Watching Women: What Illustrations of Courtroom Scenes Tell Us about Women and the Public Sphere in the Nineteenth Century
| DOI | http://doi.org/10.1111/j.1467-6478.2015.00698.x |
| Date | 01 March 2015 |
| Published date | 01 March 2015 |
JOURNAL OF LAW AND SOCIETY
VOLUME 42, NUMBER 1, MARCH 2015
ISSN: 0263-323X, pp. 53±73
Watching Women: What Illustrations of Courtroom Scenes
Tell Us about Women and the Public Sphere in the
Nineteenth Century
Linda Mulcahy*
This article provides a revisionist account of the role of women in the
legal system in the latter decades of the nineteenth century. Contrary to
assertions that women played no role in trials other than as defendants
and witnesses for most of our legal history, it suggests that women
were much more active in the public sphere of Victorian law courts
than previously envisaged. Drawing on depictions of trials in popular
visual culture and fine art, it also reveals how images of the active
female spectator challenged the emergence of new codes of behaviour
which sought to protect the masculine realm of law from corruption by
the feminine. It is argued that images have much to reveal about the
socio-legal dynamics of trials and the ways in which fine art has been
complicit in the construction and reconstruction of behavioural codes
in the courtroom.
Women did not enjoy the freedom of incognito in the crowd. They were never
positioned as the normal occupants of the public realm. They did not have the
right to look, to stare, scrutinize or watch.
1
INTRODUCTION
Open justice is widely acknowledged to be an essential feature of modern
legal systems in democratic states yet very little is known about the people
53
*Department of Law, London School of Economics, Houghton Street,
London WC2A 2AE, England
l.mulcahy@lse.ac.uk
The author would like to thank Lynda Nead, Niki Lacey, and David Sugarman for their
very helpful comments on earlier drafts and to express her thanks to the British Library
and Tate Britain for allowing her to reproduce the images contained in this article.
1 G. Pollock, Vision and Difference: Femininity, Feminism and the Histories of Art
(1988) 71.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
who attend courtrooms to observe trials.
2
Socio-legal scholars have paid a
considerable amount of attention to judges, jurors, lawyers, litigants, and
witnesses but much less consideration has been given to those who sit at the
margins of the court and perform the important task of rendering justice
`open'. While constitutional theorists and human-rights lawyers have focused
on the right of observers to attend trials and the importance of limiting
exceptions to the principle of open justice, they have given much less
thought to the exact nature of the functions that spectators perform once they
are there. This article attempts to fill this gap in existing scholarship by
presenting a group biography of spectators in the latter part of the nineteenth
century. It does so with particular reference to the female spectator. Three
key questions are posed in this work. How have spectators and their role in
the legal process been conceptualized? How have ideas about what con-
stitutes acceptable behaviour in the spectators' gallery changed over time?
What part has visual culture played in determining who should sit in the
public gallery?
As the editors of this volume argue in the introduction, histories of the
legal system and profession have tended to be dominated by accounts of
men. It is undoubtedly the case that women played a much more restricted
part in legal proceedings than men throughout the nineteenth century. It was
men who made law in parliament and an all-male judiciary who interpreted
it. Women were directly and indirectly barred from taking office as barri-
sters, solicitors, judges, jurors or clerks until the twentieth century.
3
Even
criminality was associated with the masculine
4
as is apparent from the fact
that women who stepped out of the role expected of them by murdering their
husbands, lovers, seducers, and children were characterized as `freaks,
lunatics or rebels' by the press, court artists, judiciary, and even `sober
historians'.
5
With women denied the opportunity to participate in court pro-
ceedings as anything other than defendants or witnesses, spectating becomes
a critical role for feminists to explore because it was one of the few roles that
women could play in the trial. Whilst there is a burgeoning literature on
pioneering women lawyers and judges, and the historical importance of the
54
2 Throughout this article I use the words observation, spectatorship, and audience as
though they were synonymous.
3 The exception is the jury of matrons. The first female solicitor was admitted in 1922,
the first female barrister was called to the bar in 1921, and the first female Kings
Counsel was created in 1949. The first female juror was sworn in at the Old Bailey as
recently in January 1921 and the first county court judge, Elizabeth Lane, was not
appointed until 1962.
4 L. Zedner, Women, Crime, and Custody in Victorian England (1991); N. Lacey,
Women, Crime and Character: From Moll Flanders to Tess of the D'Urbervilles
(2008).
5 M. Hartman, `Murder for Respectability: The Case of Madeleine Smith' (1973) 16
Victorian Studies 381, at 381; L. Nead, `Visual culture of the courtroom ± reflections
on History, Law and the Image' (2002) 3 Visual Culture in Britain 119.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
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