Taking the Stand Women as Witnesses in New Zealand’s Colonial Courts c.1840-1900 Elizabeth F. Bowyer A thesis submitted to the Victoria University of Wellington in fulfilment of the requirements for the degree of Master of Arts in History Victoria University of Wellington 2020 ii iii Acknowledgments This thesis could not have been written without the support I received from my supervisor Professor Charlotte Macdonald. Her extensive feedback and enthusiasm has made the year spent on this project one of the most rewarding and challenging experiences I have had. Thank you for being an unfailingly generous person who is so willing to impart knowledge on to your students. Thanks is also greatly owed to all the staff and postgraduate students at Victoria University of Wellington’s History Department. I am exceedingly grateful for the feedback and support you have all given me. I would not have been able to undertake this thesis without the financial support of the Jack Pearce Scholarship in English or New Zealand History, generously donated by Jack Pearce’s daughter, Brenda Joyce. Research trips were funded by Victoria University of Wellington Faculty of Humanities and Social Sciences Joint Research Committee. The Committee also funded my trip to the Australia and New Zealand Law and History Society Conference in Melbourne, alongside the society’s Kercher Scholarship. Attending this conference was an invaluable experience as I delved into the rich discipline of legal history. Thank you to my lovely parents, James and Helen, for always being on the other end of the phone when I need someone to chat to and for proof reading every word of this thesis. I don’t know where I would be without you both. Thank you to my wonderful husband Sam, who has believed in me unconditionally and constantly encouraged me to take every opportunity that has come my way, even when it meant sacrificing more of the precious little time we get to spend together. I would lastly like to acknowledge all the women that I wrote about in this thesis. I hope I have treated your voices with the respect they deserve. iv v Table of Contents ABstract vii List of ABBreviations ix Introduction 1 Chapter One Taking the Stand in Cases of Petty Crime 27 Chapter Two Women as Witnesses in Cases of Violent Crime 57 Chapter Three Women and Wives Giving Evidence in Civil Cases and the Native Land Court 89 Chapter Four Taking the Stand in Cases of Divorce, Bigamy and Action of Breach of Promise of Marriage 117 Conclusion 145 BiBliography 155 vi vii 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. viii ix List of Abbreviations ANZ Archives New Zealand NSW New South Wales NZJH New Zealand Journal of History NZLR New Zealand Law Reports NZPD New Zealand Parliamentary Debate WCTU Women’s Christian Temperance Union x 1 Introduction “There can be no doubt that a woman is no good as a witness; in fact, she is as a rule, an absolute failure, either making damaging admissions unsolicited against the side in whose favour she is produced, or giving, in the same way, information positively useful to the opponents. A woman cannot seem to understand that, as a witness, she is only required to simply answer the questions put to her, without adding supplementary information and a few of her own comments, as she invariably does. inborn characteristics we must blame, I suppose, for she is as bad a witness to-day as ever, and I do not think she will ever learn that as much silence is peculiarly golden and useful to the side for which she appears whilst undergoing the not altogether pleasant ordeal in the witness box."1 These were the words spoken by a “well-known” Australian barrister which appeared in a number of Australian and New Zealand newspapers in 1897.2 His words represent a common view of women on the witness stand at the end of the nineteenth century. Women witnesses took an active and vocal role in courts of law in the nineteenth century, while occupying no positions in the machinery of the legal system. Women could not be judges, barristers, solicitors, bailiffs, clerks, police or prison officers, only occasionally was a female searcher for the police called upon. Women were deemed unsuitable to serve on juries in New Zealand until 1942 with the one exceptional incident of a jury of matrons in 1883.3 It was not until 1 ‘Exchange’, Bay of Plenty Times, 15 December 1897, p.3. https://paperspast.natlib.govt.nz/newspapers/BOPT18971215.2.21.1; ‘Women as Witnesses’, The Dubbo Liberal and Macquarie Advocate, 25 September 1897, p.4. http://nla.gov.au/nla.news-article72501593; ‘Women as Witnesses’, The Armidale Express and New England General Advertiser, 24 September 1897, p.7. http://nla.gov.au/nla.news-article193369909; ‘Women as Witnesses’, The Sydney Mail and New South Wales Advertiser, 13 November 1897, p.1028. http://nla.gov.au/nla.news-article163798207. 2 ibid. 3 The first woman to become a lawyer in New Zealand was Ethel Benjamin, who was admitted to the bar in 1897. Throughout her eleven-year career she faced discrimination on the basis of her sex. She had great difficulty obtaining work, was never invited to the Otago District Law Society Bar dinners and had to work in a 2 1962 that women were allowed to serve on a jury on the same grounds as men, and it was not until 1976 that they could not opt out of jury service on the basis of being a woman.4 Until 1893 women could not exercise any say in the making or shaping of the law through the right to vote nor could they be involved in the writing of the law through sitting as representatives in parliament until 1919. It was not until Elizabeth McCombs was elected in 1933 that New Zealand saw its first woman Member of Parliament. The very language of the law in its statutes was dominated by the male pronoun.