CHAPTER XIII

THE ACTION AGAINST THE SENATUS

“MADAM,

... I never read or heard of such a hard case as yours—and so peculiar. It might be worth while to seek the advice of a Solicitor— who would consult counsel—to find out whether you and your disappointed friends have no case at Law. I would (if it be possible) just like to know what the Court of Session would have to say, touching—not only the arbitrariness, but the gross injustice, if not absolute illegality, of the whole affair. You matriculate—get through with about half of your classes—great loss of time—money— disappointment—even exasperation or half ruin—all incurred: and are then summarily brought to—made to fairly stick—and yet no legal remedy! I can’t believe it. I would try and find out,—but yet, it is an awful prospect. The length of time, and expense that would have to be borne, ere any decision could be come to. You seem to me like one who took a leap, without _seeing from the_ first,[97] where the leap was to land you. For surely, had you foreseen all this,—you never would have set foot in Edinburgh....

Footnote 97:

“Believe and venture! as for pledges, The gods give none.”

The tide is coming in and nothing can retard it,—nothing worth speaking of. And these views will be realised and acted upon some day. Depend upon it.

The day will come when women will sit cheek by jowl with men through a six months’ course of Anatomy, Physiology, Midwifery, etc., etc., right cheerfully, and neither jeering nor sneering there—nor winks nor any other impertinences—singularly misplaced and out of time—if certain important personages could only see matters rightly. Yes, and walk the Hospitals—surgical and medical—and the lying-in Hospital also, the Eye Infirmary, the Cancer one and the Consumptive one, and the Lock into the bargain. And then all these important obstructives will be dead, buried, rotten—forgotten—and their writings selling at three halfpence per lb.”

The above is quoted from the letter of a complete stranger,—the so- called “man in the street” apparently, and is a sample of many that came pouring in upon S. J.-B. during those troublous years. “Has the University any _right_ to act like this?” friends kept asking constantly; and we know that more than one of the Professors had advised an appeal to a Court of Law.

Towards the close of 1871, S. J.-B. seems to have consulted her brother on the subject, drawing from him the following letters:

“The College, Cheltenham. Nov. 18. 1871.

MY DEAR SOPHY,

I do not think you can gain anything by sueing the Professors or by going to Law with the University in any other shape.

It may be too late now to persuade, but it would be at all times hopeless to compel, a great University to open its doors to ladies.

I return the Queries and Opinions: and should distrust legal opinions that advised further law-suits.

It is most provoking, and your treatment has been unjust: but it comes to my mind to this, When they persecute you in one city, flee ye to another.

You can make better use of your time by getting University instruction elsewhere, than by throwing legal pebbles at the University gates of Auld Reekie: and life being short you had better gather up the net result of your Scotch experience, and go to Zürich or Paris, or wherever your own knowledge and judgment lead you.

I am exceedingly sorry for you; but I see nothing else to be done, so far as I understand the facts.

It is very tantalizing that the majorities have always been so narrow: and that there has been so much to justify sanguine friends in their advice.

I shall be glad to hear your decision, and both Hetty and I are very sorry for you.

Your affect. brother, T. W. J.-B.”

“The College, Cheltenham, Nov. 21. 1871.

MY DEAR SOPHY,

There is more to be said for legal action than I knew of: for I thought Paris or Zürich degree was legal qualification in England: though of course to go abroad for degree is objectionable in several ways, and the language must slightly increase the difficulties.

Still there is nothing to be said for legal action unless it is likely to succeed: and of that your Scotch lawyers are the best judges: though their expectations hitherto have been more sanguine than accurate in your case.

I am sorry I cannot be of much use, and very sorry the Trades Union is so strong and so well organized.

It must be very annoying, and is certainly a horrible waste of time: but half of most people’s time is spent in untying the foolish knots of blind opponents.

Hetty joins in love.

Your affect. brother, T. W. J.-B.”

“13 Sussex Square, Brighton. Jan. 21. 1872.

MY DEAR SOPHY,

One line to wish you many happy returns of the day, and to tell you that all is going on very well here....

We were very glad that you crept into such a haven of rest as Mrs. Nichol has to offer you: and I am quite sure the strain of so much fighting and organizing must be very great.

It seems hardly possible that you should get on with your own Medical education while there is so much polemical business on hand; but if you carry the point for all women, it will be cheaply bought at the sacrifice of two or three years of individual training in books and bones.”

“When they persecute you in one city, flee ye to another.”

This was advice which S. J.-B. had always kept well in mind, though not with regard to Paris and Zürich; and enquiries as to other British Universities had been diligently prosecuted. St. Andrews was the one that most naturally suggested itself, “as a comparatively rural University, without male students of medicine, and yet with the power to grant degrees.” It is true that the Medical Curriculum at St. Andrews was—and is—very incomplete; but the deficiency might be made good by some teaching-school unable—or unwilling—to grant degrees. Professor Lewis Campbell and Mrs. Campbell had taken a deep interest in the project of making their University the Alma Mater of the women students; S. J.-B. had visited them at St. Andrews in the autumn of 1871, with Miss Massingberd Mundy[98]; and there are a number of cordial letters witnessing to the genuine desire of both the Professor and his wife for the success of the scheme.

Footnote 98:

Miss Massingberd Mundy was one of the junior students who did not go on to graduation, but her gaiety and humour made her a real acquisition to the little circle in the trying days.

Their enthusiasm was not typical of the University, however, though Principal Tulloch “seemed friendly in a vague way”; and all hope in this direction had, for the moment, to be given up.

Meanwhile S. J.-B., on behalf of herself and her fellow-students, had made a final appeal to the University Court of Edinburgh to provide them with the means of completing their education, and she had also forwarded to them a farther legal opinion from the Lord Advocate and Sheriff Fraser to the effect that the University authorities had full power to permit the matriculation of women in 1869; that the resolutions then passed amounted to a permission to women to “_study Medicine_” in the University, and that therefore the women concerned were entitled to demand the means of doing so; and finally, that if such means were persistently refused, the legal mode of redress lay in an Action of Declarator.

On January 8th the University Court resolved that it was not in their power to comply with the requirements of the women as regarded teaching: the whole question, they said, had been “complicated by the introduction of the subject of graduation, which is not essential to the completion of a medical or other education”: if the ladies would altogether give up the question of graduation, and be content with certificates of proficiency, the Court would try to meet their views.

“They forgot,” says S. J.-B., “that though a degree is ‘not essential’ to a medical education, it _is_ absolutely indispensable to any practical use of it,—that is to any lawful practice of the medical profession.”

She offered, however, to waive the question of graduation,—pending an authoritative decision as to the powers and duties of the University,—if arrangements might meanwhile be made for the women to continue their education. To this the Court agreed. Farther correspondence, however, elicited the fact that the Court had no intention of coming to any decision with regard to its own powers, and that it did not mean to take any active steps in the matter.

“On the other hand,” says S. J.-B., “we had no less authority than that of the Lord Advocate of Scotland for believing that we were absolutely entitled to what we had so humbly solicited, and that a Court of Law would quietly award to us what seemed unattainable by any other means; we had the very widely spread and daily increasing sympathy of the community at large, and received constant offers of help from friends of every kind.... Under these circumstances we did the one thing that remained for us to do, we brought an Action of Declarator against the Senatus of the University,—praying to have it declared that the Senatus was bound, in some way or other, to enable us to complete our education and to proceed to the medical degree which would entitle us to take place on the Medical Register among the legally-qualified practitioners of medicine.”

Of course the news of this daring step was forthwith noised abroad, and S. J.-B. received a protesting letter from Dr. Elizabeth Blackwell, urging her not to waste on an uncertain lawsuit, money that might be so much more profitably spent in some other way.

The following is S. J.-B.’s reply:

“DEAR DR. BLACKWELL,

I suppose rumour very seldom does report things correctly, so I do not wonder that you have been misinformed about the action which we are on the point of bringing against the Senatus. It is not one for breach of promise (what fun _Punch_ would make of it if it were!) but simply an Action of Declarator whereby we pray one of the Judges of Session to declare that the Senatus is bound to complete our education, according to the decided opinion given by the Lord Advocate of Scotland.

In the brief space of a letter it would be impossible for me to submit to you all the facts and grounds on which our intention is based, tho’ I should be glad to explain them in detail if you were on the spot, but you will be glad to hear that not only are the whole of the students here of the same mind as myself on this point, but our determination is strengthened by the advice and concurrence of some of the wisest heads in Edinburgh, including those of friendly Professors. I hope therefore that you will believe that, though you find a difficulty at a distance from the field of action in concurring in our present step, you would probably do so if all the facts of the case were as thoroughly before you as they are before us and our counsellors.

It is just because I find that London friends are so little au courant of the facts that I am hoping to give an explanatory lecture when in town next month, and I need not say how doubly glad I shall be to give every explanation and information to you to whom [all] of us medical women owe so much gratitude and respect as our pioneer and forerunner.

Believe me, Yours truly, S. JEX-BLAKE.”

Now that there was something definite to be done, S. J.-B. was in her element once more and the following letters make it very clear that her “counsellors” were working _con amore_.

“University Club, Edinburgh. 18 March, 72.

DEAR MISS JEX-BLAKE,

Under the dread of bringing disgrace on the whole masculine race, I applied myself today during all the time I could command to the framing of the great Summons, and I brought it up to a point at which I think nothing of importance remains to be added except the historical statement and the pleas in law, both of which you may take for granted will be made right. If I can get them done this evening I’ll send them to you.

I thought as you were in a hurry to see the thing I had better let you have what I had done at once, and so I took it to White Millar and left it with him to send you. There must be a distinction drawn between you and the other ladies who are ready for the first professional exam., and the others who are not. So you will please note on the margin of the M.S. who those are that occupy these respective positions and the exact stage at which the less advanced ones have arrived. I must also have the dates and exact terms of the several resolutions and letters referred to in the last article, so as to make the chronological statement complete and accurate. I would like before the thing is finally adjusted to consult all the available sources of information on the subject of graduation and the original constitution of the University, and also I think if Bologna was our model, as seems to be taken for granted, that it would be worth while to communicate with some one there, such as the Secretary of the Senatus, if they have one, or the Librarian, to get authoritative statistics on the subject.

I have not heard from the Dean of Faculty yet in reply to my inquiry on the point of professional punctilio involved in my undertaking the case, but another eminent legal friend whose advice I highly value thinks on the whole that I ought _not_ to undertake it. This did not prevent me, however, from doing the Summons! Meantime you needn’t mention that I am doing it, in case of my not going on with the case, which might lead to unfavourable remarks, if it were supposed that I had begun and afterwards backed out of it. I’ll be very sorry to do so, if that is the Dean’s opinion.

Believe me, Yours very truly, ALEX. NICOLSON.”

Apparently the decision of the Dean was adverse to Mr. Nicolson, for the case was taken up, and very ably argued, by Sheriff Fraser and Mr. M‘Laren (afterwards Lord M‘Laren), who had been junior counsel in the libel case.

“I am quite certain,” writes Mr. Fraser to S. J.-B., “that upon a more thorough investigation it will be found that women did attend the Universities and graduated.... When you are up in London just now perhaps you would refer to some of the books in the British Museum, mentioned by Watts, which are not in the Advocates’ Library. You need not trouble yourself with the University of Edinburgh, as I have gone over the whole Records of the Council and of the Professors since the institution of the University, and I cannot find a single case of a woman being a student. The same I fear will be the result of an examination of the records of the other universities. This was natural, for, until recently, both the law and the social customs of Scotland, like those of other barbarous countries, regarded women as nothing else but domestic drudges and field hands.”

It was useless, of course, to suggest the British Museum. S. J.-B. had long since exhausted that mine. And she had no great faith in the information to be derived from correspondence with foreign secretaries and librarians. She had worked that vein too. It still remained to send an emissary to examine the archives of the Italian Universities at first hand, and this was what she now resolved to do. Someone had commended to her interest about this time an able and well-educated young lady whose health was causing her friends some anxiety, and, after watching and tending her for some time S. J.-B. despatched her on the mission, duly armed with the following _dossier_:

“1. At each University get access, if possible, to the official archives and lists of students, and make a complete list of every woman who studied there, with date, Faculty, and other particulars.

2. If you cannot get access yourself, get the lists made by some official, and, if possible, compare it with originals or other authorities.

3. If possible get the Secretary or Librarian, or some Professor to attest the list with his signature, as truly extracted from the records.

4. Pay any necessary fees, having as far as possible arranged for these beforehand.

5. Make copies in one book of every list obtained, of name and address of each person making or attesting such lists, and of all additional information likely to be of value.

6. Send off attested lists to me in registered letters as soon as obtained, marking in your M.S. book the exact duplicate in case of loss and sending a separate letter to Miss P. to announce dispatch.

7. Do not let your own M.S. book out of your hands for any purpose.

8. Send all lists on foolscap and not on foreign paper.”

The ambassador seems to have carried through her mission most efficiently, and an imposing array of names was the result. At any rate _that_ vein was now worked out.

In the meantime “the great Summons” was duly delivered, and on March 27th the Senatus met to consider what action they should take with regard to it. We get the following informal account of what took place from Miss Pechey:

“I could not get particulars of the Senatus meeting ... till too late to write last night, but it appears that it was first moved to defend the action; then Fleeming Jenkin proposed that an attempt should be made to have an amicable lawsuit. This was negatived by 17 to 10, and then the other motion _not_ to defend the action being put against the first, was negatived by 22 to 5. Many of our friends voted to defend,— Wilson amongst others. He says he feels sure that the thing will never be fairly settled without a legal decision. I saw him today in his office. He is very anxious you should get some member to ask a question when the Parliamentary grant is being arranged.[99] He told me the enemy were dreadfully angry at the suit, from which he concluded that our Summons is well drawn up.”

“This was the great argument for assenting to the corporate defence,” writes Professor Masson, “i.e. that the Senatus could not possibly let judgment go by default, which would yield all your demands (compulsion of Professors, etc.) and yet not really settle the thing, inasmuch as the Professors or anyone might afterwards reopen the whole judgment. On the same ground it is that friends don’t seem to want to stir individually. They say the defence is corporately by the Senatus and everybody will understand that, and hence that individual secession is superfluous. Tait, however, said he would consult his lawyer, and Craufurd and Jenkin meditated something of the same.”

Footnote 99:

S. J.-B. appealed to Sir Robert Anstruther; and there is a businesslike note from Lady Anstruther, asking for a very brief summary of all the main events,—just the thing that only S. J.-B. could supply.

The matter was brought forward in Aug. 1872, on Sir Robert Anstruther’s behalf, by Sir D. Wedderburn, see below.

On the other hand, six members of the Senatus—anxious though they well might be to have the weary question settled one way or the other—simply could not allow the resolution to pass without protest, and the following minute is duly recorded in the books of the University:

“We dissent from and protest against the resolution of the Senatus of March 27, 1872, to undertake the defence of the action. This we do for the following reasons:—(1.) Because we see no just cause for opposing the admission of women to the study and practice of medicine; but, on the contrary, consider that women who have honourably marked out such a course of life for themselves, ought to be forwarded and aided in their laudable endeavour as much as possible, by all who have the means, and especially by those having authority in any University or other institution for education; (2.) Because, in particular, we feel such aid and encouragement, rather than opposition and discouragement, to be due from us to those women who have enrolled themselves in the University of Edinburgh, and we entirely concur, with respect to them, in the desire expressed by Sir William Stirling-Maxwell, the Rector of the University, that they should obtain what they ask—namely, a complete medical education, crowned by a degree; (3.) Because we have seen no sufficient reason to doubt the legal and constitutional powers of our University to make arrangements that would be perfectly adequate for the purpose, and we consider the public questioning of such powers, in present circumstances, by the University itself, or any of its component bodies, unnecessary, impolitic, and capable of being construed as a surrender of permanent rights and privileges of the University, in order to evade a temporary difficulty; (4.) Because, without pronouncing an opinion on the question now raised, as to the legal rights which the pursuers have acquired by matriculation in the University, admission already to certain examinations, or otherwise, to demand from the University continued medical instruction and the degree on due qualification, we yet believe that they have thereby, and by the general tenor of the proceedings, both of the Senatus and of the University Court in their case hitherto, acquired a moral right, and created a public expectation, which the University is bound to meet by the full exercise of its powers in their behalf, even should it be with some trouble; (5.) Because, with these convictions, and notwithstanding our utmost respect for those of our colleagues from whom we may have the misfortune to differ on the subject, we should individually feel ashamed of appearing as defenders in such an action, and should account any such public appearance by us in the character of opponents to women desiring to enter an honoured and useful profession, a matter to our discredit.”

The following are the names of the six[100] Professors who felt bound thus to stand out against the arguments of their colleagues.

Footnote 100:

In addition to these six, Professor Fleeming Jenkin and Professor Cosmo Innes removed their names from the list of defenders.

John Hughes Bennett, M.D., Professor of the Institutes of Medicine,

David Masson, M.A., Professor of Rhetoric and English Literature,

Henry Calderwood, LL.D., Professor of Moral Philosophy,

James Lorimer, M.A., Professor of Public Law,

Archibald H. Charteris, D.D., Professor of Biblical Criticism and Biblical Antiquities,

William Ballantyne Hodgson, LL.D.,[101] Professor of Political Economy.

Footnote 101:

Professor Hodgson was a recent addition to the professorial staff, and a great asset to the women’s cause.