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

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" i f the e v i l ever o c c u r s " : The 1873 M a r r i e d Women's P r o p e r t y A c t : Law, P r o p e r t y and Gender R e l a t i o n s i n 19th Century B r i t i s h Columbia. By PAULETTE YVONNE LYNETTE FALCON .A., The U n i v e r s i t y 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 in THE FACULTY OF GRADUATE STUDIES (DEPARTMENT OF HISTORY) We accept t h i s  t h e s i s as  conforming  to the r e q u i r e d standard  THE UNIVERSITY OF BRITISH COLUMBIA October  1991  ©Paulette Yvonne L y n e t t e F a l c o n ,  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 department  or  by  his or  her  representatives.  be  granted by the head of  It is understood  that  copying  publication of this thesis for financial gain shall not be allowed without my permission.  Department of The University of British Columbia Vancouver, Canada  DE-6 (2/88)  my or  written  Abstract This  study  will  examine the circumstances  the passage of the B r i t i s h Columbia Act,  1 8 7 3 and the j u d i c i a l  an  attempt  on  M a r r i e d Women's P r o p e r t y  response  the p a r t  of  surrounding  to i t .  legislators  The s t a t u t e was to c l a r i f y  f a c i l i t a t e married women's a c t i o n s i n t h e marketplace, accomodating despite more  the r h e t o r i c  revolution.  about  women's r i g h t s  potential,  no  Notwithstanding  their  i t solely  as a  different  views  on gender r e l a t i o n s and m a r i t a l p r o p e r t y reform, and  judges  family  shared  life.  common b e l i e f s  Consequently,  about  legislators  the importance  the law defended  women's  r i g h t s as f a m i l y members more than as i n d i v i d u a l s . the b i l l alleviate could  r e p r e s e n t e d a compromise. some of a w i f e ' s  participate  legal  more f r e e l y  domestic  i g n o r e d the l e g i s l a t i o n ' s  p r o v i s i o n s and i n t e r p r e t e d  measure.  But  and t h e b i l l ' s  i t precipitated  The c o u r t s , i n t u r n ,  liberal  protective  while  new ideas about women's p l a c e i n s o c i e t y .  egalitarian  more  and  of  legal  Overall,  Although i t was meant t o disabilities  i n the economic  so t h a t she life  of the  community, i t was a l s o grounded i n the V i c t o r i a n p a t e r n a l i s m of  the l e g i s l a t o r s  enforced by  it.  who  enacted  As a r e s u l t ,  i t and t h e judges  who  d e s p i t e the c h a l l e n g e p r e s e n t e d  t h e p r o v i s i o n s of the M a r r i e d Women's P r o p e r t y A c t ,  d o c t r i n e of m a r i t a l u n i t y proved remarkably  resilient.  the  iii Table of Contents  Abstract  i i  Acknowledgement  iv  Frontispiece  v  Introduction  1  Chapter I : Chapter I I :  Women, Family, and P r o p e r t y Law i n 19th Century B r i t i s h Columbia  14  The B r i t i s h Columbia M a r r i e d Women's P r o p e r t y A c t , 1873  37  Chapter I I I : Women, P r o p e r t y and t h e Courts i n B r i t i s h Columbia  68  Conclusion  90  Bibliography  .97  iv Acknowledgement There a r e s e v e r a l people I would l i k e t o acknowledge. F i r s t , my s u p e r v i s o r , Dr. Peter Ward, f o r encouraging me t o pursue t h i s study and f o r h i s e d i t o r i a l e x p e r t i s e . Dr. A r t h u r J . Ray, f o r f i n a n c i a l support i n t h e form of a r e s e a r c h a s s i s t a n t s h i p and f o r s p u r r i n g me on. Dr. Dianne Newell f o r her t i m e l y a d v i c e and a s t u t e o b s e r v a t i o n s , and Dr. Robert A . J . McDonald f o r h i s c h a l l e n g i n g q u e s t i o n s . I am a l s o i n d e b t e d t o c o l l e a g u e s and f r i e n d s , T i n a Loo, J e n n i f e r Fox, Pamela Fox, J i l l Wade, Ruth Gumpp, L o u i s e Robert, C o l l e e n Graham, and most e s p e c i a l l y Ramona Rose, f o r 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 f a m i l y ; Dennis, P a u l , Denise, Marion, J e a n e t t e , and my mother, L i l y Lee Regan, f o r t h e i r unwavering f a i t h i n me.  THE COMET. •'\\l,al>nr ix tnontlhf irrowj  Vol.  1.  ought ntvtr to  be  cotist'dutionally r\(jht. Xo. 5  VICTORIA, B. C , FEBRUARY 5>ia» 1873. :  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 herWe give aborc an illustration showing self liable to suspicion. what may result fro.n the passing of thej . Women's rights Bill should it become law. by a married man on his own life withThe reader will immsginc the mother out the knowledge of his wife, shall be looking after her rents. We also publish n Toid. copy of the bill for the benefit of our 5. After the passing ot this Act, any married woman may engage in all kinds 'subscribers: of athletic sports, such as horee-racinc, T . After the passing of this Act the foot-racing, standing high jump, and woman shall be the man and the man tossing the caber, and, also, own interests in dry dock and dyking companies, -•hail be the woman. without lowering ber standing in society. ' S. That the woman shall, with or without the consent of her husband, be C. Any married . woman " going at liberty to earn wages cn the outside, th rough" on any of the qamcs enumer'either by artistic skill or otherwise: and ated aboTC, shall be at liberty to draw that in the event of her earnings exceed- on her husband, and the husband refusing her husband's. She can, if she choose, ing her demands, shall be guilty of a misdemeanor. declare her marriage null and void. 4  A  n  y  o  f  i n s u r a n c c  c f l c c l c d  3. A married woman may, in her own 1. Any married woman shall be at name, insure the life of her husband, liberty to carry a night-key and attend r  n  1 Introduction On January 3 0 , 1 8 7 3 , B r i t i s h Columbia a c e r t a i n degree  that  the married  counterparts limited  property  them.  The proposed  legislators merits Bill".  and O n t a r i o ,  rights  which  the l o c a l impetus  press  enjoy  was n e i t h e r  male  feminist English  interests  movement Canadian  the r e l a t i v e  came  from  male  theoretically,  That these men d i d so, seemingly  and i n the absence  reveals ideas  as  the "Women's R i g h t s  l e g i s l a t o r s who enacted a law which, a t l e a s t  against  certain  controversy  f o r the s t a t u t e  gave women more autonomy.  their  r a d i c a l nor  a l i k e argued  called  like  p r e v i o u s l y denied  considerable  and o r d i n a r y c i t i z e n s  The  was designed t o  would  had been  legislation  y e t i t sparked  o f what  The b i l l  women o f the p r o v i n c e ,  i n England  innovative,  with  o f t r e p i d a t i o n on the p a r t o f some, passed  the M a r r i e d Women's P r o p e r t y A c t . ensure  legislators,  much about  about law,  of a  visible  nineteenth  century  family  and  gender  relations. This the  study  passage  judicial part  of  will  examine the circumstances  o f the M a r r i e d  response  Women's  legislators  about  rhetoric  women's  about  egalitarian  A c t and the  t o i t . The s t a t u t e was an attempt to  clarify  women's a c t i o n s i n the marketplace, ideas  Property  surrounding  place  women's  potential,  and  facilitate  i t  married  w h i l e accomodating  i n society. rights  on the  and  new  But d e s p i t e the the  precipitated  bill's no  more  domestic  2 revolution. more  The c o u r t s ,  liberal  protective  provisions  measure.  i n turn,  ignored  and i n t e r p r e t e d  Notwithstanding  judges  family  shared  life.  common  beliefs  Consequently,  i t solely  their  on gender r e l a t i o n s and m a r i t a l p r o p e r t y and  the l e g i s l a t i o n ' s  d i f f e r e n t views  reform,  about  legislators  the importance of  the law defended women's  r i g h t s as f a m i l y members more than as i n d i v i d u a l s . the b i l l  represented  alleviate could  a compromise.  some of a wife's  i t  paternalism^  was  also  it.  the  resilient.  doctrine  of  that  grounded  in  who  defined,  life  the  despite  of the M a r r i e d  marital  Overall,  so t h a t she  enacted  unity  of the  Victorian  i t and the the c h a l l e n g e  Women's  proved  F o r t h i s reason the study w i l l  i n which economic, s o c i a l laws  disabilities  As a r e s u l t ,  p r e s e n t e d by the p r o v i s i o n s  legal  Although i t was meant t o  i n the economic  of the l e g i s l a t o r s  judges who enforced  Act,  legal  p a r t i c i p a t e more f r e e l y  community,  as a  Property  remarkably  explore  t h e ways  and i d e o l o g i c a l f o r c e s shaped the  and were d e f i n e d  by, women's r o l e and  s t a t u s i n the V i c t o r i a n f a m i l y of B r i t i s h North America. Other property  scholars  have  examined  the s u b j e c t  and the law, and t h e i r work p r o v i d e s  of women,  a theoretical  1. A c c o r d i n g t o Webster's D i c t i o n a r y . 3 r d . ed., 1976 paternalism i s defined as "the care of c o n t r o l 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 a u t h o r i t y undertakes t o supply needs or r e g u l a t e conduct of those under i t s c o n t r o l i n matters a f f f e c t i n g them as i n d i v i d u a l s as w e l l as i n t h e i r r e l a t i o n s t o a u t h o r i t y and t o each o t h e r . " I would emphasize the benevolent nature of t h i s p a t e r n a l i s m as i t a f f e c t e d women i n the V i c t o r i a n p e r i o d .  3 framework from which t o s t a r t . importance is  of property i n determining  not surprising  how  C o n s i d e r i n g t h e fundamental  that  historians  t h e law has d e f i n e d  women's  s t a t u s and power,  have been  i t  interested i n  property  rights.  In  e s t a b l i s h i n g the law as a key t o understanding women's p l a c e in  s o c i e t y , American women's l e g a l h i s t o r i a n Marylynn  Salmon  p o i n t e d out t h a t : Although a woman's legal rights c o n s t i t u t e o n l y one o f s e v e r a l s t r a n d s necessary f o r defining her status, c o n t r o l over p r o p e r t y i s an important b a s e l i n e f o r l e a r n i n g how men and women share power i n the family.2 In  t h e i r e f f o r t s t o 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 o f power w i t h i n the f a m i l y , h i s t o r i a n s have made women's s t a t u s 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 f o r debate  over  the c e n t r a l q u e s t i o n of why and under what c i r c u m s t a n c e s , the r u l e s governing women's p r o p e r t y changed. Canadians  To date,  have touched upon, but f a r from exhausted the  major i s s u e s presented i n the f a r more e x t e n s i v e body o f work w r i t t e n by B r i t i s h and American s c h o l a r s . 3 2. Marylynn Salmon, Women and the Law o f P r o p e r t y i n E a r l y America. (Chapel H i l l : The U n i v e r s i t y o f North C a r o l i n a 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 p r o p e r t y . See f o r example, Constance B. Backhouse, "Married Women's P r o p e r t y Law i n Nineteenth Century Canada", Law and H i s t o r y Review 6, no.2 ( F a l l 1988) 211-57; Backhouse, " P u r e P a t r i a r c h y ' : Nineteenth Century Canadian Marriage," M c G i l l Law J o u r n a l 31 (March 1986) 264-312; and Peter Ward, C o u r t s h i p . Love and Marriage i n Nineteenth Century E n g l i s h N  4 The q u e s t i o n of women's s t a t u s i s the c e n t r a l theme i n the l i t e r a t u r e on women's p r o p e r t y law.  But although  there  i s a consensus amongst h i s t o r i a n s t h a t , by t h e n i n e t e e n t h century, ideas about the f a m i l y were markedly d i f f e r e n t  from  e a r l i e r times, and t h a t these changes a f f e c t e d women's s t a t u s , h i s t o r i a n s of women and those of the f a m i l y have approached the t o p i c from very d i f f e r e n t a n g l e s .  Each has  s t u d i e d t h e law as an e x t e r n a l measure of i n t e r n a l change w i t h i n the f a m i l y .  However, i n the context of l e g a l  rights,  f a m i l y h i s t o r i a n s c o n s i d e r e d these r i g h t s p r i m a r i l y i n r e l a t i o n t o the f a m i l y as a whole, whereas f e m i n i s t h i s t o r i a n s focussed on the r i g h t s 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 k i n d s of q u e s t i o n s which have been asked, and t h e c o n c l u s i o n s which have been drawn. Many f a m i l y h i s t o r i a n s argue t h a t n i n e t e e n t h f a m i l y r e l a t i o n s h i p s were transformed  century  by the r i s e of what  Canada (Montreal: McGi11-Queen's U n i v e r s i t y Press 1990), 32-49. Although Backhouse r e f e r s b r i e f l y t o B r i t i s h Columbia, these works focus p r i m a r i l y on e a s t e r n 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 a s i d e from two very e a r l y t r e a t i s e s on women and the law. See Helen Gregory M a c G i l l , Daughters. Wives and Mothers i n B r i t i s h Columbia: Some Laws Regarding Them. 2nd ed., (Vancouver: The Moore P r i n t i n g Co. L t d . , 1913) and C.B. Townley, P o i n t s i n the Laws of B r i t i s h Columbia r e g a r d i n g the L e g a l Status of Women. (Vancouver: B r i t i s h Columbia P o l i t i c a l E q u a l i t y League, c.1911). For an overview of M a c G i l l ' s involvement i n law and l e g a l reform see E l s i e M a c G i l l , My Mother the Judge. (Toronto: Ryerson Press 1955).  5 Lawrence Stone d e f i n e s as " a f f e c t i v e i n d i v i d u a l i s m " . ^ Marriages, p r e v i o u s l y arranged a c c o r d i n g  t o economic and  f a m i l y c o n s i d e r a t i o n s , were e s s e n t i a l l y c a l c u l a t i v e , emotionally before  d i s t a n t arrangements i n which f a m i l y needs came  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 w i t h a i n c r e a s i n g tendency t o choose p a r t n e r s  on the b a s i s of emotion and a f f e c t i o n , meant  t h a t marriage became an a f f a i r of the h e a r t , The  n o t the head.  f a m i l y , h i t h e r t o s u b j e c t t o community s c r u t i n y , became a  r e f u g e from the o u t s i d e world, i n which women's r o l e was t h a t of n u r t u r e r  i n a separate but equal domestic sphere.  Women's s t a t u s i n t h i s new e g a l i t a r i a n marriage accordingly.5  rose  Having e s t a b l i s h e d the companionate marriage  as t h e b a s i s f o r V i c t o r i a n f a m i l y 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 f a m i l y then looked  a t changing p r o p e r t y  measure of women's higher  status.  r i g h t s as one  In terms of the law, f a m i l y h i s t o r i a n s examined how property patterns.  was t r a n s m i t t e d  through pre-mortem and i n h e r i t a n c e  To t h i s end, they were i n t e r e s t e d i n how these  p r a c t i c e s a f f e c t e d the f a m i l y ' 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, p r e - n u p t i a l  4. Lawrence Stone, The Family. Sex and Marriage i n England 1500-1800. (New York: Penguin Books L t d . Abridged  Ed. 1 9 8 4 ) , 2 2 .  5. F o r an overview of the "sentiments approach" i n f a m i l y h i s t o r y , see Michael Anderson, Approaches t o t h e H i s t o r y of the Western Family 1500-1914. (London: M a c M i l l a n Press, L t d . , 1 9 8 0 ) , 3 9 - 6 4 .  6 agreements, dower r i g h t s and w i l l s , p r o v i d e d d i s c u s s i n g women's changing l e g a l s t a t u s . ^  a basis f o r i n his  i n f l u e n t i a l work on the E n g l i s h f a m i l y , Lawrence Stone maintained t h a t b e f o r e  the age o f sentiment, women were  s u b j e c t t o the "near a b s o l u t e In the Canadian context,  a u t h o r i t y o f t h e husband."7  Peter Ward found t h a t  "feminine  autonomy grew s u b s t a n t i a l l y from a t l e a s t the 1850's onward."8  The c r u c i a l p o i n t f o r such f a m i l y h i s t o r i a n s as  these was t h a t l e g a l changes a f f e c t i n g women r e f l e c t e d new perceptions  o f the f a m i l y , s p e c i f i c a l l y the idea o f t h e  companionate marriage.  In t h e i r view, t h e laws d i d n o t f a i l  to a c h i e v e women's e q u a l i t y because they were never designed f o r t h i s purpose.  Rather, l e g a l reform was undertaken t o  make women's p o s i t i o n as f a m i l y members more e q u i t a b l e , thereby r e f l e c t i n g t h e i r improved s t a t u s i n the f a m i l y . Although women's h i s t o r i a n s agree t h a t by t h e end o f the n i n e t e e n t h  century women's p r o p e r t y  s u b s t a n t i a l l y , they regard  r i g h t s had improved  family h i s t o r i a n s  about women's s t a t u s as o v e r l y o p t i m i s t i c .  conclusions I n a c r i t i q u e of  f a m i l y h i s t o r y , Rayna Rapp, E l l e n Ross and Renate B r i d e n t h a l noted t h a t because f a m i l y h i s t o r i a n s view the f a m i l y as a 6. Anderson, Approaches t o the H i s t o r y o f t h e Western F a m i l y . 48-49; Anderson d e s c r i b e s the Household Economics approach which emphasizes t h e s e ' p r a c t i c e s , 65-84. 7  .  Stone, The Family. Sex and Marriage i n England 1500-  1800 . 221.  8. Peter Ward, C o u r t s h i p . Love and Marriage i n Nineteenth-Century E n g l i s h Canada. 175.  7 homogeneous u n i t , they f a i l  t o address the c o n f l i c t i n g  i n t e r e s t s t h a t sometimes e x i s t between f a m i l y members. I n f a c t , a c c o r d i n g t o them: There a r e f o u r assumptions which obscure the h i s t o r i c a l experience o f women i n f a m i l i e s : that the family i s a n a t u r a l u n i t . . . t h a t i t i s the o n l y one i n which significant emotional contact takes place, that sexes and g e n e r a t i o n s experience f a m i l i e s i n the same way and that their needs and i n t e r e s t s a r e i d e n t i c a l . . . and t h a t the b e s t way t o conceptualize relations among family members i s under the r u b r i c o f r o l e w i t h its i m p l i c a t i o n s of harmony and o f a process of simple " t r a i n i n g " i n how t o f i l l them. 9  Consequently, ideal  women's  historians  o f t h e companionate  concept  o f separate  empowered women's  women. economic, by  Nevertheless,  women used  and  their  their  social  beyond t h e  to explore both  how t h e  oppressed and  historical  legal  exclusion their  looked  spheres  a feminist  social  perpetuated  house" t o j u s t i f y  marriage  but equal  From  have  perspective,  disabilities from  position  public  as "angels  reform a c t i v i t i e s ,  were life. of  the  including  demands f o r l e g a l change.10 . Rayne Rapp, E l l e n Ross, and Renate B r i d e n t h a l , "Examining Family H i s t o r y " , J u d i t h Newton, M. Ryan and J . Walkowitz, eds., Sex and C l a s s i n Women's H i s t o r y . (London: Routeledge and Kegan Paul 1983), 241. y  10. I n the Canadian l i t e r a t u r e , see f o r example, C a r o l Lee B a c c h i , L i b e r a t i o n Deferred? The Ideas o f the E n g l i s h Canadian Suffragists 1877-1918. (Toronto: U n i v e r s i t y o f Toronto Press 1983) and L i n d a Kealey, ed. , A Not Unreasonable Claim: Women and Reform i n Canada. 1880s-1920s. (Toronto: The Women's Press 1979).  8 In  t h e growing  inter-related property  itself,  1850's,  century  necessary.il Canada property  feminists  i n legal  the United  laws.  movement  i n several  the  i n i t i a t e d by l e g a l system  and t h e r o l e o f reform.  States,  By t h e  and Canada,  indicates  areas  law and j u d i c i a l  t h e extent  American  t o which  o f t h e law was thought Constance  legislative  many  urged reform o f married  Peggy Rabkin's study o f the  Similarly,  documents  within  changes,  three  women's s t a t u s and  reforms  economic  and l e g a l p r o f e s s i o n a l s  women's p r o p e r t y codification  statutory  and l e g a l p r o f e s s i o n a l s  i n England,  legislators  reform  emerged:  structural  nineteenth  of women's l e g a l h i s t o r y ,  l i n e s of inquiry regarding  law have  legislators  field  efforts  Backhouse's  t o be  work i n  t o reform  interpretations  legal  marital  of those  laws.12  S t r u c t u r a l economic changes a l s o made i t necessary t o change property where  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 commercial  markets  and d e b t o r - c r e d i t o r  relations  11. Peggy A. Rabkin, "The O r i g i n s of Law Reform: The S o c i a l S i g n i f i c a n c e o f t h e Nineteenth-Century C o d i f i c a t i o n Movement and I t s C o n t r i b u t i o n t o t h e Passage o f t h e E a r l y M a r r i e d Women's P r o p e r t y A c t s . " B u f f a l o Law Review 24  (1974-75), 683-760.  12. Constance B. Backhouse, "Married Women's P r o p e r t y Law i n Nineteenth Century Canada", 211-57. See a l s o Backhouse, P e t t i c o a t s and P r e j u d i c e : Women andd Law i n Nineteenth Century Canada. (Toronto: The Osgoode S o c i e t y , 1991), 177-80 i n which p r o p e r t y laws are d i s c u s s e d 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 - that  o f women's r o l e  feminist h i s t o r i c a l center ways  perspective.14  of h i s t o r i c a l  i n which  change.  inquiry,  reform  sought  i n certain  - i s central  to a  By p l a c i n g women a t the  scholars  women a c t i v e l y  However,  presents  i n legal  The t h i r d i s s u e  have  analyzed the  and i n f l u e n c e d  instances,  this  legal  approach  difficulties.  Nineteenth regarding  century f e m i n i s t s worked t o change the laws  married  women's  property,  using  a  v a r i e t y of  s t r a t e g i e s i n c l u d i n g p e t i t i o n s , l e t t e r w r i t i n g campaigns and public  speaking  engagements.I  5  Yet, statutes  were  also  1 . See f o r example, Norma Basch, I n the Eyes o f t h e Law: Women. Marriage and P r o p e r t y i n Nineteenth-Century New York, ( I t h a c a : C o r n e l l U n i v e r s i t y Press, 1982); Marylynn Salmon, Women and the Law of P r o p e r t y : R i c h a r d H. Chused, "Late Nineteenth Century M a r r i e d Women's P r o p e r t y Law: R e c e p t i o n of the E a r l y M a r r i e d P r o p e r t y A c t s by Courts and L e g i s l t o r s " , American J o u r n a l of L e g a l H i s t o r y . 29, N o . 1 , (January 1985), 3-35. J  1^. See Basch, In the Eyes of t h e Law: Lee Holcombe, Wives and P r o p e r t y : Reform of the M a r r i e d Women's P r o p e r t y Law i n Nineteenth-Century England. (Toronto: U n i v e r s i t y of Toronto Press 1983); Dorothy S t e t s o n , A Woman's Issue: The Politics o f Family Law Reform i n England. (Westport: Greenwood Press 1982); Mary Lyndon Shanley, Feminism. Marriage and the Law i n V i c t o r i a n England. 1850-1895. (Princeton: Princeton Universtiy Press 1989); F o r an overview o f wmen's l e g a l h i s t o r y see, Norma Basch, "The Emerging L e g a l H i s t o r y o f Women i n t h e U n i t e d S t a t e s : P r o p e r t y , D i v o r c e and the C o n s t i t u t i o n " , S i g n s : J o u r n a l o f Women and C u l t u r e i n S o c i e t y . 1986, V o l . 12, No.l, 97-117; and Mary Lyndon Shanley, "Suffrage, Protective Labor L e g i s l a t i o n , and M a r r i e d Women's P r o p e r t y Laws i n England", Signs: J o u r n a l o f Women and C u l t u r e i n S o c i e t y . 1986, V o l .  12, No. 1, 62-77.  15. For e a r l i e s t feminist efforts i n Canada, see Backhouse, "Married Women's P r o p e r t y Law", 222-223; a l s o c i t e d i n Ward, C o u r t s h i p . Love and Marriage. 40.  10 passed without the i n f l u e n c e of such campaigns. argues  that  under  legislators'  these  conditions  willingness presents  a  Norma Basch  t o enact major  s c h o l a r s of women's l e g a l h i s t o r y , arguing  such  laws  challenge  for  that:  From a f e m i n i s t h i s t o r i c a l p e r s p e c t i v e , one c e n t r a l and t r o u b l i n g q u e s t i o n i s why male l e g i s l a t o r s gave women l e g a l r i g h t s t h a t had been denied them f o r centuries.16 From Basch s o b s e r v a t i o n , and  we can begin  t o grasp the complex  ambiguous nature of law and gender r e l a t i o n s .  enough  t o document  knowledge were, male  that  indeed,  men d i d ,  bias  i n the law based  i n fact,  restricted  legislators  obvious f a c t  gender  Basch's q u e s t i o n  scholars  t o examine l e g a l  on the  make t h e laws, and women  by them.  requires  I t i s not  t o move  about  beyond  this  c o n t i n u i t y as w e l l as change.  Basch argues, f o r i n s t a n c e , t h a t d e s p i t e the enormous s o c i a l and  economic changes t h a t occurred  York,  the l e g a l  women's  legal  endured.17  doctrine  of m a r i t a l  identity  Both  Basch  under  as economic  property  forces  legislation.  unity,  that  and Marylynn  importance of c o n s i d e r i n g well  i n nineteenth  ideological to explain Salmon's  of  century  which  their  Salmon p o i n t  subsumed husbands, out t h e  and s o c i a l f a c t o r s as the passage of m a r i t a l  American  study  revealed  t h a t , on i t s own  16. Basch, "The Emerging Legal H i s t o r y of Women", 103. 1 . 7  Basch, In the Eyes of the Law.  New  225-226.  11 . . .economic change c o u l d f o s t e r l e g a l r u l e s t h a t both b e n e f i t t e d 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 legal reform, whether i t improved the p o s i t i o n of women or not, depended on f o r c e s other than economic ones. The most important d e t e r m i n i n g f o r c e s were i d e o l o g i c a l and social.18 In  terms of Basch's q u e s t i o n  about male l e g i s l a t o r s ,  then,  we must be aware o f contemporary f e m i n i s t i n f l u e n c e s but, a t the  same time, r e c o g n i z e  t h a t 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 p r i m a r i l y w i t h women's e q u a l i t y , but w i t h their  membership  distinction drawing  in  t o keep  upon  the f a m i l y .  i n mind,  both  This  is a  and one t h a t  feminist  and  crucial  benefits  family  from  historical  perspectives. The  work  of two f a m i l y  which we might  approach  study of l o v e ,  courtship  historians  the q u e s t i o n  suggests  ways i n  Basch posed.  and marriage i n n i n e t e e n t h  In h i s century  E n g l i s h Canada, Peter Ward touches upon the i s s u e of married women and t h e i r p r o p e r t y ,  and i n doing so, o f f e r s a broader  interpretation  meaning  acknowledges  of  the  of  these  the law's p a t r i a r c h a l nature,  laws.  He  but argues  that  s c h o l a r s have d e f i n e d p a t r i a r c h y too narrowly by assuming i t to mean simply was  a  system  "men's supremacy over women". of s o c i a l  organization  But p a t r i a r c h y  i n which  members, husbands, wives and c h i l d r e n , p l a c e d 18.  Salmon, Women and the Law of Property. 190.  all  family  the i n t e r e s t s  of  the  family  placed  the  first  rather  interests  individual.  of  than  the  t h e i r own.  family  The  before  law  those  In doing so, Ward observes t h a t the  of  also the  law  ...defended the family as a social i n s t i t u t i o n . . . I t strengthened the f a m i l y as the primary u n i t i n community l i f e . The law gave no consideration to equality within the family. Instead i t l e n t 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 which  observations to  premise  explore that  provide  Basch's  male  must  take  into  female r o l e s and In judicial  this  to be  the  account  and  s t a r t i n g point I f we  the  begin  j u d i c i a r y acted  i n t e r e s t s of the  t h e i r ideas  with  family,  about both male  from the in then and  responsibilities.  context,  response  were i n f l u e n c e d  useful  question.  legislators  what they p e r c e i v e d we  a  to  by  Michael  discusses  the  domestic r e l a t i o n s laws. Judges,  too,  V i c t o r i a n ideas  Grossberg  about gender r o l e s ,  and  they t r a n s l a t e d ...the era's gender assumptions into binding r u l e s . I t i s i n views towards gender t h a t a p o r t i o n of the d i s t i n c t i v e f a b r i c of i s s u e s i n domestic r e l a t i o n s law becomes c l e a r , p a r t i c u l a r l y the r o l e t h a t i d e a l images of f a m i l y members have played i n l e g a l change.20 Neither was  Ward nor  l i m i t e d but 19.  Grossberg deny t h a t women's l e g a l the  family  h i s t o r i a n s ' perspective  Ward, Coutship. Love and Marriage.  capacity reminds  49.  20. Michael Grossberg, "Crossing Boundaries: N i n e t e e n t h Century Domestic R e l a t i o n s Law and the Merger of F a m i l y and L e g a l H i s t o r y " , American Bar Foundation Research J o u r n a l . ( F a l l , No. 4, 1985), 808.  us men  that,  for Victorians,  and women  familial  were  goals.  the f a m i l y was c e n t r a l ,  socialized  i n particular  ways  and both t o meet  I t i s w i t h these p o i n t s i n mind t h a t  study  addresses  the q u e s t i o n of why male  British  Columbia enacted  why t h e c o u r t s responded  this  legislators i n  a married women's p r o p e r t y a c t and t o i t as they d i d .  14  Chapter I : Women, Family, and P r o p e r t y Law i n 19th Century B r i t i s h Columbia "...laws, customs and usuages o f 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 D a i l y Standard then  d i s c u s s e d the proposed M a r r i e d Women's P r o p e r t y A c t  being  writer  considered  i n the l e g i s l a t u r e .  In doing  so, the  proclaimed: We a r e a s s u r e d l y l i v i n g i n a p r o g r e s s i v e period of the world's h i s t o r y . Many laws, customs and usuages ( s i c ) of a bygone age, t h a t may have answered t h e i r purpose v e r y w e l l when f i r s t i n t r o d u c e d , have outgrown t h e i r day of u s e f u l n e s s and a r e now i l l adapted t o the purpose for which they were originally i n s t i t u t e d or t o meet the requirements of the present more enlightened g e n e r a t i o n . Among these i s t h e law which g i v e s the husband a b s o l u t e p r o p r i e t a r y r i g h t s to the p r o p e r t y o f h i s w i f e . . . l  Just  what  was  the  usefulness?  To  statute,  must  we  previously  law,  understand  dealt  first  aspect  of  the  association  with  constitute property.  the  implications  women's  i t outgrown i t s of  about  the  1873  how  the law  property.  At the  t o note t h a t l e g i s l a t i o n was o n l y one and  that  law  of laws  concerns on t h e i r  as  statutes  and that  It i s legislation,  based  had  something  married  common  the body  contemporary policies  law  how  know  with  o u t s e t i t i s important  and  the  law  functioned of  a f f e c t e d married  however, lawmakers  community's  that  best  formulated  needs,  15 January 1873.  to  women's reflects public  and t h e i r  i d e a s about f a m i l y l i f e . 1. V i c t o r i a D a i l y Standard.  equity  in  own  15 In law  early  defined  law,  their  draw  that  up  women  When  limited  than  sometimes meet  in  where the  Eastern  i t  common  and  designed earnings  in  concerned  with  when  Vancouver  Island,  legislators, to  existing  law  with  a  the  when  came  of  e a r l i e s t of  legal  or  leaders solid in  and  family 1862  husbands  did  was  Island  marital  property.  statutes  were  property  and  Legislators  were  equality,  but  as  and  f a m i l i a l  predominantly  the  reforming  capacity  their  to  statutes  economic  their  was  Vancouver  wives  breakdown.  more  l e g i s l a t o r s  Such  American  deserted  B r i t i s h  l e g i s l a t i o n  conditions.  and  world,  even  colonial  colony  trusts  in  was  new  families  new  But  devices  apart  wives  the  them.  common  other  their to  draft  North  i t s  enabled  for  traditions  in  legislators  families  to  the  marriage  community  by  in  neglected  encourage  introduced  and  women  men  establish  with  social  women's  safeguarding  mothers  tried  with  or  addition,  protect of  equity  estates  In  B r i t i s h  to  of  equitable  and  equity  cases  law  introduced  f i r s t only  rights  necessary  Canada  l e g i s l a t o r s  property  laws  to  B r i t i s h  separate  settlers  B r i t a i n .  economic  These  not  in  found  local  case  access  of  Under  separate  same  bodies  rights.  the  colonial  two  property  settlements  these  America,  no  But  provide  brought  North  had  marriage  daughters.  century,  women's  husbands.  would  they  nineteenth  married  married  from to  the  wives  duties.  male  On  population,  government  o f f i c i a l s  presence.  The  intended  not.  But  to in  b i l l  protect order  to  16 understand why t h i s e a r l y 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 r e g a r d i n g m a r i t a l p r o p e r t y i t provided The  the b a s i c framework f o r Canadian law.  law i n B r i t i s h  provinces  except  Columbia  Quebec,  which was o r i g i n a l l y  stems  derived  d o c t r i n e . I n time, j u d i c i a l law  or a body  decisions  of the c o u r t .  had  fiction profound  as  from  i n a l l Canadian  British  from f e u d a l  common  law,2  law and C h r i s t i a n  d e c i s i o n s were embodied i n case  of j u r i s p r u d e n c e  that  was based  on p a s t  Under B r i t i s h common law a married  woman came under the l e g a l legal  because  or d o c t r i n e  p r o t e c t i o n o f her husband. of m a r i t a l  implications  unity,  f o r women.  The  or coverture,  The s i t u a t i o n was  summed up i n 1856 i n The Upper Canada Law J o u r n a l : The n a t u r a l r i g h t s of man and woman are, i t must be admitted, equal; e n t e r i n g the married s t a t e , the woman surrenders most of them; i n t h e p o s s e s s i o n of c i v i l rights before, they merge i n her husband; i n the eye o f the law she may be s a i d t o cease t o e x i s t . 3 In  practical  terms,  this  meant t h a t  a married  not sue o r be sued i n her own name, make a w i l l , with  e i t h e r her husband or a t h i r d  personal not  property  collect  rents  party.  woman  or contract  A l l her r e a l and  was c o n t r o l l e d by her spouse. or p r o f i t s  from  could  her r e a l  She c o u l d  p r o p e r t y , 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 d e a l t with here. F o r an overview o f the B r i t i s h l e g a l t r a d i t i o n i n Canada see G e r a l d L. G a l l , The Canadian L e g a l System. 2nd ed. (Toronto: Car s w e l l L e g a l P u b l i c a t i o n s , 1983), chap. 4. 3  .  The Upper Canada Law J o u r n a l .  2 (1856): 217.  17 could  she engage i n business  Furthermore, he was e n t i t l e d Although her  the law r e q u i r e d  husband  could  of her p e r s o n a l  sell  or trade without h i s consent. t o a l l her earnings  a wife's  her r e a l  property  written  property,  consent  he c o u l d  desertion little  separate  still  because  a wife,  could  of  under  not  sue  separation  common her  or  law, had  spouse  the law d i d not r e c o g n i z e  c l a i m a l l of her earnings  to obtain  life,  risks.  She  the event  t o a c t i n her  for  her as a  l e g a l e n t i t y . I f she supported h e r s e l f , her husband  attempt of  In  by the husband,  maintenance  could  interests.  recourse.  dispose  woman's l e g a l c a p a c i t y was l i m i t e d  s e v e r e l y under common law, as was her a b i l i t y economic  before  as he wished.  In e f f e c t , a married  own  or wages.  credit  from merchants f o r the n e c e s s i t i e s  but c r e d i t o r s were  In s h o r t ,  and income. She c o u l d  often  wives who l i v e d  were dependent upon t h e i r  reluctant  apart  from  husband's g o o d w i l l  them. I f such g o o d w i l l was not forthcoming, extremely But  t o take their  such  spouses  to provide f o r  these women were  vulnerable. common  law was o n l y  determined women's p r o p e r t y  one branch  of the law t h a t  r i g h t s . Under the law of e q u i t y ,  women's p o s i t i o n was improved s u b s t a n t i a l l y . In the B r i t i s h legal  system,  the law of e q u i t y  common law. In e q u i t y , and  she enjoyed  status.  The usual  evolved  as a c o r r e c t i v e t o  a woman c o u l d have a separate  s p e c i a l p r o t e c t i o n because device  for protecting  estate  of her married  a woman's r e a l or  18 personal pre-  property  was t o s e t t l e  or p o s t - n u p t i a l  agreement  t r u s t e e was appointed the  terms  of  considerable she  could  sued make  a  over  to a  a  dispose  maintenance  of  of  woman  separation  f o r the w i f e .  be ordered  could  for  her.  Under the law of e q u i t y , married  of the l i a b i l i t i e s .  instances,  She c o u l d In be  by the c o u r t  also  cases  drawn  A husband who  wife  many of the b e n e f i t s of p r o p e r t y  exercise  and sue or be  estate.  his  few  In some  could  a  Depending upon might  property.  her  A  up and o f t e n  make c o n t r a c t s ,  t o her separate  deed  drawn  her e s t a t e .  c a r r y on b u s i n e s s ,  separation, provide  agreement,  control  will  was  t o manage her a s s e t s .  the  i n relation  i t on her as a t r u s t .  of  up to deserted  to provide  support  women c o u l d enjoy  ownership, w h i l e s u f f e r i n g  O v e r a l l , t h e i r husbands were  still  l e g a l l y r e s p o n s i b l e f o r them. But better  although than  available legal  under  only  legal  common  status  law,  t o those who c o u l d  proceedings  Britain,  women's  the  necessary  common  i n equity  these  advantages  were  a f f o r d to engage i n the  t o e s t a b l i s h such  law/equity  was f a r  system  trusts.  created  In sharp  d i f f e r e n c e s i n the l e g a l s t a t u s of r i c h and poor women. For the and  fortunate  few, e q u i t y p r o v i d e d  financial  autonomy.  meaning. Such l e g a l the  poor,  courts,  most  v a r y i n g degrees of l e g a l  F o r the poor,  i t had  little  forms c o u l d not defend the i n t e r e s t s of  of whom c o u l d  and who t h e r e f o r e  not a f f o r d r e c o u r s e  l i v e d material  in civil  l i v e s bounded more  19 by  popular  custom  Nevertheless, reformers  by  than  women's l e g a l  set  British f o r new  of  feminists  and  whom  it  legal  station in life.4  with a l l of i t s flaws, was  for  rules.  e q u i t y , improving a l l  s t a t u s , r e g a r d l e s s of t h e i r  women  formal  l e g i s l a t i o n t h a t would  between common law and  T h i s same body of law, colonial  any  1850's,  the  a l i k e were c a l l i n g  b r i d g e the gap  by  by  created  inherited  even  greater  difficulties. In  some ways,  Canadian  more p r e c a r i o u s than was Property varied  law  fell  s t a t u s was  t h a t of t h e i r E n g l i s h c o u n t e r p a r t s .  under  provincial  Backhouse,  sporadically,  courts  sometimes  inaccessible  to  many.  circumstance  may  have  jurisdiction  and  were One  been  of that  of  equity  non-existent, the  and  consequences  marriage  l e s s common i n Canada than i n B r i t a i n .  for  do  it  developed  not  know the extent  protecting  women's  to which t h i s property  was  were  of  this  settlements  were  Certainly,  Peter  Ward's f i n d i n g s f o r O n t a r i o seem to c o n f i r m t h i s . 5 we  even  from p r o v i n c e to p r o v i n c e . Furthermore, a c c o r d i n g to  Constance  far  women's l e g a l  traditional used  in  Although device British  4. For t h i s summary of common law and e q u i t y , I draw on Norma Basch, In the Eyes of the Law: Women. Marriage and P r o p e r t y i n Nineteenth Century New York, chapters 1-3. Lee Hoicombe, Wives and Property: Reform of the M a r r i e d Women's P r o p e r t y Law i n Nineteenth Century England, chapters 2-3. 5. Constance B. Backhouse, "Married Women's P r o p e r t y Law in Nineteenth Century Canada",211. Peter Ward, C o u r t s h i p . Love, and Marriage i n Nineteenth-Century E n g l i s h Canada.42-47.  20 Columbia,  for  prominent notes of  example,  families  that  British  equitable  evidence  d i d take Columbia  indicates  advantage  that  of i t . ^  c o u r t s had always  jurisdiction  so  some  Backhouse  been  theoretically,  capable  at  least,  c o l o n i s t s who had s e t t l e m e n t s drawn up i n England c o u l d have had  them  enforced  settlements  could  processed.^ argued,  i n British also  have  Settlements,  they  Furthermore,  their  been  their  marriage  drawn  critics  drawbacks,  were e s t a b l i s h e d terms  and new  properly  as B r i t i s h  were not without  legislation,  Columbia  up and  had a l r e a d y  because,  unlike  on an i n d i v i d u a l  basis.  c o u l d be changed,  sometimes  to a  woman's disadvantage. The p o s t - n u p t i a l agreement drawn up by Colonel Works,  Richard  C. Moody  and Commander  (Chief  Commissioner  of the Royal  Engineers)  of Lands and i s a case i n  point. Although marriage a way t o ensure were  protected,  establishing  s e t t l e m e n t s were u s u a l l y drawn up as  married women's separate economic this  trusts.  was  not always  They  could also  the o n l y be used  interests  motive f o r  to safeguard  f a m i l y a s s e t s t h a t might otherwise be s u b j e c t t o s e i z u r e , or in  t h e case  of government  may have been  the case  officials,  public  censure.  Such  f o r C o l . Moody, when, on A p r i l 11,  6. While I have not done an e x t e n s i v e or comprehensive search f o r settlements, I d i d f i n d r e f e r e n c e t o such agreements f o r two prominent f a m i l i e s . See Crease Family Papers, B r i t i s h Columbia A r c h i v e s and Records Services, ( h e r e a f t e r BCARS). MS. Moody Family Papers, BCARS. MS. 7. Backhouse, "Married Women's P r o p e r t y Law", 215.  1860,  he i n s t r u c t e d h i s lawyer,  Henry P. Crease,  t o draw up  a p o s t - n u p t i a l s e t t l e m e n t f o r h i s w i f e , Mary Susannah Moody. In  i t , he gave  her t i t l e  British  Columbia.  because  Mrs. Moody's  inadequate wanted  Moody  to a l l h i s property explained  father  that  had g i v e n  to have more s e c u r i t y  was  doing  her a v e r y  s e t t l e m e n t when she married.  h i s wife  he  holdings i n  Moody s a i d  so  small, t h a t he  and he s e t out the  terms of the agreement i n which he s t a t e d : 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 t r u s t e e s nor do I d e s i r e t o have the s l i g h t e s t atom of power over i t or b e n e f i t i n i t myself. I wish i t t o be an e n t i r e l y f r e e g i f t f o r her t o do what she pleases with. She may sell i t tomorrow and buy sugarplums w i t h i t . I wish i t t o be hers as s o l e l y and e n t i r e l y as i t i s p o s s i b l e f o r the law to make i t . God knows what may happen i n t h i s world of change and u n c e r t a i n t y and I hope i t may prove of some s e r v i c e t o her. I have other reasons b e s i d e s the above a l l good and s u f f i c i e n t but I need not a l l u d e to them.8 Although Moody no doubt was motivated by a genuine d e s i r e to look a f t e r  h i s wife,  the "other reasons"  he a l l u d e d t o may  have i n f l u e n c e d h i s a c t i o n s more s t r o n g l y than to  he  suggests  Crease. In  1860  and 1861,  Moody  was  embroiled  i n a scandal,  r e p o r t e d i n the newspapers, t h a t i n v o l v e d h i s l a n d h o l d i n g s . The  implication  his  official  was t h a t he had used  position  t o take  advantage  . R.C. Moody t o H.P. Crease, Family Papers. BCARS. Add MSS 60. 8  knowledge a c q u i r e d i n  11  of c e r t a i n  April,  1860.  land  Moody  22 purchases. so  I n February  of 1861,  The B r i t i s h  f a r as t o p u b l i s h an anonymous l e t t e r  "land-grabbing." have d e c i d e d  Under  9  i t would  these  be best  Columbian went  a c c u s i n g Moody of  circumstances, to transfer  he may w e l l  h i s property to  h i s w i f e . By 1863, however, Moody had drawn up a new Deed of Agreement  essentially  re-registering  at least  some of  the  p r o p e r t y i n h i s own name. T h i s agreement, a c c o r d i n g t o c o u r t records, "on  was subsequently  t h e grounds  Susannah  Moody  settlement  that  not recognized  this  property  h i s wife  made i n B r i t i s h  by  was s e t t l e d  Moody  Columbia."  by 10  1874, Moody a p p l i e d t o the Supreme Court title.  According  to  Justice  John  by t h e  a  Registrar on Mary  post-nuptial  Subsequently, i n to re-register  Hamilton  the  Gray, t h e  R e g i s t r a r r e j e c t e d Moody's deed because when i t was drawn up in  1863,  t h e r e c o r d d i d not  questioned to t r a n s f e r Registry pending  apart  from her  show t h a t Mrs.  husband as t o whether she  the l a n d . T h i s was a requirement  Act, more  1861.  Gray  information  Moody had been  reserved  wanted  under the Land  d e c i s i o n on t h e matter  on how s i m i l a r  cases  had been  decided.H  Margaret Ormsby, "Richard Clement Moody" D i c t i o n a r y of Canadian Biography. 1881-1890, 2 (Toronto: U n i v e r s i t y of Toronto Press 1982) 606. 9  10. B.C. Supreme Court. ( V i c t o r i a ) 1872-1875. BCARS, GR 1727 V o l . 453. 11 I b i d .  Gray  Bench  Book.  23 The  legal  illustrate  complications  that  examination interests.  was Not  the  that resulted  protective  effective ensuring  i n Moody's  mechanism  in  of  protecting  that  his  r e g i s t e r e d w i t h a l l documentation caused  separate  his  deed  case  was  wife's properly  Moody c o n s i d e r a b l e  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  permanent.  -  They  such  agreements  could  economic circumstances fact,  how  under  many wives  separate  limitations obvious.  be  reversed  had would  object  individual  In  legislation  married  women's  separate  subject  to the whims or changing  In  c o l o n i e s , where  the  with  married  women's  had  a survey  Constance such to  more  influenced western in  1862,  by  such  not know, i n  transfers  even  situations  the  potential in  a  way  to that  were  means not  become protect was  f o r t u n e s of t h e i r  property  whose  settlements  traditional  spouses.  of  dealing  widely  notes  that  Canadians New  actually  Brunswick was  used,  f o l l o w e d by other Maritime  York laws and  first  c o l o n i e s i n the bill,  r e f o r m e r s ' demands. Of  c o l o n i e s only Vancouver I s l a n d enacted r e g a r d i n g d e s e r t e d wives.  passed  the  the O n t a r i o l e g i s l a t u r e a l s o passed a New  not  importance.  statutes before B r i t a i n .  1860's. In 1859,  husband  of Canadian M a r r i e d Women's P r o p e r t y A c t s ,  Backhouse  do so i n 1851,  to  necessarily  do  these  the  property  s t a t u t o r y law took on an added In  a we  marriage  Only  not  by  changed, and  questioning.  of  were  These f i r s t  an e a r l y  the law  statutes, for  24 the most p a r t , and  were supposed to p r o t e c t a woman's p r o p e r t y  e a r n i n g s i n cases of marriage breakdown. The wording  the  statutes  interpret  was  them  ambiguous  women's e q u a l i t y ,  These e a r l y but with  the  unique  judges  they  had  laws were not  tended  of  bills  that  to  concerned  with  families  fathers. Therefore,  nature  to  occasion  the p r e s e r v a t i o n of  the absence of husbands and emphasized  and  c o n s e r v a t i v e l y when  to them. 12  refer  often  of  in  legislators  were meant  to  d e a l w i t h a v e r y s p e c i f i c s e t of c i r c u m s t a n c e s . In  B r i t i s h Columbia,  Protect passed  Backhouse suggests t h a t  "An A c t to  the P r o p e r t y of a Wife d e s e r t e d by her Husband" on  Vancouver  Island  in  1862,  in  response  economic c o n d i t i o n s i n the c o l o n i e s , a r e a s o n a b l e  was  to  the  assumption  g i v e n the nature of the colony's boom and bust economy. bill  introduced  would she  secure  were  a  i n the  legislature  a woman's p r o p e r t y and feme  sole  by  D.  Babington  e a r n i n g s to her  and. . . (would) p l a c e her  The Ring  "as i f  i n the  like  p o s i t i o n w i t h r e g a r d to p r o p e r t y and c o n t r a c t s as she should be supposing her to have o b t a i n e d a J u d i c i a l The  bill  who  had  without  was  an  Separation."  emergency measure meant to enable  been abandoned to support interference  from  her  herself  recalcitrant  and  her  husband  13  a woman children 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 P r o p e r t y Law", 217-219. 13. J o u r n a l s of the C o l o n i a l Legislatures of the C o l o n i e s of Vancouver I s l a n d 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 A r c h i v e s of B r i t i s h Columbia 1980 ) , 340.  25 creditors.  I t s p r o v i s i o n s s t a t e d t h a t i f a w i f e c o u l d show  that  husband  her  cause,"  she  had  could  deserted  apply  to  a  her  "without  reasonable  court  officer,  the  J u s t i c e , a P o l i c e M a g i s t r a t e , or a J u s t i c e , f o r an protection" order the  was  to  safeguard  to be  effective  desertion.  Registrar  of  It  the  had  u n c l e a r , but  that  such  clause was  was  was  be  Assent  the on  case.  In  fact,  confusing  shared  appearances,  legislative 11,  July  1863.  that  the and  as we the  property.  The  of  the order,  not  registered ten  with  days  No  "Mr.  and  order the  to  Ring  be  cause  of p r o t e c t i o n  entire  procedure see.  proceeded i t was  doubt, those who of The  the  on the w i f e to prove  shall later  bill  process,  the sentiments  declared  and  within  c e r t a i n l y the onus was the  all  duly  Court  f r a u g h t with d i f f i c u l t i e s ,  through  who  to  "order of  j u s t what c o n s t i t u t e d r e a s o n a b l e  potentially  From  bill  earnings  from the date  Supreme  c o n s i d e r e d valid.14 is  her  Chief  smoothly  given  Royal  supported  the  B r i t i s h Colonist's editor  deserves  the  thanks  of  the  colony f o r h i s e x e r t i o n s i n b e h a l f of d i s t r e s s e d females."15 Yet  the  bill  was  recognized  the  protection  could  statute,  not  without  potential entail.  the C o l o n i a l  its critics,  problems When  the  that  one the  legislature  of  whom  order  of  passed  the  S e c r e t a r y ' s o f f i c e i n London was  duly  14. An Act to P r o t e c t the P r o p e r t y of a Wife Deserted by her Husband, 1862. P u b l i c General S t a t u t e s of the Colony of Vancouver I s l a n d 1859-1863. C.51 at 20. 1 . 5  The B r i t i s h C o l o n i s t . 27  May  1862.  informed,  as  was  customary.  In  h i s reply,  the Duke  of  Newcastle expressed m i s g i v i n g s about the law. The a l t e r a t i o n made by the A c t i n the Imperial Law f o r p r o t e c t i n g the p r o p e r t y of d e s e r t e d wives seems an a l t e r a t i o n f o r the worse, as i t appears t h a t a poor woman, d e s e r t e d by her husband, who by honest i n d u s t r y has c o l l e c t e d a l i t t l e p r o p e r t y , w i l l not be a b l e , under the present A c t , without t r o u b l i n g h e r s e l f about q u e s t i o n s of law, to o b t a i n any p r o t e c t i o n f o r the p r o p e r t y so a c q u i r e d but w i l l remain l i a b l e ( n o t w i t h s t a n d i n g any order she may subsequently o b t a i n ) to have the whole of t h a t p r o p e r t y swept away by the husband or c r e d i t o r s of the husband who has d e s e r t e d her.16 The  Imperial  Matrimonial  Law  Causes  he  referred  to  A c t or D i v o r c e  would  do  so i s u n c l e a r ,  have  A c t of 1857,  make p r o v i s i o n s f o r d e s e r t e d wives' he  may  because  been  the  which d i d  p r o p e r t y . However, why the D i v o r c e  Act also  r e q u i r e d t h a t an Order of P r o t e c t i o n be i s s u e d , and i n f a c t , the Vancouver I s l a n d s t a t u t e appears t o be c l o s e l y on  the  1857  British  law.17  Nevertheless,  Secretary's  o b s e r v a t i o n about  astute  his criticism  and  the order  well  the  modelled Colonial  of p r o t e c t i o n was  founded,  as  will  become  apparent when we l a t e r look a t c o u r t r e c o r d s .  1". Colonial Secretary. Vancouver Island. 1862. C o l o n i a l Correspondence.BCARS. GR 1372, Reel B-1314, F i l e 319. 17. see Great B r i t a i n . S t a t u t e s . The M a t r i m o n i a l Causes Act, 1857. 20 & 21 V i c t . , c.85 and a l s o 1858, 20 & 21 V i c t .  c.108.  27 1862  The  a c t d e a l t o n l y w i t h cases of f a m i l y breakdown,  and as such, d i d not extend women's separate p r o p e r t y r i g h t s w i t h i n marrige. was  very  about of  much  The in  f a m i l y and  individual  keeping  family  thought  legislation  over  Their  general  well  community  healthy  safeguard  that  were  above  of  and  Clearly, colony  that  Vancouver  required  provided  by  conditions  government  officials  society.  The  stability  1862  law 1858.  and  the  along  with  attempted  to  as the f o u n d a t i o n of a  s t a t u t e was  when  additional  established i n  economic  family l i f e  Island  British  Legislators,  and  beliefs  responsibilities  families.  strengthen  family  the  twofold:  being  settler  conservative  when the colony was  leaders  encourage and  more  members.  and  effect  concerns  with  the r e s p e c t i v e r o l e s  legislators  which took  l i m i t e d scope of the b i l l ' s p r o v i s i o n s  i t was  designed  threathened  by  to a  husband's absence. By Island  the and  early  1860's,  the mainland  the  two  colonies  of  were i n an economic slump.  rush f e v e r waned, the predominately  Vancouver As g o l d  male p o p u l a t i o n was  once  again on the move as miners and other d i s a p p o i n t e d v e n t u r e r s left  the  upcountry  Westminster,  seeking  and  converged  employment  p r o m i s i n g p r o s p e c t s elsewhere.18 18. Margaret MacMillan The West (Toronto:  or The  on on  Victoria their  way  and  New  to  more  c o l o n i e s , burdened  by  For an overview of B.C. p o l i t i c a l history, see Ormsby, B r i t i s h Columbia: A H i s t o r y (Toronto: The Co. 1958). For a s o c i a l h i s t o r y , see Jean Barman, Beyond the West: A H i s t o r y of B r i t i s h Columbia U n i v e r s i t y of Toronto P r e s s . 1991)  28 huge debts,  had few r e s o u r c e s  t o cope w i t h  the i n e v i t a b l e  problems a s s o c i a t e d with economic hard times. 1862,  an e d i t o r i a l  to suggest  In August of  i n The B r i t i s h Columbian went so f a r as  levying a municipal tax to a s s i s t  those i n need,  observing that: The amount a t the command of Municipal C o u n c i l i s but s m a l l compared with the number of unemployed who a r e d a i l y a r r i v i n g the upper c o u n t r y . 1 9  Given was to  these c o n d i t i o n s , the f i n a n c i a l l y  understandably promote  societies safety  anxious  economic  strapped government  t o take whatever steps n e c e s s a r y  self-sufficiency.  and church  charities  Although  no doubt  n e t f o r some of the unemployed  resources  were  probably  quite  benevolent  provided  a small  or d e s t i t u t e ,  limited.  precarious  financial  circumstances  of  worrisome,  the p l i g h t  of d e s e r t e d  wives  doubly  the when the from  Moreover, transient  their if  the  men  was  and c h i l d r e n  was  so, coupled as i t was with V i c t o r i a n  concerns  about  reasonable  that  morality. Under legislators wives'  these would  earnings  circumstances, introduce and  a  property.  i t seems bill  to protect  Such  deserted  legislation  would  safeguard a woman who was s u p p o r t i n g h e r s e l f  and her f a m i l y  "by her own l a w f u l i n d u s t r y , " as the wording  of the s t a t u t e  s t i p u l a t e d . I f women c o u l d earn a " r e s p e c t a b l e " l i v i n g ,  safe  i n t h e knowledge t h a t the law would p r o t e c t them, they might 19.  The B r i t i s h Columbian 23 August,  1862.  29 be  less  likely  completely only  dependent  benefit  associated few  to f a l l  into  about  some  women's poverty.  women i n the c o l o n i e s  concerns  occupations  on t h e community.  by a l l e v i a t i n g  with  illegal  The c o l o n i e s  of the s o c i a l Although  a t this point,  home and f a m i l y  o r become  life  there  could  problems were  very  t h i s d i d not make  any l e s s  important t o  those who addressed such issues.20 If  anything,  situation leaders  seem such  "civilizing" in  1865,  t h e s c a r c i t y of women may have made  a l l t h e more compelling as the Rev. Matthew  t o community  MacFie,  physical i l l s  moral  who noted the  i n f l u e n c e of the r i g h t s o r t o f woman.  he d i s c u s s e d  the  Writing  h i s s o l u t i o n t o the moral, s o c i a l and  t h a t plagued s i n g l e men.  F r e q u e n t l y have I been d e l i g h t e d t o see the beneficial change affected by marriage, i n a r r e s t i n g the progress o f d i s s i p a t i o n . I t i s only t o be r e g r e t t e d t h a t the p a u c i t y of r e s p e c t a b l e females i n Vancouver I s l a n d and B r i t i s h Columbia l i m i t s so much the o p p o r t u n i t y o f s i n g l e men who d e s i r e t o c u l t i v a t e domestic v i r t u e s , and l e a d sober l i v e s . 2 1 In  keeping  with  V i c t o r i a n ideas  MacFie d i s t i n g u i s h e d  about women and m o r a l i t y ,  c a r e f u l l y between t h e c o l o n i e s ' "bad"  20. Barman, The West beyond the West". 89-90. Barman p o i n t s out t h a t even by the 1870's, the number o f non-native women was r e l a t i v e l y s m a l l . While she notes t h a t p r e c i s e census data f o r the P r e - C o n f e d e r a t i o n p e r i o d i s based o n l y on estimates, t h e r a t i o of women t o men was approximately 1:3, i n t h e 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. T h e i r H i s t o r y . Resources, and P r o s p e c t s . (London: Longman, Green, 1865), 408.  women  and  its'  prostitutes,  "good."  schemers,  background, he s a i d colonies,  the former,  and  "widows"  which of  included  questionable  "...there a r e too many females  as everywhere e l s e ,  upon t h e l a n d o f t h e i r their  Of  i n both  t h a t r e f l e c t as l i t t l e  credit  adoption as they d i d on t h e l a n d o f  birth."22 F.W. Howay, d e s c r i b i n g s o c i a l c o n d i t i o n s i n the Cariboo  i n t h e 1860's, observed: Cariboo drew t o i t s e l f n o t o n l y miners, but a l l the c l a s s e s that naturally congregate where money i s p l e n t i f u l and e a s i l y obtained. Gamblers f l o c k e d l i k e v u l t u r e s t o the spot. The a u t h o r i t i e s r e s o l u t e l y s e t t h e i r faces a g a i n s t t h i s e v i l , but the v i c e was too deeply r o o t e d to be completely e r a d i c a t e d . I t merely went under cover and continued t o f l o u r i s h i n p r i v a t e . An anomalous c l a s s of females, known as the hurdy-gurdy girls, made their appearance in C a r i b o o . . . They frequented t h e saloons and d r i n k i n g p l a c e s and, f o r a money consideration, danced with a l l a p p l i c a n t s . But, a t the same time, t h e i r morals were above reproach.23 No doubt,  Howay was more generous i n h i s assessment o f t h e  hurdy-gurdy  girls'  have  But h i s d e s c r i p t i o n  been.  social  problems  moral  character  associated  economy t h a t community  with  than  points  Rev. MacFie  might  out t h e k i n d s of  the boom  and bust  gold  l e a d e r s wanted t o d e t e r . One way t o  do t h i s was t o encourage f a m i l i e s and f a m i l y l i f e . But 2 2  .  Ibid.  23. F.W. Howay, B r i t i s h Columbia. From t h e E a r l i e s t Times t o the Present. 2 (Vancouver: S.J. C l a r k e P u b l i s h i n g  Co. 1914), 112.  31 "good"  families  required  "good" women who were w i l l i n g t o  emigrate. In  1862,  the Columbian Emigration  S o c i e t y arranged f o r  the f i r s t o f two " b r i d e " ships t o b r i n g women from London t o the  colonies.  Upon  their  arrival,  some o f t h e women went  i n t o domestic s e r v i c e , but most of them married. The S o c i e t y was  formed  Duke  under  the auspices  of Newcastle  assisted prominent  (Colonial  i n the c o l o n i e s church worker.  of S i r E. B. L y t t o n Secretary)  and the  i n London, and  by the Baroness B u r d e t t - C o u t t s ,  a  The o r g a n i z a t i o n ' s  to  mandate was  encourage marriageable young women t o come t o the c o l o n i e s to s e t t l e , and i n the process, settler  society.24  intended  f o r t h e London  opportunities that  marriage  prospects  grounds."25  concerns. Rev.  Rev. MacFie, market,  family l i f e  in a  book  emphasized  i n the  obviously  t h e ample work  a v a i l a b l e f o r female emigrants, b u t a l s o noted  presence of t h i s moral  strengthen  were  even  better  sex i s as u r g e n t l y other  In a l e t t e r  religious  and t h a t "the  required leaders  t o t h e Bishop  on s o c i a l and  shared  of Oxford  MacFie's  i n London,  Brown a l s o spoke of the need f o r a s o l i d f a m i l y l i f e t o  b u i l d a good community w i t h a s t r o n g  church.  24. J a c k i e Lay, "To Columbia on t h e Tynemouth: The Emigration of S i n g l e Women and G i r l s i n 1862", Barbara Latham and Cathy Kess, eds. I n Her Own R i g h t : Selected Essays on Women's H i s t o r y i n B.C. ( V i c t o r i a : Camosun C o l l e g e 1980), 19-41. See a l s o Barman, The West Beyond t h e West 79-80; Howay, B r i t i s h Columbia. 113-114. 25.  MacFie, Vancouver I s l a n d and B r i t i s h Columbia. 497.  32 Churches may and must be b u i l t , a faithful witness must be borne f o r h o l i n e s s and v i r t u e , but where t h e r e i s no wedded life churchgoing must be difficult because m o r a l i t y i s almost impossible.26 At  the London meeting of the Columbian E m i g r a t i o n  the  Bishop  agreed  acknowledged women  so  morals,  the need  that  t o balance  colonial  values  "problem"  wholeheartedly  and  of n a t i v e  society  tastes.  He  with  Rev.  Brown.  the p r o p o r t i o n could also  women i n B r i t i s h  Society,  of men t o  maintain touched  Columbia  He  British upon  the  - a growing  concern f o r many i n the c o l o n i e s as w e l l as i n London. The  Columbian  Emigration  Society's  efforts  to bring  B r i t i s h women t o s e t t l e i n the c o l o n i e s r e f l e c t e d a growing bias against native  intermarriage  women.  This  r e l i g i o u s leaders  and common law r e l a t i o n s h i p s w i t h  opinion  l i k e Rev.  was  expressed  not only  Brown, w r i t i n g t o h i s  by  superiors,  but a l s o i n the more p u b l i c forum of the l o c a l newspapers. A l e t t e r t o the e d i t o r of The B r i t i s h Columbian v o i c e d about  native  women and wondered about  concern  the consequences of  f a m i l y breakdown f o r the c h i l d r e n i n v o l v e d . One of the most p a i n f u l r e f l e c t i o n s a r i s i n g from the s t a t e of t h i n g s i s the probable future awaiting the unhappy o f f s p r i n g of these connections a f t e r the fathers have made t h e i r " p i l e s " and d e s e r t e d both mothers and c h i l d r e n . 2 7  Lay,  26. The B r i t i s h Columbian. 21 June 1862. "To Columbia on the Tynemouth", 20-21. 27.  The B r i t i s h Columbian. 4 June  1862.  A l s o quoted i n  33 So,  mixed  the  eyes of some, u n d e s i r a b l e  racist,  marriages  and common law r e l a t i o n s h i p s were, i n  ethnocentric,  not expressed It  and r e l i g i o u s ,  t o note  a p r o v i s i o n t o exclude  p r o v i s i o n s of the 1862 b i l l . wives, l e g a l l y married, protection course, these  t h e f i r s t was  the second,  although  o u t r i g h t , was economic.  i s interesting  include  on two counts;  as  their  that  legislators  did  not  n a t i v e women from u s i n g the  Theoretically, at least,  native  would have been e n t i t l e d t o the same  white  counterparts.  we do not know i f n a t i v e  In p r a c t i c e , of  women took  advantage of  l e g a l r i g h t s . However, i t seems l i k e l y t h a t , g i v e n the  transient  nature  arrangements  of f r o n t i e r  as w e l l  society  as more c a s u a l  i n B.C., common law liasons involving a l l  women would have o c c u r r e d q u i t e r e g u l a r l y . Consequently, the legal  status  of these  women  was p r e c a r i o u s ,  t o say the  least. Although observations forget  usually  society,  and  obligations  as p r o t e c t o r s  children. did  not  assumption of the 1862 whose men had f a i l e d Colonist  focussed  on women and women's behaviour,  t h a t men, too, were a s s i g n e d  Victorian wives  commentators  explained  such and t h a t :  Men avoid  who  a very  we should not  specific role i n  and p r o v i d e r s neglected  criticism.  their  f o r their  their The  family  underlying  s t a t u t e was t h a t i t p r o t e c t e d women t o do so. The e d i t o r of The B r i t i s h  t h a t the b i l l  was not a d i v o r c e b i l l as  34 N e i t h e r has the b i l l been i n t r o d u c e d t o o f f e r rewards f o r the apprehension of any heathen husband who may cruelly d e s e r t h i s b e t t e r h a l f ; but i t t a c i t l y r e c o g n i z e s the r i g h t of a husband t o "emigrate." I f a husband be too l a z y t o p r o v i d e f o r h i s w i f e , the b i l l don't g i v e the l a t t e r the r i g h t t o summarily t u r n him a d r i f t . There i s n o t h i n g even in the Stamp A c t t o reach such a Scamp.28 By r e f e r r i n g  t o the b i l l ' s  c a p a c i t y t o " b r i n g about a q u a s i  d i s s o l u t i o n of matrimonial unions," 29 the e d i t o r u n d e r l i n e d the e x c e p t i o n a l nature of the l e g i s l a t i o n . the  same  as  "good"  appropriately.  women,  were  "Good" men, much  expected  to  When they d i d not, i t was a matter  behave of good  p u b l i c p o l i c y to ensure t h a t any l e g a l b a r r i e r s were removed t h a t would prevent d e s e r t e d wives  from m a i n t a i n i n g economic  self-sufficiency. Even though the "Act to P r o t e c t the P r o p e r t y of a Wife deserted 1862,  by her Husband" was passed  i t s passage  discussion  about  concerns  that  relation  to  d i d not the b i l l  would the  1873  responses t o the 1862 correspondent  be  go  with l i t t l e  entirely  anticipated  expressed statute.  One  unnoticed,  some  eleven of  fanfare i n  of  years the  and  the same later,  few  in  public  b i l l was w r i t t e n by a r a t h e r p e r p l e x e d  t o The B r i t i s h  Colonist,  who e n q u i r e d of the  editor:  28.  The B r i t i s h C o l o n i s t . 27 May  29.  Ibid.  1862.  35  Would you be so good as t o g i v e some i n f o r m a t i o n r e s p e c t i n g the B i l l before the House of Assembly, i n t r o d u c e d by Mr. Ring, t o p r o t e c t wives d e s e r t e d by t h e i r husbands. The c o n s t i t u e n t s of Mr. Ring at t h i s p l a c e a r e q u i t e p u z z l e d about the b i l l , and a r e i n c l i n e d t o b e l i e v e t h a t i t i s i n t r o d u c e d t o e f f e c t some s p e c i a l case i n V i c t o r i a , as t h e r e i s no need f o r i t a t Nanaimo. You, Mr. E d i t o r , who have never f a i l e d t o 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 p u b l i c know something of such an uncalled for b i l l - uncalled f o r i n this country, where women a r e so s c a r c e , and a bill so f o r e i g n t o the wants of Nanaimo and the country g e n e r a l l y , and so d i f f e r e n t from the measures Mr. Ring promised on his election to i n t r o d u c e . 30 The  writer,  legislation, the  bill  said,  i n this  "prove  a  Nevertheless,  law which  relationship.  He  no need  f o r such  reply,  supported  i t s ' b a s i c p r o v i s i o n s . I t would, he  terror  e d i t o r was a l i t t l e a  perceived  but the e d i t o r , i n a lengthy  and e x p l a i n e d  emigrate."  of  instance,  t o husbands despite  who  are disposed  h i s overall  a p p r o v a l , the  uneasy about the long term i m p l i c a t i o n s  he  thought  envisioned  could a  unsettle  situation  the m a r i t a l  that  d i s t u r b i n g , i n which: She can have her end of the t a b l e groaning under the good t h i n g s of t h i s world, w h i l s t the man, whom she has vowed t o c h e r i s h and obey, cannot g e t a mouthful of food without her consent. I f she owns the b l a n k e t s , the runaway w i l l have t o s l e e p upon the f l o o r , except he has t a l e n t enough t o r e - c o n s t r u c t the union. 31 3 0  .  Ibid.  3 1  .  Ibid.  to  he  found  36 The  e d i t o r ' s ambivalence towards the b i l l  as  "a k i n d  mixed  reactions  instance, law  o f Women's Rights this  kind  was t y p i c a l  of l e g i s l a t i o n .  o f the In t h i s  both the e d i t o r and the l e g i s l a t o r s who passed t h e  recognized  they  towards  affair,"  which he d e s c r i b e d  were  i t as a necessary step.  unsure  pursestrings.  about  giving  On the other  women c o n t r o l  Yet the requirements  hand,  of t h e i r  of the b i l l  own  made i t  r a t h e r u n l i k e l y t h a t i t would be w i d e l y used by women i n any case. The  Colonial  misgivings  Secretary,  about the b i l l ,  who  1866, when  Columbia,  the two c o l o n i e s  the s t a t u t e  was  British  Columbia.  Married  Women's Property  egalitarian  issues  expressed  his  doubted t h a t i t would be allowed  to remain on the books as i t stood. in  had  However, i t d i d so, and united  incorporated  I t was not r e p e a l e d  t o become into  until  A c t was i n t r o d u c e d .  would p l a y  British  the laws of  1873, when the But i n  1873,  a more prominent r o l e i n the  debate over women's p r o p e r t y law.  37 Chapter I I : 1873:  The B r i t i s h Columbia M a r r i e d Women's P r o p e r t y Act, "The Whereas the 1862 controversy, the  Woman's R i g h t s  Vancouver I s l a n d s t a t u t e caused  the M a r r i e d  Hon. Mr. Robert of l i v e l y  press.  I t represented  doctine  new  laws  introduced in  governing  to  7,  1873,  was the  and the l o c a l  legislative  a t t a c k on  L e g i s l a t o r s were aware t h a t  married  community,  the  women's  economic  the n i n e t e e n t h  They  relationship  the  A c t proposed by  i n the l e g i s l a t u r e  a significant  little  property  had  been  i n England, the United S t a t e s , and e a s t e r n Canada  characterized  raised  debate  Property  on January  of m a r i t a l u n i t y .  response  world.  Women's  Beaven  subject  the  Bill"  also  between  wanted  to  revealed  couple  concerns  the  change  Anglo-North  outline  the married  and t o address  social  century  by p u b l i c debate d u r i n g bill  and  more  that  American  clearly  the  and the m e r c a n t i l e  about  the p e r i o d .  underlying  women's  status  D i s c u s s i o n of  paternalism  which  i n f l u e n c e d men's a t t i t u d e s towards gender r e l a t i o n s and the law. The  Two major .concerns f i r s t of these  impact,  between  envisioned  i n this  focussed on the b i l l ' s  and the second upon the b i l l ' s  relationship reform  were e v i d e n t  husband  a statute  l e g a l and economic  i m p l i c a t i o n s f o r the  and w i f e . that  went  discourse.  The advocates of considerably  the scope of the 1862 Vancouver I s l a n d law, the b i l l a c c o r d i n g l y .  beyond  and they d r a f t e d  38 The  provisions  comprehensive than of  the  "copycat"  Ontario.^ wives,  1873  the  1873  bill  Married  as  f a r more  as Constance Backhouse  Women's  The B r i t i s h  same  were  and p u r e l y p r o t e c t i v e nature  On one l e v e l ,  legislation.  essentially  the  the l i m i t e d  t h e 1862 s t a t u t e .  observes,  of  those  Property  Columbia  passed  s t a t u t e was  i n England  i t e n t i t l e d a l l married women, not j u s t  earnings  their  own p r o p e r t y as i f they were s i n g l e women.  not l i a b l e  relation her  and wages  own bank account,  aspects  and t o c o n t r a c t  f o r h i s wife's debts  t o her separate  her own l i f e ,  of  and  deserted  t o own and a d m i n i s t e r t h e i r own p r o p e r t y , t o c o n t r o l  their  was  A c t was  property.  A husband  t o marriage  or i n  A w i f e c o u l d a l s o open  be an a c t i v e  or w i t h h i s consent,  prior  i n r e l a t i o n to  stockholder  and i n s u r e  t h a t of her husband.  of the s t a t u t e were p a r t i c u l a r l y  important  Two  because  t h e i r i m p l i c a t i o n s f o r s e p a r a t i n g the l e g a l i d e n t i t y of a  wife  from  protection  t h a t of her husband; the removal of t h e order of c l a u s e , and the s e c t i o n which d e a l t w i t h  spousal  liability.  1. See Backhouse, "Married Women's P r o p e r t y Law," 212. She a l s o d e s c r i b e s the s e c t i o n i n the 1873 b i l l which s t i p u l a t e d t h a t o n l y r e a l p r o p e r t y came under t h e p r o v i s i o n s of t h e a c t . Personal p r o p e r t y was not i n c l u d e d u n t i l an amendment was passed i n 1877. f t . 8 5 , 250. In a d d i t i o n see B.C. A t t o r n e y General's Letterbook. O f f i c i a l L e t t e r s of the A t t o r n e y - G e n e r a l ' s Dept. 1870-1874. BCARS C4B 30.4J4, 412413 i n which A t t y . Gen. Walkem informs the L i e u t . Gov. t h a t 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 O n t a r i o A c t and l e g i s l a t i o n i n England.  39 1862 b i l l  The  r e q u i r e d a woman t o o b t a i n a c o u r t  of p r o t e c t i o n t o safeguard  her p r o p e r t y .  T h i s order,  order which  c o u l d be i s s u e d by a magistrate  o f the lower c o u r t s , was t o  be  Court  registered  i n t h e Supreme  cumbersome process the  reflect  problems with  province,  many  necessary arise,  women  n  the process  itself.  four  part  such  t h i s may  but i t also A woman  was n e c e s s a r y . a specific,  first  Then the and f a i r l y  Given the geographic r e a l i t i e s o f the  and t h e f a c t  circuit,  j  a  In f a c t ,  only  imbalance  had t o be r e g i s t e r e d w i t h i n  s h o r t p e r i o d of time.  lists  demographic  t o be aware t h a t such an order  order  that  court  may have  requirements.  officials  had d i f f i c u l t y  In a d d i t i o n ,  when  travelled  a  meeting t h e disputes d i d  l i t i g a n t s and c o u r t o f f i c i a l s a l i k e c o u l d be confused  about  the procedure.  will  be  discussed  illustrates Suffice  The case of Balden v s . Strong, further  in a  the f a r r e a c h i n g  t o say a t t h i s  existence  of a  contention  i n the c a s e .  the  o f Orders  and one i n 1873.2  the province's  indicates had  Register  t o 1873,  prior  t e n days,  and one t h a t was seldom used.  Supreme Court  orders  within  general  public  3  consequences  point  protection  subsequent  that  order  Although n e i t h e r  discussed  this  chapter,  of such  the existence was a  major  which  orders. or  non  point of  l e g i s l a t o r s nor  particular  stipulation,  2. B.C. Supreme Court R e g i s t e r of Orders. BCARS C/AB 30.3D. Only 14 orders were i s s u e d between 1868-1889. . B.C. Supreme Court ( V i c t o r i a ) . 1873-1877. BCARS GR 1727 V o l . 729. 3  Begbie  Bench  Book.  40 clearly  i t was an u n s a t i s f a c t o r y requirement  t h a t was b e s t  removed as p a r t of the e f f o r t t o s i m p l i f y and reform  married  women's p r o p e r t y law. The  section  which  gave  a married  woman  the r i g h t t o  c o n t r a c t or m a i n t a i n a l e g a l a c t i o n on her own b e h a l f - t h a t is,  sue or be sued  common  law t r a d i t i o n  husband  a c t as  important service no  - was a d i s t i n c t of c o v e r t u r e ,  co-litigant.  clause  Victoria  statistics  City  Potentially  on the numbers  Directories  during t h i s  engaged  i n occupations  hotel  keeping,  laundry,  teaching. 4  of  such  these, we cannot  but, as Matthew  marital  status i n frontier  MacFie  Although  law,  could  separately  from  woman her  sometimes r e c o g n i z e d enter  into  4  .  5.  409.  was  an  of such  there are women, the  period l i s t  numerous house and  and m i l l i n e r y , determine  observed,  as w e l l  how many were  d e s c r i p t i o n s of  t h e o r e t i c a l l y , under common  not be r e p r e s e n t e d  husband,  in  a woman's r i g h t  contractual  While  communities were not n e c e s s a r i l y  a c c u r a t e i n any case.5 married  that a  this  as b o a r d i n g  dressmaking  married  a  required  small b u s i n e s s e s .  women  as  which  from the  f o r women who, as p a r t of the p r o v i n c e ' s  s e c t o r , operated  precise  departure  agreements  practice,  i n court  the  courts  to r u n a b u s i n e s s and regarding  i t w i t h the  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. MacFie, Vancouver I s l a n d and B r i t i s h Columbia.  407-  consent  of  her husband.  But because  the law was not  c o n s i s t e n t on t h i s p o i n t , i t i n e v i t a b l y caused c o n f u s i o n . The  case  difficulties  of Toy v s . Barnard associated  businesswoman.  with  In t h i s  i n 1868  coverture  i l l u s t r a t e s the and  the  i n s t a n c e , Mrs. Malvina  Toy sued a  Mr. Barnard i n L i l l o o e t County Court f o r debt. Barnard  pleaded  c o v e r t u r e as h i s defense  married woman. but  what  married  In response,  because  Toy was a  The d e t a i l s of the case need not concern us,  i s interesting  d i s a l l o w i n g Barnard's  was  the J u s t i c e ' s  coverture plea.  reasons f o r  J u s t i c e E.M.  Sanders  explained: I deemed t h a t when a married woman has t r a n s a c t e d business i n her own name f o r many years and on a l a r g e s c a l e , too, that she d i d so with her husband's s a n c t i o n . . . That i f a w i f e t r a d e s 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 t h a t she is enabled i f injured i n person or p r o p e r t y to b r i n g an a c t i o n f o r r e d r e s s without the concurrence of her husband and be sued without the husband b e i n g made a defendent.6 The A t t o r n e y General, asked t o r e p o r t on the case, Sanders  ruling.  particular justice  subject  case  ruled  otherwise  The l a r g e r i s that  i n Toy's  because  legal  point  although favour,  i n this  about  was  loosely  interpretation.  this  i n s t a n c e , the  he c o u l d e a s i l y  precedent  t o an i n d i v i d u a l ' s  t o be made  upheld  have  done  d e f i n e d and  By embedding i n  6. B.C. A t t o r n e y General, Documents. BCARS GR 419 Box 7 F i l e 13.  42 statutory their  law married  women's  property  rights  b u s i n e s s or wages earned, supporters  to e s t a b l i s h a standard than  relying  on  a  determined  objections The  of reform wanted  from which c o u r t s c o u l d r u l e , r a t h e r judge's  own,  often  i n t e r p r e t a t i o n of common law precedent. were  t o push  the b i l l  Consequently,  statute's  supporters  argued  one  in  that  was  companionate  keeping  marriage.  with  that  the  and p r o t e c t  Victorian  Moreover,  their  they  The b i l l ' s  thought t h a t the measure would t h r e a t e n The growth  Married  ideas  argued  about  that  the  of husbands and  individual financial  as those of merchants.  fraud.  the  and necessary reform,  l e g i s l a t i o n would c l a r i f y the l e g a l s t a n d i n g  encourage  despite  they  of t h e i r opponents.  A c t was a p r o g r e s s i v e  well  idiosyncratic,  through,  Women's Property  wives,  regarding  i n t e r e s t s as  opponents, however, f a m i l y s t a b i l i t y and  of commercial  capitalism i n  B r i t i s h Columbia e s t a b l i s h e d an i n c r e a s i n g l y complex economy in  which  credit  communities resource  like  based  played British  significant Columbia,  role.  with  established  important.  their  In f r o n t i e r  a boom  economy and a l a r g e l y t r a n s i e n t  c r e d i t was p a r t i c u l a r l y frontier  a  and bust  population,  Merchants on the mining  own b u s i n e s s e s u s i n g  c r e d i t , not  c a p i t a l , and, i n t u r n , extended c r e d i t t o those who r e q u i r e d outfitting. sector  was  Cariboo,  In a d d i t i o n , a s i g n i f i c a n t c r e d i t - b a s e d established,  particularly  i n Victoria  service and the  t o meet the needs of those r e q u i r i n g board,  food,  43 laundry  and  so  on,  as  well  entertainment.  I n many i n s t a n c e s ,  such s e r v i c e s .  The e x t e n s i v e  the  courts  as c i v i l  as  various  conditions,  c l a r i f y spousal In  use o f c r e d i t was r e f l e c t e d i n  litigation  f o r bankruptcy  community.  the  economic  associated  any  i t important t o  with  habit  i t would  Columbians  were  the 1873 b i l l  offer aware  the use of c r e d i t . went  was a  response t o the needs o f  Those who supported  B. Humphreys,  mercantile  inappropriate  protection  British  bill,  thought  Given these  l i a b i l i t y i n r e l a t i o n t o debt.  cumbersome and o f t e n  wives.  legislators  and debt  economies where c r e d i t f l o u r i s h e d , c o v e r t u r e  the  of  i t was women who p r o v i d e d  o c c u p i e d a l a r g e p o r t i o n o f the c o u r t s ' time.7 economic  forms  both  stressed  husbands and  o f t h e problems  One supporter  so f a r as t o argue  o f extending c r e d i t should  of  the  that the  be c u r t a i l e d a t  r a t e because i t encouraged too much l i t i g a t i o n . He d i d n o t b e l i e v e i n t h e u n l i m i t e d c r e d i t t h a t tradesmen were i n the h a b i t of g i v i n g f a m i l i e s , f o r i t was o n l y p l a c i n g a t a x upon t h i s country and others who were o b l i g e d t o be employed to settle t h e debts o f t h e v a r i o u s p a r t i e s i n question.8  Another Daily  member British  o f the l e g i s l a t u r e and t h e e d i t o r Colonist.  Humphrey's suggestion,  John  noting  Robson, that  took  of  exception  the c r e d i t system  the to  "be i t  7. T i n a Loo, "Law and A u t h o r i t y i n B r i t i s h Columbia, 1821-1871." U n i v e r s i t y of B r i t i s h Columbia, Ph.D. ( H i s t o r y ) ,  1990,  113-118.  8. The V i c t o r i a D a i l y Standard. 15 January 1873.  44 good  or bad," was used  regardless dispute,  widely  and would  of the d i f f i c u l t i e s  continue  i t presented.  t o be,  The  9  real  of course, was not over whether or n o t t o a b o l i s h  the c r e d i t system, but r a t h e r how t o d e a l w i t h m a r r i e d women in i t . Those anything, into  who such  debt  spoke  against  legislation  and they  agreed  the s t a t u t e  would with  argued  encourage Henry  that, i f  families  Holbrook  t o go  who warned  that ...the B i l l was f r a u g h t w i t h danger to tradesmen and o t h e r s , and i t opened up many an o p p o r t u n i t y f o r f a m i l i e s t o r u n i n t o debt, knowing t h e i r p r o p e r t y c o u l d be, and probably would be p l a c e d e x c l u s i v e l y i n the name of the wife.10 I t i s c l e a r from the response of the b i l l ' s advocates they of  c o n s i d e r e d the f e a r  a red herring.  that  of p o t e n t i a l  f r a u d t o be somewhat  The Hon. Mr. W i l l i a m  the o p p o r t u n i t i e s  f o r fraud  that  would  Armstrong  argued  be no g r e a t e r than  b e f o r e , w h i l e a correspondent t o The D a i l y Standard observed that  no s t a t u t e  could  prevent people  c r e d i t o r s i f they wanted t o . H opponents' bill  fears,  from d e f r a u d i n g t h e i r  Having thus d i s c o u n t e d t h e i r  they s t r e s s e d the economic p r o t e c t i o n the  would b r i n g husbands and wives, and u l t i m a t e l y ,  merchants who d e a l t w i t h them.  9  .  D a i l y B r i t i s h C o l o n i s t . 24 January 1873.  10. The D a i l y Standard. 15 January 1873. 11.  I b i d . . 16 January 1873; 30 January 1873.  t o the  45 of the 1873  Supporters concerning concern  spousal  that  bill  liability  they  were aware of the c o n f u s i o n  f o r debt,  focussed  their  and  i t was  on  this  attention.  These  l e g i s l a t o r s a n t i c i p a t e d t h a t , i f the l e g a l a c c o u n t a b i l i t y of each p a r t y was would that  laid  benefit. the  bill  fiscally  out  clearly  Therefore, would  afford  responsible.  s a i d i n defense  An  i n s t a t u t o r y law,  they  emphasized  both  parties,  editorial  everyone  the p r o t e c t i o n  making each more  i n The  Daily  Standard  of the s t a t u t e :  It i s not by any means a one-sided measure, extending p r o t e c t i o n o n l y to wives; but i t aims as w e l l to p r o t e c t the i n t e r e s t s of husbands, where the law now exposes them to loss and inconvenience by l e g a l process f o r the recovery of debts contracted by wives... 12 In the  end,  the b i l l ' s  and o t h e r s who be for  supporters  advocates  a  t h a t merchants  had o c c a s i o n to d e a l with married women would  much b e t t e r o f f as paying  concluded  debt.  they  would know who  But  at  the  same  was  responsible  time,  the  bill's  seem not to have r e c o g n i z e d the s t a t u t e ' s p o s s i b l e  detrimental  effects  on women's a b i l i t y  to o b t a i n c r e d i t ,  f a c t o r of c o n s i d e r a b l e importance to d e s e r t e d wives or engaged i n b u s i n e s s . to  pursue  merchants  12.  would  Ibid..  simply  15  those  Without the p o s s i b i l i t y of b e i n g  a husband f o r such have  January  debt,  i t is likely  declined  1873.  to  extend  a  able  t h a t many credit  to  46 women.13  Apart from t h i s r a t h e r c r u c i a l o v e r s i g h t ,  legislators the  introduced  need f o r an order  about spousal In  concept  autonomy,  arguments  statute's  who  controlled  provisions  unity  Property In  economic  was  more  confusion  I t was t h i s  focussed  legal  impact  of the 1873  dominated  a  i n religious challenge  that  C e r t a i n l y , one of the on i t s e f f e c t on the over  had j u s t as much t o do w i t h  pursestrings.  statute world  and  challenged  grounded  oPponents.  the f a m i l y  could  P o t e n t i a l l y , the  have had  of the f a m i l y .  the debate  over  considerable I t was  this  the M a r r i e d  Women's  of  women's  A c t i n B r i t i s h Columbia. grappling  property,  women  of the measure  that  the b i l l  on the p r i v a t e that  would, e l i m i n a t e  i n t e r e s t s of the community, but the debate  the  issue  advocates  the b i l l ' s  against  commercial  impact  married  and supported by law.  most d i s t u r b e d  that  of p r o t e c t i o n and a l l e v i a t e  to give  of m a r i t a l  doctrine  reforms  liability.  attempting  economic  legal  however,  both  with  the problem  legislators  and the g e n e r a l  married public  touched  upon t h e l a r g e r i s s u e s r a i s e d by the ongoing c o n t r o v e r s y i n England legal  and North status.  America  In doing  concerning so, they  women's  r i g h t s and  recognized  t h e law's  p o t e n t i a l t o a l t e r f a m i l y r e l a t i o n s h i p s i n fundamental ways.  . Constance Backhouse, "Married Women's Property Law", 214. She d i s c u s s e s t h i s p o i n t i n r e l a t i o n t o d e s e r t e d wives, but i t would be e q u a l l y applicable to married b u s i n e s s women. 1 J  47 The  law, as a powerful  expression  t o the d i s t i n c t  to V i c t o r i a n way,  was  constrained  whatever t h e i r  the  and r i g i d  by  society's  i n the home  individual  Act, B r i t i s h  cornerstone  and  beliefs  Columbians  gender r o l e s  of c o n t e n t i o n  i n the ensuing  s t a t u t e would strengthen Although  British  and the e a s t e r n  women's r i g h t s  assigned  Each, i n t h e i r own  definitions  of  the community.  their And,  about the M a r r i e d Women's sensed  that  of V i c t o r i a n E n g l i s h - C a n a d i a n  a tenuous g r i p on the west coast  England  gave p u b l i c and formal  husbands and wives a l i k e .  responsibilities  Property  institution,  frontier.  family  life,  society, held The main p o i n t  debate l a y i n whether the 1873  t h a t g r i p or h e l p t o d i s l o d g e i t . Columbia United  was s t r o n g e s t ,  seemed States  i n fact,  f a r removed  from  where a g i t a t i o n f o r i t was not.  Columbians, on the whole, were q u i t e w e l l informed  British  about the  q u e s t i o n s being r a i s e d about women's p l a c e i n s o c i e t y . 1 4 Certainly,  they  had been exposed  t o the ideas  of American  feminism, as Susan B. Anthony's l e c t u r e tour t o V i c t o r i a i n 1871  indicates.l^  married who  The c h a l l e n g e  women's p r o p e r t y  associated  i t with  t o c o v e r t u r e p r e s e n t e d by  l e g i s l a t i o n was t r o u b l i n g t o those feminist  demands.  s u r p r i s i n g t h a t opponents of the 1873  So  i t was not  statute r e f e r r e d to i t  14. Barman and Ormsby both d i s c u s s the s t r o n g c u l t u r a l l i n k s w i t h 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 D a i l y Standard. 24 October 1871; 25 October 1871; 27 October 1871.  48 as t h e "Women's R i g h t s B i l l " , a r a d i c a l measure. the  bill's  seemingly already  links more  Advocates, on the other hand, to nineteenth  moderate  connected  American  thereby s u g g e s t i n g t h a t i t was  century  approach.  feminists  used  liberal  In f a c t ,  i n the p u b l i c the  emphasized  mind,  reform, a  the two were  as  British  concepts  of  liberal  i n d i v i d u a l i s m t o argue t h e i r case f o r equal r i g h t s . 1 6 suggests, married  f o r example,  women's  actually,  and  property  laws  perhaps,  unknowingly,  strands of l i b e r a l that  both  their  feminist  supporters  d i s c o u r s e on f a m i l y , conjunction the  w i t h more  British  against  local  Columbians the  in British  much  bill  contemporaries  selected  larger  central to  Columbia  was,  Anglo-American  and the law, t h a t i n  concerns, was i n s t r u m e n t a l i n  statute. framed  Consequently, the ways i n their  demonstrate  assumptions and c o n f l i c t i n g American  a  made gender  gender r e l a t i o n s ,  passage of the 1873  which or  of  "adopted  century,  thought" i n t h e i r arguments and  The debate  indicative  Basch  who supported  i n the n i n e t e e n t h  and opponents  arguments.17  therefore,  t h a t male l e g i s l a t o r s  and  arguments the  same  either for underlying  ideas h e l d by t h e i r B r i t i s h and  about  what  constituted  women's  proper sphere. 16. shanley, Feminism. Marriage and the Law. 3, 67, 189. In the case of American f e m i n i s t s Basch and Salmon l i n k emphasis on i n d i v i d u a l i s m t o J a c k s o n i a n democracy and r e p u b l i c a n i s m . Basch, In the Eyes of the Law. 39. Salmon, M a r r i e d Women's P r o p e r t y . 193. l^.  Basch, The Emerging H i s t o r y . 103-105.  49  One  of the l e a d i n g c h a r a c t e r i s t i c s  c e n t u r y debate  of the n i n e t e e n t h  over women's i s s u e s was the i n c o n s i s t e n c y of  the views presented by v a r i o u s i n d i v i d u a l s  and groups.  In  f a c t , a c c o r d i n g t o the authors of one study, the d i v e r s e and conflicting  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 f e m i n i s t or anti-feminist positions very d i f f i c u l t . We can speak more a c c u r a t e l y not of p o s i t i o n s but of a s e t o f competing, though not mutually e x c l u s i v e , myths or models f o r women's p l a c e i n s o c i e t y . C o n t r o v e r s i a l i s t s used these myths t o argue f o r opposing s o l u t i o n s t o contemporary problems.18 In  terms  these take  of the debate  conflicting a stance  beliefs.  ideas  seemingly  Thus,  over  married  about  women's p r o p e r t y law,  women  o f t e n enabled  a t odds with t h e i r  i t was t h a t  two prominent  men t o  wider  political  British  Columbian  l i b e r a l reformers, the then Premier, Amor De Cosmos, and the later  premier,  John  Robson,  sides  of the p o l i t i c a l  found  fence  themselves  i n relation  on o p p o s i t e  t o the M a r r i e d  Women's P r o p e r t y A c t . Despite strikingly world  different  and what  governed The  their  their  broad  reform  opinions legal  by the l i b e r a l  about  rights  principles  sympathies, women's should  held  place  i n the  be i n a  society  of p r o g r e s s and reform.  M a r r i e d Women's P r o p e r t y A c t was one of s e v e r a l  18. H e l s i n g e r , E l i z a b e t h K. e t a l . , XIV.  they  pieces  The Woman Q u e s t i o n  50 of  reform  legislation  government.  His  progressive  was  about  sense.  he  about  under  the  marital property Robson,  ideas about marriage  concerned  subjects,  ideas  i n that  conservative  introduced  b e l i e v e d t h a t those  Cosmos  reform  were  i n c o n t r a s t , had  more  and  protecting  De  family.  men's  Although  rights  same men  as  he  British  would p r o t e c t and  r e p r e s e n t t h e i r wives and c h i l d r e n 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 certain  i n the past De Cosmos and Robson had agreed  political  Confederation, different 1873  issues,  i t i s not  personal  statute.  bill.  In t h i s sense,  a very  to  the  fear  other  active  any  about  circumstances editors. Daily  on  their  disagreed  very  about  repercussions  the  from  hand, was  married,  a devout  Methodist  Therefore,  i t is  background a l s o c o l o u r e d h i s  legislation.  Aside  from t h e i r  personal  De Cosmos and Robson were a l s o j o u r n a l i s t s  They v o i c e d t h e i r  editor,  of and  the  he viewed i t somewhat d i s p a s s i o n a t e l y .  member of h i s church.  the  Standard,  sometime  that, given  they  personal  conceivable that his r e l i g i o u s opinions  particularly  De Cosmos, a bachelor and a f r e e t h i n k e r , had  reason  and  surprising  circumstances,  little  Robson, on  most  on  which The  views De  in rival  Cosmos  Daily B r i t i s h  was  and  newspapers,  The  part  and  owner  C o l o n i s t , f o r whom  51 Robson was women's  editor.I  rights  themselves presented  made  staunch their  No  9  doubt,  lively liberals  the c o n t r o v e r s i a l  copy. and  Yet  both  friends  of  arguments i n the l e g i s l a t u r e  i s s u e of  considered reform,  and  and  the p r e s s  accordingly. Premier progressive  Amor  De  bill,  Cosmos  one  quite  mandate of h i s government. been passed changing  i n other  attitudes  legislation. liberalism's individual.  in  keeping  towards  emphasis  new on  with  Not o n l y had s i m i l a r  jurisdictions,  These  1873  c o n s i d e r e d the  women  but  equality  the  a  reform  legislation reflected  called  found and  the  the b i l l  that  attitudes  statute  for  expression rights  For these reasons, the Premier argued  of  new in the  that  no liberal government could justly oppose t h i s B i l l , and he thought t h a t the change of s o c i e t y r e q u i r e d a new law. He was of the o p i n i o n t h a t the B i l l was almost the same as one recently brought b e f o r e the House i n O n t a r i o ; b i l l s of t h i s nature had been found to work most h a p p i l y : the g r e a t and w e l l known Stewart ( s i c ) M i l l had advocated the cause i n England and i t brought the women f o r whom the b i l l was intended as a safeguard, i n t o a f r e e r atmosphere, and prevented the w o r t h l e s s husband from c o n c e n t r a t i n g h i s thoughts on the s o l e object of money making from the r e s o u r c e s of h i s b e t t e r h a l f . 2 0  19. P a t r i c i a Roy, "John Robson", D i c t i o n a r y of Canadian Biography. V o l . XII 1891-1900. (Toronto: U n i v e r s i t y of Toronto P r e s s , 1 9 9 0 ) . K e i t h R a l s t o n and R.A.J. McDonald, "Amor De Cosmos", I b i d . 2 0  .  The D a i l y Standard. 15 January  1873.  52 Clearly, subject,  De Cosmos, i n f l u e n c e d by M i l l ' s  considered e x i s t i n g  property  t o be outmoded.  ideas on t h e  laws r e g a r d i n g married He  recognized  women's  "the change of  s o c i e t y " and although he c e r t a i n l y was n o t a f e m i n i s t t o the extent some  that  Mill  aspects  grounds,  was, he was n e v e r t h e l e s s  of the equal  and a l s o  Cosmos p e r c e i v e d married  as a p r o t e c t i v e measure  a need  De  f o r the b i l l .  Cosmos  observation,"22 irrelevant.  Those convinced  replied  making  his  The Premier  a necessary  quite  argument.21  on  who  and good  When Robson,  that  they  personal  b e l i e v e d simply  as a  came  the 1873  t h a t i t was a r a d i c a l ,  coverture,  piece  represented  whereby  marital that  bill's  status  the s t a t u t e  of  statute,  potentially  legislation.  however,  the man, as head  a direct  Their  most  outspoken  government  21.  Ibid.  22.  ibid  on f a m i l y  critic,  claimed  more  concept  of t h e household,  economic i n t e r e s t s r e p r e s e n t e d attack  were  dangerous and  the f a m i l y ' s i n t e r e s t s i n the p u b l i c world.  a l l o w women separate than  "from  reform.  opposed  unnecessary  less  these  f o r women, De  c o n s e r v a t i v e views were grounded i n the t r a d i t i o n a l of  to  man, asked him i f h i s ideas were based on p e r s o n a l  experience,  was  rights  sympathetic  unity. that  To  nothing  Robson, the t h e De Cosmos  53 proposed by the B i l l t o e s t a b l i s h two a u t h o r i t i e s i n the same household. I t h e l d up a s o r t o f premium t o the w i f e t o commit a c t s of i n s u b o r d i n a t i o n . I t might p r o p e r l y be e n t i t l e d an a c t t o promote and p r o t e c t bachelordom. He admitted there were instances where a wife r e q u i r e d p r o t e c t i o n . I t looked too much and savoured of "Women's R i g h t s . " This was calculated t o r e v o l u t i o n i z e 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 c o r p o r a t e  vision  of family l i f e , i n  which a w i f e ' s economic i n t e r e s t s were normally  looked  after  by her husband. Although  Robson supported  other measures i n t r o d u c e d t o  p r o t e c t women, i n p a r t i c u l a r an assurance J.F.  McCreight  and a  dower  bill  bill  i n t r o d u c e d by  put forward  by  Arthur  Bunster,24 the M a r r i e d Women's P r o p e r t y Act, he argued, went too  far.  In an e d i t o r a l  his  concerns,  i n The D a i l y C o l o n i s t , he v o i c e d  but a l s o emphasized  h i s firm  belief  in  the  p r i n c i p l e s of l i b e r a l i s m : We would not be understood as o b j e c t i n g to the l e g i s l a t i o n o f the p r e s e n t s e s s i o n as of too l i b e r a l a tendency; for we r e g a r d l i b e r a l i n s t i t u t i o n s as essential t o 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  .Ibid.  . The D a i l y B r i t i s h C o l o n i s t . 24 January 1873. In f a c t , i n a d d i t i o n t o the s e c t i o n i n the M a r r i e d Women's Property Act related t o insurance the M a r r i e d Women's Assurance A c t was passed i n c o n j u n c t i o n w i t h the 1873 M a r r i e d Women's P r o p e r t y A c t . S t a t u t e s . P r o v i n c e o f B r i t i s h Columbia. 36 V i c t . Ch. 117, 36 V i c t . Ch. 118. 2 4  54 gratification that we observe the l i b e r a l tendency of present legislation i n B r i t i s h Columbia. Any o b j e c t i o n s we may have f e l t i t t o be our duty t o r a i s e i n regard t o the Women's R i g h t s B i l l , were d i r e c t e d a g a i n s t the dangerous and revolutionary character, rather than against the liberality of i t s provisions.25 For  Robson, the idea of married women having s e p a r a t e l e g a l  and  economic  concept appeal to  of m a r i t a l  unity.  a d i r e c t threat  De Cosmos's  position  f o r Robson, who noted t h a t h i s o p i n i o n s  accuse  accusation  him of being  "illiberal  unfair.  with  views  their  conflicting  t o the held  no  had l e d some  and u n g a l l a n t , " 2 6  he thought was d e c i d e d l y  Along law,  i n t e r e s t s represented  on f a m i l y  a  n  and the  De Cosmos and Robson, as men of t h e i r time, were a l s o  influenced  by the more  subtle,  yet equally  powerful  ideas  t h a t V i c t o r i a n s h e l d about men, women and gender r e l a t i o n s . In attempting t o determine why male l e g i s l a t o r s would extend women's l e g a l r i g h t s without any popular p r e s s u r e and  despite  the r e d u c t i o n  t o do so,  i n male a u t h o r i t y and power which  t h i s step i m p l i e d , we must consider  V i c t o r i a n p a t e r n a l i s m as  i t r e l a t e d t o women and the law. In the  s t a t i n g an obvious  authors  observe based  that  but sometimes  of a r e c e n t  study  nineteenth  century  on contemporary  notions  25.  i b i d . 24 January  26.  ibid..  29 January  on gender laws  forgotten  point,  and p u b l i c p o l i c y  a f f e c t i n g women were  about women's dependence and  1873. 1873.  55  frailty  and men's r e s p o n s i b i l i t y  context,  men who enacted  oppressors  nor a c t i n g  t o p r o t e c t them.  In t h i s  and e n f o r c e d t h e law were n e i t h e r  solely  i n their  own s e l f  interest.  Instead the authors argue t h a t the dominant reason f o r sexd i f f e r e n t i a t i n g r u l e s was n e i t h e r s e l f i n t e r e s t nor animus towards women, b u t 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 h o n e s t l y seen as women's b e s t i n t e r e s t , o b l i g i n g women t o behave j u s t as they would have i f they had been f u l l y a b l e t o a p p r e c i a t e what was b e s t f o r them.27 In  retrospect,  reforms,  we a r e a b l e t o see the l i m i t a t i o n s  but, d e s p i t e t h e i r  differences,  of such  V i c t o r i a n men l i k e  Amor De Cosmos and John Robson b e l i e v e d they were p r o t e c t i n g women who had no p o l i t i c a l v o i c e themselves.  They may have  disagreed  women  about  the degree  of independence  should  have, but they both thought women deserved and were e n t i t l e d to the law's p r o t e c t i o n . Their which  they  socialized capable expected  beliefs,  no doubt,  were s o c i a l i z e d . as  wives  "Angels and  t o behave  concern themselves were expected  were  shaped  J u s t as V i c t o r i a n  of the House"  mothers,  by the ways i n  so  i n particular  t o be  women were p a s s i v e but  too V i c t o r i a n ways.  men  were  I f women were t o  with matters of home and h e a r t h , then men  t o p r o v i d e f o r and p r o t e c t t h a t home and i t s  2 . David L. K i r p , Mark G. Yudof, and Marlene Strong Franks, Gender J u s t i c e . (Chicago: U n i v e r s i t y of Chicago Press 1986), 30. 7  56 inhabitants.  Women's  considerable  to  behaviour  have  described  in  d e t a i l the c o n t r a s t i n g i d e a l s o f womanhood t h a t  characterized subject  historians  age.28  the V i c t o r i a n conflicting  and what  images  comprised  y e t both  and  their  ideas  sexes about  proper  place  were their  i n the  world. R e c e n t l y a few s c h o l a r s the  c u l t u r a l myths t h a t d e f i n e d  Rotundo,  f o r example,  masculinity by on  have turned t h e i r a t t e n t i o n t o  isolates  Achiever. dynamic,  their  sons  Fathers,  with  and e n t r e p r e n u r i a l ,  class  chivalrous most  he argues,  the v a l u e s  traits  capitalism.  a degree o f emotional a l o o f n e s s  middle  gender  ideals  often  of  concentrated  of the M a s c u l i n e  The i d e a l V i c t o r i a n man was t o be  demands of commercial and  three  Anthony  t h a t were encouraged by s o c i e t y , i n g e n e r a l , and  families i nparticular. imbuing  V i c t o r i a n manhood.  Victorian  man  was  well  progressive,  suited  Therefore,  self-reliance  was f o s t e r e d . also  a  t o the  The i d e a l  gentleman,  and compassionate q u a l i t i e s were i n s t i l l e d by mothers  who  emphasized  these  whose i n him  values.  The  C h r i s t i a n Gentleman was a devout man committed t o r e l i g i o u s p r i n c i p l e s , community and f a m i l y .  ° . See f o r example E l i z a b e t h H e l s i n g e r e t a l . , The Woman Question, who d e f i n e the four c u l t u r a l myths which dominated d i s c u s s i o n 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 M i t c h i n s o n , eds., The Proper Sphere: Woman's Place i n Canadian S o c i e t y . (Toronto: Oxford U n i v e r s i t y Press 2  1976) .  57  The  third  encouraged  physically  qualities in  predominated. for  b u t was popular  t h e adventurer,  independent,  strong  man as P r i m i t i v e , was not n e c e s s a r i l y  by f a m i l i e s ,  romanticized  The  ideal,  autonomy  the frontiersman  with  this  ideal  societies  was sometimes  one  cannot  and t h e i r claim  who was  manifested  but a l s o  a direct  as an  relation  culture and d e s i r e  unexpressed  Thus, men were imbued  conflicting  relationships  especially  male  The emphasis on male camaraderie  complementary,  themselves  were  where  h o s t i l i t y towards or f e a r o f women.29 with  It  s t r o n g , and unencumbered by f a m i l y .  associated frontier  nonetheless.  myths  w i t h women.  about  And w h i l e  between these  cultural  myths and the a c t i o n s of men and women, n e i t h e r can we deny the importance In that  of t h e i r  relation  these  very  influence.  t o the law, Michael Grossberg attitudes  account  points  out  f o r t h e p r o t e c t i v e and  29. E. Anthony Rotundo, "Learning about Manhood: Gender i d e a l s and t h e M i d d l e - c l a s s f a m i l y i n n i n e t e e n t h - c e n t u r y America", J.A.Mangan and James Walvin, eds., Manliness and M o r a l i t y : M i d d l e - c l a s s M a s c u l i n i t y i n B r i t a i n and North America 1800-1940. (Manchester: Manchester U n i v e r s i t y Press 1987), 35-51. Rotundo's d e f i n i t i o n o f a gender i d e a l i s u s e f u l . "A c l u s t e r of t r a i t s , behaviour and v a l u e s t h a t the members of s o c i e t y b e l i e v e a person should have as a woman or man. Seen i n a wider p e r s p e c t i v e , the gender i d e a l i s c l o s e l y r e l a t e d t o t h e broader v a l u e s of t h e c u l t u r e i n which i t develops - i t r e p r e s e n t s a s e r i e s o f c u l t u r a l c h o i c e s out of the v a s t range of q u a l i t i e s p o s s i b l e f o r a man or a woman." 35. F o r an overview of m a s c u l i n i t y i n f r o n t i e r New Zealand see, Jock P h i l l i p s , A Man's Country? The Image o f Pakeha Male - A H i s t o r y . (Auckland: Penguin Press 1987). David G. Pugh, Sons of L i b e r t y : The M a s c u l i n e Mind i n Nineteenth-Century America. (Westport: Greenwood Press 1983) .  58 paternalistic accordance  about  of domestic  law, as men, a c t i n g i n  w i t h the v a l u e s they were taught, made t h e s t a t e  responsible fathers  nature  f o r protecting  failed the  t o do so.30  1873  gender-related  bill  women j  real  husbands o r  B r i t i s h Columbia,  n  also  cultural  whose  reveals  myths  and  the the  discussion  strength  tensions  of they  sometimes r e i n f o r c e d between men and women. The Robson  attitudes were  and ideas  echoed  by  expressed  the p u b l i c  d i s c u s s i o n i n the l o c a l newspapers. The  Daily  Standard.  by De Cosmos and  in a  more  Editorially,  De Cosmos's paper,  general  of course,  supported  the b i l l ,  w h i l e Robson i n The D a i l y B r i t i s h C o l o n i s t , opposed i t . issue  also  struck  inspired  a chord  numerous  i n the p u b l i c  many of the p r e v a i l i n g ideas  about  should  women  be.  admirable  On  their  women  sinister, new  These l e t t e r s  and what  trustworthy  even  t o the e d i t o r  c u r r e n t s of thought  one hand,  of t h e i r  families.  mind.  and men,  and  irresponsible, advantage  letters  found  Men were  considered or  adversaries  ready  either  families.  Correspondents  with a decided f l a i r  reflect  either flighty, to  take  a t the expense of  noble  victims  a c t i o n s or d e s p i c a b l e s c o u n d r e l s , who f a i l e d their  i t  relationship  partners  freedoms  as  and c o n f l i c t i n g  their  were  The  presented  of  such  to provide f o r their  arguments  f o r the dramatic, e x p r e s s i n g outrage or  . Michael Grossberg, " C r o s s i n g the Boundaries: the Merging of Family and L e g a l H i s t o r y " , 809-815. 3 U  59 astonishment  a t the n a i v e t e of t h e i r f e l l o w w r i t e r s , as  they  p r e d i c t e d what the b i l l ' s e f f e c t would be. Several referring  of  the b i l l ' s  to the  companionate  ideals  marriage.  supporters  stated their  a s s o c i a t e d with One  such  case  the concept  writer  to  the  of  by the  Daily  Standard"A M a r r i e d Man," c r i t i c i z e d John Robson and h i s followers for their antiquated views on what the r e l a t i o n s h i p between husband and w i f e should be. In doing so, he a l l u d e d to the ways i n which c o n t r o l of money and p r o p e r t y w i t h i n the f a m i l y a f f e c t e d 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 o n l y t i e between man and wife i s the f a c t t h a t the law has placed the woman and her earnings completely i n the power of the man, and he abuses t h a t power, i f i t i s not r i g h t t h a t the L e g i s l a t u r e should p r o v i d e a remedy a g a i n s t such o p p r e s s i o n ; i t i s only to such persons as are unfortunately i n that p o s i t i o n , that this Act has any application. No household whose heads a c t u a t e d by the only true principles upon which matrimony is based and can be s u c c e s s f u l , w i l l dread the a p p l i c a t i o n of t h i s A c t . . . a l l t h i s nonsense about "sapping the foundations of w e l l ordered domestic l i f e , " i s pure buncombe. I t i s no doubt a t e r r o r to those who rule t h e i r households with a rod of i r o n and o p p r e s s i o n , but to the husband and w i f e , i n h e a r t as w e l l as i n name, i t has no dread.31 Here, then, were the sentiments marriage: 31.  a  relationship  The D a i l y Standard.  based 30  of the i d e a l on  January  equality, 1873.  Victorian shared  responsibility, The  writer  thereby  mutual r e s p e c t ,  emphasized  appealing  the p r o t e c t i v e  t o the c h i v a l r o u s  whose duty i t was t o p r o t e c t society.  For t h i s  women  nature nature  love.  of t h e b i l l , o f gentlemen,  the most v u l n e r a b l e  members o f  correspondent, g i v i n g married women more  c o n t r o l over t h e i r p r o p e r t y because  and most i m p o r t a n t l y ,  naturally  and earnings posed no  wanted  what  was  best  threat for their  f a m i l i e s as w e l l as themselves. One  of the few female correspondents a l s o adopted  theme and her l e t t e r hostility  between  i n d i c a t e d the u n d e r l y i n g  the sexes  that  sometimes  this  t e n s i o n s and existed.  In  p a r t , Sarah Jane wrote: I have c a r e f u l l y read a l l t h a t has been urged i n Parliament or w r i t t e n i n the papers a g a i n s t the passage of such a law, and i n every i n s t a n c e the w r i t e r or speaker seemed t o proceed upon the assumption t h a t women a r e not n a t u r a l l y as good or honest as men - t h a t they a r e inferior, and should be subordinateand t h a t a l l t h a t i s necessary t o e x c i t e i n them t h e m a n i f e s t a t i o n of t h e worse q u a l i t i e s , i s o p p o r t u n i t y . They seem t o take f o r granted t h a t men n a t u r a l l y l o v e t h e i r f a m i l i e s , and w i l l l a b o r f o r t h e i r w e l l being and happiness; but t h a t women have little or no love for their husbands and f a m i l i e s , and should they be entrusted w i t h power or p r o p e r t y , t h a t they would n e c e s s a r i l y use i t t o the i n j u r y of b o t h . . . . 3 2  She  went on t o p o i n t  fears law  about  out t h a t  t h e i r personal  because of a p r o v i s i o n 3 2  .  I b i d . . 3 February  some men had even  safety  should  i n i t enabling 1873.  this  expressed  bill  become  women t o i n s u r e  61 t h e i r husbands l i v e s . that  similar  effect,  laws  and t h a t  She r e a s s u r e d these " t i m i d  had been  passed  elsewhere  a l l o w i n g women such  gentlemen"  without  such  powers would not, as  she e x p l a i n e d s u c c i n c t l y develop every woman i n the P r o v i n c e i n t o a Madame Duplessis or Lucretia B o r g i a t h a t no man would dare marry, w i t h r i s k s t a r i n g him i n the f a c e t h a t h i s l i f e might be i n s u r e d by h i s b e t t e r half, and as a sequel he might be poisoned or have hot l e a d poured i n t o his e a r . 3 3  Overall, aspects  the supporters of the s t a t u t e of married  economic  power,  life  such  emphasized  as mutual  a t the same time,  trust  positive  and shared  a d d r e s s i n g the n e g a t i v e  attitudes  and d i s t r u s t  evident.  Sarah Jane addressed those f e a r s s q u a r e l y , and by  using gentle r i d i c u l e ,  between men and women t h a t was a l s o  c h a l l e n g e d the m a s c u l i n i t y of men who  vented such f e a r s about women. In less  contrast,  with  more w i t h  those who opposed the b i l l  the sentiments  of the e g a l i t a r i a n  the i m p l i c a t i o n s  husbands and wives.  were  concerned  marriage and  of s e p a r a t i n g the i n t e r e s t s of  They s t r e s s e d the d i r e consequences of  s h i f t i n g the balance of power between man and w i f e by g i v i n g women  greater  Several women  correspondents that  3 3  economic  .  Sarah  Ibid..  Jane  control  expressed alluded  3 February  1873.  over  family  the f e a r t o , while  resources.  and m i s t r u s t of others  voiced  62 religious writer  objections  predicted  themselves while  rather  "dressed  their  to the l e g i s l a t i o n . ominously t h a t  3 4  One  outraged  husbands would  find  i n threadbare coat and w e l l worn pants"  wives  would  be a b l e  extravagences of fashion."35  t o "indulge  i n a l l the  He warned t h a t  by c r e a t i n g two separate and d i s t i n c t purses, two powers a r e c r e a t e d where only one should e x i s t . . . i t tends i n every way to c r e a t e coldness, bad f e e l i n g , j e a l o u s y and d i s s e n s i o n i n t h e f a m i l y , where naught but l o v e and t r u s t should e x i s t , and w i l l u l t i m a t e l y r e s u l t in the d e s t r u c t i o n of the family compact...It would eventually divide scores of what otherwise would be u n i t e d f a m i l i e s , and prepare the way f o r the passage of a cheap and easy d i v o r c e law with a l l i t s attendant evils...36 According endure  to t h i s  correspondent,  i n the f a m i l y  i f there  love  and t r u s t  would  were no arguments  only  over the  family pursestrings. Nor  were men the only  ones who o b j e c t e d  In a response t o Sarah Jane, P a u l i n e whole  idea  of women's r i g h t s ,  Sarah Jane must be an unhappily  took e x c e p t i o n  expressing married  to the b i l l . t o the  the o p i n i o n  that  woman.  3^. See f o r example, The D a i l y B r i t i s h C o l o n i s t . 2 February 1873 i n which the w r i t e r makes r e f e r e n c e t o the r e l i g i o u s grounds f o r m a r i t a l u n i t y , c i t i n g concepts found i n the S c r i p t u r e s . 35.  The D a i l y Standard. 1 February•1873.  36.  ibid  Now, S i r , "Sarah Jane" may give p u b l i c i t y t o her b r i l l a n t i d e a s , but she cannot force me or any other r e s p e c t a b l e , m o r a l l y d i s p o s e d woman t o believe them. She may advocate t h e E x t r e m i t i e s of Women's R i g h t s w i t h a will, she may t r y t o c o r r u p t our a t p r e s e n t good s t a t e of s o c i e t y , but she w i l l not succeed - f o r I and o t h e r s w i l l wage war a g a i n s t a l l of her stamp u n t i l she and they a r e e f f e c t u a l l y s i l e n c e d . Women's Rights indeed! It is a l l f o o l e r y , f o r we have p l e n t y of r i g h t s now, and u n l i k e "Sarah Jane" a r e q u i t e contented. A l l good women i n the c i t y look upon the B i l l as extremely p r e n i c i o u s ( s i c ) and I can assure you, Mr. E d i t o r , t h a t i t i s as much as I can a t t e n d t o p r o p e r l y t o look a f t e r my home and family.37 In  this  instance,  the supporter  Property  A c t was  viewed  advocated  women's r i g h t s .  as m o r a l l y  content  t o remain  suspect  Women's  because she  P a u l i n e assured readers t h a t good  women d i d not want or need l e g a l were  of the M a r r i e d  or f i n a n c i a l  protected  autonomy and  i n the c o n f i n e s  of the  home. As and  these  letters  women's proper  r e v e a l , the c u l t u r a l  spheres  created  myths about men  conflicting  ideas and  a t t i t u d e s about V i c t o r i a n men and women, and s t r o n g about  the issue  which  thought  evoked  that  the b i l l ,  change f a m i l y l i f e . in who  both  parliamentary  favoured  37.  a powerful  response  f o r better  from  feelings a public  or worse,  would  The l i n e s of debate were c l e a r l y drawn and p u b l i c d i s c u s s i o n between  the measure  that  would  divide  The D a i l y B r i t i s h C o l o n i s t . 5 February  those  the economic  1873.  64 interests to  of husbands and wives as an a p p r o p r i a t e  changing  economic  and s o c i a l  conditions,  p r e f e r r e d women t o remain under c o v e r t u r e .  response  and those who  Their  respective  p o s i t i o n s 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  should  Property  the controversy  Act,  the b i l l  surrounding the M a r r i e d  along p r e d i c t a b l e p o l i t i c a l  reforms  undertaken  supported  the b i l l . 3 8  according  to  official  their  parties  voting  political  personal  William  the De  views  on  loose  on  and  attempted  uncertainty  as t o the a c t u a l  Robson  Colonist,  was  that  later  vote  to report  the motion  government,  seemed  t o vote  the matter.  Columbia  Upon i t s t h i r d  Smithe  t o many of the  Cosmos  as w e l l ,  i n British  based  alliances.39  1873,  Women's  John McCreight,  sympathetic  Others,  existed  was  by  lines.  reading,  t o have  eclectic on January  the b i l l  sent  There i s some  on Smithe's  amendment.  i n The D a i l y  f o r recommittal  No  a t the time,  somewhat  back t o committee f o r f u r t h e r c o n s i d e r a t i o n .  John  men  Nor was there any apparent d i v i s i o n over  example, who was not o v e r l y  liberal  24,  that  i t passed through the l e g i s l a t i v e process with  little difficulty.  and  by the i d e a  p r o t e c t women's i n t e r e s t s f o r them.  Despite  for  influenced  was  British carried,  38. S.W. Jackman, Portraits of the Premiers: An Informal History of B r i t i s h Columbia.(Sydney: Gray's P u b l i s h i n g Co. L t d . , 1969) 7-9. 39. J . Barman. The West beyond the West. Ormsby, B r i t i s h Columbia: A H i s t o r y . 241.  102-103.  65 sixteen was  to f i v e ,  put  forward  carried.40  of  "amidst  was  s i x t e e n to f i v e ,  with Robson,  assent  Robson's t o be  outside  best  placed  reading  confusion,"  shows  only  and  t h a t the  i n the n e g a t i v e . "  put forward  and Robinson, opposing.41 despite  record  "put and Resolved  motion was then  the t h i r d  considerable  The l e g i s l a t i v e  amendment original  and t h a t d e s p i t e t h i s ,  The  and c a r r i e d by a vote  Smithe, Holbrook,  Bunster  The M a r r i e d Women's P r o p e r t y Act,  efforts, on  had o n l y  the s t a t u t e  the l e g i s l a t u r e ,  to receive  books.  i t s opponents  royal  Meanwhile,  employed  one l a s t  s t r a t e g y t o stop the b i l l . On  29,  January  British  Colonist  Married  Women's  was  t o be sent  23,  1873,  combined  1873,  announced Property  measure.  The  small  that  Act,  a  "this  notice  received  of approximately petitions  objections voiced e a r l i e r .  450  presented  i n The D a i l y  petition  a g a i n s t the  Communistic  t o the L i e u t e n a n t - G o v e r n o r .  L t . Gov. T r u t c h total  a  measure,"  on  42  February  two p e t i t i o n s names,  with  a  denouncing the  many  of  the  same  The s t a t u t e was not necessary,  they s a i d , because the e x i s t i n g law a l r e a d y p r o v i d e d f o r the protection concerned  4 0  .  of about  deserted  wives.  the b i l l ' s  Furthermore,  impact  on  they  family  The D a i l y B r i t i s h C o l o n i s t . 29 January  life  were and  1873.  41. B.C. J o u r n a l s of the L e g i s l a t i v e Assembly. V o l 11, 1872-73. 24 January 1873. 4 2  .  The D a i l y B r i t i s h C o l o n i s t . 29 January  1873.  commercial they  interests  i n  the  province.  On  these  grounds,  argued t h a t the tendency of the proposed A c t by interfering in the sacred relationship existing between husband and w i f e w i l l be 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 , " That the Act discourages marriage. That the Act opens up new a v e n u e s for fraud, and w i l l thereby detrimentally affect commercial i n t e r e s t . 4 3  Shortly b i l l  after  claimed One  express  the that  i t  his  surprise  Furthermore,  and he  hoped  those  who  against  women  being  the  launched  legitimacy  to  did  an of  circulated,  at  his  having the  sign  that  equal on  as  name  of  rights  he  of  the  wrote  to  l i s t  of  signatures. Standard  they  Robert  petition  supporters  on  signed  ladies  so  allowed  the  Daily  seeing  that  attack  fraudulent  The  denied  of  Robson  was  contained  correspondent  petitioners  note  petition  the  the  V i c t o r i a  document. would  would  know  with  themselves."  Beaven  for  remarked  "who  take are 4 4  questioning  c a u s t i c a l l y :  His (Beaven's) i n s u l t i n g a l l u s i o n to the signers of the p e t i t i o n . . . proved how p o s i t i o n and "dignity" have converted a popular t a i l o r into a p o l i t i c a l goose. The hon. gentleman professes to have a n a l y z e d t h e p e t i t i o n and f o u n d names of only about 60 voters, while we are p r e p a r e d t o show t h a t t h e s i g n e r s of who v o t e i n V i c t o r i a number n e a r l y 200...The t r u t h i s Mr. Beaven's unexpected and i l l deserved e l e v a t i o n has turned h i s head. Time was t h a t when t h e b r a i n s were out t h e man w o u l d d i e ; a n d t h e r e was a n e n d  . GR  526  B.C.  Provincial Secretary's F i l e s 387,401.  .  The  Daily  4 3  BCARS  4 4  Standard.  12  Correspondence  February  1873.  Inward.  67 of him. The f a c t t h a t Mr. Beaven s t i l l l i v e s i s proof p o s i t i v e t h a t times have changed.45 We  do  not  know  i f Beaven's  neither  side  Despite  the f u r o r  late.  The  February promote  bill  21,  over had  1873.46  proof  to  already  been  For b e t t e r  the  law  in British  were  justify  the p e t i t i o n ,  Bachelordom" - the M a r r i e d  became courts  produced any  allegations  i t was,  given or  correct  their  claims.  i n f a c t , too  royal  worse,  assent  on  "the A c t to  Women's P r o p e r t y  Columbia.  as  Act -  I t remained to the  to i n t e r p r e t the s t a t u t e as they saw f i t .  45.  The D a i l y B r i t i s h C o l o n i s t .  46.  B.C.  Journals  1872-73. Feb. 21, 1873.  12 February 1873.  of the L e g i s l a t i v e Assembly. Vol.11  68 Chapter I I I : Women, P r o p e r t y 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 o b j e c t e d because  they  reassured was  feared  a domestic  by what they  i n place  Before  t o the M a r r i e d  judges  r e v o l u t i o n would  saw i n c o u r t .  seldom  have  been  Once t h e l e g i s l a t i o n  had o c c a s i o n  to r e f e r  to  i t .  1880 o n l y J u s t i c e John Hamilton Gray r e f e r r e d t o the  statute  at  concerns  length,  as  and he  expressed  had the l e g i s l a t o r s  vigorously.  The s t a t u t e ' s  their  husbands,  thereby  some  who  provisions  enable women t o assume a separate of  Women's P r o p e r t y A c t  legal  weakening  of  the same  had fought would,  i n theory,  identity  coverture,  from  of the law was e v i d e n t  in judicial  that  and g i v i n g  women l e g a l r e s p o n s i b i l i t y f o r t h e i r own c o n t r a c t s . paternalism  i t so  But the  views of the  s u b j e c t which remained e s s e n t i a l l y p r o t e c t i v e . Nineteenth reveal  century  several  litigation.  things  They  British about  provide  attitudes  towards  highlight  the l i m i t a t i o n s  the  litigation,  wives, statute.  fell  insight  and into  court  records  property-related judges  and f a m i l y  i d e a s and  life.  They  of s t a t u t o r y law i n t h a t some of  particularly  involving  the s h a r p l y  native  defined  common law  scope  of the  The r e c o r d s a l s o c o n f i r m t h a t orders of p r o t e c t i o n  were p r o b l e m a t i c , husbands  women  women, marriage  outside  Columbia  did  transactions.  and t h a t women i n a s s o c i a t i o n w i t h engage  in  suits  involving  their  commercial  F i n a l l y , d e s p i t e l e g i s l a t i v e i n t e n t t o extend  69 women's l e g a l autonomy, the c o u r t ' s narrow i n t e r p r e t a t i o n of the  statute  measure  ensured  because,  that  i t would  remain  i n the j u d i c i a l  mind,  a  protective  s e p a r a t i n g the  economic i n t e r e s t s of husband and w i f e was l i n k e d to  inevitably  m a r i t a l breakdown and d i v o r c e . P r o v i n c i a l c o u r t r e c o r d s , s p e c i f i c a l l y some t w e n t y - f i v e  volumes of judges' bench books f o r both civil  Supreme and County  c o u r t s from 1867 t o 1879, o f f e r us a window on the law  as women e x p e r i e n c e d i t . official useful  legal  Although they do not c o n s t i t u t e an  transcript,  t o the h i s t o r i a n .  particulars often  of a case  wrote  their  these  records  In them,  judges  and i t s outcome. own  prove  observations  extremely  r e c o r d e d the  In a d d i t i o n ,  they  and  for  reasons  judgement, p r o v i d i n g i n s i g h t i n t o t h e i r p e r s o n a l b e l i e f s and legal interpretations. us  t o hear  women's v o i c e s , f o r those who appeared  pages were not always judge  E q u a l l y important, bench books a l l o w  and t h e i r  silent.  Many of them addressed the  testimony was d u l y r e c o r d e d .  these volumes inform us not o n l y about of of  women and the law, but a l s o about women's  presence  lives  in civil  i n Victorian  related  the books  judicial a little  British  perceptions known aspect  Columbia,  their  with some r e g u l a r i t y b e f o r e the c o u r t i n  to property,  s t a t u t e was passed. on  Consequently,  court.  Women appeared matters  i n these  both  I t i s clear  and law as people  before  from  and a f t e r  the  the r e c o r d s t h a t law  experienced  i t were o f t e n  70 very the  different.  For some of the women who came t o c o u r t ,  M a r r i e d Women's P r o p e r t y A c t may have had l i t t l e meaning  because  their  marital  status  o u t s i d e i t s l e g a l parameters. argues, which  and p r o p e r t y  concerns l a y  In B r i t i s h Columbia,  the law f u n c t i o n e d as an a r b i t r a t o r lacked  the  communities.^  social  This  cohesion  was  of  certainly  in a  more  true  T i n a Loo society  established  of  commercial  l i t i g a t i o n , but i t was e q u a l l y a p p l i c a b l e i n matters to  the home.  As seen  through  the j u d i c i a l  eyes,  related domestic  l i f e on the west coast f r o n t i e r was a n y t h i n g but s t a b l e . is  apparent  from  the r e c o r d s  that  the most  It  disadvantaged  members of s o c i e t y o c c a s i o n a l l y d i d seek r e d r e s s through the legal  system.2  litigation  who  Not had  surprisingly,  neither  social  women standing  support, turned t o the c o u r t s , having l i t t l e process  but c o u r t Loo,  costs.  3  Although  involved  judges  nor  in  family  t o l o s e i n the d i d not r e c o r d  "Law and A u t h o r i t y i n B r i t i s h Columbia", 109.  2. See f o r example the 1871 case of Johns vs Munser and Barker i n v o l v i n g two p r o s t i t u t e s . C l a r a Johns sued E l l e n Munser and her b o y f r i e n d Stephen Barker i n a d i s p u t e over the p l a i n t i f f ' s c l o t h i n g and j e w e l l r y . B.C. County Court (Victoria) Pemberton Bench Book 1 8 7 0 - 7 1 , BCARS GR1727 Vol. 57. . Loo, "Law and A u t h o r i t y i n B r i t i s h Columbia", 1 2 1 125. Loo notes, f o r example, t h a t i n the p e r i o d from 1 8 5 8 1871, t h e average c o s t of county c o u r t a c t i o n s 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 c o u r t s a c t i o n s i n v o l v e d sums of l e s s than $50. She concludes that c o s t s were not p a r t i c u l a r l y prohibitive and t h a t p a r t i c u l a r l y i n the lower country where c o u r t s were more a c c e s s i b l e , 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. 3  71 ethnic  origin  with  any c o n s i s t e n c y ,  we  find  n a t i v e and  Chinese women as w e l l as one b l a c k woman i n the bench books. In  cases  involving  d i s p u t e s over  domestic  property, native  women, f o r example, were doubly disadvantaged, both by t h e i r ethnicity  and the l e g a l  vulnerability  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, white  common law marriage  marital the  s t a t u s was not always  issue  was  discussions officials  one t h a t  about  concerned  non-native  female  total  population.  as  church  white women t o emigrate,  that,  efforts,  p o p u l a t i o n i n the p r o v i n c e  remained  n a t i v e s , r o u g h l y h a l f of whom  made up approximately 4  Columbians,  d e s p i t e these  r e l a t i v e l y s m a l l , and i n 1871, were women, s t i l l  British  Certainly  i n the 1860's, when  t o encourage  Jean Barman notes  the q u e s t i o n of  e a s i l y determined.  n a t i v e wives  were t r y i n g  indicated. the  was not unusual,  where n a t i v e -  70 p e r c e n t of the  Faced with t h i s demographic r e a l i t y and  g i v e n the f a c t t h a t the i s s u e of mixed marriages engaged the Canadian  judiciary's  attention  d u r i n g these  years,5  i t  is  4. Barman, The West beyond the West. 130, 363. She notes t h a t even by the 1890's, t h e r e was o n l y one non-native female f o r every t h r e e males. 5. See Backhouse, P e t t i c o a t s and P r e j u d i c e . 7-20 i n which she d i s c u s s e s the C o n n o l l y case e x t e n s i v e l y . B r i e f l y , i t i n v o l v e d the common law marriage of a n a t i v e woman and a white f u r t r a d e r who subsequently married a white woman. The n a t i v e woman's son sued f o r i n h e r i t a n c e r i g h t s from h i s f a t h e r ' s e s t a t e . At i s s u e was whether or not the n a t i v e white common law marriage was v a l i d . The c o u r t s e v e n t u a l l y r u l e d t h a t i t was and r u l e d i n the son's f a v o u r . Backhouse notes t h a t t h e case r e c e i v e d wide p u b l i c a t t e n t i o n and was no doubt of i n t e r e s t i n B.C. because James Douglas' mixed b l o o d w i f e , Amelia, was one of the C o n n o l l y daughters.  72 noteworthy  that  provisions Thus  Columbia  legislators  i n c l u d e d no  f o r common law n a t i v e wives i n the 1873  the issue  separate  British  real  of what or  constituted  personal  a common  property  statute.  law w i f e ' s  might  become  a  p a r t i c u l a r l y contentious issue. Although the bench books do not d i s c u s s n a t i v e women i n d i r e c t r e l a t i o n t o the M a r r i e d Women's P r o p e r t y A c t , they do appear Their but  as common concerns  law wives  related  actions.  l a y o u t s i d e the framework of the 1873 a c t ,  a r e important  nonetheless  the p r o p e r t y concerns ranged  i n property  f a r beyond  because they  illustrate  of women i n f r o n t i e r B r i t i s h  the narrowly  that  Columbia  d e f i n e d p r o v i s i o n s of the  M a r r i e d Women's P r o p e r t y A c t . In  asserting  sometimes employed notions wives.  their  property  arguments  of r e s p e c t a b i l i t y  that  by  r a n counter  renouncing  judge,  Matthew B. Begbie  n a t i v e - w h i t e common law marriages  women,  native  relations the  their  s t a t u s as  of  British  revealed h i s ideas  about  and the nature of m a r i t a l  more g e n e r a l l y .  designation  women  to V i c t o r i a n  In responding t o one such c l a i m , a prominent  Columbian  property  claims,  F o r European  "Mrs."  denoted  Victorian a  certain  r e s p e c t a b i l i t y , and was probably used by many women who were n e i t h e r married nor widowed. society  i n Victoria  communities,  i n the  Matthew MacFie,  1860's, noted t h a t i n f r o n t i e r  i t was not a t a l l unusual  women t o misrepresent t h e i r  an observer of  social  f o r both  or m a r i t a l  men and  status,  for a  variety  of reasons.6  We  do not know  that married  status  meant t h e same f o r n a t i v e women as i t d i d f o r t h e i r  white  c o u n t e r p a r t s , or i f t h e i r w i l l i n g n e s s t o renounce i t merely reflects  the l e v e l  Margaret N e i l l , "Mrs."  when,  property  of t h e i r  desperation.  But,  certainly,  a mixed blood woman, r e j e c t e d t h e t i t l e of  i n 1871,  from him.  she sued  S.  Burt  I n her testimony,  to recover  she claimed  her  t h a t her  belongings were g i v e n t o Burt by her common-law husband, Mr. B l e e , f o l l o w i n g a domestic  d i s p u t e , and she s a i d , i n p a r t  I know a man named Blee, I l i v e d w i t h him f o r s i x y e a r s . I was not married t o him. I am a h a l f breed. . .A clock, a stove, and some spoons were taken away and they were my p r o p e r t y . . . I d i d not g i v e Blee p e r m i s s i o n t o remove a n y t h i n g from my house. I never t o l d you I was married.7 In  h i s defense,  Burt  payment of B l e e ' s debt plaintiff Mrs. Neill  argued  that  he  to him, adding  took  the goods i n  t h a t he had known the  f o r two years and t h a t she "represented h e r s e l f as  Blee."  T h i s being  the case,  he no doubt assumed t h a t  was B l e e ' s w i f e and t h a t Blee c o u l d d i s p o s e o f f a m i l y  property  as he wished.  have  way  no  of  The s u i t was l a t e r withdrawn so we  knowing  i f Margaret  p r o p e r t y , but the case suggests  Neill  regained  her  the l e g a l complications that  c o u l d r e s u l t from common-law r e l a t i o n s h i p s r e g a r d i n g women's  6.  MacFie, Vancouver I s l a n d and B r i t i s h Columbia.  395-  400. 7. B.C. County Court. ( V i c t o r i a ) Pemberton Bench Book, 1 8 7 0 - 7 1 . BCARS GR 1727 V o l . 57.  74 property.  For n a t i v e concubines, r e c o g n i t i o n as a w i f e d i d  not always work t o t h e i r Whereas  Neill  tried  renouncing her s t a t u s also  advantage. to reclaim  as w i f e , another  her p o s s e s s i o n s  n a t i v e woman, Mary,  c h a l l e n g e d the v e r y concept of V i c t o r i a n w i f e l y  when she sued  her deceased  by  duties  common law husband's e s t a t e f o r  the domestic s e r v i c e s she had p r o v i d e d f o r him. Judges were not unaware of the e t h n i c  and c u l t u r a l  differences  of the l i t i g a n t s who appeared b e f o r e them.  of some  In r e n d e r i n g h i s  d e c i s i o n , Judge Matthew B a i l l i e Begbie r e v e a l e d h i s views on n a t i v e - w h i t e common law marriage: Now i t i s of common knowledge t h a t these arrangements f o r concubinage w i t h I n d i a n women a r e c o n s i d e r e d by them not as immoral a t a l l , but as c o n s t i t u t i n g f r e e marriages: and a l l they expect t o r e c e i v e i s the o r d i n a r y treatment of a wife: they get food, shelter, protection, clothing, and any pocket money they can coax from their p r o t e c t o r . They do not s t i p u l a t e f o r wages, and i f they d i d , 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 p u r i t y of the pltff's conduct, according to Indian notions the more nearly you approximate her p o s i t i o n t o t h a t of a l e g i t i m a t e w i f e , the more you explode the n o t i o n of t h e r e b e i n g any c l a i m f o r wages, f o r which she can sue.° In  this  i n s t a n c e , Begbie  Mary's  common  worked  against  law marriage the p l a i n t i f f  acknowledged  t o Seater, who  but h i s d i s c u s s i o n  o b v i o u s l y was t r y i n g t o  . B.C. Supreme Court. V i c t o r i a . 1877-78. BCARS GR 1727 V o l . 730. 8  the v a l i d i t y of  Begbie  Bench  Book,  claim  monetary  estate.  Mary's  indicates engage  that  action  contracts  women  not r e l u c t a n t  were  to f i g h t  f o r what  t o them.  f o r wages  they  to  thought  Furthermore, t h e  was novel  and Begbie  the d i f f e r e n c e between labour and  the domestic  t o Begbie,  meant t h a t  been  t o come t o c o u r t  responsibilities  of  generally.  According wife  and  her common law husband's  willingness  belonged  compelled t o e x p l a i n  wives,  a  context,  Begbie  concubine afterwards crucial;  A  and servant, pondered  submit  t o be  normally considered wives  p o s i t i o n as  f o r wages  could  only  not husband and w i f e .  as a cook, a  only  The p o i n t  be f u l f i l l i n g  t o be her w i f e l y d u t i e s . for their  domestic  p o s s i b l e , nor even d e s i r a b l e , Begbie  as a  or go as a cook, and  concubine?"9  she would  exist  In t h i s  " d i d she go t o the deceased  acted  as the former,  Mary's  not sue f o r wages as i f she had  contract  who a l s o  compensating  recognizing  she c o u l d  servant.  between master  of  native  f o r compensation  marital  was  some  and r i g h t f u l l y  argument  from  and N e i l l ' s  in a civil  legally  felt  compensation  labour  argued:  In the p o s i t i o n of a w i f e , a woman naturally makes h e r s e l f u s e f u l in a household, f o r the b e n e f i t o f the establishment generally, n o t f o r the b e n e f i t o f the husband alone. She does the work, or superintends the work as p a r t of the f u n c t i o n s of the m i s t r e s s o f the household. Among the l a b o u r i n g p a r t of the p o p u l a t i o n , the w i f e i t i s t r u e  was what  The i d e a was n o t  76  may be regarded as the servant, and the o n l y servant i n the establishment, i t i s a common remark, t h a t a poor man, not being a b l e to o f f e r wages, married i n order to get a servant. But the w i f e i s not the husbands' servant, so as to e n t i t l e her to sue f o r wages.10 Begbie's remarks underscored and  women's  labour was As  role  and  ideas about marriage  responsibility  as  wives.  Domestic  not work but a labour of l o v e .  women's  acknowledge  h i s t o r i a n s observe,  household  performed such tasks when  Victorian  marriages,  labour  as  society's  work  i n an economically  f o r whatever  reasons,  placed  refusal  to  women  who  vulnerable p o s i t i o n dissolved.H  Women  l i k e Mary p a i d a heavy p r i c e f o r the s e n t i m e n t a l i t y a t t a c h e d to female labour i n the home which p l a c e d no monetary on  such  upon  a  services.  Not  man's e s t a t e  attempted one  legally entitled  as  a  l a s t strategy.  l e g i t i m a t e wife  of  k i n , reserved  or  same claims widow,  Mary  In t h i s i n s t a n c e , she may  have  been s u c c e s s f u l to some degree. next  to the  value  Begbie, n o t i n g t h e r e was  d e c i s i o n , so  t h a t he  could  speak  no to  IQ.Ibid. 11. See f o r example, Basch, In the Eyes of the Law. 222, i n which she p o i n t s 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 d e s e r t e d wives "who brought no separate e s t a t e to marriage and c r e a t e d none d u r i n g coverture, and whose l i f e l o n g s e r v i c e s to husband and f a m i l y continued to be regarded by the law as p a r t of the husband's m a r i t a l r i g h t s . The v a l u e of those s e r v i c e s c o n s t i t u t e d the o n l y c o n c e i v a b l e a s s e t s they c o u l d have owned. Only some k i n d of p r o p e r t y system t h a t made the w i f e a f u l l l e g a l and f i n a n c i a l p a r t n e r i n the a s s e t s of the marriage c o u l d have b e n e f i t t e d them. The dominant c u l t u r e , however, never viewed a l l of the w i f e ' s v i t a l s e r v i c e s as work, and n e i t h e r d i d the law."  77 the  A t t o r n e y - G e n e r a l about  paid  for  wives  her  work  sometimes  themselves legally  similar  emphasized  husbands women  statutory  their and  family  capacity  their  as  stability.  married  could  their  separate  spouses,  but  1873,  obtain  in  women an  few  to  to  provide  for  them.  came  suffered  be  common-law  abandoned  of  statute  who  orders vs.  if  of  the  But  under  no  less  orders  the  was  the under  is  is  life  to  this  of and not  those  resulting  their  on  this  them their Prior could  belongings. in in  Strong  British the  1873  is  any  litigation  surprising that  instructive  of  husbands  requirement vs.  of  legal  deserted  registered  Balden  the  possible.  their  secure  were  evidence  circumstances.  from  always  from  involving  witnessed  husbands  not  ever  confusion  little  interests  removed  it  often  apart  case  disputes  saw  whose  economic this  of  women's  protection  provoked, Strong  they  women  Legislators  indicator  judges  lived  of  these  and  arbitrators  from  reality  order  Columbia.  Balden  or  sometimes  Instead,  Theoretically,  such  trying  technically  property,  arising  But  who  efforts  difficulties  in  died  law  complications  to  the  Mary's  2  circumstances.  In women  when  of  case.I  experienced  married  provision  her  they  point  did  because  that so. it  . In h i s biography of Begbie, David W i l l i a m s suggests that the Intestate Estates Act, 1877 was later amended to include provisions for "concubines and illegitimate children" as a result of Begbie's influence. David R. Williams, T h e Man f o r a New C o u n t r y : S i r Matthew Baillie Begbie. ( 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. 1  2  78 illustrates  the weakness  of  r e q u i r e d women t o g e t orders For  Catherine  V i c t o r i a ' s black of  domestic  Balden  the l e g a l  o f p r o t e c t i o n upon and her husband,  community, p r o p e r t y  strife  issue  their  o f what  storekeeper,  neighbours  belonged  her  She  against  1865  t o 1878,  I n 1870,  house."13 became cared  of attempted arson  occasions,  f o r t r y i n g to  saying  however  that  "I have  him though he has t r e a t e d me p r e t t y  hard."  about the  of the house. I was determined not t o g i v e up the j  n  1872,  while  i l l and l a t e r  Balden l e f t  Balden was i n p r i s o n ,  died.  During  her i l l n e s s ,  she  was  them her few belongings - a g o l d watch and  as repayment f o r t h e i r Strongs  Catherine  Before her death,  a few p i e c e s of f u r n i t u r e , and two trunks  The  upon t h e  she was s l e e p i n g i n i t . A t  f o r by her f r i e n d s , the Strongs.  chain,  a  Mr. Balden, a  f u r t h e r s t a t e d t h a t "we have had many d i s p u t e s  possession  Mrs.  From  point  she t e s t i f i e d t h a t Balden had p h y s i c a l l y a s s a u l t e d  on s e v e r a l  nothing  r e s i d e n t s of  and f r i e n d s , c e n t r e d  burn down h i s wife's house while his t r i a l  separation.  i n v o l v i n g the Baldens and,  t o whom.  was c o n v i c t e d  that  became the f o c a l  and v i o l e n c e .  s e r i e s o f s u i t s and c o u n t e r s u i t s eventually,  procedure  of c l o t h e s  kindness.  took the goods and, i n 1874,  successfully  sued Balden f o r expenses i n c u r r e d i n c a r i n g f o r and b u r y i n g h i s wife.  Balden l a t e r appealed the d e c i s i o n , c l a i m i n g  . B.C. Supreme Court, Notes o f Proceedings BCARS C/AB/30 N6. 30-54. 1 3  that  1870-71,  79 because they  h i s w i f e had  p a r t e d i n 1865,  first  debts.  o b t a i n e d an he  A c c o r d i n g to Begbie,  order  was  of p r o t e c t i o n  not  when  r e s p o n s i b l e f o r her  the c r u c i a l  p o i n t of law upon  which the case r e v o l v e d was whether or not such an order had been i s s u e d and p r o p e r l y r e g i s t e r e d i n the Supreme Court.14 Balden  and  the  Strongs  then  became embroiled  in a  l e g a l b a t t l e over C a t h e r i n e ' s p r o p e r t y and over for  debts  suits  paid  need  on her b e h a l f .  not  concern  us  The  here,  details  but  the  weakness of a cumbersome l e g a l procedure gulf  between s t a t u t e  there  i s no  the Balden about  the  case,  and  evidence  that  the  Legislators  k i n d of  Strong e n t a i l e d .  rich  in  situations, verify  they  that  commercial  the  and h i g h l i g h t s  the  generally  recognized  the  extensive l i t i g a t i o n  records as are  prior  life  exposed  of  those  concerned  to  1873,  of the p r o v i n c e .  of  Balden  vs.  f o r an order of  cases  with  were  Either  are  more  nonetheless  women  advantage  reform.  commercial  instructive  Although  considered a  that  Removing the requirement  the  detail  case  they would have known  p r o t e c t i o n seemed an a p p r o p r i a t e l e g a l Although  of the v a r i o u s  l e g i s l a t o r s were aware of  i t i s probable t h a t  case.  compensation  i t s implementation.  circumstances of what was  notorious avoiding  direct  law  lengthy  not  personal  because  active  as  in  they the  as s m a l l b u s i n e s s  14. B.C. Supreme Court ( V i c t o r i a ) Begbie Bench Book, 1873. BCARS GR 1727 V o l . 729. See a l s o B.C. County Court ( V i c t o r i a ) Pemberton Bench Book, 1871-74. BCARS GR 1727 Vol. 58.  80 o p e r a t o r s or as consumers, women sued and were sued i n c i v i l c o u r t . T h e i r presence i n c i v i l  court p r i o r  t o the passage of  the M a r r i e d Women's P r o p e r t y A c t suggests t h a t women d i d not hesitate  t o engage i n l i t i g a t i o n  justifiably  anxious  responsibilities and  procedures  1871,  reveals  goods.  Some  process  quite  to  and t h a t delineate  i n s t a t u t o r y law. books  actions  women  appear  regularly  their  A brief  f o r the Cariboo  many  legislators  t o have  as a means  legal  survey o f p l a i n t  district  involving  board, used  1862-  from  wages, and  the  to c o l l e c t  litigation debt.  example, Malvina Toy, the C l i n t o n innkeeper mentioned  she appeared  Between 1863  defendant. Cariboo  innkeeper,  Various  other  litigation, their settle  e i g h t times as a p l a i n t i f f  sued  women  were  times also  and was involved  appearing two or t h r e e times.15  own b u s i n e s s e s , then, disputes.  were w i l l i n g  i n the  and twice as a  and 1865 C a t h e r i n e Lawless, seven  For  From 1866 t o  p r e v i o u s chapter, o f t e n took o t h e r s t o c o u r t . 1869  were  another  sued  twice.  in  similar  women who r a n  t o go t o c o u r t t o  We do not know how independent  most of  these women were f i n a n c i a l l y , but a c c o r d i n g t o J u s t i c e E.M. Sanders, women  Toy r a n a  felt  Although utilized  entitled  they  may  substantial t o approach have  business.  the c o u r t s  had l i m i t e d  t h a t which they had.  Evidently,  legal  such  f o r redress.  capacity,  they  In Toy's case, f o r 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 V o l s . 568, 569, 572,  584.  81 challenge  t o her  right  t o independent  legal  a c t i o n d i d not  prevent her from p u r s u i n g the same course a g a i n . The  records  also  indicate  about spousal l i a b i l i t y sued  legislators'  concerns  were w e l l founded, as women who were  as consumers o f goods or s e r v i c e s , e s p e c i a l l y p r i o r t o  1873,  often  sometimes  were  often  brought  wives p r i o r Mr.  co-litigants  were n o t named  women appeared  sued  that  with  their  husbands and  a t a l l i n the action.  Although  on t h e i r own i n some i n s t a n c e s , husbands were to court i n r e l a t i o n  t o marriage.  For  t o a debt  owed by t h e i r  i n s t a n c e , i n 1872,  Woodhaus and h i s w i f e , the former  Sam Chong  Lucy Smith,  for  the  $5.50 she owed him f o r laundry s e r v i c e s he p r o v i d e d f o r  her  prior  the  plaintiff  from  t o her  marriage.  claimed  him b e f o r e  Mrs.  In Spencer vs.  Snow had borrowed  she married.  s t o r e owners, took  Snow and w i f e ,  Mansell  the former  five  & Holroyd,  furniture  Emily M o r r i s and her  husband,  Mr.  Farr,  she  was s i n g l e . 16  won  t h e i r case and husbands had to pay the c o s t s i n v o l v e d . It  t o c o u r t over f u r n i t u r e Mrs.  dollars  j  n  i s significant  disappeared  from  each  of these  that, after  the bench books.  F a r r had bought when cases,  1873,  the  plaintiffs  co-litigant  T h i s i s not  cases  t o say t h a t  they no longer occured, but the M a r r i e d Women's P r o p e r t y Act seems t o have d i m i n i s h e d husbands' l i a b i l i t y  under  c i r c u m s t a n c e s . L e g i s l a t o r s who supported the b i l l  1°. B.C. County Court (Victoria), Books, 1871-76. BCARS GR 1727 V o l . 58.  certain  had  argued  Pemberton  Bench  82 that and  the b i l l ' s  p r o v i s i o n s would c l a r i f y  spousal  liability  t h a t i t would b e n e f i t husbands by making them no l o n g e r  responsible marriage. have  contracted  The bench books suggest  been  after  f o r debts  an e f f e c t i v e  the b i l l  deterrent  was i n t r o d u c e d .  their  wives  such  was the f i r s t  link  between  separate  and f o r J u s t i c e Gray, a t  most  concerned  step towards d i v o r c e .  property  suits  But the i s s u e of married  the a c t of s e p a r a t i n g a husband and w i f e ' s  interests  before  t h a t t h i s p r o v i s i o n may to launching  businesswomen remained p r o b l e m a t i c least,  by  and marriage  Gray when a case  touching  economic  I t was t h i s  breakdown t h a t  upon  the M a r r i e d  Women's P r o p e r t y A c t was heard b e f o r e him i n 1877. A f t e r the 1873 impact  was  instances cases, of  minimal. i n which  was passed The bench  i n the l e g i s l a t u r e , i t s ' books  i t was c o n s i d e r e d .  record  only  In two of  three these  J u s t i c e Gray p r e s i d e d , and he c a r e f u l l y r e c o r d e d a l l  h i s deliberations,  first on  bill  court o f f i c i a l  the s t a t u t e  ramifications,  because he was aware t h a t he was the t o invoke  reflect  the s t a t u t e . ^  h i s concerns  about  H i s comments its'  legal  but they a l s o r e v e a l h i s ideas and a t t i t u d e s  about  domestic  relations,  unity  and d i v o r c e .  women,  The cases  the d o c t r i n e  of m a r i t a l  which drew Gray's a t t e n t i o n  One case appears i n Crease's Bench Book, but he does not p r o v i d e 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 V o l . 695. F o r Gray's d i s c u s s i o n see B.C. Supreme Court ( V i c t o r i a ) Gray Bench Book, 1875. GR 1727 V o l . 769.  83 regarding  the M a r r i e d  Women's P r o p e r t y  A c t i n v o l v e d women  running small b u s i n e s s e s . The in  1877,  marriage  first  litigants,  prompting  Gray  i n Chinese  both Chinese, t o ponder  culture.  appeared  b e f o r e him  briefly  the meaning of  He determined  that regardless  of what t h a t s t a t u s i m p l i e d i n China,  the woman r e s i d e d i n  Canada and so came under the p r o v i s i o n s o f p r o v i n c i a l it  a p p l i e d t o married women.  law as  In Wah Fung v s . Loy You,  plaintiff  claimed  t h a t the defendent,  Victoria,  owed him money f o r r e n t .  the  who r a n a laundry i n  The l e g a l p o i n t then t o  be d e c i d e d was whether Loy You made the c o n t r a c t i n r e l a t i o n to  her own separate  business  or as a w i f e  acting  husband's r e p r e s e n t a t i v e f o r the b e n e f i t o f both.  as her  According  to Gray: The mere f a c t of her c a r r y i n g 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 c o n t r a c t t h a t would render her husband l i a b l e - and f o r which she h e r s e l f would not be l i a b l e . I t i s not t o be assumed t h a t e v e r y t h i n g she does i s f o r her separate b u s i n e s s . To b r i n g the case w i t h i n the S t a t u t e - t h a t f a c t must be distinctly alleged or prima facie proved. Looseness i n a f f i d a v i t s o r l e g a l proceedings affords facilities for fraud. 1 8  . B.C. Supreme Court ( V i c t o r i a ) Gray Bench Book, 1875. GR 1727, V o l . 769. Gray was n o t alone i n f o c u s s i n g upon the l e g a l p o i n t of whether or n o t a woman engaged i n a c o n t r a c t as p a r t of her separate b u s i n e s s or as a w i f e . Constance Backhouse notes t h a t i n O n t a r i o , judges d i d the same. Backhouse, "Married Women's P r o p e r t y Law", 238. 1 8  84 In  the second  plaintiff  sued  case,  i n 1878,  Cranoelli  Snow, a married woman, who r a n a b u s i n e s s a t  Naas R i v e r and whose husband purchased on  v s . Snow, the  her b e h a l f .  Because  goods from  the p l a i n t i f f  Cranoelli  had p r e v i o u s l y sued  the husband, Gray r u l e d t h a t t h i s i m p l i e d t h a t the p l a i n t i f f acknowledged t h a t the husband, not the w i f e , was l i a b l e f o r the  debt.  Although  benefitted run,  the women  i n both  instances,  involved,  such  Gray's  rulings,  were d e t r i m e n t a l t o women engaged  decisions  i n the long  i n business.19  Few  merchants would be w i l l i n g t o c o n t r a c t w i t h married women i f it  meant  having  t o determine  first  whether  the woman was  l e g a l l y e n t i t l e d t o do so. Gray chose t o understand as  a  protective  potential rights.  measure,  i t had t o g i v e  and apply  the s t a t u t e s o l e l y  and i n doing women  more  so  autonomous  any  property  In h i s view, even i f l e g i s l a t o r s meant the b i l l t o  achieve  this  disturbed  end, i t should  by the b i l l ' s  n o t . Gray  potential  was  t o erode  On t h e one hand, he was aware of the b i l l ' s would  ignored  enable  interests.  married  women  But he argued  the  s t a t u t e would  and  y e t remain  particularly  marital unity. provisions that  to a c t i n t h e i r  own economic  t h a t these e g a l i t a r i a n elements o f  encourage  financially  women t o behave unaccountable.  irresponsibly  Gray  complained  t h a t under the M a r r i e d Women's P r o p e r t y A c t :  I . 9  Backhouse," M a r r i e d Women's P r o p e r t y Law", 226-227.  85 There i s h a r d l y anything the w i f e cannot do She may carry on business s e p a r a t e l y from her husband - perhaps with h i s r i v a l i n t r a d e - or g r e a t e s t enemy - j o i n i n c o r p o r a t e d Companies or Associations - speculate - gamble i n stocks - run up debts - sue and be sued civilly and c r i m i n a l l y - become the Manager of a Bank or a L i v e r y S t a b l e - spend her money i n p r o f l i g a c y and folly and when i t i s a l l goner e q u i r e her husband to support her.20 Furthermore, Gray, l i k e John Robson and thought was  that  the  therefore  narrowest  legislation  determined  terms,  not  business  transactions,  liability  under  Gray  reasoned  as  to  encourage  It  steps  aid  her  apply  the  encourage  but  only  under  to  coverture,  t h a t the S t a t u t e divergent  i n to s h i e l d  her  them  from  Citing  common  law,  woman  i n t e r e s t s between man  could  construed and  wife-  been wronged or  s e p a r a t i o n of the economic i n t e r e s t s of husband and wife  was  incomprehensible except i n cases of marriage breakdown,  and  Scholars strength efforts  1875.  of of  the some  20. GR  1727  21.  ibid.  22. America,  of  B.C.  benefit."21  to any  framed h i s o p i n i o n  f o r her  its  protect  a married  has  in  he  independent  "must not be so  where she  and  For Gray,  he  when i t would be  statute  women's  c e r t a i n circumstances.  that  not c o n t r a c t , and  would encourage f r a u d ,  to  to  his followers,  accordingly.  women's l e g a l doctrine  of  legislators  Supreme Court. Vol. 769.  Salmon .Women and 193. Backhouse,  to  h i s t o r y have emphasized  the  marital  the  unity  challenge  it.22  ( V i c t o r i a ) Gray  the Law "Married  despite For Bench  most Book,  of P r o p e r t y i n E a r l y Women's Property Law",  86 nineteenth the  century  concept  remain  Canadians,  o f married  l i n k e d with  divorce.  Gray  separate  could  property  only  interests  envision  derelict  for their  the s t a t u t e  i n their  families.  "remedial  being  duties  useful  t h a t the 1873  was  - where  the d u t i e s  departed  from and d i s r e g a r d e d by the Husband."23  Similarly, duties  and intended  women  who  to protect  outside  t o a c t as independent  suspect.  the woman  o f the marriage  stepped  have  been  the realm  economic  The common law, a c c o r d i n g  when  as p r o v i d e r s and  He r e i t e r a t e d  and o b j e c t s  could not  between husband and w i f e .  statute  also  would  o f s e p a r a t i o n and  t o them as the norm, simply  divergent  were  protectors  wifely  included,  Both men and women, a c c u l t u r a t e d t o view t h e r i g i d  such  husbands  women's  Columbians  the t r o u b l i n g i s s u e s  gender r o l e s a s s i g n e d imagine  British  agents  of were  t o Gray was q u i t e  adequate t o p r o t e c t the p r o p e r t y r i g h t s o f the married woman "whose P u r i t y and v i r t u e ensure t o t h e i r refinement, her."24  possessor  Civilization  will  always  command r e s p e c t  the esteem and p o s i t i o n t o which and  Christianity  have  A woman who engaged i n commerce s o l e l y  behaviour  thought a p p r o p r i a t e f o r those whose marriages were  boundaries  of  Thus both husbands and wives were t o s e t i n d i v i d u a l  . B.C. Supreme Court. GR 1727, V o l . 769.  2 : 5  24.  the  f o r her own  gain  1875.  transgressed  elevated  economic  intact.  clearly  - and  ibid.  (Victoria)  Gray  Bench  Book,  87 interests law,  a s i d e t o work f o r the b e n e f i t o f the f a m i l y .  having encoded p r e s c r i p t i v e behaviour  f o r both  sexes by  d e f i n i n g p a t t e r n s of ownership, r e i n f o r c e d i d e a l i z e d roles  that,  as we have  seen,  d i d n o t always  The  gender  accord  with  reality. In Gray's mind the M a r r i e d Women's P r o p e r t y Act, interpreted than  narrowly  a precursor  exercise  as a p r o t e c t i v e measure, was no l e s s  to divorce.  the r i g h t s  unless  given  I f women  were  allowed t o  them under the s t a t u t e , husbands  should be e n t i t l e d t o some l e g a l remedy.  In one sense, Gray  was  perhaps more p r o g r e s s i v e than some of h i s c o l l e a g u e s f o r  he  b e l i e v e d t h a t d i v o r c e , though u n d e s i r a b l e , was sometimes  necessary. and  Despite  idealized  the r h e t o r i c t h a t e x t o l l e d married  the r e l a t i o n s h i p  between  husband  and w i f e ,  o f t e n marriages d i d go wrong - i t s p a r t n e r s trapped in  what  J u s t i c e Gray  affections expressed Divorce  called  - of buried  hopes  "the c h a r n e l - of b u r i e d  of B u r i e d  Honor."25  and Matrimonial  He  Causes A c t of 1857 i n r e l a t i o n t o a i n 1877.  The q u e s t i o n  as t o whether p r o v i n c i a l c o u r t s had j u r i s d i c t i o n  divorce. had  legally  h i s o p i n i o n on the matter i n a d i s c u s s i o n o f t h e  d i v o r c e case b e f o r e the Supreme Court arose  House  life  Matthew Begbie had argued t h a t o n l y B r i t i s h  over  courts  such powers.26  25. B.C. Supreme Court. 1875. BCARS GR 1727 V o l . 769.  ( V i c t o r i a ) Gray's Bench Book,  26. Ibid. For f u l l details of t h e case see t h e erroneously named case Sharpe v s . Sharpe (1877), B.C. Review. 25, 247-273.  88 Gray d i s a g r e e d  and i n doing  impact  so r e f e r r e d  the  potential  of the M a r r i e d  The  passage of the s t a t u t e r e p r e s e n t e d  new phase of domestic be  law.  a t length to  Women's P r o p e r t y A c t . the b e g i n n i n g  Marriage  was now c o n s i d e r e d t o  a c o n t r a c t and had t o be viewed  "not i n the l i g h t of  sentiment  - but i n the l i g h t of modern l e g i s l a t i o n . " 2 7  believed  that  access  both  wives  to divorce.  statute,  and husbands  I f , under  should  have  Gray equal  the p r o v i s i o n s of the 1873  a woman acted i n her own economic i n t e r e s t s t o the  detriment In  of a  of her husband, then he was e n t i t l e d  discussing  the q u e s t i o n  of  local  to a divorce.  jurisdiction  over  d i v o r c e , Gray r u l e d t h a t : When England passed the A c t of 1857 i t intended t h a t both man and woman should h e n c e f o r t h h o l d t h e i r matrimonial s t a t u s by law - not by the favor or a c c i d e n t of a Parliamentary majority. British Columbia i n adopting the E n g l i s h law intended the same - and I cannot see t h a t i t i s j u s t i c e t o the i n h a b i t a n t s of t h i s Country t o apply t o them the worse p a r t of the law - and d e p r i v e them of the best - I know of nothing - t h a t would be more ruinous t o the peace of families - or tend more t o s o c i a l degradation than the belief t h a t . . . there i s i n this Country no remedy...28 Obviously,  i n Gray's  Act represented travesty  that  27.  ibid  28.  ibid  opinion  the M a r r i e d  Women's  Property  the 'worst p a r t of the law.'; a l e g i s l a t i v e should  never  have  been  passed.  While  he  89 believed  that  married  women were  entitled  to the court's  p r o t e c t i o n , he d i d n o t wish t o encourage female autonomy. Consequently, represented its  family By  a judicial  potential,  protective that  linking  Divorce Property  Gray's r u l i n g s based on the 1873 s t a t u t e  the a c t became  domestic  legislation  was c h a r a c t e r i s t i c the two p i e c e s  and M a t r i m o n i a l Act,  acknowledge  compromise.  Gray  Instead  another  of f u l f i l l i n g  extension  affecting  o f the  women  and the  of the n i n e t e e n t h  century.  of domestic  legislation:  the  Causes A c t and the M a r r i e d Women's  demonstrated  women's separate  the c o u r t ' s  rights,  c l i n g t o the d o c t r i n e of m a r i t a l u n i t y .  reluctance to  and i t s tendency t o  90 Conclusion Women British bodies of  in  legal  colonial tradition  British  Columbia  of m a r i t a l  i n h e r i t e d the  property  based  of j u r i s p r u d e n c e , common law and e q u i t y .  equity  was not r e a d i l y  on two  But t h e law  a v a i l a b l e t o most women and the  l i m i t a t i o n s of common law were even more apparent i n the new world  than  device  the o l d .  Marriage  for settling  separate  common, nor were they feminists  pointed  property late  was  property  irreversible.  a  traditional  upon women were not  As B r i t i s h and American  out, such agreements were o n l y a v a i l a b l e  to the wealthy and d i d l i t t l e Legislation  settlements,  a  means  and earnings  nineteenth  t o p r o t e c t the average woman.  to protect  a l l women's  and as a r e s u l t ,  century,  property  during acts  separate  the mid and  were  adopted  throughout the Anglo-North American world. Both  f e m i n i s t and f a m i l y h i s t o r i a n s have examined the  i s s u e of these have  done  historians century  married  so from  women's p r o p e r t y  very  different  have emphasized  feminists  played  perspectives.  the a c t i v e r o l e i n bringing  whereas f a m i l y h i s t o r i a n s have focused status rights.  within  the f a m i l y  A major  problem  laws, although  to explain  about  that  Women's nineteenth  legal  change,  on women's i n c r e a s e d their  f o r women's l e g a l  expanded  legal  h i s t o r i a n s has  been t o e x p l a i n the passage of such laws i n areas f e m i n i s t presence e x i s t e d .  they  where no  91 1873  The  Married  Columbia was passed as  a  case  study  historical thought over  to explore  was apparent  legislators' clarify  women's  this  Although  Act  in  a  question  from  a  family  the i n f l u e n c e of f e m i n i s t  feminist  agenda  Instead, t h e i r motives  legal  British  and has served  i n t h e p a r l i a m e n t a r y and p u b l i c  meeting  goal.  Property  under such circumstances  perspective.  the b i l l ,  Women's  responsibilities  was  debate  never  the  were t w o f o l d : t o  i n the commercial  world, and t o grant them a h i g h e r l e g a l s t a t u s i n accordance with  their  family  marriage. the  1873  law d o c t r i n e  1862  statute  greater  i n the companionate  Victorian  In doing so, reform-minded l e g i s l a t o r s c h a l l e n g e d  common  earlier  position  of m a r i t a l  law which d e a l t had  t o grant  l e g a l and economic autonomy.  Consequently,  U n l i k e the  o n l y with d e s e r t e d wives, the  the p o t e n t i a l  a l i m i t e d way because judges  unity.  married  women  But i t d i d so o n l y i n  interpreted  i t conservatively.  p r o p e r t y law a f f e c t i n g married women remained  d i s t i n c t l y p a t e r n a l , grounded i n V i c t o r i a n gender r e l a t i o n s ,  f a m i l y , and men's r o l e  i d e a s about law, as p r o t e c t o r s and  providers. The  1873  statute represented  an a t t a c k  on t h e l e g a l  d o c t r i n e of c o v e r t u r e , and d i s c u s s i o n focused on t h e b i l l ' s potential  impact  i n the marketplace  l i n e s of debate were c l e a r l y drawn. l e g i s l a t i o n thought and  raise  the b i l l  women's l e g a l  and i n the home.  The  Those who supported the  would c l a r i f y spousal  status to a l e v e l  liability  more a p p r o p r i a t e  92 with  t h e i r p o s i t i o n as wives  however, destroy  argued  that  marital  and  breakdown.  and mothers.  the s t a t u t e family  Two aspects  would  unity,  I t s opponents, encourage  and l e a d  of the proposed  to  fraud, marital  legislation  c e n t r a l : the removal of the order of p r o t e c t i o n c l a u s e simplified  legal  confusion  about  procedures  spousal  transactions.  But  implications  of the b i l l  domestic  and  relationships  involving  concerns also  and  which  the e l i m i n a t i o n  liability  the  were  about  extended control  of  commercial  the  economic  t o i t s impact on over  the  family  pursestrings. The by  1873 s t a t u t e was one of s e v e r a l reforms  Amor De Cosmos's l i b e r a l  those who b e l i e v e d and  reform  opposition and  part,  indicated.  from  their  perceptions  marriage  The d i f f e r e n c e s  were echoed  Robson  sense  no doubt  their  religious conflicting  views  De Cosmos,  in a  debate  more  on the  a l t h o u g h no  the e g a l i t a r i a n  Their  Robson's  stemmed, i n  and  and t h e i r  believed  of f a m i l y .  i n the p u b l i c  women, d i s c u s s e d  to  John  between De Cosmos's  revealed  relations  sympathetic  as  circumstances  of the p e r i o d .  whereas  hierarchical  on the b i l l  i t also  of gender  was  measure,  personal  But  "woman q u e s t i o n " feminist,  the  positions  convictions.  Y e t not a l l  i n the importance of l i b e r a l i n s t i t u t i o n s  supported  Robson's  reform government.  introduced  ideal  of  traditional,  respective  positions  as men, and o c c a s i o n a l l y  the r e l a t i v e m e r i t s of the b i l l .  Much of  93 the  discussion  focused  upon  women's  rights,  and the  p o t e n t i a l impact on marriage and f a m i l y l i f e of d i v i d i n g the family's  economic  supporters  interests.  But although  and opponents d i s a g r e e d  the s t a t u t e ' s  as t o how much l e g a l and  economic autonomy women should have, no one d i s p u t e d women's e n t i t l e m e n t t o the law's p r o t e c t i o n . Contemporary and the  responsibilities statute.  socialized  about  that  sexes  men,  underlay  as  well  gender  d i s c u s s i o n of  as  r e i n f o r c e d gender  roles  women,  ideals.  were Women  as dependent, f r a g i l e c r e a t u r e s , uncomfortable  t h e world  o u t s i d e the home.  expected t o be more w o r l d l y obligation  the r e s p e c t i v e  of both  Victorian  i n ways  were regarded in  ideas  to provide  Men, on the other hand, were  and were deemed t o bear a moral  f o r and p r o t e c t t h e i r  families.  When  husbands f a i l e d t o p r o t e c t t h e i r wives t h i s moral o b l i g a t i o n extended t o the law. temporarily  T h i s all-encompassing  threatened  Women's P r o p e r t y  by  the p r o v i s i o n s  p a t e r n a l i s m was of the M a r r i e d  A c t which might have allowed  married  more c o n t r o l over t h e i r own economic r e s o u r c e s . judicial  decisions,  traditional  active  that,  century despite  concerns.  t o engage  British  their  i n the commercial  hesitate  courts  reinforced  But through the  law's  paternalism.  Nineteenth reveal  the  women  life  smaller  court  numbers,  of the p r o v i n c e  in litigation  Some of the cases  Columbia  regarding  records  women  were  and d i d not  their  property  i n d i c a t e the l i m i t a t i o n s of  94  statutory scope.  law i n d e a l i n g with This  those  was p a r t i c u l a r l y  who f e l l  true  outside i t s '  f o r native  common law  wives whose p r o p e r t y r i g h t s were i l l - d e f i n d o r n o n - e x i s t e n t . It  i s significant  for  these  that  legislators  i n c l u d e d no p r o v i s i o n s  women i n a p r o v i n c e where such  unusual,  and n a t i v e  population.  women r e p r e s e n t e d  The Balden  case  statute.  liability after  The sources  the i s s u e  problematic. indicated  The  economic  cases  that  interests  Gray's  small  that,  while  businesswomen  came  before  of husbands  and  decisions  businesses  relationship  holding  l e g a l requirements i n  suggest  of married  that  spousal  diminished remained  Justice  Gray  and wives  or a  liability.  Justice  the  the problems  the c o u r t s ' r e l u c t a n c e t o acknowledge e i t h e r the  separate  operated  also  were not  of the female  r e g a r d i n g wives debts p r i o r t o marriage  1873,  wife's  most  illustrates  c o u l d a r i s e from embedding complicated a  liasions  involving  revealed  between  female  the p o s s i b l e  married  judicial  concerns  independence  dissolution  women who about  i n property-  of marriage.  By  f o c u s s i n g on the i s s u e of what c o n s t i t u t e d a married women's "separate'  property,  egalitarian  aspects  interpreted  the b i l l  otherwise,  he  Gray of  effectively  the 1873  nullified  statute.  reasoned,  be r e s p o n s i b l e  Instead,  s o l e l y as a p r o t e c t i v e measure. would  be  t o encourage  economic i n t e r e s t s between husband and w i f e . to  the more  for their  own economic  he  To do  divergent  A l l o w i n g women resources  would  95 enable  them  t o behave  suffer  the l e g a l  irresponsibly,  consequences.  Gray  Women's P r o p e r t y A c t i n d i r e c t Matrimonal  Causes  the  nineteenth within  relatively  the M a r r i e d  local  access  to  l e g i s l a t u r e was g o i n g  bill.  small  century B r i t i s h  would  t o the D i v o r c e and  that  i f the p r o v i n c i a l  to enact s t a t u t e s l i k e the 1873 Given  viewed  relation  A c t , and argued  d i v o r c e must e x i s t  and husbands  number  Columbia  of  who would  women  have  in  fallen  the scope of the M a r r i e d Women's P r o p e r t y A c t , i t i s  not s u r p r i s i n g t h a t i t was seldom used.  But t h i s made i t no  less  important t o the l e g i s l a t o r s who enacted i t ,  Gray  who i n t e r p r e t e d  s t a t u t o r y law, Gray  it.  In d i s c u s s i n g  nor Judge  the importance of  observed  The a p p l i c a t i o n or n o n - a p p l i c a t i o n of a s t a t u t e or any p a r t i c u l a r p a r t of i t does n o t r e s t upon the view or o p i n i o n of any one person - but upon the wants and n e c e s s i t i e s of the community - nor does i t depend upon the frequency or common nature of the s u b j e c t l e g i s l a t e d upon - I t 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  legislators concern was  the community's needs t h a t engaged  and the j u d i c i a r y .  f o r family  stability  They  over  t h i s o b j e c t i v e t h a t remained Thus,  represented  individual  an o v e r r i d i n g rights  Women's  Property Act  I t had the p o t e n t i a l  !. B.C. Supreme Court. Book. BCARS GR 1727 V o l . 769.  and i t  foremost i n t h e i r minds.  i n the end the M a r r i e d a compromise.  shared  both  (Victoria)  1875.  to allow  Gray  Bench  96 married also of  women g r e a t e r  implied greater many,  such  Victorian  an  British  legal  and economic autonomy, but t h i s  responsibility. outcome  was  Columbians,  C l e a r l y , i n the minds  not d e s i r a b l e . feminist  F o r most  thought  may  have  sparked debate over women's r o l e and s t a t u s i n s o c i e t y , but they  could  wives The  not conceive  acted  as independent  legal  i n which husbands and  and economic  entitities.  d o c t r i n e of m a r i t a l u n i t y which j o i n e d husband and w i f e  economically this  of a world  first  Columbian the next  and l e g a l l y , legislative  suffragists attack.  as w e l l  assault. a t the t u r n  as e m o t i o n a l l y , I t remained  survived  for British  of the century  t o mount  97 Bibliography  Newspapers. 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