Women & the Law: Bertha Cave’s Application to Join Gray’s Inn
On 3 March 1903, Bertha Cave sent a letter to the Benchers of Gray’s Inn applying to be admitted as a student of the Society, for the purpose of being called to the Bar. Miss Cave was not the first woman to apply to an Inn of Court in the hopes of becoming a student. In 1891, Lincoln’s Inn received an application from one Miss Day, asking to become a licensed conveyancer “under the Bar” [Lincoln’s Inn Black Books v. 5 p.275 (1962)]. In other words, she did not wish to be called to the Bar, only to work as a special pleader as a member of an Inn of Court; regardless, her application was rejected. The Benchers of Gray’s Inn, therefore, were the first Benchers faced with the direct question of whether women could be admitted to an Inn of Court for the express purpose of being called to the Bar.
Bertha Cave’s application was first addressed at a meeting of Pension on 13 March 1903, ten days after the letter was written. The initial response to the application was positive: Master Rose moved, and Master Macaskie seconded, that Miss Cave be admitted to the Inn. However, Master Mattinson urged caution, moving that the matter be adjourned and referred to a committee, for there were a number of legal implications to admitting Bertha Cave as the first woman to an Inn of Court. His amendment, seconded by Master Terrell, prompted the creation of a special committee, made up of Edward Dicey the Treasurer (ex officio), Master Sir Arthur Collins (the chairman of the special committee), and Masters Rose, Mulligan, and Terrell.
On 24 April 1903, the special committee presented their report to Pension. The principal question that the committee had sought to answer was whether the Society of Gray’s Inn had any power to admit as students women who were applying for the express purpose of being called to the Bar. Their first conclusion was that regardless of whether the Benchers wished to admit a woman as a student of the society, it was not in the power of a single Inn of Court to do so. In 1780, it was adjudged that all powers a single Inn of Court had concerning admission to the Bar were delegated to them from the Judges; the Judges alone, or the Judges by command of the Privy Council (or by Royal Command), made orders for the regulation of the Inns of Court. This judgement was first made by Lord Mansfield (1705-93) in Hart’s Case (Rex v. Benchers of Gray’s Inn, 1780). In this case, William Hart had applied for a mandamus to be directed to the Benchers of Gray’s Inn to compel them to call him to the Bar. Lord Chief Justice Mansfield’s judgement on the matter stated:
“The original institution of the Inns of Court no where precisely appears, but it is certain that they are not corporations, and have no constitution by charters from the Crown. They are voluntary societies, which, for ages, have submitted to government analogous to that of other seminaries of learning. But all the power they have concerning the admission to the bar, is delegated to them from the Judges, and, in every instance, their conduct is subject to their controul as visitors.” [Douglas, Reports of Cases Argued and Determined in the Court of King’s Bench, p.354]
Lord Mansfield had cited as justification for his judgement Dugdale’s Origines Juridiciales, the great 17th century work on the origins of, among other things, the Inns of Court. So too then did the special committee assigned to Bertha Cave’s Gray’s Inn application look to Dugdale for an answer for the question whether a woman could be admitted to an Inn of Court. Their conclusion was that, according to Dugdale, “males and males alone” were considered to be admissible as students. However, the Benchers were also aware of two more recent prominent court cases that had debated the issue of women working in historically male professions.
The earliest of these cases was Jex-Blake v. Senate of [the University of] Edinburgh (1873). Sophia Jex-Blake, along with six other women (collectively known as the Edinburgh Seven), had applied to study medicine at Edinburgh University in 1869. In accepting the application, the University of Edinburgh became the first British university to admit women. However, resentment towards these women among the male students grew, culminating in the Surgeons’ Hall riot on 18 November 1870, when an angry mob gathered outside the hall to protest these Edinburgh Seven from sitting an anatomy exam. This increased (negative) publicity persuaded the university to refuse the women graduation, prompting the 1873 court case in the House of Lords. This appeal backfired, however, when the Court of Session not only supported the university’s decision to refuse the women degrees, but also ruled that the women should not have been admitted in the first place. The charters of the university showed that the foundation was instituted for men only, and there had been no change to the charters with regard to female students.
The second prominent court case cited by the special committee of Gray’s Inn’s Benchers was Hall v. The Incorporated Society of Law Agents (1901). On 5 November 1900, Miss Margaret Howie Strang Hall had applied to the Society of Law Agents in Scotland for permission to take its preliminary examination, arguing that the Law Agents (Scotland) Act (1873) permitted “persons” to become Law Agents. After her application was declined, Miss Hall presented her case to the Court of Session, which heard the arguments for and against Miss Hall’s application in July 1901. The Incorporated Society of Law Agents argued that though they did not oppose Miss Hall’s application specifically, there was a question of whether women had a legal right to be admitted to practise the profession of the law: “according to inveterate usage and custom in Scotland, that practice has in all departments of the law been hitherto confined exclusively to men”. After a lengthy debate, the Judges declared that they had no power to allow Miss Hall to take the Law Agents’ examinations. They argued that although the term “persons” was equally applicable to both male and female persons, in the event of an ambiguous term the court must look to its “inveterate usage” to determine its intent. Therefore, the Judges interpreted the word as meaning “male persons”, as no other had ever been admitted as a law agent. They reiterated that they had no personal opinions against female law agents, only that they were powerless to allow women admission to such professions until the legislature was changed.
The special committee of Gray’s Inn therefore rejected Bertha Cave’s application on two counts: firstly, according to Hart’s case (1780), a single Inn of Court did not have the power to set a precedent such as admitting a woman to study for the Bar; secondly, according to Hall v. The Incorporated Society of Law Agents (1901), any gender-neutral terms described by Dugdale relating to the membership of the Inn should be read as male. Only when the legislature was changed could the Inn admit women. The Benchers of Gray’s Inn, upon hearing the conclusion of the special committee, moved that Bertha Cave be informed that they had no power to admit her.
Bertha Cave then appeared in the House of Lords, before Lord Halsbury, then-Lord Chancellor, and the Judges, on 2 December 1903 to appeal the decision made by Gray’s Inn. The issue now was not whether the Judges in the House of Lords had the power to change the law, but whether they were willing to change it to allow women to enter the legal profession. However, the Judges decided against allowing such a precedent. Though there was no actual rule against the admission of women to the Inns of Court, the long-continued practice of the Inns only to admit men meant that to admit women would require setting a precedent, something that the Lord Chancellor was not willing at that time to grant. The Lord Chancellor’s closing remarks made it clear that in his opinion, he and the Judges were considering whether the Benchers of Gray’s Inn had been correct in their rejection of Bertha Cave’s application, not whether to allow women to join the Inns of Court as students. After stating that the Judges would not make a precedent to allow women to enter the legal profession, and would not suggest that the Inns of Court alter their centuries-old course of practice, the Lord Chancellor concluded that “that is quite enough to justify the Inn in the course they have pursued and we do not think it necessary to give any other reasons than that there is no precedent for such a proceeding.”
Although Bertha Cave’s appeal to the Lord Chancellor and Judges was unsuccessful, she was following the correct procedure for someone refused admission to an Inn of Court. According to an 1837 Lincoln’s Inn order, the Judges could entertain the application of any gentleman refused entry to any Inn of Court; each Inn was willing to be bound by the decision of the Judges on such an application. The other three Inns of Court consented to this order on 27 January 1837. The significance of this order in relation to the Bertha Cave appeal was not lost on the Benchers of Gray’s Inn, who copied the letter into the Pension minutes for 11 December 1903, after the copy of the Lord Chancellor’s report rejecting her appeal.
The entries relating to Bertha Cave’s application to join Gray’s Inn in the Society’s Pension minutes demonstrate that the Benchers of the Inn did not immediately disregard Miss Cave’s application. Although ultimately she was not admitted to the Inn, nevertheless two Benchers had moved in favour of admitting her when she first applied. Even the special committee, which advised rejecting Bertha Cave’s application, did so by citing a number of legal precedents as to why the Inn’s Benchers were unable to make such a decision alone. As with the case of Margaret Hall before her, Bertha Cave had to appeal to the legislators for change. However, in 1903 those legislators were unable, or unwilling, to enact such a change. Therefore, women would have to wait until 1919, after a number of debates in Parliament (and a Great War), to be able to become members of the Inns of Court, with the enactment of the Sex Disqualification (Removal) Act late that year.
Dr Daniel F. Gosling
27 June 2017
The Pension minute of 10 March 1903 opening the discussion of Bertha Cave's application