C. P.]

CHORLTON (app.) v. LING (resp.)

[C. P.

to the provisions of this Act, all laws, customs, and enactments now in force conferring any right to vote, or otherwise relating to the representation of the people in England and Wales, and the registration of persons entitled to vote shall remain in full force, and shall apply as nearly as circumstances admit to any person hereby authorised to vote, and shall also apply to any constituency hereby authorised to return a member or members to Parliament, as if it had heretofore returned such members to Parliament, and to the franchises hereby conferred, and to the registers of voters hereby required to be formed." By the 59th section it is enacted that "This Act, so far as is consistent with the terms thereof, shall be construed as one with the enactments for the time being in force relating to the representation of the people and with the Registration Acts." By the Act of 1832 the occupation franchise in boroughs is expressly given to male persons who shall be qualified as therein mentioned, and by the 33rd section it is enacted that no other person is to be entitled to vote for a borough, except in respect of certain rights conferred by that Act, "or as a burgess or freeman, or as a freeman and liveryman, or in the case of a city or town being a county itself, as a freeholder or burgage tenant as hereinbefore mentioned." It is perfectly clear that women would not be entitled to the franchise under that Act, and as the two Acts are to be construed as one, we should endeavour as far as possible to place such a construction upon the late Act as would make it consistent with the provisions of the former statute. There is no doubt that in many statutes "man" may properly be held to mean a woman, whilst in others it would be ridiculous to suppose it was used in any other sense than as designating the male sex. One must look at the subject-matter as well as to the general scope and language of the provisions of the late Act, in order to ascertain the meaning of the Legislature. I do not collect from the language of the Act that there is any intention to alter the description of the persons who are to vote, but I should conclude the object was to deal with their qualifications, and if so important an alteration was intended to be made as to extend the franchise to women, who had not before enjoyed it, and were in fact excluded from it by the terms of the Reform Act, it could hardly be supposed that the Legislature would have made it by using the term man; indeed in the very next Act which was intended to apply to and extend the Factory Acts, women and females are expressly included. The conclusion at which I have arrived is, that the Legislature used "man" in the same sense as "male persons "in the former Act, and this word was intentionally used in order to desig nate expressly the male sex, and that it amounts to an express enactment and provision that every man, as distinguished from woman, possessing the qualification was to have the franchise, and in that view Lord Romilly's Act does not apply to this case, and will not extend the meaning of the word "man," so as to include "women." Upon this part of the case the decision of the Court of Session in Scotland is also in point, and in that decision I entirely concur. On both grounds, therefore, first, that women were legally incapacitated from voting for members of Parliament; and, secondly, that the section is limited to men, and does not extend to women; I think women are not entitled to the franchise, and the decision of the revising barrister must be confirmed in this and the other cases which depend upon it. It is not a case in which costs should be allowed.

adjourned, it does not appear that anything reliable | respect of more than one qualification, and subject could be discovered respecting it; it is not even mentioned in the report of the same case by Sir John Strange, and I think that as little weight is to be attached to it as to the book in which it is found. If there were any such decisions as those said to have been decided in the time of James I., it is difficult to understand why no further notice or trace of them should be found, and why they should not have been acted upon. At this distance of time we have not the means of ascertaining accurately the particulars of this case, nor under what circumstances the returns that have been alluded to were made, or whether any questions were ever raised respecting them. The decisions as to what offices women may hold, or whether they come within the description of the particular statutes, do not materially assist us in this case. On the other hand, Lord Coke, in the 4th Inst., p. 5, treats it as clear law that from the time of James I., women were incapacitated from voting, and in the case of Olive v. Ingram the majority of the judges seem to have been of the same opinion. In the work of Serjeant Heywood, who was well acquainted with election law, published in 1812, women are classed as amongst those who are incapacitated from voting, and the same view has been aceepted by Hallam and others in modern times, and was to some extent recognised in the Act of 1832 by the Legislature, when they conferred the franchise for boroughs on "male persons." There can be no doubt that at the time of the passing of the Act of 1867, the common understanding of lawyers and laymen was, that women were incapacitated from voting; the Legislature must therefore be assumed to have acted under that impression, and the 56th section of the Act expressly reserves all laws, customs, and enactments then in force. Mr. Coleridge has forcibly contended that if women were ever entitled to the franchise, nothing has occurred to take it away; but then if nothing has taken it away, the fact of it not having been asserted or acted on for some centuries, raises a strong presumption against its having legally existed, and considering that there is no direct reported decision or authority that can be produced in favour of the right, that there are the opinions against it to which I have referred, and that there has been so long and uninterrupted an usage to the contrary, I come to the conclusion that there is no such right, and that women are legally incapacitated from voting within the meaning of the 3rd section of the Representation of the People Act 1867. Assuming, however, that the claimant was not legally incapacitated within the meaning of that statute, the question would then arise whether the franchise has been conferred on women by that Act, and by force of the provisions of Lord Romilly's Act. This depends upon the proper construction to be placed upon the 3rd section of the Representation of the People Act 1867, which enacts that every man, with certain qualifications, shall be entitled to the franchise. By the 13 & 14 Vict. c. 21, s. 4, it is enacted that all words importing the masculine gender shall be deemed and taken to include all females, and the singular to include the plural, and the plural the singular, unless the contrary as to the gender or number, is expressly provided. In construing the 3rd section of the Representation of the People Act 1867, regard must be had to the whole of the enactment with a view to ascertain whether the word man is used in the sense of person, or is equivalent to the expression "male person." By the 56th section of that Act it is provided that "the franchises conferred by this Act shall be in addition to, and not in substitution for, any existing franchises; but so that no person shall be entitled to vote for the same place in

WILLES, J.-I am of the same opinion. The application of Lord Romilly's Act, which is sought

C. P.]

CHORLTON (app.) v. LINGS (resp.)

[C. P.

France, it was at one time thought there might be such a representation of the vote by the husband, yet, to use the expression in the latter note, such right is now extinct. Considering that we do not recognise negative prescription in doing away with laws as once established, it would be more correct, perhaps, to say that the notion of such a right having existed is now exploded. Can there be any substantial difference in the case of a woman who is one of a body that originally had a right to be present at a popular assembly, but who in modern times, for the sake of preventing tumult and rioting, would be obliged to choose one of their body to represent them? Can there be any greater reason for a woman having that right, than for a woman having her right in respect of a peerage to be present and to represent her interests in the Upper House? I am unable to see any. The exclusion of women to vote as peeresses appears to be referable to one cause, namely, that in modern and more civilised times, out of respect for women and decorum, not out of disrespect, or by reason of any prejudice against them as being weaker in intellect, or unfitted in any other qualities which would enable them to act, they are excluded from taking any part in public assemblies, or the election of members thereto. In either point of view, therefore, whether I construe the Act of 1867 as a part of the modern statutes dealing with the qualification of male persons, or treating the Act of 1867 as standing by itself, looking upon women as being under a legal incapacity, as children are under a legal incapacity, I come to the conclusion that this appeal should not prevail. However, I entirely agree with my Lord, that considering the importance of the question, there should not be any costs.

incorrectly with reference to one instance within | shown that, although in this country, and also in my personal knowledge. I know that in one instance, and I believe there are many, it was not unusual for persons who were present when the indentures returning members were signed, to be asked to sign them, though, in fact they were not electors; and it will be found questions have arisen more than once on the point, whether the returns by such indentures were invalidated by people who were not enfranchised having signed them. The conclusion seems to have been that they were sufficient if the returning officer was in fact the proper returning officer and the persons appearing as representing the electors were not, in fact, electors. Now I would come down to a still more recent period, and I will say a word with respect to what was much relied upon, namely, to the fact that women must form a portion of the suitors at the sheriffs' court. Suppose that they might be present, could they act as suitors? Could they act, for instance, as judges? Apparently not, because we know, not only from observation, and there does not need authority, that women, with the single exception I have referred to, could not act as jurors, and I should add the case where a woman capitally convicted pleads that she is with child in bar of execution. In all other cases women could not sit as jurors. Therefore, if women might be present | as suitors, women could not exercise those public functions which men could exercise. It should seem that women are generally excluded, and Lee, C. J., seems to have thought when he thought the matter over in the case in 7th Modern, that women were exempt from the exercise of functions of a public character. There is one other matter to which I think reference ought to be made. We have it that in these instances women appear to be excluded. I will not recite the authorities to which my Lord has referred in his judgment, but nobody of authority has asserted the contrary in respect of women, and when I say nobody I mean nobody within those limits to which our attention ought to be directed, as lawyers dealing with this question as a question of law. Now, let us see whether some light may not be thrown upon the subject from a neighbouring quarter. We have hitherto been dealing with the question whether women have a right to be represented in the House of Commons, but nothing was said of women being represented in the House of Lords. Take the case which was referred to in the course of the argument; take the case of a peeress in her own right, who, if she were of the opposite sex, would be entitled to a seat and vote in Parliament; can she sit in the House of Peers? No, certainly not; she can neither vote in person nor by proxy. Other privileges of peeresses she has, and the most remarkable one is that of being tried by her peers, which is probably referable to statute. Now what is her condition in respect of being represented? It was thought at one time that a peeress could not go unrepresented in case she were married, and that her husband should become a peer in her right, and if there were issue they would be tenants by the courtesy. And the authority for that will be found in Co. Litt. 29 b., where he refers to a record, but adds that his readers must form their own judgment as to whether the law is so or not. There is appended to that, Lord Hale's note, from which it seems clear that Lord Hale thought that after issue born the husband would have the right, or might have the right. That is remarkable, because it must have been from some notion that the peerage involved the right to be represented, and so the wife would delegate the right to her husband, because she had no such right herself. And in the note in Mr. Hargreave's book upon the reference in Co. Litt. 29 b, and the note in Butler 326 a, it is

39

BYLES, J.-I am of opinion that the revising barrister was right in expunging this lady's name from the list. I arrive at that conclusion in two ways. First, I think it clear from the words of the Act 30 & 31 Vict. c. 102, that the word "man" in sect. 3 does not include woman, but is confined to a man in the ordinary and proper signification of that word. No doubt the word "man' in a scientific treatise on zoology, or fossil organic remains, would include men, women, and children as constituting the highest order of vertebrate animals. It is also used in an abstract and general sense in philosophical or religious disquisitions. But in almost every other connection the word "man is used in contradistinction to "woman." Certainly this restricted sense is its ordinary and popular sense. Now it is a well known rule in the construction of statutes that, as they are passed for the guidance of the people, their language is to be construed in its ordinary and popular sense. But all doubt is removed by reference to the Reform Act 1832 (2 Will. 4, c. 45), where, in a similar connection, instead of the word "man" we find the expression "male person;" for another rule of construction is that acts in pari materiâ are to be construed together and to receive the like construction. And this is not only the general rule of construction, but, by the 59th section of this Act expressly applied to the two Acts now under consideration; for sect. 89 expressly enacts that this Act shall be construed as one with the enactments for the time being in force relating to the representation of the people. And though we are not at liberty to construe an Act of Parliament by reference to the debates upon it in the Legislature, yet it is impossible to suppose that Parliament, while dealing with qualifications and qualifications only, by the variation of a phrase (which at the least may convey the same meaning as its predecessor in the Reform Act) intended to admit to the poll another half of the population.

[C. P.

to

Lastly, the consequence of such a construction | chise, would have said so plainly and distinctly; would be that, women would in many cases be whereas, in the present case, they have used expresadmitted to the newly created franchises, but not to sions never before supposed to include women when the old ones, without any reason for the distinction. found in previous Acts of Parliament of a similar Independently, therefore, of what is called Lord character, and have incorporated the Act in which Romilly's Act (13 & 14 Vict. c. 21) it is plain that they are now found with other Acts, pari materia, the word "man" does not in the recent Reform Act which confessedly exclude them. But it is said comprehend women. But the statute 13 & 14 Vict. that the word "man" in the present Act must be does not, as it appears to me, create any insuper-construed to include "woman," because by the 13 & 14 able difficulty. It enacts in sect. 4 that, in all Acts Vict. c. 21, s. 4, it is enacted that "in all Acts, words, of Parliament words importing the masculine gender importing the masculine gender shall be deemed shall be deemed to include females, unless the con- and taken to include females unless the contrary is trary be expressly provided. The statute, on the expressly provided." Now all that sect. 4 of the 13 & 14 appellant's construction, would have created the Vict. c. 21, could have meant by the enactment same difficulty if the expression "male person referred to was that in future Acts words importing had been continued to be used. The difficulty, if the masculine gender should be taken to include any, is created by the use of the word "expressly." females where a contrary intention should not But the word does not necessarily mean "expressly appear. To do more would be exceeding the comexcluded by words." On the contrary, where that petency of Parliament with reference to future is meant by the statute, the statute says so, as legislation. But, in the present statute, it seems to in the next sentence, where it is insisted that me the Legislature has clearly expressed the intenthe word 66 county shall include county of tion not to extend the franchise to women, not only city, or town, unless the extended meaning by the absence of express words so extending it, but is expressly excluded by words. And accord-by the 56th and 59th sections, which place the new ingly it is so excluded by sect. 61 of the last franchises as additional, and as far as possible upon Reform Act. The word "expressly" often means the same footing, as those created by the 2 Will. 4, no more than plainly, clearly, or the like; as will c. 45, with which Act it is incorporated and which appear on reference to any English dictionary. And in terms excludes females. Again, the 3rd section reading the first Reform Act with the last Reform of the Act in question expressly applies only to Act, as, by the last Reform Act itself (s. 59) we persons "not subject to any legal incapacity are directed to do, I think it does appear very clearly vote. But it was contended, on the part of the and therefore "expressly" that by the word "man appellant, that women were not under any such inin the last Reform Act is meant a male person only. capacity, as in ancient times they had voted for But supposing that to be otherwise, and that the knights of the shire, and their rights to do so were word man in sect. 3 comprehends both sexes, still recognised by authority. To make good this position the statute excludes in terms all infants, and all we were referred to two or three indentures of who are subject to any legal incapacity. I agree in returns of knights of the shire for the county what has been already said by my Lord and my of York, tempore Henry V., Henry VII., and brother Willes on this subject, in whose observations Edward VI., which appeared to have been sealed I concur. Women for centuries have always been by one or two females, by themselves or attorconsidered legally incapable of voting for members ney. It is, however, not very difficult to suppose of Parliament, as much so as of being themselves that in ancient times when such proceedings were elected to serve as members. The expression "legal probably not very regular, a few seals should have incapacity" in the statute cannot be confined to been affixed without the legal right of women to total incapacity to do any legal act whatever, but vote being recognised; whereas it is absolutely inmust comprehend legal incapacity to do this par- conceivable that women should ever have possessed ticular act of voting, though there may be a capacity the franchise, and yet should have ceased from its to do some legal acts; otherwise an alien might vote exercise for so long a time, without a trace being for a member of Parliament. In addition to all found of any Act to deprive them of their right of which we have the unanimous decision of the Scotch voting, or a suggestion in history or elsewhere of judges. I trust their unanimous decision and our any reason why they should have been disfranchised. unanimous decision will for ever exorcise and lay or of the fact that they ever had been disfranchised. the ghost of a doubt which ought never to have We were also referred to the report in 7 Mod. 263, made its appearance. of the case of Olive v. Ingram, in which it was supposed there were dicta favourable to the notion that in ancient times women voted for members of Parliament. The case, however, when examined, is an authority the other way. It was a question as to whether a woman could vote in the election of a sexton, and Lee, C.J., who is said to have referred to a manuscript case of Hakewell's, as showing that a feme sole freeholder could vote for a member of Parliament, afterwards, at one of the many adjournments of the case, distinctly wished it should not be understood that such was not his own opinion, and the case was ultimately decided upon the ground that "a sexton's duty being in the nature of a private trust," a woman might vote at the election. According to the report of the case in Strange. 1115, the ground of the decision is stated

KEATING, J.-Mary Abbott claimed to vote for Members of Parliament for the city of Manchester, in respect of one of the franchises conferred by the 30 & 31 Vict. c. 102, s. 3. The claim was disallowed by the revising barrister, on the ground that, being a woman, she was not entitled to be placed on the register of voters; and the present appeal is from that decision. The question depends upon the construction of the 3rd section of the Representation of the People Act 1867, which provides that "every man" of full age "not subject to any legal incapacity," shall (upon compliance with certain conditions) be entitled to be registered as a voter; and it has been contended for the appellant that, when the Legislature enacted that "every man" should vote, they intended thereby to confer the franchise upon women also. Considering that there is no evidence of women ever having voted for Members of Parliament in cities or boroughs, and that they have been deemed for centuries to be legally incapable of so doing, one would have expected that the Legislature, if desirous of making an alteration so important and extensive as to admit them to the fran

to have been that the office of sexton "did not concern the public;" and the judges expressly guarded themselves from creating any precedent or authority for women having a right to vote in matters concerning the public. On the other hand, the opinion of Lord Coke, who clearly considered the law to be that women were disqualified at common law, would, under any circumstances, be

C. P.] MOORE (app.) v. THE TOWN CLERK OF SALFORD (resp.). J. H. JONES v. J. JONES. [C. P.

of great authority; but, when it is supported by centuries of usage quite in accordance with his statement, the authority becomes such as it would be impossible for the court to disregard. Mr. Coleridge, who ably argued the case for the appellant, made an eloquent appeal as to the injustice of excluding females from the exercise of the franchise. This, however, is not a matter within our province. It is for the Legislature to consider whether the existing incapacity ought to be removed. But should Parliament in its wisdom determine to do so, doubtless it would be done by the use of language very different from anything that is to be found in the present Act of Parliament. I think the revising barrister was right, and that his decision ought to be affirmed.

Judgment for the respondent.

Attorney for the appellant, P. H. Lawrence. Attorneys for the respondent, Johnson and Weatheralls.

Monday, Nov. 2, 1868.

MOORE (app.) v. THE TOWN CLERK OF
SALFORD (resp.)

of the revising barrister; but this is clear, the claimant is a woman, and cannot therefore appeal not being a person within the statute. That being so, I apprehend that we cannot interfere.

KEATING, J.-I think that the objection taken by Mr. Manisty is fatal, and that Mr. Russell has no locus standi. But in deciding it upon that point, it is not at all to be taken as decided that the other objection would not, even without the preliminary objection have been sufficient.

Appeal dismissed.

Attorney for the appellant, E. R. Randell, for Cobbett, Wheeler, and Cobbett, Manchester. Attorneys for the respondent, Chester and Urqu hart, for Brett, Hankinson, and Kearsley.

Wednesday, Nov. 11, 1868.

J. H. JONES (app.) v. J. JONES (resp.) Description of a county voter's qualification-Lease for life-The Registration Act 1843 (6 Vict. c. 18), ss1 40, 101.

Parliament-Right of a woman to appeal from a deci-A
sion of a revising barrister—6 Vict. c. 18, s. 42.
A woman has no right of appeal under the 6 Vict. c. 18,
s. 42, from a decision of a revising barrister, as that
statute does not in any way apply to women.

This was a consolidated appeal from a decision of the revising barrister for the borough of Salford. The case stated that the revising barrister had erased from the list of voters for the borough the names of 758 women who had not been objected to on the ground that they were disqualified from voting by reason of their sex.

Russell, Q. C., for the appellant, contended that the revising barrister had no right to strike out the names of any persons not objected to, or without evidence to prove that the person whose name was prima facie that of a woman, was in fact a woman, and submitted that there would be equally good ground for striking out a foreign name as being that

of an alien.

As the case went off on another point, it is not necessary to set out the arguments at length.

Manisty, Q. C. (Crompton with him), contended that the court could only deal with the case under sect. 42 of the 6 Vict. c. 18, and that that section only applied to men and not to women, and therefore that the appellant had no right to appeal.

county voter's qualification was described in the list as "leasehold house and garden;" the premises had been demised to the voter for his life, "but in the event of his dying within sixty years from the 29th Sept. last, then for and during the remainder of a term of sixty years, to be computed from the said 29th Sept. at the yearly rent of 10s.

Held, a sufficiently correct description of the qualifica tion, or at all events, so nearly correct that the barrister might have changed it" for the purpose of more clearly and accurately defining the same," under section 40 of the Registration Act 1843.

This was an appeal from the decision of a revising barrister of the county of Merioneth, who stated the following case:

At the court held at Penrhyn, in the county of Merioneth, on the 18th Sept. 1868, John Humphrey Jones duly objected to the name of John Jones being retained in the list of voters for the said

county.

notice to the overseer was duly published by him, The notice of objection was duly served. The

and was in the form

To the overseers of the parish of Llanfihangelytraethan. I hereby give you notice that I object to the name of the person mentioned and described below being retained on the list of voters for the county of Merioneth:

Christian and sur

name of the voter Place of abode
objected to as
as described.
described in the
list or register.

Russell, in reply, contended that the objection was too late, and ought to have been made before the revising barrister, or when the appeal was lodged, and that he having been heard, it could not be said Jones, John that he was not competent to be heard.

BOVILL, C. J.-I am by no means disposed to think that there was no answer to be made upon the other section, but upon this particular section (sect. 42) of the Act of Parliament, the appellant is a person who has no locus standi here at all, and is not a person who was contemplated by this Act of Parliament. The Act of Parliament is limited to male persons. Prima facie "Martha " is a female; and upon the statement of the case there is no doubt about it, because she is spoken of as "she." Under these circumstances, the appeal must be dismissed.

BYLES, J.-I am of the same opinion. It is not necessary to give any opinion upon the proceedings

Dated the 18th day of August in the year 1868.
(Signed)
JOHN HUMPHREY JONES.
(Place of abode)
Portmadoc.

It was contended on the part of the said John Jones that the notice of objection ought to have more particularly specified the list of voters to which the objection related, overseers having now to prepare a list of occupiers rated at 121. and upwards, and also a list of persons entitled to vote in respect of other qualifications. I decided that it was not necessary that the objector should so distinguish the list.

The objector contended that the description of the qualification in the third column was not correct. The said John Jones in support of his claim pro-