Page:History of Woman Suffrage Volume 2.djvu/492

admit of women to be executrixes and administratrixes? And thereby they have the rule or ordering of great estates, and many times they are guardianesses in chivalry, and have hereby also the government of many great heirs in the kingdom and of their own estates.

So by these cases it appeareth that the common law of this kingdom submitted many things to their government; yet the statute of justices of the peace is like to Jethro's counsel to Moses, for there they speak of men to be justices, and thereby seemeth to exclude women; but our statute of sewers is, "Commission of sewers shall be granted by the King to such person and persons as the lords should appoint." So the word persons stands indifferently for either sex. I am of the opinion, for the authorities, reasons and causes aforesaid, that this honorable countess being put into the commission of the sewers, the same is warrantable by the law; and the ordinances and decrees made by her and the other commissions of sewers are not to be impeached for that cause of her sex.

And it is said by a recent writer:

Even at present in England the idea of women holding official station is not so strange as in the United States. The Countess of Pembroke had the office of sheriff of Westmoreland and exercised it in person. At the assizes she sat with the judges on the bench. In a reported case it is stated by counsel and assented to by the court that a woman is capable of serving in almost all the offices of the kingdom.

As to the right of women to vote by the common law of England, the authorities are clear. In the English Law Magazine for 1868-'69, vol. 26, page 120, will be found reported the case of the application of Jane Allen, who claimed to be entered upon the list of voters of the Parish of St. Giles, under the reform act of 1867, which act provides as follows: Every man shall, in and after the year 1868, be entitled to be registered as a voter, and when registered to vote for a member or members to serve in Parliament, who is qualified as follows: 1st. Is of full age and not subject to any legal incapacity, etc., etc. It was decided by the court that the claimant had the right to be registered and to vote; that by the English law, the term man, as used in that statute, included woman. In that case the common law of England upon that question was fully and ably reviewed, and we may be excused for quoting at some length:

And as to what has been said of there being no such adjudged cases, I must say that it is perfectly clear that not perhaps in either of three cases reported by Mr. Shaen, but in those of Catharine vs. Surry, Coates vs. Lyle, and Holt vs. Lyle, three cases of somewhat greater antiquity, the right of women freeholders was allowed by the courts. These three cases were decided by the judges in the reign of James I. (A. D. 1612). Although no printed report of them exists, I find that in the case of Olive vs. Ingraham, they were repeatedly cited by the lord Chief Justice of the King's Bench in the course of four great arguments in that case, the case being reargued three times (7 Mod., 264), and the greatest respect was manifested by the whole court for those precedents. Their importance is all the greater when we consider what the matter was upon which King James' judges sitting in Westminster Hall had to decide. It was not simply the case of a mere occupier, inhabitant, or scot or lot voter. Therefore the question did not turn upon the purport of a special custom, or a charter, or a local act of Parliament, or even of the common right in this or that borough. But it was that very matter and question which has been mooted in the dictum of Lord Coke, the freeholder's franchise in the shire, and upon that the decision in each case expressly was, that a feme sole shall vote if she hath a freehold, and that if she be not a feme sole, but a feme covert having freehold, then her husband during her coverture shall vote in her right. These, then, are so many express decisions which at once displace Lord Coke's unsupported assertion and declare the law so as to constrain my judgment. It is sometimes said, when reference is made to precedents of this kind, that they have never been approved by the bar. But that can not be said of these. Hakewell, the contemporary of Lord Coke and one of the greatest of all parlia-