The purpose of The Osgoode Society for Canadian Legal History is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, a former attorney general for Ontario, now Chief Justice of Ontario, and officials of the Law Society of Upper Canada. Its efforts to stimulate the study of legal history in Canada include a research support program, a graduate student research assistance program, and work in the fields of oral history and legal archives. The...

In all common law jurisdictions, marriage, for women, represented civil death. Nineteenth-century married women’s property law reform provided the first tentative legal recognition of the wife as a being separate from her husband, and remedial legislation in Upper Canada was part of a much wider international phenomenon.¹ Before these reforms were enacted, the wife’s legal identity was obliterated at marriage and she was entirely under the power and control of her husband. At law, the wife could not hold, use, or dispose of property, whether land, money, chattels, or wages earned by her own labour. Without the right to own...

The symbolic importance of married women’s property law reform is only clearly elucidated against the backdrop of the common law treatment of the married couple. Under the common law doctrine of marital unity, in the words of the eminent eighteenth-century jurist, Sir William Blackstone, ‘by marriage the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband: under whose wing, protection and cover she performs everything.’¹ As Blackstone also made clear, marital unity, or coverture...

In 1835 Ellen Fitzgerald, an illiterate farmwife from Niagara, with the aid of more fortunate and literate members of her community, submitted a dramatic plea to Lieutenant-Governor John Colborne. Her husband had recently been released from prison and was threatening her life:

Since the return of my husband from Toronto, where he was, as well as here, imprisoned for a supposed murder, I have not had one days peace with him often beating and abusing me in a shameful way. That on Sunday last he beat and abused me out of all character as a wife and on Monday he...

In 1824 Hannah Snider’s father, concerned about her husband’s ‘unsteady habits,’ conveyed to her a life estate in fifty acres of land. Under the common law, however, the management and benefit from the property devolved upon her husband, Henry Nolan. Within a short period of time Nolan abandoned his wife, but he retained his interest in what was ostensibly her property, leasing it for profit until he sold it, without obtaining Hannah’s consent, in 1856.¹ From the time of the desertion until her husband’s death in 1864, Hannah lived ‘dependent more or less on the charities of those who were...

Without any cash or resources of their own, without control even over their wages, wives without marriage settlements were at the complete mercy of their husbands. While this might be of minimal import to women married to loving and responsible men, this absolute financial dependence left married women in a most vulnerable position and was not conducive to marital happiness. One anonymous woman made this argument explicitly in an open letter to the HamiltonSpectatorin 1858:

Respecting the woman who has a bad husband, with no law to protect her whilst he lives … and taunted with her very...

The Married Women’s Property Act, 1872, was much more controversial than its predecessor of 1859. The HamiltonSpectator, for example, decried the new Act as ‘an act so extraordinary in its provisions that we hasten to give a summary of it for the benefit of our numerous readers – especially the married [presumably male] ones.’ The editors proceeded to exaggerate the liberating potential of the legislation and concluded their attack with a deliberate attempt to link this legislation to the ‘extreme’ demands of the ‘woman’s rights’ movement of the United States:

Who will say, after this, that women have not...

In 1883 John Dynan claimed that Thomas Walls had fraudulently conveyed property to his wife and co-defendant, Catherine. Dynan, a merchant, had a judgment against Walls, an auctioneer, for $13,926, but had been unable to make good on this claim. Subsequent to the judgment, Walls had sold his businesses in Montreal and Toronto with a net gain of over $20,000, an enormous sum of money for this period. He then transferred all the cash to the ownership of his wife. Thomas Walls fled to the United States, remaining out of the jurisdiction until Dynan dropped his suit, but his wife...

Emily Smart lived in Waubashene, but owned land in York County that she had inherited from her father. Emily had been married in 1870 and, from early in her marriage, had been physically abused by her husband. In 1882 she had him bound over to keep the peace, but to no avail. In 1883 they parted by mutual consent. They had six children, five of whom were living with Emily. After the separation, Emily laboured intermittently as a domestic helper; but, not surprisingly, with five young children, she had insufficient income to ensure her family’s support. Her husband, meanwhile, as...

The acts of 1859, 1872, and 1873 had failed. The position of the husband as trustee over his wife’s separate property left him with significant scope for coercion and created an inducement to fraud. A return to the harsh conditions wives had faced under the common law was clearly unacceptable, and members of the bench and the legal profession increasingly asserted that the only way to ensure creditors adequate remedy against married women, and wives the means for self-protection, was to grant all married women unequivocal dispositive powers over all separate property.

The failure of the acts of 1872 and...

Despite its comparative liberality, the act of 1884 did not solve all the problems creditors faced when dealing with married women. Less than a decade after the passage of the act, this fact was recognized both within and outside the legal profession. As one woman argued in an open letter toThe Weekin 1891, the new law was publicly perceived as an inducement to fraudulent behaviour:

The fact that almost in every sheriff’s and bailiff’s office in the Province there are numerous unsatisfied writs of fi fa against men whose wives are in business or in possession of ample...

In 1887 Eliza Young sought the protection of the court because her husband had mortgaged property, purchased in part with money from her separate estate, against her will. Although she had paid $4,334 of the original purchase price of $8,103, the mortgaged property had been taken in her husband’s name. Eliza explicitly argued that she had been coerced into turning over her property to an insistent and abusive husband:

I requested that the deed should be made in our joint names but my husband, who is an exceedingly violent man, objected to that being done and demanded that the deed...

In his statement of defence in an 1873 alimony suit, Isaac Watts asserted that his wife had no claim, other than minimal maintenance, on the home and other property that her labour had helped him to accumulate: The plaintiff has only worked with and assisted me in the way any working man’s wife is accustomed to work with him and assist him by managing and attending to his household duties.’¹ Such work, the court concurred, was simply part of the labour that a wife owed to her husband. Fully one hundred years later, in 1973, the Supreme Court of Canada...