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.