CHAPTER XIV

THE LORD ORDINARY’S JUDGMENT

“Did you advertise your lecture in the _Lancet_? I expect you will have a lot of blackguardly doctors there in consequence. Don’t have any libel cases, and don’t be hard on the students. They’re very bad, but they’re not so bad as the Professors.[102] I know you are very busy writing and so on, and that there would be plenty of copying for me to do if only I were at hand. Don’t you want me to bully and be bullied by?

How I wish I could be in the gallery to make faces at you and throw peas!”

Footnote 102:

As a matter of fact a number of students came—unasked—to serve as stewards.

An admirable and characteristic letter, this, from Miss Pechey. Was a bracing message of warning and sympathy to a senior and chum ever more tactfully and lightly delivered?

On April 25th, after some days in the country, S. J.-B. went to London and was met by Miss Du Pre and Miss M‘Laren, who “heard and finally polished up the lecture,” which was delivered the following day at St. George’s Hall in the presence of a large and curiously assorted audience. The Earl of Shaftesbury, who occupied the chair, was supported by Professor Lewis Campbell, Rev. Dr. Martineau, Mrs. Garrett Anderson, Dr. Elizabeth Blackwell, the Dowager Countess of Buchan, and other well- known folk, and among the general public were a number of girlhood’s friends, including Miss Ada Benson, Miss Miranda Hill, and many “modern women,”—with a sprinkling of Norfolk cousins. In the course of his

address the Chairman made a shrewd remark, of which time has proved the truth:

“The argument that women were not wanted in the medical profession struck him as very singular. He was old enough to remember when railways and electric telegraphs were not wanted for the simple reason that they were not known. When they became known and tried, we could not do without them, and in all probability it would be the same with reference to ladies in the medical profession.”

In many ways the lecture was a success, and it was largely quoted and referred to in the press; but, for the ordinary hearer, it was overloaded with statistics, and—with a view to that ever-possible action for libel—the lecturer kept herself too well in hand. It is amusing to find _The Christian World_ hinting a regret that she “had not really worked herself up into a passion” in narrating the injustice and vexations to which she had been exposed.

On the other hand, Mrs. Priscilla Bright M‘Laren, an unbiassed expert, expressed the wish that the lecture should be delivered throughout the length and breadth of the land. The publication of a pamphlet, she said, would not have the same effect, because most people never have their sympathies thoroughly roused unless they come face to face with the person who has been persecuted. “If you could be seen and _heard_” she wrote, “you would produce a wonderful effect in favour of the cause you have at heart.”

S. J.-B. had serious thoughts of carrying out this suggestion, but—in the interests of her own health—one is glad to record that wiser counsels prevailed.

“Thank you _very, very_ much, darling, for your telegram,” writes Mrs. Jex-Blake, the day after the lecture. “I thought if you knew how anxious I had been the last few hours, you would send one, but I did not at all expect it.”

“I have not known where to direct to keep adding my rejoicing at the many accounts of the success of your lecture. Well, I am very very glad for you and with you, and I pray things may somehow take a fresh start. How very nice of some medical students to come and officiate. I wish Professor Masson could have been there.”

“I am very glad to think of you as once more snug at home and I hope with less work in view and some anxieties abated.... I am very glad indeed you have given up going about lecturing.... Tom, too, thinks you very wise to give it up: he was struck with your looking so worn, and very vexed to see you so.”

It is interesting to note that S. J.-B. had taken an invalid friend home with her to recruit! At the same time she is writing to a protégée:

“I have seen Dr. Blackwell, and think she is rather disposed to give you the work.... I think you should go in your bonnet, and look sage, and not seem too eager for the work, and put a good price on yourself,—say £2 a week, or, oh, you would accept £40 for the 6 months, etc. And be very confident you can do it all, if she asks you to call on her.”

This is really the most worldly letter that S. J.-B. ever wrote!

* * * * *

In all these later happenings, one misses the name of Mrs. Butler, who had stood by S. J.-B. so enthusiastically in the day of small things. As a matter of fact, Mrs. Butler was now fully embarked on her own heroic campaign, and both Mrs. Garrett Anderson and S. J.-B. had failed to give her their support. Thinking differently from each other on many points, characterised indeed by a fundamentally different way of looking at life, the two medical women alike realized the complications of modern civilization too profoundly to add the stupendous question that occupied Mrs. Butler to a programme that was already involved and difficult enough. Mrs. Butler felt their attitude keenly, and it was evidently with mingled feelings that she received a letter from Miss Pechey about this time, asking the privilege of adding her name and that of Canon Butler to the ever-growing Committee.

“My dear Miss Pechey,” she writes, “You are welcome to use my own and my husband’s names if you think they will do your cause _any good_. We cannot conceive that they would, and, on that ground alone, we should be as glad that you should not use them. It had better be left to Miss Jex-Blake’s judgment.

“All the world knows that we are on opposite sides on one of the most vital questions of the day, and that the Medical ladies have no sympathy with the efforts being made to get rid of the scandal of a great State system of legalised Prostitution, and therefore it appears to Mr. Butler and me an inconsistency that our names should appear in any such adverse connexion, deeply as we desire the prosperity and success of the medical woman movement....”

“Dear Mrs. Butler,” writes S. J.-B. in reply,—“As Miss Pechey tells me that you leave me to decide whether or no to place on our Committee your name and Mr. Butler’s, I write to say that I shall most gladly avail myself of your permission so to use your names.

I am glad to say that our Committee is made up of over a thousand friends who not only differ widely on the point to which you refer, but among whom differences no doubt exist on almost every other question, social, political and religious.

As we cannot hope that even the most conscientious among us will always agree on matters of judgment, I am sure that the only wise rule is to keep each question distinct by itself, and to welcome for it the support of all who care for its success, whether or no they agree on other points.

With kind regards to Mr. Butler, believe me,

Yours truly, S. JEX-BLAKE.”

The breach was never quite healed. When people care more for great causes than for personal pleasure and satisfaction, the loss of a friend must sometimes be taken as part of the day’s work. _Sunt lachrymae rerum._

Meanwhile the work of propaganda was going on steadily, and, as S. J.-B. had given up the idea of lecturing in the great towns, she proceeded, as the next best thing, to publish her lecture, in conjunction with her historical researches on the subject of Medical Women, in the form of a small volume.

Just as she was seeing this through the press, news came of the illness of her Mother, who was visiting the cousins at Bylaugh Park.

“June 17.

DARLING MOTHER,

I am _very_ sorry to hear that you have had such an attack again. I should be really unhappy if I did not believe and trust in you that you would telegraph for me if you at all wished for me, or if you felt really seriously ill. Am I right in so trusting you?

I am sure they will take all the care they can of you, and I hope you will be good and wise enough to eat all you can, broth at first, and then as much meat and vegetables as possible—and lots of strawberries!—are they ripe yet at Bylaugh?

You know that I am doing Dispensary work now, and have several patients of all kinds to look after, but I envy the doctor that has my old lady instead of me.

If you decide against going to Wales, suppose you come up here straight from Norfolk, and we have a quiet month quite alone together?—somewhere in the Highlands—if I have to give up Brighton.

Of course I shall send you your _own_ copy of my new book myself, but Miss Pechey will send any quantity more that you may order for giving away, etc.

How good of dear old Auntie to write!

Yours lovingly, SOPH.”

The illness, however, rapidly assumed a dangerous character, and S. J.- B. was telegraphed for next day.

“Luckily was up,” she says [she had been ill herself], “and received the telegram by 9.50 a.m. Got things packed and off by 10.25 train. Thunder and lightning whole way up. Reached Peterbro about 6.30,—Lynn 9.15. Got a carriage and drove to Swaffham ...—thence to Bylaugh, arriving at 2.45 a.m. Crept up to Mother’s room,—she, ‘My darling!’— She had been nervous and restless, but slept, holding my hand.

Oh, the horror of seeing her all shrunk together in bed, hardly articulate,—I thought dying.

And had been very nearly....”

As usual when life was doing its worst, there follow a few blank pages in the diary,—pages that were to be filled in some day! “I am so glad,” wrote Miss Jane Cubitt from Fritton,—Miss Cubitt was the “sensible cousin” of the childhood, who could do equations—“I am so glad that you have arrived at Bylaugh. I feel now that all that can be done will be done.” And fortunately on this occasion recovery came more rapidly than the doctors had thought possible.

S. J.-B. returned to Edinburgh on the 8th July, not a moment too soon. She was called out to a case the evening of her arrival—having travelled north by day—and she proceeded forthwith to finish seeing her book through the press. Law business, too, was urgently claiming her return. On Wednesday, the 17th July, the historic lawsuit came on before Lord Gifford.

It must be understood that this lawsuit, though of almost infinite importance to the women, was in no way a dramatic affair like the last. In the nature of the case it afforded no sensations to provincial papers. An Action of Declarator is “for a decree defining and declaring the right of the pursuer,”[103] and the evidence in Court was given by Counsel only.

Footnote 103:

See S. J.-B.’s letter to Dr. Elizabeth Blackwell, pp. 356-7.

The women repeated in effect the requests they had so often made to the University, viz. that the Professors should either receive them as members of their classes, or else appoint (or recognize) other lecturers who would. The defence consisted substantially of two pleas: 1. that all parties are not called (see below); and 2. that the Senatus has not the power to do what it is asked to do; in other words, (_a_) that the University existed for men only, and, (_b_) that the University authorities in making this experiment, had never intended to admit women to _graduation_. If they did so intend, the intention was _ultra vires_; and indeed they probably went beyond their powers when in 1869 they framed regulations admitting women to share their privileges at all.

The hearing of the case lasted two days, and it was fully reported in the Scottish daily papers of July 18th and 19th. Much of it, of course, consisted of sheer technical detail that has long since lost interest, but Lord Gifford’s judgment—delivered eight or nine days after the hearing of Counsel—was characterized by a grip of the whole situation and enlivened by a warmth of human interest that make it a landmark in the history, not only of medical women, but of the whole Feminist movement. If he allowed his sympathy with the pursuers to appear rather too clearly, this was surely a fault that, in view of all the circumstances, may well be reckoned to him for righteousness. The gist of the judgment is contained in the following sentences:

“The Lord Ordinary finds that, according to the existing constitution and regulations of the said University of Edinburgh, the pursuers are entitled to be admitted to the study of medicine in the said University, and that they are entitled to all the rights and privileges of lawful students in the said University, subject only to the conditions specified and contained in the said regulations of 12th November 1869: Finds that the pursuers, on completing the prescribed studies, and on compliance with all the existing regulations of the University preliminary to degrees, are entitled to proceed to examination for degrees in manner prescribed by the regulations of the University of Edinburgh.”

In the “Note,” the Lord Ordinary discusses the case in detail:

“It is not easy to over-estimate the importance of the questions involved in the present action. The decision may affect, in various ways, not only the interests of the pursuers, and of all who are similarly situated, but also the future welfare of the University, and indirectly the well-being of the community at large who are interested in securing the services of thoroughly educated and accomplished medical practitioners.

The Lord Ordinary has endeavoured to approach the consideration of the questions dispassionately, and free from all prejudices or prepossessions. He has also endeavoured to keep in view that his functions are merely judicial and not legislative, and that his duty is simply to declare and apply the law as it at present stands, and in no way to endeavour to amend it, however strong his convictions of what the law ought to be....

The importance of the question to the present pursuers, and to all ladies who, like them, may contemplate the practice of medicine as a profession, lies in this, that, by the provisions of the Medical Act of 1858 no one is entitled to be registered as a medical practitioner without possessing a medical degree from one or other of the universities of the United Kingdom, or a licence equivalent thereto from certain established medical bodies mentioned in the Act. A foreign or colonial degree is not available, and does not entitle to registration unless the holder thereof has been in practice in Great Britain previous to October 1858. Unless the pursuers, therefore, succeed in obtaining degrees, they will be practically excluded from the profession of medicine, for they are not in a position to demand licences from any of the authorised medical bodies, and it can scarcely be expected that they will prosecute their medical studies merely in order to be hereafter classed with empirics, herbalists or medical botanists, or with those who, in common language, are denominated quacks. Without legal registration under the Medical Act of 1858, the pursuers would be denied all right to recover fees; they would be incapable of holding any medical appointment; and they would be subject to very serious penalties if they so much as attempted to assume the name or title of medical practitioners.

It is a fact, whatever may be its effect in law, that no University in Great Britain has ever yet granted a degree to a lady. The Medical Register of Great Britain only contains the name of two female practitioners—Dr. Elizabeth Blackwell and Dr. Garrett Anderson. Dr. Blackwell obtained her degree in America, and, being in practice in Great Britain before 1858, she obtained registration in virtue of the exception in the Act. Dr. Garrett Anderson obtained a licence from the Apothecaries’ Hall, London, and is registered as such; but, since her admission, regulations have been made which prevent any other lady from hereafter obtaining a licence from the Apothecaries’ Hall. Accordingly the course pursued by Dr. Blackwell and Dr. Anderson is not open to any of the pursuers, and their only hope of being allowed to practise medicine in Great Britain rests upon their being able to obtain a degree from one or other of the Universities.

_Practically, therefore, the questions are now raised for the first time, Can a lady obtain a medical degree? and, Is any lady to be allowed to practise in Great Britain?_”

The Lord Ordinary then discussed the case for the defenders, point by point: The first plea in law was the technical plea that “all parties are not called,” or, in other words, that the action should have been brought, not against the Senatus and Chancellor, but against the University as a whole.

This question, said the Lord Ordinary, should have been raised before the record was closed, and settled _in limine_. As a matter of fact, however, it was of little moment, as the Senatus and Chancellor were the only parties complained of,—it being assumed that the University as a whole was ready and willing to do its duty as soon as such duty was clearly defined. The Chancellor, indeed, had expressed this willingness so far as he individually was concerned, and, strictly speaking, he need not have been called as a party.

From the principle on which this preliminary plea was repelled, it followed that there was in the present action no attempt to impugn in the slightest degree the existing constitution of the University. Its existing regulations and ordinances must be taken as right, and the Senatus must simply be called upon to give effect to these as they stood.

The Lord Ordinary proceeded to make one or two observations of a general nature. He was clearly of opinion that, by the law of Scotland, there was no inherent illegality in women prosecuting the science of medicine, using the word in its largest sense, or in their engaging in the practice of medicine as a profession.... Indeed some branches of the profession were peculiarly appropriate to women and peculiarly inappropriate to men. For instance, in obstetric practice and in numerous diseases of women, a male practitioner was singularly out of place, and nothing but the deadening effect of habit would ever reconcile the community to that anomaly both in name and in reality, “a man-midwife.”

Keeping these preliminary observations in view, the Lord Ordinary proceeded to consider the constitution and regulations of the University of Edinburgh so far as they related to women:

I. It had been broadly maintained by the Counsel for the Senatus, in a very powerful and able speech, that the University of Edinburgh was founded and existed for males alone.

If this proposition were well founded, there was, of course, an end of the whole case. The Lord Ordinary, however, had felt himself quite unable to affirm this proposition, but had come ultimately, without any hesitation at all, to the conclusion that there was no foundation for this first and general contention of the defenders.

_a._ The charter gave no countenance to this supposition. The masculine noun or pronoun was used merely in conformity with ordinary brevity and simplicity of expression.

_b._ The fact that the Universities of Scotland were founded to a great extent upon the model of Bologna, etc., seemed to show that—as women were admitted to the Italian Universities—there could have been no original intention to exclude them from those founded in Scotland.

_c._ It was true that there was no recorded instance of a woman having taken her degree in Scotland, and this was an argument of some weight, perhaps considerable weight. If, however, the women had the right originally, that right would not be lost by the mere fact of non-usage. The right in their case was _res merae facultatis_, like a man’s right to build upon his own ground,—a right that is not lost though no building be erected for hundreds or thousands of years. To extinguish such a right there must be a contrary usage—a possession inconsistent with the exercise of the right—and that did not exist in the present case.

_d._ If there was no express exclusion of women and nothing necessarily leading to their exclusion, it seemed fair to fall back upon the inherent legality and appropriateness of the study and practice of medicine by women, and to infer that a medical school founded in the University could not have as one of its conditions the exclusion of the female sex.

_e._ Passing from such general considerations, the Lord Ordinary considered it quite conclusive of the whole question that, by regulations lawfully enacted by competent and sufficient authority, provision had actually been made for the admission of women to the study of medicine in the University of Edinburgh, and that actually detailed regulations had been made regulating their studies and examinations.

II. The Lord Ordinary was of opinion that the “regulations for the education of women in Medicine in the University” of Edinburgh, enacted by the University Court of 10th November, 1869, and approved of by the Chancellor on 12th November, 1869, were valid and binding in every respect, and formed an integral part of the constitution and regulations of the University as it at present existed. At the debate it was felt on both sides that these regulations formed almost the turning-point in the case, and the counsel for the Senatus, sorely pressed by them, had boldly challenged their legality, maintained that they were _ultra vires_ of the University Court to enact, and had asked the Lord Ordinary to treat them as a nullity. Here again the Lord Ordinary thought the position taken by the Senatus was absolutely untenable.

The regulations in question were solemnly, after much discussion, after long consideration, and after due communication with the whole governing bodies of the University, enacted by the University Court, a body which had very large and almost legislative powers. The regulations were enacted with all the required statutory requisites. “Due communication” was had with the Senatus. The matter was submitted to and was duly considered by the University Council, and the regulations received the final sanction and approval of the Chancellor. The Senatus, the University Court and the University Council had all the benefit of the very highest legal skill and experience. Most eminent lawyers were members of all these bodies; and the Chancellor who put the seal of his approbation and sanction to the regulations held with universal acceptance the very highest judicial office in Scotland.... So satisfied had the Senatus been of the validity of the regulations, that they had actually applied to the enacting power—that is, to the University Court— to rescind them. The University Court had refused to rescind the regulations and they still stood part of the law of the University.

III. The Lord Ordinary was of opinion that the pursuers were entitled in substance to the declaratory decree which they demanded in the present action....

The right to medical graduation was really at the foundation of the whole of the present dispute. If the ladies had been content to study as mere amateurs—as mere dilettanti—it rather appeared that no question would ever have been raised. But their demand for degrees, and the announcement of their intention to practise as physicians, had aroused a jealousy which the Lord Ordinary was very unwillingly obliged to characterize as unworthy, and hence this strife.

The Lord Ordinary was of opinion, without any doubt at all that the proposal to withhold from successful or fully accomplished female students the regular degrees, and to give them instead mere certificates of proficiency was incompetent as well as unjust. The proposal was not unnaturally stigmatized by the pursuers as “a mere mockery.”

IV. All this, of course, had reference to the declaratory conclusions. Beyond that the Lord Ordinary could give no help. The first petitory conclusion asked that the Professors be directed to admit women to their ordinary classes; but this, as Lord Gifford pointed out, was more than the Senatus had power to do, and the University Court could only do it by altering regulations which the present judgment had assumed to be right. The University Court, however, had undoubted power to recognize extra-academical teachers; and—as teachers of unquestionable standing and ability were ready to give the pursuers instruction in separate classes—as, moreover, the University had only been held back by a doubt as to its own powers—the Lord Ordinary hoped that this solution would terminate the unfortunate controversy which had raged so long.

* * * * *

S. J.-B. records the result very briefly in her diary:

“Friday, July 26th. Lord Gifford’s judgment. Affirms declaratory conclusions, i.e. full rights,—denies petitory conclusions, i.e. says action so framed that he could not make order on Senatus.

Gloria tibi, Domine!

Substantially the whole cause won for all women, I believe.

His note too good to be easily set aside. _May_ be fresh delay—hardly defeat.”

In any case it was a great and inspiring judgment,—almost enough to atone to S. J.-B. at the moment for all she had come through; for it must not be forgotten that the epoch-making enactments of November 1869, on which almost everything turned, had been won by her own bow and spear, practically before any other woman student had appeared upon the scene.[104] Well might she cry, “Gloria tibi, Domine!”

Footnote 104:

See p. 260.

And within a few days a great pæan of rejoicing rang out over the land,— rejoicing that was to spread over the whole civilized world. Once more the postman was a delightful visitant. Indeed, as one reads the letters, one is fain to retract the dictum that this lawsuit was in any way devoid of dramatic interest.

The telegraph boy came first, with a characteristic message from Mrs. Kingsley:

“A thousand congratulations. How is R.C.”

“Eileanach, Inverness. July 31/72.

DEAR MISS BLAKE,

A paragraph in the _Daily Telegraph_ of the 30th made me surprise sitters-by, by exclaiming ‘Thank God,’...

It is almost too good news to be true, although those not versed in legal quibbles felt that your claim was both legal and equitable, and _must_, in due time, be conceded. Yet, I would thankfully learn that the case is ended, and that there is to be no appeal to keep it open longer.

I mean to be in Edinr. (Cockburn Hotel) on the 8th August, and will that day try to see and congratulate you on the blessed determination you have shown, all along, not to be put down by mere brute, unmanly force, but to compel justice to be done.

I am grieved that this should have cost you and your friends such shameful trouble and expense, but know, that this loss to you, will be the cause of myriads of dear women thanking God for having won a victory that will do more for their welfare and happiness, temporal and spiritual, than is now perceived but by a very few....

May God be with you and your friends, and speedily fill the land with true women like you, so that no woman may need to keep secret for an instant a single pain, because she can only tell it to men.

Very sincerely yours, J. MACKENZIE, M.D., Provost.”

“Wednesday, July 31.

DEAR MISS JEX-BLAKE,

Will you allow me to add my hearty congratulations to those with which I doubt not you are now being overwhelmed, on the success of your brave and patient conflict with prejudice and injustice? I think the question is now practically settled.

Thanks for your kind letter. I am very glad you liked St. Andrews. Believe me with much respect,

Yours very sincerely, A. K. H. BOYD.”

The letter that follows is from one who was to become an invaluable champion.

“16 Wimpole Street. July 27.

DEAR MISS JEX-BLAKE,

Allow me to congratulate you most heartily on the decision of Lord Gifford, which establishes the rights of the lady students at Edinburgh.

I will do what I can to get your interesting little book noticed in the _Lancet_.

I do hope that the Conservative party in the profession will now have the sense to give way with a good grace.

Believe me, dear Miss Jex-Blake, Yours very truly, FRANCIS ED. ANSTIE.”

The next is in the shaky handwriting of an invalid:

“MY DARLING,

I was so delighted to have your letter with the grand news. I had not dared expect anything so good. From my heart I thank God and rejoice. I feel so comfortably well, no aches or pains whatever. May God bless and prosper my darling.

YOUR LOVING MOTHER.

Shall I give a copy to Nurse of _the_ book when we part?”

“Riffelberg. July 30th. 1872.

MY DEAR SOPHY,

I am delighted to see in _Times_ of 27th, just arrived, that Lord Gifford has given a judgment entirely in favour of yourself and the other lady students. I congratulate you heartily and only hope it is final.

I am here 8,400 ft. above the sea, having found it impossible to get fresh in England, ...

I hope your legal perils are over; and, though one has regretted that so much legal work prevented your own medical start, it has been well worth all you have gone through, or yet may go through, to open the Profession thoroughly to women.

As soon as you have completed your training, you have in my opinion nothing but success before you: and, within 12 months of settling in London as a properly qualified Physician, you will find it easy to make £2000 a year, and impossible to avoid doing a very large amount of good in making it....

Your affectionate brother, T. W. J.-B.”

It was on the occasion of this visit to Switzerland that Mr. Jex-Blake made the acquaintance of Miss Agnes M‘Laren—on the top of the Eggishorn! It chanced one day that he ran down from the summit to assist a fragile little lady up the last steep climb, and, in the course of subsequent conversation, lent her a guide-book, in which, to her great surprise, she found the familiar name of Jex-Blake.

So the Eggishorn heard all about it.

Yes, friends were kind, and more than kind; but, as before, the “man in the street” rejoices one’s heart:

“Glasgow. 30th July, 1872.

DEAR LADY,

I beg respectfully to convey my sincere thanks to you for the gallant stand which you have made against those parties whom I may term Medical Monopolists, and to express my delight at the success which have attended your efforts.

Your address and ability in thwarting the selfish purposes of said parties have endeared you to every liberty loving individual in the civilised world, and I sincerely hope you will long be spared to benefit suffering humanity by your experience and knowledge—knowledge which you have pursued under such tremendous difficulties, but the possession of which cannot fail eventually to raise you to the very pinacle of your profession.

I am, Yours very respectfully, ...”

The following lines, written and sent to S. J.-B. a few months later by a well-known Edinburgh citizen, may be taken as a sample of much clever and spirited doggerel on both sides of the question:

“I do rejoice, Miss Jex, The gods have heard your Prex, To vindicate your Sex, By passing a new Lex, Though that does sadly vex Professor C., senex, Who plays the part of Rex, But may become an Ex, Because he won’t annex The females to his Grex.”