Page:History of Woman Suffrage Volume 3.djvu/347

Rh Wendell Phillips president and treasurer, and Susan B. Anthony secretary of said board. I direct the treasurer of said board not to loan any part of said bequest, but to invest, and, if need be, sell and reinvest the same in bank or railroad shares, at his discretion. I further authorize and request said board of trustees, the survivor and survivors of them, to fill any and all vacancies that may occur from time to time by death or resignation of any member or any officer of said board, One other bequest, hereinafter made, will, sooner or later, revert to this board of trustees. My desire is that they may become a permanent organization, until the rights of women shall be established equal with those of men; and I hope and trust that said board will receive the services and sympathy, the donations and bequests, of the friends of human rights

And being desirous that said board should have the immediate benefit of said bequest, without waiting for my exit, I have already paid it in advance and in full to said Phillips, the treasurer of said board, whose receipt therefor is on my files."

.—Gray, J. . It is quite clear that the bequest in trust to be expended "to secure the passage of laws granting women, whether married or unmarried, the right to vote, to hold office, to hold, manage and devise property, and all other civil rights enjoyed by men," cannot be sustained as a charity. No precedent has been cited in its support. This bequest differs from the others, in aiming directly and exclusively to change the laws; and its object cannot be accomplished without changing the constitution also. Whether such an alteration of the existing laws and frame of government would be wise and desirable, is a question upon which we cannot, sitting in a judicial capacity, properly express any opinion. Our duty is limited to expounding the laws as they stand. And those laws do not recognize the purpose of overthrowing or changing them, in whole or in part, as a charitable use. This bequest, therefore, not being for a charitable purpose, nor for the benefit of any particular persons, and being unrestricted in point of time, is inoperative and void. For the same reason, the gift to the same object, of one-third of the residue of the testator's estate after the death of his daughter, Mrs. Eddy, and her daughter, Mrs. Bacon, is also invalid, and will go to his heirs-at-law as a resulting trust.

Decision third was on the right of women to hold judicial offices. To quote again from Allen's Reports:

On June 8, 1871, the following order was passed by the governor and council, and on June 10 transmitted to the Justices of the Supreme Judicial Court, who, on June 29, returned the reply which is annexed. Ordered, That the opinion of the Supreme Judicial Court be requested as to the following questions: First—Under the constitution of this commonwealth, can a woman, if duly appointed and qualified as a justice of the peace, legally perform all acts appertaining to that office? Second—Under the laws of this commonwealth, would oaths and acknowledgments of deeds, taken before a married or unmarried woman duly appointed and qualified as a justice of the peace, be legal and valid?

—By the constitution of the commonwealth, the office of justice of the peace is a judicial office, and must be exercised by the officer in person, and a woman, whether married or unmarried, cannot be appointed to such an office. The law of Massachusetts at the time of the adoption of the constitution, the whole frame and purport of the instrument itself, and the universal understanding and unbroken practical construction for the greater part of a century afterwards, all support this conclusion, and are inconsistent with any other. It follows that, if a woman should be formally appointed and commissioned as a justice of the peace, she would have no constitutional or legal authority to exercise any of the functions appertaining to that office. Each of the questions proposed must, therefore, be respectfully answered in the negative.

Boston, June 29, 1871.