The Life of Sophia Jex-Blake

by Graham Travers

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.