Taking the Stand: Women as Witnesses in New Zealand’s Colonial Courts c.1840-1900

Abstract

The study considers women as witnesses in New Zealand’s colonial courts from c.1840 to 1900. An analysis of women as witnesses adds another dimension to what is known about the everyday but often compelling presence of women in New Zealand’s colonial courts. In 1840 British law was formally implemented in Aotearoa/New Zealand. The law’s institutional structures would soon follow. In 1841 the Supreme Court was established followed by the Resident Magistrate Courts in 1846. The courts were a part of formal British governance. While women were excluded from serving as judges, barristers, solicitors, court officials and jury members, they did appear before the courts as victims, defendants, spectators and witnesses. Being a witness was the only form of verbal participation women could undertake in the court processes during the nineteenth century.

Existing scholarly work has tended to concentrate on women appearing in the courts in the nineteenth century as victims or defendants. This study explores the complex agency of women using the law and as active participants in its deliberations. Four substantive chapters consider women as witnesses in cases involving petty offences, violent crime, civil cases and the Native Land Court and finally cases of divorce, bigamy and action of breach of promise of marriage.

Courts were significant public places in colonial New Zealand. They were places where disputes were settled, grievances could be aired, conduct was put on trial and order was maintained. A long established element of the legal tradition was that unprejudiced and fair justice could only be assured if the courts were open and public spaces. Thus, the witness stand was a place where women had a public voice.

Women’s eligibility to appear as witnesses in the court changed over the period under study. In 1840 when British law formally arrived in New Zealand women were restricted in the cases and circumstances in which they could take the stand. Wives were unable to give evidence in cases involving their husbands. From 1843 to 1889 gradual changes to evidence law allowed women to take the stand in different ways and by 1900 women appeared as witnesses in case types ranging from civil actions to the most violent offences in the criminal law. Changes in married women’s property law in 1860, and more significantly in 1884 and divorce law from 1867 generally extended the number and kind of cases in which women gave testimony in the courts. From the 1860s the Native Land Court became a familiar place for many Māori women forced to resort to the Court to establish title over land. Evidence suggests women’s knowledge of whakapapa and the oral histories of iwi and hapū were vital on the witness stand to ‘prove’ their link with land.

The study shows the variety of ways in which the courts were places where women spoke on a public stage, and where their words were often recorded and reported on as part of the official proceedings of the justice system. As witnesses they were also in courtrooms where they watched and were watched in a public domain and their words were heard long before they had any say in political representation. Once women had the vote, from 1893, they were eager to reform the justice system: seeking the opportunity for women to serve on juries, to serve as police, to qualify as lawyers, and in reforming the most egregious injustices such as the differential grounds for wives and husbands to petition for divorce. The application of the law, and the making of the law, proved uneven but had closely interrelated phases in the history of women in colonial New Zealand.