A Case for Legal Records in Women's and Gender History

As an undergraduate I first encountered primary sources in the course of researching a paper on criminal justice history. How was crime reported a century earlier? No colorful broadsides or ballads for late-nineteenth-century London, Ontario, unfortunately, just local newspapers on microfilm. But I was hooked all the same. This project led to others where I studied women's history through such sources as jail registers, coroners' reports, criminal indictments, trial transcripts, prison case files, and parole reports. In that heady heyday of social history, legal evidence led me to troubled and trouble-making women who never appeared in my lecture courses.

The law in its manifold forms leaves plenty of routes to the past with criminal justice processes just one of them: marital law, torts, contracts, tax law, and constitutional law leave others, all of which distribute power: no broad meadows of equal apportionment but sharp rifts between individuals and groups, defined in part through legal rulings that reflect and enforce gender distinctions. Because law touches every aspect of life, from intimate relations to articles of war (both of which have distinct implications for men's and women's lives), the prospect of teaching gender history without drawing on legal sources is inconceivable. Yet, remarkably few history instructors make conscious, let alone concerted, use of them. What benefits lie in teaching history in ways that alert students to law's imbrication in the history of gender and gender relations?

Historians need not complete law degrees to incorporate legal sources. Model legal history courses have been designed by legally-trained historians, such as Barbara Welke, but equally innovative courses are taught by historians without backgrounds in law.¹ What they share is an appreciation for the pedagogical potential of legal cases. In the Common Law tradition, legal scholars study cases to derive legal principles; using the same evidence historians can interrogate prior understandings of power, authority, and their contestation. Rather than approach law as parallel to history, instructors can use legally constituted cases to help students see law as history.²

Legal cases illuminate broader themes and concepts in gender history and its intersections with such categories as ethnicity and class. By drawing on well-known cases, about which historians have written extensively, the gendered character and effects of law come alive.³ Documents cited in published works sharpen students' capacity to analyze events (the Queen Caroline affair, for instance) that raised and continue to raise questions about gender and power.⁴ Less well-known cases of local significance are now accessible thanks to the proliferation of educational wikis. The innovative online "Great Unsolved Mysteries in Canadian History" project, for instance, includes numerous cases of potential use in gender history courses. "Torture and the Truth" is one of the best, dealing with the prosecution, torture, and execution of Marie-Josèphe dite Angélique, an African slave, charged with the burning of Montréal in 1734. Suggested teaching approaches, digitized primary documents, and full citations make the site suitable for all educational levels, from high school to university. The homepage promises that students will gain "insight into French colonial society, Montréal men and women, and slavery in Nouvelle-France," and it delivers admirably.⁵

Thanks to such primary source repositories as "The Old Bailey online" and digitized newspaper collections, the possibilities of inquiry-based learning have multiplied, opening up the scope for learning history by doing history.⁶ These resources allow researchers to follow posted tags ("suicide," for example) or conduct keyword searches in subjects tied to course themes to uncover cases that raise questions of interest to gender history scholars, even though they rarely raised issues of interest to law reporters. For example, by searching the phrase "breach of promise" in the Historic Australian Newspapers database, a student can discover Cox v. Payne (1825), in which a soap manufacturer, Mr. Cox, sues a certain Captain Payne, who allegedly seduced and abandoned Cox's daughter in Van Diemen's Land. In an account worthy of a Jane Austen subplot, the reporter for The Sydney Gazette and New South Wales Advertiser reveals...