Manipulating marriage and money-making

Mary Bennett Prize winner Catherine Bishop recaps her prize-winning research on female economic agency at a time when married women’s financial dealings were subject to their husbands’ control.

In 1844, recent New Zealand immigrant Charles Crawford was somewhat astounded to be fined £50 for selling spirits without a licence at a coffee shop in Nelson, NZ – at a time when he was on the other side of the country in Akaroa, near Christchurch.

Charles was fined, but it was his wife, Sarah, who ran the coffee shop in Nelson, who had apparently committed the offence. Charles Crawford was understandably perplexed at being held accountable. He wrote to the Nelson Examiner in protest, suggesting that while he accepted that he was ‘responsible for the conduct of his wife’, his being 200 miles away made that responsibility rather hard to enforce.

He wrote that those who had wives would know ‘to what extent that controlling would be – since some of them could not control their wife and remain in the house at home’. In his defence he claimed that his ‘desire that nothing unlawful should be transacted’ while he was away was proven by his ‘earnestly requesting one of the police force to call at my house every day’ during his absence. (Of course, one might also interpret that as him being very suspicious of his wife’s probable behaviour!)

Under the law of coverture, Charles Crawford was responsible for the actions of his wife. Across the Tasman in New South Wales, a similar state of affairs prevailed. Thus it was Alexander Spiers who was summoned in the 1860s to the New South Wales insolvency court, even though his wife ran the millinery and dressmaking business that had run into difficulties. Under the law of coverture he was responsible for his wife’s debts and her business legally belonged to him.

cover image reducedThe law of coverture ensured that ‘by marriage, the husband and wife are one person in law, and that one is the husband.’ Husbands were deemed responsible for the maintenance of their wives, and controlled any property or income that their wives owned. Married women became femmes covert rather than femmes soles.

A married woman could conduct a business, but only as the agent of her husband. Any contracts she entered into, she did so on his behalf; any debts she contracted were actually his. If someone sued her, they sued her in conjunction with her husband. Therefore, her husband had ultimate control over any of her business dealings, and if he withdrew his support for her undertaking, any contracts she entered into were void. And if a husband went into debt, his creditors could turn to his wife’s business profits for satisfaction.

However, in spite of these legal restrictions, married women were clearly present in the business world. Many operated businesses apparently independently of their husbands: they advertised in newspapers, ordered supplies from creditors, and took on apprentices; they paid bills, collected debts, and were visible behind shop counters and bars, albeit with the knowledge that coverture could disrupt their business lives at any time.

For many women, perhaps somewhat ironically, it was marriage that enabled them to start a business, their husbands providing the necessary capital or perhaps a shared business premises. Problems arose if a husband was absent, become insolvent, or drank or gambled the profits of his wife’s business. This was when businesswomen found their conjugal status became an inconvenient obstacle in their business lives.

My article, ‘When Your Money Is Not Your Own: Coverture and Married Women in Business in Colonial New South Wales’, describes the ways in which businesswomen (and their lawyers) negotiated the law of coverture in New South Wales in the middle of the nineteenth century. Judges, courts and legislators also had a role to play – with judges often showing what legal historian Bruce Kercher has described as a ‘flexible’ approach to the adaptation of English laws to the specific situation in the New South Wales colony. As Kercher has shown, the presence of convicts, many under attaint, complicated the situation, with some convicts’ wives enjoying a more privileged legal status than the wives of free men.

As the century progressed, legislators in New South Wales, as in England and other Australasian colonies, attempted to ameliorate the problems facing deserted wives. Women whose husbands disappeared to the gold fields, to other women or who just disappeared, were particularly disadvantaged by the law of coverture. If they did manage to start a business and earn money, their husbands or their husbands’ creditors could turn up at any time and claim it. The only way to avoid this was to have a Deed of Separation, to which the deserting husband had to agree.

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View of Phillip Street, 1872. Image via State Library of New South Wales.

Elizabeth Cummins was one of the few women who managed this in 1843 so that she could continue to run the Lemon Tree Hotel in Phillip Street when her husband decided to decamp to Valparaíso, Chile. Without this, she would have been unable to renew the hotel licence in her own name. While widows were often granted publicans’ licences, married women were not – and when widows remarried the licences were transferred to their new husbands. This decision was, like so many others, based in the law of coverture.

Mrs Robertson took extreme steps to avoid this in 1855. She had immigrated to Sydney with Mr. Robertson, an unsatisfactory husband who was described in court as a ‘drunken dissipated fellow who became insolvent’. Mrs Robertson had established a successful dairying business and happily paid her husband’s one-way fare to California. Unfortunately, he later returned, along with creditors who made claim to eleven cows and some furniture, which she said she had bought with her own money.

Under the law of coverture, this claim of it being her ‘own money’ carried no weight; as a married woman her property was her husband’s. In order to prove that she was indeed a feme sole (not subject to coverture), she claimed that her marriage to Mr Robertson was invalid, as she had committed bigamy, being already the wife of a Mr Marshall in England.

Her credibility was questioned somewhat when it was revealed that she had represented herself as Robertson’s legal wife in a previous case, when she had been sued for wages by an employee. In this case, a plea of coverture had worked in her favor because as a married woman she could not be sued in her own name. Nevertheless, in 1855 her somewhat extreme strategy against Mr Robertson worked: she retained her property and apparently also avoided prosecution for bigamy. However, Judge Alfred Stephen ‘commented in very strong terms on the immorality of the plaintiff’s conduct’.

Few took such extreme measures as Mrs Robertson, and in 1858 New South Wales amended existing Deserted Wives legislation to allow a wife to be treated as a femme sole in her business dealings – so long as she had been deserted by her husband or had been forced to leave her husband through fear of physical danger, and did not co-habit with him again. Moreover, she could apply for this status without her husband’s cooperation.

More a move to avoid such women and their children becoming a burden on society, rather than a feminist action in the name of women’s rights, this law allowed businesswomen to support their families. Many separated women took advantage of this new legislation, and the seeds of change were sown. It is apparent from the examples of Charles Crawford and Alexander Spiers that the law of coverture was not a one-way street – and those such as Mrs Robinson worked hard to manipulate it.

Eventually, it seems, the potential impediment to successful business that coverture represented was deemed unacceptable. Finally, in 1879 the first New South Wales Married Women’s Property Act allowed some property rights to women who had not been deserted but were living in connubial bliss with their husbands. A succession of amendments meant that married women in business could be treated as femmes sole by the end of the century. Even then, licensing boards remained reluctant to give hotel licences to married women … but that is another story.

 

Screen Shot 2016-08-21 at 6.50.23 PMDr Catherine Bishop is the Historical Studies Research Concentration Coordinator at the Australian Catholic University. In 2015 her book Minding Her Own Business: Colonial Businesswomen in Sydney was published by NewSouth. In 2016 she was awarded the Mary Bennett Prize by the Australian Women’s History Network for her article on coverture and nineteenth-century businesswomen, published in the Law and History Review. Catherine is currently writing a book about colonial businesswomen in New Zealand as well as a biography of controversial Australian female missionary, Annie Lock. Other ongoing research projects include an investigation of the International Federation of Business and Professional Women and the development of twentieth-century professional women’s networks; and the history and influence of the World Youth Forums held in the post-war period.

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