Reconstruction was an uncertain time in New York City, the nation's foremost metropolis, riddled with political corruption and rocked by popular protest. Stabilizing efforts took numerous forms, including the brutal suppression of workers' rallies and the prosecution of municipal politicians and officials. Public faith in the criminal justice system and its capacity to prosecute and punish criminals had also reached a low ebb by the 1870s, prompting the state government to investigate the district attorney's office in New York County and its court system. In the words of a veteran member of the city's criminal bar, the “deplorable uncertainty” of punishment was making “a mockery of justice.” A Columbia University medico-legal expert agreed, claiming that murder, “if not yet cultivated as one of the fine arts … [was] a matter of daily occurrence.” High-profile trials in the wake of the Civil War tested public and professional criticism of jury independence, particularly jurors' disinclination to find killers guilty of murder, compounded by defense attorneys' growing use of “moral” and “emotional insanity” defenses. Every time apparently sane killers, such as William McFarland (tried and acquitted on grounds of “temporary insanity” in 1870 for the murder of his former wife's lover) escaped conviction on the basis of questionable insanity defenses, newspapers announced “the insanity dodge,” and medico-legal experts squabbled over the growing problem of “feigned insanity.” Occasionally Manhattan's murderers did face the gallows, especially the poor and friendless, as the execution of William Foster in March 1873 confirmed, but it seemed that well-financed and well-defended murderers, like Edward Stokes, murderer of financier Jim Fisk, could exploit the technicalities of the law if the vagaries of medicine failed to secure acquittals. A justice system of this sorry character had little hope of deterring would-be murderers, the New York Times despaired: “MURDER AND HANGING-Examples Wanted-Strangle All Our Murderers Together.”

At the New York Legal Aid Society's twenty-fifth anniversary banquet in 1901, Arthur von Briesen, the Society's longtime president, ended the evening with the following acknowledgement: “Before we separate I beg to be permitted to say a few words on … the valuable aid which the Society has received from the women of New York. I want you to understand that without them we could not have prospered, without their assistance we could not have done the work… . Their energetic efforts in our behalf, their clear understanding of the duties … has enabled us to increase not only the forte and our power for good, but enabled us to create a special branch in which the cases of women can be specially considered by an able lawyer who is also a woman.” Here Briesen publicly recognized women's efforts on behalf of legal aid as benefactors, supporters, volunteers, and lawyers. The audience that evening would not have been surprised to learn that a woman lawyer now would be providing legal services to women clients, for this was not a new phenomenon. The Society already employed a number of women lawyers. Furthermore women formally untrained in law, but nonetheless acting as lawyers, had prior to the turn of the century provided legal services to poor women through New York City's Working Women's Protective Union (WWPU). As I demonstrate, the origins of legal aid lay in the provision of legal services to poor women—often by other women.

How do we understand the relationship between law, power, and agency in colonial contexts? Broadly speaking, scholarly opinion is divided between those who view law as a core instrument of colonial control and those who emphasize the ways in which the complexities and ambiguities of colonial legal rule created room for maneuver and manipulation. The articles in this forum skillfully advance our insight into these issues by analyzing the workings of the personal law system in British India, with an emphasis on laws related to marriage. My introductory essay briefly summarizes the two primary approaches to the study of law and empire, clarifies the contribution of the articles to the broader literature, and draws out the thematic links that tie the forum together.

The British Empire created channels for imperially intended movement. Commodities, bodies, and ideas flowed along axes structured by imperial law and technology. Unintended motion also occurred along these same planes. With every legal structure meant to promote one type of behavior came litigants devising strategies to achieve the opposite. Collusion, bribery, forgery, and perjury were favorite ways to manipulate imperial law. The more permissible strategy of forum shopping was another. Forum shopping is the attempt to push one's case into a jurisdiction promising an optimal result when there is ambiguity over the controlling jurisdiction. It reveals the perception among litigants that bottom-up—and sideways—mechanics exist within legal systems. Unlike work on resistance to state law through extralegal means, I here examine the ways parties tried to work strategically within the confines of the legal system to reconfigure their marital situations. Rather than documenting the success of these maneuvers, however, I note their more common failure. The colonial courts usually saw through unconvincing attempts to forum shop. The fact that litigants continued to try reflects the ingenuity, arguably, of the “legal lottery” mechanism at work in British imperial law. Colonial law, and therefore colonial rule, reinforced its hold on subjects by dangling before them the possibility of individual relief through rule-of-law proceduralism.

On June 27, 1940, Vera Tiscenko, a Polish actress formerly with the Moscow Arts Theatre, “of her own free will and after due deliberation” embraced the Islamic faith at the Nakoda Mosque at 19 Chowringee Road, Calcutta. Vera Tiscenko's journey from Moscow to colonial Calcutta was a long and tortuous one. Fleeing the country after the revolution, Vera settled in Berlin where she married a Russian émigré, Eugene Tiscenko. Over the next few years they moved across Europe from Nazi Berlin to civil war Spain and finally settled in Mussolini's Rome, where Vera gave birth to a son, Oleg. In 1938, Eugene Tiscenko went to Edinburgh to qualify for a British medical degree, while Vera and her son left Rome for Calcutta after being invited by Professor Shahid Suhrawardy, her former director at the Moscow Arts Theatre. The reason for the separation between the couple remains unclear. Chief Justice Derbyshire was to speculate that Eugene Tiscenko might have intended to settle somewhere in British India after qualifying, but Vera herself admitted that the marriage had been unhappy. Finding “relief and solace in the teachings of Islam,” she cabled her husband the news of her conversion and requested that he accept the Islamic faith. Eugene Tiscenko replied that his religious convictions were unshakable and “refused absolutely” to change his faith.

Postcolonial perspectives on India's past have tended to focus on representations, which served the purpose of colonial domination. The view, for instance, that Indian society is fundamentally constituted by caste or religion legitimated the supposedly secular or neutral system of governance introduced by the British. Building upon Edward Said's Orientalism (1978), scholars have suggested that some of our most widely held assumptions about Indian society were more rooted in an imperial worldview than in real social experiences of Indians. The attempt of colonial administrators to understand and govern India through the study of ancient texts formed the basis of an Indian variety of Orientalism. How colonial courts deployed this text-based knowledge in relation to the actual practices of religious “communities” is the central focus of this essay.

Colonialism was always an uncertain process. Even the imposition of colonial law was fraught with incomplete application, resistance, and the reinterpretation of European categories in indigenous terms. Magistrates often operated with fragmentary and inaccurate understandings of local cultural practices and rules, seeking to rectify this disadvantage by relying on local experts yet unable to adjust their decisions according to the class and kin interests of these experts. Staffing was often limited, local linguistic knowledge lacking, and a sociological understanding of how custom operated according to social status and shared knowledge of individuals often missing. Colonial officials faced the problem of limited capacity and large populations to manage and govern. Indeed, recognition of distinct regimes of personal law was one solution to the dilemma of the need to control populations at the lowest possible cost. Even though retrospective histories tend to emphasize the transformative power of colonial law, as this collection shows so well, at the time the practices were far more ambiguously linked to the power to change. Instead, they created spaces for contestation and agency. However, these wonderfully detailed and careful studies also show that despite creative uses of the courts, women often did not succeed in legally challenging the marriages that bound them.