For decades, scholars from multiple disciplines have used legal records to illuminate a diverse array of topics involving women, from property rights, inheritance, and commercial activity to sexuality, honor, and emotions. For optimistic researchers eager to recapture “authentic” voices from the past, the millions of pages of surviving depositions held in British archives resemble the largest oral history project ever undertaken. However, the legal participation and unguarded utterances of women often remain elusive. Numerous pleadings and decision books, for example, contain blank spaces where scribes intended but subsequently failed to insert wives’ names, omissions that are rare for husbands. Similarly, for the medieval period, the most prolific litigant in England was et uxor (and wife), making it difficult to determine individual women's contributions to proceedings.Footnote 1 Above all, scholars must address the mediating influence of the male lawyers, scribes, and recorders who helped produce legal documents and records, and the processes and requirements that governed their form.Footnote 2
Three current trends are heightening the relevance of these problems of interpretation. Firstly, scholarly debate about the reliability of legal records and the best ways to interpret them is intensifying; secondly, these matters take on renewed importance in a digital age, when legal records are more accessible than ever but are also more easily divorced from their institutional, technical, and archival contexts; and thirdly, the expertise required to understand institutional contexts and the purposes that legal materials served is being acquired and disseminated in new ways. Whereas the first wave of literary scholars and historians interested in legal materials turned to legal historians for technical knowledge, subsequent generations have relied more on practitioners within their own subdisciplines (for example, social historians looking to social historians), a process with the potential to dilute expertise or perpetuate misunderstandings. This essay aims to rehearse a selection of the problems associated with interpreting legal records involving women, some obvious, some not so obvious, and to consider techniques for addressing them.
The first scholars to make extensive use of legal materials took their lead from anthropology. In classic texts such as Carlo Ginzburg's The Cheese and the Worms and Emmanuel Le Roy Ladurie's Montaillou, social and cultural historians approached legal documents as sources to unlock.Footnote 3 They believed that legal records preserved solid traces of people's lives, and it was simply a matter of compensating for legal filters to liberate the participants’ “true” thoughts, feelings, and experiences contained within. Critics of this approach highlighted the uncertainties produced by translation and mediation, with many concluding that legal processes shaped the evidence almost beyond recognition, particularly where women were concerned. The solution, Natalie Zemon Davis suggested, was to embrace the distortion that legal process induces and to make “fiction in the archives” the object of study. Litigants and deponents told stories in court, in the sense that they selected which facts to include or exclude and shaped them into persuasive narratives, providing evidence of shared understandings of storytelling.Footnote 4 Instead of taking sides in disputes and attempting to separate true statements from false, researchers should, in Cordelia Beattie's words, “move beyond the alleged truths of the dispute itself on to broader cultural attitudes” about a range of subjects including the nature and influence of attitudes to gender.Footnote 5 Yet major questions remain unanswered, about whose narrative skills and values records reveal. Are they those of the litigants and witnesses? The proctors, advocates, and legal counsel? Or the judges or jurors? Were values and beliefs shared or discreet? Did participants feign or exaggerate moral outrage, or was it sincere? And did they experience this outrage at the time of the incident or conjure it later with the benefit of hindsight? Faced with difficulties that seem intractable, some scholars have expressed skepticism about the whole enterprise. They stress the mediating power of language and the virtual impossibility of recapturing accurate details about individuals’ lives and inner thoughts from surviving legal texts.Footnote 6
Reacting against a perceived fixation on representation, a growing group of historians openly express their resistance to the idea that no element of women's (and men's) individual experiences, beliefs, and motivations can reliably be recovered from legal materials. In the introduction to their essay collection Women, Agency and the Law, Bronach Kane and Fiona Williamson warn of the dangers of theoretical positions “that shift the analytic focus towards language at the expense of social practice,” echoing other historians’ concerns about privileging “language (and representations) rather than experience (and reality).”Footnote 7 They concede that legal records “do not faithfully represent women's ‘voices,’” but argue that they can reveal the agency and autonomy that ordinary female litigants and witnesses exercised.Footnote 8 In an innovative study of church court proceedings, Tom Johnson laments the assumption that “premodern witnesses were simply conduits of discourse” and seeks “to give witnesses some of their critical faculties back.”Footnote 9 A few literary scholars share this sense that legal records contain solid evidence of women's lives and beliefs. Genelle Gertz argues that heresy trials provided a forum for active first-person voices that became a template for female authors, while M. C. Bodden suggests that where depositions include instances of direct speech, “We can read them as representative of speech events and reasonably faithful accounts of women's conversations.”Footnote 10
The desire to get as close as possible to the subjects of study is powerful, leading growing numbers of scholars to reject suggestions that they should “cautiously turn a deaf ear to the siren call of the voices of litigants and witnesses.”Footnote 11 Yet for scholars who rely on legal materials, dangers remain, whether they focus on the manufacture of narratives, seek to identify the residual presence of real individuals, or do both, given the complexities of the law and the remarkable variation in legal materials within and between archives.
In her important 2013 book True Relations: Reading, Literature, and Evidence in Seventeenth-Century England, Frances Dolan takes social and feminist historians to task for their use of legal records. She points out how often historians acknowledge the problems associated with interpretation of legal sources in their introductions but then (after inserting words like “nonetheless”) pay only cursory attention to these disclaimers in their analyses. Dolan's argument is in her title: the phrase “true relations,” one of those curious formulations (like the First Folio's claim to reproduce Shakespeare's plays from “True Original Copies”) that became so common in the seventeenth century. Dolan takes the phrase as a “provocation for thinking about truth in and as relation.”Footnote 12 Early modern readers and authors repeatedly had to choose between competing narratives that presented alternative versions of the truth. This was especially true in England and Wales after the Reformation, when confessional divisions led to competing claims about ultimate spiritual truths. Dolan urges researchers to consider more closely the relationships between participants, events, and audiences and the motivations that grounded particular accounts.
According to Dolan, we need to acknowledge the “artfulness” of legal sources so that we can recognize that “all true relations from the seventeenth century are fictions, without assuming them to be untrue.” Given this fundamental point, she maintains that the project of seeking authentic voices is misguided, even in witness depositions, which most researchers assume to be the least tainted by adversarial self-interest. Many scholars search keenly for the first-person “I” in depositions, acknowledging that these sources were collaborative and mediated but making much of ill-defined practices such as reading “against the grain” or “between the lines.” For Dolan, there simply is no unmediated “I,” because these texts are artificial and relational, presenting relational truths.Footnote 13
Some empirically minded scholars might characterize Dolan's polemic as an unabashed land grab, seeking to muscle historians out of the archives or at least to join them at the document table. As she reflects, “If there is fiction in the archives, literary criticism needs to be there as well.”Footnote 14 However, the wider questions she raises cannot easily be dismissed. As Ethan Shagan willingly admits, “Dolan deftly cuts through the muddle that allows all of us, literary critics and historians, to acknowledge the limitations of our sources with one side of our mouths, while with the other side proceeding to read them however most suits our needs.”Footnote 15
Dolan's exposure of historians who do not adhere closely enough to their own principles and caveats comes from both her historical and her literary training. Practitioners need to take her criticisms seriously, just as they need to pay more heed than many currently do to the technical concerns of lawyers and legal historians.Footnote 16 In navigating the different positions that current scholars take on legal evidence, I argue that the complexities are more pronounced than many realize but that the choice of solutions is not as stark as it can appear. Some sources are more fictive (or relational) than others. Historians and literary scholars need to continue to ask difficult questions about the divisions between reality and representation and to remain vigilant in the archives, but they do not have to settle on a single unified approach to all legal records.
Legal Contexts
Some of the difficulties associated with interpreting legal records arise from the seductive quality of the material. The requirements of legal institutions for evidence and sworn testimony can make legal records perhaps appear more objective than personal or reflective sources such as letters, diaries, or sermons. This sense is magnified by the practical effects that legal actions and orders had on individuals and communities. The stakes were often high, encompassing corporal or capital punishment, money damages, public penance, or the settling of title to land, presumably encouraging a degree of sober objectivity. Yet the adversarial nature of legal proceedings colored almost everything. Then as now, the primary goal of courts was not the identification of historical truths but the resolution of conflicts. Early modern criminal trial juries judged character more often than evidence and, like their modern counterparts, were asked to choose between conflicting versions of events. Civil court judges did the same, siding with plaintiffs or defendants in determining guilt, innocence, or liability. The adversarial frame encouraged a culture of exaggeration and all but ensured that no single account provides a fully accurate recreation of past events. In this sense, pleadings in English courts were relational well before the sixteenth century and only became more so during the period of record litigation and near-record criminal prosecutions between about 1580 and 1640, the very period when Dolan maintains that the process of presenting (and distinguishing) relational forms of truth became increasingly self-conscious.
Archival Constraints
Legal documents are obviously shaped by their intended purpose and the conditions of their creation, and this context can skew evidence before researchers begin to evaluate it. One of the most important things to consider about a legal archive is, therefore, what it does not contain. Are particular categories of litigant absent because they lacked the funds, knowledge, or confidence to sue, or simply because they lacked “standing,” the legal entitlement, to sue? Are certain categories of crime or subjects of litigation absent merely because jurisdictional requirements precluded them? These questions are easy to overlook, given the habit of analyzing collections of documents on their own terms. To take just one example, scholars have made great inroads examining surviving premodern wills and inventories and have identified significant differences across time and between male and female will makers, revealing the personal nature of female bequests and the kinship and friendship circles they reveal.Footnote 17 Such findings are important, but they need to be interpreted against the economic and legal practicalities that induced people (usually the minority) to prepare wills and influenced the form they took. The effects of the legal rules of coverture, for example, restricted married women's ability to give gifts in life and so could influence the bequests they made at death. The existence of legal instruments (such uses and trusts, and entails in male tail) also affected decision making about inheritance, making it risky to interpret a will on its own.
Written wills could be expensive to procure, and in the early modern period the decision to make a will commonly resulted from unhappiness with the rules of intestate succession and reflected a particular moment in individual lifecycles. To take perhaps the most studied English will of all time, scholars have made numerous bold claims about William Shakespeare's feelings toward his family from the bequests he made, yet few of these claims have stood the test of time. Shakespeare's primary aim seems to have been to ensure that the bulk of his real estate stayed together by leaving it to his eldest daughter, Susanna, rather than have it shared equally with her sister Judith under the rules of primogeniture.Footnote 18 Concerns about patrimony, not favoritism, appear to have guided him. As Amanda Bevan and David Foster have recently argued, between the writing and subsequent revising of the will (almost certainly involving the insertion of a new first and third page), Judith became betrothed to Thomas Quiney, prompting Shakespeare and his legal advisors to secure her future before her marriage (not afterward, when Quiney confessed to fathering a bastard). Similarly, Shakespeare's only bequest to his wife, Anne, of the “second best bed,” has often been read as evidence for the lack of love in the Shakespeare marriage. Yet the absence of detailed bequests to Anne, of the kind common in other husbands’ wills from the period, more likely confirms that Shakespeare was perfectly happy for her to claim her full dower third.Footnote 19 The will alone cannot prove anything about Shakespeare's affections for his daughter and his wife.
Legal Fictions
Anyone familiar with legal history is aware of the misleading potential of legal fictions— false facts deemed legally true—developed by lawyers or institutions to achieve particular legal ends. Well-known examples include the imaginary parties John Doe and Richard Roe in actions of ejectment and the ubiquitous claims of riots in the pleadings of Star Chamber. Other fictions, however, are not so obvious, such as the frequent claim in equity court pleadings that deeds and other documents came into a defendant's hands “by casual means,” a suggestion intended to bring a case within the court's equity jurisdiction.Footnote 20 Or consider a Northamptonshire litigant's bill of complaint in Star Chamber in 1608 that alleged the man's stepmother, Mary, and her accomplices had forcibly entered onto his lands, destroyed his fences, and driven her cattle into his fields to graze. An array of rich and historically important narratives could be drawn from this pleading, from stepfamily dissension to anti-enclosure hedge breaking and perhaps the symbolic reassertion of customary grazing rights. What actually appears to have happened is that Mary went to bed a wife and woke up a widow. She did not move her body, her residence, or her cattle. What shifted was the contested legal ownership of her interest in the house and lands the moment her husband died. If I am right, then this was an entirely fictional trespass that her stepson and his legal counsel felt was best described using a rhetoric of legal violence.Footnote 21
Motivations
The reasons why women and men chose to go to law often appear self-evident: a debt went unpaid and a creditor sued, for example. However, scholars able to match court records to private papers have shown how the relationship between the decision to litigate or prosecute and the acts or omissions complained of was not always straightforward.Footnote 22 A single case might form part of a broader strategy, to delay, derail, or facilitate a different suit, or to cost opponents money.Footnote 23 Witchcraft accusations could emerge as temperatures rose in disputes that had entirely different roots. Widows sometimes commenced actions years or even decades after missed payment dates for debts owed to their late husbands, which opponents argued had long since been settled. Any particular widow may have been cynical, vindictive, ignorant, opportunistic, or sincerely seeking justice. She may also have been aiming to protect herself against prosecution, given the legal obligation on executors and administrators to litigate all uncanceled bonds—but how can we know?Footnote 24 Other difficulties can also complicate the drawing of obvious conclusions. When husbands and wives appeared as joint parties in lawsuits, this might suggest active women and cooperative marriages, but it may also have been legally required (if her interests were involved) or the practical result of a wife's inability under coverture to be held liable for court costs. Some lawsuits were collusive, entered into by opposing parties with an ulterior purpose in mind, such as achieving official recognition of the ownership of interests in land. For example, equity justices occasionally ordered litigants to contest a suit at common law to have title to land settled, after which matters of equity could be determined. Examples also exist of deceitful husbands deliberately having accomplices sue them for debt so that damages could be recovered from their estranged wives’ assets.Footnote 25 In each of these instances, the pleadings contain combative rhetoric that is indistinguishable from the language found in regular suits that were not collusive.
Depositions and Interrogatories
Depositions offer the most tantalizing evidence because they purport to record the spoken answers of individuals from almost all walks of life. They are also the source that most divides researchers in this area. Some scholars are adamant that depositions recapture lost voices, while others conclude that “we rarely, in fact, read the villagers’ own words reported directly,” because “a process of mediation and interpretation, if not of translation, takes place when villagers’ speech is transposed into the documents.”Footnote 26 It is worth remembering here how often legal commentators criticized depositions. Writing in the fifteenth century, Sir John Fortescue expressed contempt for this aspect of civil law process, because witnesses could depose in private and not be subject to cross-examination; he and other legal observers worried about the vulnerability of poor witnesses to bribery or manipulation by their betters.Footnote 27 Hillary Taylor's recent work confirms some of their suspicions and reveals how the intricacies of local politics influenced deponents’ decisions about whether, or how, to participate in legal disputes.Footnote 28 Furthermore, within pleadings and depositions themselves, allegations of lying are rife. Parties also accused opponents (and even commissioners) of falsifying depositions by inserting words or phrases that “were never uttered, nor spoken by the said deponent, nor sett downe in the paper deposicions,” and from the later sixteenth century onward English prosecutions for perjury rose dramatically.Footnote 29
Even in the absence of fraud, most witnesses wholeheartedly supported the party who had called them. As Daniel Smail has observed of the generic quality of depositions from Marseille courts, “The witnesses recruited by late medieval litigants can be said to form a witness program, a sequence of depositions designed to build up an image or an aesthetic of truth.”Footnote 30 It is also clear that the coaching of witnesses was common.Footnote 31 Sara Butler describes how witnesses in a church court dispute “knew what was expected of them and accordingly produced depositions of a highly damning nature.”Footnote 32 In another case, Jeremy Goldberg identifies an instance where a deponent mistakenly responded to one question with the answer to another (not yet asked), suggesting that depositions provide “not spontaneous testimony” but “pre-rehearsed drama.”Footnote 33
A further problem with depositions is the influence of the questions that prompted them—the interrogatories or sets of articles that counsel or that officials drafted with legal strategies in mind. Almost every set of interrogatories surviving from the medieval and early modern periods would be inadmissible under modern rules of evidence for including leading questions. Furthermore, historians usually pay insufficient attention to the legal requirements that guided and restricted clerks and scribes in the preparation of depositions. If a deponent referred only to “him” or “her” or “he” or “she,” a need for legal clarity demanded that the scribe silently write in the name of the person indicated. Similarly, if the deponent said “last Sunday,” the scribe might insert “the Sunday after Whitsuntide,” making it problematical to use this evidence to determine popular understandings of time and ritual calendars. These legal priorities of scribes served to translate or homogenize, although not totally erase, uses of local dialect and idiosyncratic speech or details that strayed too far from the point at issue. Scribal practices and legal priorities also changed over time, such as the move from Latin to the vernacular in mid-sixteenth-century English church courts and the increasing focus on material facts over proof of character in most sixteenth- and seventeenth-century courts. Alongside changes in formal procedures, cultures of note taking could also evolve within particular institutions, such as the increasing informality in the York consistory court that Goldberg identifies between the fourteenth and fifteenth centuries.Footnote 34
Above all, researchers need to consider more closely the frequency with which the wording of depositions mirrored or matched the wording of interrogatories or articles. Interrogatories and depositions were separate documents that often became separated during court proceedings, and remain separated in modern archives. Once again, for reasons of certainty, scribes might supply wording in answers that deponents never uttered. Compare the following question and answer:
The obvious assumption is that the deponent parroted back the words of the interrogatory. I have a strong suspicion, however, that this deponent simply answered “yes.” In thirty years of reading depositions from multiple equity and prerogative courts, I have never encountered a record of a witness saying simply “yes” or “no” (as some did in church courts), yet it seems reasonable to assume that many did. If so, it was the scribe who inked in the detail, copying out wording from the interrogatory with an eye to the legal purposes of the court (not the future curiosity of historians and literary scholars).
Some litigants and lawyers also appear to have used interrogatories to undermine their opponents by airing rumors or introducing false accusations that all deponents denied. Contemporaries complained vociferously about defamatory interrogatories, and court officials often delayed the interviewing of deponents or the publication or release of depositions until the suitability and relevance of their contents could be checked.Footnote 36 The framing of interrogatories is therefore key, and all scholars working with depositions should consider this process more closely. Heather Falvey is leading the way here, showing how in cases of popular protest, magistrates and commissioners prepared affidavits and memoranda based on eyewitnesses’ versions of events that could directly inform the framing of interrogatories. Given that they were based on prior knowledge of potential witnesses and their recollections, “interrogatories are no less significant for the narrative reconstruction of popular protest” than depositions.Footnote 37 Interrogatories and articles brim with leading questions, but leading questions can be very revealing of an interested party's version of events.
These various concerns raise the possibility of a worst-case scenario, in which a lone surviving deposition full of evocative material might actually be the product of a highly leading interrogatory, framed solely by a lawyer, to which a deponent simply answered “yes” to conform to expectations and not hazard their relationship with the litigant or accused, leading the scribe carefully to copy out the wording of that interrogatory. Whose “authentic” voice is this? And how do we distinguish an instance like this from a rich and detailed first-person narrative spoken from the heart without undue influence or interference? When the interrogatories survive, they can be a great help, and when multiple depositions survive, it is possible to distinguish those that parrot the wording of questions from those that provide unique details and distinct phrasing. However, in instances where only stray depositions survive, no method exists to determine with confidence the accuracy of a deponent's words and the extent of any mediation.
The scope of this article does not permit a comprehensive exploration of other concerns about legal records, including the serendipity of record survival (from lost Star Chamber decision books to missing church court interrogatories) and the deliberate employment of classical rhetoric in pleadings and interrogatories.Footnote 38 Yet the scale of the interpretive difficulties should be clear, and it exposes three fundamental issues that divide current researchers. The first concerns the relationship between what happened and reports of what happened in legal materials. The second is the contribution that litigants and witnesses made to proceedings, given the influence of lawyers and scribes. And the third is what we mean by “authentic.” However, the variation in legal records (and in human experience) means that it is unhelpful to make rigid or universal claims about the limits of interpretation. Acknowledging that questions about accuracy and motivation are impossible to answer in one case does not mean that they cannot safely be attempted in another. Equally, recognizing the influence of legal counsel and court officials does not automatically negate the input of particular litigants and witnesses. Surviving correspondence between litigating parties and attorneys and legal counsel reveals a diversity of experiences, ranging from litigants with expert knowledge actively directing their counsel (to the point where phrases from their letters appeared in pleadings) to others who openly confessed their ignorance of legal particulars.Footnote 39
Nor do the myriad possibilities for mediation and rhetorical artifice mean that scholars should focus only on narrative and storytelling and give up the quest to recover what occurred and what people may have said.Footnote 40 Different sources demand and permit different techniques, and acknowledging the fictive elements in testimony and pleadings does not necessarily preclude surmising what actually happened. As Cordelia Beattie puts it, historians “need not choose utterly between the ‘textual’ and the ‘social.’”Footnote 41 Each record, each archive, and each scholarly purpose requires a specific approach, depending in particular on the availability of corroborative material relating to the case within and outside legal archives.
Possible Approaches
A number of methods exist for countering the problems that court records present. Perhaps the most straightforward is to steer clear of truth claims and focus on legal events. This approach might involve determining the percentage of female litigants in particular courts at different times, their marital status, and the subjects and outcomes of their disputes and trials. Widening the net, Daniel Smail has investigated the deponents who appeared on both sides of a dowry dispute in late medieval Marseilles and determined where they lived, their social status and backgrounds, and their relationship to the parties, recovering the community dynamics at a particular moment.Footnote 42 He has also looked at multiple cases to uncover evidence of anger and the breakdown of neighborly relations in the city.Footnote 43
Another approach is to mine data in legal records by distinguishing immaterial from material facts in thousands of documents from multiple archives. Alexandra Shepard has examined witnesses’ declarations of their material worth in church court depositions to produce a nuanced analysis of economic status that documents changes over time.Footnote 44 Maria Ågren and her colleagues at Uppsala University are studying women's work by examining what witnesses and litigants said they were doing at the time alleged or contested events occurred. This focus on verbs rather than on the nouns that people used when describing themselves is facilitating a sophisticated evaluation of changing employment patterns. Jane Whittle and Mark Hailwood are conducting a similar study at Exeter University, extracting information about women's work in rural England from incidental evidence in church court depositions, quarter sessions examinations, and coroners’ rolls from five counties. Determining the accuracy of supposedly immaterial facts presents its own difficulties, as the underestimating of female literacy rates based on signatures in legal records has shown, but the sheer quantity of evidence these studies examine can mitigate some of these concerns.Footnote 45
When focusing on contested allegations, a useful tactic is to concentrate on instances where the form of words was at issue, such as in libel actions, which heightened the need for accurate recording or the inclusion of offending libels as evidence.Footnote 46 The sense that some words and phrases might be more accurately recorded than others also applies to the insults alleged in defamation cases and to instances where scribes included vernacular phrases in Latin depositions. Discrepancies between interrogatories and depositions, or variations between different deponents’ answers to the same interrogatory, also offer glimpses of original words and phrases subject to less translation or interference that can illuminate subjects such as popular memory.Footnote 47 Rare aberrations, such as pleadings that slip from the third person into the first, also provide tantalizing evidence suggesting the direct input of litigants.Footnote 48
All of these different methods have their place, and more are on display in the articles in this volume. A feature of many, however, is that they can be applied only to a fraction of the surviving records in an archive. Rich corroborative material does not survive for most cases, especially for poorer litigants and witnesses, and the majority of cases have left an incomplete record due to the loss of documents or to litigant decisions to halt proceedings or settle out of court. The fact that in many jurisdictions between 80 and 90 percent of cases did not proceed to final judgment means that relying only on cases with the fullest documentation is not the solution, as these cases are by definition not representative.Footnote 49 How, then, should researchers proceed?
Context
The first thing to stress is the importance of context. The available options depend on the particularities of the subject, on the archive, and on document survival. A lone deposition obviously presents different evidentiary challenges than a bulging case file backed up by personal correspondence and a verdict. In some instances, court clerks and officials functioned “almost as hidden puppeteers, controlling both the subject of our inquiry, and even guiding our own analysis.”Footnote 50 In others, their touch was lighter, and the parchment and paper capture something of the passionate claims and language of illiterate women and men without excessive mediation. The eternal problem is in discerning one from the other, but the best way to proceed is to treat legal records with the same rigor as other sources, rather than affording them special status because they were sworn on oath or appear to record direct speech. The discipline of history has always required the making of suppositions and forming of generalizations based on incomplete or unsatisfactory evidence, regardless of genre or type. What is required is a more consistent application of scholarly humility to what interpretations particular evidence will or will not safely bear, and greater openness to authorial decisions of selection, evaluation, and analysis.
Language and Interpretation
To achieve this openness, we would do well to pay closer attention to language—our own as well as that of our subjects. In particular, careful reading of litigation records needs to be combined with careful writing. A number of Dolan's criticisms could be avoided through the consistent employment of a lawyer's precision when relaying information, so as to leave no doubt in readers’ minds about what the sources contain and how and when scholars have drawn conclusions from them. This degree of precision means making it clear that depositions and pleadings were written in the third person, rather than silently transforming them into the first person (which creates a false sense of immediacy and disguises the influence of legal counsel and officials) and avoiding loose claims that scribes recorded answers “more or less verbatim.”Footnote 51 It also entails avoiding bold statements about what happened or who was at fault and instead consistently using measured, if inelegant, phrases such as “according to the plaintiff's bill,” “in the account given by the defendant and her counsel,” the “alleged assault,” “the deponent reported Mary to have said,” “from this it appears likely,” and so on.Footnote 52 This rigor in observing the limits of evidence allows for alternative possibilities and lets readers draw their own conclusions even (or especially) when they disagree with the methodological assumptions of the researcher. Good journalists write this way to avoid being sued for defamation, and we should be no less cautious simply because historical subjects cannot answer back. Such scholarly rigor also offers protection from the future discovery of evidence that contradicts or complicates particular interpretations. Openness can be taken further by providing transcriptions of original sources where practical, whether in long quotes or in appendices.Footnote 53
Identifying Repertoires
It is perhaps unfortunate that Natalie Davis used the term fiction rather than narratives in the title of her influential book about archives, leading many readers to think of invention rather than creative structuring in legal testimonies. Either way, regardless of where researchers sit on the spectrum from believing legal testimony to be innocently or sincerely proffered to assuming it was cynically fashioned by lawyers, there is much to be gained by identifying the repertoires that authors of legal pleadings and documents drew upon. Whether honest or deceitful, individuals contributing to legal conversations sought to be plausible and persuasive. The resulting pleadings and depositions therefore allow us to reconstruct norms, conventions, and moral benchmarks or templates by comparing multiple documents to determine which content was shared and which unique.Footnote 54 As I have argued elsewhere, examining cases based on parties’ relationships can reveal the ideal types that individuals sought to align themselves with (model master, servant, daughter, son, mother, father, stepmother, husband, wife, landlord, or neighbor) and the imperfect opposites they drew upon to discredit their opponents.Footnote 55 Similarly, where parties employed legal fictions, these can be studied for what they reveal as well as for what they conceal.Footnote 56
The resulting repertoires of adjectives, values, archetypes, and assumptions can be compared not only with each other and over time but also between archives. Examinations of church court defamation records, for example, underline the extent to which sexual honor was an essential constituent of female reputation.Footnote 57 Yet, as Alexandra Shepard has shown, answers about female deponents’ worth confirm the vital importance of material possessions, labor, economic diligence, and independence in determining credit and credibility.Footnote 58 Records from equity or prerogative courts confirm the importance of sexual honesty but also reveal a more expansive vision of female honor that was largely economic in nature, centered on careful household provisioning and management of wealth and goods.Footnote 59 If no single source can provide a definitive picture, meaningful conclusions can be reached after considering studies based on multiple sources from disparate archives (nonlegal as well as legal).
Collective analysis of characterizations can reveal local and universal vocabularies of credit and reputation that are more reliable than any one of the individual claims from which they are drawn. They can also reveal changes over time. To take the most unsavory of examples, individual accounts of domestic violence are notoriously difficult to assess for factual accuracy, given the lack of effective protections for women and the vehemence with which parties contested allegations. However, examining multiple cases to observe what conduct accused abusers were willing to concede or admit, what they denied, and the length and nature of their justification, can reveal the contours of what women and men felt were acceptable and unacceptable behaviors during particular historical periods. Gendered appeals to reason and passion and other emotions can be analyzed in the same manner.Footnote 60
Collaboration
Despite all of the complicating factors and uncertainties that make it so hard to speak with assurance about the veracity or historical significance of the contents of any single document, it is still possible to recover female contributions to legal records. Actual women initiated or defended lawsuits arising from genuine concerns and disagreements, and witnesses spoke on oath before legal officials who recorded their legal encounters and testimony. For all their faults, these are often the best, or the only, sources that purport to capture the voices of non-elite women. Careful reading of pleadings and depositions with an eye to idiosyncratic detail or turns of phrase that stand out from formulaic structures or idioms can yield significant results. What is much harder to do, however, is to evaluate the female voices recovered in this way. The idea that they might be “authentic” is unhelpful if this is taken to mean a clear expression of women's private inner thoughts or of a single authentic self. Voices in a courtroom are usually different from voices in a field or parlor, and women's awareness of their intended audience shaped their words and testimony in all the sources that survive, whether in letters addressed to family members or in spiritual diaries directed to their god. To take a male example, Sir Richard Grosvenor counseled his son in a letter to be forgiving and to avoid litigation, yet neighbors accused him of engaging in unethical litigation for profit.Footnote 61 Which was the “authentic” Grosvenor? Once again, legal records need to be treated in the same way as other sources that purport to provide evidence of speech.Footnote 62
As well as attempting to recover elusive voices by compensating for all of the problems associated with legal records (a process that can be akin to peeling away the layers of an onion until barely anything remains), it makes sense to focus on courtroom voices and how they were created. This entails, for example, regarding Latin formulations of speech in court documents as the original text “as opposed to trying to recover a lost vernacular original behind the Latin.”Footnote 63 Above all, it means focusing on the process of collaboration. Instead of trying to look around or behind lawyers and scribes, we should bring them into the frame by devoting greater attention to the circumstances of women's encounters with the law. To quote Dolan, “Perhaps we might recast mediation as collaboration, a collaboration that facilitated women's expression as much as or rather than occluding it.”Footnote 64 In the framing of interrogatories or articles, we can speculate about what legal point a lawyer was hoping to make, as well as attempting to discern the bone of contention driving the litigant and if and where these two aims intersected. Shining the spotlight on legal processes can offer a new perspective on the formulaic or generic quality of many pleadings and depositions. As Smail observes of medieval depositions, “Conformity was an expectation on the part of readers and listeners” and, “it was impressions that mattered … not facts.”Footnote 65 The relative conformity of depositions gave them their strength in supporting claims about truth, often made explicit in appeals to “common fame.” They may seem the least authentic from a modern perspective but carried significant weight in the cases they helped decide. There is no need “to lament or try to get around the fact of homogeneity.”Footnote 66 In instances where our sense of authenticity differs from that of the communities’ we analyze, we should consider making this the focus of study.
If understanding collaboration is a goal, then signs of amendments such as insertions and deletions in pleadings, interrogatories, and depositions become very interesting. In depositions, they can mark scribal descriptions that, when read back to them, deponents did not feel reflected their words or meaning. In pleadings, they can indicate words and phrases deemed legally unsustainable or defamatory, as the following example from an equity case fought between a wife and her husband illustrates:
And he the same Humfrey, having by your said subject a childe of twoe or three yeres of age and himself lyving a moste lose and licencyous a lief by many monethes past, the detecting whearof were not fytt to be in particulers revealed without greate obliquy and disgrace and albeit in all the course of the tyme of her mariadge with the said Lloide your said subject lyved free in the eye of the world from any suspicion of harde usadge or cause of dislyke betwene her and her said husband, and yet in all that tyme endured at her said husbands hands moste vile base, detestable and inhumane manner of dealing.Footnote 67
The process remains opaque, but it is possible here to speculate that the offending phrases emerged from conversations between the litigant and the solicitor who drafted the pleading, but the legal counsel who put his name to the bill and was legally accountable for its contents deemed them defamatory.
Legal Literacy
Acknowledging the collaborative nature of almost all legal materials can help allay the fears of those historians concerned about condescension, who bristle at suggestions that litigants and deponents contributed little to their own pleadings and depositions. This sense that many litigants and witnesses were actors rather than puppets in these legal dramas is enhanced by consideration of the cultural effects of law, especially during periods of intense legal activity. As scholars of law and literature are revealing, criminal trials and civil litigation became so widespread in the later sixteenth century that evolving concepts of evidence and proof quickly spread outside the courtroom to writers’ studies, changing the nature and form of plots.Footnote 68 A growing suspicion of hearsay, and the development of evidentiary rules against its admissibility, dramatically curtailed successful prosecutions of witchcraft.Footnote 69 In these ways, whole populations became schooled in legal logic and standards of proof, and the same was true, to a more limited extent, of rhetoric. Lynn Bennett has shown how female poets understood and employed the tropes and figures of classical rhetoric, picked up through their own reading of other authors or taken directly from guidebooks such as George Puttenham's The Art of English Poesy.Footnote 70 However, far greater numbers of women were exposed to applications of rhetoric in legal settings. Some privileged women schooled themselves in the law, but women from all social backgrounds learned from their legal experiences, whether as litigants, deponents, or observers of legal proceedings or as playgoers watching dramatized trials.Footnote 71 So, while legal hands greatly influenced pleadings, interrogatories and depositions, litigants and deponents left the legal process wiser and more experienced in the ways of law, rhetoric, and legal strategy, potentially influencing their subsequent actions and participation in legal process.
Conclusion
Legal materials almost never provide the “authentic” voices of women, if this means expressions of their privately held beliefs or the exposure of their innermost selves. However, these records do preserve courtroom or legal voices in conversations that affected many who heard or participated in them.Footnote 72 Frances Dolan is right that the skills of literary scholars have much to offer in the interpretation of these courtroom voices and the legal materials that captured them. Yet legal and other historians’ expertise concerning evidence, corroboration, and reliability can help to anchor these materials and their authors in the historical realities that produced them. The new world of digital access (the Anglo-American Legal Tradition website alone houses more than seven million images from legal archives) requires paying attention to old skills.Footnote 73 In many instances, collaborations between disciplines offer the best means of acquiring these skills and of developing and applying methods of analysis suited to particular records. In seeking to recover and interpret women's experiences of law and the boundaries of justice, there is no need to adopt a single position, deciding definitively that legal records either do or do not provide reliable evidence of women's (and men's) lived experience. Rather, in interpreting legal materials, and determining whether particular women played instrumental or marginal roles in legal cases, researchers need to analyze each document on its merits, corroborating and comparing it with other available materials. Above all, they need to remember that where female subjects are concerned, context is everything. The extraction of accurate and reliable evidence from legal materials takes diligence and care but is essential if we are to understand and explain the persistence and operation of laws and legal procedures that consistently favored men over women.
