CHAPTER IX

THE ACTION FOR LIBEL

It is not to be supposed, however, that the dark days were at an end. Far from it. The next act in the drama was an action for libel brought against S. J.-B. by Professor Christison’s assistant.

Of course she took the lawyer’s letter smiling, but it must have seemed well-nigh the last straw, for she was sorely overstrained by the public meetings and all the criticism they called forth; and her entire Christmas holiday had been spent in calling on Infirmary managers. These were naturally of all sorts, from the big bustling prosperous brewer to the refined gentlewoman of equally restricted outlook; and the strain of adaptation to such divers personalities must have been very great.

Even on Christmas Day[78] (a Sunday!) she had been at the _Scotsman_ office, arranging with the Editor for the alteration and publication of various entries on the following day. Things were not made easier by the fact that a heavy fall of snow had been followed by alternating spells of slush and ice. All the other students had gone out of town, and in many ways it would have been better all round if she had gone too. But her supporters simply could not get on without her. She might on occasion be difficult and trying, expecting more of people than they were prepared to give; but no one else could even compare with her in knowledge of all the facts and arguments that might at any moment be called for by the emergencies of a big public controversy. There was no need for professors, editors and others to charge their memories with endless _minutiae_ when S. J.-B. was at hand, clear and concise, as a book of handy reference.

Footnote 78:

“God bless the Massons,” writes Mrs. Jex-Blake, “for cheering my darling on Christmas Day.”

Life was too full this year for the accustomed backward survey at midnight on December 31st; there was no quotation of “May the New Year cherish—” This is the entry:

“Less utterly hopeless tonight,—only _so_ tired. E. P. just back, bless her!”

Well, in any case, here was the lawyer’s letter, and it just had to be faced. There is no reference to it in the diary till long after—indeed, except as a register of facts that have now lost all interest, the diary becomes almost non-existent—but, in a day or two, the news was all over the country. It was more than could be expected of human nature that some of the women students should not have felt aggrieved that the situation had been complicated by their leader’s impulsiveness. On the whole they were loyal, especially the three first recruits, Mrs. Thorne, Mrs. Evans, and “E. P.,—bless her!”

But, as ever, faithful friends gathered round, and, if the postman’s visit had become a thing to be dreaded, he also brought much good cheer. Here is a letter from the wife of a leading minister of religion:

“DEAR MRS. EVANS,

The opposition have ‘crowned the edifice’ by bringing that action of Damages against Miss Jex-Blake,—how unspeakably low and unmanly it all is. I never knew before that saying a man was drunk was actionable; if it is we must be very careful how we speak even of our nearest and dearest. I think a subscription ought to be set on foot at once to pay Miss Jex-Blake’s expenses, and I shall be delighted to contribute my mite.”

One can only quote one or two out of many:

“The Athenaeum, Jan. 23, 1871.

MY DEAR SOPHY,

I will gladly pay half expenses of your action for libel brought by Dr. Christison’s assistant.

I think it vital that you should have the best legal assistance, and win. Be careful, and don’t let them ‘draw’ you into indiscretions that are most forgiveable morally, but damaging to the cause practically.

I don’t the least want to lecture you or assume the Mentor. I only want you to win all along the line.

Your aff. brother, T. W. J.-B.”

The next is written in a clear and clerkly hand:

“Miss Jex-Blake, Ph.D. Edinburgh.

Kinbuck, 7 February, 1871.

MADAM,

We the undersigned desire to express our most sincere sympathy with your cause and earnest hopes for your success.

I am, Your obedient Servants,—”

Follows a list of four names, apparently of young business men. One wonders which of them conceived the bold idea of the “Ph.D.” How gladly they would have made it “M.D.” if they could!

The letter was addressed to “Miss Jex-Blake, Royal Infirmary, Edinburgh,” and is grimly endorsed, “Not for Royal Infirmary.”

One more letter we are tempted to quote with very mingled feelings:

“19 Inverleith Row, Edinburgh. 27 January 1871.

MY DEAR MISS JEX-BLAKE,

I see that Mr. C. has raised an action against you. If you have not already fixed on a counsel to defend you, will you allow me to propose that you should employ my son-in-law, Mr. Trayner. I propose this, not for his advantage but your own, as I am quite sure from the great interest he would take in your case, and also that I know you would find in him, not only an able advocate, but a kind friend, that you would have no cause to regret the choice.

Believe me, dear Miss Jex-Blake, Very truly yours, MARGARET WYLD.”

From another source one learns that Mr. Trayner [now Lord Trayner], if employed, would have done the work without fee, from sheer sympathy with the cause.

The pity of it! One cannot help feeling how differently things might have gone, if S. J.-B. had availed herself of this suggestion. “The best legal advice” is an expression capable of varied interpretation, and of course S. J.-B.—young and inexperienced—was guided by her solicitors. It is possible, too, of course, that the advice was good.

Young and inexperienced she was in matters of this kind,—full of hope that she, who had nothing to hide and everything to gain from full publicity, would see herself substantially justified in an open court of law.

On the whole, public opinion was against her. All sorts of stories were rife, many of them entirely false, some with just that grain of truth that makes a lie so deadly. When the Winter Session came to an end in March, the President of the College of Physicians and the President of the College of Surgeons both announced that they would not preside at the prize-giving if lady students were to be present and to receive their prizes on this occasion.

On the other hand S. J.-B. was, of course, much sought after by outsiders who admired her talent and courage. In April she was urged by the leading women suffragists of the day to speak at a Suffrage meeting in London, and, after consulting Professor Masson and other friends in Edinburgh as to the probable effect on her own “Cause,” she agreed.

“Darling,” writes her sorely-tried Mother, “speaking at a public meeting will be anything but restful. You positively require rest to go on with the real work and worrying work before you. May you be guided aright.”

The speech took place, however, and was a great success. Her “pathetic voice” and clear exposition of the argument deduced from her own trying experience are referred to repeatedly. This was her first public association with a cause of which, throughout life, she was one of the sanest and most practical exponents.

It was in the course of this visit to London, too, that she made the acquaintance of Mr. (afterwards Sir James) Stansfeld, whose influence was to prove so priceless in the farther development of the movement.

Meanwhile the law ran its slow and expensive course.

“Monday, May 22nd.... White Millar wants to know if I will say C. ‘wasn’t drunk’ if he on his side allows that I ‘had been told so.’

I don’t want to be too obstinately pugnacious, but I hate the idea of giving a handle to people to say I ‘ate my words’. Calderwood wisely says it should be a _sine qua non_ that the public should know the overture came from them, and I should like also to make C. own he was ‘Foremost among the rioters’.

“Tuesday May 23rd. I have just accepted Lord Advocate at fee of £200, so now it shall go on unless they pay costs....

“May 26th, Friday 10 p.m. ‘Where the wicked cease from troubling and the weary are at rest.’

_How_ inclined one feels to turn one’s face to the wall and say with Elijah, ‘Lord, take away my life, I am not better than my fathers’.

The obstinate lying of these students in preference to giving any information possibly useful to us;—the constant hisses and rudeness even in the streets,—J’s insolent civility, especially to Miss B.,— those two scamps shouting ‘Whore’ after S. M. M., as she crossed the George Square Gardens yesterday evening, etc.

Oh, dear, I hope Tuesday at least will end one worry satisfactorily. I think it must clear me morally at any rate!—and yet I have that nervous quiver through me as when one wakes with nightmare. I wonder if any such hysterical wretch ever had to do such work as mine!

And yet what good friends and helpers! Gilbert’s ever ready kindness, Wilson’s hearty interest, ‘Well, if you lose on Tuesday, even you will not be more vexed than I shall’.”

The case came on for trial on May 31st. On the morning of the day, S. J.-B. received the following letter from her Mother:

“God’s protection and blessing be with you, my own precious child. I will not harass and plague you by writing further than to assure you I am in spirit present with you.

Your loving, M. E. J.-B.

I am quite well, and picturing how calm and collected you are, and how _many many_ are thinking of you with friendly thoughts.”

The case lasted two days. It was reported verbally in the _Scotsman_ and other daily papers. “Throughout the day the Court-room was densely crowded, many ladies being among the audience.” For many, of course, this was the first opportunity of seeing these amazing women, and for some time the provincial and weekly papers ran riot in impressions of this kind:

“Mrs. Thorne succeeded as witness, and the assembled public thought it very hard that she should be neither odd nor eccentric. Why was she married? She was a medical student and ought not to be married. Sedate, quiet and ladylike-looking, and dressed in an unobtrusive fashion, and yet fairly within the pale of orthodoxy, Mrs. Thorne confused the minds of many.”

“Miss Pechey was the sole remaining witness, and created a good deal of fresh interest. A tall figure and a classically shaped head with dark hair, are generally supposed to be the attributes of young ladies who keep to their ‘sphere.’ That female medical students should dare to be good-looking, dare to be married, dare to be dressed in good taste, is, of course, an unpardonable crime.”

“Great interest of course was manifested in [Miss Jex-Blake’s] appearance in the witness box. Plainly dressed in black, with white round her neck and wrists, she presented the appearance of a tall and well formed, handsome and determined woman, with dark hair and eyes. She was perfectly cool and collected, and her manner was a great contrast to the nervousness of Dr. Christison and the ‘smartness’ of Dr. Bell.”

So much for the “hysterical wretch”!

In truth the women had learned their lesson. There was no bitter, impulsive speaking now. They said what they meant to say, and they said it well and with restraint. “These customers _are_ composed!” a man in the back of the Court was heard to exclaim.

As has been said, S. J.-B. had everything to gain from publicity, from a full exposure of the facts. The worst she had done had been to state her case in public without fear of persons, without much tact and discretion, though with no exaggeration of the actual truth. The public had already passed judgment on her. She was now on her defence, desirous only of asking her opponents, under cross-examination, to deny the truth of what she had said.

But the law of libel is an intricate and parlous thing. S. J.-B. had been told by several people of standing—including her teacher and his assistant—that Professor Christison’s assistant had been a ringleader in the riot; but she did not know of her own knowledge that he had been so.

“I wished,” she says, “to plead the substantial truth of my statement; but, being, of course, ignorant of Scotch law, I was overruled by my Counsel, among whom was the Lord Advocate of Scotland (Young), on the ground that I could not _personally_ prove the truth of what I had said, as indeed I did not know the young man by sight, and it would be held an aggravation of the injury to plead ‘Veritas’ in a matter which was, after all, only one of hearsay. I was assured that, if the case came to trial, abundant opportunity would be given to prove the young man’s real conduct in the matter.”

This opportunity, however, was relentlessly withheld.

The case for the defence was one to rejoice the heart of a brilliant counsel, being full of technical opportunity,—and to a brilliant counsel it fell. So entirely did Mr. Shand (afterwards Lord Shand) rely on his own bow and spear to win the day,—and it must be admitted that there was nothing else to rely on—that he dared to risk the conclusions which must inevitably be drawn from his omission to call the pursuer as a witness on his own side; he dared to provoke a laugh by saying that Mr. C. “was not so fond of public appearances as the defendant.” He laid down in his opening statement the law that must govern the case, and with dogged tenacity, he brought the Judge and everyone else in Court to heel. Lord Mure, as it chanced, was easily led. The choice of a Judge in Scotland lies with the pursuer, and in any case it might not have been easy to find one in those days who had a prejudice in favour of women doctors.

One is glad to know that the protagonist appeared “cool and collected” to the indifferent observer, but she must have been on the rack much of the time, for the “substantial truth and right” for which she longed, got no chance at all, or rather they saved their lives only by losing them, so to speak; and that is one of time’s revenges that youth cannot foresee.

The full report of the case appeared in the _Scotsman_ of May 31st and June 1st. The following extracts are taken mainly from the Edinburgh _Evening Courant_, because they are slightly abbreviated, and because they appeared in a paper unfriendly to the cause of the women.

“There could be no doubt,” said the advocate for the pursuer, “that, however injurious the arguments she used might be, if they were justified by facts, it was perfectly open to Miss Jex-Blake to maintain that her statements were true, and to take what is called an ‘issue in justification,’ for the purpose of establishing upon her own issue, as counter to the present one, what she said. But she had not chosen to do that: it was not pretended that the statements were true; and therefore the only question the jury had to try was, practically, whether those statements were to the pursuer’s loss, injury, and damage.[79]”

Footnote 79:

_Scotsman_, May 31, 1871.

This argument, fair enough as coming from an advocate, represents to all intents and purposes, the attitude adopted by the Judge. The case positively bristled with arguments, but the humblest appearance of a really relevant fact brought Mr. Shand to his feet with a taboo.

“Thomas Sanderson deponed in answer to Mr. M‘Laren—I am a student of medicine and last winter I attended Dr. Laycock’s class. On the 18th November I was at the gate leading to Surgeons’ Hall. There was a large crowd of students and a larger crowd of other people at the gate. The students were both inside and outside the gate. The majority were University students. I assisted the ladies to pass through the College gate. I was pulled about a little by the students. The students were hooting, and oaths and offensive expressions were used.

Among the students inside the gate did you recognize Mr. C.?

Mr. Shand (to witness)—Don’t answer that question.

Lord Mure sustained the objection.

Mr. M‘Laren—Did you see Mr. C. at any time on the 18th November?

Witness—Yes.

Where did you see him?—At the Surgeons’ Hall.

At what time of the day did you see him?—A few minutes after four o’clock.

How was Mr. C. conducting himself?

Lord Mure disallowed the question.

E. C. C., examined by the Lord Advocate, deponed—I am the pursuer in this action. I was twenty-one years of age last August.

You remember the riot at Surgeons’ Hall on the 18th of November?—I do.

Where were you?

Mr. Shand objected to this question. His Lordship had already ruled that no evidence could be led as to whether the witness took part in these proceedings; and it seemed as if the Lord Advocate was attempting to evade his Lordship’s decision.

Lord Mure said this was a general question and he allowed it to be put to the witness.

The Lord Advocate—Where were you at the time? Witness—At what time?

At the time of the riot?—I was at the College of Surgeons during part of the time.

When did you go there?—Three o’clock.

When did the riot begin? Shortly after four.

What were you doing between three and four?—I was in the class for practising physic.

When did it come out?—A few minutes before four.

Was there a mob of students at the gate?

Mr. Shand—Your lordship will understand that I am objecting to all these questions.

The Lord Advocate—Were you present during the whole of the riot?

Mr. Shand—I object to that question.

Lord Mure sustained the objection.”

In addressing the jury, Mr. Shand said,

“A slander had been committed and was unrepented, and only by a verdict from the jury could the calumny be wiped off. A nominal sum, however, would be an injury instead of an assistance. Excessive damages[80] he did not ask, but only such a reasonable sum as would mark their sense of the injury inflicted on the pursuer by the statements made in his absence.”

Footnote 80:

The amount claimed—£1000—was only specified when the case came into Court, having been inadvertently omitted from the issue.

The Lord Advocate’s summing up was humorous in the extreme, and called forth peals of laughter at the pursuer’s expense; indeed in the end he almost went so far as to produce a counter-wave of sympathy for the victim of his brilliant raillery. But, indeed, nothing could be made of the case as it stood.

In the final summing-up, Lord Mure said:

“He had not allowed any evidence to prove that the pursuer had been a leader in the riot, because, according to his view of the authorities on the subject, it was incompetent to allow such evidence in the absence of an issue of justification. The jury had heard the evidence of Dr. Christison and others as to the injury which a man’s character was calculated to sustain from such a statement as had been made use of by the defender; and it was for the jury to judge whether that charge was one which was likely, without retractation or apology, to injure the pursuer’s character.

The jury retired at five o’clock, and at half-past six they returned to Court, and gave a unanimous verdict in favour of the pursuer, assessing the damages at a farthing.”[81]

Footnote 81:

Edinburgh _Evening Courant_, June 1, 1871.

On the following day a leading article in the _Glasgow Herald_ made the following comment:

“Miss Blake has not pled or proved the substantial truth of her accusations. She has preferred to challenge Mr. C. to prove their falsehood. We are altogether unable to understand why he should not have accepted the challenge, and why he omitted to deny the charges levelled against him. We cannot see how he could have expected a jury to give him substantial damages for his injured reputation when he refused to allow any enquiry into the circumstances in which he stood. The witnesses who were present on the occasion of the riot were not allowed to say whether they saw Mr. C. present at the riot, whether he took part in it, or what he said or did on the occasion if he was present. Miss Jex-Blake is accordingly very properly fined one farthing for her rash and libellous statements, and the public is left to wonder for what earthly reason Mr. C. brought his action. It has only one compensation for the loss of time involved in reading the evidence in a trial which has established nothing. Miss Jex-Blake has completely vindicated the title of her sex to aspire to the highest honours not merely in medicine but in law. She has shown herself a perfect mistress of the art of self defence. In no cricket field this season have there been so many dangerous balls admirably stopped, and so many badly bowled ones dexterously played. If the witness and the counsel could have interchanged positions, the change might possibly have had considerable effect upon the fortunes of Mr. C.”[82]

Footnote 82:

“Of course, as you know, I daresay,” writes Professor Jack to S. J.-B. about this time, “all the articles that appear in the _Herald_ are mine, and especially the good ones.”

But the end was not yet. It was still possible for the Bench to make S. J.-B. responsible for the entire costs of the case, and in due time she was called upon to pay—in addition to the farthing damages—a bill of £915 11s. 1d.

Let it be recorded at once that her brother promptly redeemed his promise, and sent a cheque for half the amount.

As soon as the decision of the Court was made known, one of the jurymen expressed his feelings in a letter to the _Scotsman_:

“Edinburgh, July 1871.

SIR,—As one of the jurymen before whom this case was tried, I am extremely disappointed to observe from the papers that the Court have found the pursuer entitled to his expenses.

I have been anxiously looking forward to the determination of the case, in the hope that the verdict of the jury would be so applied as to receive the effect which they intended by it.

The jury were of the opinion that the pursuer should have submitted some evidence to them of his non-participation in the disgraceful riot, of which Miss Jex-Blake had so much reason to complain, to have entitled him to a verdict; and they would have made some representation to the presiding Judge on the subject had it been possible to do so.

After retiring, the first thing done was to appoint a foreman. This gentleman turned out to be in favour of a verdict for the defender. With the view of ascertaining the mind of the rest of the jury, he asked us individually to write down on pieces of paper whether we were for ‘libel’ or ‘no libel’. The result was an equal division—six for finding that there was a libel, and six for no libel. This was done a second time with the same result. In this predicament, and after considerable discussion as to the amount of damages, in the course of which I don’t think a larger sum than one shilling was even mentioned, even by those who thought there had been a libel, it was proposed to ask the Court whether the foreman had a casting-vote. This was done, and the Clerk came back and told us he had not. We then asked the Clerk whether we were entitled to find for the pursuer without giving any damages, and he told us we were not. Shortly after, we again sent for the Clerk, and enquired whether a farthing of damages would carry expenses against the defender. He stood a while, and said there was some new Act which provided that a farthing of damages would not carry expenses.

He went out to consult the Judge; but, having got this information from him, we agreed upon our verdict, and rung the bell for the macer at once. I had no doubt of the soundness of the Clerk’s opinion, and in that belief I concurred in the verdict finding the pursuer entitled to one farthing of damages. I certainly would not have done so, had I for a moment anticipated the result which has happened. I think the case a very hard one for the defender, more especially when, but for the opinion given by the Clerk, the verdict might have been in her favour. I think it is due to her that the public should be informed of the circumstances under which the verdict was given, for it seems a very illogical result to affirm that the pursuer had suffered no damage by the alleged slander, or, at least damage of only one farthing, and at the same time to compel the defender to pay a large sum for expenses, especially when the origin of the whole matter was a riot in which the ladies were so badly used.—I am, etc.

A JURYMAN.”

This letter was followed by one from a lawyer:

“Edinburgh, July 12, 1871.

SIR,—I am not surprised at the letter in your publication of to-day, of a ‘A Juryman’ in the above case. The Clerk of Court was _in substance_ correct in his statement to the jury that by a recent Act of Parliament the pursuer in an action of damages is not entitled to expenses if the verdict is for less than £5, but he was wrong in not at the same time informing them of the discretion still left to the Court....

But the thing that strikes me most forcibly in the juryman’s statement is how came it that a Clerk of Court was allowed to speak to the jury at all on such a matter. The public are indebted to the juryman for making this known, because it at once explains what was intended by the verdict. I do not think in the circumstances the verdict is worth anything, and I would strongly advise Miss Jex-Blake to appeal the case, and have the verdict set aside on the ground either of the Clerk’s interference, or that the decision of the Judges is wrong. Certainly the decision on the matter of expenses is very unsatisfactory to the legal profession, especially as it was given without the usual statement of the grounds of judgment.

I am, etc., A LAWYER.”

It remained for Miss Pechey to give her views on the practical outcome of the case. Poor little Hope Scholar! She had travelled far since the days when she had refused to “appeal” because she was better employed in listening to the nightingales.

“Edinburgh, July 13th.

SIR,—I see that a juryman has written to you to say how very ill the recent decision as to the costs agrees with the intentions of the jury, and a lawyer has made clear how extraordinary it is in point of law. Will you allow me to say a few words, from personal experience, on the practical results?

The medical students of Edinburgh have received a hint by which some of them seem well inclined to profit. They have been told pretty plainly that it is possible that there should be a riot got up for the express purpose of insulting women, for one of the very women insulted to be accused of libel when she complains of such conduct, and then for the insulters to escape scot-free, and the complainer to be mulcted in expenses. In fact the moral seems to be that, unless a woman is willing to be saddled with costs to the amount of several hundred pounds, she had better resolve to submit to every kind of insult, without even allowing herself to mention the facts.

I say that some of the students appear to have taken the hint so given; for to this I must think is due the treatment received by myself and some of my friends if we happen to meet students on our way home in the evening. It will possibly strike some people as sufficiently extraordinary that a knot of young men should find pleasure in following a woman through the streets, and should take advantage of her being alone to shout after her all the foulest epithets in their voluminous vocabulary of abuse; yet such is the case. I am quite aware that it would be useless to represent to those students the injury they do to the University and to the medical profession in the eyes of the public, because neither of these considerations would weigh with them for a moment; but it may make some impression on them to be told that the effect of their conduct is really such as they would least desire. Dr. Christison is reported to have said during his examination in Court, that he considered the riot of November to be ‘a great misfortune,’ and from his point of view he was undoubtedly right. If the wish of these students is to bar our progress, and frighten us from the prosecution of the work we have taken in hand, I venture to say never was a greater mistake made. Each fresh insult is an additional incentive to finish the work begun. I began the study of medicine merely from personal motives; now I am also impelled by the desire to remove women from the care of such young ruffians. I am quite aware that respectable students will say, and say truly, that these are the dregs of the profession, and that they will never take a high place as respectable practitioners. Such is doubtless the case; but what then? Simply that, instead of having the medical charge of ladies with rich husbands and fathers, to whom, from self-interest, they would be respectful, they will have the treatment of unprotected servants and shop-girls. I should be very sorry to see any poor girl under the care (!) of such men as those, for instance, who the other night followed me through the street, using medical terms to make the disgusting purport of their language more intelligible to me. When a man can put his scientific knowledge to such degraded use, it seems to me he cannot sink much lower.

How far the recent decisions are calculated to arrest or discourage such conduct, I leave the public to judge.—I am, etc.

MARY EDITH PECHEY.”

One is glad to note that the _Lancet_ now took fire:

“Common candour must compel any unprejudiced person to admit that the fight has been pursued by the orthodox party _per fas et nefas_, and that the ill-advised conduct of grave and learned seniors in the profession has offered only too plausible an excuse to the heated blood of younger partisans to indulge in coarse excesses.”

It would be wrong to make too much of this ebullition of wickedness from the hearts of “ill-led” boys; but we must not forget that the women were scarcely more than girls, unable to view these things as calmly as we view them now; and all these experiences went to make them the thing they became.

For the iron entered into their souls.

Thirty years later one of their number—a married woman and a physician of standing—was heard to say that on her occasional visits to Edinburgh, she would make a détour of miles rather than pass the gates of Surgeons’ Hall.

“Would you _really_?” said S. J.-B.