Exch. Cham. THE QUEEN V. CROSTH WAITE. the Reform Acts of England, Ireland, and Scotland, which ex- T. T. 1864. pressly confine the Parliamentary franchise to men. It was further adopted in the Acts regulating the municipal government of towns in Ireland, preceding that now under our consideration; and it would be a departure from that policy, not required by the language of that Act, if we were now to hold that women were entitled to vote at elections for Town Commissioners under the Act now in question. That Act, by the clauses of the English Town Commissioners Clauses Act, which are incorporated with it, provides that those elections shall take place at public meetings. One of those clauses thus incorporated with it, section 28, contemplates the possibility of riot, or obstruction of the poll, occurring at that meeting and I think that the appearance and intervention of females at such meetings, held under such circumstances, and for such purposes, and liable to such interruptions, would be inconsistent with the policy of the law, and a violation of those decent restraints which the custom and opinion of society impose upon their sex. I think this a serious political and social innovation, and that before sanctioning it by our decision, we ought to have some stronger reason than that which is afforded by a glossary clause in an Act of Parliament. FITZGERALD, B. The question in this case is in effect whether women are entitled to vote at the election of Town Commissioners under the statute 17 & 18 Vic., c. 103. The qualification of electors is prescribed by the 22nd section of the Act. That section contains no words expressly requiring the electors to be males; women are capable of holding and possessing the property required by the statute; and though the section twice applies the word "him" to every person so qualified, yet there is a provision in the first section of the Act that, "words "importing the masculine gender, except only the word 'male,' shall, "in the construction of the Act, unless there be something in the "subject or context repugnant to such construction, include females." The word "him," in the 22nd section, may, therefore, unless there be 60 L VOL. 17 Exch. Cham. T. T. 1864. something in the subject (that is to say every elector of Town Commissioners) or the context, repugnant to such construction, be read as if it were "him" or "her." THE QUEEN v. CROSTH- The contention of the defendant is, that the section ought to be so read; and it plainly lies on the relator to satisfy the Court that there is some repugnancy in the subject or in the context of the Act to such construction. I am not, however, prepared to give to the interpretation clause of this, or any other Act of Parliament, the very stringent effect which seemed to be asserted in the argument on the part of the defendant. On the one hand, I take it to be clear that, without the aid of any interpretation clause, words of an Act of Parliament importing the masculine gender may be construed to include females; but in such case the onus of showing a sufficient reason for so doing will lie in the party asserting that it should be done. On the other hand, the interpretation clause shifts the onus, and throws on the party asserting that the words should not be so construed the necessity of showing a sufficient reason why they should not be so construed. Now it is, I apprehend, a settled rule of construction that every statute ought to be construed according to the reason and rules of the Common Law. Each statute assumes the known existence of the antecedent law, and save so far as it expressly, or by necessary implication, alters that law, must be interpreted according to its reason and rules. No one can, I think, doubt that, though idiots and lunatics are not expressly excluded from the persons qualified as electors according to the 22nd section of the Act; and though they are capable of being owners of property giving the qualification required by it, they are yet excluded by the reasons and rules of the Common Law from the purview of the section, as being considered destitute of the discretion necessary to the performance of the duties of electors. To ascertain whether there be or be not anything repugnant to the subject in construing the word "him," as if it were "him or her," we must inquire what the antecedent law is as to the subject-viz., the electors for a public office of trust. One main contention on the part of the relator has been that, by the reason and rules of the Common Law, repeatedly recognised in statutes, women are not considered persons competent or proper to discharge the duty of electing to offices of public trust and government; and that though by the aid of the interpretation clause and the Act now before us, words sufficient to include them as electors are used, the operation of those words is limited by the antecedent law. That the law in recognising the distinction of the sexes assumes a greater worthiness in the male than the female, is manifest from the law of descent; that it has regard to the infirmity of bodily strength and ability in the female, by rendering her incompetent for some offices and privileges, or incapacitating her from the discharge of the duties thereto belonging, cannot be questioned. Again, that she is subject to incapacities, from a presumed inferiority of discretion and judgment, seems also certain: a woman was not admitted as a witness in a case of villenage against a man; and the reason assigned is, because of "her frailty." Fitz H. Ab., Villenage, pl. 37. In Jenkins's Centuries, pp. 236, 237, at the end of the report of the case of Bohun v. Duke of Buckingham, in which there was a question as to the holding the office of High Constable of England, by a woman on whom it had descended, it is said by that very learned Judge :-"An office of inheritance, to which 66 a judicature is annexed, descends to two daughters as in this case "of the office of constable; after it has so descended it may be "exercised by deputy; but such an office cannot be originally granted "to any woman," for “fæminæ non sunt capaces de publicis officiis ;” stating it as a maxim. And in most of the few cases of claims of women to exercise offices, this presumed inferiority of discretion and judgment will be found to have been an element of consideration. And, finally, there are incapacities and privileges of women, founded on reasons of decency and decorum, as in the case mentioned by Litt., sec. 87. The law then regards the female as less worthy than the male; and she is subject to incapacities founded on inferiority of bodily ability, and on a presumed inferiority of discretion and judgment, and also on. reasons of decency, And it seems certain that, for some or for all these reasons, women are excluded from certain offices, and from the exercise of certain rights, of which T. T. 1864. THE QUEEN บ. CROSTH WAITE. THE QUEEN v. T. T. 1864. men are capable. It is very true that they have been held capable Exch. Cham. of certain offices to which some of these reasons would apply; but, in most all these cases, I think it will be found that their exclusion would have led to interference with some other fundamental law; as, for example, the law. of descent; and the question would be, which of two rules of law was to give way; and which, of course, must be determined by the yielding of one or the other. CROSTH WAITE. I come now to the particular privilege of taking part in the election of officers of public trust and government. I myself entertain no doubt that the weight of written authority is in favour of the position that women were incapable of voting for Members of Parliament and Coroners. This, however, has been questioned. But what I regard as infinitely more satisfactory and decisive to my mind than any dictum is, that, from the earliest records of the law, no case is to be found in which a woman's right to vote at an election to any office of public trust has been asserted and admitted in our Courts. The only case cited, that of Olive v. Ingram (a), was expressly decided on the ground that the office did not concern the public, or the care and inspection of morals. I can conceive no more satisfactory evidence of the law on any subject of this kind, in which the occasions of raising the question have been innumerable. Even such cases as The Queen v. Stubbs are quite inconsistent with the notion of a general capacity in women for public offices, but seem very clearly to assume the contrary. The Court truly laid down that the incapacity was not absolute; and whether (if the office in that case was public) the distinction that the appointment to it was subject to the approval of the parties be or be not satisfactory, it shows the recognition of the general rule. In the case of The Commissioners of Sewers it may be observed, that an absolute unlimited discretion was given to the Crown. The existence of this state of things gives to such Acts as the Reform Act and the Municipal Corporation Act, which expressly excludes women as electors, an entirely different effect from what they might otherwise have, as exceptional legislation; because it shows that the qualification of "male" is introduced not (a) 2 Str. 1114. by way of exception, but by way of recognition of the existing state T. T. 1864. Exch. Cham. of things,—just as, in the Act before us, the introduction of the qualification of "full age" is only a recognition of the incompetency of infants. With respect to the office itself, of Town Commissioner, I can only say that, having read the 17 & 18 Vic., c. 103, and the Acts incorporated with it, and having regard to the duties imposed on, and the powers of government thereby given to, Town Commissioners, if wome omen could be admitted to such an office consistently with the reason and rules of the Common Law, I can see no office of government from which they could be reasonably excluded. Even if the Act did not show, as I think it does, an intention to exclude them, I should (I say it with deference) feel little difficulty in holding that they were excluded by the reason and rules of the Common Law. But when I find it clear from the Act itself, that one class of the persons eligible to the office must be males-that the person proposing the officer to be elected, and the person seconding such proposition, must be males,-I feel that the Legislature must have so far trusted to the discretion of the Judges who might interpret the Act, as to be sure that they would read the description of the other class or classes eligible, as excluding females. If it should be said that, annexing the qualification of "male" to the one class is itself an argument of intention that it should not be annexed to the other-I answer that it is no more so than the annexing of the qualification of "full age" to the one class is an argument that the Legislature did not intend it to be annexed to the other; and yet the same 25th section does annex it to one and not to the other. I agree that the mere fact that Town Commissioners cannot be females, will not necessarily establish that females cannot have a right to vote at the election of such officers. But the establishing of that matter is not unimportant; because, if females were eligible to the office of Town Commissioners, I think the difficulty of contending that they were not capable of voting at the election of those officers would be very greatly increased; and because the establishing it makes the 25th section of the Act an instance of general' THE QUEEN บ. CROSTH WAITE. |