204 



DISCOVERY 



case dealing with a woman's right to vote, observed 

 " that the absence of such right is referable to the fact 

 that in this country, in modern times, chiefly out of 

 respect to women, and a sense of decorum, and not from 

 their want of intellect, or their being for any other such 

 reason unfit to take part in the government of the 

 country, they have been excused from taking any share 

 in this department of public affairs " (Chorlton v. 

 Lings (1868), L.R. 4 C.P. at p. 392). In the eyes of the 

 common law a definite distinction was drawn between 

 public activities in any sphere and the domestic avoca- 

 tions of women. Lord Ronan, on the petition of 

 Georgina Frost to be admitted to the office of Clerk 

 to the Petty Sessions, drew a further distinction be- 

 tween [a) a judicial and (b) a public office ([1919] 

 I Ir. R. at p. 100). This has been adopted by a learned 

 American writer, who, after examining the catena of 

 decided cases upon the subject in the United Kingdom 

 and the United States, comes to the conclusion 

 {Harvard Law Review, December 1919, p. 297) : 

 " Most of the cases concern women's eligibility to 

 administrative offices, and it is generally said, even by 

 courts which hold that there is no ineligibility here, 

 that the eligibility does not extend to judicial and legis- 

 lative offices. Certainly the capacities required by the 

 three classes of office differ ; in each, common law 

 eligibility depends upon custom, and, as there is con- 

 siderably less evidence of women holding offices of the 

 last two classes, the distinction will probably be 

 maintained. As for administrative offices, the tendency 

 of recent years has been to hold women eligible." 



But so far as the United Kingdom is concerned the 

 opening of administrative offices to women had abro- 

 gated the common law principle enunciated by Lord 

 Esher. The appointment of Factory Inspector is an 

 example of the manner in which the change has been 

 carried through, although there was no legislative enact- 

 ment. The Home Secretary being of opinion, according 

 to the Chief Inspector of Factories in his annual report 

 for the year 1893, " that the field for the employment of 

 women, within the limits of their own special capacities 

 and aptitudes, should be as wide and as large as could 

 possibly be made, and that there is no field in which 

 they could be more usefully or fruitfully employed than 

 in looking after the health and the industrial conditions 

 under which their fellow women labour in the factories 

 and workshops," simply appointed two " off his own 

 bat." Another Home Secretary might have adopted 

 the decision in Beresford-Hope v. Lady Sandhurst, 

 as the Act authorising the appointment of factory- 

 inspectors makes no mention of women, just in the 

 same way as the Lord Lieutenant of Ireland refused to 

 confirm Miss Frost's appointment as Clerk of the Petty 

 Sessions [Georgina Frost [pauper] v. The King. The 

 Times, April 28, 1920). Acts of Parliament, judicial 



decisions, and even the well-established common law 

 of the country give way before common sensesuppwrted 

 by pubhc opinion, so that by general consent women 

 have exercised various administrative functions for a 

 number of years. On the other hand, measures like 

 the grant of the suffrage to women can only have effect 

 so far as they are carried into operation by the supf)ort 

 of public opinion, expressed by attendance at the jjolls. 

 Acts passed fifteen years ago by which women were 

 admitted to various public offices still remain almost 

 a dead letter, although women's knowledge and exjjeri- 

 ence are much needed in spheres of local government 

 peculiarly within their province. 



There are only ten statutes included in the schedule 

 to the Act of 1919 as being specifically amended by the 

 provision that women will now be eligible for all 

 statutory offices. Four apply only to Ireland and three 

 only to Scotland. The most important of the remain- 

 der is the Juries Act, 1870, which embodied the prin- 

 ciple of the common law that women were disqualified 

 from serving on juries. Now, however, women possess- 

 ing the requisite property qualifications must be sum- 

 moned as jurors. It should be observed that the duty 

 of service to the community in this capacity is obli- 

 gatory, though a woman may be exempt from service 

 " in respect of any case by reason of the nature of the 

 evidence to be given or of the issues to be tried," 

 or if for medical reasons she is unfit to attend; but having 

 regard to the difficult}' in securing jurors she \v\\l not 

 readily escape from making her contribution to the 

 administration of justice in the country. These ten 

 statutes, of course, do not exhaust the number which are 

 affected by the new Act, as a large number, hke the 

 Irish Act above mentioned relating to Petty Sessions, are 

 not specifically but only constructively limited to men. 



The opening of the Civil Service to women is accom- 

 panied by the proviso in the Act that " His Majesty 

 may by Order in Council authorise regulations to be 

 made providing for and prescribing the mode of the 

 admission of women to the civil service of His Majesty, 

 and the conditions on which women admitted to that 

 service maj' be appointed to or continue to hold posts 

 therein, and giving power to reserve to men any branch 

 of or posts in the Civil Service in am- of His Majesty's 

 possessions overseas, or in an}- foreign country." 



Although the CivU Service cannot be regarded as one 

 of the close corporations whose doors are opened by 

 the Act, it is probably quite as conservative and 

 bound by prejudice as other bodies who are attacked 

 for possessing those qualities. The provision inserted 

 in the Act without conditions enables the intention 

 to place women on the same footing to be rendered 

 nugatory by administrative action. Before the war 

 the Royal Commission on the Civil Service found that 

 Government Departments had paid little heed to 



