Page:History of Woman Suffrage Volume 2.djvu/644

612 justify us in presuming a change in the legislative intent. Our laws to-day in regard to women, are substantially what they have always been, except in the change wrought by the acts of 1861 and 1869, giving to married women the right to control their own property and earnings.

Whatever, then, may be our individual opinions as to the admission of women to the bar, we do not deem ourselves at liberty to exercise our power in a mode never contemplated by the Legislature, and inconsistent with the usages of courts of the common law from the origin of the system to the present day.

But it is not merely an immense innovation in our own usages as a court that we are asked to make. This step, if taken by us, would mean that in the opinion of this tribunal, every civil office in this State may be filled by women—that it is in harmony with the spirit of our Constitution and laws that women should be made governors, judges, and sheriffs. This we are not yet prepared to hold.

In our opinion, it is not the province of a court to attempt, by giving a new interpretation to an ancient statute, to introduce so important a change in the legal position of one-half the people. Courts of justice were not intended to be made the instruments of pushing forward measures of popular reform. If it be desirable that those offices which we have borrowed from the English law, and which from their origin some centuries ago down to the present time, have been filled exclusively by men, should also be made accessible to women, then let the change be made, but let it be made by that department of the Government to whom the Constitution has intrusted the power of changing the laws. The great body of our law rests merely upon ancient usage. The right of a husband in this State to the personal property of his wife, before the act of 1861, rested simply upon such usage, yet who could have justified this court if, prior to the passage of that act, it had solemnly decided that it was unreasonable that the property of the wife should vest in the husband, and this usage should no longer be recognized? Yet was it not as unreasonable that a woman by marriage should lose the title of her personal property, as it is that she should not receive from us a license to practice law? The rule in both cases, until the law of 1861, rested upon the same common law usage and could have pleaded the same antiquity. In the one case it was never pretended that this court could properly overturn the rule, and we do not see how we could be justified should we disregard it in the other. The principle can not be too strictly and conscientiously observed, that each of the three departments of the Government should avoid encroachment upon the other, and that it does not belong to the judiciary to attempt to inaugurate great social or political reforms. The mere fact that women have never been licensed as attorneys-at-law is, in a tribunal where immemorial usage is as much respected as it is and ought to be in courts of justice, a sufficient reason for declining to exercise our discretion in their favor, until the propriety of their participating in the offices of State and the administration of public affairs shall have been recognized by the law-making department of the Government—that department to which the initiative in great measures of reform properly belongs. For us to attempt, in a matter of this importance, to inaugurate a practice at variance