Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1871-07-03
Women Capuo, he Ju,,ices,

Our readers will remember that some time
ago Governor Clafin appointed Mrs. Julia Ward
Howe and Miss Stevens of Cambridge, to be
justices of the peace for the county Of Suffolk,
subject, of course, as all executive appointments
are, to the approval of the council. These ap-
pointments were by the council referred to a
committee consisting of the Acknowledgements
and Hon. f., B. Stoddard. The committee
would gladly have reported in favor of their
confirmation; but it was not thought wise to do
so while it was uncertain whether the validity
of the official acts of women, duly commissioned
and qualified as justices Of the peace, would be
recognized by 1.-THE judicial authori-
ties of the commonwealth. II the ap-
pointments should be made and the judges
should hold the acts of the appontees invalid,
the consequences, where the titles to property
and other important interests might be involved
would be very serious. Two methods of settling
the question were considered. First, to perfect
the appointments, or one of them, and let
deed acknowledged before the woman justice be
presented TO the register of deeds for record on
his refusal to record it, the way would be open
for an application to the supreme court for
writ of mandamus requiring him to make the
record. The opinion of the court on this case
would be decisive of the question. The other
course, which was adopted, was to request the
opinion of the court in advance of the conirma-
ton, whether women can in this state lawfully
hold the Office of justice of the peace.
The questions submitted to the court were the
following:
First, under the constitution of this common
wealth can a woman, if duly appointed and
qualified as justice of the peace, legally per-
form all acts pertaining to such office?
Second, under the laws of this common
wealth. would oaths and Acknowledgements of
deeds taken before a married or unmarried
woman, duly appointed and qualified as JUS
tice Of the peace, be legal and valid?
The opinion of the court, rendered last Thurs
day, is as follows:
The justices of the supreme court having
considered the questions upon which their opin-
ion was required by his excelency the governor
and the honorable council on the eighth day of
the present month, respectfully submit the fol-
lowing opinion:
By the constitution of the commonwealth the
office Of justice of the peace is judicial office
and must be exercised by the officer in person.
and woman, whether married or unmarried
cannot be appointed to such an office. The law
of Massachusetts at the time of the adoption of
the constitution, the whole frame and purport
of the instrument itself, and the universal un-
Outstanding and unbroken practical construc-
ton for the greater part of a century afterward,
all support this conclusion, and are inconss-
tent with any other 1t follows that if a woman
should be formally appointed and commissioned
as justice of the peace, she would have no
constitutional or legal authority to exercise any
of the functions appertaining to that office.
Each of the questions proposed must therefore
be answered in the negative.
In this oniuiou oil the iud0au nonourrad IL
win be observed that they do not waste any ar
gument on the question. A woman, they say,
cannot be appointed to such an office because no
woman ever has been. The premise is undis.
puted, but the logical connection between
it and the conclusion is not entirely
clear. The opinion, however, has the merit of
brevity and distiDctness. 1t is conclusive if
not convincing, and if it contains no argument
that fact is due, not to the unwilingness of
the court to support its position by argument,
but to the non-existence of reasons
OF legal value, that is of precedents,
bearing upon the question. This is case
where the decision might have been gwen
either way without doing violence to any estab-
lished principles or maxims, and where the
opinion of one man, aside from the weight
which judicial position may give it, is as good
as anothers. What the council desired to know
was, not what had been the law of Massachu-
sets on this subject, but how the present su.
preme court would decide a suit turning on
this question, and this they have learned.
To Mrs. Howe personally the appointment
would nave been, we suppose, of no particular
value. But Miss Stevens is a lawyer, well in
structed and practically skilled, especially IN
conveyancing, to which she gives most of her
attention, and in which she finds constant EN-.
ployment 1t would be very convenient for her
TO have the authority, which men in the same
business consider almost indispensable, TO take
the acknowledgements of deeds and administer
Oaths. II would be absurd to raise the question
of the wisdom or safety of entrusting her. or
any woman of good character and even moder-
ate intelligence, with that authority, since hum
dreds exercise it whose qualifications, Judged
by any standard that can be sup-
gested, are immeasurably inferior to
hers. II her appointment had been
sanctioned, many women in this and other
counties, more or less conyersant with legal
forms and proceedings, through their employ
ment as clerks in the various county offices and
otherwise, wonld have sought and obtained
commissions as justices of the peace, to the con-
venisnse Of themselves and the public As the
question is now decided, this office caunot be
held by women until the constitution has been
50 amended as to authorize their appointment.
The people may not be vet prepared for woman
suffrage, but we believe they are prepared to
open this office TO women, and that an amend
ment TO this effect, if not more extensive, will
be carried as soon as the necessary formalities
viii permit.