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Mrs. Mayne and Her Boxing Kangaroo: A Married Woman Tests Her Property Rights in Colonial New South Wales

Published online by Cambridge University Press:  28 October 2011

Hilary Golder  and
Diane Kirkby
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Extract

In 1891, in the Supreme Court of New South Wales, Mrs. Olivia Mayne brought an action for breach of contract against two brothers, theatrical entrepreneurs, James and Charles MacMahon. Mrs. Mayne claimed the MacMahon brothers owed her money for the hire of her property, a boxing kangaroo called “Fighting Jack.” The MacMahons contested her claim, hoping to avoid their obligation by disputing the legally binding nature of the agreement they had made with her. The argument became one about the contractual capacity of a married woman.

Type
Forum: The “New” Australian Legal History
Information
Law and History Review , Volume 21 , Issue 3 , Fall 2003 , pp. 585 - 606
Copyright
Copyright © the American Society for Legal History, Inc. 2003

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References

1. Basch, Norma, In the Eyes of the Law: Women, Marriage and Property in Nineteenth-Century New York (Ithaca: Cornell University Press, 1982)Google Scholar; Chused, Richard, “Married Women's Property Law, 1800–1850,” Georgetown Law Journal 71 (June 1983): 1359–1424Google Scholar; Constance Backhouse, “Married Women's Property Law in Nineteenth-Century Canada,” Law and History Review 6 (Fall 1988): 211–57CrossRefGoogle Scholar; Holcombe, Lee, Wives and Property: Reform of the Married Women's Property Law in Nineteenth-Century England (Oxford: Martin, 1983)Google Scholar; Bradbury, Bettina, “From Civil Death to Separate Property: Changes in the Legal Rights of Married Women in Nineteenth-Century New Zealand,” New Zealand Journal of History 29 (April 1995): 40–66Google Scholar; Chambers, Lori, Married Women and Property Law in Victorian Ontario (Toronto: Osgoode Society and University of Toronto Press, 1997)CrossRefGoogle Scholar; Girard, Philip, “Married Women's Property, Chancery Abolition, and Insolvency Law: Law Reform in Nova Scotia, 1820–1867,” in Essays in the History of Canadian Law, vol. 3, Nova Scotia, ed. Girard, Philip and Phillips, Jim (Toronto: University of Toronto Press for the Osgoode Society, 1990), 80–127, at 84.CrossRefGoogle Scholar

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4. A point made particularly by Canadian and New Zealand scholars; see, e.g., Girard, “Married Women's Property, Chancery Abolition, and Insolvency Law”; Backhouse, “Married Women's Property Law”; and Bradbury, “From Civil Death to Separate Property.”

5. Chused, Richard, “Late Nineteenth-Century Married Women's Property Law: Reception of the Early Married Women's Property Acts by Courts and Legislatures,” American Journal of Legal History 29 (1985): 3–55CrossRefGoogle Scholar; Backhouse, “Married Women's Property Law,” 223.

6. Discussed in Shammas, “Re-assessing Married Women's Property.”

7. See particularly Rabkin, Peggy, From Fathers to Daughters: The Legal Foundation of Female Emancipation (Westport, Conn.: Greenwood Press, 1980)Google Scholar; Chused, “Married Women's Property Law”; and Basch, Eyes of the Law, for arguments that reform was for reasons other than that of justice to women; Clarkson, Christopher, “Property Law and Family Regulation in Pacific British North America, 1862–1873,” Histoire Sociale-Social History 30 (November 1997): 386–416Google Scholar, puts a similar argument; but Shammas, “Re-assessing Married Women's Property,” challenges the idea that reform was unimportant to women's economic status and activity. Feminist scholars have long debated the benefits of “equality” arguments.

8. Shammas, “Re-assessing Married Women's Property,” 9.

9. Backhouse, “Married Women's Property Law,” 231.

10. For a discussion about the importance of “respectability” to women's economic success in Australia, see Kirkby, Diane, Barmaids: A History of Women's Work in Pubs (Cambridge: Cambridge University Press, 1991).Google Scholar

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12. Judge's Notes, Mayne v. MacMahon, 5343/91, Supreme Court New South Wales, Civil Jurisdiction Process Papers (hereafter SCNSW, CJPP) SRNSW ref:19/15387, 2–3.

13. Backhouse, “Married Women's Property Law,” 227.

14. Newcastle Morning Herald, 3 November 1891.

15. Ibid.

16. Judge's Notes, Mayne v. MacMahon, SCNSW, CJPP (SRNSW ref: 19/15387), 1, 7.

17. Thornton, Margaret, “The Cartography of Public and Private,” in Public and Private: Feminist Legal Debates, ed. Thornton, Margaret (Melbourne: Oxford University Press, 1995), 10.Google Scholar

18. Deposition of J. MacMahon, File 4997, SCNSW, CJPP (SRNSW ref: 10/22789).

19. Table Talk, 26 March 1891.

20. Judge's Notes, Mayne v. MacMahon, SCNSW, CJPP (SRNSW ref: 19/15387), 3.

21. Ibid, 2.

22. Ibid, 4–5.

23. Campbell, Deborah, “A Doll's House: The Colonial Response,” in Nellie Melba, Ginger Meggs and Friends: Essays in Australian Cultural History, ed. Dermody, Susan, Docker, John, Modjeska, Drusilla (Melbourne: Kibble Books, 1982), 192–210.Google Scholar

24. Judge's Notes, Mayne v. MacMahon, 5346/91, SCNSW, CJPP (SRNSW ref: 19/ 15387), 4.

25. Deposition of J. MacMahon, File 4997, SCNSW, Bankruptcy Files (SRNSW ref: 10/ 22789).

26. Ibid, 4.

27. Ibid, 8.

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29. Hartog, Hendrik, Man and Wife in America: A History (Cambridge: Harvard University Press, 2000), 125, 127.Google Scholar

30. Karskens, The Rocks.

31. Kercher, Bruce, An Unruly Child: A History of Law in Australia (Sydney: Allen and Unwin, 1995), 50.Google Scholar

32. E.g., John Stonham (wheelwright) and Susan Stonham (fancy goods dealer) listed in Maitland, , Sands Country Directory, NSW, 1884–85 (Sydney: Sands and Co., 1884), 182.Google Scholar They married in 1857.

33. Karskens, The Rocks.

34. Exparte Kennedy (1892), 13 NSWR 211 at 214.

35. Marriage settlements were a device perfected by English equity lawyers in the seventeenth century. The mission of the equity system, as it had developed alongside the common law, was to “correct the omissions and injustices” of that law. Married women, or at least their property, were obvious candidates for equity's protection. The first marriage settlements thus allowed wealthy fathers to settle “separate property” on their marrying daughters and nominate trustees to manage it on their behalf. Such settlements were enforceable in equity courts and overrode a husband's common law rights. See Holcombe, Wives, 37; see also ibid., chap. 2, for a summary of equity and married women, and Staves, Susan, Married Women's Separate Property in England, 1660–1833 (Cambridge: Harvard University Press, 1990).CrossRefGoogle Scholar Gradual adoption of a more flexible approach by English equity judges meant English precedents allowed nineteenth-century Australian judges to admit married women's agency within developing colonial economies. Divorce and bankruptcy records reveal written settlements in the families of small businessmen, farmers, and professionals, although the number of wives protected by such formal arrangements was always small. See Kemp, R. E., The Law of Real Property in New South Wales (Sydney: Law Book Co., 1903).Google Scholar

36. See, for example, Smith v. Hope (1883), 14 VLR 217–31.

37. Burton and Wife v. Cook (1884), 5 NSWR (L).

38. Backhouse, Married Women's Property, 230.

39. Arnold, quoted in Holcombe, Wives, 179. For the 1870 Act see ibid., chap. 8 and Shanley, Mary Lyndon, Feminism, Marriage and the Law in Victorian England (Princeton: Princeton University Press, 1989), chap. 2.Google Scholar

40. E.g., Westbury, Hansard (UK), series 3, vol. 210, 606–7.

41. Mayne v. McMahon, SCNSW, CJPP (SRNSW REF: 19/15387), at 102; Howard v. Bank of England (1875), 19 LR (eq) 297, at 300–301.

42. Windeyer letter, Sydney Morning Herald, January 1879.

43. Mayne v. McMahon, at 102; Howard v. Bank of England at 300.

44. McMahon proof of debt, file 4997, SCNSW, Bankruptcy Files, SRNSW ref: 10/22780.

45. Howard v. Bank of England, at 301.

46. Windeyer, “Parliament,” Sydney Morning Herald, 8 December 1871.

47. Davidoff, Leonore and Hall, Catherine, Family Fortunes: Men and Women of the English Middle Class, 1789–1850 (London: Routledge, 1992), 229–71, 277–89.Google Scholar

48. Sydney Morning Herald, 6 May 1892.

49. Mayne v. MacMahon, at 103.

50. Backhouse, Married Women's Property, 231, 241; Bradbury also points out that the New Zealand Act of 1884 “virtually duplicated” the English one. See “From Civil Death to Separate Property,” 56.

51. Sydney Morning Herald, 6 May 1892.

52. Mr. Mayne did divorce his wife for desertion in 1898. See “Law Report,” Argus (Melbourne), 28 February 1899.

53. Pateman, Carol, The Sexual Contract (Cambridge: Polity Press, 1988)Google Scholar; an opposing view is argued by Dickenson, Donna, Property, Women and Politics: Subjects or Objects? (Cambridge: Polity Press, 1997).Google Scholar

54. Articles critiquing marriage can be found in Dawn, 1 June 1889, 4 March 1893, and Woman's Voice, 9 August 1894, 9 June 1895, 24 August 1895; see also Magarey, Susan, “Sexual Labour: Australia 1880–1910,” in Debutante Nation: Feminism Contests the 1890s, ed. Magarey, Susan et al. (Sydney: Allen and Unwin, 1993)Google Scholar; Allen, Judith, Rose Scott: Vision and Revision in Feminism (Melbourne: Oxford University Press, 1994)Google Scholar; Kirkby, Diane, Alice Henry: The Power of Pen and Voice (Cambridge: Cambridge University Press, 1991)Google Scholar; for a discussion of later (early twentieth-century) feminist arguments about marriage, see Lake, Marilyn, “Marriage as Bondage: The Anomaly of the Citizen Wife,” in Australian Historical Studies, no.112 (April 1999): 116–29CrossRefGoogle ScholarPubMed, and Getting Equal: The History of Australian Feminism (Sydney: Allen and Unwin, 1999).

55. It is a surprising fact still to be explored that Australian feminists in the late nineteenth century had so little to say about married women's property reform, given the strength of the campaign in England and especially as Windeyer's wife Mary was a leading feminist and president of the newly formed Womanhood Suffrage League in Sydney. See Ritter, A. L., “William and Mary Windeyer in Colonial NSW: Simultaneous Bearers of Two Traditions” (Ph.D. thesis, University of Sydney, 1995).Google Scholar A similar lack of feminist agitation has been found in other settler colonies, e.g., by Bradbury on New Zealand, “From Civil Death to Separate Property.” In Canada there is some evidence of feminist promptings for earlier legislation but not for the later wave. See Backhouse, “Married Women's Property,” 223. See Girard and Veinott, “Married Women's Property Law in Nova Scotia,” for a reflective consideration of “conservatism” and “liberalism” when applied to the needs and desires of married women and their property.

56. Buchanan, NSW Parliamentary Debates, series 1, vol. 38, p. 1299.

57. Charles, ibid, p. 1968.

58. For a detailed analysis and interpretation of the legislation, see Wade, C. G., The Married Women's Property Act, 1893 (Sydney: Hayes Bros, 1894).Google Scholar

59. Backhouse, “Married Women's Property,” has detected a similar conservative trend in post-federation Canada.

60. Royal Commission on the Decline of the Birthrate and on the Mortality of Infants in NSW (Sydney: Government Printer, 1904).

61. Russell, Penny, ed., For Richer, For Poorer: Early Colonial Marriages (Melbourne: Melbourne University Press, 1994), 2.Google Scholar

62. Cott, Nancy, Public Vows: A History of Marriage and the Nation (Cambridge, Mass: Harvard University Press, 2000), 226, 174, 2.Google Scholar

63. See, e.g., Kirkby, Barmaids, 122–34.

64. As an example of a very extensive literature, see Hough, Janet, “Mistaking Liberalism for Feminism: Spousal Support in Canada,” Journal of Canadian Studies 29 ( Summer 1994): 147–64.CrossRefGoogle Scholar

65. Deacon, Desley, “Political Arithmetic: The Nineteenth-Century Australian Census and the Construction of the Dependent Woman,” Signs 11 (1985): 27–47CrossRefGoogle Scholar, and Managing Gender: The State, the New Middle Class, and Women Workers, 1830–1930 (Melbourne: Oxford University Press, 1989).

66. In the way Girard has problematized “reform” for Nova Scotia, in “Married Women's Property, Chancery Abolition and Insolvency Law.”

67. Editorial, Sydney Morning Herald, 6 May 1892.

68. Shammas, “Re-assessing Married Women's Property,” argues persuasively that the acts brought a change in the importance of marriage, especially to men; Cott's examination in Public Vows of the racialization implicit in marriage laws is particularly apt for colonial conditions. Further discussion of settler colonialism is found in Kirkby, Diane and Coleborne, Catharine, eds., Law, History, Colonialism: The Reach of Empire (Manchester: Manchester University Press, 2001).Google Scholar