The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1874-12-15
Women as Justices of the Peace.
Abstract CT the Opinions of the Supreme
Court.

| and Council requested the opinion of the SUI
preme Court on the following questions: First,
| Under the Constitution and laws of this st ate,
can woman, if duly appointed and qualified
| as Justice of the Peace, legally perform all
acts pertaining to such office? Second, Would
it be competent for the Legislature to author
ize the appointment of married or unmarried
woman to the office of Justice of the Peace; or
to administer oaths, take acknowledgment Oh
| deeds or solemnize marriages, so that the same
shall be legal and valid? Responses to these
| inquiries have been received by the Governor
| including the opinion of the Court, drawn by
| Chief Justice Appleton, and concurred in by
| Justices Cutting, Peters, Danforth and Vlrgin'
| Justices Walton and Barrowss dissenting
| opinion, and Justice Dickerson's views IN
| dissenting opinion. In the opinion OF Inc
| Court, the Justices say that by the Constilu-
| ton Of Massachusetts, of which Maine former
| ~ constituted portion, the entire Po,itlcal
| and judicial power of that commonwealth was
vested, under certain conditions in its male IN
| habitants of prescribed age. The Constitu-
| ton of the state, adopted after the separation
| from Massachusetts, was the work OF lts male
| citizens By it the powers OF government were
| divided into three distinct departments: Leg
| islatiye, executive aud judicial. BY article D,
| section 4. Justices of the Peace are recognized
| as judicial officers. By the Constitution the
| whole political power OF the state IS vested III
| its male citizens. Nothing in the language OF
the Constitution, or in the debates OF the con-
yention by which it was formed. indicates any
purpose whatever of any surrender OF political
power by those who had previously enjoyed IL
or transfer Of the same to tn3se h ~n Go mat
says: "Having regard, then, to the rules OF the
| common law as to the rights of women, mar
ried and unmarried, as then existing-to the
history of the past-to the universal and I'M
| broken practical construction given to the Con-
stituton of this state and to that of the Com
monwealth of Massachusetts upon when tnat
| of this state was modelled, we are led to the IN
eyitabe conclusion that it was never in the con-
temptation or intention Of those forming our
| Constitution that the offices thereby created
| should be filled by those who could take no
mart in its original formation, and to whom no
| political power was entrusted for the organlza-
| ton of the government then about to be estaD-
lished under its provisions, or for It's c0ntlnued
| existence and preservation when established.
To the first question proposed, We an
| swerin the negative. To the second, we an
swer that it is competent for the Legislature to
| authorize the appointment of married or un-
| married woman to administer Oaths, take ac'
| acknowledgement of deeds or solemniZe marriages,
| so that the same shall he legal and valid.
The dissenting view of Judge Walton and
| Barrows concurs in so much of the foregoing
| opinion as hold that it is competent for the
| Legislature to authorize the appointment OF
| women to administer oaths, take the acknowl-
| edgement of deeds and sO!emnize marriages,
but it does not concur in the conclusion, that 1t
| is not equally competent for the Legislature to
| authorize the appointment of women to act as
Justices of the Peace. 1t is argued that the
| Legislature is authorized to enact any law
which it deems reasonable and proper, provided
| it is not repugnant to the Constitution of this
| state, nor to that of the United States; and a
| law authorizing the appointment of women to
| act as Justices of the Peace would not be re-
pugnant to either. They fail to find a single
| word, or sentence, or clause OF sentence,
which, fairly construed, either expressly or i'm
| ledly, forbids the passage of such law. 1t
| is true that the right to vote is limited to
males But the right to vote and the right to
| hold office are distinct matters. Either may
exist without the other. And it may be true
that the trainers of the constitution did not
| contemplate-did not affirmatively intend
| that women should hold office. But it by no
means follows that they intended the contrary.
| "Tbe truth probably is that the matter was
not even thought off, And they say further:
"And it will be noticed that the unconstitu-
| tionalty of such a law is made to rest, not on
any expressed intention OF the trainers of the
| Constitution that women should not hold Of
| fee, but upon presumed absence of intention
| that they should This seems to us danger
GUS doctrine. 1t is nothing less than holding
| that the Legislature cannot exact a law unless
| it appears affirmativey that the trainers of the
| Constitution intended that such law should
| be enacted. We cannot concur in such doc
| trine. 1t would put a stop to all progress. We
understand the correct rule to be the reverse OF
that, namely: That the Legislature may enact
| any law they think proper, unless 1t appears
| afirmatiyely that the trainers of the Constitu-
| ton intended that such law should not be
| passed. u We can find nothing
| in the Constitu ion of the United States, or of
| this state, forbidding the passage ola law au-
| thorizng the appointment OF women to act as
Justices of the Peace. We think such law
| would be valid"
| The dissenting opinion Of Justice D;ckerson
is a long and elaborate document. He answers
| the first question in the affirmative, and the
| second also, although he does not believe that
further legislation is needed to render legal the
| appointment in question. His answer to the
| first question is based on the construction OF
| the state and national constitutions. He argues
| that if, by the commoa law, women are inelig-
| ible to the office of Justice of the Peace, by
| the common law, also, married women have no
right to make contracts, or control their person
| al property during coverture, and are not COM
| peient witnesses. He believes that, by the
| fourteenth amendment to the constitution OF
| the United States, women are maze cltlZens,
and as such are entitled to all the rights, priv,
leges and immunties predicated of "citzens,"
and its synonym, ''people," in the ,constitu
ton which are not therein specially denied to
them; and that eligibility to office is not of that
number He says: Glow long would our
statutes removing the disabilities of married
women and of parties to be witnesses, and our
prohibitory liquor law, stand the test now re-
| lied upon to debar women from the right to
hold the office of Justice of the Peace?" He
| closes: There is, in fine, one brief and con-
elusive answer to the questions propounded to
| the nembers of the court. 1t is that the bur-
| den is upon those who deny the right of women
| to hold the office in question to show atfirma-
lively that the Constitution prohibits them from
go doing This they certainly have not done.
right to hold that Office attaches alike to both
| female and male citizens