On the 6 and 7 May 2021, the ESRC project held a two-day symposium on the theme of gender and justice in Scotland in historical and legal perspective. Day one included three panels – a first on intimate lives, a second on employment opportunities, and a third on seeking justice – that explored women’s rights in Scotland from the medieval to modern period.
The first panel on women’s intimate lives brought together Caroline Derry and Fergus Smith to explore how women’s private lives were mediated before the courts during the nineteenth century. Derry discussed a prominent case heard before the Court of Session in 1810 – Woods and Pirie v Cumming Gordon – which detailed the experiences of two schoolmistresses (Misses Jane Pirie and Marianne Woods) whose school had been forced to close when the defender (Dame Helen Cumming Gordon) withdrew her granddaughter following suspicions of sexual impropriety. It was noted that Dame Gordon’s granddaughter Jane Cumming was, in fact, the illegitimate child of Dame Gordon’s eldest son, George, and his 15-year-old Indian “lover”, begotten while the young man was stationed in Patna in the service of the East Indian Company. Seeking thousands of pounds in damages, the two schoolmistresses claimed that their reputations had been irreparably destroyed as a result of the allegations, and in the end, the schoolmistresses won their case by a vote of four to three. Derry highlighted that while the judges of the Court of Session drew upon specific legal rules, authorities and techniques to assess the evidence, they also used and articulated their understandings of gender, class, ethnicity and empire within the records.
Smith then took us to the lives of poor women in the nineteenth-century sheriff courts to explore how gender intersected with ideas surrounding class and poverty. Smith gave an overview of his research into the tens of thousands of surviving civil jurisdiction records from the nineteenth-century sheriff courts, finding that women were highly visible as litigants across the period. For instance, of the 18,000+ cases sampled across five different sheriff courts, Smith discovered that at least 20% of all cases involved at least one woman, and that single mothers regularly secured legal aid when pursuing care provision from unwilling fathers.
A second panel on employment opportunities included papers by Alice Krzanich and Amber Rose Maggio. Krzanich explored the working lives of female domestic servants in the nineteenth century, arguing that while the hiring contract supported and reinforced patriarchal ideals within the household, it also provided a level of protection to women who were ultimately treated as contractual workers before the courts. She argued that female domestic servants regularly took their masters or mistresses to court when they felt wronged and that, in fact, the contract set significant limits on the employer’s authority. Whilst Krzanich explored women’s employment rights in the past, Maggio brought us forwards to women’s representation in the legal profession today. The majority of law graduates and solicitors in Scotland are female. Yet, Maggio argued that women still continue to be underrepresented in the legal profession in Scotland. She further contended that women’s participation in both the administration of justice and legal educational institutions are a prerequisite for access to justice in all areas of the law. For Maggio, the ‘leaky pipeline’ that sees women falling out of the legal system must address historical factors and current social developments in order to bridge the gap in women’s legal careers.
A third panel on seeking justice included papers by Sierra Dye and Laura Bell. Dye took us back to the late medieval/early modern period to explore how women defended themselves against accusations of witchcraft before the courts. Whether undermining the reliability of witness testimony or pursuing suits of defamation and slander as a way to remove and reverse the stigma of witchcraft accusations, women manoeuvred their way around the patriarchal legal system; not all fell victim to it. Bell then turned to look at how women interact with the legal system today when reporting Image-Based Sexual Abuse (IBSA) – what she argues should be understood as an act of violence against women. While the law is more robust in Scotland regarding this issue than in England or Wales, Bell argued that allegations of IBSA are still rarely prosecuted, with the law struggling to grapple with the high volume of reported cases in our increasingly digital world.
Day two included three panels – a first on children and reproductive rights, a second on cohabitation, and a third on judicial separation and divorce – and a roundtable. The panel on children and reproductive rights brought together Elly Nowell and Ruth Friskney. Nowell explored reproductive autonomy and the right to choose a caesarean, noting that medical paternalism intersects with misogyny to produce long-lasting sites of discrimination against women. She argued that women are rarely informed of the risks of pregnancy or childbirth, and that a vaginal delivery is viewed by medical practitioners as ‘morally preferable’ to a caesarean section. Reproductive autonomy is not only a gendered issue but also a racial one. For instance, while the UK’s maternal death rate is low, black women are four times more likely to die during pregnancy, childbirth and for up to six weeks after, than white women. Moving on to unpick the barriers to children’s participation rights, Friskney explored key problems with child contact and failures to protect women and children affected by domestic abuse in Scotland today. While the United Nations Conventions on the Rights of the Child established a range of participation rights for children (such as a child’s right to participate in major decisions about their lives through to broader political participation rights for children), Friskney argued that children are often ignored or overlooked in contact and residence cases, and that children’s participation rights are often subject to dispute. In her paper, Friskney called for the urgent need to improve the status of children not only in implementation but also in the making of family law.
A second panel on cohabitation included papers by Deborah Siddoway and myself. Siddoway explored how the two marriages of Captain John Campbell of Carrick – a member of the Scottish gentry – ultimately led to the enactment of the Clandestine Marriages Act of 1753 in England and Wales. Uncovering the convoluted history of Campbell’s marriage entanglements, Siddoway examined the evidence that was heard before the House of Lords; this included the letters that he wrote to both of the women who claimed to be his wife, and testimonies of the hardship that the decision inflicted on one of the women (including the bastardisation of her children, the loss of her husband’s pension and the disastrous injury to her reputation). I then turned to briefly chart the changing definition of cohabitation in Scots law throughout history. The Family Law (Scotland) Act of 2006 contends that a cohabiting couple are two persons living together ‘as if they were husband and wife’, a legal phrase that, in fact, can be traced back to the medieval period. I argued that further legislative reforms to the law of cohabitation in Scotland must take into consideration the risks in defining cohabitating relationships as comparable – yet unequal – to marriage, and must recognise the adverse effects on women’s rights within the long history of this struggle.
The final panel on judicial separation and divorce brought together Mairi Hamilton and Rosemary Elliot. Focusing on the records of cases of judicial separation on the grounds of cruelty during the nineteenth century, Hamilton explored women’s accounts of abusive behaviours before the commissary and sheriff courts. While the law was indeed a ‘patriarchal structure’, Hamilton also noted that women were not entirely powerless, with many appearing as agents in negotiation with legal authorities. Elliot then turned to explore women’s rights in relation to divorce in Scotland between 1955 and 1975, finding that the proportion of divorces initiated by women increased from just over half to three quarters, and the largest increase was in divorces brought on the grounds of cruelty. She argued that as divorce became more liberal, the state – through the courts – increasingly sought to regulate the types of arrangements which should be made by divorcing couples where children were involved. Elliot considered what implications these changes had for women seeking divorce, particularly those with children.
The whole symposium raised a number of interesting questions and conversations. Jane Mair then led a final roundtable discussion that sought to tie together the various themes and issues that were raised throughout the event. The importance of collecting data was highlighted by Mair, as legal practitioners are often faced with a lack of statistics when attempting to grapple with issues that affect women’s access to justice in modern day Scotland. A key point raised by Mair centred on the benefits reaped when historians and legal scholars work together when discussing women’s rights across time and place. What does thinking about women’s rights in the medieval period mean for our understanding of contemporary issues? And what does thinking about women’s rights today mean for our understanding of the past? In order to understand how the law functions today, we agreed that we must look to the past. Women throughout history have struggled to achieve and, on many occasions, gain access to justice; a matter that persists today. Legal practitioners and government officials, and so on, are grappling with the same or similar issues as their equivalents were in the past; from single mothers seeking care provision from unwilling fathers, to women reporting their violent partners for domestic violence and abuse. Women today also continue to face barriers in comparable ways to their historical sisters; from abandoned wives seeking legal aid to pursue recalcitrant husbands, to widows securing legal representation to settle their marital estates. While the tide is certainly shifting, there is still a long way to go.
The recognition that gender intersects with race, ethnicity, class and status was also raised in the roundtable. Women are often viewed as a homogenous group of people with shared interests, yet the papers raised important issues with regards to wider factors that influence women’s rights. It was also noted that the long history of women’s rights is a story of both continuity and change. As raised by Krzanich, women’s rights have not necessarily developed in a teleological fashion, from ‘bad to good’ over time, but the law – both past and present – is capable of being mutually supportive to and discriminatory against women. We often look to moments throughout history where women gained a significant financial or legal advantage, such as the Conjugal Rights (Scotland) Act of 1861 or the Married Women’s Property (Scotland) Act of 1882, without fully understanding how these pivotal moments transformed women’s access to justice in practice. In Scotland today, there is an underlying assumption that gender equality has been achieved – at least in a legal sense – without recognising the barriers that women continue to face on a daily basis. In 2021, women (especially single women and lone parents) are more likely to live in poverty than men and women on the whole continue to face the brunt of caring responsibilities, especially when a relationship breaks down. These stark inequalities have only been further highlighted over the past year due to the COVID-19 pandemic, the consequences of which will not be fully understood for years to come.
Rebecca Mason is the recipient of an Economic and Social History Postdoctoral Fellowship 2020/21 and a historian of early modern gender and law based at the University of Glasgow.