The Legal Framework of Pirie & Woods

The defamation lawsuit brought by Marianne Woods and Jane Pirie against Lady Cumming Gordon in the early 19th century is often cited as concerning accusations of lesbianism against the two women. But This article looks at the details of the cause as illustrating points of Scottish legal procedure.

As basic background, Woods & Pirie set up a girls’ boarding school in 1809 just outside Edinburgh. Early enrollments were assisted by the support of Lady Cumming Gordon, who had enrolled her illegitimate half-Indian granddaughter, Jane Cumming, in the school, despite the initial reluctance of the headmistresses. Cumming Gordon’s support included enrolling several other (legitimate) granddaughters in the school as well as encouraging her friends to send their daughters there. Then, in late 1810, the majority of the students were pulled out of the school abruptly. The reason was traced to unspecified rumors that Cumming Gordon had spread among her social circle that the schoolmistresses were not to be trusted to oversee young ladies. In the face of this disaster, Woods & Pirie brought a defamation suit against her, in part to determine the specifics of the rumors. It came out in the trial that Jane, another student, and a servant at the school (who later changed her story) reported that Woods & Pirie had engaged in sexual activities (while sharing a bedroom – and in some cases a bed – with students). However the issue of any possible sexual activity was not the substance of the legal suit, except to the possible extent that the truth of the claims might be an adequate defense against the defamation charge.

The article opens with a review of studies and treatments of the case (including Lillian Hellman’s re-setting of it as The Children’s Hour). Academic studies have focused on elements such as the question of the women’s sexuality, the role of Jane Cumming’s Indian heritage and upbringing, issues of class and sexual knowledge, and the valorization of non-sexual “romantic friendship” among middle-class white women.

The present article touches on those elements while focusing on understanding the case through legal procedures and norms such as the rules of evidence (especially regarding who was allowed to testify), what types of assumptions the court was allowed to presume without evidence, and competing versions of what needed to be proven or disproven. All of these procedural frameworks helped the legal establishment in an underlying goal of suppressing the sexual elements of the case from public awareness, and even avoiding the need to establish any facts regarding sexual elements at all.

In the initial trial, Woods & Pirie lost their defamation suit by a single vote (four to three). The suit was reviewed in 1812 and their charge was upheld by the same narrow margin. Cumming Gordon appealed the case to the House of Lords. Several years later Cumming Gordon’s appeal was rejected and she had to pay damages.

Records of the case include a great deal of detail and testimony, but also omit many details due to the nature of legal procedure and the rules of evidence. Direct parties to the case could not testify (so Woods, Pirie, and Lady Cumming Gordon were out), nor could immediate family of direct parties testify (so Cumming Gordon’s legitimate granddaughters were out), but because Jane Cumming was illegitimate, she was determined to fall outside of “immediate family” and because the defamation suit didn’t name her as a defendant (because the nature of the accusations was not yet known) she wasn’t excluded on that basis. So Jane was the most direct witness to the substance of the events on which the defamation rested. But these distinctions were argued at great length and in the end, it was decided that Jane’s status within the family was irrelevant as the matter at hand was not the sort of private household concern where family members might be considered to be too closely involved for objectivity.

There is a constant thread throughout the case of assigning the knowledge and accusations of sex between women to marginalized people: working-class and non-white women. One initial framing of the case attributed the original accusation to the school servant, but once she denied having made the accusation, focus shifted to Jane Cumming. Jane’s position was highly ambiguous. She was not only illegitimate, but her half-Indian heritage associated her with stereotypes of “exotic sexuality.” The presiding judge placed into the record as a “matter of notoriety” (i.e., a statement that need not be proven) that female Indian servants had knowledge of sexual practices such as lesbianism, and that all-female spaces in upper class Indian households were hotbeds of sex between women due to their separation from men. Thus the underlying sexual knowledge that Jane Cumming exhibited could be displaced onto a hypothetical and unnamed Indian servant who had “corrupted” her with this knowledge. This side-stepped the uncomfortable need to damage the reputation of Lady Cumming Gordon’s granddaughter, who otherwise had the potential to become a “proper Scottish lady.” This “matter of notoriety” approach meant that this assertion was entered into the record as a matter of fact without any evidence or proof. Thus the existence of “knowledge of sex between women” could be established while distancing it completely from respectable Scottish society.

This case was happening at a time when colonial expansion in India (and other locations), in which Scots were over-represented, was being justified and bolstered by the image of white Britons as a civilizing and moral force. Thus the representation of India as a locus of sexual immorality not only served the purposes of the immediate lawsuit, but the lawsuit in turn supported the original premise.

One framing of the origins of the sexual rumor was that Jane Cumming and her fellow student had invented the story in retribution for school punishments and that, having created the story, their fervid imaginations then convince them that it was true.

Another element of legal procedure that was crucial to the outcome of the case was differing theories of what would constitute an adequate defense against the charge of defamation. In this context, the fact that the issue was defamation and not sexual acts was relevant. One of the judges that voted in favor of Cumming Gordon noted that he didn’t view the evidence as sufficient to prove the sex acts in question, but felt that it did justify Cumming Gordon’s actions. “Defamation” involved a defamatory statement (that injures the reputation of the person) that is made maliciously. Cumming Gordon definitely made defamatory statements that definitely injured Woods & Pirie’s reputation, but the judges were not in agreement with whether the truth of the accusation, or at least Cumming Gordon’s good-faith belief in its truth, could be an acceptable defense.

Were good motives (protecting the students) sufficient if there was insufficient diligence in confirming the truth of the allegations? Fairly early in the process, Cumming Gordon backed down from claiming that the accusations were literally true in their entirety, but her counsel asserted that any sort of impropriety was sufficient to justify her actions. The prosecution asserted that the accusations had been so extreme and damaging that passing them off as simple standing in for a general dissatisfaction with the schoolmistresses’ conduct was inadequate.

One version of this debate could be seen as a conflict between a student believing that her teachers had engaged in sex acts together, versus the teachers not only imagining such acts, but actually engaging in them. (The point about the teachers being able to imagine sex between women was a key underpinning to a lot of the anxiety in the judicial deliberations.)

If it was sufficient defense that Cumming Gordon was justified by any sort of impropriety, then there was no need to establish the facts regarding actual sex acts. If proof of the specific sex acts was necessary for defense, it was not enough to establish that sex between women was a possible phenomenon, but that these specific women (white, middle-class, British, Christian) could know about and engage in such acts—and engage in them in the specific circumstances involved (with pupils in the same room or even in the same bed). In the end, the stricter requirement prevailed and Cumming Gordon was required to prove her original claim that the women “came to one another’s beds in the pursuit of the gratification of unnatural lust.”

Given this requirement, there was a careful path to be threaded. As the presiding judge wrote, “the virtues, the comforts, and the freedom of domestic intercourse, mainly depend on the purity of female manners, and that, again, on their habits of intercourse remaining as they have hitherto been—free from suspicion.” [Note: Do not read a sexual meaning into the word “intercourse” in this quote. It’s being used in a sense of “interactions”.] Some readings of this case suggest that the judges worked backward from a need to deny this possibility of the purported sex acts, but as Derry shows, the details of the deliberations show that it was far from certain that they would come to this conclusion.

With all these theoretical and procedural considerations, it was a review of the physical layout of the school premises that provided crucial arguments in the teachers’ favor. One witness claimed she had seen the teachers engaged in improper behavior while looking through a keyhole, but the room in question had two doors: one with no keyhole and one placed such that the alleged location of the act was not visible through the keyhole. Some acts that witnesses claimed to have “seen” occurred in darkness. Cumming Gordon’s version of the events required not only that the teachers had chosen to engage in sex while sharing a bed with a student (when they certainly had the ability to occupy a private room) but continued do engage in sex after being aware that their activities were known. Given these facts, a conclusion that these specific women had not committed the acts in question did not rely solely on a presumption that “respectable British women wouldn’t do that.”

The presiding judge also brought in discussion regarding the physiological possibility of the alleged acts, relying on popular myths about the nature of female orgasm and the image of women with enlarged clitorises engaging in penetrative sex. (Here he did raise the objection that foreign women might have that physiology, but British women definitely did not.) Derry reviews a chronology of theories about sex difference and female anatomy that situate these ideas within a shifting historical landscape.

In conclusion, Derry lays out the reasons why a simplistic view of the facts and arguments in the case flattens out the vast amount of nuance and negotiation involved, even before the actual evidence was brought into consideration. In particular, the case was not primarily concerned with establishing whether sex between women was possible, but rather whether it was necessary to prove that it had actually occurred in this particular case, and if so, whether it had been proven.