mentary, or essay, but a single dictum exists to the contrary. And if I thus establish that the construction of the XIV. Amendment, for which I this day contend, is in favor of a common law right, is in accordance with its scope and spirit, every lawyer understands by how much I strengthen my position. And for the satisfaction of the court I am glad to state that this part of my argument will consist entirely of extracts from recent English text-writers, and a reference to two or three old cases. I read first from Mr. Anstey's Notes upon the Reform Act of Great Britain of 1867. The writer in his comment upon the words of the act, "every man of full age," etc., commences by showing that the term man in the act, as in Magna Charta and other statutes, is epicene—means both men and women. And he then goes on to show that to construe this phrase, "every man," to include every woman also, is in strict accordance with the common law from old times to the present. I read from p. 87:
That the rights in question (the right of suffrage) are not incompatible with the legal status of the woman, the following authorities seem to show. On the other hand, there can not be adduced any one authority against the position that the franchise of the shire and the borough were enjoyed by the female "resiants" equally with those of the male sex in times when "resiants," as such, and not as "tenants," had the franchise. The statutes by which the parliamentary franchise in counties was taken away from the "resiants" and vested in the "tenants," and at length restricted to those of freehold tenure (8 Hen., 6, c. 7; 18 Geo., 2, c. 18; 31 Geo., 2 c. 14), did not in any manner create or recognize any such distinction as that of the male and the female freeholders. Those acts had relation to tenure, not to sex. For the same reason, in all those boroughs where the "common right" prevailed, the suffrage would naturally be exercisable by the female no less than by the male "inhabitants" or "residants." It is believed that in not one of the boroughs where the suffrage was said to be regulated by "charter," or by "custom," or by "prescription" or even where it was regulated by a local act of Parliament, there can be found one instance of any provision or usage whatsoever whereby any voter was excluded from the enjoyment of the suffrage by reason of sex. That a woman may be a householder, or freeholder, or burgage tenant, parishioner, is plain enough. That she may answer the description of "a person paying scot and lot" within the "city of London," has been solemnly decided by the Court of King's Bench (Olive vs. Ingram, 7 Mod. 264, 267, 270, 271,) and that determination was expressly grounded by their Lordships "singly upon the foot of the common law, without regard to the usages of the parishes in London," which usage, nevertheless, had been also shown to be in favor of the same construction. In all cases, whether of statutory, of customary, or of common law qualification for the suffrage, the general rule is that which was laid down by the Court of King's Bench with respect to the choice of parochial officers under the first "Act for the Relief of the Poor," which directed them to be made from among the "substantial householders" of the place. The court held (Rex. vs. Stubbs, 2 T. R., 395)—overruling a dictum in Viner's Abridgment to the contrary—that a woman, being a "substantial householder," was properly chosen under that act to the office of overseer of the poor, notwithstanding the objections raised at the bar that it was a burthensome office and one of which, being once appointed to it, she would be called upon to perform duties some of which were above the bodily and mental powers, and others were inconsistent with the morality, or, at least, the decency of that sex.—(Id. 400.)
And so again on pages 90 and 91:
That there are some offices as to which it is the practice, by the "custom of England," to exclude them, is undoubtedly the fact. But it has been well said, as to these, that "there is a difference between being exempted and being incapacitated," and that "an excuse from acting, etc., is different from an incapacity of doing so. For it must not be forgotten, that it is upon the footing, not of disability, but of exemption, that those exclusions are vested, by the authorities which declare them." Thus, Whitelocke: "By the custom
