a l women for whom i t created even greater d i f f i c u l t i e s . In some ways, Canadian women's leg a l status was even more precarious than was that of t h e i r English counterparts. Property law f e l l under p r o v i n c i a l j u r i s d i c t i o n and i t varied from province to province. Furthermore, according to Constance Backhouse, courts of equity developed sporadically, sometimes were non-existent, and were inaccessible to many. One of the consequences of t h i s circumstance may have been that marriage settlements were far less common i n Canada than i n B r i t a i n . Certainly, Peter Ward's findings for Ontario seem to confirm this. 5 Although we do not know the extent to which t h i s t r a d i t i o n a l device for protecting women's property was used i n B r i t i s h 4. For t h i s summary of common law and equity, I draw on Norma Basch, In the Eyes of the Law: Women. Marriage and  Property i n Nineteenth Century New York, chapters 1-3. Lee Hoicombe, Wives and Property: Reform of the Married Women's  Property Law i n Nineteenth Century England, chapters 2-3. 5. Constance B. Backhouse, "Married Women's Property Law i n Nineteenth Century Canada",211. Peter Ward, Courtship. Love, and Marriage i n Nineteenth-Century English  Canada.42-47. 20 Columbia, for example, evidence indicates that some prominent families did take advantage of i t . ^ Backhouse notes that B r i t i s h Columbia courts had always been capable of equitable j u r i s d i c t i o n so t h e o r e t i c a l l y , at least, c o l o n i s t s who had settlements drawn up i n England could have had them enforced i n B r i t i s h Columbia and new marriage settlements could also have been properly drawn up and processed.^ Settlements, as B r i t i s h c r i t i c s had already argued, were not without th e i r drawbacks, because, unlike l e g i s l a t i o n , they were established on an in d i v i d u a l basis. Furthermore, th e i r terms could be changed, sometimes to a woman's disadvantage. The post-nuptial agreement drawn up by Colonel Richard C. Moody (Chief Commissioner of Lands and Works, and Commander of the Royal Engineers) i s a case i n point. Although marriage settlements were usually drawn up as a way to ensure married women's separate economic in t e r e s t s were protected, t h i s was not always the only motive for esta b l i s h i n g t r u s t s . They could also be used to safeguard family assets that might otherwise be subject to seizure, or i n the case of government o f f i c i a l s , public censure. Such may have been the case for Col. Moody, when, on A p r i l 11, 6. While I have not done an extensive or comprehensive search for settlements, I did f i n d reference to such agreements for two prominent families. See Crease Family Papers, B r i t i s h Columbia Archives and Records Services, (hereafter BCARS). MS. Moody Family Papers, BCARS. MS. 7. Backhouse, "Married Women's Property Law", 215. 1860, he instructed his lawyer, Henry P. Crease, to draw up a post-nuptial settlement for his wife, Mary Susannah Moody. In i t , he gave her t i t l e to a l l his property holdings i n B r i t i s h Columbia. Moody explained that he was doing so because Mrs. Moody's father had given her a very small, inadequate settlement when she married. Moody said that he wanted his wife to have more security and he set out the terms of the agreement i n which he stated: I do not s e t t l e i t on her i n a t r u s t nor do I appoint trustees nor do I desire to have the s l i g h t e s t atom of power over i t or benefit i n i t myself. I wish i t to be  an e n t i r e l y free g i f t for her to do what  she pleases with. She may s e l l i t tomorrow and buy sugarplums with i t . I wish i t to be hers as s o l e l y and e n t i r e l y as i t i s possible for the law to make i t . God knows what may happen i n th i s world of change and uncertainty and I hope i t may prove of some service to her. I have other reasons besides the above a l l good and s u f f i c i e n t but I need not allude to them.8 Although Moody no doubt was motivated by a genuine desire to look a f t e r his wife, the "other reasons" he alluded to may have influenced his actions more strongly than he suggests to Crease. In 1860 and 1861, Moody was embroiled i n a scandal, reported i n the newspapers, that involved his land holdings. The implication was that he had used knowledge acquired i n his o f f i c i a l p o s i t i o n to take advantage of c e r t a i n land 8 . R.C. Moody to H.P. Crease, 11 A p r i l , 1860. Moody Family Papers. BCARS. Add MSS 60. 22 purchases. In February of 1861, The B r i t i s h Columbian went so far as to publish an anonymous l e t t e r accusing Moody of "land-grabbing." 9 Under these circumstances, he may well have decided i t would be best to transfer his property to his wife. By 1863, however, Moody had drawn up a new Deed of Agreement e s s e n t i a l l y r e - r e g i s t e r i n g at least some of the property i n his own name. This agreement, according to court records, was subsequently not recognized by the Registrar "on the grounds that t h i s property was s e t t l e d on Mary Susannah Moody his wife by Moody by a post-nuptial settlement made i n B r i t i s h Columbia." 10 Subsequently, i n 1874, Moody applied to the Supreme Court to re - r e g i s t e r the t i t l e . According to Justice John Hamilton Gray, the Registrar rejected Moody's deed because when i t was drawn up in 1863, the record did not show that Mrs. Moody had been questioned apart from her husband as to whether she wanted to transfer the land. This was a requirement under the Land Registry Act, 1861. Gray reserved decision on the matter pending more information on how simi l a r cases had been decided.H 9 Margaret Ormsby, "Richard Clement Moody" Dictionary  of Canadian Biography. 1881-1890, 2 (Toronto: University of Toronto Press 1982) 606. 10. B.C. Supreme Court. (Victoria) Gray Bench Book. 1872-1875. BCARS, GR 1727 Vol. 453. 11 Ibid. 23 The legal complications that resulted i n Moody's case i l l u s t r a t e that the protective mechanism of separate examination was e f f e c t i v e i n protecting his wife's i n t e r e s t s . Not ensuring that his deed was properly registered with a l l documentation caused Moody considerable inconvenience. More s i g n i f i c a n t l y , however - and t h i s i s the larger point - such agreements were not necessarily permanent. They could be reversed by a husband whose economic circumstances had changed, and we do not know, i n fact, how many wives would object to such transfers even under separate questioning. In these situations the l i m i t a t i o n s of i n d i v i d u a l marriage settlements become obvious. Only l e g i s l a t i o n had the pot e n t i a l to protect married women's separate property i n a way that was not subject to the whims or changing fortunes of t h e i r spouses. In the colonies, where more t r a d i t i o n a l means of dealing with married women's property were not widely used, statutory law took on an added importance. In a survey of Canadian Married Women's Property Acts, Constance Backhouse notes that Canadians a c t u a l l y passed such statutes before B r i t a i n . New Brunswick was the f i r s t to do so i n 1851, followed by other Maritime colonies i n the 1860's. In 1859, the Ontario l e g i s l a t u r e also passed a b i l l , influenced by New York laws and reformers' demands. Of the western colonies only Vancouver Island enacted an early law i n 1862, regarding deserted wives. These f i r s t statutes, for 24 the most part, were supposed to protect a woman's property and earnings i n cases of marriage breakdown. The wording of the statutes was often ambiguous and judges tended to int e r p r e t them conservatively when they had occasion to refer to them. 12 These early laws were not concerned with women's equality, but with the preservation of families i n the absence of husbands and fathers. Therefore, l e g i s l a t o r s emphasized the unique nature of b i l l s that were meant to deal with a very s p e c i f i c set of circumstances. In B r i t i s h Columbia, Backhouse suggests that "An Act to Protect the Property of a Wife deserted by her Husband" was passed on Vancouver Island i n 1862, i n response to the economic conditions i n the colonies, a reasonable assumption given the nature of the colony's boom and bust economy. The b i l l introduced i n the l e g i s l a t u r e by D. Babington Ring would secure a woman's property and earnings to her "as i f she were a feme sole and. . . (would) place her i n the l i k e p o s i t i o n with regard to property and contracts as she should be supposing her to have obtained a J u d i c i a l Separation." 13 The b i l l was an emergency measure meant to enable a woman who had been abandoned to support herself and her children without interference from her r e c a l c i t r a n t husband or his 12. For a summary of l e g i s l a t i o n passed, see Constance Backhouse, "Married Women's Property Law", 217-219. 13. Journals of the Colonial Legislatures of the  Colonies of Vancouver Island and B r i t i s h Columbia. 2, James Henrickson, ed. ( V i c t o r i a : P r o v i n c i a l Archives of B r i t i s h Columbia 1980 ) , 340. 25 c r e d i t o r s . Its provisions stated that i f a wife could show that her husband had deserted her "without reasonable cause," she could apply to a court o f f i c e r , the Chief Ju s t i c e , a Police Magistrate, or a J u s t i c e , for an "order of protection" to safeguard her earnings and property. The order was to be e f f e c t i v e from the date of the order, not the desertion. I t had to be duly registered with the Registrar of the Supreme Court within ten days to be considered valid.14 j u s t what constituted reasonable cause i s unclear, but c e r t a i n l y the onus was on the wife to prove that such was the case. In fact, the order of protection clause was p o t e n t i a l l y confusing and the en t i r e procedure was fraught with d i f f i c u l t i e s , as we s h a l l l a t e r see. From a l l appearances, the b i l l proceeded smoothly through the l e g i s l a t i v e process, and i t was given Royal Assent on July 11, 1863. No doubt, those who supported the b i l l shared the sentiments of The B r i t i s h Colonist's editor who declared that "Mr. Ring deserves the thanks of the colony for his exertions i n behalf of distressed females."15 Yet the b i l l was not without i t s c r i t i c s , one of whom recognized the potential problems that the order of protection could e n t a i l . When the l e g i s l a t u r e passed the statute, the Colonial Secretary's o f f i c e i n London was duly 14. An Act to Protect the Property of a Wife Deserted by her Husband, 1862. Public General Statutes of the Colony  of Vancouver Island 1859-1863. C.51 at 20. 1 5. The B r i t i s h Colonist. 27 May 1862. informed, as was customary. In his reply, the Duke of Newcastle expressed misgivings about the law. The a l t e r a t i o n made by the Act i n the Imperial Law for protecting the property of deserted wives seems an a l t e r a t i o n for the worse, as i t appears that a poor woman, deserted by her husband, who by honest industry has c o l l e c t e d a l i t t l e property, w i l l not be able, under the present Act, without troubling herself about questions of law, to obtain any protection for the property so acquired but w i l l remain l i a b l e (notwithstanding any order she may subsequently obtain) to have the whole of that property swept away by the husband or creditors of the husband who has deserted her.16 The Imperial Law he referred to may have been the Matrimonial Causes Act or Divorce Act of 1857, which did make provisions for deserted wives' property. However, why he would do so i s unclear, because the Divorce Act also required that an Order of Protection be issued, and i n fact, the Vancouver Island statute appears to be c l o s e l y modelled on the 1857 B r i t i s h law.17 Nevertheless, the Colonial Secretary's observation about the order of protection was astute and his c r i t i c i s m well founded, as w i l l become apparent when we l a t e r look at court records. 1". Colonial Secretary. Vancouver Island. 1862. Colonial Correspondence.BCARS. GR 1372, Reel B-1314, F i l e 319. 17. see Great B r i t a i n . Statutes. The Matrimonial Causes Act, 1857. 20 & 21 V i c t . , c.85 and also 1858, 20 & 21 V i c t . c.108. 27 The 1862 act dealt only with cases of family breakdown, and as such, did not extend women's separate property r i g h t s within marrige. The l i m i t e d scope of the b i l l ' s provisions was very much i n keeping with more conservative b e l i e f s about family and the respective roles and r e s p o n s i b i l i t i e s of i n d i v i d u a l family members. Clearly, Vancouver Island l e g i s l a t o r s thought that the colony required additional l e g i s l a t i o n over and above that provided by B r i t i s h law which took e f f e c t when the colony was established i n 1858. Their concerns were twofold: economic conditions and the general well being of families. L e g i s l a t o r s , along with community leaders and government o f f i c i a l s attempted to encourage and strengthen family l i f e as the foundation of a healthy s e t t l e r society. The 1862 statute was designed to safeguard family s t a b i l i t y when i t was threathened by a husband's absence. By the early 1860's, the two colonies of Vancouver Island and the mainland were i n an economic slump. As gold rush fever waned, the predominately male population was once again on the move as miners and other disappointed venturers l e f t the upcountry and converged on V i c t o r i a and New Westminster, seeking employment or on t h e i r way to more promising prospects elsewhere.18 The colonies, burdened by 18. For an overview of B.C. p o l i t i c a l h i s tory, see Margaret Ormsby, B r i t i s h Columbia: A History (Toronto: The MacMillan Co. 1958). For a s o c i a l history, see Jean Barman, The West Beyond the West: A History of B r i t i s h Columbia (Toronto: University of Toronto Press. 1991) 28 huge debts, had few resources to cope with the in e v i t a b l e problems associated with economic hard times. In August of 1862, an e d i t o r i a l i n The B r i t i s h Columbian went so far as to suggest levying a municipal tax to a s s i s t those i n need, observing that: The amount at the command of the Municipal Council i s but small when compared with the number of the unemployed who are d a i l y a r r i v i n g from the upper country.1 9 Given these conditions, the f i n a n c i a l l y strapped government was understandably anxious to take whatever steps necessary to promote economic s e l f - s u f f i c i e n c y . Although benevolent s o c i e t i e s and church c h a r i t i e s no doubt provided a small safety net for some of the unemployed or desti t u t e , t h e i r resources were probably quite li m i t e d . Moreover, i f the precarious f i n a n c i a l circumstances of transient men was worrisome, the p l i g h t of deserted wives and children was doubly so, coupled as i t was with V i c t o r i a n concerns about morality. Under these circumstances, i t seems reasonable that l e g i s l a t o r s would introduce a b i l l to protect deserted wives' earnings and property. Such l e g i s l a t i o n would safeguard a woman who was supporting herself and her family "by her own lawful industry," as the wording of the statute sti p u l a t e d . If women could earn a "respectable" l i v i n g , safe i n the knowledge that the law would protect them, they might 19. The B r i t i s h Columbian 23 August, 1862. 29 be less l i k e l y to f a l l into i l l e g a l occupations or become completely dependent on the community. The colonies could only benefit by a l l e v i a t i n g some of the s o c i a l problems associated with women's poverty. Although there were very few women i n the colonies at th i s point, t h i s did not make concerns about home and family l i f e any less important to those who addressed such issues.20 If anything, the sc a r c i t y of women may have made the sit u a t i o n seem a l l the more compelling to community moral leaders such as the Rev. Matthew MacFie, who noted the " c i v i l i z i n g " influence of the r i g h t sort of woman. Writing i n 1865, he discussed his solution to the moral, s o c i a l and physical i l l s that plagued single men. Frequently have I been delighted to see the b e n e f i c i a l change affected by marriage, i n arresting the progress of di s s i p a t i o n . I t i s only to be regretted that the paucity of respectable females i n Vancouver Island and B r i t i s h Columbia l i m i t s so much the opportunity of single men who desire to c u l t i v a t e domestic vi r t u e s , and lead sober lives.21 In keeping with V i c t o r i a n ideas about women and morality, MacFie distinguished c a r e f u l l y between the colonies' "bad" 20. Barman, The West beyond the West". 89-90. Barman points out that even by the 1870's, the number of non-native women was r e l a t i v e l y small. While she notes that precise census data for the Pre-Confederation period i s based only on estimates, the r a t i o of women to men was approximately 1:3, i n the i n t e r i o r i t was as high as 1:10. Only i n V i c t o r i a was the r a t i o approximately even. 21. Matthew MacFie, Vancouver Island and B r i t i s h  Columbia. Their History. Resources, and Prospects. (London: Longman, Green, 1865), 408. women and i t s ' "good." Of the former, which included p r o s t i t u t e s , schemers, and "widows" of questionable background, he said "...there are too many females i n both colonies, as everywhere else, that r e f l e c t as l i t t l e c r e d i t upon the land of th e i r adoption as they did on the land of th e i r birth."22 F.W. Howay, describing s o c i a l conditions i n the Cariboo i n the 1860's, observed: Cariboo drew to i t s e l f not only miners, but a l l the classes that n a t u r a l l y congregate where money i s p l e n t i f u l and ea s i l y obtained. Gamblers flocked l i k e vultures to the spot. The auth o r i t i e s r e s o l u t e l y set thei r faces against t h i s e v i l , but the vice was too deeply rooted to be completely eradicated. I t merely went under cover and continued to f l o u r i s h i n private. An anomalous class of females, known as the hurdy-gurdy g i r l s , made the i r appearance i n Cariboo... They frequented the saloons and drinking places and, for a money consideration, danced with a l l applicants. But, at the same time, t h e i r morals were above reproach.23 No doubt, Howay was more generous i n his assessment of the hurdy-gurdy g i r l s ' moral character than Rev. MacFie might have been. But his description points out the kinds of so c i a l problems associated with the boom and bust gold economy that community leaders wanted to deter. One way to do t h i s was to encourage families and family l i f e . But 2 2 . Ibid. 23. F.W. Howay, B r i t i s h Columbia. From the E a r l i e s t  Times to the Present. 2 (Vancouver: S.J. Clarke Publishing Co. 1914), 112. 31 "good" families required "good" women who were w i l l i n g to emigrate. In 1862, the Columbian Emigration Society arranged for the f i r s t of two "bride" ships to bring women from London to the colonies. Upon t h e i r a r r i v a l , some of the women went into domestic service, but most of them married. The Society was formed under the auspices of Si r E. B. Lytton and the Duke of Newcastle (Colonial Secretary) i n London, and assisted i n the colonies by the Baroness Burdett-Coutts, a prominent church worker. The organization's mandate was to encourage marriageable young women to come to the colonies to s e t t l e , and i n the process, strengthen family l i f e i n the s e t t l e r society.24 Rev. MacFie, i n a book obviously intended for the London market, emphasized the ample work opportunities available for female emigrants, but also noted that marriage prospects were even better and that "the presence of thi s sex i s as urgently required on s o c i a l and moral grounds."25 other r e l i g i o u s leaders shared MacFie's concerns. In a l e t t e r to the Bishop of Oxford i n London, Rev. Brown also spoke of the need for a s o l i d family l i f e to bu i l d a good community with a strong church. 24. Jackie Lay, "To Columbia on the Tynemouth: The Emigration of Single Women and G i r l s i n 1862", Barbara Latham and Cathy Kess, eds. In Her Own Right: Selected  Essays on Women's History i n B.C. ( V i c t o r i a : Camosun College 1980), 19-41. See also Barman, The West Beyond the West 79-80; Howay, B r i t i s h Columbia. 113-114. 25. MacFie, Vancouver Island and B r i t i s h Columbia. 497. 32 Churches may and must be b u i l t , a f a i t h f u l witness must be borne for holiness and vi r t u e , but where there i s no wedded l i f e churchgoing must be d i f f i c u l t because morality i s almost impossible.26 At the London meeting of the Columbian Emigration Society, the Bishop agreed wholeheartedly with Rev. Brown. He acknowledged the need to balance the proportion of men to women so that c o l o n i a l society could maintain B r i t i s h morals, values and tastes. He also touched upon the "problem" of native women i n B r i t i s h Columbia - a growing concern for many i n the colonies as well as i n London. The Columbian Emigration Society's e f f o r t s to bring B r i t i s h women to s e t t l e i n the colonies r e f l e c t e d a growing bias against intermarriage and common law relat i o n s h i p s with native women. This opinion was expressed not only by r e l i g i o u s leaders l i k e Rev. Brown, writing to his superiors, but also i n the more public forum of the l o c a l newspapers. A l e t t e r to the editor of The B r i t i s h Columbian voiced concern about native women and wondered about the consequences of family breakdown for the children involved. One of the most painful r e f l e c t i o n s a r i s i n g from the state of things i s the probable future awaiting the unhappy offs p r i n g of these connections af t e r the fathers have made th e i r " p i l e s " and deserted both mothers and children.27 26. The B r i t i s h Columbian. 21 June 1862. Also quoted i n Lay, "To Columbia on the Tynemouth", 20-21. 27. The B r i t i s h Columbian. 4 June 1862. 33 So, mixed marriages and common law rela t i o n s h i p s were, i n the eyes of some, undesirable on two counts; the f i r s t was r a c i s t , ethnocentric, and r e l i g i o u s , the second, although not expressed outright, was economic. It i s i n t e r e s t i n g to note that l e g i s l a t o r s d i d not include a provision to exclude native women from using the provisions of the 1862 b i l l . T heoretically, at least, native wives, l e g a l l y married, would have been e n t i t l e d to the same protection as th e i r white counterparts. In practice, of course, we do not know i f native women took advantage of these legal r i g h t s . However, i t seems l i k e l y that, given the transient nature of f r o n t i e r society i n B.C., common law arrangements as well as more casual liasons involving a l l women would have occurred quite regularly. Consequently, the legal status of these women was precarious, to say the leas t . Although commentators usually focussed t h e i r observations on women and women's behaviour, we should not forget that men, too, were assigned a very s p e c i f i c r o l e i n Vi c t o r i a n society, as protectors and providers for the i r wives and children. Men who neglected t h e i r family obligations did not avoid c r i t i c i s m . The underlying assumption of the 1862 statute was that i t protected women whose men had f a i l e d to do so. The editor of The B r i t i s h  Colonist explained that the b i l l was not a divorce b i l l as such and that: 34 Neither has the b i l l been introduced to of f e r rewards for the apprehension of any heathen husband who may c r u e l l y desert his better half; but i t t a c i t l y recognizes the r i g h t of a husband to "emigrate." If a husband be too lazy to provide for his wife, the b i l l don't give the l a t t e r the r i g h t to summarily turn him a d r i f t . There i s nothing even i n the Stamp Act to reach such a Scamp.28 By r e f e r r i n g to the b i l l ' s capacity to "bring about a quasi d i s s o l u t i o n of matrimonial unions," 29 the editor underlined the exceptional nature of the l e g i s l a t i o n . "Good" men, much the same as "good" women, were expected to behave appropriately. When they did not, i t was a matter of good public p o l i c y to ensure that any legal b a r r i e r s were removed that would prevent deserted wives from maintaining economic s e l f - s u f f i c i e n c y . Even though the "Act to Protect the Property of a Wife deserted by her Husband" was passed with l i t t l e fanfare i n 1862, i t s passage did not go e n t i r e l y unnoticed, and discussion about the b i l l anticipated some of the same concerns that would be expressed eleven years l a t e r , i n r e l a t i o n to the 1873 statute. One of the few public responses to the 1862 b i l l was written by a rather perplexed correspondent to The B r i t i s h Colonist, who enquired of the editor: 28. The B r i t i s h Colonist. 27 May 1862. 29. Ibid. 35 Would you be so good as to give some information respecting the B i l l before the House of Assembly, introduced by Mr. Ring, to protect wives deserted by t h e i r husbands. The constituents of Mr. Ring at t h i s place are quite puzzled about the b i l l , and are i n c l i n e d to believe that i t i s introduced to e f f e c t some special case i n V i c t o r i a , as there i s no need for i t at Nanaimo. You, Mr. Editor, who have never f a i l e d to v e n t i l a t e any measure, good or bad, w i l l , I am sure, l e t the public know something of such an uncalled for b i l l - uncalled for i n t h i s country, where women are so scarce, and a b i l l so foreign to the wants of Nanaimo and the country generally, and so d i f f e r e n t from the measures Mr. Ring promised on his e l e c t i o n to introduce. 30 The writer, i n t h i s instance, perceived no need for such l e g i s l a t i o n , but the editor, i n a lengthy reply, supported the b i l l and explained i t s ' basic provisions. I t would, he said, "prove a terror to husbands who are disposed to emigrate." Nevertheless, despite his ov e r a l l approval, the editor was a l i t t l e uneasy about the long term implications of a law which he thought could unsettle the marital r e l a t i o n s h i p . He envisioned a s i t u a t i o n that he found disturbing, i n which: She can have her end of the table groaning under the good things of t h i s world, whilst the man, whom she has vowed to cherish and obey, cannot get a mouthful of food without her consent. If she owns the blankets, the runaway w i l l have to sleep upon the f l o o r , except he has talent enough to re-construct the union. 31 3 0 . Ibid. 3 1 . Ibid. 36 The editor's ambivalence towards the b i l l which he described as "a kind of Women's Rights a f f a i r , " was t y p i c a l of the mixed reactions towards t h i s kind of l e g i s l a t i o n . In t h i s instance, both the editor and the l e g i s l a t o r s who passed the law recognized i t as a necessary step. On the other hand, they were unsure about giving women control of t h e i r own pursestrings. Yet the requirements of the b i l l made i t rather u n l i k e l y that i t would be widely used by women i n any case. The Colonial Secretary, who had expressed his misgivings about the b i l l , doubted that i t would be allowed to remain on the books as i t stood. However, i t did so, and in 1866, when the two colonies united to become B r i t i s h Columbia, the statute was incorporated into the laws of B r i t i s h Columbia. It was not repealed u n t i l 1873, when the Married Women's Property Act was introduced. But i n 1873, e g a l i t a r i a n issues would play a more prominent r o l e i n the debate over women's property law. 37 Chapter I I : The B r i t i s h Columbia Married Women's Property Act, 1873: "The Woman's Rights B i l l " Whereas the 1862 Vancouver Island statute caused l i t t l e controversy, the Married Women's Property Act proposed by the Hon. Mr. Robert Beaven on January 7, 1873, was the subject of l i v e l y debate i n the l e g i s l a t u r e and the l o c a l press. It represented a s i g n i f i c a n t l e g i s l a t i v e attack on the doctine of marital unity. Legislators were aware that new laws governing married women's property had been introduced i n England, the United States, and eastern Canada in response to the economic and s o c i a l change that characterized the nineteenth century Anglo-North American world. They also wanted to outline more c l e a r l y the re l a t i o n s h i p between the married couple and the mercantile community, and to address concerns about women's status raised by public debate during the period. Discussion of the b i l l revealed the underlying paternalism which influenced men's attitudes towards gender r e l a t i o n s and the law. Two major .concerns were evident i n t h i s discourse. The f i r s t of these focussed on the b i l l ' s l egal and economic impact, and the second upon the b i l l ' s implications for the rel a t i o n s h i p between husband and wife. The advocates of reform envisioned a statute that went considerably beyond the scope of the 1862 Vancouver Island law, and they drafted the b i l l accordingly. 38 The provisions of the 1873 b i l l were far more comprehensive than the limi t e d and purely protective nature of the 1862 statute. On one l e v e l , as Constance Backhouse observes, the 1873 Married Women's Property Act was "copycat" l e g i s l a t i o n . The B r i t i s h Columbia statute was e s s e n t i a l l y the same as those passed i n England and Ontario.^ i t e n t i t l e d a l l married women, not just deserted wives, to own and administer t h e i r own property, to control t h e i r earnings and wages and to contract i n r e l a t i o n to th e i r own property as i f they were single women. A husband was not l i a b l e for his wife's debts p r i o r to marriage or i n r e l a t i o n to her separate property. A wife could also open her own bank account, be an active stockholder and insure her own l i f e , or with his consent, that of her husband. Two aspects of the statute were p a r t i c u l a r l y important because of t h e i r implications for separating the legal i d e n t i t y of a wife from that of her husband; the removal of the order of protection clause, and the section which dealt with spousal l i a b i l i t y . 1. See Backhouse, "Married Women's Property Law," 212. She also describes the section i n the 1873 b i l l which st i p u l a t e d that only re a l property came under the provisions of the act. Personal property was not included u n t i l an amendment was passed i n 1877. ft.85, 250. In addition see B.C. Attorney General's Letterbook. O f f i c i a l Letters of the Attorney-General's Dept. 1870-1874. BCARS C4B 30.4J4, 412-413 i n which Atty. Gen. Walkem informs the Lieut. Gov. that the B i l l has been passed. In i t he c i t e s the precedents of the B i l l as having been based on the Ontario Act and l e g i s l a t i o n i n England. 39 The 1862 b i l l required a woman to obtain a court order of protection to safeguard her property. This order, which could be issued by a magistrate of the lower courts, was to be registered i n the Supreme Court within ten days, a cumbersome process and one that was seldom used. In fact, the Supreme Court Register of Orders l i s t s only four such orders p r i o r to 1873, and one i n 1873.2 j n part t h i s may r e f l e c t the province's demographic imbalance but i t also indicates problems with the process i t s e l f . A woman f i r s t had to be aware that such an order was necessary. Then the order had to be registered within a s p e c i f i c , and f a i r l y short period of time. Given the geographic r e a l i t i e s of the province, and the fact that court o f f i c i a l s t r a v e l l e d a c i r c u i t , many women may have had d i f f i c u l t y meeting the necessary requirements. In addition, when disputes d id ari s e , l i t i g a n t s and court o f f i c i a l s a l i k e could be confused about the procedure. The case of Balden vs. Strong, which w i l l be discussed further i n a subsequent chapter, i l l u s t r a t e s the far reaching consequences of such orders. Su f f i c e to say at this point that the existence or non existence of a protection order was a major point of contention i n the case. 3 Although neither l e g i s l a t o r s nor the general public discussed t h i s p a r t i c u l a r s t i p u l a t i o n , 2. B.C. Supreme Court Register of Orders. BCARS C/AB 30.3D. Only 14 orders were issued between 1868-1889. 3 . B.C. Supreme Court ( V i c t o r i a ) . Begbie Bench Book. 1873-1877. BCARS GR 1727 Vol. 729. 40 c l e a r l y i t was an unsatisfactory requirement that was best removed as part of the e f f o r t to simplify and reform married women's property law. The section which gave a married woman the r i g h t to contract or maintain a leg a l action on her own behalf - that i s , sue or be sued - was a d i s t i n c t departure from the common law t r a d i t i o n of coverture, which required that a husband act as c o - l i t i g a n t . P o t e n t i a l l y t h i s was an important clause for women who, as part of the province's service sector, operated small businesses. While there are no precise s t a t i s t i c s on the numbers of such women, the V i c t o r i a C i t y Directories during t h i s period l i s t numerous women engaged i n occupations such as boarding house and hotel keeping, laundry, dressmaking and m i l l i n e r y , as well as teaching. 4 of these, we cannot determine how many were married but, as Matthew MacFie observed, descriptions of marital status i n f r o n t i e r communities were not necessarily accurate i n any case.5 Although t h e o r e t i c a l l y , under common law, a married woman could not be represented i n court separately from her husband, i n practice, the courts sometimes recognized a woman's rig h t to run a business and enter into contractual agreements regarding i t with the 4 . V i c t o r i a C i t y D i r e c t o r i e s . 1863-1875. 5. MacFie, Vancouver Island and B r i t i s h Columbia. 407-409. consent of her husband. But because the law was not consistent on t h i s point, i t in e v i t a b l y caused confusion. The case of Toy vs. Barnard i n 1868 i l l u s t r a t e s the d i f f i c u l t i e s associated with coverture and the married businesswoman. In t h i s instance, Mrs. Malvina Toy sued a Mr. Barnard i n L i l l o o e t County Court for debt. In response, Barnard pleaded coverture as his defense because Toy was a married woman. The d e t a i l s of the case need not concern us, but what i s in t e r e s t i n g was the Justice's reasons for disallowing Barnard's coverture plea. J u s t i c e E.M. Sanders explained: I deemed that when a married woman has transacted business i n her own name for many years and on a large scale, too, that she did so with her husband's sanction... That i f a wife trades by herself i n a business i n which her husband does not meddle she may sue and be sued on her own account and that she i s enabled i f injured i n person or property to bring an action for redress without the concurrence of her husband and be sued without the husband being made a defendent .6 The Attorney General, asked to report on the case, upheld Sanders r u l i n g . The larger point to be made about t h i s p a r t i c u l a r case i s that although i n t h i s instance, the j u s t i c e ruled i n Toy's favour, he could e a s i l y have done otherwise because legal precedent was loosely defined and subject to an individual's interpretation. By embedding i n 6. B.C. Attorney General, Documents. BCARS GR 419 Box 7 F i l e 13. 42 statutory law married women's property r i g h t s regarding t h e i r business or wages earned, supporters of reform wanted to e s t a b l i s h a standard from which courts could rule, rather than r e l y i n g on a judge's own, often i d i o s y n c r a t i c , i n t e r p r e t a t i o n of common law precedent. Consequently, they were determined to push the b i l l through, despite the objections of the i r opponents. The statute's supporters argued that the Married Women's Property Act was a progressive and necessary reform, one that was i n keeping with V i c t o r i a n ideas about companionate marriage. Moreover, they argued that the l e g i s l a t i o n would c l a r i f y the legal standing of husbands and wives, and protect t h e i r i n d i v i d u a l f i n a n c i a l i n t e r e s t s as well as those of merchants. The b i l l ' s opponents, however, thought that the measure would threaten family s t a b i l i t y and encourage fraud. The growth of commercial capitalism i n B r i t i s h Columbia established an increasingly complex economy i n which c r e d i t played a s i g n i f i c a n t r o l e . In f r o n t i e r communities l i k e B r i t i s h Columbia, with a boom and bust resource based economy and a large l y transient population, c r e d i t was p a r t i c u l a r l y important. Merchants on the mining f r o n t i e r established t h e i r own businesses using c r e d i t , not c a p i t a l , and, i n turn, extended c r e d i t to those who required o u t f i t t i n g . In addition, a s i g n i f i c a n t credit-based service sector was established, p a r t i c u l a r l y i n V i c t o r i a and the Cariboo, to meet the needs of those requiring board, food, 43 laundry and so on, as well as various forms of entertainment. In many instances, i t was women who provided such services. The extensive use of c r e d i t was r e f l e c t e d i n the courts as c i v i l l i t i g a t i o n for bankruptcy and debt occupied a large portion of the courts' time.7 Given these economic conditions, l e g i s l a t o r s thought i t important to c l a r i f y spousal l i a b i l i t y i n r e l a t i o n to debt. In economies where c r e d i t flourished, coverture was a cumbersome and often inappropriate response to the needs of the community. Those who supported the 1873 b i l l stressed the economic protection i t would o f f e r both husbands and wives. B r i t i s h Columbians were aware of the problems associated with the use of cr e d i t . One supporter of the b i l l , B. Humphreys, went so far as to argue that the mercantile habit of extending c r e d i t should be c u r t a i l e d at any rate because i t encouraged too much l i t i g a t i o n . He did not believe i n the unlimited c r e d i t that tradesmen were i n the habit of giving families, for i t was only placing a tax upon t h i s country and others who were obliged to be employed to s e t t l e the debts of the various parties i n question.8 Another member of the l e g i s l a t u r e and the editor of the Daily B r i t i s h Colonist. John Robson, took exception to Humphrey's suggestion, noting that the c r e d i t system "be i t 7. Tina Loo, "Law and Authority i n B r i t i s h Columbia, 1821-1871." University of B r i t i s h Columbia, Ph.D. (History), 1990, 113-118. 8. The V i c t o r i a Daily Standard. 15 January 1873. 44 good or bad," was used widely and would continue to be, regardless of the d i f f i c u l t i e s i t presented. 9 The re a l dispute, of course, was not over whether or not to abolish the c r e d i t system, but rather how to deal with married women i n i t . Those who spoke against the statute argued that, i f anything, such l e g i s l a t i o n would encourage families to go into debt and they agreed with Henry Holbrook who warned that ...the B i l l was fraught with danger to tradesmen and others, and i t opened up many an opportunity for families to run into debt, knowing t h e i r property could be, and probably would be placed exclusively i n the name of the wife.10 It i s clear from the response of the b i l l ' s advocates that they considered the fear of potential fraud to be somewhat of a red herring. The Hon. Mr. William Armstrong argued that the opportunities for fraud would be no greater than before, while a correspondent to The Daily Standard observed that no statute could prevent people from defrauding t h e i r c r e ditors i f they wanted t o . H Having thus discounted t h e i r opponents' fears, they stressed the economic protection the b i l l would bring husbands and wives, and ultimately, to the merchants who dealt with them. 9 . Daily B r i t i s h Colonist. 24 January 1873. 10. The Daily Standard. 15 January 1873. 11. Ibid.. 16 January 1873; 30 January 1873. 45 Supporters of the 1873 b i l l were aware of the confusion concerning spousal l i a b i l i t y for debt, and i t was on t h i s concern that they focussed t h e i r attention. These l e g i s l a t o r s anticipated that, i f the l e g a l a ccountability of each party was l a i d out c l e a r l y i n statutory law, everyone would benefit. Therefore, they emphasized the protection that the b i l l would afford both parties, making each more f i s c a l l y responsible. An e d i t o r i a l i n The Daily Standard said i n defense of the statute: It i s not by any means a one-sided measure, extending protection only to wives; but i t aims as well to protect the interests of husbands, where the law now exposes them to loss and inconvenience by l e g a l process for the recovery of debts contracted by wives... 12 In the end, the b i l l ' s supporters concluded that merchants and others who had occasion to deal with married women would be much better off as they would know who was responsible for paying a debt. But at the same time, the b i l l ' s advocates seem not to have recognized the statute's possible detrimental e f f e c t s on women's a b i l i t y to obtain c r e d i t , a factor of considerable importance to deserted wives or those engaged i n business. Without the p o s s i b i l i t y of being able to pursue a husband for such debt, i t i s l i k e l y that many merchants would simply have declined to extend c r e d i t to 12. I b i d . . 15 January 1873. 46 women.13 Apart from th i s rather c r u c i a l oversight, however, l e g i s l a t o r s introduced legal reforms that would, eliminate the need for an order of protection and a l l e v i a t e confusion about spousal l i a b i l i t y . In attempting to give married women more leg a l and economic autonomy, advocates of the measure challenged a concept of marital unity that was grounded i n r e l i g i o u s doctrine and supported by law. I t was t h i s challenge that most disturbed the b i l l ' s oPponents. Certainly, one of the arguments against the b i l l focussed on i t s e f f e c t on the commercial interests of the community, but the debate over the statute's economic impact had just as much to do with who cont r o l l e d the family pursestrings. P o t e n t i a l l y , the provisions of the 1873 statute could have had considerable impact on the private world of the family. It was t h i s issue that dominated the debate over the Married Women's Property Act i n B r i t i s h Columbia. In grappling with the problem of married women's property, both l e g i s l a t o r s and the general public touched upon the larger issues raised by the ongoing controversy i n England and North America concerning women's ri g h t s and legal status. In doing so, they recognized the law's pot e n t i a l to a l t e r family relationships i n fundamental ways. 1 J . Constance Backhouse, "Married Women's Property Law", 214. She discusses t h i s point i n r e l a t i o n to deserted wives, but i t would be equally applicable to married business women. 47 The law, as a powerful i n s t i t u t i o n , gave public and formal expression to the d i s t i n c t and r i g i d gender roles assigned to V i c t o r i a n husbands and wives a l i k e . Each, i n t h e i r own way, was constrained by society's d e f i n i t i o n s of t h e i r r e s p o n s i b i l i t i e s i n the home and the community. And, whatever t h e i r i n d i v i d u a l b e l i e f s about the Married Women's Property Act, B r i t i s h Columbians sensed that family l i f e , the cornerstone of V i c t o r i a n English-Canadian society, held a tenuous g r i p on the west coast f r o n t i e r . The main point of contention i n the ensuing debate lay i n whether the 1873 statute would strengthen that g r i p or help to dislodge i t . Although B r i t i s h Columbia seemed far removed from England and the eastern United States where a g i t a t i o n for women's right s was strongest, i n fact, i t was not. B r i t i s h Columbians, on the whole, were quite well informed about the questions being raised about women's place i n society.14 Certainly, they had been exposed to the ideas of American feminism, as Susan B. Anthony's lecture tour to V i c t o r i a i n 1871 i n d i c a t e s . l ^ The challenge to coverture presented by married women's property l e g i s l a t i o n was troubling to those who associated i t with feminist demands. So i t was not surp r i s i n g that opponents of the 1873 statute referred to i t 14. Barman and Ormsby both discuss the strong c u l t u r a l l i n k s with B r i t a i n i n p a r t i c u l a r . Barman, J. The West beyond  the West. 89. Ormsby, M. "Canada and the New B r i t i s h Columbia", 39. 15. For coverage of Anthony's v i s i t see The Daily  Standard. 24 October 1871; 25 October 1871; 27 October 1871. 48 as the "Women's Rights B i l l " , thereby suggesting that i t was a r a d i c a l measure. Advocates, on the other hand, emphasized the b i l l ' s l i n k s to nineteenth century l i b e r a l reform, a seemingly more moderate approach. In fact, the two were already connected i n the public mind, as B r i t i s h and American feminists used the concepts of l i b e r a l individualism to argue t h e i r case for equal rights.16 Basch suggests, for example, that male l e g i s l a t o r s who supported married women's property laws i n the nineteenth century, act u a l l y , and perhaps, unknowingly, "adopted selected strands of l i b e r a l feminist thought" i n t h e i r arguments and that both supporters and opponents made gender central to the i r arguments.17 The debate i n B r i t i s h Columbia was, therefore, i n d i c a t i v e of a much larger Anglo-American discourse on family, gender r e l a t i o n s , and the law, that i n conjunction with more l o c a l concerns, was instrumental i n the passage of the 1873 statute. Consequently, the ways i n which B r i t i s h Columbians framed t h e i r arguments either for or against the b i l l demonstrate the same underlying assumptions and c o n f l i c t i n g ideas held by t h e i r B r i t i s h and American contemporaries about what constituted women's proper sphere. 16. shanley, Feminism. Marriage and the Law. 3, 67, 189. In the case of American feminists Basch and Salmon l i n k emphasis on individualism to Jacksonian democracy and republicanism. Basch, In the Eyes of the Law. 39. Salmon, Married Women's Property. 193. l ^ . Basch, The Emerging History. 103-105. 4 9 One of the leading c h a r a c t e r i s t i c s of the nineteenth century debate over women's issues was the inconsistency of the views presented by various indiv i d u a l s and groups. In fact, according to the authors of one study, the diverse and c o n f l i c t i n g range of ideas, arguments and conclusions expressed makes any s t r i c t d e f i n i t i o n of feminist or anti-feminist positions very d i f f i c u l t . We can speak more accurately not of positions but of a set of competing, though not mutually exclusive, myths or models for women's place i n society. C o n t r o v e r s i a l i s t s used these myths to argue for opposing solutions to contemporary problems.18 In terms of the debate over married women's property law, these c o n f l i c t i n g ideas about women often enabled men to take a stance seemingly at odds with t h e i r wider p o l i t i c a l b e l i e f s . Thus, i t was that two prominent B r i t i s h Columbian l i b e r a l reformers, the then Premier, Amor De Cosmos, and the la t e r premier, John Robson, found themselves on opposite sides of the p o l i t i c a l fence i n r e l a t i o n to the Married Women's Property Act. Despite th e i r broad reform sympathies, they held s t r i k i n g l y d i f f e r e n t opinions about women's place i n the world and what the i r legal rights should be i n a society governed by the l i b e r a l p r i n c i p l e s of progress and reform. The Married Women's Property Act was one of several pieces 18. Helsinger, Elizabeth K. et a l . , The Woman Question XIV. 50 of reform l e g i s l a t i o n introduced under the De Cosmos government. His ideas about marital property reform were progressive i n that sense. Robson, i n contrast, had more conservative ideas about marriage and family. Although he was concerned about protecting men's right s as B r i t i s h subjects, he believed that those same men would protect and represent t h e i r wives and children i n the community. Whereas De Cosmos had an i n d i v i d u a l i s t i c view about the r o l e of each family member, Robson envisioned a more conservative, corporate family structure. Although i n the past De Cosmos and Robson had agreed on c e r t a i n p o l i t i c a l issues, most p a r t i c u l a r l y on Confederation, i t i s not surprising that, given t h e i r very d i f f e r e n t personal circumstances, they disagreed about the 1873 statute. De Cosmos, a bachelor and a free thinker, had l i t t l e reason to fear any personal repercussions from the b i l l . In t h i s sense, he viewed i t somewhat dispassionately. Robson, on the other hand, was married, a devout Methodist and a very active member of his church. Therefore, i t i s conceivable that his r e l i g i o u s background also coloured his opinions about the l e g i s l a t i o n . Aside from t h e i r personal circumstances De Cosmos and Robson were also j o u r n a l i s t s and editors. They voiced t h e i r views i n r i v a l newspapers, The  Daily Standard, of which De Cosmos was part owner and sometime editor, and The Daily B r i t i s h Colonist, for whom 51 Robson was e d i t o r . I 9 No doubt, the controversial issue of women's right s made l i v e l y copy. Yet both considered themselves staunch l i b e r a l s and friends of reform, and presented t h e i r arguments i n the l e g i s l a t u r e and the press accordingly. Premier Amor De Cosmos considered the 1873 statute a progressive b i l l , one quite i n keeping with the reform mandate of his government. Not only had s i m i l a r l e g i s l a t i o n been passed i n other j u r i s d i c t i o n s , but the b i l l r e f l e c t e d changing attitudes towards women that c a l l e d for new l e g i s l a t i o n . These new attitudes found expression i n li b e r a l i s m ' s emphasis on equality and the rig h t s of the i n d i v i d u a l . For these reasons, the Premier argued that no l i b e r a l government could j u s t l y oppose t h i s B i l l , and he thought that the change of society required a new law. He was of the opinion that the B i l l was almost the same as one recently brought before the House i n Ontario; b i l l s of t h i s nature had been found to work most happily: the great and well known Stewart (sic) M i l l had advocated the cause i n England and i t brought the women for whom the b i l l was intended as a safeguard, into a freer atmosphere, and prevented the worthless husband from concentrating his thoughts on the sole object of money making from the resources of his better half.2 0 19. P a t r i c i a Roy, "John Robson", Dictionary of Canadian  Biography. Vol. XII 1891-1900. (Toronto: University of Toronto Press, 1990). Keith Ralston and R.A.J. McDonald, "Amor De Cosmos", Ibid. 2 0 . The Daily Standard. 15 January 1873. 52 C l e a r l y , De Cosmos, influenced by M i l l ' s ideas on the subject, considered e x i s t i n g laws regarding married women's property to be outmoded. He recognized "the change of society" and although he c e r t a i n l y was not a feminist to the extent that M i l l was, he was nevertheless sympathetic to some aspects of the equal rights argument.21 on these grounds, and also as a protective measure for women, De Cosmos perceived a need for the b i l l . When Robson, as a married man, asked him i f his ideas were based on personal experience, De Cosmos r e p l i e d that they came "from observation,"22 making his personal marital status i r r e l e v a n t . The Premier believed simply that the statute was a necessary and good reform. Those who opposed the 1873 statute, however, were convinced that i t was a r a d i c a l , p o t e n t i a l l y dangerous and quite unnecessary piece of l e g i s l a t i o n . Their more conservative views were grounded i n the t r a d i t i o n a l concept of coverture, whereby the man, as head of the household, represented the family's interests i n the public world. To allow women separate economic interests represented nothing less than a d i r e c t attack on family unity. Robson, the b i l l ' s most outspoken c r i t i c , claimed that the De Cosmos government 21. Ibid. 22. i b i d 53 proposed by the B i l l to e s t a b l i s h two autho r i t i e s i n the same household. I t held up a sort of premium to the wife to commit acts of insubordination. I t might properly be e n t i t l e d an act to promote and protect bachelordom. He admitted there were instances where a wife required protection. I t looked too much and savoured of "Women's Rights." This was calculated to revolutionize the whole household system, when a much simpler remedy might be found.23 Robson's ideas about husband-wife r e l a t i o n s were based on a more h i e r a r c h i c a l and corporate v i s i o n of family l i f e , i n which a wife's economic interests were normally looked a f t e r by her husband. Although Robson supported other measures introduced to protect women, i n pa r t i c u l a r an assurance b i l l introduced by J . F . McCreight and a dower b i l l put forward by Arthur Bunster,24 the Married Women's Property Act, he argued, went too f a r . In an e d i t o r a l i n The Daily Colonist, he voiced his concerns, but also emphasized his firm b e l i e f i n the pr i n c i p l e s of li b e r a l i s m : We would not be understood as objecting to the l e g i s l a t i o n of the present session as of too l i b e r a l a tendency; for we regard l i b e r a l i n s t i t u t i o n s as esse n t i a l to the development of a prosperous, contented, and s e l f - r e l i a n t people...It i s , therefore,with peculiar 2 3 . I b i d . 2 4 . The Daily B r i t i s h Colonist. 24 January 1873. In fact, i n addition to the section i n the Married Women's Property Act related to insurance the Married Women's Assurance Act was passed i n conjunction with the 1873 Married Women's Property Act. Statutes. Province of B r i t i s h Columbia. 36 V i c t . Ch. 117, 36 V i c t . Ch. 118. 54 g r a t i f i c a t i o n that we observe the l i b e r a l tendency of present l e g i s l a t i o n i n B r i t i s h Columbia. Any objections we may have f e l t i t to be our duty to ra i s e i n regard to the Women's Rights B i l l , were directed against the dangerous and revolutionary character, rather than against the l i b e r a l i t y of i t s provisions . 2 5 For Robson, the idea of married women having separate l e g a l and economic interests represented a d i r e c t threat to the concept of marital unity. De Cosmos's p o s i t i o n held no appeal for Robson, who noted that his opinions had led some to accuse him of being " i l l i b e r a l and ungallant , " 2 6 a n accusation he thought was decidedly unfair. Along with t h e i r c o n f l i c t i n g views on family and the law, De Cosmos and Robson, as men of t h e i r time, were also influenced by the more subtle, yet equally powerful ideas that Victorians held about men, women and gender r e l a t i o n s . In attempting to determine why male l e g i s l a t o r s would extend women's leg a l rights without any popular pressure to do so, and despite the reduction i n male authority and power which t h i s step implied, we must consider V i c t o r i a n paternalism as i t r e l a t e d to women and the law. In s t a t i n g an obvious but sometimes forgotten point, the authors of a recent study on gender and public p o l i c y observe that nineteenth century laws a f f e c t i n g women were based on contemporary notions about women's dependence and 25. i b i d . 24 January 1873. 26. i b i d . . 29 January 1873. 55 f r a i l t y and men's r e s p o n s i b i l i t y to protect them. In th i s context, men who enacted and enforced the law were neither oppressors nor acting s o l e l y i n th e i r own s e l f i n t e r e s t . Instead the authors argue that the dominant reason for sex-d i f f e r e n t i a t i n g rules was neither s e l f -i n t e r e s t nor animus towards women, but something altogether more laudable: concern and a f f e c t i o n . Rules governing the conduct of women were adopted i n what was honestly seen as women's best in t e r e s t , obliging women to behave just as they would have i f they had been f u l l y able to appreciate what was best for them.27 In retrospect, we are able to see the l i m i t a t i o n s of such reforms, but, despite th e i r differences, V i c t o r i a n men l i k e Amor De Cosmos and John Robson believed they were protecting women who had no p o l i t i c a l voice themselves. They may have disagreed about the degree of independence women should have, but they both thought women deserved and were e n t i t l e d to the law's protection. Their b e l i e f s , no doubt, were shaped by the ways i n which they were s o c i a l i z e d . Just as V i c t o r i a n women were s o c i a l i z e d as "Angels of the House" to be passive but capable wives and mothers, so too V i c t o r i a n men were expected to behave i n p a r t i c u l a r ways. If women were to concern themselves with matters of home and hearth, then men were expected to provide for and protect that home and i t s 2 7 . David L. Kirp, Mark G. Yudof, and Marlene Strong Franks, Gender Justic e . (Chicago: University of Chicago Press 1986), 30. 56 inhabitants. Women's historians have described i n considerable d e t a i l the contrasting ideals of womanhood that characterized the V i c t o r i a n age.28 yet both sexes were subject to c o n f l i c t i n g images and ideas about t h e i r behaviour and what comprised t h e i r proper place i n the world. Recently a few scholars have turned t h e i r attention to the c u l t u r a l myths that defined V i c t o r i a n manhood. Anthony Rotundo, for example, i s o l a t e s three gender ideals of masculinity that were encouraged by society, i n general, and by families i n p a r t i c u l a r . Fathers, he argues, concentrated on imbuing t h e i r sons with the values of the Masculine Achiever. The ideal V i c t o r i a n man was to be progressive, dynamic, and entreprenurial, t r a i t s well suited to the demands of commercial capitalism. Therefore, s e l f - r e l i a n c e and a degree of emotional aloofness was fostered. The ideal middle class V i c t o r i a n man was also a gentleman, whose chivalrous and compassionate q u a l i t i e s were i n s t i l l e d i n him most often by mothers who emphasized these values. The Ch r i s t i a n Gentleman was a devout man committed to r e l i g i o u s p r i n c i p l e s , community and family. 2 ° . See for example Elizabeth Helsinger et a l . , The  Woman Question, who define the four c u l t u r a l myths which dominated discussion about women. "The Angel i n the House", "The Angel Out of the House", "The Equal Woman" and "The Female Saviour", XIV-XV. In the Canadian context, see Ramsay Cook and Wendy Mitchinson, eds., The Proper Sphere: Woman's  Place i n Canadian Society. (Toronto: Oxford University Press 1976) . 57 The t h i r d i d e a l , man as Primitive, was not necessarily encouraged by families, but was popular nonetheless. I t romanticized the adventurer, the frontiersman who was independent, p h y s i c a l l y strong, and unencumbered by family. The q u a l i t i e s associated with t h i s i d e a l were e s p e c i a l l y strong i n f r o n t i e r s o c i e t i e s where male culture predominated. The emphasis on male camaraderie and desire for autonomy was sometimes manifested as an unexpressed h o s t i l i t y towards or fear of women.29 Thus, men were imbued with complementary, but also c o n f l i c t i n g myths about themselves and thei r relationships with women. And while one cannot claim a d i r e c t r e l a t i o n between these c u l t u r a l myths and the actions of men and women, neither can we deny the importance of thei r influence. In r e l a t i o n to the law, Michael Grossberg points out that these very attitudes account for the protective and 29. E. Anthony Rotundo, "Learning about Manhood: Gender ideals and the Middle-class family i n nineteenth-century America", J.A.Mangan and James Walvin, eds., Manliness and  Morality: Middle-class Masculinity i n B r i t a i n and North  America 1800-1940. (Manchester: Manchester University Press 1987), 35-51. Rotundo's d e f i n i t i o n of a gender id e a l i s useful. "A clust e r of t r a i t s , behaviour and values that the members of society believe a person should have as a woman or man. Seen i n a wider perspective, the gender id e a l i s clo s e l y r e l a t e d to the broader values of the culture i n which i t develops - i t represents a series of c u l t u r a l choices out of the vast range of q u a l i t i e s possible for a man or a woman." 35. For an overview of masculinity i n fr o n t i e r New Zealand see, Jock P h i l l i p s , A Man's Country?  The Image of Pakeha Male - A History. (Auckland: Penguin Press 1987). David G. Pugh, Sons of Liberty: The Masculine  Mind i n Nineteenth-Century America. (Westport: Greenwood Press 1983) . 58 p a t e r n a l i s t i c nature of domestic law, as men, acting i n accordance with the values they were taught, made the state responsible for protecting women whose r e a l husbands or fathers f a i l e d to do so.30 j n B r i t i s h Columbia, discussion about the 1873 b i l l also reveals the strength of gender-related c u l t u r a l myths and the tensions they sometimes reinforced between men and women. The attitudes and ideas expressed by De Cosmos and Robson were echoed by the public i n a more general discussion i n the l o c a l newspapers. E d i t o r i a l l y , of course, The Daily Standard. De Cosmos's paper, supported the b i l l , while Robson i n The Daily B r i t i s h Colonist, opposed i t . The issue also inspired numerous l e t t e r s to the editor as i t struck a chord i n the public mind. These l e t t e r s r e f l e c t many of the p r e v a i l i n g currents of thought and c o n f l i c t i n g ideas about women and men, and what t h e i r r e l a t i o n s h i p should be. On one hand, women were considered either admirable and trustworthy partners or f l i g h t y , i r r e s ponsible, even s i n i s t e r , adversaries ready to take advantage of the i r new found freedoms at the expense of th e i r f a m i l i e s . Men were either noble victims of such actions or despicable scoundrels, who f a i l e d to provide for the i r f a m i l i e s . Correspondents presented t h e i r arguments with a decided f l a i r for the dramatic, expressing outrage or 3 U . Michael Grossberg, "Crossing the Boundaries: the Merging of Family and Legal History", 809-815. 59 astonishment at the naivete of t h e i r fellow writers, as they predicted what the b i l l ' s e f f e c t would be. Several of the b i l l ' s supporters stated t h e i r case by r e f e r r i n g to the ideals associated with the concept of the companionate marriage. One such writer to the Daily Standard"A Married Man," c r i t i c i z e d John Robson and his followers for t h e i r antiquated views on what the r e l a t i o n s h i p between husband and wife should be. In doing so, he alluded to the ways i n which control of money and property within the family affected gender r e l a t i o n s i n the home. Now I w i l l ask any r i g h t minded married man whether i f the only t i e between man and wife i s the fact that the law has placed the woman and her earnings completely i n the power of the man, and he abuses that power, i f i t i s not r i g h t that the Legislature should provide a remedy against such oppression; i t i s only to such persons as are unfortunately i n that position, that t h i s Act has any applic a t i o n . No household whose heads actuated by the only true p r i n c i p l e s upon which matrimony i s based and can be successful, w i l l dread the a p p l i c a t i o n of t h i s Act... a l l t h i s nonsense about "sapping the foundations of well ordered domestic l i f e , " i s pure buncombe. I t i s no doubt a terror to those who r u l e t h e i r households with a rod of iron and oppression, but to the husband and wife, i n heart as well as i n name, i t has no dread .31 Here, then, were the sentiments of the i d e a l V i c t o r i a n marriage: a r e l a t i o n s h i p based on equality, shared 31. The Daily Standard. 30 January 1873. r e s p o n s i b i l i t y , mutual respect, and most importantly, love. The writer emphasized the protective nature of the b i l l , thereby appealing to the chivalrous nature of gentlemen, whose duty i t was to protect the most vulnerable members of society. For th i s correspondent, giving married women more control over t h e i r property and earnings posed no threat because women naturally wanted what was best for the i r families as well as themselves. One of the few female correspondents also adopted t h i s theme and her l e t t e r indicated the underlying tensions and h o s t i l i t y between the sexes that sometimes existed. In part, Sarah Jane wrote: I have c a r e f u l l y read a l l that has been urged i n Parliament or written i n the papers against the passage of such a law, and i n every instance the writer or speaker seemed to proceed upon the assumption that women are not nat u r a l l y as good or honest as men - that they are i n f e r i o r , and should be subordinate-and that a l l that i s necessary to excite i n them the manifestation of the worse q u a l i t i e s , i s opportunity. They seem to take for granted that men nat u r a l l y love t h e i r families, and w i l l labor for t h e i r well being and happiness; but that women have l i t t l e or no love for t h e i r husbands and fami l i e s , and should they be entrusted with power or property, that they would necessarily use i t to the injury of both.... 3 2 She went on to point out that some men had even expressed fears about t h e i r personal safety should t h i s b i l l become law because of a provision i n i t enabling women to insure 3 2 . I b i d . . 3 February 1873. 61 t h e i r husbands l i v e s . She reassured these "timid gentlemen" that s i m i l a r laws had been passed elsewhere without such e f f e c t , and that allowing women such powers would not, as she explained succinctly develop every woman i n the Province into a Madame Duplessis or Lucretia B o r g i a t h a t no man would dare marry, with r i s k staring him i n the face that his l i f e might be insured by his better half, and as a sequel he might be poisoned or have hot lead poured into his e a r . 3 3 Overall, the supporters of the statute emphasized p o s i t i v e aspects of married l i f e such as mutual t r u s t and shared economic power, at the same time, addressing the negative attitudes and d i s t r u s t between men and women that was also evident. Sarah Jane addressed those fears squarely, and by using gentle r i d i c u l e , challenged the masculinity of men who vented such fears about women. In contrast, those who opposed the b i l l were concerned less with the sentiments of the e g a l i t a r i a n marriage and more with the implications of separating the int e r e s t s of husbands and wives. They stressed the di r e consequences of s h i f t i n g the balance of power between man and wife by giving women greater economic control over family resources. Several correspondents expressed the fear and mistrust of women that Sarah Jane alluded to, while others voiced 3 3 . I b i d . . 3 February 1873. 62 r e l i g i o u s objections to the l e g i s l a t i o n . 3 4 One outraged writer predicted rather ominously that husbands would f i n d themselves "dressed i n threadbare coat and well worn pants" while t h e i r wives would be able to "indulge i n a l l the extravagences of fashion."35 He warned that by creating two separate and d i s t i n c t purses, two powers are created where only one should e x i s t . . . i t tends i n every way to create coldness, bad fee l i n g , jealousy and dissension i n the family, where naught but love and t r u s t should e x i s t , and w i l l ultimately r e s u l t i n the destruction of the family compact...It would eventually divide scores of what otherwise would be united families, and prepare the way for the passage of a cheap and easy divorce law with a l l i t s attendant evils...3 6 According to t h i s correspondent, love and t r u s t would only endure i n the family i f there were no arguments over the family pursestrings. Nor were men the only ones who objected to the b i l l . In a response to Sarah Jane, Pauline took exception to the whole idea of women's ri g h t s , expressing the opinion that Sarah Jane must be an unhappily married woman. 3^. See for example, The Daily B r i t i s h Colonist. 2 February 1873 i n which the writer makes reference to the re l i g i o u s grounds for marital unity, c i t i n g concepts found i n the Scriptures. 35. The Daily Standard. 1 February•1873. 36. i b i d Now, S i r , "Sarah Jane" may give p u b l i c i t y to her b r i l l a n t ideas, but she cannot force me or any other respectable, morally disposed woman to believe them. She may advocate the Extremities of Women's Rights with a w i l l , she may t r y to corrupt our at present good state of society, but she w i l l not succeed - for I and others w i l l wage war against a l l of her stamp u n t i l she and they are e f f e c t u a l l y silenced. Women's Rights indeed! I t i s a l l foolery, for we have plenty of ri g h t s now, and unlike "Sarah Jane" are quite contented. A l l good women i n the c i t y look upon the B i l l as extremely prenicious (sic) and I can assure you, Mr. Editor, that i t i s as much as I can attend to properly to look aft e r my home and family.37 In t h i s instance, the supporter of the Married Women's Property Act was viewed as morally suspect because she advocated women's ri g h t s . Pauline assured readers that good women did not want or need legal or f i n a n c i a l autonomy and were content to remain protected i n the confines of the home. As these l e t t e r s reveal, the c u l t u r a l myths about men and women's proper spheres created c o n f l i c t i n g ideas and attitudes about V i c t o r i a n men and women, and strong feelings about the issue evoked a powerful response from a public which thought that the b i l l , for better or worse, would change family l i f e . The lin e s of debate were c l e a r l y drawn in both parliamentary and public discussion between those who favoured the measure that would divide the economic 37. The Daily B r i t i s h Colonist. 5 February 1873. 64 i n t e r e s t s of husbands and wives as an appropriate response to changing economic and s o c i a l conditions, and those who preferred women to remain under coverture. Their respective positions depended upon t h e i r view of gender r e l a t i o n s . But both men and women were influenced by the idea that men should protect women's interests for them. Despite the controversy surrounding the Married Women's Property Act, i t passed through the l e g i s l a t i v e process with l i t t l e d i f f i c u l t y . Nor was there any apparent d i v i s i o n over the b i l l along predictable p o l i t i c a l l i n e s . John McCreight, for example, who was not overly sympathetic to many of the l i b e r a l reforms undertaken by the De Cosmos government, supported the bill. 3 8 Others, as well, seemed to vote according to the i r personal views on the matter. No o f f i c i a l parties existed i n B r i t i s h Columbia at the time, and voting was based on loose and somewhat e c l e c t i c p o l i t i c a l alliances.3 9 Upon i t s t h i r d reading, on January 24, 1873, William Smithe attempted to have the b i l l sent back to committee for further consideration. There i s some uncertainty as to the actual vote on Smithe's amendment. John Robson was la t e r to report i n The Daily B r i t i s h  Colonist, that the motion for recommittal was carried, 38. S.W. Jackman, P o r t r a i t s of the Premiers: An  Informal History of B r i t i s h Columbia.(Sydney: Gray's Publishing Co. Ltd., 1969) 7-9. 39. J. Barman. The West beyond the West. 102-103. Ormsby, B r i t i s h Columbia: A History. 241. 65 sixteen to f i v e , and that despite t h i s , the t h i r d reading was put forward "amidst considerable confusion," and carried.40 The l e g i s l a t i v e record shows only that the amendment was "put and Resolved i n the negative." The o r i g i n a l motion was then put forward and ca r r i e d by a vote of sixteen to f i v e , with Robson, Smithe, Holbrook, Bunster and Robinson, opposing.41 The Married Women's Property Act, despite Robson's best e f f o r t s , had only to receive royal assent to be placed on the statute books. Meanwhile, outside the l e g i s l a t u r e , i t s opponents employed one l a s t strategy to stop the b i l l . On January 29, 1873, a small notice i n The Daily  B r i t i s h Colonist announced that a p e t i t i o n against the Married Women's Property Act, "this Communistic measure," was to be sent to the Lieutenant-Governor. 4 2 on February 23, 1873, Lt. Gov. Trutch received two pe t i t i o n s with a combined t o t a l of approximately 450 names, denouncing the measure. The pe t i t i o n s presented many of the same objections voiced e a r l i e r . The statute was not necessary, they said, because the ex i s t i n g law already provided for the protection of deserted wives. Furthermore, they were concerned about the b i l l ' s impact on family l i f e and 4 0 . The Daily B r i t i s h Colonist. 29 January 1873. 41. B.C. Journals of the L e g i s l a t i v e Assembly. Vol 11, 1872-73. 24 January 1873. 4 2 . The Daily B r i t i s h Colonist. 29 January 1873. c o m m e r c i a l i n t e r e s t s i n t h e p r o v i n c e . O n t h e s e g r o u n d s , t h e y a r g u e d t h a t t h e t e n d e n c y o f t h e p r o p o s e d A c t b y i n t e r f e r i n g i n t h e s a c r e d r e l a t i o n s h i p e x i s t i n g b e t w e e n h u s b a n d a n d w i f e w i l l b e t o p r o d u c e " d o m e s t i c i n f e l i c i t y , " T h a t t h e A c t d i s c o u r a g e s m a r r i a g e . T h a t t h e A c t o p e n s u p n e w a v e n u e s f o r f r a u d , a n d w i l l t h e r e b y d e t r i m e n t a l l y a f f e c t c o m m e r c i a l i n t e r e s t . 4 3 S h o r t l y a f t e r t h e p e t i t i o n w a s c i r c u l a t e d , s u p p o r t e r s o f t h e b i l l c l a i m e d t h a t i t c o n t a i n e d f r a u d u l e n t s i g n a t u r e s . O n e c o r r e s p o n d e n t t o T h e D a i l y S t a n d a r d w r o t e t o e x p r e s s h i s s u r p r i s e a t s e e i n g h i s n a m e o n t h e l i s t o f p e t i t i o n e r s a n d d e n i e d h a v i n g s i g n e d t h e d o c u m e n t . F u r t h e r m o r e , h e h o p e d t h a t t h e l a d i e s o f V i c t o r i a w o u l d t a k e n o t e o f t h o s e w h o d i d s i g n s o t h a t t h e y w o u l d k n o w " w h o a r e a g a i n s t w o m e n b e i n g a l l o w e d e q u a l r i g h t s w i t h t h e m s e l v e s . " 4 4 R o b s o n l a u n c h e d a n a t t a c k o n R o b e r t B e a v e n f o r q u e s t i o n i n g t h e l e g i t i m a c y o f t h e p e t i t i o n a s h e r e m a r k e d c a u s t i c a l l y : H i s ( B e a v e n ' s ) i n s u l t i n g a l l u s i o n t o t h e s i g n e r s o f t h e p e t i t i o n . . . p r o v e d h o w p o s i t i o n a n d " d i g n i t y " h a v e c o n v e r t e d a p o p u l a r t a i l o r i n t o a p o l i t i c a l g o o s e . T h e h o n . g e n t l e m a n p r o f e s s e s t o h a v e a n a l y z e d t h e p e t i t i o n a n d f o u n d n a m e s o f o n l y a b o u t 60 v o t e r s , w h i l e w e a r e p r e p a r e d t o s h o w t h a t t h e s i g n e r s o f w h o v o t e i n V i c t o r i a n u m b e r n e a r l y 2 0 0 . . . T h e t r u t h i s M r . B e a v e n ' s u n e x p e c t e d a n d i l l d e s e r v e d e l e v a t i o n h a s t u r n e d h i s h e a d . T i m e w a s t h a t w h e n t h e b r a i n s w e r e o u t t h e m a n w o u l d d i e ; a n d t h e r e w a s a n e n d 4 3 . B . C . P r o v i n c i a l S e c r e t a r y ' s C o r r e s p o n d e n c e I n w a r d . B C A R S G R 526 F i l e s 387,401. 4 4 . T h e D a i l y S t a n d a r d . 12 F e b r u a r y 1873. 67 of him. The fact that Mr. Beaven s t i l l l i v e s i s proof p o s i t i v e that times have changed.45 We do not know i f Beaven's allegations were correct as neither side produced any proof to j u s t i f y t h e i r claims. Despite the furor over the p e t i t i o n , i t was, i n f a c t , too l a t e . The b i l l had already been given royal assent on February 21, 1873.46 For better or worse, "the Act to promote Bachelordom" - the Married Women's Property Act -became the law i n B r i t i s h Columbia. I t remained to the courts to interpret the statute as they saw f i t . 45. The Daily B r i t i s h Colonist. 12 February 1873. 46. B.C. Journals of the L e g i s l a t i v e Assembly. Vol.11 1872-73. Feb. 21, 1873. 68 Chapter I I I : Women, Property and the Courts i n B r i t i s h Columbia: "to s h i e l d her where she has been wronged" Those who objected to the Married Women's Property Act because they feared a domestic revolution would have been reassured by what they saw i n court. Once the l e g i s l a t i o n was i n place judges seldom had occasion to refer to i t . Before 1880 only Justice John Hamilton Gray referred to the statute at length, and he expressed some of the same concerns as had the l e g i s l a t o r s who had fought i t so vigorously. The statute's provisions would, i n theory, enable women to assume a separate legal i d e n t i t y from that of t h e i r husbands, thereby weakening coverture, and giving women legal r e s p o n s i b i l i t y for th e i r own contracts. But the paternalism of the law was evident i n j u d i c i a l views of the subject which remained e s s e n t i a l l y protective. Nineteenth century B r i t i s h Columbia court records reveal several things about women and property-related l i t i g a t i o n . They provide insight into judges ideas and attitudes towards women, marriage and family l i f e . They hig h l i g h t the li m i t a t i o n s of statutory law i n that some of the l i t i g a t i o n , p a r t i c u l a r l y involving native common law wives, f e l l outside the sharply defined scope of the statute. The records also confirm that orders of protection were problematic, and that women i n association with t h e i r husbands did engage i n suits involving commercial transactions. F i n a l l y , despite l e g i s l a t i v e intent to extend 69 women's legal autonomy, the court's narrow i n t e r p r e t a t i o n of the statute ensured that i t would remain a protective measure because, i n the j u d i c i a l mind, separating the economic interests of husband and wife was linked i n e v i t a b l y to marital breakdown and divorce. P r o v i n c i a l court records, s p e c i f i c a l l y some twenty-five volumes of judges' bench books for both Supreme and County c i v i l courts from 1867 to 1879, of f e r us a window on the law as women experienced i t . Although they do not constitute an o f f i c i a l l egal t r a n s c r i p t , these records prove extremely useful to the h i s t o r i a n . In them, judges recorded the pa r t i c u l a r s of a case and i t s outcome. In addition, they often wrote t h e i r own observations and reasons for judgement, providing insight into t h e i r personal b e l i e f s and lega l interpretations. Equally important, bench books allow us to hear women's voices, for those who appeared i n these pages were not always s i l e n t . Many of them addressed the judge and th e i r testimony was duly recorded. Consequently, these volumes inform us not only about j u d i c i a l perceptions of women and the law, but also about a l i t t l e known aspect of women's l i v e s i n V i c t o r i a n B r i t i s h Columbia, th e i r presence i n c i v i l court. Women appeared with some r e g u l a r i t y before the court i n matters related to property, both before and af t e r the statute was passed. I t i s clear from the records that law on the books and law as people experienced i t were often 70 very d i f f e r e n t . For some of the women who came to court, the Married Women's Property Act may have had l i t t l e meaning because t h e i r marital status and property concerns lay outside i t s legal parameters. In B r i t i s h Columbia, Tina Loo argues, the law functioned as an a r b i t r a t o r i n a society which lacked the s o c i a l cohesion of more established communities.^ This was c e r t a i n l y true of commercial l i t i g a t i o n , but i t was equally applicable i n matters re l a t e d to the home. As seen through the j u d i c i a l eyes, domestic l i f e on the west coast f r o n t i e r was anything but stable. I t i s apparent from the records that the most disadvantaged members of society occasionally did seek redress through the lega l system.2 Not surp r i s i n g l y , women involved i n l i t i g a t i o n who had neither s o c i a l standing nor family support, turned to the courts, having l i t t l e to lose i n the process but court c o s t s . 3 Although judges d i d not record Loo, "Law and Authority i n B r i t i s h Columbia", 109. 2. See for example the 1871 case of Johns vs Munser and Barker involving two prost i t u t e s . Clara Johns sued E l l e n Munser and her boyfriend Stephen Barker i n a dispute over the p l a i n t i f f ' s clothing and jewellry. B.C. County Court (Vic t o r i a ) Pemberton Bench Book 1870-71, BCARS GR1727 Vol. 57. 3 . Loo, "Law and Authority i n B r i t i s h Columbia", 121-125. Loo notes, for example, that i n the period from 1858-1871, the average cost of county court actions where most such cases were heard ranged from $4.50 i n the lower country to $5.00 i n the upper country. Moreover, most of the county courts actions involved sums of less than $50. She concludes that costs were not p a r t i c u l a r l y p r o h i b i t i v e and that p a r t i c u l a r l y i n the lower country where courts were more accessible, people engaged i n l i t i g a t i o n over r e l a t i v e l y small sums. 71 ethnic o r i g i n with any consistency, we f i n d native and Chinese women as well as one black woman i n the bench books. In cases involving disputes over domestic property, native women, for example, were doubly disadvantaged, both by th e i r e t h n i c i t y and the leg a l v u l n e r a b i l i t y of common law wives. In f r o n t i e r communities l i k e B r i t i s h Columbia, where native-white common law marriage was not unusual, the question of marital status was not always e a s i l y determined. Certainly the issue was one that concerned B r i t i s h Columbians, as discussions about native wives i n the 1860's, when church o f f i c i a l s were tr y i n g to encourage white women to emigrate, indicated. Jean Barman notes that, despite these e f f o r t s , the non-native female population i n the province remained r e l a t i v e l y small, and i n 1871, natives, roughly half of whom were women, s t i l l made up approximately 70 percent of the t o t a l population. 4 Faced with t h i s demographic r e a l i t y and given the fact that the issue of mixed marriages engaged the Canadian j u d i c i a r y ' s attention during these years,5 i t i s 4. Barman, The West beyond the West. 130, 363. She notes that even by the 1890's, there was only one non-native female for every three males. 5. See Backhouse, Petticoats and Prejudice. 7-20 i n which she discusses the Connolly case extensively. B r i e f l y , i t involved the common law marriage of a native woman and a white fur trader who subsequently married a white woman. The native woman's son sued for inheritance ri g h t s from his father's estate. At issue was whether or not the native-white common law marriage was v a l i d . The courts eventually ruled that i t was and ruled i n the son's favour. Backhouse notes that the case received wide public attention and was no doubt of in t e r e s t i n B.C. because James Douglas' mixed blood wife, Amelia, was one of the Connolly daughters. 72 noteworthy that B r i t i s h Columbia l e g i s l a t o r s included no provisions for common law native wives i n the 1873 statute. Thus the issue of what constituted a common law wife's separate r e a l or personal property might become a p a r t i c u l a r l y contentious issue. Although the bench books do not discuss native women i n d i r e c t r e l a t i o n to the Married Women's Property Act, they do appear as common law wives i n property related actions. Their concerns lay outside the framework of the 1873 act, but are important nonetheless because they i l l u s t r a t e that the property concerns of women i n f r o n t i e r B r i t i s h Columbia ranged far beyond the narrowly defined provisions of the Married Women's Property Act. In asserting t h e i r property claims, native women sometimes employed arguments that ran counter to V i c t o r i a n notions of r e s p e c t a b i l i t y by renouncing t h e i r status as wives. In responding to one such claim, a prominent B r i t i s h Columbian judge, Matthew B. Begbie revealed his ideas about native-white common law marriages and the nature of marital property r e l a t i o n s more generally. For European V i c t o r i a n women, the designation of "Mrs." denoted a ce r t a i n r e s p e c t a b i l i t y , and was probably used by many women who were neither married nor widowed. Matthew MacFie, an observer of society i n V i c t o r i a i n the 1860's, noted that i n f r o n t i e r communities, i t was not at a l l unusual for both men and women to misrepresent t h e i r s o c i a l or marital status, for a v a r i e t y of reasons.6 We do not know that married status meant the same for native women as i t d i d for t h e i r white counterparts, or i f the i r willingness to renounce i t merely r e f l e c t s the l e v e l of the i r desperation. But, c e r t a i n l y , Margaret N e i l l , a mixed blood woman, rejected the t i t l e of "Mrs." when, i n 1871, she sued S. Burt to recover her property from him. In her testimony, she claimed that her belongings were given to Burt by her common-law husband, Mr. Blee, following a domestic dispute, and she said, i n part I know a man named Blee, I l i v e d with him for six years. I was not married to him. I am a half breed. . .A clock, a stove, and some spoons were taken away and they were my property... I did not give Blee permission to remove anything from my house. I never t o l d you I was married.7 In his defense, Burt argued that he took the goods i n payment of Blee's debt to him, adding that he had known the p l a i n t i f f for two years and that she "represented herself as Mrs. Blee." This being the case, he no doubt assumed that N e i l l was Blee's wife and that Blee could dispose of family property as he wished. The s u i t was l a t e r withdrawn so we have no way of knowing i f Margaret N e i l l regained her property, but the case suggests the legal complications that could r e s u l t from common-law relationships regarding women's 6. MacFie, Vancouver Island and B r i t i s h Columbia. 395-400. 7. B.C. County Court. (Victoria) Pemberton Bench Book, 1870-71. BCARS GR 1727 Vol. 57. 74 property. For native concubines, recognition as a wife d i d not always work to the i r advantage. Whereas N e i l l t r i e d to reclaim her possessions by renouncing her status as wife, another native woman, Mary, also challenged the very concept of V i c t o r i a n wifely duties when she sued her deceased common law husband's estate for the domestic services she had provided for him. Judges were not unaware of the ethnic and c u l t u r a l differences of some of the l i t i g a n t s who appeared before them. In rendering his decision, Judge Matthew B a i l l i e Begbie revealed his views on native-white common law marriage: Now i t i s of common knowledge that these arrangements for concubinage with Indian women are considered by them not as immoral at a l l , but as cons t i t u t i n g free marriages: and a l l they expect to receive i s the ordinary treatment of a wife: they get food, shelter, protection, clothing, and any pocket money they can coax from t h e i r protector. They do not s t i p u l a t e for wages, and i f they did, the s t i p u l a t i o n of course would not be enforced...Here, the more you i n s i s t on the purity of the p l t f f ' s conduct, according to Indian notions - the more nearly you approximate her pos i t i o n to that of a legitimate wife, the more you explode the notion of there being any claim for wages, for which she can sue.° In t h i s instance, Begbie acknowledged the v a l i d i t y of Mary's common law marriage to Seater, but his discussion worked against the p l a i n t i f f who obviously was t r y i n g to 8 . B.C. Supreme Court. V i c t o r i a . Begbie Bench Book, 1877-78. BCARS GR 1727 Vol. 730. claim monetary compensation from her common law husband's estate. Mary's and N e i l l ' s willingness to come to court indicates that some native women were not reluctant to engage i n a c i v i l action to f i g h t for what they thought l e g a l l y and r i g h t f u l l y belonged to them. Furthermore, the argument for compensation for wages was novel and Begbie f e l t compelled to explain the difference between labour and marital contracts and the domestic r e s p o n s i b i l i t i e s of wives, generally. According to Begbie, recognizing Mary's p o s i t i o n as wife meant that she could not sue for wages as i f she had been a servant. A contract for wages could only e x i s t between master and servant, not husband and wife. In t h i s context, Begbie pondered "did she go to the deceased as a concubine who also acted as a cook, or go as a cook, and afterwards submit to be a concubine?"9 The point was c r u c i a l ; as the former, she would only be f u l f i l l i n g what was normally considered to be her wifely duties. The idea of compensating wives for the i r domestic labour was not possible, nor even desirable, Begbie argued: In the pos i t i o n of a wife, a woman natura l l y makes herself useful i n a household, for the benefit of the establishment generally, not for the benefit of the husband alone. She does the work, or superintends the work as part of the functions of the mistress of the household. Among the labouring part of the population, the wife i t i s true 76 may be regarded as the servant, and the only servant i n the establishment, i t i s a common remark, that a poor man, not being able to o f f e r wages, married i n order to get a servant. But the wife i s not the husbands' servant, so as to e n t i t l e her to sue for wages.10 Begbie's remarks underscored V i c t o r i a n ideas about marriage and women's ro l e and r e s p o n s i b i l i t y as wives. Domestic labour was not work but a labour of love. As women's historians observe, society's r e f u s a l to acknowledge household labour as work placed women who performed such tasks i n an economically vulnerable p o s i t i o n when marriages, for whatever reasons, d i s s o l v e d . H Women l i k e Mary paid a heavy price for the sentimentality attached to female labour i n the home which placed no monetary value on such services. Not l e g a l l y e n t i t l e d to the same claims upon a man's estate as a legitimate wife or widow, Mary attempted one l a s t strategy. In t h i s instance, she may have been successful to some degree. Begbie, noting there was no next of kin, reserved decision, so that he could speak to IQ.Ibid. 11. See for example, Basch, In the Eyes of the Law. 222, i n which she points out the f i n a n c i a l v u l n e r a b i l i t y of widows or deserted wives "who brought no separate estate to marriage and created none during coverture, and whose l i f e l o n g services to husband and family continued to be regarded by the law as part of the husband's marital r i g h t s . The value of those services constituted the only conceivable assets they could have owned. Only some kind of property system that made the wife a f u l l legal and f i n a n c i a l partner i n the assets of the marriage could have benefitted them. The dominant culture, however, never viewed a l l of the wife's v i t a l services as work, and neither did the law." 77 t h e A t t o r n e y - G e n e r a l a b o u t h e r c a s e . I 2 M a r y ' s e f f o r t s t o be p a i d f o r h e r w o r k e m p h a s i z e d t h e d i f f i c u l t i e s c o m m o n - l a w w i v e s s o m e t i m e s e x p e r i e n c e d i n t r y i n g t o p r o v i d e f o r t h e m s e l v e s when h u s b a n d s d i e d o r a b a n d o n e d t h e m . B u t l e g a l l y m a r r i e d women who t e c h n i c a l l y came u n d e r t h e p r o v i s i o n o f s t a t u t o r y l a w s o m e t i m e s s u f f e r e d no l e s s u n d e r s i m i l a r c i r c u m s t a n c e s . I n t h e i r c a p a c i t y a s a r b i t r a t o r s o f d i s p u t e s i n v o l v i n g women a n d t h e i r p r o p e r t y , j u d g e s saw l i t t l e e v i d e n c e o f f a m i l y s t a b i l i t y . I n s t e a d , t h e y o f t e n w i t n e s s e d t h e l e g a l c o m p l i c a t i o n s a r i s i n g f r o m women's l i f e c i r c u m s t a n c e s . T h e o r e t i c a l l y , m a r r i e d women whose h u s b a n d s d e s e r t e d them c o u l d s e p a r a t e t h e i r e c o n o m i c i n t e r e s t s f r o m t h o s e o f t h e i r s p o u s e s , b u t i n r e a l i t y t h i s was n o t a l w a y s p o s s i b l e . P r i o r t o 1873, women who l i v e d a p a r t f r o m t h e i r h u s b a n d s c o u l d o b t a i n a n o r d e r o f p r o t e c t i o n t o s e c u r e t h e i r b e l o n g i n g s . B u t few o f t h e s e o r d e r s e v e r w e r e r e g i s t e r e d i n B r i t i s h C o l u m b i a . L e g i s l a t o r s r e m o v e d t h i s r e q u i r e m e n t i n t h e 1873 s t a t u t e a n d i f t h e c a s e o f B a l d e n v s . S t r o n g i s a n y i n d i c a t o r o f t h e c o n f u s i o n a n d r e s u l t i n g l i t i g a t i o n t h a t s u c h o r d e r s p r o v o k e d , i t i s n o t s u r p r i s i n g t h a t t h e y d i d s o . B a l d e n v s . S t r o n g i s i n s t r u c t i v e o n t h i s p o i n t b e c a u s e i t 1 2 . I n h i s b i o g r a p h y o f B e g b i e , D a v i d W i l l i a m s s u g g e s t s t h a t t h e I n t e s t a t e E s t a t e s A c t , 1877 was l a t e r amended t o i n c l u d e p r o v i s i o n s f o r " c o n c u b i n e s a n d i l l e g i t i m a t e c h i l d r e n " as a r e s u l t o f B e g b i e ' s i n f l u e n c e . D a v i d R . W i l l i a m s , T h e Man f o r a New C o u n t r y : S i r M a t t h e w B a i l l i e  B e g b i e . ( V a n c o u v e r : G r a y ' s P u b l i s h i n g C o . 1977), 107. 78 i l l u s t r a t e s the weakness of the lega l procedure that required women to get orders of protection upon separation. For Catherine Balden and her husband, residents of Vi c t o r i a ' s black community, property became the foc a l point of domestic s t r i f e and violence. From 1865 to 1878, a series of sui t s and countersuits involving the Baldens and, eventually, t h e i r neighbours and friends, centred upon the issue of what belonged to whom. In 1870, Mr. Balden, a storekeeper, was convicted of attempted arson for t r y i n g to burn down his wife's house while she was sleeping i n i t . At his t r i a l she t e s t i f i e d that Balden had p h y s i c a l l y assaulted her on several occasions, saying however that "I have nothing against him though he has treated me pretty hard." She further stated that "we have had many disputes about the possession of the house. I was determined not to give up the house."13 j n 1872, while Balden was i n prison, Catherine became i l l and l a t e r died. During her i l l n e s s , she was cared for by her friends, the Strongs. Before her death, Mrs. Balden l e f t them her few belongings - a gold watch and chain, a few pieces of furniture, and two trunks of clothes as repayment for the i r kindness. The Strongs took the goods and, i n 1874, successfully sued Balden for expenses incurred i n caring for and burying his wife. Balden l a t e r appealed the decision, claiming that 1 3 . B.C. Supreme Court, Notes of Proceedings 1870-71, BCARS C/AB/30 N6. 30-54. 79 because his wife had obtained an order of protection when they f i r s t parted i n 1865, he was not responsible for her debts. According to Begbie, the c r u c i a l point of law upon which the case revolved was whether or not such an order had been issued and properly registered i n the Supreme Court.14 Balden and the Strongs then became embroiled i n a lengthy le g a l b a t t l e over Catherine's property and over compensation for debts paid on her behalf. The d e t a i l s of the various suits need not concern us here, but the case exposed the weakness of a cumbersome legal procedure and highlights the gulf between statute law and i t s implementation. Although there i s no d i r e c t evidence that l e g i s l a t o r s were aware of the Balden case, i t i s probable that they would have known about the circumstances of what was generally considered a notorious case. Legislators recognized the advantage of avoiding the kind of extensive l i t i g a t i o n that Balden vs. Strong entailed. Removing the requirement for an order of protection seemed an appropriate legal reform. Although the records of commercial cases are not as r i c h i n d e t a i l as those concerned with more personal sit u a t i o n s , they are i n s t r u c t i v e nonetheless because they v e r i f y that p r i o r to 1873, women were active i n the commercial l i f e of the province. Either as small business 14. B.C. Supreme Court (Victoria) Begbie Bench Book, 1873. BCARS GR 1727 Vol. 729. See also B.C. County Court (Vic t o r i a ) Pemberton Bench Book, 1871-74. BCARS GR 1727 Vol. 58. 80 operators or as consumers, women sued and were sued i n c i v i l court. Their presence i n c i v i l court p r i o r to the passage of the Married Women's Property Act suggests that women did not hesitate to engage i n l i t i g a t i o n and that l e g i s l a t o r s were j u s t i f i a b l y anxious to delineate t h e i r l e g a l r e s p o n s i b i l i t i e s i n statutory law. A b r i e f survey of p l a i n t and procedures books for the Cariboo d i s t r i c t from 1862-1871, reveals many actions involving board, wages, and goods. Some women appear to have used the l i t i g a t i o n process quite regularly as a means to c o l l e c t debt. For example, Malvina Toy, the Clinton innkeeper mentioned i n the previous chapter, often took others to court. From 1866 to 1869 she appeared eight times as a p l a i n t i f f and twice as a defendant. Between 1863 and 1865 Catherine Lawless, another Cariboo innkeeper, sued seven times and was sued twice. Various other women were also involved i n simi l a r l i t i g a t i o n , appearing two or three times.15 women who ran th e i r own businesses, then, were w i l l i n g to go to court to s e t t l e disputes. We do not know how independent most of these women were f i n a n c i a l l y , but according to J u s t i c e E.M. Sanders, Toy ran a substantial business. Evidently, such women f e l t e n t i t l e d to approach the courts for redress. Although they may have had limi t e d legal capacity, they u t i l i z e d that which they had. In Toy's case, for example, a 15. B.C. County Court. P l a i n t and Procedures Books (Cariboo D i s t r i c t ) 1860-1871, BCARS GR Vols. 568, 569, 572, 584. 81 challenge to her r i g h t to independent l e g a l action did not prevent her from pursuing the same course again. The records also indicate that l e g i s l a t o r s ' concerns about spousal l i a b i l i t y were well founded, as women who were sued as consumers of goods or services, e s p e c i a l l y p r i o r to 1873, often were c o - l i t i g a n t s with t h e i r husbands and sometimes were not named at a l l i n the action. Although women appeared on th e i r own i n some instances, husbands were often brought to court i n r e l a t i o n to a debt owed by th e i r wives p r i o r to marriage. For instance, i n 1872, Sam Chong sued Mr. Woodhaus and his wife, the former Lucy Smith, for the $5.50 she owed him for laundry services he provided for her p r i o r to her marriage. In Spencer vs. Snow and wife, the p l a i n t i f f claimed Mrs. Snow had borrowed f i v e d o l l a r s from him before she married. Mansell & Holroyd, furniture store owners, took the former Emily Morris and her husband, Mr. Farr, to court over furniture Mrs. Farr had bought when she was single. 16 j n each of these cases, the p l a i n t i f f s won t h e i r case and husbands had to pay the costs involved. It i s s i g n i f i c a n t that, after 1873, c o - l i t i g a n t cases disappeared from the bench books. This i s not to say that they no longer occured, but the Married Women's Property Act seems to have diminished husbands' l i a b i l i t y under c e r t a i n circumstances. Legislators who supported the b i l l had argued 1°. B.C. County Court ( V i c t o r i a ) , Pemberton Bench Books, 1871-76. BCARS GR 1727 Vol. 58. 82 that the b i l l ' s provisions would c l a r i f y spousal l i a b i l i t y and that i t would benefit husbands by making them no longer responsible for debts contracted by th e i r wives before marriage. The bench books suggest that t h i s provision may have been an e f f e c t i v e deterrent to launching such s u i t s a f t e r the b i l l was introduced. But the issue of married businesswomen remained problematic and for Just i c e Gray, at leas t , the act of separating a husband and wife's economic inte r e s t s was the f i r s t step towards divorce. I t was th i s l i n k between separate property and marriage breakdown that most concerned Gray when a case touching upon the Married Women's Property Act was heard before him i n 1877. After the 1873 b i l l was passed i n the l e g i s l a t u r e , i t s ' impact was minimal. The bench books record only three instances i n which i t was considered. In two of these cases, J u s t i c e Gray presided, and he c a r e f u l l y recorded a l l of his deliberations, because he was aware that he was the f i r s t court o f f i c i a l to invoke the s t a t u t e . ^ His comments on the statute r e f l e c t his concerns about i t s ' legal ramifications, but they also reveal his ideas and attitudes about domestic r e l a t i o n s , women, the doctrine of marital unity and divorce. The cases which drew Gray's attention One case appears i n Crease's Bench Book, but he does not provide much d e t a i l . B.C. Supreme Court (V i c t o r i a ) Crease Bench Book, 1877-78. GR 1727 Vol. 695. For Gray's discussion see B.C. Supreme Court (Victoria) Gray Bench Book, 1875. GR 1727 Vol. 769. 83 regarding the Married Women's Property Act involved women running small businesses. The f i r s t l i t i g a n t s , both Chinese, appeared before him in 1877, prompting Gray to ponder b r i e f l y the meaning of marriage i n Chinese culture. He determined that regardless of what that status implied i n China, the woman resided i n Canada and so came under the provisions of p r o v i n c i a l law as i t applied to married women. In Wah Fung vs. Loy You, the p l a i n t i f f claimed that the defendent, who ran a laundry i n V i c t o r i a , owed him money for rent. The legal point then to be decided was whether Loy You made the contract i n r e l a t i o n to her own separate business or as a wife acting as her husband's representative for the benefit of both. According to Gray: The mere fact of her carrying on a separate business i n a p a r t i c u l a r l i n e does not prevent a woman from making a contract that would render her husband l i a b l e - and for which she herself would not be l i a b l e . I t i s not to be assumed that everything she does i s for her separate business. To bring the case within the Statute - that fact must be d i s t i n c t l y alleged or prima f a c i e proved. Looseness i n a f f i d a v i t s or leg a l proceedings affords f a c i l i t i e s for f r a u d . 1 8 1 8 . B.C. Supreme Court (Victoria) Gray Bench Book, 1875. GR 1727, Vol. 769. Gray was not alone i n focussing upon the legal point of whether or not a woman engaged i n a contract as part of her separate business or as a wife. Constance Backhouse notes that i n Ontario, judges d i d the same. Backhouse, "Married Women's Property Law", 238. 84 In the second case, i n 1878, C r a n o e l l i vs. Snow, the p l a i n t i f f sued Snow, a married woman, who ran a business at Naas River and whose husband purchased goods from C r a n o e l l i on her behalf. Because the p l a i n t i f f had previously sued the husband, Gray ruled that t h i s implied that the p l a i n t i f f acknowledged that the husband, not the wife, was l i a b l e for the debt. Although i n both instances, Gray's decisions benefitted the women involved, such ru l i n g s , i n the long run, were detrimental to women engaged i n business.19 Few merchants would be w i l l i n g to contract with married women i f i t meant having to determine f i r s t whether the woman was l e g a l l y e n t i t l e d to do so. Gray chose to understand and apply the statute s o l e l y as a protective measure, and i n doing so ignored any pote n t i a l i t had to give women more autonomous property r i g h t s . In his view, even i f l e g i s l a t o r s meant the b i l l to achieve t h i s end, i t should not. Gray was p a r t i c u l a r l y disturbed by the b i l l ' s potential to erode marital unity. On the one hand, he was aware of the b i l l ' s provisions that would enable married women to act i n th e i r own economic i n t e r e s t s . But he argued that these e g a l i t a r i a n elements of the statute would encourage women to behave ir r e s p o n s i b l y and yet remain f i n a n c i a l l y unaccountable. Gray complained that under the Married Women's Property Act: I 9 . Backhouse," Married Women's Property Law", 226-227. 85 There i s hardly anything the wife cannot do - She may carry on business separately from her husband - perhaps with h i s r i v a l i n trade - or greatest enemy - j o i n incorporated Companies or Associations - speculate - gamble i n stocks - run up debts - sue and be sued c i v i l l y and c r i m i n a l l y - become the Manager of a Bank or a Livery Stable - spend her money i n p r o f l i g a c y and f o l l y - and when i t i s a l l gone-require her husband to support her.20 Furthermore, Gray, l i k e John Robson and his followers, thought that the l e g i s l a t i o n would encourage fraud, and he was therefore determined to apply the statute i n i t s narrowest terms, not to encourage women's independent business transactions, but only to protect them from l i a b i l i t y under c e r t a i n circumstances. C i t i n g common law, Gray reasoned that under coverture, a married woman could not contract, and that the Statute "must not be so construed as to encourage divergent interests between man and wife-It steps i n to s h i e l d her where she has been wronged or to ai d her when i t would be for her benefit."21 For Gray, any separation of the economic interests of husband and wife was incomprehensible except i n cases of marriage breakdown, and he framed his opinion accordingly. Scholars of women's legal h i s t o r y have emphasized the strength of the doctrine of marital unity despite the e f f o r t s of some l e g i s l a t o r s to challenge it.22 For most 20. B.C. Supreme Court. (V i c t o r i a ) Gray Bench Book, 1875. GR 1727 Vol. 769. 21. i b i d . 22. Salmon .Women and the Law of Property i n Early America, 193. Backhouse, "Married Women's Property Law", 86 nineteenth century Canadians, B r i t i s h Columbians included, the concept of married women's separate property would remain linked with the troubling issues of separation and divorce. Both men and women, acculturated to view the r i g i d gender roles assigned to them as the norm, simply could not imagine such divergent interests between husband and wife. Gray could only envision the statute being useful when husbands were d e r e l i c t i n th e i r duties as providers and protectors for the i r families. He r e i t e r a t e d that the 1873 statute was "remedial and intended to protect the woman - where the duties and objects of the marriage have been departed from and disregarded by the Husband."23 Sim i l a r l y , women who stepped outside the realm of wifely duties to act as independent economic agents were also suspect. The common law, according to Gray was quite adequate to protect the property rights of the married woman "whose Purity and vi r t u e w i l l always command respect - and ensure to th e i r possessor the esteem and po s i t i o n to which refinement, C i v i l i z a t i o n and C h r i s t i a n i t y have elevated her. " 2 4 A woman who engaged i n commerce s o l e l y for her own economic gain c l e a r l y transgressed the boundaries of behaviour thought appropriate for those whose marriages were i n t a c t . Thus both husbands and wives were to set in d i v i d u a l 2 : 5. B.C. Supreme Court. (Victoria) Gray Bench Book, 1875. GR 1727, Vol. 769. 24. i b i d . 87 i n t e r e s t s aside to work for the benefit of the family. The law, having encoded p r e s c r i p t i v e behaviour for both sexes by defining patterns of ownership, reinforced i d e a l i z e d gender roles that, as we have seen, did not always accord with r e a l i t y . In Gray's mind the Married Women's Property Act, unless interpreted narrowly as a protective measure, was no less than a precursor to divorce. If women were allowed to exercise the rights given them under the statute, husbands should be e n t i t l e d to some legal remedy. In one sense, Gray was perhaps more progressive than some of his colleagues for he believed that divorce, though undesirable, was sometimes necessary. Despite the rhet o r i c that ex t o l l e d married l i f e and i d e a l i z e d the rel a t i o n s h i p between husband and wife, often marriages did go wrong - i t s partners trapped l e g a l l y i n what J u s t i c e Gray c a l l e d "the charnel House of Buried af f e c t i o n s - of buried hopes - of buried Honor."25 He expressed his opinion on the matter i n a discussion of the Divorce and Matrimonial Causes Act of 1857 i n r e l a t i o n to a divorce case before the Supreme Court i n 1877. The question arose as to whether p r o v i n c i a l courts had j u r i s d i c t i o n over divorce. Matthew Begbie had argued that only B r i t i s h courts had such powers.26 25. B.C. Supreme Court. (Victoria) Gray's Bench Book, 1875. BCARS GR 1727 Vol. 769. 26. Ibid. For f u l l d e t a i l s of the case see the erroneously named case Sharpe vs. Sharpe (1877), B.C.  Review. 25, 247-273. 88 Gray disagreed and i n doing so referred at length to the pote n t i a l impact of the Married Women's Property Act. The passage of the statute represented the beginning of a new phase of domestic law. Marriage was now considered to be a contract and had to be viewed "not i n the l i g h t of sentiment - but i n the l i g h t of modern legislation. " 2 7 Gray believed that both wives and husbands should have equal access to divorce. I f , under the provisions of the 1873 statute, a woman acted i n her own economic in t e r e s t s to the detriment of her husband, then he was e n t i t l e d to a divorce. In discussing the question of l o c a l j u r i s d i c t i o n over divorce, Gray ruled that: When England passed the Act of 1857 i t intended that both man and woman should henceforth hold th e i r matrimonial status by law - not by the favor or accident of a Parliamentary majority. B r i t i s h Columbia i n adopting the English law intended the same - and I cannot see that i t i s j u s t i c e to the inhabitants of thi s Country to apply to them the worse part of the law - and deprive them of the best - I know of nothing - that would be more ruinous to the peace of families - or tend more to s o c i a l degradation - than the b e l i e f that... there i s i n th i s Country no remedy...28 Obviously, i n Gray's opinion the Married Women's Property Act represented the 'worst part of the law.'; a l e g i s l a t i v e travesty that should never have been passed. While he 27. i b i d 28. i b i d 89 believed that married women were e n t i t l e d to the court's protection, he did not wish to encourage female autonomy. Consequently, Gray's rulings based on the 1873 statute represented a j u d i c i a l compromise. Instead of f u l f i l l i n g i t s p o t e n t i a l , the act became another extension of the protective domestic l e g i s l a t i o n a f f e c t i n g women and the family that was c h a r a c t e r i s t i c of the nineteenth century. By l i n k i n g the two pieces of domestic l e g i s l a t i o n : the Divorce and Matrimonial Causes Act and the Married Women's Property Act, Gray demonstrated the court's reluctance to acknowledge women's separate r i g h t s , and i t s tendency to c l i n g to the doctrine of marital unity. 90 Conclusion Women i n c o l o n i a l B r i t i s h Columbia i n h e r i t e d the B r i t i s h legal t r a d i t i o n of marital property based on two bodies of jurisprudence, common law and equity. But the law of equity was not re a d i l y available to most women and the li m i t a t i o n s of common law were even more apparent i n the new world than the old. Marriage settlements, a t r a d i t i o n a l device for s e t t l i n g separate property upon women were not common, nor were they i r r e v e r s i b l e . As B r i t i s h and American feminists pointed out, such agreements were only a v a i l a b l e to the wealthy and did l i t t l e to protect the average woman. Le g i s l a t i o n was a means to protect a l l women's separate property and earnings and as a re s u l t , during the mid and lat e nineteenth century, property acts were adopted throughout the Anglo-North American world. Both feminist and family historians have examined the issue of these married women's property laws, although they have done so from very d i f f e r e n t perspectives. Women's hist o r i a n s have emphasized the active r o l e that nineteenth century feminists played i n bringing about le g a l change, whereas family historians have focused on women's increased status within the family to explain t h e i r expanded legal r i g h t s . A major problem for women's legal h i s t o r i a n s has been to explain the passage of such laws i n areas where no feminist presence existed. 91 The 1873 Married Women's Property Act i n B r i t i s h Columbia was passed under such circumstances and has served as a case study to explore t h i s question from a family h i s t o r i c a l perspective. Although the influence of feminist thought was apparent i n the parliamentary and public debate over the b i l l , meeting a feminist agenda was never the l e g i s l a t o r s ' goal. Instead, t h e i r motives were twofold: to c l a r i f y women's legal r e s p o n s i b i l i t i e s i n the commercial world, and to grant them a higher legal status i n accordance with th e i r family p o s i t i o n i n the companionate V i c t o r i a n marriage. In doing so, reform-minded l e g i s l a t o r s challenged the common law doctrine of marital unity. Unlike the e a r l i e r 1862 law which dealt only with deserted wives, the 1873 statute had the potential to grant married women greater legal and economic autonomy. But i t did so only i n a l i m i t e d way because judges interpreted i t conservatively. Consequently, property law a f f e c t i n g married women remained d i s t i n c t l y paternal, grounded i n V i c t o r i a n ideas about law, gender r e l a t i o n s , family, and men's ro l e as protectors and providers. The 1873 statute represented an attack on the legal doctrine of coverture, and discussion focused on the b i l l ' s p o t e n t i a l impact i n the marketplace and i n the home. The li n e s of debate were c l e a r l y drawn. Those who supported the l e g i s l a t i o n thought the b i l l would c l a r i f y spousal l i a b i l i t y and r a i s e women's legal status to a l e v e l more appropriate 92 with t h e i r p o s i t i o n as wives and mothers. Its opponents, however, argued that the statute would encourage fraud, destroy marital and family unity, and lead to marital breakdown. Two aspects of the proposed l e g i s l a t i o n were cen t r a l : the removal of the order of protection clause which s i m p l i f i e d legal procedures and the elimination of confusion about spousal l i a b i l i t y involving commercial transactions. But the concerns about the economic implications of the b i l l also extended to i t s impact on domestic relationships and control over the family pursestrings. The 1873 statute was one of several reforms introduced by Amor De Cosmos's l i b e r a l reform government. Yet not a l l those who believed i n the importance of l i b e r a l i n s t i t u t i o n s and reform supported the measure, as John Robson's opposition indicated. The differences between De Cosmos's and Robson's positions on the b i l l no doubt stemmed, i n part, from t h e i r personal circumstances and r e l i g i o u s convictions. But i t also revealed t h e i r c o n f l i c t i n g perceptions of gender r e l a t i o n s and t h e i r views on the "woman question" of the period. De Cosmos, although no feminist, was sympathetic to the e g a l i t a r i a n i d e a l of marriage whereas Robson believed i n a more t r a d i t i o n a l , h i e r a r c h i c a l sense of family. Their respective positions were echoed i n the public debate as men, and occasionally women, discussed the r e l a t i v e merits of the b i l l . Much of 93 the discussion focused upon women's r i g h t s , and the pote n t i a l impact on marriage and family l i f e of d i v i d i n g the family's economic i n t e r e s t s . But although the statute's supporters and opponents disagreed as to how much le g a l and economic autonomy women should have, no one disputed women's entitlement to the law's protection. Contemporary ideas about the respective gender roles and r e s p o n s i b i l i t i e s of both sexes underlay discussion of the statute. V i c t o r i a n men, as well as women, were s o c i a l i z e d i n ways that reinforced gender i d e a l s . Women were regarded as dependent, f r a g i l e creatures, uncomfortable i n the world outside the home. Men, on the other hand, were expected to be more worldly and were deemed to bear a moral ob l i g a t i o n to provide for and protect t h e i r f a m i l i e s . When husbands f a i l e d to protect t h e i r wives t h i s moral o b l i g a t i o n extended to the law. This all-encompassing paternalism was temporarily threatened by the provisions of the Married Women's Property Act which might have allowed married women more control over t h e i r own economic resources. But through j u d i c i a l decisions, the courts reinforced the law's t r a d i t i o n a l paternalism. Nineteenth century B r i t i s h Columbia court records reveal that, despite t h e i r smaller numbers, women were active i n the commercial l i f e of the province and d i d not hesitate to engage i n l i t i g a t i o n regarding t h e i r property concerns. Some of the cases indicate the l i m i t a t i o n s of 94 statutory law i n dealing with those who f e l l outside i t s ' scope. This was p a r t i c u l a r l y true for native common law wives whose property rig h t s were i l l - d e f i n d or non-existent. It i s s i g n i f i c a n t that l e g i s l a t o r s included no provisions for these women i n a province where such l i a s i o n s were not unusual, and native women represented most of the female population. The Balden case i l l u s t r a t e s the problems that could a r i s e from embedding complicated l e g a l requirements i n a statute. The sources also suggest that, while spousal l i a b i l i t y regarding wives debts p r i o r to marriage diminished after 1873, the issue of married businesswomen remained problematic. The cases that came before J u s t i c e Gray indicated the courts' reluctance to acknowledge either the separate economic interests of husbands and wives or a wife's l i a b i l i t y . J u s t i c e Gray's decisions involving married women who operated small businesses revealed j u d i c i a l concerns about the r e l a t i o n s h i p between female independence i n property-holding and the possible d i s s o l u t i o n of marriage. By focussing on the issue of what constituted a married women's "separate' property, Gray e f f e c t i v e l y n u l l i f i e d the more e g a l i t a r i a n aspects of the 1873 statute. Instead, he interpreted the b i l l s o l e l y as a protective measure. To do otherwise, he reasoned, would be to encourage divergent economic interests between husband and wife. Allowing women to be responsible for the i r own economic resources would 95 enable them to behave irresponsibly, and husbands would suffer the legal consequences. Gray viewed the Married Women's Property Act i n d i r e c t r e l a t i o n to the Divorce and Matrimonal Causes Act, and argued that l o c a l access to divorce must e x i s t i f the p r o v i n c i a l l e g i s l a t u r e was going to enact statutes l i k e the 1873 b i l l . Given the r e l a t i v e l y small number of women i n nineteenth century B r i t i s h Columbia who would have f a l l e n within the scope of the Married Women's Property Act, i t i s not sur p r i s i n g that i t was seldom used. But th i s made i t no less important to the l e g i s l a t o r s who enacted i t , nor Judge Gray who interpreted i t . In discussing the importance of statutory law, Gray observed The application or non-application of a statute or any p a r t i c u l a r part of i t -does not rest upon the view or opinion of any one person - but upon the wants and necessities of the community - nor does i t depend upon the frequency or common nature of the subject l e g i s l a t e d upon - It i s s u f f i c i e n t i f the e v i l ever occurs - the moment i t does - the statute applies.1 And i t was meeting the community's needs that engaged both l e g i s l a t o r s and the ju d i c i a r y . They shared an overriding concern for family s t a b i l i t y over i n d i v i d u a l r i g h t s and i t was t h i s objective that remained foremost i n th e i r minds. Thus, i n the end the Married Women's Property Act represented a compromise. It had the potent i a l to allow !. B.C. Supreme Court. (Victoria) 1875. Gray Bench Book. BCARS GR 1727 Vol. 769. 96 married women greater legal and economic autonomy, but t h i s also implied greater r e s p o n s i b i l i t y . C l e a r l y , i n the minds of many, such an outcome was not desirable. For most V i c t o r i a n B r i t i s h Columbians, feminist thought may have sparked debate over women's ro l e and status i n society, but they could not conceive of a world i n which husbands and wives acted as independent legal and economic e n t i t i t i e s . The doctrine of marital unity which joined husband and wife economically and l e g a l l y , as well as emotionally, survived t h i s f i r s t l e g i s l a t i v e assault. I t remained for B r i t i s h Columbian s u f f r a g i s t s at the turn of the century to mount the next attack. Bibliography 97 Newspapers. The B r i t i s h Columbian (New Westminister). The Comet ( V i c t o r i a ) . The Daily B r i t i s h Colonist ( V i c t o r i a ) . The Daily Standard ( V i c t o r i a ) . Primary Unpublished Sources. B r i t i s h Columbia. Attorney General. County Court. Cariboo (Alexandria). P l a i n t and Procedure Books, 1862-1864. BCARS. GR 572. . . . Cariboo (Clinton). P l a i n t and Procedures Books, 1867-1871. BCARS. GR 568. . • . Cariboo ( L i l l o o e t ) . P l a i n t and Procedures Books, 1861-1867. . - . Cariboo ( R i c h f i e l d ) . P l a i n t and Procedures Books, 1862-1870. . . . New Westminister (Fort Hope) . P l a i n t and Procedures Books, 1858-1871. BCARS. GR 574. B r i t i s h Columbia. Attorney General. Documents. BCARS. GR 419. B r i t i s h Columbia. Attorney General. Letterbook. O f f i c i a l Letters of the Attorney General's Department, 1870-1874. BCARS. C 4B 30.4J4. B r i t i s h Columbia. Attorney General. Supreme and County Court. Bench Books, 1867-1879. BCARS. GR 1727. B r i t i s h Columbia. Colonial Secretary. Colonial Correspondence. BCARS. GR 1372. B r i t i s h Columbia. Pro v i n c i a l Secretary. Correspondence Inward. BCARS. GR 526. 98 B r i t i s h Columbia. Supreme Court. Register of Orders, 1868-1889. BCARS. C/AB 30.3D. Crease, Henry Pering Pellew. Legal Papers, 1853-1895. BCARS. MS. . Crease Family Papers, BCARS. MS. Moody, Richard Clement. Moody Family Papers. BCARS. MS. Primary Published Sources B r i t i s h Columbia. Journals of the L e g i s l a t i v e Assembly. Vol . 1 1 , 1872-73. B r i t i s h Columbia. Statutes, 1871-1877. Canada Law Journal. Vol. IX, 1873. Hendrickson, James E. Journals of the Colonial Legislatures  of the Colonies of Vancouver Island and B r i t i s h Columbia. V i c t o r i a : P r o v i n c i a l Archives of B r i t i s h Columbia, 1980. Macfie, Matthew. Vancouver Island and B r i t i s h Columbia:  Their History. Resources, and Prospects. London: Longman, Green, 1865. MacGill, Helen Gregory. Daughters. Wives and Mothers i n  B r i t i s h Columbia: Some Laws Regarding Them. 2nd ed. Vancouver: The Moore Pr i n t i n g Co. Ltd., 1913. Ormsby, Margaret A. , ed. A Pioneer Gentlewoman i n B r i t i s h  Columbia: The Recollections of Susan A l l i s o n . Vancouver: University of B r i t i s h Columbia Press, 1976. Smith, Dorothy Blakey, ed. The Reminiscences of Doctor John  Sebastian Helmcken. Vancouver: University of B r i t i s h Columbia Press, 1975. Townley, C.B. Points i n the Laws of B r i t i s h Columbia  regarding the Legal Status of Women. Vancouver: B r i t i s h Columbia P o l i t i c a l Equality League, c.1911. Vancouver Island. Public General Statutes, 1859-1863. V i c t o r i a C i t y D i r e c t o r i e s . Selected issues, 1863-1875. Upper Canada Law Journal. Vol. II. 1856. 99 Secondary Sources: A r t i c l e s . Backhouse, Constance B. ""Pure Patriarchy': Nineteenth Century Canadian Marriage", McGill Law Journal 31 (1986): 264-312. ."Married Women's Property Law i n Nineteenth-Century Canada". Law and History Review 6 (1988): 211-257. Basch, Norma. "The Emerging Legal History of Women i n the United States: Property, Divorce, and the Constitution", Signs: Journal of Women i n Culture and Society 12:1 (1986): 97-117. Chused, Richard H. "Late Nineteenth-Century Married Women's Property Law: Reception of the Early Married Property Acts by Courts and Legi s l a t o r s " , American Journal of Legal  History 29:1 (1985) 3-35. Grossberg, Michael. "Crossing Boundaries: Nineteenth Century Domestic Relations Law and the Merger of Family and Legal History", American Bar Foundation Research Journal 4 (1985): 799-847. Hoff-Wilson, Joan. "Hidden Riches: Legal Records and Women, 1750-1825", i n Woman's Being. Woman's Place: Female Identity  and Vocation i n American History, ed. Mary Kelley, Boston: G.K. Hall & Co., (1979): 7-25. Johnson, P a t r i c i a . "McCreight and the Law". B r i t i s h  Columbian H i s t o r i c a l Quarterly 12 (1948): 127-149. Lay, Jackie. "To Columbia on the Tynemouth: The Emigration of Single Women and G i r l s i n 1862", In Her Own Right:  Selected Essays on Women's History i n B.C.. eds., Barbara Latham and Cathy Kess, V i c t o r i a : Camosum College (1980):19-41. Marquis, Greg. "Doing Ju s t i c e to " B r i t i s h J u s t i c e ' : Law, Ideology and Canadian Historiography", Canadian Perspectives  on Law and Society: Issues i n Canadian Legal History, eds. W. Wesley Pue and Barry Wright, Ottawa: Carleton University Press (1988): 43-69. Okin, Susan Moller. "Patriarchy and Married Women's Property i n England: Questions on Some Current Views", Eighteenth- Century Studies. 17:2 (1983/84); 121-138. Ormsby, Margaret A. "Canada and the New B r i t i s h Columbia" B r i t i s h Columbia: Patterns i n Economic. P o l i t i c a l and  Cultu r a l Development, ed. Dickson M. Falconer, V i c t o r i a : Camosum College (1982): 34-47. 100 Rabkin, Peggy A. "The Origins of Law Reform: The Social Significance of the Nineteenth-Century C o d i f i c a t i o n Movement and i t s Contribution to the Passage of the Early Married Women's Property Acts", Buffalo Law Review 24 (1974-75): 683-760. Ralston, Keith and Robert A.J. McDonald. "Amor De Cosmos", Dictionary of Canadian Biography. XII. 1891-1900. Toronto: University of Toronto Press (1990): 237-243. Rapp, Rayna, E l l e n Ross, & Renate Bridenthal. "Examining Family History", i n Sex and Class i n Women's History, eds. Judith Newton, M. Ryan and J. Walkowitz, London: Routledge, (1983) 232-258. Rotundo, E. Anthony. "Learning about Manhood: Gender Ideals and the middle-class family i n nineteenth century America", i n Manliness and Morality: Middle-class Masculinity i n  B r i t a i n and America 1800-1940. eds. J.A. Mangan and James Walvin, Manchester: Manchester University Press (1987): 35-51. Roy, P a t r i c i a . "John Robson", Dictionary of Canadian  Biography. XII 1891-1900. Toronto: University of Toronto Press (1990): 914-919. Shanley, Mary Lyndon. "Suffrage, Protective Labor L e g i s l a t i o n , and Married Women's Property Laws i n England", Signs: Journal of Women i n Culture and Society. 12:1 (1986): 62-77. Spring, Eileen. "Law and the Theory of the A f f e c t i v e Family", Albion. 16:1 (1984): 1-20. Wallace, CM. "John Hamilton Gray", Dictionary of Canadian  Biography. XI 1881-1890. Toronto: University of Toronto Press (1989): 372-375. Secondary Sources: Books Anderson, Michael. Approaches to the History of the Western  Family. 1500-1914. London: The MacMillan Press Ltd., 1980. Backhouse, Constance B. Petticoats and Prejudice: Women and  Law i n Nineteenth Century Canada Canada: The Osgoode Society, 1991. Barman, Jean. The West beyond the West: A History of B r i t i s h  Columbia. Toronto: University of Toronto Press, 1991. 101 Basch, Norma. In the Eyes of the Law: Women. Marriage and  Property i n Nineteenth-Century New York. Ithaca: Cornell University Press, 1982. Bercuson, David J. and Louis A. Knafla, eds. Law and Society  i n Canada i n H i s t o r i c a l Perspective. Calgary: University of Calgary Press, 1979. Cook, Ramsay and Wendy Mitchinson, eds. The Proper Sphere:  Woman's Place i n Canadian Society. Toronto: Oxford University Press, 1976. Flaherty, David H. Essays i n the History of Canadian Law. Volumes I and II. Toronto: University of Toronto Press, 1981, 1983. G a l l , Gerald L. The Canadian Legal System. 2nd ed. Toronto: Carswell Legal Publications, 1983. Grossberg, Michael. Governing the Hearth: Law and the Family i n Nineteenth Century America. Chapel H i l l : University of North Carolina Press, 1985. Helsinger, Elizabeth K., and Robin L. Sheets, William Veeder, eds. , The Woman Question: Society and Li t e r a t u r e i n B r i t a i n and America. 1837-1883. Vol.11. Chicago: University of Chicago Press, 1983. Holcombe, Lee. Wives and Property: Reform of the Married  Women's Property Law i n Nineteenth-Century England. Toronto: University of Toronto Press, 1983. Howay, F.W. B r i t i s h Columbia from the E a r l i e s t Times to the  Present. Vancouver: S.J. Clarke, 1914. Jackman, S.W. Po r t r a i t s of the Premiers: An Informal History  of B r i t i s h Columbia. Sydney: Gray's Publishing Ltd., 1969. Kirp, David L. , Mark G. Yudof, and Marlene Strong, eds. Gender J u s t i c e . Chicago: University of Chicago Press, 1986. Knafla, Louis ed. Law and Justice i n a New Land: Essays i n Western Canadian Legal History. Toronto: Carswell, 1986. MacGill, E l s i e . My Mother the Judge. Toronto: Ryerson Press, 1955. Mangan, J.A. and James Walvin, eds. Manliness and Morality:  Middle-class masculinity i n B r i t a i n and America 1800-1940. Manchester: Manchester University Press; 1987. 102 Okin, Susan Moller. J u s t i c e . Gender, and the Family. New York: Basic Books, Inc. 1989. Ormsby, Margaret A. B r i t i s h Columbia: A History. Canada: the Macmillan Co. of Canada Ltd., 1958. P h i l l i p s , Jock. A Man's Country? The Image of the Pakeha  Male - A History. Auckland: Penguin Press, 1987. Pue, W. Wesley and Barry Wright, eds. Canadian Perspectives  on Law and Society: Issues i n Legal History. Ottawa: Carleton University Press, 1988. Pugh, David G. Sons of Liberty: The Masculine Mind i n  Nineteen-Century America. Westport: Greenwood Press, 1983. Salmon, Marylynn. Women and the Law of Property i n Early  America. Chapel H i l l : University of North Carolina Press, 1986. Shanley, Mary Lyndon. Feminism. Marriage and the Law i n  Vi c t o r i a n England. 1850-1895. Princeton: Princeton University Press, 1989. Staves, Susan. Married Women's Separate Property i n England.  1660-1833. Cambridge: Harvard University Press, 1990. Stetson, Dorothy. A Woman's Issue: the P o l i t i c s of Family  Law Reform i n England. Westport: Greenwood Press, 1982. Stone, Lawrence. The Family. Sex and Marriage i n England  1500-1800. New York: Penguin Books, 1984. Ward, Peter. Courtship. Love, and Marriage i n Nineteen- Century English Canada. Montreal: McGi11-Queen's University Press, 1990. Williams, David R. "...The Man for a New Country": S i r Matthew B a i l l i e Begbie. Sidney, B.C.: Gray Publishers, 1977. Secondary Sources: Theses Loo, Tina M. "Law and Authority i n B r i t i s h Columbia, 1821-1871". University of B r i t i s h Columbia. PhD. (History), 1990. P e t t i t , Sydney G. "Matthew B a i l l i e Begbie, Judge of B.C. , 1858-1866". University of B r i t i s h Columbia. M.A. (History), 1945. Reid, James Gordon. "John Robson and the B r i t i s h Columbian". University of B r i t i s h Columbia. M.A. (History), 1950. 103 Ross, Margaret. "Amor De Cosmos, a B r i t i s h Columbia Reformer". University of B r i t i s h Columbia. M.A. (History), 1931. 

Cite

Citation Scheme:

        

Citations by CSL (citeproc-js)

Usage Statistics

Share

Embed

Customize your widget with the following options, then copy and paste the code below into the HTML of your page to embed this item in your website.
                        
                            <div id="ubcOpenCollectionsWidgetDisplay">
                            <script id="ubcOpenCollectionsWidget"
                            src="{[{embed.src}]}"
                            data-item="{[{embed.item}]}"
                            data-collection="{[{embed.collection}]}"
                            data-metadata="{[{embed.showMetadata}]}"
                            data-width="{[{embed.width}]}"
                            async >
                            </script>
                            </div>
                        
                    
IIIF logo Our image viewer uses the IIIF 2.0 standard. To load this item in other compatible viewers, use this url:
http://iiif.library.ubc.ca/presentation/dsp.831.1-0098743/manifest

Comment

Related Items