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]]”
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?