The common law principle of stare decisis et non quieta movere – to stand by decisions and not to disturb settled matters – received a thorough examination and application in the case of Bebb v Law Society  1 Ch 286. Bebb and three additional plaintiffs were women seeking admission to the roll as solicitors in England & Wales. Their applications were refused by the (English) Law Society and in the Court of Appeal, the judgment stating that as there had been no previous woman admitted as a solicitor, there was no precedent to allow the admission of women. The court said it was a matter for Parliament to change the law.
The argument presented was the (English) Solicitors Act 1843, which referred to “persons”. That led to the delivery of the ruling that a woman was not a “person” within the meaning of the Act.
Madge Anderson’s story
One woman intent on “disturbing settled matters” was Madge Easton Anderson, of 169 West George Street, Glasgow.
Anderson became an undergraduate at Glasgow University in 1913, graduating with an MA (1916) and subsequently obtaining the law degrees of BL (1917) and LLB (1920). She was the first woman law graduate from the university. Her degree allowed her to enter indentures to become an apprentice law agent, ignoring the obvious prohibition on the admission of women to the profession provided by the Law Agents Act 1873, under which a Scots woman was no more a “person” than an English woman.
World War 1 was the catalyst for change in all facets of life – social, political and ordinary life were in suspense for its duration. It was possible to imagine on the successful conclusion of the war that there would be wholesale change, not least in the legal and political development of the status of women. Anderson, encouraged by her master John Alexander Spens, entered indentures as an apprentice law agent on 12 May 1917, anticipating the removal of the prohibition on female law agents. Her then firm, Maclay Murray & Spens, is incorporated in the current firm Dentons.
The Sex Disqualification (Removal) Act 1919 was enacted on 23 December 1919, removing the prohibition on women becoming solicitors. There had been two private members’ bills in Parliament in 1914 and 1917. The Act was a compromise, as the women’s movements wished for larger reliefs, including the extension of the franchise and admission of women to the House of Lords. Anderson applied to the Incorporated Society of Law Agents to be admitted in 1920, contending that she held a law degree and her three-year apprenticeship was completed. The Society declined to admit her, on the basis that she was not a man in 1917, and she had not registered her indenture within six months from execution, as required by the statute.
Anderson raised proceedings to compel the Society to admit her: Anderson, Petitioner 1921 1 SLT 48. This was a brave move on her part. In 1901, Margaret Hall had applied to the Society to take the preliminary examination to be admitted as a law agent. That application was refused. The refusal was upheld by the Court of Session: Hall v Incorporated Society of Law Agents (1901) 3 F 1059, on the same reasoning as in Bebb, that a woman was not a person for the purposes of the 1873 Act.
Anderson’s petition was reported to the Inner House on 14 December 1920 by the Lord Ordinary, Lord Ashmore, who stated: “If the petitioner in this present case had been a man possessing the petitioner’s qualifications his right to admission under the Law Agents Act of 1873 would have been undoubted. Now the Act of 1919, in this matter of admission to the legal profession, has put the petitioner in the position of a man.”
In the eyes of the law
The jurisprudential position of a woman evolved from the 1901 decision of the Court of Session in Hall and the 1914 decision of the Court of Appeal in Bebb, that a woman was not a “person”, to the 1920 decision of the Court of Session in Anderson that a woman is “in the position of a man”. This reasoning is not quite as pejorative as it appears. The judge was minded to allow Anderson to be admitted; all judges having taken oaths to comply with the law, which explicitly declared that only a man could be admitted to indentures prior to the 1919 Act, Lord Ashmore deemed her to be “in the position of a man”, retrospectively extending the 1919 Act to 1917. He also exempted her from the requirement to register her indentures within six months, because many men had been similarly exempted.
There are very complex jurisprudential issues in this judgment. Did the judge determine that the unjust discrimination against women becoming law agents outweighed any procedural lacunae? Is it simply a decision recognising the inevitable admission of Anderson, without coercing her to reprise an apprenticeship already served? Or is the answer more prosaic, in that World War 1 had changed societal attitudes and expectations, and the times they were a-changing to include and extend the placement of women in society?
Anderson’s achievement was marked by the Daily Globe on 16 December 1920 conferring the title “First Lady Law Agent”, together with a photograph, though she was not admitted until January 1921. She is unique on a number of counts. First, she was the first woman admitted as a law agent or solicitor in the British Isles; secondly, she was the first woman eligible to practise in Scotland together with England & Wales, consequent on her successful passing of the final examination of the English Law Society; thirdly, in her method of admission. The Law Society of Scotland website lists the pathways to admission as a solicitor in Scotland. There is no indication that turning up at Morrison Street announcing that one has completed an informal training contract without prior registration with the Society will lead to a successful conclusion! Anderson, Petitioner is a case in its own space and place.
Madge Anderson was followed as a solicitor by four English women in 1922-23 and three Irish women in 1922-24. The convergence between them is that six of the eight held university degrees, the exceptions being that two of the Irish women attained vocational entry as law clerks. University degrees were markers of wealth and class. Anderson was a student at Glasgow University for six of the seven years 1913-1920, paid for by her bookseller mother and surgical instruments purveyor father. Six of the eight women were children of or married to solicitors, showing the critical importance of familial connection to secure entry to the profession. Anderson did marry, but not to a solicitor. Anderson and D M O’Reilly (an Irish counterpart) became indentured because of their talent and the willingness of some male solicitors to sponsor the advancement of women.
It is noteworthy that women in the United States were early entrants to the profession from the 1880s, through family apprenticeships and a wider definition of women’s rights.
Women were slow to enter the profession across all jurisdictions in the ensuing decades. The reasons include the difficulty in obtaining apprenticeships, coupled with the economic costs of admission, study, and apprenticeship with no pay. Access remained the privilege of the well-to-do and the well connected.
Anderson is acknowledged by Glasgow University for her work in the Glasgow University Settlement from 1920-30, as a “poor man’s lawyer”, the precursor to free legal aid.
The viability of her own practice appears to have been an issue. She sat and passed the final examination of the Law Society of England & Wales, commencing practice in London in 1937. She practised in what is represented as the first all-female firm, Berthen & Davy, her area of expertise the nascent family law, practising until 1951.
There is a common thread between the eight women solicitors – their practice areas relating to conveyancing, probate, family and child law. The reasons are twofold: first, the probable prejudice towards women advocates; secondly, office-based work allowed control of time, when family management remained in the primary care of women. The preferred place of women, propagated by both church and state, was in the home. There was a “convention” in Ireland that non-courtgoing solicitors, particularly women, did not take out practising certificates. Mary D Heron, the first woman solicitor in Ireland, did not have a practising certificate for the duration of her practice from 1923-45.
Anderson purchased a private hotel near Dunkeld in 1949 and did not practise following her return from London in 1951. She died on 9 August 1982 at the Royal Infirmary, Perth.
Century of (slow) progress
The centenary of the Sex Disqualification (Removal) Act 1919 has attracted focus on women in the legal professions, their admission recounted as an advancement for women’s rights. In truth, the advancement of women in the professions has been painfully slow whatever markers are counted: from judgeships, partnerships, to leadership. In 1949, on the foundation of the Law Society of Scotland, there were 3,000 solicitors, of whom 90 were women. The first woman President of the Law Society of Scotland was Caroline Flanagan in 2005, 84 years after Anderson’s admission. The first woman president of a Law Society was Moya Quinlan (Ireland) in 1980. Women now represent the majority gender of the profession; this fact will influence their future advancement.
Where do we place Madge Easton Anderson? The Scotsman on 7 March 2004 suggested “at least a commemorative bust” in Parliament Hall, noting that the first woman advocate, Margaret Henderson Kidd, received a Damehood. The Law Society Gazette on 14 January 2019 referred to her as “Madge of Honour”. The answer may be already provided in www.first100years.org.uk, which has created a digital archive to celebrate the first 100 years of women practising law; note the use of the word “first”. The legacy of Anderson and the first women solicitors is that their remarkable achievement in becoming solicitors ensured it is now unremarkable for women to be solicitors.
In this issue
- The Judicial Disappointments Board
- Hiding in plain sight
- Food for thought on the drug front
- Salmon farming law must change
- People on the move
- Managing compliance to drive legal practice success
- New practice area: financial services – asset management
- Resilience: your flexible friend
- Appreciation: William Denys Cathcart Andrews