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the 23rd section as to the sex of the person or persons whom the electors shall choose to represent them in the Legislative Assembly, nor is there any clause in the two Acts, chaps. 3 and 4, above referred to, from which any such restriction can be inferred. The 61st sec. of 32 Vic, chap. 21, declares " That no candidate shall, with intent to promote Ms election, provide or furnish, &c." But by the General Interpretation Act, passed by the Legislature of Ontario, chap. 1, 31st Vic. (1867-8), sec. 6, clause 8, it is enacted that "words importing the singular number, or the masculine gender, shall include more persons, parties, or things of the same kind than one, and females as well as males, and the converse."
And by the 3rd sec. of the same Act the interpretation clauses were to apply to all Acts thereafter passed.
Thus it would appear, that if the electors present on nomination day choose a female as a candidate, and, in case of a poll being demanded, she should be elected, she would be entitled to take her seat as a Member in the Legislature of Ontario.
In this respect Ontario differs from the other two Provinces, and may be said to be in advance of both England and the United States on this point.
This difference—assuming that the above construction of the Ontario Act is correct—is one of so much discussion at the present day, that it may not be uninteresting to refer to a very important argument and decision which took place in the Common Pleas in England almost at the time the Act was under consideration in the Ontario Legislature, and which it is presumed must have come under the observation of the very able legal men in that House. The argument was commenced early in November, 1868, and judgment given in January, 1869. The case of Charlton (appt)., vs. Lings (respt).* The name of Mary Abbott, with a large number of other women, appeared upon the lists of voters for members of Parliament for the Borough of Manchester. Her name was objected to and struck off by the Revising Barrister. Her statutory qualification otherwise than as a woman was not disputed. On appeal from the decision of the Revising Barrister, the case was argued by Coleridge for the appellant, by Mellish for the respondent. The decision which was to govern the other cases as well as her own was that she had not a right
* Law Times, new series, 1868-9, 534, 4 L.B.C.P. 374. Vol. I. Hh No. 4 , to vote. In the course of the argument, some observations were made by the counsel and the judges, which will aid us in the construction to be put upon the Ontario Acts, bearing in mind that the question here is not the right of the woman herself to exercise a right or privilege, but the right of the electors not to be restricted in the exercise of their rights—that is the right of selection. And further, whether when in a particular statute, dealing with an entire question, a particular resolution is made with regard to a particular class of persons, it does not negative the application of any other restriction to the same class, than the restriction named, assuming that in other respects the requisitions under the statute are complied with. The Ontario Statute first gives the franchise to every "male person," &c., then as if that was not sufficiently explicit, as if to remove the very doubt which has been raised in England, and to show that the consider ation of woman's rights and her position had not been overlooked, it declares "no woman shall be entitled to vote at any election." When it comes to the nomination of candidates, it requires the sheriff to call upon the electors present to name the "person" or "persons" whom they desire to choose without any restriction in such selection as in the case of the franchise to the persons being male. By a subsequent Act, c. 4,1869, the Legislature abolishes the qualification in real estate, thus removing the inference to be drawn as to Knight's service and the feudal tenure referred to by one of the judges in Charlton vs. Lings. Then assuming that the selection is of a woman of full age—a feme sole—compos mentis—not under any restraint from infancy or marriage or any legal incapacity from crime—does she not come sufficiently under the term "person" to be within the Act. In the case referred to, Mr. Mellish in his very able argument against the construction of the English statute, which Sir John Coleridge was contending for; viz., that woman had the right to vote, because, under Lord Romilly's Act, words imputing the masculine gender included the feminine, says: "No one can doubt that in this Act (that is the Kepresentation of the People Act, 1867), the word "man" is used instead of the word "person " for the express purpose of excluding "woman," thereby admitting that if the word " person " had been used (in the absence of anything else in the Act, to control it) woman would have been included." Chief Justice Bovil, in referring to the Reform Act of 1852, and to the Representation of the People Act, 1867, says: "The con
elusion at which I have arrived is that the Legislature used "man" in the same sense as "male person" in the former Act, and this word way intentionally used to designate expressly the iiiale sex, and that it amounted to an expresp enactment and provision that every man, as distinguished from woman, posse-sing the qualification, was to have the franchise, and iu that view Lord Romilly'b (Vet does not apply t& this ease, and will no'< extend lh? word "man" so as to include woman." The other judges, Willes, Byles and Keating, fully concurred with lheCr.;ef Jup'ice as to the cons'1 uction to be put upon the Statu!., saying that the words -'man" and '■'ma^e person." together with the context of the statute throughout, showed conclusively that it was not intended to confer the franchise on women. Judges Willes and Byles went further, expressing their opinion that women were under a "legal incapacity'' from either being electors or elected; the latter observing that '-'women for centuries have always been considered legally incapable of voting for members of Parliament, as much so as of being themselves elected to serve as members," and he hoped "that the ghost of a doubt on this question would henceforth be laid for ever." Even the casual opinion of such eminent men is entitled to the highest respect, though the point actually under their consideration and decided by them, was the construction of a particular statute as to the right of a woman to vote, not as to the right of the electors to choose one as their representative. The language of the statutes before them was different from the language of the Ontario statute. The latter is the one which governs here. It professes to deal with the whole question—being essentially a question—with which the Ontario Legislature had the exclusive power to deal. It classifies and deals with the voters and the candidates separately and exhaustively, and throughout the whole contest there is nothing inconsistent with such a conclusion.
Ansley (Thomas Chasholm) in his able Review of the Representation of the People's Act, 1867, and of the Reform Act of 1832, ably handles the whole subject, and differs entirely from the views laid down by the learned Judges on the case referred to—not upon the broad question, but upon the construction of the Statute. His work was written in 1867, their decision given in 1869. In the course of his work he gives Mr. Denman, Q.C., as authority for the statement that the word "person" used in an act of the Legislature of one of the Colonies of Australia had given the franchise to women.
It is also further to be observed, that in the Imperial Act 33 and 34 Vic, c. 75, entitled " Au Act to provide for Public Elementary Education in England and Wales," (passed in 1870, since the decision in Charlton vs. Lings), which regulates the distribution and management of the Parliamentary annual grants, in aid of public education, and provides for such distribution and management by means of a Board or School Parliament, with great powers, chosen by election by the ratepayers, the word "person" is used throughout with reference to those chosen to form the Board, and under that designation women have been held eligible and taken their seats, notwithstanding that in speaking of such members the word " himself," and other words of the masculine gender only, are used. It would seem, therefore, taking all points into consideration, to require an arbitrary and unusual construction to be put upon such word, to deprive the electors of Ontario of the right of choosing a female representative for their own Legislature, if they be so minded.
In all three of the Provinces persons holding offices of profit or emolument under the Crown, excepting Members of the Executive Government, are debarred from holding seats in the Assembly. In all the three Provinces there must be a registration of Voters, the foundation in all being the same, namely—the Assessment List of the District—the details for the Begister of Voters, simply varying according to the qualifications which give the vote, and which entitles the Voter's name to be put upon the List—the exceptional instances in Nova Scotia being when the representatives of a deceased party, or the members of a firm assessed are entitled to vote; and in New Brunswick, when there has been no assessment in the parish for the year for which the List ought to be made up.
In Ontario the voting is viva voce.
In New Brunswick and Nova Scotia—By Ballot—introduced in Elections in New Brunswick in 1855; in Nova Scotia in 1870.
The Mode, of Conducting the Election.
The mode of conducting the Election by ballot is very much the same in Nova Scotia as it is in New Brunswick, the most material distinction between the two being that in the several Polling Districts in New Brunswick the Ballots are openly counted at the close of the Poll at each Polling Place, in the presence of the Candidates, or their Agents, duly added up openly in the presence of all parties, entered] in the Poll Books or Check List,
igned by the Poll Clerk, and countersigned by the Candidates or their Agents. and the Ballots then forthwith destroyed, the countersigned Poll Book or Check List with a written statement of the result of the Poll at that District, with the signatures of the Candidates or their Agents is then forthwith enclosed, sealed up, and publicly delivered to the presiding officer to be transmitted to. the Sheriff to be opened on Declaration Day.
Whereas, in Nova Scotia the Ballot Boxes, with the Ballots are sealed up and sent. This mode was in accordance with the Law first introducing the Ballot in New Brunswick, but, being found liable to abuse, was subsequently amended as above mentioned.
In Nova Scotia—The 17th sec. of the Act of 1870, introducing the Ballot, abolishes the Public Meeting held by the Sheriff on Nomination Day, but he is to attend at the Court House, or other place prescribed, between 11 a. m. and 2 p. m., for the purpose of receiving the names of the Candidates, and he shall exclude all p3rsons not hiviug business in connection with the Election.
In Ontario and Nova Scotia, in ease of a General Election, the Polling must be simultaneous throughout the whole Province.
In New Brunswick it is not so; the Sheriff or the Presiding Officer for the County or City selects such time within the writ as he deems most suitable for the convenience of the Electors within his County.
As under the Dominion Act, with the exceptions pointed out, the elections are to be held under the laws which were in force on the 1st of July, 1867, the reforms introduced into Nova Scotia, by the Act of 1870—of the ballot and the abolition of the hust"igs on nomination day—will not be applicable.
J. II. Gray.