Hilary Golder and Diane Kirkby

FORUM: THE "NEW" AUSTRALIAN LEGAL HISTORY

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

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.

In pressing her claim Olivia Mayne was relying on the New South Wales Married Women's Property Act of 1879, which had eroded the inherited common law rule that husbands controlled their wives' property, that a wife's personal property and leasehold lands passed absolutely to her husband at marriage, and that he was entitled to the income she derived from any freehold property. This act was part of an international reform movement, which saw statutory revisions of the common law relationship between husbands and wives spread from North America to Britain and then, in the second half of the nineteenth century, to Britain's colonies in Australia and New Zealand.¹ To date the Australian experience has not been explored.² This article offers a corrective to that absence in the scholarship. Moreover the story of Mrs. Mayne and her boxing kangaroo adds an Australian dimension to a growing international literature on the meaning and significance of the statutory reform of married women's property rights.³ Coming from the perspective of the Australian colonies, and focusing on the timing and concerns of a specific legislative regime, this article adds to the work of those who have emphasized the imperial context in which the legal reform of married women's property occurred.⁴ Through analysis of a singular case it also suggests further insights into the historical significance of the reform for women, not only for those economically active married women who lived in colonial Australia but potentially for all women who lived in jurisdictions that had inherited the common law tradition of coverture.

From the Melbourne Punch, April 16, 1891. The drawing is of the wax model of Jack, which had recently been installed in the Waxworks and Museum and was attracting large crowds.

Earlier scholars of married women's property in other jurisdictions (most notably Richard Chused and Constance Backhouse) have documented successive "waves" of statutory reform, pointing out that not only was there not a single moment of change but that there were "interjurisdictional borrowings" in framing specific provisions.⁵ Some have questioned whether married women's property reforms delivered any real value to working women:⁶ while statutory reform of married women's property proceeded, the economic realities of married women's lives seemingly remained consistent, suggesting that reform had other purposes, and that formal legal change in and of itself was (and is) not sufficient to guarantee equality for women.⁷ Nonetheless legislation promised rights and symbolized changes that were important for women. This—"the most substantial change in women's legal status in 700 years of the common law"⁸—went to the heart of the marriage contract. The inconsistencies and contradictions in the meaning of that reform were illuminated in Olivia Mayne's dispute with the MacMahons. Certainly the case illustrated that, like Canada, colonial progressivism in Australia had stalled.⁹ In particular Mrs. Mayne's case became a platform for colonists seeking further reforms of the inherited laws of marital property.

While the nature of the "property" at the center of the dispute between the MacMahons and Mrs. Mayne was uncommon, and unlikely, its particularly colonial character provided an important element of theatricality that illuminated the problem confronting the colony: how important and desirable was married women's property reform under colonial conditions? The court in Mrs. Mayne's case was concerned less with the absurdity (and cruelty) of a contract built around a boxing kangaroo than it was with the question of the legal rights that might attach to an economically active, independently litigious married woman. Was Olivia Mayne the "married woman" envisaged in either the imperial or the colonial legislation? The action of a married woman suing for breach of contract was such an unusual event in late-colonial NSW that Olivia Mayne's case became the peg on which to hang the hat of reform. The case was symptomatic of the times and the changing expectations of the marriage contract that followed the preliminary wave of reform of married women's property laws. Just what these changes meant for colonial women was manifested by Olivia Mayne's conduct, her performance of herself as economically active woman. What the rights and actions of married women meant to the colony, which is what was being tested now in the courtroom, was being reconfigured.

When the Mayne case was heard before Justice Innes and a jury of four men, Mrs. Mayne presented herself as a "respectable" married woman.¹⁰ She testified that, in the late 1880s, she had been living with her policeman husband in the small rural town of Jamieson in the neighboring colony of Victoria. In her spare time she sewed antimacassars and sold them to her friends. This activity—the product itself, the skills involved, and the modest scope of her enterprise—were all impeccably ladylike and consistent with prevailing norms of appropriate feminine economic endeavor. But Mrs. Mayne then claimed to have invested £1 of her savings in a young kangaroo, to have taught him to box, and to have exhibited him as "Fighting Jack."

Jack was a popular performer and successful attraction. Jack, "the marsupial warrior," was attracting more visitors to the Melbourne waxworks when he was performing there in mid-April 1891 than any other feature, according to one theater reviewer, and visitors found his performance both "instructive" and "entertaining." "The kangaroo evidently feels pleased at the applause he receives."¹¹ With his success Olivia Mayne found it hard to manage Jack herself, so in July 1891 she signed a contract with James and Charles MacMahon, who undertook to take the kangaroo on tour along the eastern coast of Australia, paying Mrs. Mayne £25 a week for his services. Although married, she acted alone: Mr. Mayne did not join with her in signing the contract.¹² 'The ability to make a legal contract was critical to women who wished to engage in business ventures, make investments, obtain credit, or operate with any autonomy, Constance Backhouse has pointed out.¹³ Yet Olivia Mayne's case was to test her right to make that contract. Indeed the case tested the right of all married women to engage in risk-taking economic ventures, to enter fully into the economic world of business, and to do so independently of their husbands' concurrence. The outcome of the Mayne case demonstrated the tentative and incomplete nature of the original NSW legislation as a measure of reform. Simultaneously it revealed popular colonial perceptions of married women's economic rights and activities that were not always consistent with the common law or statutory reform. Olivia Mayne, however, was also a challenge to colonial Australian norms of responsible marital femininity.

"Fighting Jack" took Mrs. Mayne out of the house and away from her marriage as she accompanied him on tour with the MacMahons. She had made a startling transition from fancyworker to fight trainer as she literally and metaphorically crossed a threshold from the private world of modest domestic enterprise into the "outer world" of economic risk, of investment and public performance. In following the theater company on tour she also embarked on adventure and excitement way beyond the confines of rural respectability.

As an item on their program the MacMahons presumably thought that Jack's "turn" could be integrated into the loosely structured popular melodramas that were the staple of their business. The boxing kangaroo did draw the crowds and was promoted as "the John L. Sullivan of his species," a reference to the former world heavyweight champion who was himself brought to Australia by the McMahons in 1891. Indeed it is likely that the brothers planned to stage a bout between Jack and Sullivan, but unfortunately for them Jack's "brilliant career" was cut short. The MacMahons could not find a place for him in every show and, more importantly, the kangaroo would not always fight on cue. As businessmen they were reluctant to pay for a marsupial pacifist, so there were escalating disputes with Mrs. Mayne. Jack, however, was clearly ailing and was eventually sent off on a side-tour to the Hunter Valley of New South Wales, where, not surprisingly, he died on 2 November 1891 (ostensibly of influenza).¹⁴

While obituaries mourned the passing of "this ambitious young kangaroo pugilist," his owner and managers continued arguing about the money he had earned for them.¹⁵ Olivia Mayne calculated that the MacMahons still owed her £187 5s and she promptly took action for breach of contract, again without involving her husband who was still in Victoria. Olivia Mayne took her position as an independent business woman seriously enough to pursue her interests in court and the promise of the 1879 legislation seemed to suggest this was at least a plausible assumption. But was it? The limitations of the colonial statutory reform had never been tested.

The hearing of the action began in December 1891 and was then postponed until March 1892. At first the MacMahons' barrister attempted to have her action quashed simply because she was a married woman. On 23 December, before any evidence was heard, the barrister reminded the court that a married woman could not enforce a contract since she was, at common law, a nonentity. He went on to argue that the current Married Women's Property Act did not affect this disability, although the legislation did allow a wife the limited right to take action in her own name to "recover," "protect," or "secure" her separate property. He invited Justice Innes to rule that a right to contract in respect of that property could not be read into the colonial act. Mrs. Mayne's action was, therefore, unsustainable.¹⁶

Innes, however, was reluctant to "nonsuit" Olivia Mayne before a jury heard the evidence. The crux of the case, the question that put Mrs. Mayne and Jack into the Law Reports, was exactly what economic rights were guaranteed to married women under the 1879 reforming legislation? Did the act authorize a wife to make a contract, to perform the "paradigmatic autonomous act of the citizen" and economic agent?¹⁷ As Innes himself wondered aloud, how could a wife exercise that agency without the right to contract in her own name? How could she profitably invest her earnings? Answers to these questions were needed, and the case proceeded.

James MacMahon himself believed that the brothers could win the case on the facts and not simply on the "legal technicality" of Mrs. Mayne's contractual capacity.¹⁸ So the questions raised by that technicality were dramatized—and subtly reformulated—in the defense presentation. "Can a married woman make a contract?" became "Should a married woman make a contract?" and even "Can a married woman be trusted with a contract?" The strange case of Mrs. Mayne and her boxing kangaroo revealed the anxieties that the uncertain status of the economically independent married woman could provoke in nineteenth-century minds. Mrs. Mayne's case captured in microcosm many of the issues worrying judges and legislators about the changing economic relationship between men and women; it provides historians with a prism through which to view the changing dynamic of legal reforms of the marriage contract.

The MacMahons challenged Mrs. Mayne's arithmetic, her memory, and above all her credentials as woman and wife. Faced with an enterprising female, they exploited the ambivalence attaching to the very notion of female enterprise. First the defense contended that Mr. Mayne was Jack's true owner. It is noticeable that the first newspaper references to Jack had given Mr. Mayne the credit for "upsetting the theories formulated by naturalists" and training Australia's first performing kangaroo.¹⁹ The defense, however, did not rely on these reports but put forward a strict reading of the Married Women's Property Act, 1879. Section 2 provided that earnings made by a married woman, in "an employment occupation or trade" carried on independently of her husband, should be regarded as her separate property. Selling antimacassars to friends was such a homely exercise that the MacMahon's barrister argued it could not be regarded as an independent occupation. Therefore, the savings used to buy Jack always belonged to the husband. According to the MacMahons, Mr. Mayne had only refused to sign the contract over Jack because as a policeman "it might get him into trouble."²⁰ Police departments had rules about "outside activities."

Mrs. Mayne had to refute the claim that she was too womanly to be enterprising, but in doing so she could then be seen as too enterprising to be womanly. When she insisted that "my husband had nothing to do with the kangaroo," she appeared to be elbowing Mr. Mayne aside, appropriating his historic achievement and boasting of her trespass onto the manly terrain of boxing.²¹ Her own "outside activities," as kangaroo trainer and theatrical fellow traveler, could be portrayed by the defense as unseemly. She was in this view a wife who ran away to chase money and excitement; the MacMahons testified that the only city she was reluctant to visit was Melbourne, where Mr. Mayne was currently working as a police clerk.²² Their hints brought out the disturbing implications of the Mayne marriage. His absence from the court and her visibility must have been telling enough. He was tied to home while she was mobile, a childless woman in her early thirties claiming profits that far exceeded her husband's earnings. She was thus refusing the duties as well as the privileges of dependence, and the defense used her enterprising adventurousness to characterize her contract making as somehow illegitimate, if not actually illegal.

The MacMahons' testimony seemed designed to tap current anxieties about the emasculating New Woman. When Mrs. Mayne began her action, the English actress, Janet Achurch, was completing a tour of the country with a production of Henrik Ibsen's A Doll's House. Despite suggestions from her Australian management that she rewrite the play's ending, Achurch had refused to do so. Consequently audiences saw Achurch, as the play's heroine Nora Helmer, slam the door on home, husband, and children as she left to "follow her sacred duty" to become a "human being." There was a predictable furore in the colonial press,²³ which must have lent resonance to defense representations of Mrs. Mayne as a similar domestic renegade while Mr. Mayne figured as the deserted husband, moping in Melbourne. Of course the autonomy Olivia Mayne was seeking was material rather than moral, but this could also be turned against her. "She was always asking for money," claimed James MacMahon,²⁴ emphasizing her greed rather than the MacMahons' failure to pay their dues. Perhaps he was hoping that the caricature of Mrs. Mayne as a New Woman grasping for independence and money would distract attention from the fact that everyone was asking him for money in 1891.

For Mrs. Mayne was not the MacMahons' only creditor. Along with many others they had been caught by the end of an economic boom in Victoria, which precipitated a "sudden and unexpected collapse of the theatrical business" in 1891.²⁵ Despite this setback they had continued to tour other colonies, gambling on novelties like Jack while losing heavily on imported American attractions including Sullivan. By December banks and steamship companies already had judgments against the beleaguered brothers, who had closed their shows and were scrambling to find return fares for their American performers. In this climate they were not going to meet Mrs. Mayne's demands without a fight. But the terms on which they chose to dispute her claims were highly gendered and in themselves rendered visible the unequal status of the parties as economic and legal actors.

There were contradictions in the MacMahons' story. While the crux of their defense was that Olivia Mayne was incapable of making a contract, the brothers admitted to making not one but two agreements with her. When Jack failed to fight they had invoked the "no play, no pay" rule and negotiated with Mrs. Mayne to reduce her profits. The defense attempted to finesse the contradictions by arguing that the MacMahons had made this arrangement with Mrs. Mayne, not in her own right, but as her husband's agent on the tour.²⁶ This left them free to claim that she had greedily reneged on the new agreement once the kangaroo died, trying to cash in on a tragedy with her claim for £187 5s. These were the "facts" on which James MacMahon hoped to win the case. Thus hints of marital infidelity to Mr. Mayne were overlaid with references to Mrs. Mayne's most unbecoming business sharpness, as the defense simultaneously sexualized and unsexed a wife who was economically active outside her marriage.

It should be noted that the Mayne case was heard in a time of deepening economic crisis along Australia's eastern seaboard. Companies were failing and male employment and wages were falling. In this context the Mayne case was poignant, pitting male casualties of the depression against an assertively active woman. Might Mrs. Mayne be seen, not simply as unfeminine, but as emasculating? It did not help that her disputed property was a boxing kangaroo, which forged unladylike associations with fighting and the frontier very far removed from the genteel domestic world of those antimacassars.

Once the evidence was concluded, the defense asked the judge to direct a verdict for the defendants, again arguing that Mrs. Mayne had no capacity to contract. But Justice Innes allowed the jury to reach a verdict, with leave for either party to appeal to the Full Court, and in doing so he provided us with a window onto colonial public opinion. Surprisingly perhaps, given the defense's arguments, the jury of four found unanimously that Olivia Mayne had bought the kangaroo from her own earnings and that the MacMahons had entered into a contract with her rather than her husband. A majority of the jurors also found that the original contract had not been rescinded and that money was still owing. Rejecting the calculations of both sides, they awarded Mrs. Mayne £139 6s.²⁷

It appears the jurors were not distracted by the defense's juggling of received wisdoms about women, wives, and work. Indeed the defense may have been a little too clever. By pushing the point that a married woman could not enforce a contract, the MacMahons' barrister may have raised questions about his clients' intentions. Had they signed the original agreement in the knowledge that it could easily be evaded? It is unlikely that the brothers were so Machiavellian. James certainly seemed puzzled by the lawyers' "technicalities" and put more emphasis on the argument that Mrs. Mayne was unreasonable in claiming payment for a non-performing kangaroo. But it appears the jurors could not get past the fact that the MacMahons had signed a contract with a married woman. In the absence of a clear direction from the judge about Olivia Mayne's contractual capacity, they were not prepared to cancel the MacMahons' obligations.

Implicit in the jury verdict was an expectation that women, even married women, might work, buy, sell, make agreements, and have those agreements honored. This was consistent with colonial practice despite the common law disabilities of wives inherited from England. As Grace Karskens has pointed out, in key parts of colonial Sydney, especially in the early years, when it came to marriage and households, "people seemed to live more by their own rules than by those laid down for them."²⁸ The evidence given in the Mayne case also suggests that both parties had shared in this "common sense." In fact, the brothers were undone by the gap between their own behavior in dealing with Mrs. Mayne and the gender pieties they chose to invoke in court. It was not simply that those pieties were under challenge in the 1890s. They were always under challenge as the social meanings of sexual difference were endlessly renegotiated. In the Australian colonies at least, the doctrine of coverture, as defined by Blackstone, was not strictly observed. Coverture, Hendrik Hartog has reminded us, was real yet also limited. "In a variety of ways," he says, "it gave wives not an absence of identity but rather a particular recognized identity, one that sometimes gave them certain privileges," and that they could use strategically.²⁹ Colonial women were resourceful in either evading coverture by preferring common law marriages or maintaining their hold over their own property and ensuring their continued rights to their own names, legal entity, and business interests despite their marital status.³⁰

The jurors can be located in a long Australian tradition of subverting the common law's prescriptions. As legal historian Bruce Kercher has demonstrated, courts in the early days of colonial settlement in Australia simply ignored wives' disabilities when it suited them.³¹ Pragmatism had always allowed some wives to operate in the interstices of the colonial economy and on the margins of legality. Indeed it had demanded that they do so. How else could small communities in particular obtain an adequate supply of the services that, in a sex-segregated economy, only women would provide?

In pursuing some economic activity Mrs. Mayne was following colonial practice and was not such a New Woman after all. In local directories, both before and after the 1879 Act, wives appear as dairywomen, dressmakers, boarding house keepers, and "fancyworkers" like Olivia Mayne.³² To those who had built up substantial holdings of houses, capital, or goods, having a husband could be a liability or at least presented the threat of one.³³ Many people who dealt with these married businesswomen must simply have ignored their common law disabilities, while local magistrates sometimes lent them a legal existence by allowing them to proceed under section 10 of the Towns Police Act of 1855. (This was the section covering small property disputes.) Interestingly this magisterial practice was upheld in another case that came before the Full Bench of the Supreme Court in 1892. The judges there agreed that this "summary means of settling squabbles" should be open to the "washerwoman or needlewoman" who could not always rely on her husband to take action on her behalf.³⁴ The frequent absences of colonial husbands who were sailors, shearers, and drovers justified this somewhat precarious economic autonomy for their wives.

However, judicial language implied quite strict limits on the nature and scope of wifely enterprise. Mrs. Mayne went beyond these limits when she quit the feminine ghetto of fancywork and pursued increased profits from her separate property. A return of £25 a week on an initial investment of £1 suggested unusual entrepreneurial ambition; although the idea of a wife controlling "her" property was not unknown in New South Wales, the idea of a wife pursuing wealth beyond her husband's was more challenging.

Clearly Mrs. Mayne, her opponents, and the jury had grown up in a world in which wives could exercise some economic agency. Some couples had adopted the equitable practice of the marriage settlement. In colonial Australia large landowners had welcomed but never monopolized this adaptable English invention, which allowed fathers, friends, or husbands to settle property on women both before and after marriage.³⁵ This economic autonomy of wives is most evident in the growing acceptance of the unwritten settlement.³⁶ A farmer's wife might run her own dairy and keep her profits separate from the earnings of the farm. If she, her husband, and her customers acted as if the dairy was her own enterprise, equity judges might infer her husband's intention to settle those profits on her. Such an unwritten postnuptial settlement between husband and wife usefully subverted the common law's insistence that they were one person. Clearly popular (mis)understandings of the equitable concept of separate property had a much wider currency than did the use of formal pre- or postnuptial settlements. When a husband verbally agreed to cede some property to his wife or simply acted as if it were hers, that couple had effectively appropriated the aristocratic device of the marriage settlement, although there was a slightly surreal quality to the married woman's independence: her agency depended on conjugal, communal, and, to a lesser extent, judicial permissions, which could always be revoked.

Such appropriations of the marriage contract, acting on a tradition of casually disregarding the common law, may well have affected the Australian reception of English imperial statutory reforms. Perhaps this history conditioned the expectations that both women and men brought to something calling itself the Married Women's Property Act, which had originated in another jurisdiction. Mrs. Mayne for one seems to have projected her needs onto the act without actually reading its complex provisions. James MacMahon had no time for "legal technicalities." And, despite the best efforts of the defense, three of the four jurors held stubbornly to the belief that a deal was a deal.

The hearing of the Mayne case in the summer of 1891–92 opened a window onto popular and pragmatic understandings of married women's property rights. Simultaneously the case exposed official timidity on the subject. When, in accordance with popular understandings, the jury found for Mrs. Mayne, the MacMahons immediately appealed to the Full Court for an authoritative legal ruling on the key question "Can a wife alone sustain an action for breach of contract under the New South Wales Married Women's Property Act 1879?" Interestingly the obverse of this question had come before the Supreme Court before. In 1884 a defendant tried to argue that an action taken against him was invalid because the plaintiff, Mrs. Burton, had joined her husband as a party. The court had ruled against him, stating that there was nothing in the 1879 Act that excluded the common law tradition of husbands and wives acting as coplaintiffs. Quite deliberately the judges declined to rule on whether a wife could sue alone—"we do not think it necessary to pronounce any opinion. It may be that the wife can sue alone ... but we pronounce no opinion." On the main issue they were unanimous: "There is no clause in our Married Women's Property Act which goes the length of saying that that which might at Common Law have been done ... cannot still be done."³⁷

Perhaps the court's ruling in the Burton case had allowed women like Mrs. Mayne to carry on acting as if they were independent economic agents with the power to take action independently. Again, confusion about the terms of the Married Women's Property Act gave wives that precious room for maneuver. But when Justice Innes allowed the Mayne case to run its course and emphasized the opportunity for an appeal to the Full Bench, the stage was set for an authoritative exposition of that act in relation to more economically ambitious women. The man who was best qualified to make that exposition, William Charles Windeyer, was waiting in the wings. It is not possible to argue for New South Wales, as Backhouse has done for Canadian provinces, that the liberal intentions of reforming legislators were subverted by the rulings of conservative judges—that "it was the judges who were primarily responsible for the slowness of married women's property reform in the nineteenth century"³⁸—for the colony was so small that these could be the same person. Windeyer, one of the three judges who heard the appeal, had been a member of the New South Wales parliament in the 1870s and was in fact responsible for the passage of the 1879 Act. He knew the curious history of that reform. He was keen to make clear its meaning. He wanted further reform.

The New South Wales Married Women's Property Act of 1879 was modeled on the English Married Women's Property Act of 1870, described by one contemporary commentator as a "legislative abortion."³⁹ It was a clumsy piece of legislation that showed the signs of struggle between egalitarian intentions and protective anxieties in the imperial parliament. In 1868 the House of Commons started with a Married Women's Property Bill, which stated simply that a wife should have the same property rights as a single woman. It was in fact the equity lawyers in the House of Lords who beat the retreat from this radical simplicity.⁴⁰ They believed the bill would "unmarry" wives; it went far beyond their own case-by-case exploration of the potential of the marriage settlement and it violated their understanding of the married woman as a peculiar and protected species. Drawing on familiar equitable concepts, they rewrote the legislation. The resulting act, therefore, nominated certain kinds of property, notably a wife's earnings, as "property held and settled to her separate use." It also gave her the right to take action in her own name to recover, protect, and secure such property. It did not endorse married women's investments in risky enterprises.

Before the Full Bench of the NSW Supreme Court, in May 1892, Mrs. Mayne's lawyers argued that these remedies could be construed to imply a married woman's right to enforce a contract. The court, however, rejected this attempt to read a contractual capacity into the act. Justice Windeyer quoted the decision in an English case, Howard v. the Bank of England, to stress the point that the omission of a right to contract from the legislation was not accidental. It was not the result of sloppy drafting but was the considered policy of the men who wrote the English act.⁴¹ And Windeyer himself had imported that policy into New South Wales. In the 1870s he had introduced several Married Women's Property Bills before successfully piloting the legislation through parliament in 1879. He decided not to tinker with the English model because the question of property reform aroused "so much nervous timidity" among his peers.⁴² Consequently and paradoxically, Windeyer, a noted colonial liberal, accepted a reform that would not allow a married woman to enforce a contract in a common law court.

There remained the possibility that she could enforce one in an equity court because the English and New South Wales Married Women's Property Acts had adopted the equitable concept of separate property. For example, a wife could apply to company directors to have shares registered in her own name and for her "separate use." The judges in both Howard and now Mayne pointed out that this characterization of a married woman's property brought it within the ambit of equity, giving her "the right to contract in equity."⁴³ And that right could be exercised independently since the legislation made no mention of trustees. Mrs. Mayne read this as an invitation to begin a suit against the MacMahons in the equity jurisdiction of the New South Wales Supreme Court. Unfortunately for her, the economic climate in 1892 was not conducive to further legal action: her plan was thwarted by the depth of the depression now gripping the eastern Australian colonies and the Macmahon brothers' consequent but belated bankruptcy.⁴⁴

As for married women in general, the judgment in the Mayne case left them in a curious position. They might enforce contracts in that Supreme Court equity jurisdiction, but they could not enforce them in common law courts. As Windeyer admitted, the reform still constructed the right to contract as exceptional, while reinforcing the normality of more limited economic rights for wives. The legislation implied limits on the nature and scope of their economic activity. It is significant that the Howard judgment referred to the "small sums" that women could deploy under the English act.⁴⁵ When Windeyer was trying to sell reform to nervous Australian legislators in the 1870s, he reassured them that the real aim of the reform was to protect the earnings of working-class wives.⁴⁶ His legislation was promoted almost as a welfare measure, another resort for washerwomen and needlewomen who could settle their "squabbles" through the act's modest remedies. Mrs. Mayne as an investor in a risky theatrical enterprise did not fit the category of worthy working-class wife.

The legislation did have an answer for Justice Innes's question "How can a married woman invest her earnings unless she can contract?" because it shepherded wives toward acceptable forms of investment. They were specifically authorized to put their money in savings banks, friendly societies, and even joint stock companies. In short, the reform constituted a limited, feminized, form of property holding. When a married woman put her "small sum" in the Government Savings Bank, the bank essentially assumed the role of paternal trustee while the wife was cast as the passive provider of capital. Her sums were likely to remain quite small. But the New South Wales legislation did make one significant change to the English model act in that colonial wives could also invest their earnings in land. In a settler society with a brisk land market, this concession did allow married women the possibility of real profits. Otherwise the legislation seemed to promote thrift rather than enterprise. Wives could not take their own risks by making their own contracts. The act did not encourage married women in that active manipulation of assets regarded as the essence of property ownership in men.⁴⁷ In short, this timid statutory reform did not guarantee the economic rights that many colonial women assumed and exercised in their own communities.

Mrs. Mayne's story dramatized the limitations of the 1879 Act and Justice Innes had allowed her to stage it to maximum effect in the Supreme Court. But by 1892, as the Sydney Morning Herald noted in an editorial on the Mayne case, New South Wales was embarrassingly behind the times.⁴⁸ While the imperial Parliament had been advancing, New South Wales had stood still. "Is it apathy, or ignorance, or neglect, or invincible slowness, or the inordinate self-assertion of individual members, or the conflict of party interests, or absorption in business that ought to be in the hands of local governing authorities, that may be regarded as the cause of this [parliament's] failure?" the paper asked. The English act had itself been amended in 1882 to give wives a limited contractual capacity. Other Australian colonies took note. Victoria had already passed an 1870 Married Women's Property Act that upheld wives' right to contract. But after 1882 this colony amended their rather ramshackle legislation to bring it into line with the new English act. Tasmania, South Australia, Queensland, and Western Australia, which had considered but rejected property reform before 1882, eventually adopted the later English model. Western Australia was the last to act, but its legislation was passed early in 1892, as Mrs. Mayne waited in Sydney for a decision. Because these colonies had not previously legislated to protect wives' earnings, reformers there were able to emphasize that aspect of the legislation, slurring over the fact that it also gave married women the right to make contracts. Once again property reform could be promoted as a welfare measure to ensure its passage through parliament.

This option was not open to the New South Wales parliament, where the issues surrounding wives and contract were unusually exposed. In the years 1886–93, several Married Women's Property Bills were introduced to give wives the right to contract. The first bills did not make much headway in a crowded parliamentary calendar; legislators seemed curiously reluctant to amend the law to meet the expectations and behavior of women like Mrs. Mayne. And when Windeyer used his Mayne judgment to give the legislators a nudge (seizing the chance to make the political point that his early legislation needed amendment), he framed his intervention as a polite plea for imperial uniformity. "It appears to me highly desirable," he said, "that our laws in this respect should be assimilated to the laws of the mother country, so that married women should not labour under greater disabilities here than they do in England."⁴⁹ As in Canada, "a distinctly colonial mentality [had taken] root, and subservience to English precedent" took priority over colonial innovation. Subsequently legislation "seems to have been enacted largely as a form of self-imposed genuflexion on the part of an imitative subservient colony to an imperial power."⁵⁰

This point was taken up more pointedly (and ironically) by the mainstream colonial press. Within the ten years since the United Kingdom had amended its legislation, "how frequently have we heard the proud boast," the Sydney Morning Herald asked, "that the vigorous manhood of the colony is marking out the way for the effete civilisation of the old world." The paper went on to ask if the New South Wales parliament had been so busy showing a light to other nations that it had failed to see the usefulness of what other countries were doing, "seeing that our Legislature had done so much to improve the legal position and to enlarge the rights of married women, it can hardly be supposed that there was any rooted objection in principle to the further enlargement of those rights in the manner sanctioned by English precedent."⁵¹

What was notably absent from these urgings for further reform was any reference to the injustices being done to women by their continuing unequal status. Perhaps it seemed safer to appeal to the colony's retarded legislative relationship with the Mother Country rather than to the merits of Mrs. Mayne. An antipodean Nora, who had slammed the door on Mr. Mayne and taken to the road in the company of a performing kangaroo, she was a questionable recruit to the reform cause. Hers was a cautionary tale of economic autonomy shading into marital estrangement, which must have been disturbing to liberal reformers as well as their opponents. Indeed the real fascination of the Mayne case is the way in which it illuminated the anxieties haunting both sides of the debate on wives' contractual capacity. How could a married woman exercise independence and yet remain married? was a question staggering under the weight of its own significance. While colonists were prepared to turn a blind eye to certain practices given the exigencies of daily life, they were more nervous about enshrining those practices as formal legal rights when to do so raised such disturbing consequences for marriage.

Colonial advocates of married women's property rights jibbed at the apparently simple solution of giving wives the economic rights "enjoyed" by single women. After all they were married. Reformers thus worried away at the question "How far can married women exercise independence and still remain married?"⁵² Contract was the issue that detonated their anxieties. As Carol Pateman has argued, the absence of property and contractual rights for women was not an oversight that politicians could easily overcome: it was a direct result of liberalism's emphasis on rationality, property, and contract that deliberately and explicitly excluded women from the body politic and created through the marriage contract a male sex-right to women.⁵³ To give married women the right to contract independently of their husbands was to rewrite the "marriage contract," indeed to expose to scrutiny the comfortable assumption that marriage was a contract. As judges and legislators struggled with the contractual issue in the early 1890s, colonial feminists (who had begun to organize in the mid-1880s) were beginning to argue that the terms of the so-called marriage contract were unacceptably unequal.⁵⁴ Like their sisters overseas, they pointed out that those terms could not be negotiated by the parties but were fixed under common law. Yet colonial feminists had nothing to say on the merits or demerits of Mrs. Mayne's case and its implications for colonial wives.⁵⁵

Liberals like Windeyer were prepared to renegotiate those terms. However, the law reformers struggled to conceive of a marriage contract that would contain the energies of a woman like Olivia Mayne, who took advantage of colonial conditions, audaciously challenged the limitations imposed on married women's economic activity, and was prepared to pursue her rights in a court of law. Would women like this effectively "unmarry" themselves as they exercised the right to contract? Was this the kind of womanly activity reformers wanted to legitimate?

Opponents of law reform happily exploited the liberals' ambivalence by arguing that full economic rights would "make a man of a woman in everything but sex" while implying that a wife's womanhood must corrupt her extramarital economic relationships into a kind of infidelity.⁵⁶ What was hinted at in the Mayne case was made more explicit in the parliamentary debate over contract. There were even overtones of prostitution in the portrayal of wives "hurrying and bustling through the business parts of the city, engaged in all sorts of commercial activity."⁵⁷ In short the opponents conjured up the confusing, unreliable, unsexed-but-sexualized figure of the unmarried-married woman. Supporters were caught in their own ambivalence.

In line with the third wave of statutory reform, New South Wales, long after most other colonial jurisdictions, finally amended its Married Women's Property Act in 1893, one year after Olivia Mayne's pursuit of her grievance with the MacMahon brothers and the contract they had made with her came to (for her) an unsuccessful conclusion. Although sympathetic to the justice of Olivia Mayne's cause, their anxieties about a woman's capacity to pursue her economic rights to their full and logical potential made legislative reformers wary. Nevertheless, adopting provisions from other jurisdictions, the 1893 legislation substantially overrode coverture and essentially affirmed a married woman's right to contract.⁵⁸ Colonial progressivism and pragmatism had reconciled as New South Wales finally came into line with the imperial template and neighboring jurisdictions and now picked up new reforms of married women's property then under consideration in the UK and passed into new legislation the same year.

However, the statutory right to contract, which applied only to women married after the act was passed, was conceded in an economic and political context that was not particularly favorable to the married woman who attempted to exercise it. The questions Olivia Mayne raised remained very much open as Australians entered the dangerous economic and demographic currents of the 1890s. In particular the depression accelerated a long-term decline in the birth rate in eastern Australia, which could only heighten anxieties about married women's independence. Those anxieties were politicized, and racialized, in the 1890s as the colonies contemplated federation in a new Australian nation.⁵⁹ In contemporary debates over institutions and identities, white women were sometimes accused of failing in the most basic task of nation building, that of populating the continent.⁶⁰

"Marriage was central" to the nineteenth-century colonization of Australia, historian Penny Russell has argued, "because colonisation was about making families."⁶¹ As settler colonies became nations, so was nation-building, a point developed at greater length by Nancy Cott. Marriage, she says, "inextricably both public and private," underlay civic status and was "deeply implanted in public policy" in the history of the United States.⁶² Similarly marriage underwrote public policy in Australia, and the married woman's place in the new nation Australia was becoming at the end of the century a critical concern for actors in the political and cultural conflicts of the 1890s, from doctors to judges, from feminists to trades unionists. The marriage contract was thus renegotiated across a range of sites in the years preceding Australian federation in 1901 and married women's property reform was nearly always accompanied by moves that complicated women's economic independence in other ways. Even as married women in the 1890s gained the right to make their own contracts through statutory reform, their dependence was being re-engineered in a range of new economic and legal measures.⁶³ Investments in unusual enterprises and risky ventures remained problematic though not beyond the imagination of the more adventurous of economically active married women.

Olivia Mayne's inability to recover damages from the MacMahons in a common law suit, even as her right to do so was upheld by the jury in the first instance and by the promise of an action in equity in the second, was consistent with the to-and-fro direction of other seemingly progressive reforms. It echoes current feminist concerns about the limits of formal legality as a means of achieving women's economic advancement.⁶⁴ The contractual and property rights of married women were endorsed by the 1893 reform of the act by the NSW parliament. Yet married women found themselves worse off economically in colonial industrial tribunals and census tabulations.⁶⁵

In short, the meaning of colonial reform remains insufficiently examined.⁶⁶ "Property" and "reform" and the gender politics surrounding them had different meanings in different contexts. The "vigorous manhood"⁶⁷ of settler colonies may have followed imperial precedents, but even in duplicating specific provisions they did not necessarily create the same circumstances. Perhaps the significance of this statutory reform lies beyond the simple economic equation of legal ownership of property but needs further elaboration of the social and economic meanings of marriage, autonomy, and sexual egalitarianism within an imperial and colonial framework.⁶⁸

Hilary Golder is a freelance historian with a particular interest in marriage and family in colonial Australia <hilaryg@records.nsw.gov.au> and Diane Kirkby is a Reader in the History Programme at La Trobe University <diane.kirkby@latrobe.edu.au>.

Notes

^1.�Norma Basch, In the Eyes of the Law: Women, Marriage and Property in Nineteenth-Century New York (Ithaca: Cornell University Press, 1982); Richard Chused, "Married Women's Property Law, 1800–1850," Georgetown Law Journal 71 (June 1983): 1359–1424; Constance Backhouse, "Married Women's Property Law in Nineteenth-Century Canada," Law and History Review 6 (Fall 1988): 211–57; Lee Holcombe, Wives and Property: Reform of the Married Women's Property Law in Nineteenth-Century England (Oxford: Martin, 1983); Bettina Bradbury, "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): 40–66; Lori Chambers, Married Women and Property Law in Victorian Ontario (Toronto: Osgoode Society and University of Toronto Press, 1997); Philip Girard, "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. Philip Girard and Jim Phillips (Toronto: University of Toronto Press for the Osgoode Society, 1990), 80–127, at 84.

^2.�A call for investigation of the Australian experience was made by John Mackinolty, "The Law of Married Women's Property," in In Pursuit of Justice, ed., Heather Radi (Sydney: Hale and Iremonger, 1979), 66–74.

^3.�See in particular Carol Shammas, "Re-Assessing the Married Women's Property Acts," Journal of Women's History 6 (Spring 1994): 9–30; Philip Girard and Rebecca Veinott, "Married Women's Property Law in Nova Scotia, 1850–1910," in Separate Spheres: Women's Worlds in the Nineteenth-Century Maritimes, ed. Janet Guildford and Suzanne Morton (Fredericton, N.B.: Acadiensis Press, 1995).

^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.�Richard Chused, "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): 3–55; Backhouse, "Married Women's Property Law," 223.

^6.�Discussed in Shammas, "Re-assessing Married Women's Property."

^7.�See particularly Peggy Rabkin, From Fathers to Daughters: The Legal Foundation of Female Emancipation (Westport, Conn.: Greenwood Press, 1980); 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; Christopher Clarkson, "Property Law and Family Regulation in Pacific British North America, 1862–1873," Histoire Sociale-Social History 30 (November 1997): 386–416, 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 Diane Kirkby, Barmaids: A History of Women's Work in Pubs (Cambridge: Cambridge University Press, 1991).

^11.�Table Talk (Melbourne), 10 April 1891, 16; 17 April 1891, 13; 3 April 1891, 13. Jack's theatrical career is traced in Margaret Williams and Hilary Golder, "Fighting Jack: A Brief Australian Melodrama," Australasian Drama Studies 36 (April 2000): 121.

^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.�Margaret Thornton, "The Cartography of Public and Private," in Public and Private: Feminist Legal Debates, ed. Margaret Thornton (Melbourne: Oxford University Press, 1995), 10.

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

^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.

^28.�Grace Karskens, The Rocks: Life in Early Sydney (Melbourne: Melbourne University Press, 1997).

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

^30.�Karskens, The Rocks.

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

^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. They married in 1857.

^33.�Karskens, The Rocks.

^34.�Ex parte 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 Susan Staves, Married Women's Separate Property in England, 1660–1833 (Cambridge: Harvard University Press, 1990).
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 R. E. Kemp, The Law of Real Property in New South Wales (Sydney: Law Book Co., 1903).

^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 Mary Lyndon Shanley, Feminism, Marriage and the Law in Victorian England (Princeton: Princeton University Press, 1989), chap. 2.

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

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

^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 Susan Magarey, "Sexual Labour: Australia 1880–1910," in Debutante Nation: Feminism Contests the 1890s, ed. Susan Magarey et al. ( Sydney: Allen and Unwin, 1993); Judith Allen, Rose Scott: Vision and Revision in Feminism (Melbourne: Oxford University Press, 1994); Diane Kirkby, Alice Henry: The Power of Pen and Voice (Cambridge: Cambridge University Press, 1991); for a discussion of later (early twentieth-century) feminist arguments about marriage, see Marilyn Lake, "Marriage as Bondage: The Anomaly of the Citizen Wife," in Australian Historical Studies, no.112 (April 1999): 116–29, 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 A. L. Ritter, "William and Mary Windeyer in Colonial NSW: Simultaneous Bearers of Two Traditions" (Ph.D. thesis, University of Sydney, 1995). 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 C. G. Wade, The Married Women's Property Act, 1893 (Sydney: Hayes Bros, 1894).

^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.�Penny Russell, ed., For Richer, For Poorer: Early Colonial Marriages (Melbourne: Melbourne University Press, 1994), 2.

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

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

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

^65.�Desley Deacon, "Political Arithmetic: The Nineteenth-Century Australian Census and the Construction of the Dependent Woman," Signs 11 (1985): 27–47, 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 Diane Kirkby and Catharine Coleborne, eds., Law, History, Colonialism: The Reach of Empire (Manchester : Manchester University Press, 2001).

Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.