The Transformation of colonial property: a study of the law of dower in New South Wales, 1836 to 1863

Nancy E. Wright, A. R. Buck

Research output: Contribution to journalArticlepeer-review

Abstract

Unlike judges in the 1830s who accommodated dower to local circumstances in order to reach equitable decisions, legislators at the mid-nineteenth century annulled dower rights in order to facilitate land transfers and secure capitalistic property relationships. From the 1840s onwards, debates about land law in the two Houses of Parliament, the Legislative Assembly and the Legislative Council, dismissed arguments supporting a widow's right to dower made in the colony's Supreme Court in the 1830s. The rhetoric used by legislators advocating change, as we explain, demonstrates a shift away from an understanding of dower as a customary property relationship and a moral entitlement to market-oriented concepts of property. Our analysis suggests that market forces were a powerful factor in legal change in nineteenth-century New South Wales, an argument previously mounted in relation to nineteenth-century American law by Morton J Horwitz. Although American legal historians have critiqued Horwitz's instrumentalist interpretation of legal development, the following study focusing on the law of dower in colonial New South demonstrates the shaping power of the market inland. The economic importance of landed property during the years of pastoral expansion in the 1830s, the agrarian depression of the 1840s and the rapid influx of migrants during the gold rushes of the 1850s were factors that accelerated legislative developments that shaped individuals' property rights. Social changes that increased demands for access to land affected not only property law but also ideas customarily associated with married women's status-based entitlements, such as dower.
Original languageEnglish
Pages (from-to)97-127
Number of pages31
JournalUniversity of Tasmania law review
Volume23
Issue number1
Publication statusPublished - 2004

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