Page:The Enfranchisement of Women, the law of the land.pdf/22

22 and liberi homines, sixteen women are included. When the present Chief Justice of the Common Pleas, in arguing as counsel for the appellants, stated "there can be no legal incapacity attributed to women unless it be from non-user, and that cannot take away a public right," Mr. Mellish, for the respondent, admitted, "No doubt,if it were conceded that the right once existed, that which is urged as to non-user would be quite correct." What reasoning in a circle have we here The only reason assigned by either counsel or judge for women being excluded from the right to vote, is that they have never been known to exercise it; and when it is answered no public right can be lost by its not having been asserted,it is rejoined—Yes, but you must first prove the original right! We do prove it. We show that the customary law, and the statutes on which solely the right is based, are applicable to the sexes indiscriminately. Is any denial given to that? The flank is not even attempted to be turned. The objectors do not answer, do not, because they cannot grapple with that plea. They ride off upon another issue; they contend that women never have used the right, as the sufficing reason for denying it; and then, when they are met with the fact that the exercise of the right is unnecessary to its establishment, women are answered—Yes,but prove you ever had it!

In the case of Olive v. Ingram, the judges held "upon the foot of the Common Law," that "a person paying scot and lot" was a description that included women. It has been seen that they were deemed, as "substantial householders," liable to serve the office of overseer. The statute of Elizabeth, observes Justice Ashurst, has no reference to sex. "There are many instances where, in offices of a higher nature, they are held not to be disqualified, as in the case of the office of High Chamberlain, High Constable, and Marshal, and that of a common constable, which is both an office of trust and likewise in a degree judicial. So in the case of the office of sexton." "There is a difference between being exempted and being incapacitated." "An excuse from acting is different from an incapacity of doing so." Whitlock observes, "By the custom of England women are not returned of juries, &c., &c.; by reason of their sex they are exempted from such employments." Although all statutes ran in the name of the "Kynge," Parliament held "none but