Teaching and doing digital history.

Reflections on Domestic Law & Violence

Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence (1988)

Gordon examines trends in family violence in Boston between 1870 to 1960. She argues that family violence is historically and politically constructed (as evidenced from her choice of subtitle.) Further, she states that the definitions of unacceptable family violence developed through changing political moods over time; and that intra-family conflict was political itself and often stemmed from family members competing with each other over scarce resources and power; lastly, she argues that approaches to family violence changed with the culture and politics of the time. Gordon uses an almost extant collection of case files from three Boston-area child protection service organizations, within which she finds four predominant types of family violence: cruelty to children, child neglect, the sexual abuse of children, and wife beating or marital rape. She finds that there is some evidence of ethnic difference between the details of the cases, but the main influence of violence within the family is poverty.

 

John Ruston Pagan, Anne Orthwood’s Bastard: Sex and Law in Early Virginia (2003)

By analyzing four separate, but related, lawsuits stemming from the birth of the bastard son of Anne Orthwood, Pagan explores how English custom and law evolved in the Chesapeake. He argues that colonial Virginians adapted English common law to accommodate the realities of life in the tobacco culture of early Virginia. In this way, Pagan, argues, the community worked with the judiciary to forge new policies and precedents, which affected everyone. Through this micro study of one community, he explores four main themes in Virginia law: contracts and the sale of servants, child support and other domestic bastardy laws, criminal fornication and participation of church and state, and the emancipation of servants. He does so by organizing his chapters around key individuals in the community and their role in either the crimes, the suits or the judiciary. Pagan’s work provides plenty of local Virginia color with regard to morality, deviance, and laws affecting the sexuality of servant women, which will be helpful for setting the context of my earlier cases.

 

Elaine Forman Crane, Witches, Wifebeaters and Whores: Common Law and Common Folk in Early America (2011)

Crane argues that small stories contain the potential to reveal aspects of a larger culture. As such, she offers six different legal stories in her collection of what should be considered separate essays. Each chapter depicts one colonial legal issue. Through these she covers slander, witchcraft, domestic violence, slavery, rape, and debt across a variety of colonies. She offers a theme in lieu of a coherent argument tying these disparate cases together: “the ways in which legal culture and the routine of daily were knotted together in early America.” (4) Like Pagan, Crane finds that colonists did not import English precedent wholesale, but that they adapted it to fit their needs on the ground in the colonies.

 


  • Pagan points to the economic value of servant women in Virginia as key to understanding at least the initial lawsuit over the fraudulent sale of a pregnant Anne Orthwood, an indentured servant. Orthwood’s pregnancy occurred twenty years after the initial tithe was levied on African women, which Kathleen Brown argues made it impossible for African women to marry, purchase their freedom, and establish families and independent households. (See Brown, Good Wives, Nasty Wenches, p 108) Brown states that English women, servant and free, were too weak to produce as much as prime male hands and were categorized as dependents in terms of their taxability (Brown, 119.) How then does the type of labor affect their economic value? And how do these economic questions about the value of women in Virginia affect their status when they show up in a court of law?
  • Additionally, Gordon argues we should redefine patriarchy to incorporate male domination of the family AND the family’s position as a unit of social and economic power. Intra-family power struggles are key to Gordon’s argument. As such, individuals within families clashed over economic questions (wages, care and feeding of children, other resources) and wives stayed in abusive relationships due to their total economic dependence. The importance of economics to violence and crime should not be understated.
  • Gordon argues that the abused employed the “powers of the weak” to exploit all available resources to escape violence within their family. Odem also argues that families used the juvenile courts to rein control over delinquent daughters. Together, they argue that the groups most typically studied as objects of social control wrest that control–albeit bits at a time–to use for themselves. In my project, as women navigate the judiciary system, questions of agency will surface.
  • Crane finds that even though common social values operated under a legal umbrella, people resisted the established order by offering counternarratives ¬†and behaving in deviant ways; fewer outright rejected the dominant value system. In so doing, she seems to be offering a continuum on which behavior can fall. One challenge I had in my essay was that murder seemed far from illicit sexual behavior. However Crane’s framework here may prove useful as I connect deviant behavior and criminal behavior with the counter-narratives told at trial to justify them.
  • Crane’s book offers a nice example of how to make a scholarly work about colonial law readable, though I’m not entirely sold on the coherence of the themes contained therein.

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