Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1874-12-17
An Interesting Decision.
Women as Justices Of the Peace.
OPINION OF THE SUPREME COURT OF
MAINE.

] III February last, the Governor and
Council requested the opinion OF the Su-
preme judicial Court on the following
questions:
First. Under the constitution and laws
OF this State can a woman. if daiy ap-
pointed and qualified n "A Justie. Of the
| Peace. legally perform all acls pert aiming
To snch uii,s.?
Second. Would IL be competent for
the LEGISLATURE TO authorize the appniut
OF married or unmarried woman 10 the
office OF Justice of the Peace; or to ad-
minister oaths. take ackuow dgment Of
deeds or solemuize marriages. so that the
same shall be legal aud valid;
To the questions proposed we have the
honor tn answer As follows:
Whether it is expedient tina, women
| should hold the office of Justice of'Ihe
Peace i not an inquiry proposed Tor our
cons Liberation II - whether under tn.
existing constitution. they can be appoint
| ed tn such office, and can legally discharge
| Its duties.
BY III" constitution of Massachusetts Of
which we formerly constituted a portion
| the entire political power of that Common.
| wealth was vested. under certain cou,i,.
tipns, m it, male inhabitants of a prescrib-
| ed age. They alone. and Ia the exclusion
| OF The other sex. a determined by H.
/ highest court of law, could exercise the
/ Judicial functions a. existing and e-lab-
!ished by that instrument.
by the act relatin. to the separation Of
the District of Maine from Massachusetts,
the authority 10 determine upon thr 1nes-
ton of separation. and to elect delegates
| To meet aud form constitution was con
| fcrrcd upon the inhabitants ~ the sever
al towns. districts aud plantations Ia the
District of Maine qualified To- vote for
Governor or senators" thus excluding
| the female sex from all pariiciuaiipn In
| the formation of the government under
| IT. Whether the constitution should or
! should not be adopted, was specially. by
| the organic law oi it, existence submitted
to the vote OF male inhaptants ofthe State.
II thus appears that the constitution OF
! the Stat" WAS the work of its male citizens
IL Ma ordained, established, aud ratified
by them. aud lay them alone. Bv II the
! p"Acrs of government were divided into
three distinct departments: Legislative,
executive and Judicial. by article 9Th.
/ section 4. Justices III The Peace are rrcos-
uizcd A. judicial officers.
by the constitution, IA" whole political
power Of the State j. vested ia IT, male
citizens. Wherever Ia amy OF it, p-oyi..
ions, reference j. made to sex. il l. 40
| dulir, L" hc done aud performed D. male
members OF the community. Noihins IL
1 the language % the constitution or III the
debates at the convention rs which X Wa
! formed. Indicates any purpose whatever III
sul surrender uC 70 iti'a power by those
! Who had previously enjoyed u or trans
ter "i the same 20 iha,c Who hal never
pu>-r>-ci II. Had any such d,.-i .u- then
existed, Ne cauua; doubt that it would
| have been made manifest ia min. aud
/ Appropriate language. But such iuteu-
ti"u i nowhere a'-cio-cd. Having re-
gard then. 10 the lies uf the common
Law Il To- the right. of women. married
aud unmarried, ~ then ~ ~fius-to the
history ui The past" the unIVcr>al aud
I uuhrukcu practical construction given to
the constitution oi ti.- = at" and 10 that
OF the commonwealth at M5>>achu,rtt.
upon which that OF tbs, STATE wa> model
led. We are led t. the Inevitable couciu-
SION thtt q WAS never la the rDut'.nuIn-
tinH or Intention ui those forming oar con-
>itiuiinu that to" OH = thereby crrai,-i
Shpuld be- led by Those who could ilAr
uo part iu IL ori-Iu.d inrmaiipu. and Ia
whom. ~ political power Mas Intru>i-d
Tor he "reauiZiiInn al the government
thcu about 10 be- Established under IL pro.
visions. ar Tor it, continued cNi-,cnc.. aud
Preservation ahrn established.
The same process OF tei-oning which
would sanction The conf rriug judicial
power on women uudrr the constitution
would authorize the giving thr,n oNvcn-
tive power By making them Sheriff, anl
Major Generals.
But While the offices enacted hy the
constitution are Ia be hlied cXciu-ivc,y hy
he male members OF the state. we have
rev ministerial Offices not enumerated
thcrc.u and. Il: they deem rNprdirut. may
authorize the performance OF the dutl'., 81
the Offices 80 created by persons OF eithcr
sex.
10 the first question proposed. y aY-
swer In the ne.atiye.
To the second. We answer that Il is com
pctent for the Legislature to authorize tie
| appointment OF u married or unmarried
woman iu administer oaths. take ac-
Acknowledgements of deeds or soemnizr
marriages, 50 that the same shall be legal
and valid.
joins ArrLLTSS, john \. PETERS.
JoNA> CUTTING. WM. NIKr VIRGIN.
CHARLES DASyORTH,
Judges Walton and Barrows concur In
| - mpCa.rt IN" ip~...'.t.r.e rri1tpu 4- holds
that it i compctcn, f.r jAc Legislature to
authorize the appointment OF women to
administer oaih-, tax" the acknowledge
mrni OF deed, AMI splctnize marriages.
| Bot they do not concur in the conclusion
Thai II * not equally competent Tor the
Legislature 10 authorize the appointment
OF women 10 act A. Justices OF the Peace.
and they fail to find anything in the con
| ,'iiuilon OF Maine or the United State.
which forbuis the passage OF law au-
| tnorNiug such appointments. IL Is true
| they say. that the right 10 vote is iimit-
ed 10 males. but the right 10 vote and tie
RICH; 10 hold One are distinct matters;
| either can exist without the other Iucy
| add:
III txit ~. 81 -.
| tiOnaty Of such Law /, made u rc>t.
not on ans expressed intention nC tile
| trainers OF the constitution that women
should not hold Office. but upon a pre-
| sumed absence OF intention thai tii-y
| should.
This seems 10 rs A dangerous doctrine.
| IL l. nothing less thn holding that the
| Legislature cannot cutct 4 law unless it. p.
pears altrmttiveiy that III trainers oI the
constitution ia'cnlrl that such a law
should be enacted. We cannot concur in
such = doctrine. Il would put u stop To
| All progress. W. understand The correct
rude 81 hr the reycr-. ut that; namely
! that THE legislature may enact any Ilw
| they think proper, unless 1t appear, A.
| Tentatively that the trainers OF thr con>ti-
| tatiOn intended that such law should
not be passed. And the best aud ONLY
safe rule for aScertaiuin. the intention OF
the maker. OF any written Law. i To ABIDE
! By the language which they have used
| Judge Dickerson. concurs with the
minority OF the court far as they 90.
| aud holds further that women may I'LL
any office the same men may, without
legislative authority. He maintains that
the word ''man" is used in generic sense
| to denote the human race. including both
sexes, and that il is only by giving the
| word such Specification that women have
any rights in the constitution that men
are bound to respect. He says the con
| stiution restricts the right of sutfAge To
male citizens. but does not confide eliy.
bllity 10 Office 10 males. la the one case
words iGporting a sexual qualification are