Legal contributions to social history: when a dozen words make a difference

Dr Caroline Derry, The Open University

The defamation case of Marianne Woods and Jane Pirie v Dame Helen Cumming Gordon was heard by the Court of Session in Edinburgh between 1810 and 1812. The case concerned an allegation of lesbianism made by the defender (defendant), Dame Helen, against two schoolteachers who owned an Edinburgh boarding school. The source of her information was her illegitimate granddaughter Jane Cumming – a half-Scots, half-Indian pupil at the school – who had also discussed her teachers’ alleged behaviour with the maidservant Charlotte Whiffin. Dame Helen responded to Jane’s allegations by withdrawing her from the school and encouraging other parents and guardians to do likewise. In a couple of days, the school was transformed from a successful establishment educating the daughters of Edinburgh’s elite to a scandalous failure. 

The hundreds of pages of case records are a rich source of social history covering issues of gender, sexuality, class, race, and imperialism. Unsurprisingly, they have inspired academics and others who have explored and debated the issues raised: William Roughead, a Scots lawyer who rediscovered the case papers and whose 1930 retelling prompted American playwright Lillian Hellman to write The Children’s Hour, a drama based on the case but which moved the events to the twentieth-century USA. Historians of gender and sexuality have been particularly interested in the case, but legal historians also have a distinctive contribution to make. My article A case for the ‘legal’ in socio-legal history: Woods and Pirie v Cumming Gordon (Vol 49, Issue 4, 2022) explores that contribution further. For the purpose of this post I consider one small example: the impact of just a dozen words. 

The words in question were uttered by Lord Meadowbank. This judge conducted the initial hearings and then sat on the panels of seven judges who first decided and then reviewed the full case. He developed his own theories on what had happened during the proceedings, remaining convinced of the schoolteachers’ innocence throughout. In his lengthy judgment at the end of the main hearing, he elaborated upon his theories as to where Jane Cumming’s forbidden sexual knowledge might have come from. He asserted that ‘Hindoo domestics’, the servants who surrounded Jane during her early life including her ayah (nanny), would have talked about sex in front of her or to her. This explanation – which draws upon a complex mixture of race, sex, and gender stereotypes – has been considered by other commentators. Less obvious is the significance of the words that introduced it: ‘I hold myself entitled to assume it as … [a] matter of notoriety’. 

By uttering that phrase, Lord Meadowbank was not only suggesting that his ‘facts’ were notorious in the ordinary sense of the word. Importantly, he was using a specific legal tool, judicial knowledge or notice. When something is held to be a matter of notoriety, the judge is entitled to use their judicial knowledge of it: that is, to find it as a fact without need for further proof. This should only be used for genuinely ‘notorious’ facts (for example, that full-term pregnancy lasts longer than a few weeks), because not only is no evidence called to prove the notorious fact, but evidence cannot be called to disprove it either. 

Why does this technical legal point matter? It is important because it deepens our understanding of what Lord Meadowbank was doing in this judgment. He was asserting something as unarguable fact, and doing so for several reasons. First, this was indeed a common belief among people in late Georgian Britain. They feared that British children raised in India were liable to be corrupted by Indian servants, an anxiety which highlights the tensions and complexities of imperial domestic life. Second, Lord Meadowbank’s use of this legal device indicates a different tension. His eagerness to prevent the calling and consideration of evidence indicated an unspoken concern that such evidence might fail to support his assertion. He was right to be worried, of course: the statement of dubious merit. Its lack of ‘notorious’ character was readily apparent since the pursuers (claimants) had presented a different version of the ‘fact’ to him, where the corruption occurred in ‘schools of every sort’ as well as domestic households. In fact, Jane Cumming had spent most of her childhood in private boarding schools, not in a family home. Lord Meadowbank’s reluctance to identify such establishments as the source of ‘contamination’ was a conscious choice not to risk throwing attention back on the pursuers Marianne Woods and Jane Pirie’s own boarding school –there were contemporary concerns about girls’ boarding schools as places of potential moral danger, too. He was therefore using a legal tool to achieve a range of effects going beyond the factual claim itself. 

This combination of legal and social history provides a context which enables us to fully understand the nuances and complexities of the case. Marianne Woods and Jane Pirie v Lady Helen Cumming Gordon offers particularly rich material, but these approaches have wider application. In other words, legal historians’ knowledge and perspectives are valuable to colleagues in other disciplines too. 

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