Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1874-12-14
v0uEy rs Jr.s7ICES Of THE PE.lcE.
0pini IL of the Supreme Coar: on the
Question.

On the 9th Of February last, the Governor and
Council requested the opinion of the Supreme Jul
dicia Court on the following questions:
| Fryst-U nder the constitution and laws Of this
State, can a woman, if duly appointed and quail
fed as a Justice of the Peace, legally perform all
acts pertaining to such office
| Secoad-Would il be competent for the Legisla-
ture to authorize the appointment OF married or
unmarried woman to the office of Justice OF the
Peace; or to administer oaths, take acknowledge
ment Of deeds, or solemnize marriages, so that
the same shall be legal and valid!
| The following responses to these inquiries have
been received by the Governor. The opinion Of
the court, drawn by Chief Justice Appleton, and
concurred in ~ Justices Cutting Peters, Dan
forth and Virgin. Justices Walton and Barrows
unite in dissenting opinion, and Justice DECKER
son also presents his views in dissenting opinion.
Opinion of the Court.
To the questions proposed we have the honor to
answer as follows:
| Whether il is expedient that women should hold
the office of Justice of the Peace is not inquiry
proposed for our consideration. 1t Is, whether
under the existing constitution, they can be ap-
pointed to such Office, and can legally discharge
| its duties.
| By the constitution of Massachu 'etts, of which
we formerly constituted portion, the entire poll
ica power of that commonwealth was vested, I'M
der certain conditions gin its male inhabitants OF
prescribed age. They alone, and TO the exclps o
| of the other sex, as determined by its highest
court of law could exercise the Judicial function
as existing and established by that instrument.
By the act relating to the separation OF the Dis
trict of Maine from Massachusetts, the authority
to determine upon the question OF separation and
to elect delegates to meet and form constitution
was conferred upon the "inhabitants of the sever
al towns districts and plantations IN the District
of Maine qualified to vote for Governor and Sen
ators,' thus excluding the female sex from all par
ticipation in the formation Of constitution, and
| in the organization of the government under 1T.
Whether the constitution should or should not be
adopted, was specially, by the organic law OF It's
existence, submitted to the vote of male lnhabi-
| tants of the State.
II thus appears that the constitution of the State
was the work of its male citizens. 1t was ordain-
| ed. established and ratified by them, and by them
alone By it the powers of government were
divided into three distinct departments: Legisla-
tive executive and Judicial. By article 9th, Sec
| ton 4, Justices OF the Peace are recognized as
| judicial officers.
I,y the constitution, the whole political power
of the State is vested in its male citizens. When
ever in any CT its provisions, reference Is made 10
sex, it is to duties to be done and performed by
male members of the community. Nothing IN
the language of the constitution in the debates
of the convention by which it was formed, indl-
Gates any purpose whatever OF any surrender OF
political power by those who had previously en-
Ioyed it or transfer Of the same to those who
had never possessed it, Had any such design
then existed, we cannot doubt that it would have
been made manifest in fitting and appropriate Ian
guagc. But such intention Is nowhere disclosed
Having regard then, to the rules of the common
law as to the rights of women, married and I'M
married, as then eXistng-tO the history OF the
past-to the universal and unbroken practical
construction given to the constitution of this
State and to that of the commonwealth of Mass
achusetts, upon which that OF this Sta.e was
modelled, we are led to the inevitable conclusion
that it was never in the contemplation or intention
of those forming our constitution that the offices
thereby created should be filled by those who
could take no part in its original formation, anu
to whom political power was entrusted for
the organization of the government then about to
be established under its provisions, or for its con-
tinued existence and preservation when estab-
lished.
The same process of reasoning which would
sanction the comforting Judicial power on women
under the constitution would authorize the giving
them executive power by making them Sherifs
and Major Generals.
But while the offices enacted by the constitution
are to be filled exclusively by the male members
of the State, we have no doubt that the Legisla-
ture NAV create new ministerial offices not emu
meratcd therein, and, if they deem eXpedient,
may authorize the performance Of the duties Of
the offices so created by persons of either SEX
To the first question proposed, we answer in the
negative.
TO the second, we answer that it is competent
for the Legislature to authorize the appointment
of a married or unmarried woman to administer
oaths take acknowledgment of deeds or solemn
ize marriages, that the same shall be legal and
valid.
JOHN APPLETON, JOHN A. PETERS,
JONAS CUTTING, WIN. WRIT VIRGIN
CHARLES DANFoRTH,
Dissenting OpiniOn by Judges Walton
and SRrrows.
We, the undersigned. Justices of the Supreme
Judicial Court concur in so much OF the foregoing
opinion as holds that is competent for the legs
lature to authorize the appointment of women to
administer oaths, take the acknowledgment Of
deeds and solemnize marriages. But we do not
concur in the conclusion that ii is not equally CON-
petent for the legislature to authorize the appoint
ment of women to act as Justices Of the Peace.
The legislature is authorized to enact any law
which ii deems reasonable and proper, provided 1t
is not rcpugnant to the constitution of this State,
nor to that Of the United States. A law authoriz-
ing the appointment of women to act as Justices
of the Peace, would lot, in our judgment be re-
pugnant to either We fail to find single word
or sentence or clause Of a sentence which, fairly
construed, either expressly or implicitly tolb.d5
the passage OF such law. SO far as the office OF
Justice Of the Peace is concerned, theie is not
so much a masculine pronoant to hangar ohjec
ton upon.
1t IS true that the RICH, 10 vote is limited to
males. But the right TO vote and the night to hold
office distinct matters. Either may exis. With
| out the other
| And ii may be true that the trainers Of the con-
sitution did not contemplate-did not affirmative
| ly intend--that women should hold Office. But it
| by no means follows that they intended the con-
trny. The truth probably is that they had no in
tenton way or the other; that the matter was
not even thought of. And 1t will be noticed that
the unconstitutionality of such law is made to
rest, not ON any expressed intention Of the franz
ers Of the constitution that women should not hold
office, but upon presumed absence of intention
they they should
This seems to us a dangerous doctrine. 1t is
nothing less than holding that the legislature can
not enact law unless it appears aiirnatively that
the trainers Of the constitution intended that such
a law should be enacted. We cannot concur in
such doctrine. 1t would pat stop to all pro-
gres. 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
aairmatively that the trainers of the constitution
intended that such law should not be passed.