By the constitution, the whole political power of the State is vested in its male citizens. Whenever in any of its provisions, reference is made to sex, it is to duties to be done and performed by male members of the community. Nothing in the language of the constitution or in the debates of the convention by which it was formed, indicates any purpose whatever of any surrender of political power by those who had previously enjoyed it or a 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 appropriate language. But such intention is nowhere disclosed. Having regard then, to the rules of the common law as to the rights of women, married and unmarried, as the—existing to the history of the pas—to the universal and unbroken practical construction given to the constitution of this State and to that of the Commonwealth of Massachusetts upon which that of this State was modeled, we are led to the inevitable conclusion that it was never in the contemplation or intention of those framing our constitution that the offices thereby created should be filled by those who could take no part in its original formation, and to whom no political power was intrusted for the organization of the government then about to be established under its provisions, or for its continued existence and preservation when established.
The same process of reasoning which would sanction the conferring judicial power on women under the constitution would authorize the giving them executive power by making them sheriffs 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 legislature may create new ministerial offices not enumerated therein, and if it 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 married or unmarried women to administer oaths, take acknowledgment of deeds or solemnize marriages, so that the same shall be legal and valid.
| John Appleton, | John A. Peters, | |
| Jonas Cutting, | Wm. Wirt Virgin, | |
| Charles Danforth. | ||
The dissenting opinion was as follows:
We, the undersigned, Justices of the Supreme Judicial Court, concur in so much of the foregoing opinion as holds that it is competent for the legislature 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 it is not equally competent for the legislature to authorize the appointment of women to act as justices of the peace. 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. A law authorizing the appointment of women to act as justices of the peace would not, in our judgment, be repugnant to either. We fail to find a single word, or sentence, or clause of a sentence, which, fairly construed, either expressly or impliedly forbids the passage of such a law. So far as the office of justice of the peace is concerned, there is not so much as a masculine pronoun to hang an objection upon.
It 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 framers 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. The truth probably is that they had no intention one way or the other; that the matter was not even thought of. And it will be noticed that the unconstitutionality of such a law is made to rest, not on any expressed intention of the framers of the constitution that women should not hold office, but upon a presumed absence of intention that they should.