Scottish Court of Session Decisions

The circumstances out of which this suit arose were as follows:—On 20th March 1869, the pursuer, Miss Jex-Blake, addressed a letter to the Dean of the Medical Faculty of the University of Edinburgh, requesting permission to attend the lectures to the medical school during the coming session, under such conditions or reservations as might seem desirable. At their meeting on March 23, the Medical Faculty acceded to this request; and on 27th March 1869 the Senatus Academicus, by a majority of 14 votes to 4, sustained that decision, and granted the said pursuer permission to attend classes tentatively, and without matriculation, during the ensuing session. On appeal against this resolution, the University Court, on 19th April 1869, pronounced the following judgment—“The Court considering

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the difficulties at present standing in the way of carrying out the resolution of the Senatus, as a temporary arrangement in the interest of one lady, and not being prepared to adjudicate finally on the question, whether women should be educated in the medical classes of the University; sustain the appeals, and recall the resolution of the Senatus.” On 21st June 1869 the pursuer Miss Jex-Blake addressed a letter to the Senatus Academicus, informing them that other ladies besides herself had expressed a desire to prosecute medical studies in the University, and requesting that the Senatus would recommend to the University Court to sanction the matriculation of women as medical students, and their admission to the usual examinations, on the understanding that separate classes should be formed for their instruction by the medical professors of the University, or by recognised extra academical lecturers. Of same date, the said pursuer addressed a letter to the Rector of the University, inquiring whether the Court would “remove their present veto in ease arrangements can be made for the instruction of women in separate classes; and whether, in that case, women will be allowed to matriculate in the usual way, and to undergo the ordinary examination, with a view to obtain medical degrees in due course?” On 30th of June 1869 the said pursuer addressed a letter to the Dean of the Medical Faculty of the University, stating that in the event of the separate classes being established, she and her fellow students would be ready to guarantee to each professor whatever minimum fee might be thought right by the Medical Faculty, or to endeavour to meet the wishes of each professor individually in that point. On 1st July 1869, at a meeting of the Medical Faculty of the University it was resolved to recommend to the Senatus—(1) that ladies be allowed to matriculate as medical students, and to pass the usual preliminary examination for registration; (2) that ladies be allowed to attend medical classes, and to receive certificates of attendance qualifying for examination, provided the classes are confined entirely to ladies; (3) that the medical professors be allowed to have classes for ladies, but no professor shall be compelled to give such course of lectures; (4) that, in conformity with the request of Miss Jex-Blake's letter to the Dean, ladies be permitted to arrange with the Medical Faculty, or with the individual professors, as to minimum fee for the classes. At a meeting of the Senatus Academicus, July 2, 1869, the report of the Medical Faculty was read, agreed to, and ordered to be transmitted to the University Court.

At a meeting of the University Court on 23d July 1869, “Mr Gordon, on behalf of the committee appointed at last meeting to consider what course should be followed in order to give effect to the resolution of the Senatus in favour of the recommendations of the Faculty of Medicine regarding separate education in medicine for ladies, reported that the committee were of opinion that the matter should be proceeded with under section XII 2 of the Universities Act, as an improvement in the internal arrangements of the University.” Mr Gordon then moved the following resolution, which was adopted:—“The Court entertain an opinion favourable to the resolutions of the Medical Faculty in regard to the matriculation of ladies as medical students, and direct these resolutions to be laid before the General Council of the University for their consideration at next meeting.” This resolution was approved by the General Council on October 29th 1869, and was sanctioned by the Chancellor on November 12th 1869. The following Regulations were officially issued at the same date, and inserted in the Calendar of the University for the following years, 1870–71 and 1871–72:—(1) Women shall be admitted to the study of medicine in the University; (2) The instruction of women for the profession of medicine shall be conducted in separate classes confined entirely to women; (3) The professors of the faculty of medicine shall, for this purpose, be permitted to have separate classes for women; (4) Women not intending to study medicine professionally may be admitted to such of these classes, or to such part of the course of instruction given in such classes, as the University Court may from time to time think fit and approve; (5) The fee for the full course of instruction in such classes shall be four guineas, but in the event of the number of students proposing to attend any such class being too small to provide a reasonable remuneration at that rate, it shall be in the power of the professor to make arrangements for a higher fee, subject to the usual sanction of the University Court; (6) All women attending such classes shall be subject to all the regulations now or at any future time in force in the University as to the matriculation of students, their attendance on classes, examination, or otherwise (7) The above Regulations shall take effect as from the commencement of 1869–70.

In accordance with the above resolutions and Regulations, the pursuers, Miss Jex-Blake, Mrs Thorne, and Miss Pechey, were in October 1869 admitted provisionally to the usual preliminary examination in arts prescribed for medical students entering the University. Having duly passed, and received certificates to that effect from the Dean of the Medical Faculty, they, after the issue of the Regulations above cited, all matriculated in the ordinary manner at the office of the Secretary of the University. They paid the usual fee, inscribed their names to the University album with the usual particulars, including the faculty in which they proposed to study, and received the ordinary matriculation tickets, which bore their names, and declared them to be “Cives Academiæ Edinensis.” The three pursuers aforesaid were at the same time registered in due course as students of medicine by the registrar of the Branch Council for Scotland in the Government Register, kept by order of the General Council of Medical Education, and regisstration of the United Kingdom, such registration being obligatory on all medical students, and affording the sole legal record of the date at which they have commenced their studies. During the sessions of 1869–70 and 1870–71, these three students completed the first half of the course of study required for graduation. They attended in the University the classes of Chemistry, Practical Chemistry, Institutes of Medicine, and Botany, and under extra-mural lectures, the classes of Natural History, Anatomy, Practical Anatomy, and Surgery. In these several classes they passed the same class examinations as the male students, and whenever they obtained class honours in the University their names were inserted and published in the prize-lists and in the University Calendar indiscriminately with those of the male students. On 9th April 1870 the Senatus formally decided that exactly the same University certificates of attendance should be issued to medical students of both sexes, irrespective

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of the fact that their studies were conducted in separate classes. The pursuers, other than those above named, matriculated in like manner in successive sessions, and have all taken one or more medical classes either in the University of Edinburgh or in the extra-mural school, as sanctioned by the ordinary University regulations.

The pursuers having ascertained, on application to the several professors whose classes it is necessary for them next to attend, with a view to completing their curriculum of study, and proceeding to the professional examinations required of candidates for degrees, that they were not prepared to conduct separate classes for their benefit, the pursuer, Miss Jex-Blake, addressed a letter to the Senatus, on 26th of June 1871, stating the position of matters, and suggesting as a means of overcoming the obstacles of the completion of their studies the following alternative measures:—(1) “That whenever a professor may be unable or unwilling to deliver a separate course of lectures on his subject, the Senatus should nominate for the approval of the University Court a special lecturer on the said subject, for the express purpose of giving us the requisite qualifying instruction, we undertaking to defray the expenses of such appointment; or (2) That the University regulations with respect to extra-mural classes be so far relaxed in our special case that, whenever a professor may be unable or unwilling to deliver a second course of lectures, we should be authorised to attend a corresponding class on the same subject in the extra-mural school, the said class being held to qualify equally for graduation.” The obstacles referred to in this communication depended on the following facts—(1) That the University regulations of November 1869 permitted, but did not expressly require the professors to have classes for ladies; that they were forbidden to instruct them except in separate classes; and that some of the professors were unwilling to give separate classes; (2) That no candidates for graduation may attend more than four of the classes required for graduation, except in a university entitled to give the degree of M.D.; and (3) That no other university in the United Kingdom, except that of Edinburgh, is at present available to women for the purposes of medical study. In reply to the above communication, the pursuer was informed that the Senatus, at a meeting held on 28th July 1871, had resolved by a majority of one, “that having taken the opinion of counsel with reference to the proposals contained in her memorial, of date 26th June 1871, they find themselves unable to comply with either of those proposals.”

In the month of October 1871 women who applied for matriculation tickets to the clerk of the secretary of the Senatus Academicus were told by him that he had received instructions from the Principal not at present to issue matriculation tickets to any women. On October 16, 1871, the pursuer, Miss Jex-Blake, also received from the clerk a letter in the following terms:—“University of Edinburgh, Octr. 16th, 1871.—Madam,—I am desired by the Dean of the Medical Faculty to inform you that he has been interdicted by the Faculty from giving examination papers to ladies on the 17th and 18th curt. Kindly communicate this fact to the ladies whose names you some time ago handed in to me for this examination.—I am, &c., Thos. Gilbert.”In this letter no mention is made of any possibility of a special examination in arts for the new lady students; and, moreover, such examination being held by the professors of the arts faculty, the medical faculty had no power to promise a special examination. As three ladies had come to Edinburgh expressly for the purpose of undergoing this examination, who would, if prevented from doing so, be retarded in their studies to the extent of one year, these ladies, including the pursuers, Miss Anna Dahms and Miss S. J. Massingberd Mundy, obtained the opinion of counsel as to the legality of the interdict, and were informed that it was illegal. When this opinion was forwarded to the Dean of the Medical Faculty, he decided not to take the responsibility of obeying the interdict, and therefore admitted the said women to the examination provisionally. On Saturday, October 14, the pursuers, Mrs Thorne and Miss Edith Pechey, who had already paid for and obtained tickets of admission to the forthcoming professional examination, received notice from the Dean of the Medical Faculty, by order of the Medical Faculty, that they could not be admitted to such examination without express directions of the Senatus. The pursuer, Miss Pechey, thereupon addressed, and, on Oct. 20, sent the following letter to the Secretary of the Senatus Academicus:—“Letter from the Women Students to the Secretary of the Senatus Academicus. Sir,—We beg you to represent to the Senatus that, without any previous official notice, we were informed on Saturday last, by order of the Medical Faculty, that we cannot be admitted to the professional examination which takes place on the 24th inst. without the express sanction of the Senatus, and we therefore venture earnestly to request the Senatus to take into consideration the following facts:—(1) That we began our studies two years ago, and have diligently pursued them ever since, in the full belief that the permission granted to us to study ‘for the profession of medicine’ involved necessarily the permission to attend all examinations required for the medical degree, when we had complied with the ordinary requirements of the official regulations. (2) That in the first permissive resolutions passed by the Medical Faculty in July 1869, the admission of women to examination in the ordinary course was distinctly contemplated, as it was provided that they were to ‘attend medical classes, and to receive certificates of attendance qualifying for examination.’ (3) That in the Regulations sanctioned by the Senatus. University Court, and University Council, and approved by the Chancellor in November 1869, it was expressly laid down that women studying for the profession of medicine were to be subject to all the regulations now or at any future time in force in the University, as to the matriculation of students, their attendance on classes, examination, or otherwise.’ (4) That the Medical Faculty must all along have been perfectly aware that in the ordinary course of study our first professional examination would become due at the end of two years after our first matriculation, and that yet no official notice has ever been given to us that objections would be made to our admission to this examination; and that, had any such objection been officially intimated to us, we should, many months ago, have made application to the Senatus to direct our admission to such examination. (5) That in the absence of all notice to the contrary, we have for some months past devoted ourselves to diligent

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preparation for this special examination, and that we shall be placed at the greatest disadvantage if we are not now allowed admission to it. (6) That we have already paid our fees for the examination, and that the ordinary tickets of admission have been granted to us as a matter of course. We therefore beg, Sir, thus to lay before the Senatus our claim to admission to the ensuing examination, in respect of the considerations we have enumerated, and request that, as a matter of good faith towards us, matriculated students of the University, they will accordingly direct the Medical Faculty to admit us in the ordinary manner.” At a meeting of Senatus, held on October 21, 1871, the above letter was submitted to the Senatus.

The Senatus decided that (1) women were to be allowed to matriculate and pass preliminary examinations in Arts as heretofore, so long as the present Regulations remained in force; (2) that the women then ready to proceed to their first professional examinations were to be admitted to it in the usual course, with the understanding that certain legal questions (relating especially to the qualification for graduation of certain extra-mural classes in which the women had studied with male students) were reserved. At a meeting on November 30th, the University Court agreed that the women's attendance at these classes should not be considered vitiated by the fact of their attendance with male students. The pursuers, Mrs Thorne and Miss Pechey, were accordingly admitted to examination, and passed successfully; and they and other women, to the number of 28, matriculated in the University.

On 30th October 1871 the Senatus again met to consider the question of providing further faculties for continuing the studies of those women who had completed the first half of their course.

The Senatus declined, by a majority, to take any measures by which the women might be enabled to complete their education, and therefore the pursuer, Miss Jex-Blake, addressed to the University Court the following letter:—“From Miss Jex-Blake, addressed to the Honourable the University Court.—15 Buccleuch Place, November 21, 1871.—Gentlemen,—It is now two years since you passed a series of resolutions, dated 12th November 1869, to the effect that ‘women shall be admitted to the study of medicine in the University.’ In the time that has since elapsed, I, and those ladies who matriculated with me at that date, have completed one-half of the studies necessary for graduation in the University of Edinburgh. Nearly five months ago, I ventured to point out to the Senatus Academicus that unless further arrangements were made it would be impossible for us to complete the studies which we have begun with your express sanction. After pointing out the existing difficulties, I ventured further to make two suggestions, either of which, if adopted, might enable us to complete our education in the University. In reply, however, I was informed that the Senatus, ‘having taken the opinion of counsel with reference to the proposals contained in the memorial of date 26th June 1871, find themselves unable to comply with either of those proposals.’ I understand, however, that since the date referred to, another legal opinion has been obtained, and has been laid before the Senatus, and by them forwarded to your honourable Court. As, however, the Senatus still appear unwilling to initiate any measure by which we may be relieved from our present difficulties, I feel constrained now to appeal to you, in my own name and that of my fellow students, to take such steps as shall enable us to complete our studies. I beg to represent to you that we have all paid matriculation fees for the present year, and are by our tickets declared to be ‘Cives Academiae Edinensis,’ and that yet we, who commenced our studies in 1869, are unable during the present session to obtain any further classes whatever towards completing our required course of study. We understand from those friends who have taken legal opinion on the subject—and doubtless such opinion will be laid before you simultaneously with this letter—that we are entitled to demand from the University the means of completing our studies, and that, failing any other alternative measures, we can claim the instruction of the medical professors to the extent needed to complete our curriculum. We beg, therefore, most respectfully to request that, unless any other mode of supplying our need seems preferable to you, you will vouchsafe to ordain that the professors whose courses we are bound by the University regulations to attend shall give us the requisite instruction.—I beg to subscribe myself, Gentlemen, your obedient servant,— Sophia Jex-Blake.”

On November 11, 1871, the Senatus resolved, by 14 votes to 13, to recommend to the University Court that the existing Regulations regarding the instruction of women in the University should be rescinded. Before replying to the pursuer Miss Jex-Blake, the University Court resolved to hear parties on an appeal against this resolution. Reasons of dissent from it were signed and presented by 18 out of the 35 professors of the University. On 2d January 1872 the University Court adopted the following resolution:—“Having considered the appeal of Professors Masson, Bennett, and Calderwood against the resolution of the Senatus, of date 11th November last, representing to the University Court the propriety of rescinding their resolutions and regulations in reference to the admission of women to medical education in the University, without prejudice, however, to the rights and interests of those ladies who had already entered upon a course of study in pursuance thereof, and without prejudice to the right of professors to give separate instructions to ladies in such classes as the University Court might from time to time think fit and approve; and having heard the appellants in support of the appeal, and Professors Muirhead, Turner, and Lister against the appeal, find it inexpedient at present to rescind the said resolutions and regulations, and therefore decline to give effect to the representation of the Senatus.

“The Court must not be understood as indicating by this deliverance any opinion as to the claim of women to proceed to graduation, or as to the power of the University to confer on women degrees in the Faculty of Medicine.”

On 8th January 1872 the University Court adopted the following resolution:—“The University Court have had under consideration the letters of Miss Jex-Blake and Miss Louisa Stevenson, of 21st November 1871, and other relative documents laid before them, on behalf of the women who have been admitted, by the regulations of the Court, of November 10, 1869, to study medicine in the University. In these it is stated that certain professors of the Faculty of Medicine have declined to give separate courses of instruction to women: and

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the Court are asked either (1) to extend, in the case of female students, the privilege granted by ordinance of the Universities Commissioners to lecturers, not being professors in a university, of qualifying for graduation by their lectures, which privilege is now restricted to four of the prescribed subjects of study; or (2) to authorise the appointment of special lecturers to give, in the University, qualifying courses of instruction in place of those professors who decline to do so; or (3) to ordain that the professors referred to shall themselves give the necessary course of instruction to women. The second course suggested it is not in the power of the Court or other university authorities, singly or jointly, to adopt. The third course is equally beyond the power of the Court. The Act of 1858 vests in the Court plenary powers to deal with any professor who shall fail to discharge his duties. But no professor can be compelled to give courses of instruction other than those which by the use and wont of the University it has been the duty of the holders of his chair to deliver. The first of the proposed measures would imply an alteration in one of the ordinances for graduation in medicine Such alteration can be made by the University Court only with tire consent, expressed in writing, of the Chancellor, and with the approval of Her Majesty in Council. But to alter in favour of female students rules laid down for the regulation of graduation in medicine, would imply an assumption on the part of the Court that the University of Edinburgh has the power of granting degrees to women. It seems to the Court impossible for them to assume the existence of a power which is questioned in many quarters, and which is both affirmed and denied by eminent counsel. So long as these doubts remain, it would, in the opinion of the Court, be premature to consider the expediency of taking steps to obtain in favour of female students an alteration of an ordinance which may be held not to apply to women. Though the Court are unable to comply with any of the specific requests referred to, they are at the same time desirous to remove so far as possible any present obstacle in the way of a complete medical education being given to women, provided always that medical instruction to women be imparted in strictly separate classes. The Court are of opinion that the question under reference has been complicated by the introduction of the subject of graduation, which is not essential to the completion of a medical or other education. The University of London, which has a special charter for the examination of women, does not confer degrees upon women, but only grants them “certificates of proficiency.” If the applicants in the present case would be content to seek the examination of women by the University for certificates of proficiency in medicine, instead of for University degrees, the Court believe that arrangements for accomplishing this object would fall within the scope of the powers given to them by section 12 of the Universities (Scotland) Act. The Court would be willing to consider any such arrangements which might be submitted to them.”

In these circumstances the present summons was raised at the instance of Sophia Louisa Jex-Blake, Mary Edith Pechey, Emily Bovell, Anna Dahms, Elizabeth Ireland Walker, Annie Reay Barker, Sophy Jane Massingberd Mundy, Jane Russell Rorison, Bose Anna Shedlock, all residing in Edinburgh; and Mrs Isabel Jane Thorne, also residing in Edinburgh, wife of Joseph Thorne, merchant, Shanghai, with consent and concurrence of her husband, the said Joseph Thorne,—against the Senatus Academicus of the University of Edinburgh, and also against the Right Honourable John Inglis, Lord Justice-General of Scotland, and Lord President of the Court of Session, and residing in Edinburgh, the Chancellor of said University; and concluding that “It ought and should be declared, by decree of the Lords of our Council and Session, (1) that the pursuers are entitled to attend the classes of any of the Professors of the University of Edinburgh, and to receive instruction from the Professors in said University, upon making due payment of all fees exigible from students at the University for said instruction; (2) that the pursuers are entitled to receive such instruction in the University as is required to qualify for graduation in medicine; (3) that, on compliance with the regulations of the University as to attendance on classes and otherwise, preliminary to examination for degrees, the pursuers are entitled to proceed to the examination for degrees in manner prescribed by the regulations of the University; (4) that the defenders, the Senatus Academicus, are bound to provide such instruction as aforesaid to the pursuers, and thereafter to admit them to examination as candidates for medical degrees, and on their being found qualified, to recommend them to the Chancellor of the University for having such degrees conferred upon them; (5) that the defender, the said Right Honourable John Inglis, as Chancellor of the said University, is bound, upon such recommendation being made by the Senatus Academicus, to confer such a degree upon any of the pursuers found qualified and so recommended: and the defenders, constituting the said Senatus Academicus, ought and should be decerned and ordained to make regulations whereby the pursuers shall receive instruction in the University of Edinburgh as is required to qualify for graduation in medicine, and, in particular, that they should direct and appoint the various professors whose duty it is to give instruction in medicine to permit the attendance of the pursuers upon their classes along with male students; or otherways to direct and order the various professors whose duty it is to give instruction in medicine to teach the pursuers, and any other women who may constitute themselves into a class separate and apart from male students, the pursuers always making payment of the proper fees for matriculation, and to the professors for such instruction as aforesaid; and the defenders, constituting the said Senatus Academicus, ought to be decerned and ordained to admit the pursuers to examination as candidates for medical degrees, and on their being found qualified to recommend to the Chancellor of the University for having such degrees conferred upon them; and the defender, the said Right Honourable John Inglis, as Chancellor of the University, ought to be decerned and ordained, by decree foresaid, upon receiving such recommendation from the Senatus Academicus, to confer degrees upon the pursuers; and in the event of any of the defenders appearing to oppose the conclusions of this action, then the defenders so appearing ought and should be decerned and ordained to make payment to the pursuers of the sum of £500, more or less, as the expenses of the process to follow hereon, conform to the law and daily practice of Scotland used and observed in the like cases, as is alleged.”

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Defences were lodged by the Senatus Academicus and the Chancellor of the University. The main statements in the defences lodged by the Senatus were as follows:—

The University of Edinburgh acquired the status of a University for the first time in 1858. Prior to that time it was merely a college or teaching body. The original supplication to Queen Mary in 1562 was for the purpose of building “ane schule,” and Queen Mary's charter in 1566 merely authorised the application of the lands granted “in hospitalia aut alios similes usus legitimos.” If the Act of Council of 1579 contemplated the founding of a University, that purpose was never carried out. King James’ charter of 1582 makes no mention either of a College or University. In a subsequent charter of 4th April 1584, however, His Majesty refers to that of 1582 as one by which he had granted to the municipal authorities “libertatem collegium infra dictum burgum erigendi;”in another, of 7th August 1612, he speaks of the “collegium dicti burgi;” and in a letter from Paisley, of 25th July 1617, he requires the town “to order the said College to be called in all time hereafter by the name of King James’ College.” In the Golden Charter of 1603 it is spoken of as “collegium infra predictum nostrum burgum de Edinburgh, fundatum per prepositum ballivos et consilarios ejusdem.” In the Parliamentary Ratification of 4th August 1621 there is a narrative of a royal concession of licence and libertie to erect ane colledge, and in Charles’ Confirmation of 1636 there is a recital that James, in 1582, had granted “licentiam et libertatem erigendi collegium.” In no charter or public document is it ever spoken of as a University, or invested with University privileges. The distinction between a University and a College was then fully recognised, as is shown by a letter addressed by the municipal authorities to Rolloch, “maister of the townis college,” containing his appointment as principal, and in which they confer upon him all the powers “that to the said office is known to appertene, or that ony other principall or first maister of ony colledge within the Universities of this realm hes.” St Andrews, Glasgow, and Aberdeen had each their College or Colleges distinct from the University.

The conferring of degrees is a privilege, not of a College, but of a University alone. The conferring of degrees by the College of Edinburgh was a usurpation of a right to which it was not legally entitled. No such power was conferred on it by any of its charters, or by the Act of 1621. The practice became legalised in respect of use and wont only.

The uniform practice of the University of Edinburgh has been in accordance with that of the other Universities of Great Britain. At no time since the foundation of the institution have women been received as students or admitted to graduation.

In none of the charters or other documents connected with the University of Edinburgh is there any mention or recognition of women as students or graduates. In the earlier charters language is used which does not admit of the distinction of gender being marked; but in later documents, when language which does admit of this is employed—such as the Acts of the Commission of Parliament of visiting Colleges, of date 15th May 1695, and the various reports of the Royal Commissions, specified in section 23 of the Universities (Scotland) Act 1858—students of the male sex only are alluded to or recognised.

In the Universities (Scotland) Act 1858, and especially section 6 thereof, language is used which implies that men only are recognised as graduates or students in the Scottish Universities; and in the general regulations for degrees in arts, being contained in ordinances Nos. 14, 18, and 69, and more particularly in the regulations for degrees in medicine in the University of Edinburgh, being contained in ordinances Nos. 5 and 8, provision is made for conferring such degrees on students of the male sex only. The ordinances were issued under the authority of the said Act, and were approved of by Her Majesty in Council. They are all specially referred to.

The resolutions of the Medical Faculty of 1st May, and agreed to by the Senatus of 2d July 1869, were tentative only. They were not, at least so far as the defenders, the Senatus, are concerned, intended to bind, and did not in point of fact bind, the Senatus, or the other University authorities, to admit women as a matter of right to all classes, or to graduation. On the contrary, on the said 2d July 1869 the Senatus refused to consider the question of graduation of women, as not then before them, nor calling for determination. Until the summer of 1871, the Senatus was never given to understand, and had no reason to understand, that the pursuers considered themselves entitled, in respect of the said resolutions, and the regulations published in the Calendar, to demand as a matter of right a complete course of medical instruction, ending with graduation in the University. Neither the resolution of the Court, nor the Regulations following thereon, set forth in Condescendence 11, have ever been approved of by Her Majesty in Council.

The examination in arts, referred to in Condescendence 12, or an equivalent examination, must be passed before any one can be registered as medical student in the Register of the General Medical Council. The date of the beginning of medical study is fixed by this registration. The examination is an introduction to medical study generally, and has no necessary or exclusive reference to study in the University of Edinburgh, or in any other, with a view to graduation. Persons are admitted to it who have not matriculated, and who may have no intention to matriculate or to graduate.

From an early period in the history of the University it has been the custom to admit students to matriculation. This at first consisted in the student signing a declaration to the effect that he would be diligent in his studies, and loyal to the University. No fee was originally paid at matriculation; but about the end of the 18th century a fee of 2s. 6d. was required. The fee was originally devoted to the maintenance of the library, to the use of which the student, in respect of his matriculation, became entitled. In the certificate given to the student he was described as “academiae alumnus et bibliothecae civis.” The amount of the fee was raised, and the purposes to which it was devoted were extended, so as to include the payment of certain college officers, until the whole matter was the subject of consideration by the Town Council and Senatus in 1811, when the fee was fixed at 10s. In 1833, the sum was again raised by the Town Council to

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£1, and it was ordered that the payment should be for the use of the library, museum, and the services of certain college officers. At this time the phraseology of the ticket was altered from “civis bibliothecae” to “civis academiae,” but this alteration did not impart the acquisition by the students of any additional rights or privileges. At no time in the history of the University was the payment made in any sense for matriculation; but it was merely a sum paid by a student annually for the various special purposes to which it was from time to time directed to be applied. Down to a comparatively recent period, the theological students were not in use to matriculate, the reason being that they had a library of their own.

Students are matriculated each year of their attendance, and the payment of the above fee, together with the production of a class ticket, entitles them to the use of the library, &c., for one year only. For many years matriculation was not strictly enforced in Edinburgh, and a large proportion of the students, even of those who subsequently proceeded to graduation, never matriculated at all. The same was the case at other Scottish Universities, especially those of Glasgow and St Andrews. Matriculation, according to the usage of the University of Edinburgh, though recently it has been required as a condition precedent to admission to classes, confers no rights or privileges on the students other than those above mentioned. In particular, according to the above usage, it confers no rights upon students to demand instructions from any professor, nor to insist upon being admitted to graduation; nor does it entitle them to vote in the election of the rector, unless they are bona fide students in some class in the University.

The Senatus Academicus gave the pursuers no reason to believe that, because of their having passed the above preliminary examination, and been matriculated as aforesaid, they had acquired the same position and rights as other students. The resolution of the Senatus of 9th April 1870, with regard to the certificates of attendance to be granted to the pursuers, was arrived at for the reason urged by the pursuers, that certificates differing in any way might be refused by other examining and licensing bodies. A letter from Miss Jex Blake to the Senatus, of 8th April 1870, is referred to. At this same meeting the Senatus held that Miss Pechey was not legally entitled to obtain the Hope Prize, as not having been a member of “the general class of chemistry,” and she was refused the prize accordingly. The pursuers were taught in separate classes by all the Professors whose lectures they attended in the University. The attendance in the extra-mural school was in mixed classes, but this was in violation of the Regulations laid down by the University, contrary to the understanding under which they had been admitted to matriculation, as stated in a letter from Miss Jex Blake to the Senatus of 21st June 1869, and was never sanctioned by the Senatus. At no time did the Senatus give the pursuers reason to believe that they regarded them as entitled to the full privileges of students, including graduation.

The defenders, the Senatus Academicus, have no power to compel professors to admit the pursuers to their classes, or to teach them in separate classes. Neither before the Universities (Scotland) Act 1858, nor since the passing of that Act, has the Senatus Academicus of Edinburgh possessed, or even attempted to exercise, any power to compel the obedience of the professors on such points, or to lay down and enforce any such regulations as the pursuers seek to have enforced. Nor has the Senatus any power to alter the Regulations for graduation contained in the ordinances issued by the Commissioners, under the Universities (Scotland) Act 1858.

The changes which the pursuers seek to introduce, and which are embraced in the conclusions of this action, are of a fundamental nature, and would have the effect of altering altogether the constitution of the University. They would, if carried out, change the whole character of the corporation, and the rights of every member of the corporation would, or at least might be, affected by their operation. In particular, the rights and privileges of the individual professors could not fail to be seriously affected by the changes sought to be introduced by this action.

The various professors in the University of Edinburgh have their rights secured to them, and their duties defined by the terms of the commissions which they hold, whether from the Crown or from the other patrons of their respective chairs. In some cases those duties are expressly indicated, as for example, that of “giving a course of public lectures,” in others by reference to custom, and in all by reference to the place and office of the former professor, as being the measure of the duties which are to be required of the present holder of the chair. A decree in terms of the conclusions of the summons would impose on the Senatus Academicus an obligation to attempt to alter and extend the duties of the individual professors beyond the scope of their commissions. Their patrimonial interests are therefore involved to a serious extent in the results of this action.

The following statement was made on behalf of the Chancellor of the University:—“The defender has always been, and still is, willing and ready, as Chancellor of the University of Edinburgh, to confer degrees upon the pursuers, or any women duly recommended by the Senatus Academicus, upon its being ascertained by decree of a competent Court that they are entitled to demand admission as students, and to become graduates of the University.”

The pleas in law for the pursuers were as follows: —“ (1) According to the law and constitution of the University of Edinburgh, women are entitled, on payment of matriculation and professors’ fees, to attend the classes of any professor as students, and are entitled to demand instruction from such professor, which he is bound to give to them. (2) According to the law and constitution of the University of Edinburgh, women are entitled to obtain degrees in medicine on proving that they are qualified in point of attainments and knowledge for that distinction. And the Senatus Academicus, whose province it is to regulate the teaching and discipline of the University, are bound to provide instruction to them, to admit them to examination as candidates for medical degrees, and, on being found qualified, to recommend them to the Chancellor, in order that he may confer such degrees upon them. (3) The pursuers having paid their matriculation fees, some for one, some for two,

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some for three years, on the faith of being permitted to continue their course of study with a view to a profession, and having gone on with this course of study by attendance on the classes of professors, and this with the knowledge and consent of the Senatus Academicus, the latter are now barred from pleading that women are not entitled to receive instruction at the University, or to obtain medical degrees. (4) According to the laws by which Universities are governed, and apart from any special circumstances connected with the University of Edinburgh, women were entitled to demand and receive instruction from the professors in their ordinary classes, and also were entitled to graduate; and the University of Edinburgh being modelled on the constitution of such other Universities, and being subject to the same laws, women are entitled to all such privileges from the University of Edinburgh.”

The pleas in law for the Senatus were;—“(1) All parties not called. (2) The pursuers are not entitled to decree in terms of any of the conclusions of the summons directed against the defenders, the Senatus Academicus, in respect that the said defenders have no power, either by the use and wont of the University, or according to the provisions of the Universities (Scotland) Act 1858, to make the regulations specified in these conclusions, or to perform any other of the duties therein sought to be imposed upon them. (3) The pursuers are not entitled to decree in terms of the first three declaratory conclusions of their summons, in respect that there are no conclusions in the summons whereby the said declarator can be given effect to. (4) From the tenor of the statutes and ordinances which have been from time to time laid down with regard to the internal regulations of the University of Edinburgh, especially in the matter of graduation, and having regard to the use and wont of Edinburgh and other Universities, the University of Edinburgh must, in law, be held as devoted exclusively to the education of male students, and in which males only can claim, or can be invested with the full privileges of students. (5) The Senatus have no power to admit to the said privileges of students any persons who are disqualified according to the tenor of the said statutes and ordinances, and the said use and wont. (6) The resolutions of the Medical Faculty of 1st July 1869, and the Regulations published in the Calendar, and quoted in condescendence 11, were not intended to confer, and are not in law sufficient to confer, upon the pursuers the full privileges of students, to the effect of entitling them to insist as matter of legal right on being taught by the University professors, or on being admitted to graduation. (7) According to the use and wont of the University of Edinburgh, the fact of being matriculated as a student does not confer a title to demand as matter of legal right the privileges of studentship, or the right to be taught by any professor, or to be admitted to graduation. (8) Separatim, and on the assumption that according to their true construction the said resolutions and Regulations of the University Court, published in the University Calendar as aforesaid, must be held as conferring, inter alia, upon women a right to demand that they shall be taught in the University and a right to graduate, to that extent the said resolutions and Regulations were illegal and ultra vires, and the matriculation which took place in terms of, and in compliance with, the said Regulations, was illegal and void in law, and cannot be founded on as investing the pursuers with the privileges of students, to the effect of entitling them to insist upon instruction within the University, or upon being admitted to graduation.”

The pleas in law for the Chancellor were:—“(1) The conclusions of the action, in so far as directed against the defender, are unnecessary. (2) In any view, the action, as against the defender, ought to be sisted, in order to await the issue of the questions arising between the pursuers and the other defenders in the cause.”

On 16th May 1872 the Lord Ordinary, of consent, sisted process hoc statu as against the Chancellor of the University; and on 27th June 1872 he pronounced the following interlocutor and note:—

“ Edinburgh, 27 th July 1872.—The Lord Ordinary having heard parties’ procurators, and having considered the closed records, statutes, charters, and writs founded on, and whole process, recals the sist, repels the first plea in law stated for the defenders, the Senatus Academicus of the University of Edinburgh, that all parties are not called: Finds that the resolutions or regulations passed and enacted by the University Court of the University of Edinburgh, dated 10th November 1869, and approved of by the Chancellor of the said University, of date 12th November 1969, form part of the regulations now in force in the University of Edinburgh, and must receive effect as such: 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: Finds that the defenders, the Senatus Academicus of the said University, are bound, on the pursuers completing the prescribed studies, and complying with the said regulations, to admit the pursuers to examination as candidates for medical degrees; and on the pursuers being found qualified, to recommend them to the Chancellor of the University for having such degrees conferred upon them; and finds that the defender, the Right Honourable John Inglis, as Chancellor of the said University, is bound, upon such recommendation being made by the Senatus Academicus, to confer medical degrees upon any or upon all of the pursuers who are found qualified therefor, and recommended as aforesaid: And in terms of the above findings, and to the effect thereof, finds, decerns, and declares under the declaratory conclusions of the summons: Farther decerns and ordains the defenders, the Senatus Academicus, on the pursuers respectively completing the prescribed studies, and complying with the existing regulations of the University preliminary to degrees, to admit the pursuers to examination as candidates for medical degrees; and on the pursuers being found qualified, decerns and ordains the said Senatus Academicus to recommend the pursuers to

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the Chancellor of the said University for having such degrees conferred upon them, and decerns and ordains the defender, the said Right Honourable John Inglis, as Chancellor of the said University, on receiving the requisite recommendation from the Senatus Academicus, to confer upon the pursuers respectively the medical degrees for which they are recommended. Quoad ultra dismisses the remaining conclusions of the action, excepting the conclusion for expenses, and decerns: Finds the defenders, the said Senatus Academicus, liable to the pursuers in expenses, subject to modification, and, in the circumstances, modifies the same by deducting one-fourth from the taxed amount: Remits the account of said expenses, when lodged, to the Auditor of Court to tax the same, and to report, and reserves all questions of relief as between the minority and majority of the Senatus Academicus: Finds no other expenses due in the cause, and decerns.

Note.—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 wellbeing 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 object of the present action may be shortly stated to be— first, to declare the right of the ten ladies, who are the pursuers of the action, to prosecute their studies as students at the University of Edinburgh, with a view to the profession of medicine; second, to declare their right, on finishing their studies and being found duly qualified, to obtain from the University, through its Senatus and Chancellor, the usual and customary medical degrees; and, third, and with a view to enforce these rights, to compel the Senatus to make arrangements for the complete instruction of the pursuers, and to do what is necessary for the examination of the pursuers, and for their reception as medical graduates of the University.

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 along 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 medical degree to a lady. The medical register of Great Britain only contains the names 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 medicine in Great Britain?

The present action has, of course, only reference to the University of Edinburgh, and the pursuers have the advantage of certain peculiarities in the existing constitution and regulations of that University. At the same time, however, the form of the action is such that its scope is somewhat limited, and various large questions are excluded from the consideration of the Court.

For example—and this is a peculiarity in the action which must be carefully attended to—the only parties called as defenders are—(1) the Senatus Academicus of the University, and the professors as individual members of the said Senatus; and (2) the Right Honourable John Inglis, the Lord Justice-General of Scotland, as Chancellor of the University. The University of Edinburgh itself, as a corporate body, is not called as a defender, and is not a party to the present proceedings. Neither are any of the governing bodies of the University, excepting the Senatus. Neither the University Court nor the University Council are parties to the action.

This peculiarity in the action led to the first plea in law for the Senatus, that ’ all parties are not called;’ and this is the first question of which the Lord Ordinary must dispose.

The attention of the Lord Ordinary was not called to this plea before closing the record, and as a preliminary plea it ought to have been disposed of in limine. But perhaps this is of little consequence, as the Lord Ordinary is of opinion that the plea cannot be given effect to as a prejudicial plea stopping process; and he has accordingly repelled it.

The grounds upon which he has repelled this plea, however, are—that it is only sought in the present action to fix and define the duty of the Senatus and of the Chancellor under the constitution

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of the University as it at present stands, and to declare the rights of the pursuers in relation to the Senatus and to the Chancellor. The Senatus and the Chancellor are alone called, because they are the only parties complained of, or whose duties it is thought necessary to fix and define. The action assumes that the University itself, and all the other constituent members or parts thereof, are ready and willing to do their duty to the pursuers, and therefore none are called as defenders excepting the Senatus and the Chancellor. Indeed, it appears from the defence lodged for the Chancellor, that even he need not have been called as a party, for he states that he ‘has always been, and still is, willing and ready, as Chancellor of the University of Edinburgh, to confer degrees upon the pursuers, or any women duly recommended by the Senatus Academicus, upon its being ascertained by decree of a competent court that they are entitled to demand admission as students, and to become graduates of the University.’

The position thus taken by the Chancellor cannot fail to recommend itself to every one. He stands quite apart from the whole controversy, and is no way mixed up therein. He is ready as the representative and head of the University to confer its degrees upon all who may be found entitled thereto, and who are duly recommended for graduation by the Senatus.

As the only question, therefore, is a question between the pursuers and the Senatus, the Lord Ordinary has repelled the plea that other parties are not called. But then it follows from the principle upon which this preliminary plea has been repelled, that there is in the present action to be no attempt to impugn in the slightest degree the existing constitution of the University. None of its existing regulations or ordinances are to be challenged to be illegal or ultra vires—the pursuers are not to seek to extend or alter any of its laws, but are only to ask that these laws, exactly as they stand, shall be enforced and applied. In short, everything connected with the existing constitution of the University is to be taken as right, and the Senatus are simply called upon to carry out that constitution, and to give effect to laws and regulations already enacted.

It will be at once seen how much this view narrows the field of controversy. It is possible that in some respects this restricted view may operate to the disadvantage of the pursuers, but probably in other respects it will be for their benefit. The Lord Ordinary has no doubt that the point has been well and maturely considered by the pursuers and their advisers, and that they have adopted the course which, on the whole, seemed best suited to accomplish the object in view.

Before proceeding to consider the merits of the action, the Lord Ordinary deems it proper to make one or two preliminary observations of a general nature.

The Lord Ordinary is clearly of opinion that by the law of Scotland—indeed, he may say that by the law of every civilised country—there is no inherent illegality in women prosecuting the study of the science of medicine, using the word in its largest sense, or in their engaging in the practice of medicine as a profession.

It would really be a waste of time to argue in support of this proposition, and it was not impugned by the counsel for the defenders.

There is no natural impropriety in a woman becoming an educated and accomplished physician or surgeon, and no unsuitableness or impropriety in her practising the profession. Indeed, some branches of the profession are peculiarly appropriate to women, and peculiarly inappropriate and unsuitable to men. For example, in obstetric practice, and in numerous diseases of women, a male practitioner is 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.’

The practice of all civilized nations, indeed of uncivilised nations also, testifies most loudly at once to the fitness and to the suitableness of many if not most of the branches of the medical profession being undertaken by women. From the earliest times in Italy medical degrees were conferred upon and medical honours held by women, and at the present date women are allowed fully and freely to graduate in Italy, France, Spain, Switzerland, Russia, and America, as well as in several other countries. Indeed, Britain is almost the only country in which the right of women to graduate in and practice medicine has not been fully recognised. One object of the present action is to try whether the right accorded in other countries does not also exist in Scotland.

If, then, in Scotland there is no inherent illegality in women studying medicine and obtaining degrees therein, it is scarcely necessary to add that there can be no inherent illegality in women practising medicine as a profession. It would indeed be strange if women, merely on account of their sex, were by law excluded from a high and honourable calling, for most departments of which they are peculiarly fitted, and for some departments of which they seem to be by nature almost exclusively designated. The law of Scotland, like that of many other countries, has in many instances been unjust to women, but it has never gone as far as to exclude them from the legal practice of medicine as a profession.

Keeping these general observations in view, the Lord Ordinary will now proceed to consider very shortly the constitution and existing regulations now in force in the University of Edinburgh, so far as they relate to women.

I. It was broadly maintained by the counsel for the Senatus, in a very powerful and able speech, that the University of Edinburgh was founded, and existed, as an educational institute for male students exclusively—that none but males were entitled to be admitted or to matriculate as students; that males alone were entitled to become members of the University, or to receive instruction therein; and that the privileges and rights of graduation were reserved for males alone.

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

(1) The charters of the University give no countenance to the supposition that women were in all circumstances to be excluded from its benefits. The rights, liberties, and privileges conferred upon the University are all expressed in the most general terms, and are all quite consistent with

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provision being made for the instruction of females as well as of males within the walls of the University, and by its professors duly appointed. Even where the masculine form of noun or pronoun is made use of in speaking of the students, the Lord Ordinary cannot doubt that this is done, not to exclude females, but merely in conformity with ordinary brevity of expression, detailed enumeration of sexes or of classes being avoided, and the masculine or first sex being used to include everybody. In truth, it is notorious that in common language, and long before Lord BroughaM's Interpretation Act was passed, nouns and names of the masculine gender were often used as including females also.

(2) The reference in the charters to other Universities, and the conferring upon the University of Edinburgh the whole ‘liberties, privileges, and immunities quhilk any colledge within this realm bruikes,’ though perhaps not very important, certainly favours the view that women were not excluded.

There was much controversy on this point whether by reference the whole privileges which belonged to the University of Bologna were not confered, so far as the Crown had power to do so, upon the University of Edinburgh. The argument was, that as Edinburgh had all the privileges belonging to the older University of Glasgow, and as Glasgow, by the Papal Bull of Pope Nicholas V., had all the rights and privileges which belonged to the Pope's University of Bologna, and as in the University of Bologna women were instructed and women received degrees, so women must have the same right in the University of Edinburgh which they had in the fifteenth century in the University of Bologna.

The Lord Ordinary does not attach much weight to this argument. He rather thinks that the privileges referred to in the Pope's Bull were chiefly immunities from local and other taxes, and exemption from the jurisdiction of the ordinary tribunals, and as it is certain that none of these privileges now belong to any Scotch University, not much assistance can be got by any party from the terms of the Papal Bull.

At the same time, however, it seems sufficiently shown that the Universities of Scotland were to a great extent constituted upon the model of Bologna and similar institutions in Italy; and it seems a quite fair observation, and one entitled to considerable weight, that as women were never excluded from the Italian Universities, it cannot have been intended originally to exclude them from those founded in Scotland.

(3) Much stress was laid by the counsel for the Senatus upon the past history and practice of the University of Edinburgh, and upon the fact that there is no recorded instance of a woman having ever taken a degree therein.

It is impossible to deny that this argument has some weight—perhaps considerable weight—but the Lord Ordinary thinks it will not bear the stress which the defenders lay upon it. At best the practice is merely negative. There is no instance of a woman ever having been excluded or refused admission or instruction. If women had originally right to become students or graduates, their right will not be lost by mere non-usage—that is, by their merely neglecting to use their right. The right in them was one mere facultatis, like a man's right to build upon his own ground—a right which will not be loss though no building should 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 this does not exist in the present case.

(4) If, then, there is no express exclusion of women, and nothing necessarily leading to their exclusion, it seems fair to fall back upon the inherent legality and appropriateness of the study and practice of medicine for women, and to infer that a medical school founded in the University cannot have as one of its conditions the exclusion of the female sex.

(5) But passing from such general considerations, the Lord Ordinary thinks it quite conclusive of the whole question that, by regulations lawfully enacted by competent and sufficient authority, provision is actually and expressly made for the admission of women to the study of medicine in the University of Edinburgh, and actually detailed regulations have been enacted regulating their studies and examinations. These Regulations will be immediately adverted to, as they form a leading and, in the Lord Ordinary's view, a conclusive feature in the pursuers’ case, and they are only noticed here as absolutely and utterly putting an end to the defenders’ contention that the University of Edinburgh is a University for males only. The first words of the Regulations are—‘Women shall be admitted to the study of medicine in the University.’

The Lord Ordinary holds, therefore, that the defenders have entirely failed in their attempt to show that the University of Edinburgh is restricted to males exclusively.

II. The Lord Ordinary is of opinion that the ‘Regulations for the education of women in medicine in the University of Edinburgh,’ enacted by the University Court on 10th November 1869, and approved of by the Chancellor on 12th November 1869, are valid and binding in every respect, and form an integral part of the constitution and regulations of the University as it at present exists.

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, boldly challenged their legality, maintained that they were ultra vires of the University Court to enact, and he asked the Lord Ordinary to treat them as a nullity. Here, again, the Lord Ordinary thinks that the position taken by the Senatus is absolutely untenable.

(1) 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.

Under the Universities (Scotland) Act of 1858, the University Court has, under certain safeguards, very large and almost legislative powers. It reviews and can alter or reverse the whole decisions of the Senatus. It can (subject to approval of Her Majesty in Council) censure, suspend, or deprive any professor, or even the Principal. It can check and control the whole administration of the revenues, and—what is specially important in reference to the present question—it has full power (section 12, sub-section 2)—‘To effect improvements in the internal arrangements of the University, after due communication with the Senatus Academicus, and with the sanction of the Chancellor, provided that all such proposed improvements shall be submitted to the University Council for their consideration.

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Nothing can well be broader than the power so conferred. The very care with which safe-guards are provided shows the extent of the authority. The admission of women and the regulation of their teaching is so plainly a part of the ‘internal arrangements’ of the University, that in support of the argument that the Regulations were ultra vires, the defenders had almost nothing to rely upon but the witty fallacy, that although the Regulations were ‘alterations,’ they were not in the sense of the Statute ‘improvements.’

(2) These Regulations were enacted with all the required statutory requisites—‘Due communication’ was had with the Senatus. The matter was submitted to and deliberately considered by the University Council, and the Regulations received the final sanction and approval of the Chancellor.

The Senatus, the University Council, and the University Court, 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, holds with universal acceptance the very highest judicial office in Scotland. It was very startling to hear the majority of the Senatus maintain, through their counsel, deliberately and strongly, that regulations to which they themselves had been a party—regulations enacted in such circumstances, and holding such high sanction—were absolutely null and illegal; and when it was seen how essential this contention was to a great part of the defenders’ case, the weakness of that part of the case became very apparent.

(3) Still farther, the Lord Ordinary is of opinion that the validity and binding character of these Regulations cannot be impugned or challenged in the present action. No reduction of the Regulations has been instituted. They have never been said to be illegal or invalid till this was maintained for the first time in the present argument, and the Senatus itself, as well as everybody else, has hitherto admitted their validity, and acted upon them. So satisfied have the Senatus been of the validity of the Regulations, that they have actually applied to the enacting power—that is, to the University Court—to rescind them; but saving the rights of those who have acted upon them. The attempt failed. The University Court refused to rescind the Regulations, and they still stand part of the law of the University.

As has been already pointed out, neither the University itself, nor the University Court, nor the University Council, are parties to the present action; and it is quite clear that the Lord Ordinary cannot, without calling and hearing all these parties, even entertain a motion virtually to reduce and set aside part of their laws. A declarator of nullity of part of the University regulations will require to be brought in a very different way, and with very different parties from the present action.

In short, the Lord Ordinary thinks that, looking to the form of the present action, and the parties thereto, he must hold that the ratified and confirmed Regulations of 10th November 1869 are in all respects valid and integral parts of the University constitution, and all that he has to do is to apply and carry them out according to their true meaning and import.

It is almost superfluous to add that these Regulations have been in full force since their enactment. They have been regularly published in the University Calendar, and it is upon the faith of them that the pursuers have commenced, and to a certain extent prosecuted, at great expense both of money and of time, the professional study of medicine in the University of Edinburgh. It would be indeed a serious matter to find that regulations on which so much has followed are absolutely void.

III. The Lord Ordinary is of opinion that, under the constitution and Regulations of the University, including therein the Regulations of 10th November 1869, the pursuers are entitled in substance to the declaratory decree which they demand in the present action. The Lord Ordinary, however, has found it necessary somewhat to alter the phraseology, and in one or two particulars to restrict the breadth of the decree of declarator sought.

(1) The Lord Ordinary thinks that the pursuers are entitled to be admitted as students of the University for the study of medicine therein: that they are entitled to be matriculated as students, with all the privileges of students, subject only to the special condition that they shall be taught in separate classes, confined entirely to women.

The first article of the Regulations is in these words—‘Women shall be admitted to the study of medicine in the University.’ The Lord Ordinary cannot read this otherwise than as entitling the pursuers to be admitted as students—members of the University, with the full privileges of students, subject only to the conditions specified in the Regulations.

It was strongly contended for the Senatus that women were not entitled to matriculation, and that there was a distinction between admission to study and matriculation as a student. The Lord Ordinary has failed to see any substance in the distinction, and indeed he regards this dispute as little more than a difference about words. The origin of matriculation, or of the formal issue of matriculation tickets, seems to have been in the enaction of certain fees for the library and for janitors: but it has come to be regarded as the form in which a student is admitted. It rather appears that certain classes of theological students are or were exempt from matriculation; but surely that did not deprive them of the status of students of the University.

The reality of the thing—and this is far more important than the name—undoubtedly is that women are to be admitted as students in the University, whatever be the form in which this is done. In point of fact, all the pursuers have matriculated repeatedly, and they all hold tickets as ‘ Cives Academiae Edinensis.’

(2) Now, if students of the University, the Lord Ordinary thinks that the pursuers must have all the privileges of students, subject only to the special conditions under which they were admitted relative to ‘separate classes.’ The Lord Ordinary cannot assent to the doctrine maintained by the Senatus, that the pursuers were only students by permission, and not students as matter of right. It is impossible to hold that ladies are students with no rights whatever, whereas males are students with legal and enforceable rights. The University has no power to make such a distinction, and, what is of equal importance, it has never attempted to do so.

(3) It follows that the pursuers are entitled to attend all necessary classes, provided only they can be taught separately. To admit them as students,

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and yet deny their right to be taught, would be absurd. The provision about separate teaching may create a difficulty; but this is a mere difficulty in detail, which, in the Lord Ordinary's view, ought to be easily and at once surmounted. But this point will be more fully adverted to immediately.

(4) And lastly, it follows that the pursuers, on completing their studies, and complying with all existing regulations, are entitled, as a matter of right, to demand examination, and if found qualified, are entitled, equally as a matter of right, to demand full and complete medical degrees.

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

But the right to demand graduation is a necessary consequence of the right to study at the University: ordinary medical degrees are not matters of mere favour or of arbitrary discretion. They are the indefeasible right of the successful student—the fitting termination and ‘crown’ of his completed study. The idea that there may be some students who may study, and study successfully, but who may not graduate, was never heard of before the present controversy arose, and yet in high quarters a doubt upon this point seems to have arisen.

The majority of the Senatus, both in their minutes and proceedings, and by their counsel at the bar, have distinctly taken the position that women may be allowed to study, but they must not be allowed to graduate; and the University Court have actually passed, on 8th January 1872, in reference to the present pursuers, the following minute:—‘If the applicants in the present case would be content to seek the examination of women by the University for certificates of proficiency in medicine instead of for University degrees, the Court believe that arrangements for accomplishing this object would fall within the scope of the powers given to them by second 12 of the “Universities (Scotland) Act.’”

The Lord Ordinary is of opinion, without any doubt at all, that the proposal to withhold from successful and fully accomplished female students the regular degrees, and to give them instead mere certificates of proficiency, is incompetent, as well as unjust. The proposal is not unnaturally stigmatised by the present pursuers as a ‘mere mockery,’ and the Lord Ordinary thinks it can only have arisen from an entire misconception of the legal rights of an admitted student of the University. The right to demand a regular degree is, and always must be, an integral part of the right of every lawful student who is found duly qualified, and who complies with all prescribed conditions. The regulations expressly provide that women shall be instructed not merely in medicine, but (section 2) ‘for the profession of medicine.’ Now, this implies degrees, for without a degree they cannot be registered, and without registration they cannot practise ‘the profession.’ Section 4, again, makes the matter quite clear, for it provides for the admission to certain classes of women who are ‘not intended’ to study medicine professionally, and the examinations to which women are to be subjected are plainly the examinations preliminary to degrees. The contention that examination means only class or private examinations might almost be characterised as a quibble.

To the present Lord Ordinary, therefore, the right to demand degrees on all requisites being fulfilled seems indisputable.

If the present judgment be affirmed, and the right of the pursuers to obtain degrees under the existing regulations be established, the Lord Ordinary feels confident that the Senatus, as well as all other members of the University, will gladly and at once do whatever is necessary to confer upon such of the pursuers as earn it, the well-merited ‘crown.’

IV. But while the Lord Ordinary has in substance affirmed the declaratory conclusions of the summons, he has found himself obliged to negative the leading petitory conclusions.

The first petitory conclusion is to ordain the defenders, the Senatus, to make regulations whereby the pursuers shall receive such instruction in the University as is required for graduation in medicine, ‘and, in particular, that they should direct and appoint the various professors whose duty it is to give instruction in medicine to permit the attendance of the pursuers upon their classes along with male students.’

The Lord Ordinary can find no sufficient grounds for pronouncing any such decree, and there are conclusive reasons why no such decree should be pronounced:—

(1) The defenders, the Senatus, have no power to make such regulations. The University Court, and not the Senatus—at least the University Court ultimately—is the body by whom such regulations fall to be made; and neither the University itself nor the University Court are parties to the present action. Before the pursuers can obtain an order upon the Senatus, they must show that the Senatus have power to do the thing to which they are to be compelled. This has not been shown, and, the Lord Ordinary thinks, cannot be shown.

(2) The pursuers seek to have the Senatus compelled to make a regulation directly contrary to an existing regulation solemnly enacted by the University Court. But the University Court is the supreme, and the Senatus is merely the inferior tribunal in this matter. The University Court, under the statute (section 12), has power to review all decisions of the Senatus, and to be a Court of Appeal from the Senatus in all cases, but no power is given to the Senatus in any case to rescind or alter a regulation of the University Court. The University Court, as has already been so often stated, is no party to the present action, and its rules cannot be touched. When the University Court has prescribed that women shall be taught in separate classes, it is perfectly vain to attempt to compel the Senatus to make a regulation that women shall be taught in mixed classes, and ‘along with male students.’

(3) This last difficulty was so strongly felt by the counsel for the pursuers that he virtually abandoned the first petitory conclusion, and relied upon the alternative, viz., that the Senatus should be compelled to order the professors to teach the pursuers in separate classes. But here the same difficulty arises. The Senatus have no power to make such an order—at least their power to do so

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has not been shown, and the University Court, which probably has the power, is not here. The Lord Ordinary would require to be perfectly convinced of the power of the Senatus to compel the professors to deliver double courses of lectures, before he could make an order such as is now asked.

In short, the difficulty of getting professors to lecture separately to women is just one of the difficulties which arose upon the very face of the Regulations of 10th November 1869, and which the pursuers must be held to have had in view when they accepted the condition that they should only be taught in separate classes.

The other petitory conclusions seem to follow from the declaratory ones, and the Lord Ordinary has given decree in terms thereof. They only come into play when the pursuers have completed the full requisite course of study, and have complied with all the regulations and conditions necessary for obtaining degrees.

The Lord Ordinary has only to express, in concludings these observations, his earnest hope and belief that the judgment in the present action, whether affirmed or reversed, will terminate the unfortunate controversy which has raged so long. On the one hand, if the judgment is affirmed, and the right of the pursuers to study, and on being found qualified, to obtain degrees, is finally fixed, it surely cannot be doubted that the Senatus, the University Court, and the University Council will do whatever is necessary to enable the ladies to complete their course of study. At present there seems too much ground for the remark that by the regulations these ladies have been induced to enter upon their studies, and have been most unfairly stopped in mid-career. It seems to the Lord Ordinary that this has arisen from a misconception—a quite honest misconception—as to the pursuers’ right to abtain degrees. If this misconception is removed, the Senatus and all the officials of the University will undoubtedly gladly combine to fulfil the honourable understanding on which the pursuers were induced to commence their studies.

There is really no practical difficulty in doing so. If not the Senatus, at least the University Court, has undoubted power to recognise extra-academical teachers, whose courses will be reckoned sufficient for the purposes of graduation. Teachers of unquestionable standing and ability are ready to give the pursuers the instruction in separate classes, which state of health or want of time prevents the professors in the University from imparting. Let such Teachers be authorised to give part of the curriculum qualifying the pursuers for degrees. It is apparent from the correspondence referred to on record that this would have been done had not the doubt arisen whether the ladies were entitled to demand degrees, and whether medical degrees could be lawfully conferred upon them. That doubt the Lord Ordinary by the present judgment has endeavoured to dispel.

On the other hand, if the present judgment is reversed, and if it be finally fixed that by the law of Scotland a woman cannot be a legal student at the University of Edinburgh, and cannot legally obtain a degree, then, though on the other side, the whole controversy will equally be settled. The ladies will only have to deplore that they have been misled by those most authoritative-looking Regulations of 10th November 1869, and to seek their remedy against the existing law from some new legislative enactment.

As the pursuers have been practically successful, the Lord Ordinary has awarded them expenses, but only against the Senatus, not against the Chancellor. These expenses, however, are subject to modification, because the pursuers have failed in making good very important petitory conclusions. To avoid possible misconception, the Lord Ordinary has thought it right to reserve questions of relief between the majority and the minority of the Senatus who disclaim the present defence.”

The defenders reclaimed to the Second Division of the Court.

Authorities cited—Digest, i, 3, 32; Ersk., iii, 7, 8; iv, 2, 22, Austin, i, 107, 110; M. 10,732, 10,737, 10,738, 10,777; Senatus of University of Edinburgh v. Magistrates, 7 S. 255, 14 D. 74, 1 M.Q., 485, 7 Macph. 281; Chorlton v. Lings, 4 L. R. C. P., 374; Charter by James VI. 1583; Parliamentary Ratification, 1621; Acts of Parliament, 1587, 1621; University Scotland Act, 1858, sec. 5–12; Report of Universities’ Commissioners, 1826, and Appendices.

On 13th November the Lords appointed the parties to prepare Cases, which were boxed to all the Judges. The following Opinions were returned by the consulted Judges:—

The Lord President declined to give an opinion, being one of the defenders to the action.

Opinion of Lord Deas.

In the way this case has been pleaded by the parties, the first important question arising for consideration is, whether females are entitled, as matter of legal right, without the necessity of any express sanction from the authorities of the University, to become students at the University, and to obtain, on the same conditions with male students, such honours and degrees as the University can confer?

If the fact that, in the order of nature, no superiority, moral or intellectual, can be attributed to the one sex over the other, were pertinent to the present question, I should at once answer that question in the affimative. The development of the moral and intellectual faculties is no doubt moulded and varied by sex; and this variation contributes largely to the happiness of the human race. But, balancing what is most to be esteemed in the one sex against what is most to be esteemed in the other, the scales cannot well be said to preponderate on either side, or, at least, not on the side of the male sex. Nor can I doubt that there are at all times such a number of females who would profit by such studies as are pursued at universities as to make it desirable that means of prosecuting these studies should, as far as practicable, be available to them.

But the present question is altogether different. It is true that, in the Charters and Acts of Parliament which form the written constitution of the University of Edinburgh, there is no express exclusion of females from the privileges of the University. But, at the same time, it is clear enough that, down to the date of the recent Regulations quoted in the record, all the arrangements as to eaching and graduation in the University proceeded on the footing that the students were all male students, and, until one or more of the present

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pursuers came forward, no female seems ever to have proposed to become a student in that University. That, I think, is of itself conclusive against now giving effect to the pursuers’ claim as matter of pure legal right, because, without some regulations specially made for the purpose, the pursuers could not practically have been accommodated in the class-rooms and taught by the professors. And if, by the lapse of some centuries, regulations have become essential as a condition precedent to the admission and graduation of females, it seems to me to follow that the authorities of the University must have a discretion as to whether any or what regulations, with a view to such admission and graduation, are practical and expedient, consistently with the interests and discipline of the University. My opinion therefore is, that except in so far as this action seeks to vindicate the rights of the pursuers as recognised in the Regulations of 1869, no effect can be given to the conclusions of the action, either declaratory or petitory.

But this leads to the second, and not less important question, Whether the enactment of the Regulations of 1869 was within the power or competency of the authorities of the University?

I am not disposed to hold an action of reduction to be necessary to raise that question. The regulations were no doubt duly and formally enacted by the authorities of the University, in so far as they had power under the constitution to enact them; and I think it was the duty of the defenders, the Senatus Academicus, to act upon and carry out these Regulations according to their true spirit and intent, so long as they were not rescinded. Still, if it could be shown that these Regulations were ultra vires of the authorities of the University, I think there would be no incompetency in recognising that view in this declaratory action.

My opinion, however, is, that the Regulations were not ultra vires. There was nothing in the terms of the written constitution of the University to exclude females. If females had applied at the outset, they might or might not have been admitted, according to the views taken of the expediency and propriety of admitting them. But I fail to see that there would have been any illegality or incompetency in admitting them. The purpose of the institution was the education of the human mind,—a purpose applicable equally to males and females. The females of these days were apparently not desirous to relieve men of the heavy labour and responsibility they undertake in following the learned professions for the support of their wives, families, and dependents; and they refrained, perhaps wisely, from seeking that kind of education which, by fitting them for such labours, might have deprived them of the exemption which they happily enjoyed. There is no record of any resolution to exclude females. So long as none presented themselves, they could, of course, neither be refused nor admitted. But, on the very first occasion when they did present themselves, the Regulations now in question were issued to aid them in their object. It was the absence of any such Regulations, and not the absence of power to make Regulations, which stood in the way. So long as no females came forward as students, it was inevitable that the discipline, rules, and usages of the University should adapt themselves to the only body of students who then existed in the University, namely, male students. But the same power which enabled the authorities of the University to make Regulations suitable for the one set of circumstances, enabled, and still enables them, I think, to make Regulations suitable for the other.

The decisions finding women not entitled to the parliamentary franchise can, I think, have little weight here. Women must either have had the right to the franchise absolutely or not at all. There neither is nor ever was any regulating body in a position, with reference to the franchise, analogous to the position of the authorities of the University with reference to the matriculation and accommodation of students in the University. Does, then, the fact that the authorities of the University never had occasion till now to regulate the admission and accommodation of female students in the University, prove either that they never had any power in that matter, or that they have lost that power? The decisions as to the franchise do not seem to me to afford any solution of that question

A practical difficulty has been urged, with some force—that the authorities of the University not having authorised mixed classes, and having no power to compel the Professors to form separate classes for females, the Regulations are substantially useless and inept. This does not, however, appear to me necessarily to follow. The Professors may be willing. Many of them have been so; and to have all obstacles in the way removed except one, which is merely contingent, is a boon to females which cannot be treated as of no value. The tickets and certificates of extra-mural Lecturers, as well as of Professors in other colleges, have been, and I understand still are, accepted as sufficient with reference to certain branches of study, and it does not prevent this from being a substantial advantage to students that the authorities of the University have no compulsory powers over the teachers or Professors from whom these tickets and certificates are to be obtained.

The references made to Bologna, and certain other foreign Universities, although they do not appear to me to establish the plea of abstract legal right, have unquestionably a bearing upon the question of discretionary power. The defenders say, in their case that the statutes of the University of Bologna “do not in any way recognise or contemplate the existence of women in any capacity in the University, or the colleges which composed it. On the contrary, their whole scope and bearing, fairly considered, excludes any such idea.” If that be so, the instances in which University honours and privileges have been conferred upon and exercised by women in that University, and in other Universities similarly constituted, become all the more palpably examples of the exercise of a discretionary power, under a constitution analgous to what the defenders allege to be the written constitution of the University of Edinburgh.

The existing Regulations bear that women shall be admitted to the study of medicine in the University. The pursuers, under the first conclusion of their summons ask to be found “entitled to attend the classes of any of the Professors of the University;” and although they specially claim to be found entitled to medical instruction, and to obtain medical degrees, the third conclusion of their summons seems broad enough to comprehend all kinds of degrees which the University can confer,

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If they were to be held entitled, as matter of abstract legal right, to become students at the University with a view to the medical profession, without obtaining the sanction of the University authorities, it would seem logically to follow that they are entitled to claim instruction in all the classes, and to obtain all the honours or degrees which male students can obtain. The anomaly of being dubbed, in the masculine gender, doctors of laws, batchelors or masters of arts, or doctors of divinity, would, of course, be no greater than that of being dubbed doctors of medicine. The masculine gander must in either view continue to be used. Admittedly a lady cannot be a mistress of arts in the University, whatever she may be in the drawing-room. But if, as matter of legal right, she could claim to become a doctor of medicine, she would necessarily, I think, have the same right to claim all other University degrees, and consequently to become, in the language of Aikenside, “by commutation strange a reverend divine.” My opinion, however, is that no such right can be claimed independently of recognition and regulation by the authorities of the University.

It is true that, in the view I take, it must be within the competency of the University authorities to extend still farther than they have yet done the privileges of females in connection with the University, and to afford additional facilities for the exercise of these privileges. I am not, however, startled by that being a legitimate consequence of the argument. The authorities of the University have, hitherto at least, done nothing so extravagant either in the way of admitting or restricting the admission of females as to justify the interposition of this Court, and it is not to be presumed that they are likely to do so. Their refusal in the mean time to sanction mixed classes is an instance of the caution and discrimination to be expected from them. I do not mean to suggest that the law could have pronounced such classes illegal if the University authorities had sanctioned them. But the small proportion of female students as compared with male students, of itself afforded a reasonable objection to such an arrangement. Somehow either sex feels uneasy when shut up with an overwhelming majority of the other, and if the regulation had sanctioned mixed classes only, the grievance might have been regarded by many females as greater than it is now. A central division of a class room, such as there is, or once was, in the chapel of Pentonville prison, whereby both sexes could see and be seen by the speaker, and neither sex could see or communicate with the other, or some analogous contrivance, might possibly have suggested itself to meet the difficulty, had there been funds at command, and a large enough number of female students to justify the necessary expenditure. But in the actual circumstances, the restriction to separate classes was not only within the competency of the University authorities, but was a fair and reasonable exercise of the discretionary powers with which I think the aw has invested them.

As to the expediency of ladies becoming medical practitioners, it is enough to say that it is a fair subject for difference of opinion. To suggest jealousy of the rivalry of women as entering into the objection would be altogether absurd. Those who entertain the objection, no doubt conscientiously believe that the result would be to diminish the delicacy and respect by which the female character in well-bred society is so advantageously surrounded. On the other hand, it must be admitted to be remarkable how, in trying circumstances connected with severe suffering, or with danger to life or health, nature throws a vail over delicacy and preserves it uninjured. The fictitious character of Rebecca, the Jewess, commented on in the argument, is not an inappropriate illustration. With consumate knowledge of human nature, the author makes the urgency of circumstances supersede all delicacy, and yet tempts his reader to say in the classical words of an older writer, “the starry fable of the milky way hath not her story's purity.”

There still remains a third question: What are the rights of the individual pursuers under the existing Regulations?

To that question I answer, that the pursuers are entitled to receive instruction from those of the medical professors who may arrange to teach them in classes separate from male students; and that if they can thus obtain and produce evidence of having completed the prescribed course of study, and shall successfully undergo the examination prescribed for male students, they will be equally entitled with male students to medical degrees. The right to eventual graduation is, I think, fairly implied under the second head of the Regulations, which provides for “the instruction of women for the profession of medicine,” contrasted with the fourth head, which provides, conditionally, for the instruction of “women not intending to study medicine professionally. The pursuers have expended time and money on the faith of the Regulations, as set forth in their third plea in law, and a construction which would defeat the plain object of the Regulations is, I think, altogether inadmissible.

Upon the whole, I am for adhering to the specific findings in the Lord Ordinary's interlocutor, and to the intent and effect of these findings—but to no other or further effect—decerning and declaring in terms of the declaratory conclusions of the summons. Quoad ultra, I think the defenders should be assoilzied from the declaratory conclusions.

As regards the petitory conclusions with reference to examination and graduation, I think these should be dismissed as premature, in so far as directed against the Senatus Academicus, and as out of place in so far as directed against the Chancellor, who has all along been ready and willing to act upon such recommendations as may be duly made to him. From the remaining petitory conclusions I think there ought to be decree of absolvitor.

Opinion of Lord Ardmillan.

In this very interesting and important case we have had the benefit of ample and elaborate pleadings, prepared with great industry, learning, and ingenuity. If some of the questions which have been argued were necessary for decision of the case before us, the disposal of these questions would certainly be matter of great difficulty. I have felt much impressed by the literary and historical interest of these questions regarding the origin and early history of our own Universities, and of the seats of learning in other countries. But, in the view which 1 take of the cause immediately before us, the materials for decision are to be found within more narrow limits.

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This action has been raised by Miss Jex-Blake and the other ladies who are pursuers against the Senatus Academicus of the Edinburgh University. The Chancellor of the University is a nominal defender. But the position which, with his wonted impartial dignity, he has taken, is one of neutrality; and the Senatus Academicus is to all intents and purposes the only defender. The pursuers can get no decree in this action except against the Senatus; and although this may be considered as only matter of form, I agree with the Lord Ordinary in viewing it as practically of some importance. On the one hand, if the existing constitution of the University does not support the pursuers’ claim as against the Senatus, then the pursuers cannot succeed, whatever may be the grounds on which, if they had other parties in the field, they might challenge that constitution. On the other hand, if the existing constitution of the University does not afford grounds for resisting the pursuers’ claim, then the Senatus, bound to accept that constitution, and acting in the administration of that constitution, cannot have a good defence against the pursuers’ claim, even though a party in a different position might challenge some part of that constitution. In short, I am of opinion that the decision of this cause must turn, not so much on the more general questions which have been so ably argued in regard to the origin and history of the Scottish Universities, as on the more immediate and practical question—What is the meaning, the authority, and the effect, of the University Regulations of 1869?

The object of the action is to obtain declarator of the right of these ladies, the pursuers, 1st, to prosecute their studies as students at the University of Edinburgh with a view especially to the profession of medicine; and 2d, to obtain from the University, as the result and reward of successful study, the usual medical degrees on being examined and found duly qualified. To these effects and for these ends decree of declarator is craved. I do not at present advert to the further conclusion for enforcing the pursuers’ right to instruction and graduation if so declared. In regard to the mode of pursuing their studies, if entitled to do so, a different question is raised, which I shall afterwards notice.

Whatever may be said in the way of illustration or argument, no question is here involved as requiring present decision, except the right of the pursuers to medical instruction and medical graduation in the University of Edinburgh. The pursuers declare this to be a very important question for them; and of course I assume it to be so. It is certainly a novel question. The claim on the part of women to such instruction, and to graduation as the crown of it, is in Scotland an absolute novelty. Never once during the centuries which have elapsed since the institution of this University has a woman ever taken a degree. Nor does it appear that a woman ever claimed it. It is true that no woman has ever been refused a degree. But there is force, and great force, in the remark that the claim, which might have been made at any time during the last three hundred years, has now been made for the first time, and that, in the argument before us, the claim has been maintained as matter of right existing at common law, in which, as your Lordships are well aware, it has always been held that the consuetudinary element has great weight. Still this argument from custom is not conclusive. The absence of women from the classes of the University, which is a mere matter of fact, is according to long and uniform custom. The exclusion or rejection of women, which implies power to exclude—power in existence and in exercise—has no support or authority in custom. If the University had rejected the claim, it may be that the uniform custom would have been viewed as supporting the rejection. But we shall see that this was not the case; for in regard to these pursuers there has been no rejection.

I am not prepared to concur with the Lord Ordinary in holding that there is such an original inherent legality, fitness, appropriateness, and expediency in the study and practice of medicine by women, as to be of itself sufficient to overcome the presumption arising from the contrary custom of centuries, and even sufficient to sustain a right to enforce admission, and to render the exclusion of women from the medical school of the University unlawful.

On the other hand, I do not perceive any necessary or natural impropriety, or any inherent and essential illegality, in the study and practice of medicine by women, supposing them to be duly qualified. The question, whether the practice of medicine by women is appropriate and desirable, is one on which difference of opinion may well prevail; and we have had much able and interesting argument to illustrate, as matter of history, the views on the subject which have prevailed at different times, and in different countries. I do not feel it necessary to enter on that controversy. Though I have carefully, and with much pleasure, perused the pleadings, I do not think it necessary to express an opinion on that point; and it is sufficient for me to say that neither argument nor authority has been adduced to satisfy me that such medical study and practice by women is essentially and necessarily wrong, and consequently must be held illegal. I do not think it is so. The uniform and long-continued custom of the Scottish Universities has created some presumption against it, which the pursuers must meet. But it is not, in my view, necessarily wrong, nor inherently opposed to moral or legal principle. It is possible that the claim which these ladies now make for present medical study, and ultimate medical graduation, may be supported by the authority of University regulation, if such regulation be clearly expressed, competently enacted, and capable of legitimate practical application.

It is on the solution of this question, touching the nature, authority, and effect of University regulation in Edinburgh, that the case before us must, in my opinion, really turn. I am prepared to negative both of the extreme propositions which have been presented. I do not think that, in the absence of University regulation, and in opposition to long and uniform custom, women are entitled to demand and enforce admission as students into the medical classes of the University with a view to graduation, merely because of any essential suitableness in their practice of medicine, or any inherent lawfulness and propriety in their claim. On the other hand, I do not think that their claim for admission to such study and such graduation is essentially and necessarily so inappropriate, unreasonable, and illegal, as to be beyond the reach of University regulation. There is nothing to prevent the rejection of the claim, or to prevent

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the concession of the claim, by the University, I do not think that the University of Edinburgh is by law so exclusively devoted and restricted to the education of male students only, as to render incompetent and unlawful a resolution by the medical faculty, and a regulation by the University Court, sanctioning the admission of women as students of medicine, with a view to graduation under reasonable and legitimate conditions. I do not see that law has imposed on this Alma Mater the command, “Bring forth male children only.” I see no reason to doubt that the University Court, acting in accordance with, and after due communication with, the Senatus Academicus, and with the sanction of the Chancellor of the University, and approval of the University Council, had power to resolve and enact by regulation, either that women should be excluded from the study of medicine in the University of Edinburgh, with a view to graduation and practice of medicine, or that women should be admitted to such study, and with such view. The matter is, in my opinion, within the scope of legitimate University Regulation. There is no such weight and power of inherent right as to entitle women to force their way into the medical classes. There is no such taint or noxious quality of wrong in the demand of women for such admission as to forbidjadmission, and to require an inflexible and inexorable exclusion.

Several illustrations occur to one. Application for the first time, and therefore contrary to uniform custom, may be supposed to have been, at different periods of our history, made by a Roman Cotholic, or by a Jew, or by an Indian or a Negro. Can it be said that the University could not by vote and resolution have admitted these persons? But the argument for exclusion in respect of custom alone implies that all these persons must have been inexorably shut out, and that the University could not have admitted them. I am not able to arrive at that conclusion.

I therefore proceed to consider the import and effect of the Regulations by the University Court in 1869; and I do not pause to comment on any of the objections which have been taken in point of form to these Regulations. None of the technical objections which have been urged by the defenders are, in my opinion, well founded. The procedure in regard to the proposal, consideration, and adoption of these Regulations was correct enough, and in accordance with the statutory requirements.

The University Court has under the Act of 1858 very wide and varied powers and discretion. In particular, the University Court has power under section 12 of the statute “to effect improvements in the internal arrangements of the University.”

I do not say that every alteration in the arrangements of the University which the University authorities adopt is necessarily an improvement. It is possible to conceive a case, though scarcely possible to anticipate it from such a body, where an alteration might be proposed and adopted which is not an improvement. But certainly an alteration in the internal arrangements of the University in regard to the admission of students to the study of medicine—the alteration being embraced in a resolution of the Medical Faculty, agreed to by the Senatus Academicus, adopted and embodied in Regulations by the University Court, approved by the University Council, and sanctioned by the Chancellor of the University—cannot possibly be considered by us, sitting in the Court of Session, as otherwise than an improvement in the opinion of the University; and it is a matter of University administration on which the University Court was entitled under the statute to give an authoritative deliverance. By the approval and adoption of it, the University declared it an improvement. The Senatus are a Court of the University,—an official portion of the administrative power and authority of the University; and in my opinion they are bound by the existing constitution. They cannot repudiate and set at nought the resolutions which have been adopted by the legitimate University authorities.

“The claim of women for the Parliamentary franchise has in England and Scotland been rejected. The rejection has been founded on here.

I do not think that the decisions on the subject of the franchise are quite in point.

In the first place, the quality or character of the contrary usage was different. The franchise, sustained by whatever qualification the law required, is a public right; and for centuries that public right was exercised in accordance with universal national usages, and, both in England and in Scotland, was limited exclusively to men. That long and uninterrupted national usage, in such a matter as the elective franchise, assumed a constitutional character. The right to study medicine in a particular University is of a different character; and while contrary usage is an important consideration, it has not the same weight as in the case of the electoral franchise. Then, there are no direct institutional authorities adverse to the right to pursue medical studies, as claimed by these pursuers. But in England there were important authorities, such as that of Lord Coke and Mr Serjeant Heywood, adverse to the claim of women to the franchise. Therefore it appears that both usage and institutional authority were opposed to the claim for franchise.

In the second place, the right to sit in Parliament was recognised as a co-relative right to the right to vote for a representative. The case of a peeress in her own right, who cannot sit or vote in the House of Lords personally or by proxy, was considered as analogous and appropriate by Justice Willes, in whose very luminous and instructive opinion the question of the female claim to franchise is fully disposed of. The report of the decision of the franchise question in our own Court is very brief; Brown v. Ingram, 19th December 1868, 7 Macph. 281. But I was one of the three Judges who decided it; and I recollect, and have notes confirming my recollection, that I referred to the right to sit in the House of Commons, or the House of Lords, as not only cognate but relative to the right of franchise, and as substantially involved in the question raised. That also is an important distinction,—a peculiarity not here present.

In the third place, the meaning and result of the decision in the case of the franchise was—that it was a question for Parliament, and to be decided by Parliament. The view which I take of this claim for University study is, that it is a question for the University, which the appropriate University authority might dispose of by decision for or against the claim. In the meantime, and in so far as regards these pursuers, the University Court, having as I think sufficient power, has decided in favour of the claim. That decision may be reconsidered. But, in the meantime, it has been given;

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and the effect should be the same as it would be in the case of the franchise if Parliament had resolved to confer the elective franchise on women. On these grounds, I think that the decisions on the question of the franchise are by no means conclusive on the question now before us.

Let us next consider what is the true meaning of the resolution and regulation of the University Court. The words are before us. I need scarcely quote them again. I cannot doubt that, according to these Regulations, the pursuers are entitled to admission to the study of medicine,—certainly not in mixed classes along with men, but in such separate classes as can be arranged with the professors of medicine. I am further of opinion that, under these Regulations women are entitled to matriculation as students (as I understand they have in point of fact matriculated) and that they also are entitled to be admitted to examination with a view to the medical profession; for that end or object qualifies the whole claim made, and the whole arrangements sanctioned.

Lastly, I am of opinion that women, being entitled to enter on such study, and to be admitted to examination with the view to the medical profession, are, on the completion of their studies, on their complying with all the conditions imposed by law, and on passing their examination, and being found duly qualified, also entitled to demand and obtain the usual medical degrees. I think that the University gradus, to which their title is recognised and their admission sanctioned, is incomplete without graduation, assuming that, as the end of the study and the result of the examination, the women who seek graduation are found qualified. I agree with the Lord Ordinary in holding that graduation is “the indefeasible right of the successful student,—the fitting termination and crown of completed study.” To admit the pursuers to the study of medicine with a view to the profession of medicine, and to admit them to the testing of that study by examination, and then to refuse them graduation if duly qualified, would be to mock them after encouraging them to hope and stimulating them to effort. It would truly be to lead them into a delusion and a snare. There may be difficulty in taking the first step of admission. That difficulty—arising chiefly from the novelty of the claim and the prevalence of a long and uniform contrary custom—must be admitted. That difficulty I have felt, and fully appreciate. The import and authority of the University Regulations has from my mind ultimately removed that difficulty as regards this action and these pursuers. But if their admission has been sanctioned, and the first step taken, and their course of instruction regularly pursued, and their studies completed, and their qualification ascertained by due examination, I have little difficulty in arriving at the conclusion that the usual result must follow, and that graduation must crown the studies of those who have been thus admitted, and who have successfully laboured in University education with a view to the medical profession. If all are permitted to pursue medical studies, it cannot be that the University degree—the reward and token of success—is reserved for one sex only. I am therefore of opinion that the pursuers are, to this extent, entitled to succeed in the declaratory conclusions of this action.

Another question has however been raised, on which I must say a word before I conclude. I, mean, the manner in which (assuming the rights of the pursuers to be declared as I have above explained) they can obtain the end they aim at.

I think that the Lord Ordinary has judged rightly in confining his interlocutor to the declaratory conclusions. I confess I do not see my way at present to go further.

In the first petitory conclusion the pursuers crave a decree ordaining the Senatus Academicus to make regulations for the instruction of the pursuers, and for their ultimate graduation; and particularly the pursuers crave decree ordaining the Senatus to direct the various professors whose duty it is to give instruction in medicine, to permit the attendance of the pursuers in their classes “along with male students.” This proposed mode of prosecuting the study of medicine by women—this proposed attendance in classes along with male students—has been, I think, rightly negatived by the Lord Ordinary.

In the first place, I am of opinion that the Senatus (who are the defenders) have not the power to direct or effect an arrangement for the attendance of women in mixed medical classes, as here concluded for. It is not the part of the Senatus to direct a change of such importance; and it would be a change opposed to the express words of the regulation of the University Court—the very regulation on which the only case which the pursuers can present must stand. That regulation, which, as the pursuers must contend, and do contend, has the force of University law, declares in express terms that the medical instruction given shall be in separate classes; and I cannot discover any authority or any principle to support the conclusion against the Senatus for reversal of the regulation of the University Court.

But, even if the power of the Senatus to direct the arrangement for mixed classes, as desired by the pursuers, were conceded, I should still be of opinion that this Court ought not to ordain the Senatus-to direct such arrangement.

I fully and respectfully recognise the high qualities, capacities, and vocation of women. I recognise especially the fact that the elevation of women in domestic and social position is one of the blessed fruits of Christianity. There are few, indeed, who hold intelligent and virtuous women in higher estimation than I do. It is very much for their own sake, and on account of the respect which I entertain for them, that on this particular point I feel it my duty to state my decided opinion, that the promiscuous attendance of men and women in mixed classes of medical study, such as anatomy, surgery, and obstetric science, with concomitant participation in dissection, demonstration, and clinical exposition, is a thing so unbecoming and so shocking—so perilous to the delicacy and purity of the female sex—to the very crown and charm of womanhood—and so reacting on the spirit and sentiment which sustains the courtesy, reverence, and tenderness of manhood—that the law and constitution of the University, bound to promote, and seeking to promote, the advancement of morality as well as knowledge, cannot sanction or accept such attendance.

I suggest no doubt in regard to the motives which impel the pursuers to make their present demand for attendance on mixed classes, in order to attain the educational ends which they have in view. I give them credit for the best motives; but I entertain the strongest opinion, that the welfare of the University, the character of the

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medical school, and the best interests of the ladies themselves, would be put in peril by conceding to them the privilege—I would call it the fatal boon—of attendance in mixed classes in medical study.

The second or alternative petitory conclusion is for decree ordaining the professors whose duty it is to give instruction in medicine, to impart that instruction to the pursuers and other women in separate classes.

It is not quite so clear in this matter as in that of the mixed classes, that the Senatus has not the power to make an order on the professors to the effect craved in this alternative conclusion. But I am of opinion that they have not the power. I think that the University Court might probably have power to make such an order if it were right to do so. But the University is not a defender, and the University Court is not a defender, and, under these conclusions we can only pronounce a decree against the Senatus Academicus. Whether, having regard to the terms of the Regulations of 1869, in which a command or direction to the medical professors is scrupulously avoided, the Senatus can in this action be competently decerned to issue to the professors a command or order which the University Court refrained from issuing, seems to me extremely doubtful. But, even assuming the competency, I am, after some hesitation, now of opinion that, if there is no arrangement made, as “permitted” by the Regulations, between the pursuers and the medical professors, then the Senatus ought not, under this action, to be decerned and ordained by this Court to issue an order upon the subject. The Regulations have left it on a permission; and I think it was so left by the University Court advisedly, and in order to secure both to the medical professors and to the ladies the opportunity and the power of adjusting, by arrangement, the question of attendance in separate classes. It is an appropriate matter for arrangement; though it is certainly true that the inducements and facilities for arrangement may be diminished by the irritation of a lawsuit. Besides, there are obvious practical difficulties in the way of arrangement for securing medical instruction to a few ladies in separate professional classes, to be taught by eminent gentlemen, whose engagements within and without the University are numerous and important. Still, arrangements may not be hopeless. At all events, compulsion or authoritative direction was not contemplated in the resolutions.

Another suggestion for the prosecution of the medical studies of the ladies, and for their ultimate graduation, if their right shall be declared, has been adverted to in the pleadings, and is noticed by the Lord Ordinary. I mean the recognition by the University, and by the Medical Faculty, of extra-academical teachers, whose lectures and instructions might be reckoned sufficient for the purposes of female graduation, the ladies being ascertained by examination to be duly qualified. Such recognition, in the event of the failure of arrangement, and of declinature by a medical professor in the University to open a separate class for ladies, might perhaps meet some of the difficulties in the way of giving practical effect to a decree according to the declaratory conclusions of this action. But in regard to any such plan nothing can be done at present. It must be left as matter for arrangement.

I have only to add, that I think the leading questions presented to us so important to the administration, the good order, and the whole interests of the University, as to raise no doubt of the right of the defenders to insist for judicial determination of these questions; and I feel sure that, in the course which they have taken they have been actuated by no unworthy motive, and that if the law is declared against the pleas of the defenders, they will deal honourably and liberally with the pursuers.

Though not in all respects concurring in the views of the Lord Ordinary, I substantially concur in the result at which he has arrived; and I think we should adhere to his judgment, as limited to the declaratory conclusions of the action. Beyond these declaratory conclusions I cannot go; and in regard to the petitory conclusions, I think that the defenders are entitled to absolvitor.

Opinion of Lord Jerviswoode.

I had an opportunity of perusing a proof-sheet of the opinion of Lord Deas in this case, and I have carefully reconsidered that opinion since it has been circulated.

I concur, without reservation, in the general course of reasoning of that opinion, and in the conclusion at which Lord Deas has there arrived; and I therefore prefer to refer to it as the basis of the judgment which ought, in my view, to be pronounced, rather than to run the risk of error in the course of unnecessary repetition.

Opinion of Lord Ormidale.

It is not only unnecessary, but would be quite beside the legal question which the Court has now to determine, to consider whether it is, or is not, desirable that women should possess, equally with men, the rights and privileges claimed for them in the present action. The only question which the Court has to determine is, whether by law women do, or do not, possess these rights and privileges.

It is certainly a circumstance not a little remarkable that if women have always possessed the rights and privileges referred to, as maintained by the pursuers, no instance of their having been ever either claimed or exercised is alleged to have occurred before the present controversy arose, since the establishment of Universities in Scotland about four centuries ago. On the contrary, it is allowed by the pursuers to be taken as an acknowledged and indisputable fact that there has never been any such instance. Nor can the pursuers say that by Papal Bull, Royal Charter, or other instrument having reference to the foundation of the Scottish Universities, the admission of women as students at any of them is expressly recognised. The utmost the pursuers contend for is, that while by these instruments the right of women to be students is not expressly recognised, neither is there in any of them an express exclusion of women as students. But although this may be so, it is not unimportant to observe that the language, not only of the founding writs of the Scottish Universities, but also of some at least of their disciplinary regulations, are, according to their ordinary and natural sense, indicative rather than otherwise of an understanding, to Bay the least of

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it, that males alone were contemplated to be admissible as students, as in point of fact they have hitherto exclusively been. This is of itself sufficient to raise a very strong presumption that the rights and privileges now claimed by the pursuers were never intended to be, and in reality never were, conferred on women.

It will not do to argue, as the pursuers do, that the turbulent condition of the times and state of society in Scotland satisfactorily account for this. That these causes may have to some extent retarded the progress of education and learning in the Universities in Scotland is intelligible enough; but that they should have operated adversely to the female and not to the other sex, is scarcely intelligible at all, and has certainly not been shown to have been the case. The fact, indeed, of the warlike struggles which prevailed in Scotland during the period referred to—engaging as they must have done the young men of the. country—not having led to the education and training of the youth of the opposite sex to medical and other peaceful professions, might be founded on with more plausibility and effect by the defenders, in support of their view that females were not admissible as students at Universities.

Having regard, then, to what has been the long, uniform, and uninterrupted usage, not only of the Edinburgh but all the other Scottish Universities since their establishment centuries ago, it cannot well be questioned, I think, that it must hitherto also have been the general understanding of the country that women had not the right of admission as students at any of them. And if so, the presumption against the existence of any such right, or that it ever was intended to be, or was ever in point of fact conferred on women, seems irresistible.

It is a well-established principle of law that writings, even Acts of Parliament, more especially those of ancient date, the terms of which leave their true meaning and effect doubtful or obscure, may be cleared up and interpreted—not controlled or altered—by the usage or possession which has followed upon them. Not only is this principle well and firmly established, but it is also one of very general application. It has been held to operate alike in the interpretation of Acts of Parliament of an old date, ancient charters, and other writings, whether relating to contracts between individuals, or to the constitution of public rights and trusts affecting local as well as national interests. Thus, in the case of the Magistrates of Dunbar v. The Heritors of Dunbar (10th April 1835, 1 Sh. & M'L., p. 134), Lord Brougham, in reference to the question how far usage was admissible to interpret the true meaning and effect of a statute, observed,—“When the statute uses a language of doubtful import, the acting under it for a long course of years may well give an interpretation to that obscure meaning, and reduce that uncertainty to a fixed sense: optimus legum interpres consuetudo, which is sometimes termed contemporaneous exposition; and where you can carry back the usage for a century, and have no proof of a contrary usage before that time, you fairly reach the point of contemporary exposition.” So also in the case of Macdonald v. The Governors of Heriot's Hospital, (7th April 1830, 4 W. & S. 98)—a case of contract between individuals—Lord Wynford in the House of Lords, in moving the affirmance of the judgment of this Court, observed that “old writings might be expounded by contemporaneous usage,” and that “there can be no means of getting at the meaning of old instruments so satisfactorily as that of seeing how the parties acted under them at the time they were made, and have since continued to act. So also in the recent cases of White v. The Kirk-Session Kinglassie (14th June 1869, 5 M'P., 867), and Flockhart v. The Kirk-Session of Aberdour (14th November 1869, 8 M'P., p. 176), where the question was whether certain property and funds which had been constituted by ancient writs in trust “for behoof of the poor of the parish,” without specifying particularly what description or class of poor was meant, it was decided, on interpreting the writs by the usage and possession which had followed on them that the property and funds in dispute fell to be administered under the Poor Law Amendment Act of 1845 by the Heritors and Kirk-Session for behoof of the legal poor of the parish,—Lord Curriehill, who gave the leading judgment in the former of these cases, concluding his observations as follows:—“I think that the usage which has followed on the title by which this trust was constituted, and under which it was held at the time of the passing of the Act of 1845, and the manner in which it has been possessed and dealt with, satisfactorily explain that according to its true import the trust thereby created was for behoof of the poor of the parish in the sense of the 52d section of the Poor Law Amendment Act.” And in accordance with these precedents—and many more, in varying circumstances, might be cited in the law and practice of Scotland—there may be noticed, as illustrative of the same principle in the law and practice of England, the case of the Attorney-General v. Drummond, 1 Drury & Warren, p. 353, where, in reference to a question touching the objects of a trust and the parties entitled to participate in the benefits of it, Lord-Chancellor Sugden observed (p. 368 of the Report), “One of the most settled rules of law for the construction of ambiguities in ancient documents is that you may resort to contemporaneous usage to ascertain the meaning of a deed. Tell me,” said his Lordship, “what you have done under such a deed, and I will tell you what it means.”

What, however, is perhaps of still greater importance and applicability to the present case are the very recent decisions of the Courts, both of Scotland and England, on the right of women to the exercise and enjoyment of the electoral franchise. In the case of Brown v. Ingram (19th December 1868, vol. 7 of the 3d series of the Court of Session Cases, 281) in Scotland, and of Charlton v. Lings (9th November 1868, vol. 4 Law Reports, Common Pleas, 374) in England, it was determined, without any dissent on the bench, that women have no such right; and it is clear from the published reports of the cases that this determination was arrived at, not in respect of women being expressly debarred, by statute or otherwise, from exercising the electoral franchise, but mainly, if not entirely, in respect of the immemorial usage which had prevailed in the matter. The report of the case in Scotland, although very brief, expressly bears that “their lordships rested their decision upon the fact that there was a long and uninterrupted custom in Scotland limiting the franchise to males.” And in reference to some exceptional instances to the contrary of a very old date, founded on in the English case, Lord Chief-Justice Bovill is reported to have remarked, “But these instances are of comparatively little weight as opposed to uninterrupted usage to the contrary for several centuries;

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and what has been commonly received and acquiesced in as the law raises a strong presumption of what the law is, and at least throws upon those who have questioned it the burden of proving that it is not what it has been so understood to be.”

I am unable, therefore, to see how, in the face of these authorities, and the well-established principle of law illustrated by them, that women are now for the first time, and after centuries of a uniform and uninterrupted adverse usage, to be found entitled to the enjoyment and exercise of the rights and privileges claimed for them in this action. Nor can I see that the usage of the Bologna, or any other foreign University, can affect a question which must be governed by the usage of this country alone. The reference in one of the founding charters of the Edinburgh University to the rights and privileges of the other Scotch Universities, and in that way indirectly, through the founding writs of the University of Glasgow, to a Papal Bull conferring certain rights and privileges on the University of Bologna, can, I think, be held, at most, merely to relate, in the words of the Lord Ordinary in the Note to his judgment in the present case, to “immunities from local and other taxes, and from the jurisdiction of the ordinary tribunals; and as it is certain that none of these privileges now belong to any Scottish University, not much assistance can be got by any party from the Papal Bull.” Not only do I think that no assistance can be got from the Papal Bull referred to, but that the fact that, notwithstanding the reference made to it in the establishment of the University of Glasgow, and in the establishment of the University of Edinburgh to that of Glasgow, these Universities have not been saved even from local and other taxes, or from the jurisdiction of the ordinary tribunals, is very significant, as showing that it never was intended, and cannot be held, that a Scottish University, founded subsequent to the Reformation, as the University of Edinburgh was, should, in respect of a Bull issued by the Pope, in a country where at the time he was held to be all but omnipotent, stand in the anomalous and unconstitutional position of enjoying rights and privileges unknown to and inconsistent with the laws and usages of Scotland. Besides, the alleged usage of the University of Bologna and other foreign Universities, on which the pursuers so largely found, is not, on their own showing, so satisfactorily explained and established as to be relied on as evidence at all in the judicial determination of any litigated cause. In no view, therefore, can I see that the alleged foreign usage can be held in the present dispute to obviate the effect of the long and uninterrupted usage of every University in Scotland.

And just as little can it, in my opinion, be taken as sufficient to obviate the effect of this long and uninterrupted usage in Scotland adverse to the rights and privileges now claimed for women, that such rights and privileges are of the nature of res meræ facultatis, and therefore that, as it has not been shown that such rights and privileges have ever been claimed and refused, the non-exercise of them is of no consequence; for any such view as this obviously proceeds on the assumption that the alleged rights and privileges originally existed and still exist. But that is the question in dispute; and if my previous reasoning be sound, and the authorities I have referred to at all in point, there can be no foundation for any such assumption.

On the leading, and as it appears to me the fundamental question, therefore, involved in the present controversy, I can entertain no doubt that women are not entitled by and under the constitution of the Edinburgh University, as it existed prior to the Regulations immediately to be noticed, to the rights and privileges claimed by the pursuers.

It is maintained, however, and is apparently relied upon by the Lord Ordinary as the chief support of his judgment, that the right of women to be educated for the medical profession in the University of Edinburgh has been established, if it did not previously exist, by the Regulations of the University Court of 10th November 1869. Now, although it may be, and I think it is, matter of regret that anything should have occurred, however unintentional, calculated to mislead the pursuers, or to inspire them with expectations which are incapable of fulfilment, I am quite unable to see—giving to these Regulations all the effect that can legitimately or reasonably be ascribed to them—how the Senatus Academicus, who are the only parties besides the Chancellor called as defenders in the present action, have the power, even were they willing, to afford to the pursuers the University education and privileges they claim. The Senatus is subject to the control of the other governing bodies, and especially of the University Court. The latter again have, by the Regulations referred to, merely found that women may receive medical education at the University in classes by themselves, separate from the male sex; but the pursuers have entirely failed to show how in existing circumstances, or under the present constitution and establishment of the University, arrangements for that purpose could be made and enforced. Certain it is, at least, that according to the University Act of 1858, independently of everything else, the Senatus Academicus are by themselves powerless in the matter. It is impossible to assume, and assuredly it has not been shown, that the Senatus can, by any power or means they at present possess, provide separate classes for the education of women, and yet the Lord Ordinary in the Note to his judgment says, that he thinks “the pursuers are entitled to be admitted as students of the University for the study of medicine therein, and they are entitled to be matriculated as students, subject only to the special condition that they shall be taught in separate classes confined entirely to women.” But how, and in what manner, such separate classes are to be for the first time established in the University has not been explained. Who are to be the professors or teachers of such separate classes? Surely not the present Professors of the University, who received their appointments upon a totally different footing. Again, if separate professors or teachers are to be appointed for such separate classes, who are to appoint them, and by whom are they to be paid? Surely not the Senatus Academicus, or the Chancellor of the University, or both together. And, as already explained, the Senatus Academicus have not in existing circumstances the power to admit women as students to be educated in the ordinary classes along with males, and accordingly the Lord Ordinary has himself remarked that “when the University Court has prescribed that women shall be taught in separate classes, it is perfectly vain to attempt to compel the Senatus to make a regulation that women shall be taught in mixed classes along with male students.” In

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short, the more the Regulations referred to are examined, the more clearly will they appear to be insufficient to support the action as laid by the pursuers.

It is, indeed, an important and very serious question whether these Regulations were within the competency of the governing bodies of the University—all, or any of them—to enact, and whether they can be recognised as having any effect at all. The University Court, by whom they were enacted, could have had no power to do so except under the Universities Act of 1858. Now, the only power bearing on the matter which they have, or are said to have, under that Act, is that which is contained in the 12th section, authorising them “to effect improvements in the internal arrangements of the University.” But it appears to me to be very clear that this neither warranted nor contemplated any alteration of the previously existing constitution of the University. I think the words “improvements in the internal arrangements” must be taken to mean, as the words themselves necessarily import, not changes on or beyond, but within and in accordance with, the constitution as it existed. And it would be strange indeed if a power had been given to the University authorities, or any of them, to change the constitution of the University by the enactment merely of regulations from time to time as they saw proper—altering, it might be, one day what they had enacted on another. The University Court is only one of the governing bodies of the University, and it cannot be supposed that they were, either separately or in combination with the other governing bodies, intended to have had any power conferred on them by the Act of 1858 beyond its purpose, as expressed in its preamble,—viz., “To make provision for the better government and discipline of the Universities in Scotland—viz., the Universities of St Andrews, Glasgow, Aberdeen, and Edinburgh, and for improving and regulating the course of study therein.”

If, therefore, it is to be held, as I think for the reasons already stated it must, that by the fundamental constitution of the University of Edinburgh, as it stood prior to and under the Act of 1868, women were not admissible as students, or had the other rights and privileges claimed by the pursuers, and that it were necessary to challenge the validity and binding nature of the Regulations in question as going beyond the constitution of the University, and as being ultra vires of the University Court to enact, I should think that this could be done, and may be held to have been effectually done, by the defenders, notwithstanding of there being no reduction at their instance, for I can observe no trace of such a technical objection or bar in the record. Be this, however, as it may, these Regulations, when closely examined, will, for the reasons already stated as well as others, be found to be of little or no efficacy. Most assuredly they create and impose no obligation or duty either on the Senatus or the Chancellor, who are the only defenders called in this action. So far as they relate to the teaching of women as students in the University, they merely enact (1) that “Women shall be admitted to the study of medicine in the University of Edinburgh; (2) that the instruction of women for the profession of medicine shall be conducted in separate classes, confined entirely to women; and (3) that the professors of the Faculty of Medicine shall for this purpose be permitted to have separate classes for women.” Taking these Regulations together, as they must in order to be intelligible at all, it is very obvious that there is nothing enforceable in them as against the Senatus Academicus, the Chancellor, or the professors. The professors are merely “permitted” to have separate classes for women if they please, but that cannot be converted into an obligation upon them to have such classes whether they please or not. The pursuers do not maintain anything so absurd; and, accordingly, their action or complaint is not directed against the professors, or any of them. And what is their complaint or ground of action against the Senatus Academicus and Chancellor, the only defenders they have called? If they could have said, and had said, that either of these parties had improperly interfered to prevent the professors having separate classes for women, one could understand that an action, in some form or other, might lie against them, in order to put an end to such improper interference; but no allegation, or plea, or ground of action to this effect is to be found in the record. It is clear, indeed, from the pursuers’ statements and pleas in the record, as well as from their argument in their written case, that their complaint is, not that the defenders or any other party had prevented, or attempted to prevent, them enjoying the full benefit—whatever that may be—of the Regulations in question, but that arrangements have not been made whereby the difficulties and obstacles in the way of their attaining their objects under these Regulations, as they stand, might be removed. They accordingly, finding that the professors did not choose to open separate classes for the education of women, would appear to have made various efforts, which they set out in the record, to have the difficulties thus arising obviated or overcome. But it also appears that these efforts of the pursuers proved unavailing; and, in particular, it appears, on their own showing in the 19th article of their condescendence, that the University Court—not the Senatus or the Chancellor, the only defenders here—on the 8th of January 1872, shortly before the institution of the present action, declined to assist the pursuers further than they had previously done in the attainment of their objects.

So standing matters, the present action was brought, containing several declaratory conclusions, in the broadest and most comprehensive terms, of the pursuers’ right to be admitted as students and to receive education in the University of Edinburgh, not in separate classes providing the professors were pleased to open such for them in terms of the Regulations, but independently of the Regulations and the conditions they impose altogether; and these declaratory conclusions are followed by various petitory ones, intended, obviously, for the purpose of enforcing the decree asked for in terms of the former. In short, it is manifest, I think beyond all question, that the object of the pursuers—looking not only at the conclusions of their summons, but also at their statements and pleas in the record—was to obtain something quite different from what they could obtain under the Regulations. This, indeed, is sufficiently obvious from the Note itself of the Lord Ordinary. Thus, the pursuers in the first petitory conclusion insist that the Senatus shall be ordained to make regulations whereby they may receive instruction in the University “as is required to qualify

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for graduation in medicine,” and, in particular, to use the words of the Lord Ordinary, “that they should direct and appoint the various professors whose duty it is to give instruction in medicine to permit the attendance of the pursuers upon their classes along with male students.” But the Lord Ordinary remarks upon this that there are “no sufficient grounds for pronouncing any such decree, and there are conclusive reasons why no such decree should be pronounced.” The Lord Ordinary then proceeds to deal with another of the pursuers’ conclusions—viz., that whereby they seek to have the Senatus compelled to make regulations contrary to those which have been already made by the University Court; and in reference to this conclusion he states, for reasons quite irresistible, that “this cannot possibly be done.” And he adds that, “this difficulty was so strongly felt by the counsel for the pursuers that he eventually abandoned the first petitory conclusion, and relied upon the alternative that the Senatus should he compelled to order the professors to teach the pursuers in separate classes. But,” the Lord Ordinary goes on to say. “here the same difficulty arises. The Senatus have no power to make such an order—at least, their power is not shown—and the University Court, which probably has the power, is not here.” In this I entirely concur with the Lord Ordinary, except in so far as he seems to think that the University Court has the power. For my own part, I am unable to see that they have any such power under the existing constitution of the University. The only other mode by which it is suggested that the pursuers might possibly receive the University education and benefits they desire, is noticed by the Lord Ordinary towards the end of his Note, where he says that “If not the Senatus, at least the University Court has undoubted power to recognise extra academical teachers whose courses will be sufficient for the purposes of graduation. But in making this observation the Lord Ordinary would appear to have overlooked the fact, brought out by the pursuers themselves in the 19th article of their condescendence, that the University Court have refused, before this action was instituted, to adopt any such course. Nor do I see how the University Court could be compelled to do so, at least in this action, to which they have not been called as defenders at all, even supposing it were within their power. Clear it is, however, in my apprehension, that they have no such power; for, as explained by them when they refused the application which had been made to them on the subject before this action was brought, the proposed measure would imply an alteration in one of the ordinances for graduation, and that such alteration can be made by “the University Court only with the consent expressed in writing of the Chancellor, and with the approval of her Majesty in Council.” It is not said, however, that the consent of the Chancellor, or the approval of her Majesty, has been obtained, or even applied for; and no compulsitor can be given, and none is asked for in the present action, whereby the University Court, or any of the other governing bodies of the University, could be compelled to take the requisite steps for obtaining for the pursuers the benefit of extra academical classes.

In no view, therefore, that I can take of the conclusions of the pursuers’ summons, have I been able to see how they can be given effect to by any decree within the competency of the Court to pronounce in the present action. The Lord Ordinary has, no doubt, by assuming that the Regulations of the University Court of 10th November 1869 are valid and binding, and must be taken now as forming part of the constitution of the University, given effect to the pursuers’ declaratory conclusions, subject always to the conditions imposed by these Regulations. But this, in substance and reality, amounts to no more than that the pursuers may, if they can get it, receive instruction in medicine in the University in separate classes. It has been shown, however, and is indeed made a prominent part of the pursuer's complaint, on which their action is founded, that they cannot get such instruction, as the necessary means for giving it, in the only way in which it can be given, do not exist. And it has also been shown, and is acknowledged by the Lord Ordinary, that neither the Senatus nor any other of the governing bodies of the University, or all of them together, have the power to supply the requisite means, and consequently that they cannot be compelled to do so by any decree in the present action, even had they been called to it as defenders, which they have not. To pronounce, therefore, in this state of matters, a mere hypothetical declarator—for it would be nothing more—to the effect that the pursuers are entitled to receive medical instruction in the University, provided a certain state of things is brought about to enable them to do so, appears to me to be a very idle and useless proceeding. Accordingly, the pursuers themselves do not appear to desire it. Such is not the nature of the conclusions of their action at all, and none of their statements or pleas in the record are to that effect. Nor have they at any time, or in any shape, so far as I can discover, proposed to amend, restrict, or modify the conclusions of their summons to any effect or extent. It is true that in their argumentative case it is stated that it might be “of some importance to the pursuers that their ground of action should be affirmed, even to the limited extent of having it found that they are under no personal disabilities to be the recipients of University degrees, because in that case the pursuers would have a moral claim to the intervention of the University to complete their studies, even if it should be held that the pursuers cannot legally compel the University to take the necessary steps.” But while the pursuers make this incidental observation in their argumentative case, they immediately go on to state what the real objects of their action are—viz., those concluded for in their summons, and certainly not those which are given effect to by the judgment under review. I can, indeed, very well understand that such a decree as that which has been pronounced by the Lord Ordinary is calculated to operate prejudicially in place of favourably to the pursuers, for, in reference to any other steps they may find it necessary to take for the purpose of securing their objects, it might be urged against them that as they had already accepted or got a decree, it must be held to be the measure of their rights, beyond which they can have no further claim.

I must own, therefore, my inability to see any reason for thrusting upon the pursuers a decree for which they do not ask, and which can be of no practical use to them. And as to giving them a decree which is not concluded for—which may

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possibly be prejudical to them—and which, at any rate, can only serve as a “moral” lever to assist them in obtaining in some other form what they cannot get in the present action—it appears to me that to do so would be contrary to sound legal principle, and, as I believe, unprecedented in the practice of the Court.

In the view I have taken of this case, as now explained, it is unnecessary to enter on the question whether, if the pursuers were to succeed in qualifying themselves by the requisite University education, they would be entitled to all the honours and privileges of graduation, for, obviously, matters are not advanced to the position which calls for, or admits of, the satisfactory determination of any such question.

I have only further to remark that, if the pursuers have failed, as I think they have, to support their claims consistently with the constitution of the University, whether considered in connection with the Regulations of the 10th of November 1869, or independently of these Regulations, it is unnecessary to inquire whether any other, and what, remedies are open to them. I may, however, be permitted to remark that if it be desirable, and for the interests of the country—and I do not say it may not—that women should receive University education to qualify them as medical practitioners, it rather appears to me that it is for the Crown or Legislature, and not this Court, to determine upon what footing, and under what arrangements, this should be done.

For the reasons I have now stated, I am of opinion that the interlocutor under view is erroneous; that it ought to be recalled; and that the defenders are entitled to absolvitor from the present action as laid.

Opinion of Lord Mure.

I am unable to view this case, as raised in the summons and record, as one in which the main question to be disposed of is, whether the pursuers, in respect of the Regulations passed by the University Court in November 1869, are entitled to decree to a qualified extent, in terms of some of the declaratory conclusions of this action, with a view to their admission to graduation in medicine in the University of Edinburgh, in the event of such additional regulations being made by the University authorities as will enable the pursuers to obtain, which they cannot at present do, that instruction within the University which is essential to graduation; and which, by assoilzieing the defenders, the Senatus Academicus, from the two leading petitory conclusions of the summons, it seems to be admitted that the pursuers, even under those Regulations, are not entitled to demand, and are therefore not in a position to enforce.

A larger question, and one of more general importance is, in my opinion, distinctly raised for decision under these declaratory conclusions, and in the pleadings by which they are supported, the question, namely,—Whether, according to the law and constitution of the University of Edinburgh, women are entitled, upon payment of the matriculation and other fees, to attend the classes of any of the professors, and are entitled to demand from the professors the instruction which is necessary to the obtaining of degrees, and which the professors are bound to give them. The case is expressly so put in the first and second pleas in law for the pursuers, as the ground on which decree is sought in terms of the leading declaratory conclusions of the action; and this question must, I think, in the first instance be disposed of, before dealing with the more limited one raised under the University Regulations.

Upon this new and very important question I have, without much difficulty, arrived at the conclusion that this demand of the pursuers to be admitted, as matter of legal right, to the full privileges of students in the University of Edinburgh, is not well founded. The claim is rested on the charters and Parliamentary Ratification of the 14th of August 1621, by which the University was established; and which, while they do not contain any express exclusion of females from University rights and privileges, conferred upon the College, as then constituted, all the rights, liberties, and privileges which pertained to any other College in the realm. And the pursuers’ claim, as I understand it, is rested not so much on the express words of the charter and Parliamentary Ratification of 1621, as upon the fact that by these deeds there was conferred upon the College of Edinburgh all the privileges which pertained to the other Colleges in Scotland which were founded by Papal Bulls; by which it is maintained that these Colleges, and the University of Glasgow in particular, were placed in all respects on the same footing as the University of Bologna, in which females appear to have been occasionally admitted to corporate privileges and graduation.

As regards this reference to the usage at Bologna, it does not appear to me that the pursuers can take any benefit by it. Because, having regard to the conflict of evidence which there is in the information which has been laid before the Court in regard to the admission of females to graduation at Bologna, I am not satisfied that there is evidence sufficient to instruct that any usage existed in that University of the nature contended for on the part of the pursuers; and, even if there were such evidence, it appears to me that in considering the question of usage, as bearing upon the construction of the charter of a Scotch University, it is by the usage of Scotland, and not by that of Bologna or of other foreign Universities, that the question must be disposed of. Putting aside, then, this reference to the usage at Bologna as having no direct bearing on the present case, I do not think that the language of the Papal Bulls tends in any degree to strengthen the pursuers’ claim. Because, while in the foundation deeds of the Edinburgh University, taken by themselves, there is no express exclusion of females, neither are there any words expressly descriptive of the male sex as those for whom alone the University was founded. The language of the Papal Bulls, however, is different in this respect, inasmuch as in the narrative and preamble of all these deeds men only are expressly mentioned as the parties for whom the Universities were founded; while the passages in each of the Bulls applicable to the granting of degrees rather appear to me to have been framed so as to apply to the male, to the exclusion of the female sex. If, then, the question now at issue had been raised upon the terms of these deeds taken by themselves, and apart from any question of usage, I should have had great difficulty in holding that they were either calculated or intended to found a University

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except for the education of male students. But when the foundation deeds of any of these Universities, or of the University of Edinburgh, are construed and read in the light of the uniform and uninterrupted usage which has followed upon them, they appear to me to be conclusive against the claim now made by the pursuers.

Upon this question, as to the weight due to contemporaneous and. adverse usage, as interpreting the true meaning and effect of deeds or Acts of Parliament which are in any respect doubtful or obscure, I can add nothing to the views which are so fully explained by Lord Ormidale in his opinion on this branch of the case, in which I entirely concur, based as that opinion is upon the application of rules of construction which have been laid down in a series of decisions in the Court of last Resort of the most authoritative description, as well as upon the decisions applicable to the analogous question of the admission of females to the elective franchise to which he refers.

The pursuers having thus, as I conceive, failed to show that they have any legal right to demand admission to the privileges of students in the University, while it is beyond question, on the other hand, that under the foundation deeds males have that right; the remaining branch of this case must, I apprehend, be dealt with on the footing that the main fundamental object and purpose of the founders of the University of Edinburgh was to establish an institution for the education of the male sex; and that the University is, therefore, one which by its constitution is limited to males. And if that be so, it appears to me to follow that the defenders will be entitled to be assoilzied from the whole conclusions of the present action, unless it can be shown that, in respect of some Regulations which the governing body of the University was empowered to pass, the pursuers are entitled under this action to insist upon being admitted to the study of medicine to the extent that may be necessary to enable them to proceed to graduation, and are entitled to obtain a decree to that limited and qualified effect.

The disposal of this question, however, involves the consideration of the true meaning and effect of the Regulations passed by the University Court in November 1869; because two very different constructions appear to have been put upon them. In one view of these Regulations, they may simply mean that women may be admitted to study medicine in the University in separate classes if the Professors of the Faculty of Medicine see it to be proper to have separate classes for them, without laying down any rules relative to graduation or other University privileges. And if this be the true meaning and only import of the Regulations, they appear to me not only to afford no support to the pursuers’ action as laid, but insufficient also to warrant a declaratory decree to any limited and qualified extent. And they are in that view, moreover, regulations which I am not prepared to say that it may not have been within the power of the University Court to adopt.

But there is another view which may be taken of them, and that is the one which, I understand, has been adopted and given effect to by the Lord Ordinary, viz.,—that they amount, and were intended to amount, to a declaration that women were entitled to be admitted to the study of medicine in the University as matter of legal right, and to all the rights and privileges of students, including graduation; subject only to the condition of the pursuers being able to obtain instruction in separate classes. And if this be the true meaning of the Regulations, they cannot, I conceive, be founded upon by the pursuers to establish the claim, or any part of the claim, made by them under the present action; unless it can be shown that the University Court, as the governing body of the University, had a discretionary power, either at common law or in respect of the provisions of the Act of 1858, to make regulations for the admission of females as well as males to the rights and privileges of students.

Now upon this point I am very clearly of opinion that at common law the governing body of a University of this description has no power to alter the constitution of the institution with the management of which they have been entrusted. And I have been unable to look upon the Regulations as so interpreted, and which are to have the effect of conferring upon females the right of admission to all the privileges of a University which was founded exclusively for male students, in any other light than that of an alteration of the constitution of the University which it was beyond the power of governing body to enact. Neither have I been able to bring myself to see that, under the provisions of the Act of 1858 any greater powers in these respects were conferred upon the University Court. That Act of Parliament was passed for the better government “and discipline of the Universities in Scotland” as then constituted; and by the 12th section the University Courts are empowered “to effect improvements in the internal arrangements” of those Universities; but no power is given to change their constitution, which must, I think, be held to be that of Universities founded for the education of male students alone.

Upon these grounds, therefore, I am of opinion that the judgment under review ought to be recalled, and that the defenders are entitled to absolvitor from the whole conclusions of the action.

Opinion of Lord Gifford.

After fully reconsidering the whole case, with the benefit of the written argument which has been submitted, I adhere substantially to the views expressed in the Note which I appended to the Interlocutor now under review.

Looking to the views maintained in the written argument now before the Court, I may be allowed to make one or to explanations on points as to which perhaps there is room for misconception.

I did not intend to decide—I do not think it is competent in this action to decide—any general question as to the constitution of all the Universities in Scotland, or even any general question as to other studies or other curricula than the studies and curriculum enacted in the University of Edinburgh for the profession of medicine. The judgment which I pronounced applies exclusively to the University of Edinburgh, and is confined to the case of ladies studying therein “for the profession of medicine.” It rests entirely and exclusively upon the Regulations passed by the University Court on 10th November 1869, and approved of by the Chancellor on 12th November following; and in my view the judgment does not and cannot go beyond these Regulations. I am of opinion, on the one hand, that the pursuers cannot claim anything which these Regulations do not give them expressly or by necessary implication; and, on the other hand,

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that the Senatus of the University, who are the only defenders, cannot refuse to give effect to these Regulations according to their true and fair intent and meaning.

In pronouncing the judgment under review, therefore, I simply intended to find that the Regulations were valid and binding, and that the University Court, so far as the Regulations related to their functions, were bound to carry them out, and to give them effect; and I endeavoured to read the Regulations so as to ascertain what were the rights of the lady students and the duties of the Senatus under these Regulations. If the judgment in any respect goes beyond this, and beyond the enforcement of such rights and duties, then I have erred.

Apart from the Regulations, and independent thereof, I am of opinion that the ladies could not as a matter of right demand admission as students in the University. Without these Regulations the answer would be conclusive, that there were no arrangements made for the instruction of female students in medicine; and I know of no power short of statute which could compel the University authorities of any University to make such arrangements. Arrangements of this nature must almost of necessity be different in different Universities. It may be easy and expedient in one University to make arrangements for the instruction of females either in medicine or in music, or in any particular science, when it would be impossible or inexpedient to do so in another University. In all cases it appears to me the matter is one of arrangement to be effected by the constituted authorities of each University—an arrangement which cannot be compelled beforehand or forced upon any University, but which, when once made and validly enacted, must be obeyed and carried out by the individual members of the University, and by the subordinate bodies of which the University consists. A small University is often not in a condition to give even to male stutends a full curriculum in any particular science. It would be absurd to insist that such a University shall make arrangements for a full curriculum in medicine for ladies. A large University may, conceivably at least, easily and without violating either principle or propriety, arrange for giving a full medical education to ladies in separate classes or otherwise. It seems to me that there is no authority for holding that it is in all cases incompetent and illegal to do so.

For in the present case the question really is, Was it competent to—was it in the power of—the University Court, which is the highest authority of the University, to make the arrangements for female students in medicine which are contained in the Regulations of 10th November 1869? I can see no incompetency and no illegality in these Regulations. They transgress no statute, they offend no rule either of law or of morality; and if they introduce a novelty, this is no more than could be said of many improvements which are loudly called for in the interests of education. The University Court is the ultimate Court of appeal for the regulation of the whole studies within the University. To it is finally committed by statute the discretionary power “to effect improvements in the internal arrangement of the University,” certain safeguards being provided under which this power shall be exercised. I am of opinion that the University Court legitimately exercised this power in enacting the Regulations now in question. I think they did so in due and competent form. I think the formal objections taken by the defenders, the Senatus, are quite unfounded; and it humbly appears to me that to refuse to give effect to these Regulations would be virtually to interfere with the final discretion vested in the University Court, and to review a decision of that Court upon its merits. I think the Court of Session cannot do this; for it is not to the Court of Session or to the civil courts of the country that the internal regulations of the University are committed.

Still further, if it be intended to challenge the abstract legality of the Regulations of 10th November 1869, I think it very unfortunate that this question should arise in the present form. The legality of these Regulations was unchallenged for nearly three years. They have been acted upon by the pursuers, and it may be by others. Their validity and their legality has been assumed even by the Senatus itself; for the attempt to get the Regulations altered or repealed, which was made by the Senatus on 11th November 1871, implies that until repealed the Regulations were effectual. On the faith of these Regulations the pursuers have been allowed to prosecute their studies, to spend their time and their money; and now, without any action of reduction, without any declarator of illegality, and without calling the University Court or the University Council, or the University itself as a corporation, it is demanded that these Regulations shall be utterly disregarded and treated as an absolute nullity. I am not prepared to do this. I think that to do so would be unjust as well as illegal.

I am quite aware that in the argument and pleadings for the pursuers they have maintained rights independent of the Regulations. They have put forward some claims not warranted by the Regulations, and some claims inconsistent therewith. They have pleaded their case much too high: for example, in their demand for mixed classes instead of separate ones, and in various other particulars. The conclusions of the action are far too broad. But this is no good ground for throwing out the action altogether. Because a pursuer asks too much is no reason for refusing that to which he is justly entitled.

In reference to this point, however, I may remark that perhaps the judgment under review falls short in not giving absolvitor from some of the conclusions of the summons instead of merely dismissing them. I certainly intended to decide as emphatically that the pursuers are not entitled to demand or compel teaching in mixed classes, as to decide that they are entitled to attend separate classes, when such are provided, and to all the privileges which successful students can claim. This, however, is matter of form rather than of substance, and while it may modify the form of the interlocutor, it would not affect the grounds upon which I think judgment should proceed.

I have only one other remark to make. It is true that the judgment does not contain in itself, and cannot contain, the means for securing to the pursuers, or compelling the defenders to give to the pursuers, a complete medical education. This may require the appointment of additional professors, or the sanction of extra-academical teaching, and the Senatus, who are the sole defenders, have no power by themselves to do this. It is possible, therefore, that the ladies, for want of teachers, may be hindered in getting their degrees,

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but this seems to me to be no reason for not enforcing the Regulations so far as they go. Above all, it seems to me no reason for negativing the demand of the ladies that if they procure the teaching, and if they successfully complete their studies, they shall be entitled to the degree which is the natural and appropriate reward of the successful student.

The Opinion of Lords Mackenzie and Shand.

The rights claimed by the pursuers, and which they have raised the present action to enforce, are distinctly set forth in the conclusions of their summons.

By these conclusions the pursuers seek to have it found and declared, first, that they are entitled to attend the classes of any of the professors in the University of Edinburgh, and to receive instruction from the professors upon payment of the usual fees; second, that they are entitled to receive such instruction in the University as is required to qualify for graduation in medicine; third, that on compliance with the University regulations as to attendance on classes and otherwise, they are entitled to proceed to examination for University degrees; fourth, that the Senatus Academicus is bound to provide such instruction to the pursuers, and thereafter to admit them to examination as candidates for medical degrees, and, on their being found qualified, to recommend them to the Chancellor of the University for such degrees; and fifth, that the Chancellor is bound to confer such a degree upon any of the pursuers found qualified, and so recommended. The pursuers further conclude that the Senatus Academicus should be ordained to make regulations whereby they may receive such instruction in the University as is required to qualify for graduation in medicine; and, in particular, that they should direct and appoint the various medical professors to permit the attendance of the pursuers upon their classes along with the male students, or otherwise to teach the pursuers, and any other women who may constitute themselves into a class, separately from the male students, upon payment of the proper fees; and that the Senatus Academicus should be ordained to admit the pursuers to examination for medical degrees, and, on their being found qualified, to recommend them to the Chancellor for such degrees; and that the Chancellor should be ordained to confer such degree upon any of the pursuers who may be so recommended.

Under these conclusions the pursuers maintain that they are entitled to the whole rights and privileges competent to male students in the University of Edinburgh, subject only to the condition that their instruction in medicine shall be conducted in classes confined entirely to women, should the Senatus Academicus so direct. The question thus raised for the decision of the Court is,—whether the pursuers, being females, are by the law and constitution of the University of Edinburgh entitled to the rights and privileges claimed by them?

In order to arrive at a satisfactory conclusion upon this question, it seems to be necessary to consider, first, what the rights of women are, according to the law and constitution of the University of Edinburgh, independently of the Regulations passed on 10th November 1869, by the University Court, for the education of women in medicine in the University; and second, whether by these Regulations any rights were conferred upon women which can support the pursuers’ claims.

I. It cannot, we think, be disputed that when the University was founded, and its charters were granted and ratified, the sole object contemplated was the education of the male youth of the community in languages, philosophy, theology, medicine, law, and the other liberal sciences, and that the education of women in the University was not thought of or provided for. The education of women in the various branches taught in Universities was contrary to the social conditions of all classes and the opinions of the time; and the arrangements contemplated by the charter founding the University of Edinburgh, and common to the other universities of Scotland, rendered the admission of women at that time impossible. The charter of 1582 shows that it was intended that the professors and students should dwell within the University; and, accordingly, the students at first lived a collegiate life.

The usage which has followed is in accordance with the view that the University was founded for the purpose of conferring a University education upon the male youth of the community only, because, from the time that the University was founded down to the year 1869, when the abovementioned Regulations were passed by the University Court, no woman has been admitted, or has even claimed to be admitted, within its walls as a student. In none of the other Scotch Universities have any women ever been admitted as students. This long-continued and uninterrupted usage of nearly three centuries shows, in our opinion, what was the intention of the founder, and what is the true interpretation of the general words in the charters and Act of Parliament establishing the University of Edinburgh, nam consustudo est optima legum interpres. An illustration of the force and importance of long-continued usage is to be found in the cases which occurred in this country and in England regarding the right to the franchise claimed by women after the passing of the Acts, in 1867 and 1868, to amend the laws relating to the representation of the people. The decisions in these cases appear to us to be direct authorities on the question now under consideration, and against the view entertained by the Lord Ordinary, that the right of women existed in abeyance, or depended only upon the University authorities making regulations and arrangements for its exercise.

Having regard, then, to the terms of the University charters and of the Act ratifying the same, and to the long and uninterrupted usage which has followed thereon, we are of opinion that women are not entitled by the law and constitution of the University of Edinburgh, as the same existed in 1869 before the Regulations of the University Court were passed, to attend the classes of the professors, or to receive instruction within the University as students, or to obtain University degrees.

The pursuers in support of their claims have founded upon what they allege to have been the practice of the University of Bologna, and of other foreign Universities from the earliest times. It appears to us that the pursuers have failed to establish that women were admitted as students in any of these Universities until very recently; and further, that even although this had been established,

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such practice could not affect the decision of the question now raised by the pursuers, which must be determined by the law and constitution of the University of Edinburgh, and not by the constitution or by the practice of any foreign University.

II. The next question for consideration is—Whether the pursuers are entitled to prevail in the conclusions of their summons, in respect of the Regulations for the education of women in Medicine, passed on 10th November 1869 by the University Court? In dealing with this question we think it right to say that these Regulations are contained in the extract from the Minutes of the University Court, of date 10th November 1869, which were approved of by the Chancellor on 12th November 1869, and that these Regulations are not to be extended by the previous resolutions of the Medical Faculty or of the Senatus Academicus. It is only the University Court which is empowered by the Universities Act to make improvements in the internal arrangements of the University.

1. By the Universities (Scotland) Act 1858, section 12, the University Court is empowered “to effect improvements in the internal arrangements of the University, after due communication with the Senatus Academicus, and with the sanction of the Chancellor.” But there is no power conferred upon the University Court to make any change upon the law and constitution of the University. The power given is to improve the internal arrangements of the University. This is administrative, not legislative, power—power, recognising existing rights, to make suitable arrangements for their exercise, but not power to confer the rights of students on a class or division of the community who had not such rights before.

By the Regulations of 10th November 1869 the University Court enacted that “women shall be admitted to the study of medicine in the University;” that “the instruction of women for the profession of medicine shall be conducted in separate classes confined entirely to women;” and that “the medical professors shall for this purpose be permitted to have separate classes for women.” Considering, as we do, that women were not then entitled by the law and constitution of the University to be admitted as students of the University, we are of opinion that the University Court was by these Regulations (limited as their extent in our opinion is) going beyond their legitimate province of effecting an improvement in the internal arrangements of the University, which was alone within its statutory power, and was proposing to make a fundamental change upon that law and constitution, and accordingly that these Regulations are ultra vires and illegal. The University was founded by Royal authority, and by Royal authority alone can its constitution be altered and extended.

2. But even on the assumption that the University Court could competently make these Regulations, we are of opinion that they do not support the pursuers’ claims. All the rights and privileges competent to University students are not thereby conferred upon women. These Regulations must be read as a whole, and so dealing with them, all that was thereby conferred upon women was the permission to receive instruction in medicine in separate classes in the University from such of the medical professors as chose to give them such instruction. No professor was enjoined to give them such instruction, and the whole medical professors might have refused to give it. A number of them did so, and unless they change their minds the pursuers cannot, as they admit, complete the course of study within the University required for a degree. Further, nothing is said in these Regulations as to the right to a degree; and, so far as we can see, there are no provisions which, even by implication, confer upon women, who may receive a full University course of instruction in medicine, the right to a degree on passing the usual examinations.

3. It appears to us also, although we do not rest our opinion upon it, that, under the ordinances of the University Commissioners, enacted under the powers conferred by the Universities Act with reference to the University of Edinburgh, men are alone entitled to receive degrees in arts and medicine. These ordinances can only be altered under section 19 of the Universities Act by the University Court, with consent of the Chancellor of the University, and with the approval of Her Majesty in Council.

On these grounds, we are of opinion that the Interlocutor of the Lord Ordinary should be recalled, and that the defenders should be assoilzied from the conclusions of the summons.

At advising—