SUPREME COURT OF THE TERRITORY OF WASHINGTON
February 3, 1887, Decided
ERROR to the District Court holding terms at Tacoma.
Second District.
On the seventeenth day of May, 1886, one Jacob C.
Livensparger made complaint before a justice of peace for
Pierce County, that the plaintiff in error, Jeff. J.
Harland, and two others, "did unlawfully and feloniously
carry on, open, and conduct a gambling and swindling game
called bunko, or twenty-one, for money, and did then and
there unlawfully and feloniously and fraudulently obtain of
the said J. C. Livensparger by such gambling and swindling
game called bunko, or twenty-one, the sum of $ 610,
contrary," etc.
Harland being a resident of Oregon, upon such complaint the
governor of the territory made requisition upon the governor
of Oregon to surrender said Harland for trial, and the
governor of Oregon upon such demand surrendered the said
Harland, the warrant of arrest reciting the offense charged
in the language of the above complaint, in ipsissimis
verbis.
After such arrest plaintiff in error was indicted under
section 1253 of the Code with the crime "of unlawfully and
feloniously carrying on a swindling game called twenty-one,
or top-and-bottom dice," etc. The indictment did not include
"bunko, " as charged in the original complaint upon which
the extradition warrant was issued; and the plaintiff in
error claimed that, having been extradited to be tried for a
crime charged in specific language, he could not be tried
for a different one, and that the jurisdiction of the Court
to try him was limited to the specific charge set forth in
the original complaint.
When the grand jury was impaneled, the plaintiff in error
challenged five of its members for not being householders,
it appearing that each of the jurors so challenged was a
married woman living with her husband in the same house as
members of the same family, which challenges were overruled
by the court.
Plaintiff in error further objected that the indictment was
insufficient and uncertain, and failed to charge him with
any crime.
All of the above objections were urged in a plea to the
jurisdiction and demurrer to the indictment, and afterwards
renewed by motion in arrest of judgment, all of which were
severally overruled, and appeal taken to this court.
Court: Judgment reversed, and cause remanded.
Syllabus: 1. QUALIFICATION OF JURORS--WOMEN.--Women are not
competent to serve as jurors, grand or petit, under section
2078 of the Code, providing that "all qualified electors
shall be competent to serve as petit jurors, and all
qualified electors and householders shall be competent to
serve as grand jurors," notwithstanding an act passed
subsequently to the enactment of the Code making women
qualified electors. GREENE, C. J., dissenting.
2. CONSTITUTIONAL LAW--EXPRESSING OBJECT IN TITLE OF
STATUTE.--The designation of an act in its title as an act
to amend a specified section of the Code, without any other
or further expression of the object of the act, is not a
sufficient compliance with the requirement of the Organic
Act of Washington Territory (U. S. R. S., sec. 1924), which
prescribes that "every law shall embrace but one object, and
that shall be expressed in the title."
3. CONSTITUTIONAL LAW--ELECTIONS--WOMAN SUFFRAGE.--Act of
legislature approved November 23, 1883, entitled "An act to
amend section 3050, chapter 238, of the Code of Washington
Territory" (Sess. Laws, p. 39), is unconstitutional and
void, because its object is not expressed in its title. The
same is true of the act approved January 29, 1886 (Sess.
Laws, 1885-86, p. 113), and of an act approved February 3,
1886 (Sess. Laws, 1885-86, p. 128), except so far as it
purports to amend sections 3079 and 3084 of the Code.
GREENE, C. J., dissenting.
4. EXTRADITION--CHARGE--INDICTMENT.--In the case of
interstate extradiction, a prisoner extradited upon a
certain charge may be tried for an offense slightly
different from the charge, if nothing appears to suggest
fraud in procuring the extradition. Per LANGFORD, J.
5. INDICTMENT--DESCRIPTION OF OFFENSE--GAMING.--An
indictment under section 1253 of the Code charging the
defendant with the crime "of unlawfully and feloniously
carrying on a swindling game called twenty-one, or
top-and-bottom dice," without any other or further
description of these games than by such names, is too
indefinite and insufficient. Per LANGFORD, J.
6. CRIMINAL PRACTICE--JUDGMENT--GAMING.--A verdict of guilty
as charged, upon an indictment for carrying on the swindling
game of twenty-one, or top-and-bottom dice, is insufficient
to warrant a judgment of conviction for carrying on the
swindling game of top-and-bottom dice, and omitting any
reference to "twenty-one."
Counsel: Mr. Elwood Evans, for Plaintiff in Error.
To qualify a person to serve as a grand juror, he must be
a qualified elector and a householder. (Code, sec. 2078.)
This provision has not been expressly repealed by any
subsequent statutes purporting to confer the right of
suffrage upon women. Repeal or modification of a statute by
mere implication is not favored. (Sedgwick's Statutory and
Constitutional Law, 125-127; Potter's Dwarris on Statutes,
156; Minor v. Happerset, 21 Wall. 176; Bowen v. Lease, 5
Hill, 225; People ex rel. Freeman v. Barr, 44 Ill. 198;
McCool v. Smith, 1 Black, 459; Henderson's Tobacco, 11 Wall.
652.) The legislature did not mean to legislate as to
juries, while undertaking to amend election laws. (
Robinson's Case, 131 Mass. 377-381; Greene, C. J., in
Jackson v. Wynne, in Port Townsend District Court,
September, 1884.) Service on juries is in no sense a right
or privilege, but a burden on citizenship. A burden cannot
be imposed except by positive enactment. (Thompson and
Merriam on Juries, sec. 39.) A radical revolution of such a
system as the grand jury system, or the relations of husband
and wife in family discipline or government, can only be
effected by express statutory enactment. (Thompson and
Merriam on Juries, sec. 480; Robinson's Case, supra;
Bradwell v. Illinois, 16 Wall. 130.) A householder is the
head of a family occupying a house, or a person providing
for a household or the head, master, or person, who has
charge of a family. (1 Washburn on Real Property, 342 et
seq.; Bourne v. Witt, 19 Wend. 475; Woodward v. Murray, 18
Johns. 400; Sess. Laws 1885-86, pp. 96, 97; Code, secs. 342,
347.) The husband is the natural head of the family. (Bishop
on Law of Married Women, sec. 45-49.) The wife, during life
of husband, is not a householder. (1 Washburn on Real
Property, 342 et seq.; Thompson on Homesteads and
Exemptions, sec. 65; Smyth on Homestead and Exemptions, sec.
532.) Such is the meaning of the word "householder" in
exemption statutes, and the construction of such terms in
such statutes has been adopted in construing jury laws.
(Thompson and Merriam on Juries, sec. 174.) By the common
law, husband and wife are but one person, and that one is
the husband. During coverture the wife's legal existence and
authority are suspended except as modified by statute. (2
Kent's Com. 120.) Chapter 183 of the Code contains all
statutory changes from the common law made relative to the
rights of husband and wife, and the title of this act, which
is bound to express its objects, states its object to be the
regulation of "the property rights of married persons." By
sections 2409 and 2410 of Code, the husband is made manager
of community property. By section 2415, he alone is
permitted to make selection of homestead. By section 2399,
the mother does not come into control of the children until
the death of the husband or father. The above-cited
provisions of the Code were intended to change the common
law regulating the institution and government of the family.
The specific designation who shall thus exercise these acts
of authority or control strongly demonstrates that
innovation and implication without express words of
intendment cannot revolutionize these laws of marriage and
household divinely instituted at the dawn of creation, as
every system of religion teaches.
The act of the legislature (Sess. Laws 1883, p. 39), and
acts amendatory thereof, purporting to confer the elective
franchise upon women, are unconstitutional and void. Counsel
argued the proposition to the Court, but cited no authority.
The court, by the extradition proceedings, acquired no
jurisdiction to try the plaintiff in error for any offense
except that mentioned in the original complaint upon which
he was extradited. (Spear's Law of Extradition, p. 87, sec.
7.) This is as applied to international extradition, and the
rules governing state extradition are analogous to the
former. (Id., sec. 4, p. 550.) If one crime is alleged in
the original complaint, the extradition proceedings are a
nullity. (Code, sec. 1253; State v. Gitt Lee, 6 Or. 426; In
re Lee Tong, 18 Fed. Rep. 253.)
The indictment is insufficient. It fails to allege the
manner of conducting the game, so as to show it was a
swindling game, or a gross and systematic imposition and
swindle upon the loser.
Mr. Fremont Campbell, Prosecuting Attorney, for the
Territory.
All married women, otherwise qualified, are competent
grand jurors. ( Rosencrantz v. Territory, 2 Wash. 267.) The
court properly overruled the plea to the jurisdiction of the
grand jury. (Code, secs. 1283, 985, 951.). The court
properly overruled the demurrer to the indictment. (Code,
secs. 1253, 1015.) The proviso of section 1253 of Code makes
ample provision for the punishment of all kinds of swindling
games, and it would be impossible for a statute to designate
by name therein every crime that might be committed.
Judge(s) Mr. Justice TURNER delivered the opinion of the
court. LANGFORD, J. concurring. GREENE, C. J. dissenting.
Opinion By: TURNER
Mr. Justice TURNER delivered the opinion of the court.
A question arises in this case which was before the court
at its July term, 1884, namely, the question whether married
women living with their husbands are competent grand jurors
in this territory. The question was then decided in the
affirmative, but by a divided court. ( Rosencrantz v.
Territory, 2 Wash. Terr. 267, 5 P. 305.) Since that decision
there has been a change in the membership of the court, and
a majority of the quorum sitting in this case finds itself
unable to agree with the views expressed or the conclusions
announced in the first decision.
Two members of the court, however, yet adhere to that
decision. This circumstance gives ground for hesitation in
overruling the same; but there are several reasons which the
present majority think justify them in giving effect to
their views, and which will be likely to prevent
embarrassment therefrom in the future administration of the
law.
1. We think the first opinion reached did not meet with
the concurrence of the bar of the territory. It established
no rule of property, and its principles have not been long
applied.
2. A new question not argued or passed on in the first
case arises in this case, and is decisive of it.
3. Both of the judges who adhere to the first opinion,
after a service of long duration, in which they have
honorably illumined our judicial history by great learning
and ability, and by the purity of their lives and the
uprightness of their official conduct, are about to retire
from office by reason of the expiration of their terms. It
is proper for me to add here that the membership of the
court may be still further changed in the near future, and
speaking of myself alone, without such great detriment to
the public interest.
I pass, then, without further preliminary remarks, to a
consideration of the reasons which in my judgment properly
govern the question.
I shall not reiterate the arguments embraced in the
dissenting opinion read by me in the first case. Although
presented most imperfectly by reason of the haste in which
that opinion was prepared, the views there expressed yet
seem conclusive to my mind against the opinion then reached
by the majority of the court. There are, however, some
additional thoughts pertinent to the reasoning of the
majority in the first case to which I will advert before
going on with the new question involved.
Section 3078 of the Code provides that "all qualified
electors shall be competent to serve as petit jurors, and
all qualified electors and householders shall be competent
to serve as grand jurors."
At the session of 1883-84, the legislature passed an act
entitled "An act to amend section 3050, chapter 238, of the
Code of Washington Territory," which act, if valid, makes
females of like age with males qualified electors. The claim
is that females are competent jurors by reason of these two
statutes.
From the earliest period in the history of the common law,
jurors, grand and petit, have been composed of men. The
language of the venire facias was that they be liber et
legalis homo, and according to Blackstone, "under the word
homo, though a name common to both sexes, the female,
however, is excluded, propter defectum sexus." When
legislators have prescribed the qualifications of jurors,
the requirement that they should be males has always been
implied. Section 2058 of the Code carries with it that
implication, and undoubtedly that which is implied would
have been clearly expressed if it had ever occurred to the
members that a subsequent legislature would confer the
elective franchise on females. Whatever may be thought of
the propriety of making females voters, there is but one
opinion among the great mass of the people, male and female,
concerning the imposition on the latter of jury duty, and
that opinion is firmly and unalterably against such
imposition. The legislature which passed the suffrage act,
coming from the people, and representing their sentiments,
cannot be supposed to have intended the accomplishment of
that which the people so universally disapprove, and it is
fair to suppose that they would have expressly limited the
effect of their act if they had foreseen the lengths to
which it would be attempted to carry it. However this may
be, the later act dealt entirely with the elective
franchise, and as I have heretofore shown, it could not
lawfully have had in contemplation any other object.
Neither of the legislatures, then, responsible for the
respective acts, the joint operation of which is held to
make females jurors, having contemplated such a thing, it is
manifest that that result can be arrived at only by a
process of judicial construction which servilely follows the
letter of the law and sacrifices the spirit. Thus that is
made to be law which was never in the mind of any except the
most visionary enthusiast. Well may it be exclaimed in the
face of such judicial exposition, "The letter killeth, but
the spirit giveth life."
The body of our law may be likened to an ocean, both
because of its extent and its characteristics. Every atom is
in juxtaposition with its neighbor, the whole pliable and
yielding, and yet forceful, and notwithstanding its immense
force, subject to influence and modification by the
slightest addition. Every addition which may be made to the
mass forces back the several parts with which it comes in
contact, as far as it may and ought, while the whole
confines the part to its just and proper limits. No law can
be considered alone and by itself. Every law carries with it
impliedly, in spite of its terms, limitations and extensions
which the great mass of the law forces on it and into it.
These limitations are infinite, and as extensive as the law
itself. An illustration in point is the rule of the common
law that a child under seven years of age is incapable of
any crime. Mr. Bishop, the most philosophical of all our
law-writers, thus speaks of the limitation thus mentioned:
"Therefore, when a statute creates a crime, its terms,
however general, are no more applied to such a child than
are similar terms of the common law. And this sort of
interpretation extends through all our laws, the written and
the unwritten alike. The books contain cases in which
counsel and the courts forget it; but none in which judicial
persons, with their eyes open and duly warned, deliberately
reject it. We sometimes read in judicial opinions that those
pronouncing them deem it due to the legislature to follow
its directions, and not to make exceptions where it has made
none; but this sort of language should not be taken as a
denial of what every person familiar with our reports knows;
namely, that no judge ever deliberately undertook to
administer a statute without admitting those exceptions to
it which are recognized in the other parts of the legal
system. Nor did any legislative body ever proceed on the
idea that its enactments are to be put in force by courts so
ignorant of legal affairs as to deem them meant for
independent rules to be limited by no others, and to
override all laws antagonistic to their general words. For
legislatures and courts alike recognize the fact, which
common sense teaches to every thoughtful person, that it is
neither possible nor desirable in any system of laws to
attach to each particular law every qualification embraced
in every other. So voluminous would the laws thus become,
and so often would conflicts be found in them, in spite of
every legislative caution, and so difficult would it be to
explore their immense masses, that their usefulness would be
indefinitely diminished." (Bishop on Statutory Crimes, sec.
117, 117 a.) In view of this forcible and conclusive
exposition of the relations to each other of laws, old and
new, it needs only to remember the conditions surrounding
the subject at the time section 2078 was enacted, to gain
the assent of the mind to the proposition that the
implication must have attached to that law that jurors, both
grand and petit, should be qualified electors, who are males
.
Ought this limitation to be destroyed by implication
derived from a legislative act which confessedly deals with
another subject? I think not. The change is so marked, and
the labor and responsibility which it imposes so onerous and
burdensome, and so utterly unsuited to the physical
constitution of females, that we ought not to depart from
the old order without the most indubitable evidence that the
legislature so intended. We are not without high authority
on this precise question. The Supreme Court of
Massachusetts, in a case where the statute under which a
female claimed the right to assume the office of an attorney
at law was broad enough to sustain her claim, denied her the
right on the precise ground here put. ( Robinson's Case, 131
Mass. 376.) In discussing that case the court says: "The
intention of the legislature in enacting a particular
statute is not to be ascertained by interpreting the statute
itself alone, and according to the mere literal meaning of
its words. Every statute must be construed in connection
with the whole system of which it forms a part, and in the
light of the common law and of the previous statutes upon
the same subject; and the legislature is not to be lightly
presumed to have intended to reverse the policy of its
predecessors, or to introduce a fundamental change in
long-established principles of law."
In a case arising in Illinois, the Supreme Court of that
state made a similar decision upon similar reasoning, and
the action of that court was affirmed, on appeal, by the
Supreme Court of the United States. ( Bradwell v. Illinois,
83 U.S. 130, 16 Wall. 130, 21 L. Ed. 442.) The language of
Judge Bradley in the latter case is worth quoting at length:
"The claim that, under the fourteenth amendment of the
constitution, which declares that no state shall make or
enforce any law which shall abridge the privileges and
immunities of citizens of the United States, the statute law
of Illinois, or the common law prevailing in that state, can
no longer be set up as a barrier against the right of
females to pursue any lawful employment for a livelihood
(the practice of law included), assumes that it is one of
the privileges and immunities of women as citizens to engage
in any and every profession, occupation, or employment in
civil life. It certainly cannot be affirmed as an historical
fact that this has ever been established as one of the
fundamental privileges and immunities of the sex. On the
contrary, the civil law, as well as nature herself, has
always recognized a wide difference in the respective
spheres and destinies of man and woman. Man is, or should
be, woman's protector and defender. The natural and proper
timidity and delicacy which belong to the female sex
evidently unfit it for many of the occupations of civil
life. The constitution of the family organization, which is
found in the divine ordinance, as well as in the nature of
things, indicates the domestic sphere as that which properly
belongs to the domain and functions of womanhood. The
harmony, not to say identity, of interests and views which
belong or should belong to the family institutions is
repugnant to the idea of a woman adopting a distinct and
independent career from that of her husband."
Thus we see that the fourteenth amendment, which certainly
spreads its protecting shield over females because females
are citizens, is yet not strong enough to overcome the
implied limitations of prior law and custom with which it
was brought into association when it was adopted.
In another case well known to the profession the Supreme
Court of the United States, without any express law or rule
of court to prevent, refused to admit a female to practice
as an attorney at its bar. So, also, upon a similar
application did the Supreme Court of Wisconsin. I regret
that I am unable to refer to the volume containing the
admirable opinion of Chief Justice Ryan in the Wisconsin
case.
One other reference will suffice on this branch of the
case. The chief justice of this court, in a case in his
district in which it was attempted to take advantage of a
legislative blunder, whereby in attempting to add a clause
to a statute all except the added clause was repealed, said:
"There can be no reasonable question, then, it seems to me,
as to the intent of the legislature. Anybody of any sense
who is not a lawyer or a judge can tell at a glance what
that intent is. When a man becomes a lawyer he does not have
to lose his wits, nor does a judge have to be a fool. I
desire never to be one of those judges who when they
discover in the legislative proceedings a clerical mistake,
inadvertence, or blunder will push it to extremity, and give
to an unhappy effort of expression a sense and power
palpably never intended, and permit the awkwardness of a
phrase to work ruin and desolation to the poor." (Greene, C.
J., in Jackson v. Winn, Port Townsend Term.) This is most
excellent language, and the principles which it announces
are extremely pertinent to the question presented in this
case. They are decisive of it.
I pass now to the question not considered in Rosencrantz
v. Territory, 2 Wash. Terr. 267, 5 P. 305. That question
concerns the validity of the act of the legislature
conferring on females the elective franchise. Of course, if
that act is invalid, the whole superstructure of the
argument by which female jury duty is demonstrated falls to
the ground a broken and shapeless mass. The objectionable
feature of that law is its title, which reads: "An act to
amend section 3050, chapter 238, of the Code of Washington
Territory." The organic act of this territory declares, as
one of the limitations on legislative action, the following:
"To avoid improper influences which may result from
intermixing in the same act such things as have no proper
relation to each other, every law shall embrace but one
object, and that shall be expressed in the title." Is an
amendatory act of our legislature, the object of which is
indicated in the title by a reference only to the section of
the Code intended to be amended, a compliance with this
mandatory direction?
The language of our Organic Act is identical with that
used in the constitution of New Jersey. In each of the
states of Minnesota, Kansas, Kentucky, Nebraska, Alabama,
South Carolina, Tennessee, and Arkansas, the language of the
constitution is: "No law shall embrace more than one
subject, which shall be expressed in its title." In Michigan
the language is the same, except that the word "object" is
used instead of "subject." The language in Wisconsin and New
York is: "No local or private bill which may be passed by
the legislature shall embrace more than one subject, and
that shall be expressed in the title." California, Texas,
Indiana, Oregon, and Iowa have provisions similar to
Kentucky and the other states in that class, with the
addition that "if any subject shall be embraced in an act
which shall not be expressed in the title, such act shall be
void only as to so much thereof as shall not be expressed in
its title."
The following, taken from the language of the courts, will
indicate the purpose for which such constitutional
restrictions were adopted:--
"I would observe that the traditionary history of this
clause is, that it was inserted in the constitution of 1798
at the instance of General James Jackson, and that its
necessity was suggested by the Yazoo act; that memorable
measure of the 17th of January, 1795, as is well known, was
smuggled through the legislature under the caption of an act
'for the payment of the late state troops,' etc." (Lumpkin,
J., in Mayor of Savannah v. State, 4 Ga. 26.)
"The purpose to be effected by this section was to prevent
the incorporation in one bill of provisions of a nature
totally diverse and without necessary connection, with a
view to effect a general combination of the particular
friends of each measure, and thereby secure their enactment,
when some or all of them would likely fail if left to stand
on their own merits; and also the entrapping of legislators
into the support of a bill into which by dexterous
management some insidious provision had been inserted of
which the title gave no intimation." ( Albrecht v. State, 8
Tex. Ct. App. 216.)
"These provisions were adopted to prevent the legislature
from passing what are commonly known as 'omnibus bills.'" (
Fletcher v. Oliver, 25 Ark. 289.)
"The object of this provision was, that neither the
members of the legislature nor the people should be misled
by the title." ( Sun Mutual Insurance Co. v. Mayor etc. of
New York, 8 N.Y. 241.)
"The intent of this provision of the constitution was to
prevent the union in the same act of incongruous matters,
and of objects having no connection or relation. And with
this it was designed to prevent surprise in legislation, by
having matters of one nature embraced in a bill whose title
expressed another." ( State v. County Judge, 2 Iowa 230,
260.)
"The object of this constitutional provision was to
require so clear an expression of the subject of the bill in
the title, that it would at once apprise legislators and
others interested of the precise subject of the proposed
legislation." ( City of Kansas v. Payne, 71 Mo. 159.)
Mr. Cooley, after an examination of all the authorities,
sums up the object and purpose of such provisions thus: "It
may, therefore, be assumed as settled that the purpose of
these provisions was: 1. To prevent hodgepodge or
log-rolling legislation; 2. To prevent surprise or fraud
upon the legislature by means of provisions in bills of
which the titles gave no intimation, and which might
therefore be overlooked and very carelessly and
unintentionally adopted; and 3. To fairly apprise the
people, through such publication of legislative proceedings
as is usually made, of the subjects of legislation that are
being considered, in order that they may have opportunity of
being heard therein by petition or otherwise, if they shall
so desire." (Cooley's Constitutional Limitations, 5th ed.,
173.)
The provision of our Organic Act now under consideration
was adopted by Congress in view of all these provisions of
the state constitutions, with which, and with the
construction of which, senators and members were entirely
familiar; and undoubtedly the purpose to be accomplished was
the same as that accomplished by the state constitutions. An
attempt has been made by some to draw a distinction, because
the act of Congress use the word "object" while most of the
state constitutions use the word "subject." We have seen
that the constitutions of Michigan and New Jersey use the
word "object," and as the former state is the home of Mr.
Cooley, that eminent jurist, in stating the purpose of all
these provisions, would most likely have seen and stated the
distinction, if one in fact exists. Moreover, if any
distinction is to be made, it seems to me that the word
"object," in the connection in which it is used, is
obviously of broader significance than the word "subject."
"Object" may be used as having the sense of effect,--the
thing intended to be accomplished; not the means by which it
is to be accomplished, which is properly the subject. For
instance, the object of the act in question was to confer
the elective franchise on females; its subject was the
subject-matter on which, in accomplishing that object, the
legislative will operated, namely, the section of the Code
defining the qualifications of electors. I do not, however,
lay particular stress on the use of the word "object"
instead of "subject" in our Organic Act. For all practical
purposes, the words are synonymous, as indicated by Mr.
Cooley.
In applying the provisions in state constitutions, the
courts have uniformly held that a very general statement in
the title of the purposes of the law will be sufficient.
Still, it is held that the titles must afford some
indication at least of the object of the laws or the effects
of their provisions. The object or subject which the title
shall express must be set forth with sufficient fullness to
give the members who are to vote on the law, and the people
for whom they vote, some idea of the change which the new
law proposes to make. A very meager expression will be
sufficient, but some expression there must be. The
expression of a purpose to amend a particular section of the
Code gives it to be understood that the law is to be
changed; but what the law is that is to be changed, and in
what respect it is to be changed, is a matter left entirely
in the dark. As every law makes some change in previously
existing law by adding to or subtracting therefrom, the
title "An act" would appear to convey fully as much actual,
present information. It is true that the title under
consideration gives a reference to a source from whence
information may be derived as to the law proposed to be
changed, but it gives no idea whatever indicative of the
change that is to be made. When the seeker after information
gleans all that the reference indicates, he is driven back
to the body of the new law to find what the change is to
be,--a source from which he never would have strayed if the
object of the new law had been accurately expressed in the
title.
But I think a mere reference insufficient, however full
the information to which it may lead. The makers of our
fundamental law were dealing with conditions as they knew
them to exist. In theory, legislators inform themselves
carefully and laboriously of the effect of the laws upon
which they vote. In practice they do not. Laws are often
passed by their titles alone. They are very rarely referred
to in publications, official or otherwise, prior to their
passage, except by their titles. Knowing this fact and
accepting it, and with the design of making the best of it,
our constitution makers gave their mandate, intending to
obviate as far as possible the evils resulting from this lax
way of doing business. If legislators are too busy or too
negligent to have read in full or to read laws upon which
they are to vote, how vain to expect them to read laws which
the laws they are to vote are to affect, with the sole
purpose of determining therefrom whether it is worth while
to read the laws upon which they are to vote.
Congress had no such absurdity in mind, but it intended
that the titles to laws should be in themselves an index to
their purpose, so that on hearing them read or on reading
them the attention of members and of citizens as well would
be excited, and their energies stimulated to an examination
of the proposed laws. It seems to me that it is paltering
with the act of Congress to say that the object of a
particular law is to amend a section of the Code, and that
the title issufficient if it express that much. It would be
equally accurate to say that the object of all penal laws is
to secure the peace and good order of society, and that laws
denouncing robbery, burglary, or larceny would have their
object adequately expressed by the title, "An act to secure
the peace and good order of society." The latter title goes
as far beyond as the former stops short of expressing the
true object. The object of an amendatory act is not to
amend. Such a construction is too narrow; it sticks in the
bark. Legislatures do not amend simply with the object of
amending; the object in every case is to introduce some new
substantive rule of action by the new law, or to abrogate
some such rule in the old law. It is attached to the old law
because its provisions are supposed to be germane to that
law. It might be enacted without reference to it; in which
case its title would be required to give intimation of the
new rule. What magic is there in the name "amendment" which
exempts a law to which it is tacked from the salutary
provisions applicable to every other law?
Fortunately, we are not without authority to guide us on
this point. It has been held in New York several times that
reference in the title of a law to a particular section of
the law to be amended is not a sufficient compliance with
the constitution. The title itself must give information,
and not simply a reference to sources of information. (
People v. Hills, 35 N.Y. 449; People v. Briggs, 50 N.Y. 553;
Tingue v. Village of Port Chester, 101 N.Y. 294, 4 N.E.
625.) The last case was decided January 19, 1886.
The same thing in effect has been held in Minnesota. The
title of an amendatory act not indicating its object further
than was done by the incorporation therein of the title of
the act amended, it was held that provisions in the
amendatory act not fairly within the object described by the
title of the original act were invalid. ( People v. Gadway,
61 Mich. 285, 28 N.W. 101.)
The logic of this case is clearly that a reference to the
title of the old law is sufficient only when that title is
broad enough to cover the things provided for by the new
law. A fortiori, if the old law have no title indicating its
contents, a reference to it would be entirely insufficient.
The same court in another case cites the New York cases,
but guards against their adoption to the full extent,
because not necessary for the decision of the case then
before it. ( State v. Smith, 28 N. W. Rep. 241.)
A decision in Indiana is much to the same effect as that
first quoted from Minnesota. ( State v. Bowers, 14 Ind.
195.)
A Michigan decision appears to be to the same effect. In a
case in that state an amendatory act was sustained, the
title of which referred to particular sections of a certain
act, the title of which was included in the title of the
amendatory act, and a section of the old act not described
in the title of the new act was held properly amended. The
case, which is not very clear, evidently proceeded on the
ground that the reference to the title of the old act was in
itself a sufficient indication of the things which the
amendment might accomplish. The following expression is
peculiarly in point on the matter here involved: "The
practice of amending by reference to sections instead of by
reference to the subject or to the entire statute is one
which creates a great deal of mischief, and in no way
carries out the real design of the constitution, and is of
no practical value in most cases in indicating what changes
are to be made or what precise object is in view." (
Comstock v. Judge of Superior Court, 39 Mich. 195.)
The courts of California appear to maintain the same
doctrine. The following is the latest decision in full of
the Supreme Court of this state: "We are of opinion that the
act of the legislature entitled 'An act to amend sections
4000, 4003, 4004, 4006, 4022, 4023, 4024, 4025, 4026, 4028,
4029, 4046, 4087, 4133, 4104, 4109, 4115, 4116, 4119, 4165,
4192, 4204, 4221, 4256, 4314, 4328, 4329, 4344, and to add
two sections, to be known as sections 4292 and 4348, and
repeal sections 4005, 4105, 4106, 4110, 4111, 4134, 4304,
and to establish a system of county government,' approved
April 22, 1880, is in conflict with the constitution of the
state, and void." ( Leonard v. January, 56 Cal. 1.) As there
is nothing in the opinion to lead to the conclusion that the
different things proposed in the act were incongruous, the
only objection which is indicated is the obscurity of the
title of the act. Such appears from the brief to have been
the objection urged by counsel.
It appears, on the contrary, to have been held in Georgia
that the title of the act is sufficient if it refers to the
section of the statute amended. ( Wheeler v. State, 23 Ga.
9.) Also in Arkansas. ( Norman v. Curry, 27 Ark. 440.) It
appears also that the title of a repealing statute is
sufficient in Louisiana if it designates the section
repealed. ( Smith v. Garrett, 29 La. Ann. 637.) The last
cases are taken from a digest. How accurately the points
decided are digested I have no means of knowing. An Alabama
case found in the same work does not, however, bear high
testimony to its accuracy. Concerning the Louisiana case, if
it be correctly reported, distinction is to be drawn between
a repealing act and an amendatory act.
A reference in the title of the former to the section
repealed manifestly gives reference to a source of
information leading to a perfect knowledge of all that is
proposed to be done.
Scattered throughout the reports and text-books are many
expressions to the effect that the incorporation in the
title of the amendatory or repealing act of the title of the
act to be amended or repealed is a sufficient compliance
with the constitutional requirement. This is undoubtedly
true; and it is true because the subject of an amendatory
act is required in all cases to be germane and congruous to
the general object of the original act which it affects, and
to recite the title of the original act in the title of the
amendatory act is to express the subject of the amendment in
the amendatory act. This view explains many cases which are
quoted as authority for the proposition that a reference to
the amended law is sufficient. Of this class are State v.
Bowers, 14 Ind. 195; Yellow River Improvement Company v.
Arnold, 46 Wis. 214, 49 N.W. 971; State ex rel. v. Bankers'
etc. Association, 23 Kan. 499; State ex rel. Harris v.
Laughlin, 75 Mo. 358; Gatling v. Lane, 17 Neb. 80, 22 N.W.
453; State v. Lancaster Co., 17 Neb. 85, 22 N.W. 228; Miller
v. Hurford, 11 Neb. 377, 9 N.W. 477; People ex rel. Little
v. Willsea, 60 N.Y. 507; State ex rel. Attorney-General v.
Mead, 71 Mo. 266.
It must be confessed that in the Missouri case and in the
Kansas cases last referred to, the courts use some unguarded
expressions not required by the cases before them.
On the whole, I think the clear weight of authority, and
certainly sound reason, is against the position that a
reference to a section in the title of an amendatory act
without more is in any case sufficient.
For a valuable collection of cases on this subject, see
Mr. Freeman's notes to Davis v. State, 61 Am. Dec. 331. By
reference to the cases there cited, it will be seen that
provisions such as that in our organic act are mandatory,
and must be obeyed.
I give full assent to the doctrine that courts should
hesitate before declaring an act of the legislature invalid;
but while this is so, it is equally true that courts must
give effect to views of law clearly entertained and
necessary to the determination of causes; and this, even to
the extent of declaring laws that are so unconstitutional.
My conclusions concerning the validity of this law have not
been hastily arrived at. Argument concerning a law similarly
circumstanced was had before me in my district several
months ago, and I deferred a decision of the question until
after the holding of this term, partly in the hope that the
question might be presented here and authoritatively
determined. My associates have also had the benefit of
argument in their districts, and have expressed opinions
thereon before coming here. So that we are all as well
equipped to arrive at a correct opinion as we can well hope
to be, and as this question arises in this case and meets us
squarely, it ought to be decided.
If the law conferring the elective franchise on females
was not a fruit of disobedience to the wise and salutary
restraint of the Organic Act, as has been charged, and if
there is a public sentiment in the territory which favors
such a measure, the next legislature will probably re-enact
it. It will be done then, if done at all, openly and in a
guise which is not objectionable, and after a full
opportunity has been given the people to express their
views. A measure of such a character, involving changes in
oursocial and political structures so momentous, and as many
men and women believe, so disastrous unless the measure
lapse into disuse, ought never to be urged or passed under
any other conditions.
For the reasons hereinbefore stated, I believe the act
amending section 3050 to be in conflict with our Organic
Act, and void. For the same reasons the act of the
legislature approved January 29, 1886, Statutes 1885-86,
page 113, is void. For the same reasons the act approved
February 3, 1886, Session Laws 1885-86, page 128, is void
except in so far as it purports to amend sections 3079 and
3084 of the Code. These sections, relating as they do to the
mere minutiae of conducting elections, could not, under the
title affixed to that act, be amended so as to confer the
elective franchise on any one, nor has any amendment of them
been attempted which would have that effect if valid.
Females, then, are not voters in this territory, and not
being voters, they are not competent to sit on juries.
I do not believe that there is error in the record other
than that committed in the ruling on the question which I
have been considering; for that error, however, concerning
which a majority of us are agreed, the judgment of the lower
court must be reversed, and the cause remanded for further
proceedings.
NOTE.--Since writing and delivering the above opinion, I
have found the case in 27 Arkansas mentioned. That case
relates entirely to a declaration of the Code of the state,
to the effect that none of its provisions shall be repealed
unless such intention is expressly stated, etc.; no
constitutional question was involved.
LANGFORD, J. (concurring). The record in this case
presents for our discussion the following propositions of
law:--
1. Can a prisoner be extradited upon a charge of felony,
which is the carrying on a swindling game of bunko and
twenty-one, and be tried and convicted upon the charge of
carrying on the game of twenty-one, or top-and-bottom dice,
and swindling a man thereat?
2. Can a man be convicted of a felony under an indictment
which charges that defendant and another conducted the
swindling game of twenty-one, or top-and-bottom dice,
without description of the offense by any words other than
those naming a game stating no acts which constitute the
offense?
3. Can a prisoner be convicted of any felony under such a
charge in the indictment?
4. If the jury in such a case bring in a verdict of guilty
as charged, can the court enter judgment for carrying on the
swindling game of top-and-bottom dice, omitting the words
"twenty-one"?
5. Can a prisoner be convicted on any indictment where he
has duly challenged the grand jurors upon the admitted fact
that four of them who found the bill were married women,
living and keeping house with their husbands?
As to the first point, we think that each of the states
are sovereign as to each other, in all respects, as one
foreign nation is to another, save and except in those
particulars which each state has surrendered to the United
States.
Each state has surrendered its right to make treaties and
war to the government of the United States.
If a prisoner is extradited from one state to another, it
is done, not through the terms of treaty, the breach of
which is to be punished by war or revolution, but through
the comity and pleasure of each state. There can be no power
of one state brought against another to force extradition.
This comity of states is exercised with great liberality,
and without the jealousy which controls foreign nations as
to each other. This comity, by long custom, has become a
quasi international law as between the states.
The courts of a state will not discharge a prisoner thus
extradited except upon the ground of fraud or imposition.
A false pretense that a man is required for one thing,
when in truth and in fact he is wanted for quite another
thing, is a fraud, and in such a case the court would
presume that the executive had been imposed upon, and upon
an advantage being attempted as the fruit of such fraud,
would discharge the prisoner.
In this case the offense mentioned in the requisition and
the indictment are so similar that no presumption of fraud
can arise. I conclude, therefore, that the prisoner ought
not to have been discharged upon this ground.
As to the second point: the statute under which the
prisoner was convicted divides illegal games into two
classes, the first class being misdemeanors, the second
felonies.
Among the class of games which are mentioned by name as
misdemeanors is the game of twenty-one.
The game of twenty-one is not mentioned among those games
which are declared felonies.
Top-and-bottom dice is not mentioned as a game which is
either a misdemeanor or a felony.
If the game of twenty-one is to be punishable at all, it
being specially mentioned as a misdemeanor, and not a
felony, can only be punished as a misdemeanor, and a
conviction of felony is illegal.
The offense is not defined by the statute except by the
name of the game. What acts constitute the offense are not
stated in the statute. I am of the opinion that, when a word
has an accepted unambiguous meaning as fixed by the law or
by the English language, it is sufficiently definitive of
itself without further statutory definition, such as the
word "adultery," or the like; but a word which does not
convey a fixed or ascertainable meaning in law or in English
is not sufficiently definitive to create a crime. A law is a
rule of action prescribed. A word which has no fixed meaning
cannot constitute a rule of action, for the connotation is
not definite, nor does it prescribe, either to the public or
the courts, what acts are or are not criminal. The words
"top-and-bottom dice" signify no class of actions which can
be known by the public or the courts; besides, that game is
not denominated an offense. What neither the courts nor the
people can understand was probably not understood by the
legislature, and though it intended to use the words, it had
no definite idea of their exact meaning.
It requires certain particular acts to constitute a crime.
The words used in this statute in no way inform us of what
class of acts there are which constitute "top-and-bottom
dice," nor "twenty-one." It may or may not be possible that
some scientist in gaming might for a proper remuneration
interpret the meaning of these words, and what acts it takes
to amount to what the words denote. Such evidence, however,
might not be reliable, and certainly no provision is made
for an interpreter of foreign or slang words; courts cannot
take judicial knowledge of the meaning thereof.
For these reasons, the prisoner could not have been
legally convicted of an offense under an indictment which
charges in such indefinite terms.
3. For the reasons above stated, the indictment does not,
as the statute requires, set forth the facts constituting
the offense. In truth, it sets forth no special acts at all.
It does not then set forth facts constituting an offense,
and hence cannot sustain a conviction.
4. The jury returned a verdict of guilty of carrying on
the swindling game of "twenty-one, or top-and-bottom dice."
The words "twenty-one" may qualify the words "top-and-bottom
dice," or the reverse may be true. The judgment of "guilty"
for "top-and-bottom dice" only, though not agreeing with the
indictment or verdict, may or may not mean the same thing.
This shows, however, that it is a seeming attempt to escape
from the words "twenty-one," which would only amount to a
misdemeanor. If the two terms mean the same thing, then the
judgment indicates that the misdemeanor is to be punished as
a felony.
This but shows that the prosecutor and court were as
ignorant as myself as to the acts which would constitute
"twenty-one," or "top-and-bottom dice." They were uncertain
whether the two terms meant the same acts or a different set
of acts. All that can be gathered with any certainty is that
the prisoner is guilty of some swindling game by which he
cheated a person out of money. By what process this swindle
was effected is unknown. There are swindles and cheats at
common law which are indictable, and the class is
well-known, and the facts constituting the offense may be
set out in an indictment, but this is not done in this case.
5. Is a married woman living with her husband a competent
grand juror? If she is both an elector and householder, then
she is competent. If she lacks either qualification, then
she is not.
First, then, is she an elector? It is admitted that she is
not an elector unless she is made so by the act of 1883,
page 40. This act has no title unless the words and figures
following are one, to wit: "An act to amend section 3050 of
chapter 380 of the Code of Washington."
We have a book which is marked on the fly-leaf, "The Code
of Washington." I have examined it, and find that upon its
face it does not purport to contain any authenticated act of
the legislative assembly of the territory of Washington. It
purports to have been edited and compiled by a private
party. It contains no titles to acts, no enacting clause, no
signature of president of the council, speaker of the house,
or governor. It is not certified by the secretary to be or
contain a true copy of any legislative act. The chapters,
divisions, and sections all purport to be the act of a
private party. His sections run up to 3327, and in the book
is an unauthenticated provision that a certain private party
shall publish parts of a certain class of laws which he
shall deem to be general, and leave out certain parts of all
acts, and leave out entirely others. He certifies that he
has examined all the laws embraced in the volume (the Code),
etc., and put redundant matter in parentheses, and matters
omitted from enrolled laws but supplied by him are inclosed
in brackets.
Now, it is clear that this book contains no act passed by
the legislative assembly, and it cannot be known officially
what it does or does not contain. We suppose that it is this
private book that the act of 1883 purports to amend.
Acts of a legislature may amend other acts of its own. An
act cannot amend the statutes of the United States or of
another state, or the works of a private author.
Such an attempt is simply void, and beyond the legislative
power. The organic law of the territory provides that "every
act of the legislature shall contain but one object, and
that shall be expressed in its title."
If one part of this provision is not complied with, it is
admitted an act is void. An act with or without a title
might contain one or more than one object equally well.
That there shall be a title to such act, and that the
title shall express the object, is entirely distinct from
there being but one object in a bill. The last provision is
not peculiar to our territory, but is in the organic laws of
many of the states.
Its purpose and object have been decided by many courts.
It is stated in late elementary authors. These authorities
agree as to the purpose of this organic provision.
The evil it was intended to remedy was this: legislators
had departed from the good old custom of having a preamble
to each act reciting at some length the general purpose and
object of the act which followed. They had departed also
from another good old custom of having such bill read at
length in the hearing of all the members before they voted
upon it.
It had become the fashion to pass acts by merely reading
the title. Now, as members only heard the title, it was of
the utmost importance that the title should give upon its
face the general scope of the proposed act, so that each
member might have notice of what measure was before the
house for his action.
It was also the fashion of newspapers to publish proposed
acts by their titles only. To obtain the surreptitious
passage of laws (which if these objects were known would be
defeated), titles which gave no notice of what the acts
contained were used to pass provisions unknown to the
legislature.
This fraudulent practice became a public evil of so great
a magnitude that constitutional provisions were made to
prohibit the practice. It was thus provided that no act
should be passed without having a title which expressed its
object. So that when a bill was read or published by title
only, the title alone could give notice of the general scope
of the act.
There would be no use of a title that of itself did not
give this notice within itself, for it alone was read. The
expression of the object was to give notice of the contents.
The words of a title were in the nature of things brief.
Much controversy has arisen as to whether the words of the
title were broad enough to cover all the provisions of the
act, or definite enough to give notice of the contents.
No case has arisen in the courts, nor been commented upon
by authors, where the violation of the provision has been so
gross as in this case, except it may be a case in the state
of New York, and perhaps in another state.
The title of this act does not attempt to give notice of
what the act itself contains, or what is the object of it,
or what is its subject-matter.
It attempts to make a reference to certain sections of a
certain book where the object may be discovered.
By reading the title nothing is known, but by reading the
title and then reading the book, a member may find out the
object. If this were all that was intended, then a title
like this would be better: "An act to provide for certain
things which will be found in the body thereof." This
reference would be better, because easier made, for here the
reference would be to an act directly under the reference,
while by the other it would be much more difficult to find
the matter referred to. It is more important that
constitutional provisions should be observed than any
temporary inconvenience may be suffered, which may be
remedied by the next legislature. The act is then void
because it has no title expressing its object. The act of
1886 is invalid for the same reason, and hence women are not
electors nor qualified grand jurors.
Are married women living with their husbands householders?
A woman who keeps house and controls it, as a widow, or the
like, may be a householder. The term has been defined in
exemption laws and jury laws frequently, as only including
the husband, and not the wife, when they live together as
husband and wife. No doubt but that this meaning obtained
for the reason that the husband was deemed to have control
of the house, his wife, and his family. It has ever been
used in the statutes of this territory and many others as
distinguishing the husband only. There has been no act
passed purporting by its title to amend the old section
which had the uniform construction that the husband alone is
included. If this section has been modified, it has not been
done by any act which by its title or otherwise referred to
the subject-matter of the qualification of jurors.
Had the legislature intended to change the qualification
of jurors it would seem that they would have signified that
intent by amending the act relating to the subject. This
they have not done. If it has been changed, it has been done
without any expression of a legislative intent to change it.
It has been done incidentally without any reference to the
quality of grand jurors.
The incidental acts which have been thought by some to
change the old law, that the man is the only head of the
family, and make two heads instead of one, are the "married
women" acts, so called.
These acts have existed in nearly their present form since
1869, and no one imagined that the personal relations of
husband and wife were changed. It was thought the "married
women" acts only related to rights of the women to hold and
control property, and the like, and nothing more.
The act which is claimed to change the qualification of
jurors, passed November 14, 1879, was entitled "An act to
establish and protect the rights of married women." This act
has been passed in many other states, and last in the state
of Oregon, yet in none has it been construed to make the
married women the head of the household, or qualify her to
sit on juries.
Even here, where certain property is exempted to each
householder, it has not been claimed that the husband as one
householder and the wife as another can each and both claim
the exemption, and thus double the exemption.
Civil disabilities are abolished as to the wife, but if
the right to vote is a civil right, it was not abolished by
this act. The words "civil disabilities" are explained by
the context.
For any "usurpation of her natural or property rights she
may appeal to the courts," etc. It was simply intended to
give her a status in court to protect her civil rights, i.
e., her natural or property rights.
Section 2 makes special provision as to control and
custody of children, showing that it was not thought that
the words "civil disabilities" being removed, and she being
permitted to sue for her natural and property rights,
included the right to control children.
If, notwithstanding the civil-disability clause and the
natural and property right clause, it was necessary to add
another section concerning children, it clearly shows that
the legislature thought they intended to give women the
equal right to hold property, control children, and the
right to sue which her husband had, and nothing more.
No more than this is expressed in the language; not a word
about her being lord of the household, or juror, or the
like.
If the legislature was so particular to name natural and
property rights and right to control children, it is to be
presumed that these subjects only were intended to be
legislated upon.
Is every man who is disqualified from being a grand juror
laboring under a civil disability? If this is so, attorneys,
postmasters, physicians, old men, even the judges, are now
suffering from civil disability. Read, "A wife shall not be
deprived of civil rights," and you have an equivalent
expression to this statute. Jury duty, militia duty, labor
on the road duty, etc., were surely never intended to be
imposed on her. Perhaps it may be said that she has a right
to trial by her peers, and that men are not her peers. This
thought never occurred until lately, as women on trial have
never challenged jurors on that ground.
The evil which the legislature intended to remove was the
abuse, and imprisonment, and robbery of women by bad
husbands. The object was good, and I am sorry to know that
no law can effect much in this matter. It will do some good,
however. There never can be much effective application of
law which will make a bad husband a good one.
For the reasons above stated, I am of the opinion that the
law as to qualifications of grand jurors is unchanged, and
that it was error not to have allowed the challenge of the
prisoner, and the cause ought to be reversed and the
prisoner discharged.
GREENE, C. J. (dissenting).--From all that is decisive,
and from much that is not decisive, in the very able
opinions just read by Messrs. Justices TURNER and LANGFORD,
I totally dissent, and will in due time, if circumstances
admit, file a dissenting opinion.
NOTE BY REPORTER.--The case decided by the Supreme Court
of Wisconsin, and referred to by Mr. Justice Turner in his
opinion in the foregoing case (see p. 142, ante), is In re
Lavinia Goodell, 39 Wis. 232, involving the right of a woman
to be admitted to practice as an attorney. The following is
an extract from the opinion of Mr. Justice Ryan, speaking
for the Supreme Court in deciding that case, and which
relates to some of the questions discussed by Mr. Justice
Turner in his opinion:--
"So we find no statutory authority for the admission of
females to the bar of any court of this state. And with all
the respect and sympathy for this lady which all men owe to
all good women, we cannot regret that we do not. We cannot
but think the common law wise in excluding women from the
profession of the law. The profession enters largely into
the well-being of society; and to be honorably filled and
safely to society exacts the devotion of life. The law of
nature destines and qualifies the female sex for the bearing
and nurture of the children of our race, and for the custody
of the homes of the world and their maintenance in love and
honor. And all life-long callings of women, inconsistent
with these radical and sacred duties of their sex, as is the
profession of the law, are departures from the order of
nature; and when voluntary, treason against it. The cruel
chances of life sometimes baffle both sexes, and may leave
women free from the peculiar duties of their sex. These may
need employment, and should be welcome to any not derogatory
to their sex and its proprieties, or inconsistent with the
good order of society. But it is public policy to provide
for the sex, not for its superfluous members, and not to
tempt women from the proper duties of their sex by opening
to them duties peculiar to ours. There are many employments
in life not unfit for female character. The profession of
the law is surely not one of these. The peculiar qualities
of womanhood, its gentle graces, its quick sensibility, its
tender susceptibility, its purity, its delicacy, its
emotional impulses, its subordination of hard reason to
sympathetic feeling, are surely not qualifications for
forensic strife. Nature has tempered woman as little for the
juridical conflicts of the court-room as for the physical
conflicts of the battle-field. Womanhood is molded for
gentler and better things. And it is not the saints of the
world who chiefly give employment to our profession. It has
essentially and habitually to do with all that is selfish
and malicious, knavish and criminal, coarse and brutal,
repulsive and obscene, in human life. It would be revolting
to all female sense of the innocence and sanctity of their
sex, shocking to man's reverence for womanhood and faith in
woman, on which hinge all the better affections and
humanities of life, that woman should be permitted to mix
professionally in all the nastiness of the world which finds
its way into courts of justice,--all the unclean issues, all
the collateral questions of sodomy, incest, rape, seduction,
fornication, adultery, pregnancy, bastardy, legitimacy,
prostitution, lascivious cohabitation, abortion,
infanticide, obscene publications, libel and slander of sex,
impotence, divorce; all the nameless catalogue of
indecencies, la chronique scandalous of all the vices and
all the infirmities of all society, with which the
profession has to deal, and which go towards filling
judicial reports which must be read for accurate knowledge
of the law. This is bad enough for men. We hold in too high
reverence the sex without which, as is truly and beautifully
written, le commencement de la vie est sans secours, le
milieu sans plaisir, et le fin sans consolation, voluntarily
to commit it to such studies and such occupations. Non tali
auxilio nec defensoribus istis, should juridical contests be
upheld. Reverence for all womanhood would suffer in the
public spectacle of women so instructed and so engaged. This
motion gives appropriate evidence of this truth. No modest
woman could read without pain and self-abasement, no woman
could so overcome the instincts of sex, as publicly to
discuss the case which we had occasion to cite supra, King
v. Wiseman. And when counsel was arguing for this lady that
the word person, in section 32, chapter 119, necessarily
includes females, her presence made it impossible to suggest
to him, as reductio ad absurdum of his position, that the
same construction of the same word in section 1, chapter 37,
would subject woman to prosecution for the paternity of a
bastard, and in sections 39 and 40, chapter 164, to
prosecution for rape. Discussions are habitually necessary
in courts of justices which are unfit for female ears. The
habitual presence of women at these would tend to relax the
public sense of decency and propriety. If, as counsel
threatened, these things are to come, we will take no
voluntary part in bringing them about.
"The motion is denied."