In researching Catherine Prendergast and the role she played in the establishment of the Prendergast family in Australia, I needed to “time travel” back to an era in our history where married women, by law were considered part of the goods and chattels that were OWNED by their husbands. This doctrine was a rule of law associated with the common law doctrine of coverture outlined in this paper written by Andrew Cowie, School of Law, Murdoch University. http://www.austlii.edu.au/au/journals/AUJlGendLaw/2009/6.pdf
Cowie goes on to explain that Coverture is “the state of being under the protection of one’s husband. The term can also mean marriage. Marriage can then be categorized as a contract between a wife and husband where the wife gives up certain legal powers to the husband in return for being under his protections. Until the late 19th century, the marriage contract was the last contract a woman would ever enter”. Women lost their legal identity when they married.
This law, which I found quite shocking, was further explained to me by a volunteer at the Society of Australian Genealogists (SAG) during my visit to their Library in Sydney, Australia on 16 December, 2017. This law changed in 1918 allowing women to own land in their own right.
When we opened the ‘’Mutch’s” Muster book of 1800-1802 and viewed the entry recording the details of John Prendergast and James Clark leasing property at Mulgrave place in 1800 whilst still convicts, “that can’t be right!”, exclaimed Alan. “A convict with a 7 year term could not lease land until he had been granted his freedom”. “Could his wife Catherine, the unnamed female on the land have leased the land”, I asked? “Yes and no”, replied Alan. He then went on to explain that if a wife had a guarantor, she could lease land but usually that guarantor was her husband. In this case her husband was still a prisoner so no, she could not own land.
So, how did John Prendergast and James Clark lease land at Mulgrave place in 1800?
I decided to delve deeper and googled the the New South Wales Government State records and Archives site. Here I made a discovery.
New South Wales Land Grants Guide, 1788-1856
On page 2/36 it states that “Women were entitled to receive a grant of land – the first possibly being Ellenor Frazer on 20 February, 1794”. Fantastic! Now we know that Catherine Prendergast could own land. But why were we not finding anything with her first name, Catherine, on it?
Remembering that Catherine Prendergast was referred to as “Wife of John Prendergast, Windsor” and also “Wife of Jno Pender, Windsor” on the two documents referring to Catherine having Jane Williams assigned to her, I decided to take a look at the Land Registry Services NSW, Land and Property Information. The document “How to Search the Old System Grant Index 1792-1862” has been superseded now but is still available on line and has a wealth of information.
Keeping an open mind and thinking laterally as impressed upon me during my University College Cork genealogy course in 2015, I decided to trawl through the pages of beautifully hand written historical documents at the NSW Land Registry. My husband Barry became as interested as I am and continued the search when I took a break. Over the last five days we have viewed thousands of documents.
I have to admit that the Land Registry Services NSW site is not the most user friendly site that I have used. It is quite complicated to use and to find information the user needs to have a prior understanding of the what he is looking for. For instance, the volume and Folio numbers or the serial and page numbers of a particular document. The surname initial is usually not enough. When I phoned the NSW Lands department for help I was advised that I might be better off to employ a conveyancer or a solicitor.
Not to be deterred I soldiered on and low and behold – Drum roll please – I have made two invaluable discoveries.
- As shown below, this property was listed under Jno Prendergast but the contents of the Deed clearly states “…..links to land of Mrs. Prendergast”
- The next Deed refers to “Prendergast’s 60 acre farm” and yet when there is a male owner, the first and surname is mentioned on every document that I have viewed.
It appears to me that although Australia in the colonial days was liberal in allowing women to own land, where a woman was legally married to her husband, she, as was common law doctrine, lost her identity. Her Christian name was no longer used, she was addressed as Mrs. Prendergast in this instance and all her possessions were amalgamated with and under her husband’s ownership and control.
This might explain why her son, baby John when he grew up wrote his Will with strict instructions that his daughters were to inherit land in their own right and that their husbands were to have no control over it. But, that is another story, one I will post at a later date on my blog.