Legal and Liberal Subjects: Women's Crimes in Early Colonial India

In a compelling eighteenth-century murder case in early colonial India, two native women were tried for the murder of a twelve-year-old slave named Susannah, who had been scalded to death when one of her female masters had poured hot oil on her. It was 1777 and the case, Rex v. Betty and Peggy, came up before the newly established Calcutta Supreme Court and was recorded in Justice John Hyde's handwritten notebooks. The case against Betty was dismissed since she was in the next room. The case against Peggy was proved by various witnesses who lived nearby. Peggy's sentence was, however, complicated by the fact that she was two months pregnant.¹

Peggy was examined by several Muslim midwives and then judged by a jury of her peers, which included several Englishwomen, some Portuguese women, and some "Black" women (after some discussion of what a jury of her peers would constitute). In the end, the court decided that since she could not feel her child move, she should be executed the next day. The verdict was read to her in "Hindostanee," since she did not understand English.²

There are many chilling moments to unpack in the legal record of this case: Peggy's horrific crime, her medical examination while in jail, a legal proceeding conducted in English that she might not have understood. Peggy's pregnant body materialized a possible defense against capital punishment, but in the end, because she could not prove a pregnancy, she was sentenced to death.

We might contrast the fate of Peggy's unborn fetus with another one that appears in the legal records of colonial India: Chandra Chasini's, which was aborted with the support of members of her family. Chandra's case was at the center of a ground-breaking essay by Ranajit Guha in Subaltern Studies V and formed an early template for how one might think and write a history of a subaltern woman using legal sources.³

Located in a Bengali compilation of testimonies, the court case surrounding Chandra's death examined the process by which she secured an abortion that resulted in her death in 1849. Although her death was accidental, the testimonies reveal a whole host of social facts about the community in which she lived, observations that Guha drew from colonial statistics, such as gazetteers, censuses, maps, caste classifications, and local knowledge about caste relations and heteronormative practices. The essay is an important lesson in showing students how historical methods rely on layering disparate documents together. Guha's close reading illuminated the subversive strategies taken up by female subalterns in colonial India against local patriarchies that demanded a woman who conceived out of marriage be punished by banishment. It might be possible to make a case for subversion on behalf of Peggy, but there is less to go on. In the words of Radhika Singha, "locating the female subject," is a process that requires many kinds of bureaucratic information that stretch the "infrastructural power of the state" beyond judicial sources.⁴ In the records of the early colonial state (in 1777, it was in the hands of the East India Company), these are the kinds of information that are unavailable in reading the life of Peggy: she had a European name but was categorized as "native"; she had no definite territorial location; and she was legible in the state's records only as a criminal defendant. Comparing these two cases is important for thinking through the pedagogical limits of teaching with legal sources.

In both of these readings, liberal and legal subjectivity are presumed to overlap so just as a liberal subject is self-conscious, thinks autonomously, has rights, and is prone to advance her/his self-interest, so does a legal subject. The idea of a subject that is both recognized by the state and also located in a community constitutes a notion of personhood that allows us to think of legal archives as productive for historical scholarship, particularly for thinking of women as active figures in history. In that sense, Guha speaks to...