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"Could seduction be expressed in more explicite terms, than by taking advantage of opportunities to use freedoms with a young female his own equal in order to induce her to comply with his wishes?," asked a lawyer in 1792. [1] But was the woman in question his 'equal', and, if so, how was this defined?

The transformation in Britain of the eighteenth-century 'middling sort' into the nineteenth-century 'middle class' has long been a subject of historical inquiry. During the course of the eighteenth century the clear division between landed gentry and the 'lower' classes was gradually eroded by the growing wealth and importance of those who fitted into neither category, such as merchants, manufacturers and some farmers. Not that they were, or saw themselves, as a homogeneous mass; indeed the eighteenth century has been characrerised as one of relentless social climbing. As Paul Langford puts it, "tradesmen did not want to think of themselves as tradesmen but as gentlemen." Whereas in the first half of the century the titles 'Mr', 'Mrs', and 'Esquire' were used only by the gentry, by the 1770s they were considered "as the automatic entitlement of anyone who owned property, hired labour, or simply laid claim to a degree of rank and respectability." The 'debasement of gentility' was a clear sign of social change . [2]

But in such a new situation, how precisely did people define themselves? Amanda Vickery argues that the customary conception of the gentry, the professions and the upper trades comprising distinct strata of the social hierarchy is misleading, and that it is more useful "to see each as a thread in the complicated texture of genteel society--a woven fabric or an intricate cobweb being more exact metaphors." [3] Contemporaries clearly had subtle means of differentiating among the diverse threads, but how can we now gain insight into those nuances? Income was rarely a major factor: as historians have noted, estimates of an income sufficient to define a family as middle class ranged from [pounds]40 a year to a few thousand. Neither was occupation a strict barometer, because many tasks were not yet specialised, and entry into the professions was relatively easy. [4] It was during the course of the nineteenth century that professional training and entry requirements were tightened up, and a man came to be character ised more by his occupation than by kinship or any other criteria. This in turn, argue Davidoff and Hall, crystallised the sexual division of labour: "the language of class formation was gendered." [5]

Historians can look at periodicals, essays and satirical plays to glimpse the way contemporaries viewed the jockeying for higher rank and status among the emerging middle classes. As Langford puts it, "the stratification of the middle class was almost infinite, corresponding as it did to the innumerable gradations of income and snobbery on which contemporary analysts frequently commented." [6] But the voices of commentators are not the same as the voices of the people themselves, and sources in which they feel the necessity to define their social position--particularly in a gendered way--are few. Edinburgh commissary court records provide such a source.

In Scotland a marriage, 'irregular' but legal, could be constituted simply by the couple consenting to marry, or by a promise to marry followed by sex. Hardwicke's Marriage Act, which abolished all forms of irregular marriage in England and Wales after 1753, did not apply to Scotland, and Scottish law continued to recognise irregular marriages. If a man denied that he had promised marriage to the woman before she 'yielded to his embraces' or 'granted him all the privileges of a husband' (the two phrases most commonly used in the records), she could raise a legal action for declarator of marriage and bring evidence that she was his lawful wife. If she feared that the man would lie under oath in court, and she did not have enough evidence to prove a marriage, she could ask for an alternative conclusion of damages for seduction.

From a strictly legal standpoint the relative ranks of the parties was irrelevant, for as a lawyer put it in the 1780s, "It does not appear to the Defender that any circumstances in the pursuers situation could have much effect on the merits of this question for one Man may have an intrigue with a woman of his own Station and another may marry a woman much beneath it." [7] (Women's situation was different, for "a woman who married below her station could harldy expect to regain it. A woman who married above her station was assured of her ascent." [8])

But, though in legal terms relative status was a side issue, the cases were heard by the commissaries (judges) who were members of the elite. Lawyers were appealing to their sense of what was possible and likely, and, when differences in status were so finely graded, it was necessary for those lawyers to portray the woman in question in as low a position as possible, so that the judges could not believe she had any real expectation of becoming the wife of the man. Naturally her lawyer then had to demonstrate that her status was far higher than painted and/or that the man's was much lower. It is evident from the records that these distinctions were not merely adduced to strengthen a case, but that a woman would be stung to retaliate by the inference that she was of lower rank than she believed to be true. Although the arguments were used for a very specific purpose, these were matters of great concern to all participants. For the historian the fascination lies in the minute details supplied to support argumen ts about rank.

The paper begins with some background on marriage law in Scotland and on the records. The next section discusses some cases in which the woman's lawyer had no qualms about admitting that his client was of lower status, as such cases are also part of the overall picture. We then move on to two sections which form the substantive part of the paper, examining the arguments relating to the relative ranks of the parties, before assessing the conclusions to be drawn from this material.


A 'regular' marriage was one for which the banns were publicly proclaimed, and which was solemnised in the parish church, but an 'irregular' marriage was as legally binding. The only thing necessary for a legal marriage was the free consent of both parties, as long as they were of age (12 for girls, 14 for boys), were not within the forbidden degrees of kinship, and were free of any other marriage. Neither the consent of parents, nor the presence of witnesses were required. A marriage could be established by verba de praesenti, that is the statement of consent by both parties, or by verba de futuro, a promise of marriage in the future, followed by sexual intercourse. Because such things happened in private, various types of evidence came to be accepted in disputed marriage cases, such as letters in which the man wrote, or referred, to the woman as his wife, 'habit and repute' (i.e. the couple cohabited and were considered by their neighbours and relations to be husband and wife), and others. [9]

For several decades in the eighteenth century there was a positive fashion for marrying irregularly. [10] In England there was a backlash against irregular marriage, and Hardwicke's Marriage Act was passed in 1753, after which only regular marriages were recognised as legal. Scotland did not follow suit, though it was apparently a Scottish case on appeal to the House of Lords that proved decisive in persuading parliament that action had to be taken. [11] In the nineteenth century the registrar general estimated that something like a third of all Scottish marriages in the eighteenth century had been irregular. [12]

Although irregular marriages were still recognised as legal in Scotland (and Scottish irregular marriages were accepted in England--hence the popularity of Gretna Green and other Border sites), here too a backlash occurred, as authorities moved against celebrators of irregular marriages, and by the end of the eighteenth century it became harder for couples to find someone willing to conduct a ceremony. However, couples found it increasingly acceptable to agree to a marriage, consummate it, and then inform the authorities. [13]

Edinburgh Commissary Court was set up after the Reformation in Scotland in 1560 as the national court for matrimonial causes, with appeal allowed to the supreme civil court, the Court of Session, and, after 1707, to the House of Lords. A woman or man could raise an action for declarator of marriage in order to prove a valid marriage (an obverse action, a declarator of freedom and putting to silence, could be raised to prevent someone from claiming to be a spouse). There is no way of knowing how many such actions were raised before the end of the seventeenth century, as only a handful of papers have survived, but from 1684 onwards a register of extracted decreets (decrees) was maintained, and process papers were also more systematically kept, enabling an in-depth study to be carried out. The first case in the register is dated 1698; the court was abolished in 1830, its functions transferred to the Court of Session. The cases collected amounted to 505, of which 416 were for declarator of marriage, 370 raised b y women. [14]

In the early eighteenth century a handful of women were awarded damages because there was enough evidence that the man, who denied promising her marriage, had seriously courted her. Gradually an 'alternative conclusion' of damages for seduction began sometimes to be inserted into the document presenting the case, until by the end of the eighteenth century it was commonplace in actions where the woman had little hard evidence and feared that the man would lie under oath. [15]

Of unequal rank

In the early 1770s Mary Cluden raised an action against John Culton of Auchnabarry. [16] She had been his father's servant and when the father died she continued in the service of the son. According to her account, after finding his attempts to gratify his love for her 'by an unlawful intercourse' unsuccessful, he proposed marriage to her, to which she

at first objected, on account of the inequality of their stations and circumstances; but he removed this objection, by observing, that the inequality did not consist in point of birth, for that she was the daughter of an honest man as he was the son of another; and if there was any disparity with regard to circumstances, there was nothing in that, since it was his inclination to make her his wife.

Subsequently--she declared--his family discovered the marriage and tried to bribe her to disown him. The case was abandoned before reaching a conclusion. [17]

In 1780 John Irving, an Edinburgh lawyer, met Elizabeth Richardson at a tavern in Annan, near the English border, where she was employed as a chambermaid. He persuaded her that his intentions were honourable, but told her that "he was doubtful whether his father, who is possessed of a considerable landed estate, and upon whom he had a great dependance, might approve of the match; and therefore he suggested that it would be prudent, for both their sakes, to keep it secret for some time." After she became pregnant a meeting was called with her relatives, when he "avowed his marriage, which, he assured them, was as valid, by the law of Scotland, as if the most public celebration had taken place." He also acknowledged the marriage in letters and, though he stole most of them from her after he met an heiress whom he bigamously married, her parents had held on to two of them, which conclusively proved the marriage to be valid. Her lawyer did not at any time attempt to assert that Elizabeth belonged to the same ran k as John. [18]

In 1789, in response to Margaret's Aiken's action against him, John Bartholomew Esquire of Baldridge said, "It is not a very probable story that a Gentleman possessed of a pretty Considerable fortune and liberally Educated would treat and Entertain the Chambermaid of an Inn in so familiar a manner or that he would be so very foolish as Choose so amiable a Lady for his wife." [19] She replied that

She was Content with her Situation as a Chamber maid and she never sought to be the Pursuers wife who she reckoned far above her station--Indeed she had no difficulty of Crediting that it was not her high station which enticed the defender to make his addresses to her But the handsomeness of her person and other accomplishments which in many instances over reach equality or superiority of station.

Those were, of course, a lawyer's words rather than his client's. However, Margaret was unsuccessful in proving that she was a wife rather than a mistress.

In a case of 1798 Jane Aitken was also unsuccessful in proving that she was the wife, and not the mistress, of John Smith Esquire, a major in the Norfolk fencible cavalry. [20] She admitted "that her parentage is inferior in point of rank to that of the Pursuer" but argued that this was irrelevant. He responded that she had not even alleged that she had submitted to his embraces after a promise of marriage.

The reason of this is indeed sufficiently obvious, namely that the relative situation of the parties would have rendered any such allegations not only most highly incredible, but absolutely ridiculous. The Defender is descended of a respectable family in the other end of the Island, and is presumptive heir to a considerable fortune, from which circumstances as well as the Rank he has already attained in his military profession, he is well entitled to form a very respectable alliance in the way of marriage The pursuer on the other hand is a person in the most obscure rank of life.

Her claim to marriage (which rested on her being admitted to stay in the barracks after he acknowledged her as his wife) failed when fellow officers testified that no one took the acknowledgement seriously, and fellow soldiers testified to having consorted with her as a common prostitute before the major took her up as his mistress.

In all of the above cases the question of relative rank was irrelevant to the question of a legal marriage, but both parties did admit a disparity. All those men belonged to the landed gentry, and in the eighteenth century the gulf between this rank and that of a humble servant was difficult to argue away (though, as will be seen below, some women tried it). In legal actions brought before the court during the first three decades of the nineteenth century no woman admitted herself to be so inferior in rank to the man that she could not have expected him to marry her.

Her father/his father

In the legal summons the man could be defined as 'of' his estate (or 'younger of') if he was landed gentry, or by his occupation. The woman was always defined by her father (or, if she was widowed, by her late husband). The realities hidden by this are well illustrated by a 1782 divorce case, in which Rebeccah Gibson was described as the daughter of a late music master in Edinburgh, while her husband, Guiseppe Puppo, was described as a musician in Edinburgh. [21] Guiseppe, [22] trying to avoid having to give his wife any money to live on and fight the case against him, said that she was much better off financially than he, "following the same profession with him and being as often engaged by the managers to perform in the Concert hall as the defender himself"; and apart from her earnings from that source she was "also very much employed in private teaching which is a Branch of the profession the defender seldom or never practices and which is productive of very considerable profits." (This example is not abo ut social status but simply to make the point that had it not been for Guiseppe's attempt to avoid paying, we would not have known that Rebeccah was a musician in her own right, not simply the daughter of one.)

It is not therefore surprising that women attempting to prove themselves of equal rank with the men they claimed as husbands laid great stress on being daughters of 'respectable' men, while the alleged husbands did all they could to disparage the status of the fathers. More surprising, perhaps, is the fact that women also tried to disparage the status of the men's fathers. Many of the men were too young to have established themselves in any occupation by which they could be defined, and therefore it made sense to concentrate on their fathers' status.

In one of the earlier cases--Elizabeth Young against Thomas Arrot in 1738--the man belonged to the landed gentry, his older brother being 'of Fofarty'. [23] When he alleged that Elizabeth was not his equal, she pointed out that he had left the country when very young,

he having no fortune nor estate he served first at London as a Journeyman in ane appothecarys shop for days wages and was glade to get into the unhealthfull and dangerous service of the affrican company as a surgeons mate to one of these ships.

She, on the other hand, was the daughter of a deceased writer (lawyer) in Edinburgh "and is nearly related to the best of the Burgesses family in it." That was not a particularly meaningful claim, for though at one time there had been a clear distinction in urban society between those with burgess privileges and the rest, that was no longer true in the eighteenth century. [24] And Thomas insisted that Elizabeth's dead father's "rank station and way of life was of the Lowest kind ... He died very poor and was in every respect below the Character Rank or designation of a Gentleman." What we have here is a classic transitional eighteenth-century scenario: the 'gentle' blood of the family of Fofarty against the solid 'burgess' (or 'bourgeois') qualities of the Young family.

In the 1765 case of Helen Swan against Robert Hunter of Ballo, Robert's lawyer referred to Helen, who had been his mother's servant, as "one of the lowest of the Dregs of the People." [25] Helen's lawyer countered that the defences

affect to treat a very serious Matter with Redicule and Buffoonery, holding it to be an incredible Tale that one of the defenders Dignity and Rank shou'd so far Humble and Debase himself, as to think of Buckling himself in marriage with one so Far below him and in the station of a menial servant to his mother ... Numberless Examples occur where persons of much superior Rank and Dignity, to what the defender can possibly pretend, have from the Different Motives taken to wives persons of the Lowest Rank even their own Menial Servants.

But, however 'foreign to the Cause' such distinctions were, she was not going to let him get away with such allegations.

Her Father was of a Respectable Character, and followed the Business of a Farmer and Brewar at St Martins; and tho' by misfortunes he fell Low in his Circumstances which obliged the Pursuer to betake herself to service he still gains an Honest Livelihood by Industry as his Father and grand Father did before him in the station of Farmers and her mother is come of parents who were both Respectable and Rich.

She then moved on to the attack. Robert's grandfather and great grandfather had been gardeners to the Kinnaird family "and Possessors of one acre or pendicle seat." His father had been a farmer on Lord Kinnaird's lands; by the profits of his farm he earned enough to purchase the lands of Ballo. And his mother was the daughter of a man "who from a Lower Situation came to be Tennent at Gasconhall." Again, this is a classic eighteenth-century scenario. The soubriquet 'of', denoting the owner rather than tenant of a farm or estate, was not in this case an indication of 'gentle' blood but had been acquired very recently. Thus, until his 'misfortunes', Helen's father's lifestyle was equivalent to Robert's.

In the 1772 case of Helen Henderson against the surviving kin of the deceased John MacLean, the woman was also the daughter of "a respectable farmer." [26] Although at the time he died John was a captain in the service of the East India Company, when Helen met and married him he "was a Lad who had been bred to the Engraving business and his father kept a little shop in Edinburgh but without either money or credit to carry on business to any extent." She realised that "After Mr Maclean found himself rising in the army to a rank much higher than he had reason to expect it is possible he might have wished to get free of his marriage with the pursuer." Indeed, from his letters it is clear that that was precisely his intent. Upward social mobility could lead a man to try and bury the past, even to jettison a marriage incongruent with the higher status he subsequently achieved.

In the above cases the women were able to prove a legal marriage, but in the next two they failed to do so, though they were awarded damages for seduction. When no actual marriage could be proven, the minutiae of rank and status tended to play a more central role, for, as stated in the 1780s case of Jenny Buchanan against Francis Macnab, (son of Macnab of Macnab), it was

the clear and indisputable Law of Scotland That only a stumprum fradulentum is a foundation for damages and that it is perfectly well understood that where the rank of the woman is extreamly inferior to that of the man there can be no ground for supposing a stumprum fradulentum because such a woman could not possibly interpret the addresses of the Man as proceeding from an honourable view. [27]

Jenny claimed that her grandfather had been a tacksman on an estate belonging to Francis's uncle, the late Mr Buchanan of Arnprior, while her father "meant to prosecute the business of a Writer and for this purpose he came to Edinburgh and wrote in the chamber of the deceased Mr Alexander MacMillan writer to the signet for some years." He then went "to the family of Culdarres in the character of Factor and Grieve and there he resided for about twelve years much respected." Francis contended that her ancestors "were not in the most distant manner connected with Mr Buchanan of Arnprior, so far as was ever known or heard of in that Country." Her father came to Culdares "when a very young man as a livery Servant and remained in that family for about thirteen years." He was not a factor but "was employed as a footman in livery and served at table and occasionally dressed and took care of his Masters Horses." He then "came to Leny the seat of Francis Buchanan of Arnprior with whom he served in the character of But ler or house servant and performed the usual menial services of the family." Neither version was put to the proof, but they reveal, in a somewhat backward, rural area, the stress placed on blood relations and hierarchical notions of status.

A very different social ranking appears in the 1790s case of Grace McGowan against Peter Fisher, acting partner in the cotton mill of Rothesay. [28] Grace described her father as "late baillie of and merchant in Rothesay." Peter's lawyer called this "a mere deception":

It is no doubt true that he was a Baillie there about 40 years ago but it is equally true, to be then a Baillie of that Burgh conferred no great respect owing to the poverty and paucity of the Inhabitants and so far as the Defender understands her Father never was a Merchant nor has he for many years carried on any business whatever His only Means of Support arose from one of the Meanest Offices about the Custom house of Rothesay, namely that of a Tidesman which is well known to be neither a post of honour nor great emolument.

Grace countered:

Her assendants in the male line for several Generations, have been Burgesses Merchants & Heritors in the Ancient Royal Borough of Rothesay; Her connections both by Father & Mother have also long been real Freeholders & Voters in the County of Bute; Her Father was one of the Magistrates of Rothesay, and above Twenty years a Counsellor there. It is true that by a course of misfortunes he fell back in his circumstances, But what Merchant or Manufacturer is secure against such a reverse? ... It was from want of influence not defect of Rank that he did not procure a higher office than the one he now holds.

And Peter, she pointed, out "was bred a weaver." Again, in this bourgeois couple, we find social mobility, both upward and downward.

Jean Cameron, who did not prove either marriage or seduction against John Gillies, "one of the Contractors for the Caledonian Canal and tenant in Kinloch Morar," in 1808, described herself as the daughter of a tenant in Invermallie. [29] John responded:

It may be true that he was once tenant of this farm, but having fallen into indigent circumstances he has for several years been merely a Crofter at a place called Fore Castle on the estate of Locheil and the Defender neither does nor ever did consider his Daughter the pursuer as a fit person for him as a wife nor in the same station of life with himself.

Jean could say little more about her father than that he was "of an ancient and respectable family," but she alleged that her brothers "were sent forth into the world with such portions as enabled them by their own industry to acquire considerable fortunes." One had purchased an estate in Surinam, another was a lieutenant in a sloop of war who had gained [pounds]3,000 prize money, the rest had done well in the West Indies. And her sister was "married to one of the most respectable Merchants in Inverness." If true, then her father's downward mobility had not hindered his children's upward mobility. [30]

Another unsuccessful case was that of Jean Ballingall against James Greenhill, son of Peter Greenhill of Cordon, which ran from 1807 until 1812. [31] Peter's lawyer described Jean, who had been the family servant, as "a woman of the very lowest birth, the daughter of a common Laborer." [32] Her lawyer responded that she "was come of decent good parents ... who had known better days."

On the other hand and although the Defenders father was now up in the world, while the parents of the Pursuer were depressed he had no right whatever to boast of higher parentage as his Grandfather was merely a farmers servant to a widow of Cordon, whom he afterwards married and thereby succeeded to the small property of Cordon which he left to the Defenders Father who again married a Farmers

Daughter and in order to better his circumstances, acted as Land Steward to Mr Hay of Lees and farms some additional acres of Land in the neighbourhood of Cordon.

These were people on the edge, in which cleverness, ruthlessness and, most of all, luck could mean the difference between a place in the middle ranks rather than in the lower ranks.

In the unsuccessful 1819 case of Janet Smith against William Hamilton, it was not so much a question of mobility as of definition. [33] William's lawyer stated that Janet was "the daughter of a petty Change keeper at the Broomielaw, where she resided in her fathers family, exposed to the company of Sailors, Porters and others of the very lowest order of society." Janet's version was that

Her father for many years has kept a respectable Tavern in the city of Glasgow, and by his industry sobriety and attention to business, he has not only established himself in good credit, but acquired the means of providing well for his family, consisting of several children, whom he has brought up with much strictness, and under a system the best calculated to impress upon them a sense of regard for their characters and attention to their moral and religious duties.

Moreover, William was "merely a small retail Grocer in Glasgow, and can have no pretensions to a rank superior to that of her father or herself." We are now unmistakeably in the lower middle class, with insecurity endemic and, as a result, fine gradations in ranking order of the greatest importance. This is more typical of the early nineteenth century, and quite different from the earlier emphasis on blood ties to a gentry family.

Also characteristic of nineteenth-century attitudes was a case resulting in damages for seduction in 1820. John Archer, "one of and Manager for the other partners of the Perth Foundry Company," did not base his superiority to Eliza Clement on his birth but on his fortune. [34] He freely admitted that his father had originally been a 'common sailor'. But he had "during his life acquired great wealth and has long been an extensive Wood Merchant and Shipowner in Perth," and John had 'great expectations' from him. He himself had both an income and the profits from his own business. According to Eliza, at the time they met, her father "was proprietor of the House and Shop that he occupied and carried on an extensive business as a Dyer--For many years he was Treasurer of the Poor's Funds of the four parishes of Perth, which office gave him the charge of many hundred pounds." However, John pointed out, he was bankrupted, and since then he had "lived in an obscure and destitute condition habitually given up to drink and supported in a great measure by public charity."

Eliza's lawyer could only argue that her "status in the world was determined by the Education & habits previous to her Father's insolvency and remain quite untouched by the subsequent Indigence to which he has thro' innocent Misfortune been reduced." Again we have fluctuating fortunes, and differing views about the woman's right to expect marriage of the man, depending on whether the status was defined by her father's position at the time the couple first became acquainted or by his position at a later period. When rank was no longer defined by land or 'gentle' blood the definitions could be far more flexible.

In 1822 Thomas Hill declared that he was the "son of one of the most opulent farmers in Fife," and that he had "always moved in the better ranks of society," whereas Margaret Paterson was "in the very lowest rank of life." [35] As he had "chosen to raise a plea on the alleged disparity of the parties," her lawyer observed that "few cases have occurred in which this hackneyed pretence is more completely groundless and ridiculous." Her father was "a small Proprietor in the Star of Dalginch near Cupar," who had brought up his family "in a most respectable manner," and who "has now retired to enjoy in the decline of life a competency earned by himself and sufficient for his wants." Thomas disputed this, stating that her father's

employment never was of a higher character than that of a cadger or itinerant dealer in salt through the country districts of Fife; that he retired from the calling in which he contrived with difficulty to earn a scanty living not from having acquired a competency but from mere inability to catty it on, and that the whole property of which he is now possessed is a miserable cottage with about a rood or two of ground attached.

But Thomas, in common with others disputing a marriage or seduction, did not base his allegation of disparity of ranks solely on her father's status. As noted at the beginning of this section, while legal documents defined a woman solely in terms of her father, in the real world she might have her own occupation and status. It is not surprising, therefore, that the court often heard of those considerations as well, with the man generally arguing the woman was only a menial servant and the woman claiming higher status. Rather more surprising is how often the woman's education was brought into the debate. Both themes are explored below.

Her occupation/education

In the earliest case looked at here, that of Elizabeth Young against Thomas Arrot in 1739, it was not Elizabeth's occupation that was at issue but her status vis a vis his family. [36] According to Elizabeth, she and her sister (and their mother while she was still alive) were made acquainted by Lady Home of Renton with Thomas's older brother, John Arrot of Fofarty, and thereafter the sisters were invited at various times to stay at the house of Fofarty. Indeed Thomas met Elizabeth while she was on a visit there. Thomas alleged that Elizabeth came to Fofarty "in the station of a waiting woman to my Lady Home Renton." Elizabeth totally denied this; she never "Submitted to be thought a waiting woman to any lady but both she and her sister have had the honour to be received and entertained by my Lady Renton and many Ladys of honour and respect." A witness testified that Elizabeth was invited to Fofarty by Lady Fofarty and did not go "in the quality of a servant but as my Lady Rentons companion." Her status in t his respect was very important, for it made her a suitable wife to Thomas.

Half a century later, in the 1 780s case of Jenny Buchanan against Francis Macnab, the nature of her stay at the family home was keenly disputed. According to her lawyer she was there "as the friend and companion of his sister." According to Francis, Jenny "was very far from being put on the footing of a friend and companion to Miss Macnab, on the contrary she was employed to oversee the Servants and to make Gowns and Capes for Miss Mcnab." As an illustration of this, "she lay in a truckle bed or shake doun at the foot of Miss Macnabs bed." Jenny had to admit that she slept in a bed in his sister's room, but only because Miss Macnab told her that though the bed was small and inconvenient it was better than "changing her bed when any stranger should come to the house as they had no other good bed room in the house except that in which the declarant slept for the first eight days." As for the allegation that "she was brought there for the purpose of making some gowns and Capes," "the length of time she remained in the family is sufficient of itself to disprove that alledgance" (and she left only because Francis was anxious that her pregnancy be concealed). In short, "she was the companion and friend of his own Sister and as such invited to the house of Kinnell." (Miss Macnab was not called as a witness by either side.)

What about cases in which the woman was alleged to be a menial servant? In the 1760s. case of Helen Swan against Robert Hunter of Ballo, Helen had been in his mother's service when he proposed a secret marriage to her. After describing their respective genealogies (as noted in the section above), she added that she was not a menial servant but "a Kind of Housekeeper having the Charge and oversight of the other Family servants." In the 1770s case of Helen Henderson against the surviving kin of the deceased John MacLean, Helen said that she was 'not a Common Servant' as alleged, but "assistant or directress of a Boarding School in Edinburgh." In the action raised in 1807 by Jean Ballingall against James Greenhill, Jean could hardly deny that she had been in the family's service when she ran off with James, but she argued that this was not prejudicial, "on the contrary, nothing was more frequent in the Country that farmers Daughters thus employing themselves when young in order to acquire further knowledge."

More complex was the situation of Grace McGowan in the 1790s. Peter Fisher, acting partner in the cotton mill of Rothesay, claimed that she "was for some time a Menial Servant, after which she came to be a Labourer and derived much of her Support from wages earned at the Cotton Mill of Rothesay." She denied ever having been a menial servant. It was true that she "for about six months lived in Edinburgh with two aged Ladies, and had the charge of their sewing and family affairs, having a female servant under her; but finding the place did not agree with her health she soon returned home." Nor was she a labourer in the cotton mill. "Needle work or knitting &c the becoming employment of her sex, she holds to be no way degrading to Rank ... The Cotton-miln spinning requires a species of Needle work, which is sewing the Rollers, on which the threads run. Those articles were sent out of the miln to be sewed by such women as have learned the art." She was taught this art by a 'Gentlewoman' some years earlier, to "k eep her in pocket money, and to be an amusement," and she was "so employed in her father's house by the Managers of the Miln." Under oath Peter could not deny that this was how she was employed by the mill. This was the case quoted from in the first sentence of this paper, and the fact that she was not a common mill worker, and did not need to work, was crucial in establishing her as the man's social equal.

Eliza Clement (the daughter of a bankrupt father), who received damages from seduction from John Archer in 1820, declared that when she met John "she followed no profession or employment, but resided as a Lady in her father's family." Subsequently "she was obliged by her fathers misfortunes to set up as a Milliner in Perth, which Line of life she still Pursues." Such an occupation did not place her socially beneath the manager and partner of the-Perth Foundry Company.

Contrarily, in the 1820s Margaret Paterson was unable to establish her parity with Thomas Hill, farmer at Leuchars Castle. Her brother, she said, at one time "took the South & East Tolls of Cupar for four years;" she lived with him at the East Toll, "and assisted in the collection of the duties ... when he was occasionally absent." Subsequently she assisted one Frederick Smith there, who kept a public house. According to Thomas, Margaret "did the duty of a common servant and the name of 'Toll Maggie' by which she was most generally known in the Country sufficiently indicates the public estimation in which her pretended claims to rank and station are held." And the public house which she and Smith kept "was a sort of Brothel and as such was frequented by women of bad fame with their entertainers." This woman was evidently not a suitable wife for a substantial farmer.

As can be seen from the above cases, although nominally a woman's status was defined by her father, in reality the life she created for herself after leaving home could also figure significantly in definitions of rank and status.

One way of improving her chances was by means of education. The final quarter of the eighteenth century saw the rise of the cult of 'sensibility'. The concepts of refinement, decency, delicacy, and the move away from vulgar, earthy, 'animal' passions to 'civilised' conduct informed the thinking of the 'polite' classes. This worked to the advantage of women in some ways, for they were seen as the 'refined' sex essential to the civilising process of men, and therefore it was important that they "join with men in the public social spaces for the 'pleasure and entertainment' created in cities." [37] But women could not fulfill this function without a well-grounded education, and their opportunities to acquire this broadened during this period.

Inevitably, some critics fulminated that boarding schools were turning our girls unfit to be wives and mothers. But girls knew that those boarding schools would provide them with "polite manners, correct accent, good deportment, refined appearance, and elegant accomplishments," all of which would help them make a good marriage. And their parents, aspiring to a higher rank for their daughters, spared no expense in sending them to such schools to enable them to do so. [38] Evidence from the court cases shows a woman's education both as a means of making her the equal of her husband, and of demonstrating that she was so.

In a case of the 1780s appealed to the House of Lords, Helen Inglis had been a servant at an inn when Alexander Robertson, a partner in a mercantile house in the north of Scotland, married her by mutual consent. Years later he bigamously married "a Lady every way his equal," claiming that Helen had only been his mistress. Alexander's letters formed the most crucial evidence that he had considered Helen to be his wife, but another important point was that he removed her "from her Service, and put her under the care of a private Teacher, that she might be better qualified to be his Companion." This presents a view of a wife as helpmeet while at the same time indicates that equality was not necessarily present at birth but was something that could be acquired at a later stage. Helen's lawyer did not fail to point out that Alexander's putting her "to School was not a Behaviour usual to a kept Mistress." [39]

A popular Scottish ballad, 'The Laird of Drum', is about the courtship and marriage of a laird and a humble tenant's daughter. Her father tells the laird that his daughter could neither read nor write but that she would saddle his his horse and draw his boots. He responds:

I'll learn the lassie to read and write,

I'll pit her to the school O,

And she'll never need to saddle my steed,

Nor draw my boots hersel, O, [40]

The importance of education and literacy in raising a woman by marriage to a higher rank was part of popular consciousness.

Returning to the cases already discussed, in that of Jenny Buchanan against Francis Macnab in the 1780s, Jenny said that she had been orphaned very young, and her uncle "sent her to the schoolls in the Town of Stirling." Not long after that her uncle died, and "she went to solicit the good offices of Lady Arnprior." Thomas Buchanan of Leny was visiting at the time and invited Jenny to stay in "his house at Glasgow for some time that she might have the advantage of the Schoolls in that place." (While she stayed there "she was treated not in a servile or dependant line but on a footing with the rest of the family.") Francis, on the other hand, alleged that Jenny had been a servant in the Buchanan household and "was educated during her fathers life time at a charity schooll." In response she said that she "was put to the School of Doun by her father where she staid about a twelve month learning to write and sew having previously learned to read at the School of Callander." She was only fourteen when her father died and "was sent to the Schoolls at Stirling and was boarded at the rate of Thirteen pounds a year which was as high a board as any gave at that place." As already noted, Jenny was granted damages for seduction, on the grounds that she was no unsuitable match' for him, and there is no doubt that her education counted. In the 1790s Grace McGowan, who sewed rollers at the cotton mill, made a point of stating that she and her sisters "were Educated and treated as Gentlewomen."

In an 1801 case Neil Marquis, grocer in Glasgow, stated that Elizabeth McPherson, who was claiming him as her husband, was "a vulgar and illiterate girl, and having lost her Character in [the] highlands, left that Country and came to Glasgow seeking service," and he hired her. [41] Elizabeth responded that she was

as well if not better educated than the Defender himself. For tho she might not be so well instructed when she came to Glasgow, she afterwards went with the Defenders knowledge and consent, two hours every day to school, for a very considerable time--and she was also learned [sic] the mantua making business.

This did not avail her, for she was unable to bring any proof of a marriage, but again the stress placed on education and literacy is striking. Indeed, in such a literate society the ability to read and write had become a major social fault line.

In the case raised in 1807 by Jean Ballingall against James Greenhill (in which she had been in service because her family had been depressed while his had risen in the world, though fundamentally of equal status), Jean did not allege a superior education but did allege parity: "with respect to the education of the parties it was also on a footing being altogether on both sides confined to Country Schools." In the 1820s case of Margaret Paterson against Thomas Hill, farmer at Leuchars Castle, Margaret alleged that her father had given his family "a better education than the families of nine tenths of the Farmers in the County of Fife receive."

More to the point--for she was awarded damages for seduction--Eliza Clement, in her action against John Archer in 1817 stated that she

received an education and was introduced into the Society suitable to her status and circumstances in life. She was educated at a Boarding school in Edinburgh under the superintendance of Mr Scott Teacher of Elocution, and received what is universally deemed a good education.

Witnesses testified that when she was fourteen or fifteen she resided for about six months in the house of Mr William Scott, teacher of elocution in Edinburgh, and attended his classes in English and Geography. So it was not unrealistic for her to expect the manager and partner of the Perth Foundry Company to marry her.


There are two differing interpretations of the 'middling ranks' in the eighteenth century, one which sees the formation of the middle classes as an 'oppositional culture' to the gentry, and the other which perceives them as an aspirant society, trying to climb the social ladder and aping the the manners of the 'real' gentry. [42] None of the individuals discussed in this paper defined themselves by contrasting their solid worth with the excesses of the higher classes. Many aspired to higher things, suggesting that the latter interpretation is the more apposite.

The paper has not dealt with 'facts' or objective reality but with perceptions. Naturally the presentation of each party in a declarator of marriage action was specifically tailored to the aim of proving or disproving an 'equal match', but nevertheless the yardsticks used were those had to be those that resonated with other lawyers and judges. The chronological presentation of the cases in each section has shown a decided change from the early period when status was largely defined by 'gentle' blood to a multifactorial one where aspects such as present occupation could be adduced. (Income and material possessions were rarely mentioned in this context.) The rise and fall of particular families in relation to each other clearly illustrates the precariousness of social position at that time. Inevitably the woman whose father had lost money and position always tried to base her status on his position at an earlier period, while the man always tried to base it on his status at the time the action was raised.

In the unstable eighteenth century, writes Langford, "marriage like many other transactions was a competitive and unpredictable business," and "the emphasis was on the upward mobility of women." [43] In Scotland, where it was so easy to marry, since neither parental consent nor witnesses were even necessary, it was even more tempting for women to gamble, though they might still in the end fail to prove themselves wives rather than mistresses.

To what extent has the material above shown the definition of ranks as gendered? Women in the legal records were described by their father's occupations or status, but so were many young men, and when it came down to the nitty gritty women could be defined by the work they actually did as much as men. The worst definition for a woman's occupation was the one she was likeliest to have: a menial servant. But there were reasons for this beyond the obvious one of being in a subordinate position. Langford comments on the 'sensitive line' separating employers from their servants, and the importance of drawing this line with clarity. He also notes the general fear of young female servants, omnipresent and perceived as corrupters of the morals of the young men of the household. [44] In 1830 a writer on Scottish laws and customs perceived declarator of marriage cases as being "in almost every instance, instituted by women in the lower ranks of life, and especially house servants, against men in better circumstances,- -such as their masters, or sons of their masters." [45] As can be adduced from the cases discussed in this paper, relatively few couples met that description, but the perception shows why a man might be eager to characterise the woman claiming him as her husband in that way, while the woman would do her best to rebut this.

The most surprising revelation from the viewpoint of gender is the stress laid on the woman's education. [46] It was no more possible for a woman than for a man to claim any rank above the lowest without being literate. Beyond that the degree of education is left vague, but the main point being made was that an educated woman would not disgrace the man if she was introduced as his wife. She was meant to be his companion, his helpmeet, and this required a level of education that fitted her for this role.

As part of the current debate about class formation and gender, this paper has revealed some of the very specific ways in which men and women defined their relative ranks in eighteenth and early nineteenth-century Scotland.

Abstract: Leah Leneman. "'No Unsuitable Match': Defining Rank in Eighteenth and Early Nineteenth-Century Scotland"

In the eighteenth and early nineteenth century, when entry into the professions was still fluid, and 'rank' rather than 'class' characterised social relationships, status depended on finely graded nuances. A unique source that reveals the minutiae of perceived differences in rank and status--and moreover on a gendered basis--is the record of Declarator of Marriage cases heard before Edinburgh Commissary Court. Scottish law continued to recognise (as 'irregular' but legal) marriages constituted by a promise of marriage followed by intercourse between the parties. If the man denied the promise the woman could sue him in court and, if unable to prove a marriage, still had the possibility of being awarded damages for seduction. In such cases it was in the interests of the man's lawyer to prove that the woman could not have expected marriage when she had sex with him since she was of a lower rank, while the woman's lawyer naturally disputed this. From these cases specific strands emerge: upward and downward mobili ty of fathers, occupations of the women themselves, and a surprisingly great stress on the woman's education.


I gratefully acknowledge the financial support of the ESRC for my research into marriage litigation in Scotland. The staff at West Register House were unfailingly helpful. An I would like to thank Graham Sutton for his helpful comments on an earlier draft of this paper, and Richard Wall for suggesting the idea of writing it to me.

(1.) McGowan v. Fisher, Scottish Record Office (SRO) CC8/6/65.

(2.) Paul Langford, A Police and Commercial People--England 1727--1783 (Oxford, 1989), pp. 65--6. Despite the title of the book, Langford frequently draws on Scottish examples.

(3.) Amanda Vickery, The Gentleman's Daughter--Women's Lives in Georgian England (New Haven and London, 1998), p.36.

(4.) Langford, A Police and Commercial People, pp.62,78; Leonore Davidoff and Catherine Hall, Family Fortunes--Men and Women of the English Middle Class, 1780--1850 (London, 1987), pp.23,229.

(5.) Davidoff and Hall, Family Fortunes, p.450.

(6.) Langford, A Polite and Commercial People, p.75.

(7.) Buchanan v. Macnab, SRO CC8/5118. Ironically, as will be seen later in the paper, this was a case in which relative status was stridently argued.

(8.) Langford, A Polite and Commercial People, p.113.

(9.) For a full discussion of this see Patrick Fraser, Treatise on the Law of Scotland as applicable to The Personal and Domestic Relations (Edinburgh, 1846) Vol.1, pp. 124--97.

(10.) See Rosalind Mitchison and Leah Leneman, Girls in Trouble--Sexuality and Social Control in Rural Scotland 1660--1780 (Edinburgh, 1998), c.4, and Leah Leneman and Rosalind Mitchison, Sin in the City--Sexuality and Social Control in Urban Scotland 1660--1780 (Edinburgh, 1998), c.8.

(11.) See Leah Leneman, "The Scottish Case that led to Hardwicke's Marriage Act," Law and History Review (Vol. 17, No. 1, Spring 1999): 161--9.

(12.) T.C. Smout, "Scottish Marriage, Regular and Irregular 1500--1940," in R.B. Outhwaite ed. Marriage and Society--Studies in the Social History of Marriage London, 1981), p. 218.

(13.) For couples informing kirk sessions (parish church courts) in Glasgow, their marriages being recorded as dating from the confession, see Leah Leneman and Rosalind Mitchison, "Clandestine Marriage in the Scottish Cities 1660--1780," Journal of Social History Vol. 26, No.4 (1993): 859. After church control largely broke down, couples might go to a Justice of the Peace and get themselves fined for contravening the laws against irregular marriage, thereby obtaining written evidence of the marriage. This was particularly the case in the west of Scotland, where it was known as a 'Rutherglen marriage'.

(14.) No papers have survived amongst the commissary court records for some cases which were appealed to higher courts, because lawyers borrowed and did nor return them. Fortunately, printed summaries of those cases are available in the Session Papers at the Signet Library. I am grateful to Rab Houston for informing me of this source.

(15.) See Leah Leneman, "Seduction in Eighteenth and Early Nineteenth-Century Scotland," Scottish Historical Review (Vol. LXXVIII, I: No. 205: April 1999): 39--59.

(16.) Signet Library Session Papers (hereafter SL SP) 592; 3 (1774).

(17.) The reason for the appeal to the Court of Session was the defender's allegation of 'unchastity' on her part; the argument was over whether he should be allowed to prove this or whether she should first be allowed to prove her marriage, after which he could bring the proof in a divorce action. The Court of Session came down on her side.

(18.) SL SP 182; 36 (1785). Elizabeth Richardson came from Cumberland; their relationship would not have been a legal marriage under English law.

(19.) SRO CC8/5/20.

(20.) SRO CC8/5/24.

(21.) SRO CC8/5/17. Married women's maiden names were--and still are--used in Scottish legal documents.

(22.) Using surnames only after the first mention of the names makes it difficult for the reader to remember which is the man and which the woman, while using the mans surname and woman's first name gives the man a spurious superiority; first names are therefore used throughout.

(23.) SRO CC8/5/4.

(24.) R.A. Houston and 1.D. Whyte, eds., Scottish Society 1500-1800 (Cambridge, 1989), Introduction, p. 9.

(25.) SRO CC8/6/24.

(26.) SRO CC8/5/15. It was perfectly competent for a woman to raise an of declarator of marriage against the kin of a man who denied that she was his lawful widow, and there ate a number of such cases in the records.

(27.) SRO CC8/5/18.

(28.) SRO CC8/6/65.

(29.) SRO CC8/5/29/3.

(30.) Before the case could proceed further Jean gave John's agent a discharge "of the present process and of all claims and demands which she had or has against him." Presumably he paid her off handsomely.

(31.) SRO CC8/5/32.

(32.) He went on: "neither handsome nor beautiful, without education and of the most vulgar manners-about six or seven years older than himself, who in place of having anything attractive about her, was a perfect antidote to any one of the tender feelings." The fact remained that he had run off with her and fathered her child.

(33.) SRO CC8/6/12O.

(34.) SRO CC8/6/117.

(35.) SRO CC8/6/145.

(36.) Source references will not be repeated for cases introduced in the previous section.

(37.) G.J. Barker-Benfield, The Culture of Sensibility: Sex and Society in Eighteenth-Century Britain (Chicago, 1992), pp. 135, 137.

(38.) Langford, A Polite and Commercial People, pp. 109, 114.

(39.) SL SP F 29; 1(1787).

(40.) The gist of the ballad is that after they are married she will not perform any menial tasks for him, for she has been raised to his degree: "I tell't ye well ere we were wed,/ You were far too high for me, O,/ But noo I'm wed and in your bed,/ I'm just as good as thee O." And the final verse is truly subversive: "When I am deed and you are deed,/ And both o's in ane grave O,/ They would need to see wi' very clear een,/ To tell your mould frae mine O." The ballad can be found in the Child Collection. I owe this source to Rosalind Mitchison.

(41.) SRO CC8/5/26.

(42.) Davidoff and Hall, Family Fortunes, p. 21; Langford, A Polite and Commercial People, p. 67. A recent attack on Davidoff and Hall's 'untested assumption' of 'an oppositional culture of commerce versus land' can be found in Amanda Vickery, "Golden Age to Separate Spheres? A Review of the Categories and Chronology of English Women's History," Historiographical Journal (Vol. 36, No. 2 1993): 395.

(43.) Langford, A Polite and Commercial People, p. 113.

(44.) Ibid., pp. 118-9.

(45.) William Chambers, The Book of Scotland, (Edinburgh, 1830), p. 218. I owe this reference to Tristram Clarke.

(46.) One historian has noted how some Scottish women enjoyed conversation in mixed company over tea and supper in the mid-eighteenth century, a practice which died out by the end of the century, when after dinner the women would retire from the dining room. The irony was that "women who read little of the world were freer to discuss it earlier, while women who read and were educated competently had no audience outside themselves in 1790." Deborah A. Symonds, Weep Nor for Me--Women, Ballads, and Infanticide in Early Modern Scotland (University Park, PA, 1997), p.220.
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Date:Mar 22, 2000
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