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After the Appeal: Bertha Cave in 1904/5

Although Bertha Cave’s application to Gray’s Inn was unsuccessful, her appeal to the Bench of Judges, in December 1903, briefly placed Bertha Cave at the centre of the debate concerning whether or not there should be women lawyers. Late in December 1903, Miss Cave wrote to the “Saturday Review” to offer her immediate thoughts on the decision of the Judges in the Lords [reported in the Sheffield Evening Telegraph, 19 December 1903]. She was dismayed that some men were concerned that opening the Inns of Court to women would overwhelm these societies with women, and take away work from their male counterparts. Cave argued that, compared to the number of women that would be immediately admitted, men still dominated the profession, and “a few women more or less cannot make much difference”. Miss Cave had humble legal aspirations, and sought only to provide counsel should she be allowed to pursue a legal career. She did not aspire to the Bench. Quite understandably, Cave ridiculed the notion that a Judge would be so fascinated by a lady lawyer that he would be unable impartially to administer justice. Immediately after her appeal, Cave stated that she would seek any loophole to be admitted to the law, and announced that she intended to seek admission to the Rolls as a solicitor [The Times, 3 December, 1903].

Bertha Cave’s high-profile appeal brought to the fore opinion pieces regarding female lawyers in general. A contributor to The Yorkshire Evening Post, writing on the day of Bertha Cave’s rejected appeal (3 December 1903), chastised the judges for not seriously considering her appeal. The contributor pitied the overly-conservative view of the judges, and remarked that in relation to the United States of America and many European countries, England and Scotland lagged behind in their reticence to accept women in the legal profession.

In January 1904, less than a month after Bertha Cave’s unsuccessful appeal in the Lords, two other women looked to ‘play the part of Portia’ [‘The Lady and the Law’, Portsmouth Evening News]. Ivy Williams, who in 1922 became the first woman called to the Bar in England, offered the Inns of Court an ultimatum: “Admit us or we shall form a third branch of the profession, and practise as outside lawyers” [reported in Law Journal, 34, 1904, 1-2]. Less than a fortnight after Bertha Cave’s unsuccessful appeal in the Lords, Williams had stated her intent to apply to Inner Temple as a student for the Bar and, if necessary, to appeal to Parliament itself. She did not wish to practise for money, and instead wished to act as a poor man’s lawyer [Cambridge Independent Press, 18 December 1903]. However, the Inns of Court were still reluctant to admit women without a significant change to the law; an application by Christabel Pankhurst, in the same month as Williams’ ultimatum, was rejected by the Benchers of Lincoln’s Inn for the same reason that Bertha Cave had been rejected from Gray’s Inn, that there was no precedent for women lawyers in England and they, as Benchers of an Inn of Court, were unable to change the law.

Writing for the Lady’s Pictorial early in 1904, Bertha Cave put forth a lengthy and reasoned argument for women lawyers, directly challenging some of the comments made in her unsuccessful appeal in the Lords [reprinted in Dundee Courier, 16 February, 1904]. In Cave’s opinion, the main reason that men were reluctant to admit women to the Inns of Court was an aversion to depart from the traditions and precedents of legal procedure. Cave’s response piece, printed in the Lady’s Pictorial, argued that allowing women to join these legal institutions would not, in fact, upset the status quo of the Inns.

Mixed lectures already occurred in schools and colleges, so should present no great upset in legal education. It appeared strange, “almost heathen”, to Bertha Cave that in a society where men and women shared classes and lectures they could not take their meals together. She dismissed the opinion that if women were allowed to take meals in Hall, there would be a free-for-all amongst the male students for “the honour of sitting at a woman students’ mess”. More likely, she argued, the male students would initially resent the presence of a female student, but the novelty would quickly wear off and things would go on pretty much as before.

Cave was particularly critical of those that said that a woman could not accomplish the practical process of being Called to the Bar: “Are not woman as capable of walking in procession to the top of the hall, signing their names in a book, and listening to a few short speeches (which constitutes the whole ceremony) as men”?

These high-profile appeals by women to be admitted to the Inns of Court no doubt influenced the decision of the Union Society of London to have as the topic of their Ladies’ Night debate, held at Lincoln’s Inn on 20 January 1904, the question of whether or not female admission to the Bar should be allowed. Both Bertha Cave and Christabel Pankhurst were in attendance. Mr Edward Atkin made the principal motion, “that this house rejoices at the decision of the Lord High Chancellor of England protecting the Inns of Court from invasion by the gentler sex, and records its belief that ladies ought not to be allowed to practise at the Common law Bar or to hold judicial office” [reported in The Times, 21 January, 1904].

Both Bertha Cave and Christabel Pankhurst (unsurprisingly) raised objections to this motion. Miss Cave claimed that women criminals ought to have the benefit of having women advocates; Miss Pankhurst lamented that women witnesses could only be examined by men. Their desire for women lawyers was supported by a Dr Kenrick, who pointed out that no difficulty had arisen from the admission of women to the practice of medicine and surgery; from a logical point of view all men and women should be admitted equally in every profession. Ivy Williams, though absent from the debate, wrote to support the view that women should be admitted to the Inns of Court, and said she would have moved an amendment in favour of the admission of women to these societies, if they had passed all the required law examinations at university. Further debate suggested that maybe women should only be allowed to practise in certain courts. Mr Atkin’s original motion, that women should never be allowed to join the Inns of Court, was rejected, 103 votes to 85. This debate did not, however, have any legal power to change the law to reflect this vote in favour of women lawyers.

Despite the largely positive attention Miss Cave and other women like her were receiving on the subject of women in the legal profession, by April 1904 Bertha Cave seems to have given up on her ambition to join the Law Society and qualify as a solicitor. The Master of the Rolls, Sir Richard Collins, had been one of the Lords of Appeal that rejected her admittance to Gray’s Inn in December 1903, and she believed that he would object to a woman’s name being placed upon the Rolls, an objection that “could not fail to have weight with the society” [reported in the Portsmouth Evening News, 13 April 1904].

Bertha Cave next appears in the newspapers in November 1904, in a case relating to a broken bicycle. On 11 November 1904, nearly a year after her appeal against the decision of the Benchers of Gray’s Inn not to admit her to the society, Miss Cave appeared before the City of London court. She spoke in defence of her father, James Cave, who was the defendant in a case brought by Frank Peach and Co. (Limited), for failing to pay £8 18s 9d for a bicycle sold to him.

Miss Cave’s appearance attracted the attention of the papers because she appeared robed in the law student’s cap and gown, and acted as unofficial counsel for her father. The Times reported the story under the heading “A Law Student’s Bicycle”, but other newspapers used the more misleading headline “Lady “Barrister’s” Bicycle” [e.g. Nottingham Evening Post, Derby Daily Telegraph], despite her robes being those of a student, not a barrister.

Mr Harry Strouts, solicitor for the plaintiffs, objected that Bertha Cave had taken up position in the counsels’ benches, arguing that she was no counsel. Judge Lumley Smith, K.C., seemed to have no issue with Miss Cave’s position, stating that he generally heard relations. However, Strouts was insistent, arguing that judges heard relations from the witness box, not from the counsels’ benches. Thus, Miss Cave moved to the witness box to make her defence.

Miss Cave argued that, firstly, her father had not had the summons, but the plaintiffs (the “other side”) had allowed her to accept service. She was not, however, claiming to be counsel, and she received no fee for appearing before the judge. Miss Cave also stated that though her father was the defendant in this matter, the bicycle had been supplied to her. The plaintiffs contended that Mr Cave was guarantor for Miss Cave, to which she claimed that there was no guarantee.

Judge Lumley Smith made two points regarding this defence. Firstly, strictly speaking it should have been Miss Cave’s father that signed the notice of application to the Court and not Miss Cave, as he was the named defendant (despite Miss Cave contesting that it was a matter relating to her). Secondly, the judge asked why Miss Cave had been absent for the original judgement ordering Mr Cave to pay £8 18s 9d for the bicycle.

Miss Cave, it transpired, had been on her way to the court on the day of the first hearing, riding the bicycle in question. However, on the journey the bicycle had broken down on the road. The unreliability of the bicycle was the reason that Miss Cave was contesting the original agreed-upon price of the bicycle. She stated that she did “not want it for nothing”; she wanted the price reduced.

Judge Lumley Smith therefore decided to order a new trial, and reserve the costs. He added to Miss Cave that next time, she ought not to come to court on that bicycle, which was met with laughter in the court. Miss Cave, assuring the judge that in future she would come by train, asked if he would like to examine the bicycle on her next appearance in court. The judge confirmed that he would like to see the machine in question, but advised that Miss Cave better lead it up, rather than ride it, which was met with loud laughter in the court. The judge closed proceedings by stating that if the plaintiffs and defendants could settle the case out of court, they should do so.

A further newspaper report from July 1905 gives details about the case after Miss Cave’s appearance in November 1904 [reported in The Daily Telegraph, 28 July 1905]. Ultimately, judgement was given in favour of the plaintiffs, and the Cave family agreed to pay 10s per month until the bicycle was paid for. However, after paying six instalments, the Cave family were late in paying the seventh by a few days, and Frank Peach and Co. (Ltd), the plaintiffs, levied execution for £8.

Unlike her previous appearance in court, Miss Cave arrived dressed in “conventional summery fashion” and was represented by the family’s solicitor, Mr C. E. Vaughan-Williams. The reason for the late payment, according to Vaughan-Williams, was because James Cave, Miss Cave’s father, was in Russia on business. Bertha Cave and her mother were entirely dependent on him for their support, and were unable to contact him, on account of disturbed postal arrangements in Russia.

Judge Lumley Smith asked the plaintiffs why they had issued execution when the payment was only late by a few days. The plaintiffs explained that in the past people had purchased bicycles on credit, only to move away before the debt was paid. They were only acting as they were entitled to do in such cases. The judge thought this a very harsh proceeding.

To this Miss Cave confirmed that she and her family had lived in the same house in Croydon for five years, and still had two years on the lease, so they were unlikely to leave before their debt was paid. Additionally, they had already paid the late instalment. The judge accepted this, though said that in future the Caves should be more careful with repayments. He judged that, as the late instalment was now paid, Miss Cave could continue paying the instalments as before, with no further punishment. Presumably, this court case marked the end of the dispute, for no further action was brought against the Caves regarding this bicycle sale. Additionally, following this episode, Bertha Cave is absent from the British newspapers, either in her attempts to join the legal profession or otherwise.

Dr Daniel F Gosling

August 2017

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