COUNTY WOMEN.
“Earls, Lords, and Ladies, Suitors at the County Courts.”
THE Statutory history of Individual Privilege is not clear in very early
times, before the Norman Customs and Saxon Laws coalesced. Magna Charta
was wrested from John in 1215, and confirmed by succeeding monarchs. It
is written in Latin, and the word Homo is applied throughout to both
sexes. When it is intended to distinguish males from females other words
are used. The most important clause in that Charter is, “To none will we
sell, to none will we deny, to none will we delay the right of Justice.”
There were then no doubts in the mind of the people, no quibblings in
the courts of law as to whether or not it extended to women. All early
laws are couched in general terms, however they may have suffered from
later legal and illegal glosses. Coke upon Littleton, Inst. II., 14, 17,
29, and 45, explains that “Counts and Barons” represent all other
titles, whether held by men or women; that Liber Homo meant _freeman_
_and freewoman_. “Nullus liber homo. Albeit _homo_ doth extend to both
sexes, men and women, yet by Act of Parliament it is enacted and
declared that this chapter should extend to Duchesses, Countesses, and
Baronesses. Marchionesses and Viscountesses are omitted, but,
notwithstanding, they are also comprehended within this chapter.”
=County women inherited freeholds= under the same conditions as
Noblewomen.
If an heiress married a man of an inferior family or a smaller property,
she could, if she chose, raise him to her rank, and make him take her
name. Thomas de Littleton, upon whose Digest of English laws Coke
exercised his talents, received arms, name, and estate from his mother,
“who, being of a noble spirit, _whilst it was in her power_, provided,
by Westcote’s assent, that her children should bear her name.” In other
words, the heiress of the Littletons married Westcote, but while she was
yet a freewoman imposed conditions. (_See_ “Life of Littleton” prefixed
to his works.)
=When married could act as femes soles.=—Among “ancient deeds and
charters, drawn up by landowners in the time of Edward III. and Richard
II.” (Harl. MS. 6187), there are many executed by women, many sealed by
women alone, their husbands being alive, many sealed by women along with
their husbands.
A grant by William Faber de St. Briarville and Sarra his wife is sealed
by the name of Sarra Hathwey alone, and another deed by her son is
signed by William Faber, son and heir of Sarra Hathwey.
Robert de la Walter de Staunton and his wife Marjory combine in a deed,
and both seals affixed. So Thomas Waryn and his wife Julia, daughter of
Thomas Baroun, Richard de Pulton and Agnes his wife, and others.
=They owed also military service= either to their Overlord or to the
King directly. We find this abundantly illustrated in Palgrave’s
“Parliamentary Writs,” and in any of the Domestic Series of State Papers
in the Public Record Office recording service assessed. All names are
used in common. For instance, “Names of _gentlemen_ furnishing light
horses and lances, 1583: Bramber, Dorothy Lewknor, 2; Pevensey,
Elizabeth Pankhurst, 1, etc.; Domina Gage, 2;[6] John Gage, 2; Elizabeth
Geoffrey, 1” (Harl. MS., 703, f. 87).
Footnote 6:
These were “the two Gages” mentioned in connection with the Copleys of
Gatton.
There are many women returned in the “Rotuli Hundredorum,” Ed. I., as
holding under military tenures in capite. “Eve de Stopham held her
estate by finding for the King one footman, a bow without a string, and
an arrow without feathers” (Blount’s “Tenures”). “Lady Custance de
Pukelereston holds Pukelereston by finding one man and a horse, with a
sack and an axe, at the summons of the King” (“Testa de Nevill,” 252).
The Manor of Gatton, known as the scene of contested elections in after
years, was held by the service of a knight’s fee and the payment of
Castle guard to Dover Castle.
The “Testa de Nevill” compiled in the reign of Henry III. and Edward I.,
gives the list of many holding in capite and of Overlords by military
service.[iii.]
=They also paid and received Homage.=—In the Harl. MS. (6187) many of
the tenements are conveyed by women, on condition of Homage rendered and
service given; as, for instance, in the cases of Sibilla de Bruneshope,
widow; Johanna de Muchgross, daughter of Willian de Muchgross; Agnes de
Bellecores; Agnes, daughter and heir of Henry de Munsterworth; Cecilia
Blundell de Teynton.
Among the Records of Banham Marshall, Beckhall and Greyes, there is one
transferring lands to a certain Dorothy Gawdy, 31st March, 1659. “At a
court held by the Homage”—“to which said Dorothy here in full courte is
delivered thereof seisin. To hold to her and to her heires by A Rodd att
the will of the Lords, according to the custom of this Manor, by the
rents and services therefore due and of right accustomed and she giveth
to the Lords a fine. Her fealty is respited for a certain time.” Five
days later this Lady died, and a new transfer was made to her heirs male
in same form.
=They could present to Churches.=—In 16 Edward II. Eleanor, wife of
Thomas Multon of Egremond, petitions the King and Parliament against the
Bishop for interfering with her appointment of a clerk, as she was
endowed with the advowson of the Church of Natlugh in Ireland. Order
that justice be done to the said Eleanor (Tower Rolls).
Matilda de Walda was patron by inheritance of Saint Michael’s of
Canterbury. (See “Rotuli Hundredorum,” Edward I., vol. ii., 392.)
The Lady Copley presented to Gatton living in 1552.
The list, however, of ladies holding advowsons and gifts of churches, is
so long, that more need not be noted, especially as this right is not
denied to-day.
=They could hold Motes.=—We may find the local duties of County women
illustrated in the “Rotuli Hundredorum,” and other authorities already
quoted.
“Benedicta, widow of Sir Thomas Uvedale, granted a lease to Thomas Brown
of 2½ acres and foure _dayewarcs_ of land ... by the yearly rent of 2s.
6d., and suit at her court of Wadenhalle every three weeks” (“Surrey
Archæological Collection,” vol. iii., p. 82).
=They could attend Motes.=
=They could be free Suitors to the County Courts, and there act as Pares
or Judges.=
Women combined with men to elect Knights of the Shire to defend in
Parliament the rights of their property and themselves from unequal
assessment of subsidy and undue exactions of the King.
In Sir Walter Raleigh’s treatise on the Prerogative of Parliaments, he
traces back the origin of the House of Commons to 18 Henry I. on rather
slender bases. At the time of the struggle with John it was clearly
perceived that irresponsible kings could not be trusted to observe all
the clauses of Magna Charta, and general councils were provided for.
John promised to summon _all classes_ to consult with him when it was
necessary to assess aids and scutage. But John’s word was not worth
much.
The first _clear_ Summons appears to be that of 38 Henry III. (1254),
when a Writ was issued requiring the Sheriff of each County to “cause to
come before the King’s Council two good and discreet Knights of the
Shire, whom the _men_ of the County shall have chosen for this purpose
in the stead of all and of each of them, to consider, along with Knights
of other Shires, what aid they will grant the King.”
In 49 Henry III. (1265), writs were issued for “two Knights of the Shire
to be chosen by _the annual suitors at the County Courts_,” and two
Citizens from each Borough. Their expenses were to be paid by those who
sent them.
The Statute passed in the Parliament of Marlebridge (52 Henry III.) by
members elected in this manner, more clearly defined this method of
election, and confirmed the more ancient Statutes regarding _the County
Courts_. Hallam and Lewis trace their origin to the Anglo-Saxon
Shiregemote, Folkmote, or Revemote, and prove that the Sheriffs and
dignitaries possessed only directory and regulative powers; that the
Freeholders, who were obliged to do “suit and service,” were the Pares
or Judges, as well as the Electors of the Knights of the Shire, and of
the Sheriffs themselves.
Concerning this court, it had been provided (43 Henry III.), “that
Archbishops, Bishops, Earls, Barons, or any religious Men or Women,
should not be forced to come thither unless their presence was
especially required.” Their goods could not be distrained for
non-attendance. That this was intended as a Franchise of Privilege, not
inducing a penalty of exclusion, is perfectly clear, not only in the
reading of the Act itself, but in its effect upon later laws.
So Coke, (Inst. II., 119,) elucidating the laws of Marlebridge, made
three years later, says, “Note. A woman may be a free Suitor to the
Courts of the Lord, but though it be generally said that the free
suitors be Judges in these courts, it is _intended of men and not of
women_.”
This “priestly intention” sprang only from Coke’s own mind. He cites no
authority for his opinion, nor could he have found one. To have deprived
a female “Suitor” of her right to express her opinion and thereby help
to determine the questions brought before the Court, in the light of her
own interests, inclinations, or opinions, would have taken away her
prime _raison d’être_. Her second privilege was that of giving her
voice, with other freeholders, towards the election of a knight, “in the
stead of all and of each of them,” to go to the King’s parliament,[7]
and defend her interests there. Upon the petition of the Commons that
proclamation should be made of the day and place of the meeting of the
County Court, it was decreed, “All they that be there present, as well
_suitors_ duly summoned, as _others_, shall attend to the election of
the Knights of Parliament.... And after they be chosen, the names of the
persons so chosen shall be written in an _Indenture_,[8] under the
_seales_ of all them that did chuse them, and tacked to the said writ of
Parliament” (7 Henry IV., c. xiii.). A certain limitation, therefore, of
electors, must have been caused through the necessity of possessing
seals. In 8 Henry VI. the suitors at the County Court were limited to
those who had not less than a 40s. freehold. It was soon made clear that
the House of Commons was only intended to represent those not eligible
in person or in representation to the Upper House; so that the county
elections became limited to county freeholders below the rank of Peers.
But there is no question, at any time, of altering the Franchise from
the general terms to others that would limit it to the masculine being.
That women did frequent the courts in person is proved in Prynne’s
“Brevia Parliamentaria Rediviva” (p. 152, _et seq._), where he refers to
“sundry Earls, Lords and Ladies who were annual suitors to the County
Courts of Yorkshire.” That women recorded these votes, and sealed the
indentures of the Knights elected, is also proved by Prynne. The two
points that surprised Prynne were, that the earliest preserved
indentures were _all_ signed by the Nobility of the County, and by them
alone, and also that they were all sealed by attorney, by Lords, or by
Ladies alike, down to 7 Henry VI., after which they were signed by all
Freeholders personally. He does not seem to remember that these were the
classes privileged by Act 43 Henry III., to absent themselves from the
County Courts; and that acting by proxy was considered a privilege of
the nobility. It might very well have been considered that Archbishops,
Earls, Lords, and Ladies were “especially required” at the County Court
to hear and decide on some important territorial dispute, and yet that
they could decide on the merits of a candidate at home, and send their
Attorneys to the County Court to seal for them there in the presence of
the Sheriff. One such indenture (2 Henry V.) is signed by Robert Barry,
the Attorney of Margaret, widow of Sir Henry Vavasour. In another return
from the County of York, one Attorney signs for the Earl of
Westmoreland, and another for the Countess, for the lands each held as
freeholds in that neighbouring county.
Footnote 7:
The first use of the word “Parliamentum” occurs in the Prologue to the
Statutes of Westminster in 1 Edward I.
Footnote 8:
Prynne notes that only Cedules have been preserved of the returns of
the knights before the Statute of 7 Henry IV., c. xiii.
Prynne also preserves an Indenture signed by the attorney of Lucia, the
widowed Countess of Kent (13 Hen. IV.). This lady was an Italian, a
Visconti, the daughter of the Duke of Milan, and her foreign extraction,
or her failing fortunes at the time,[9] may have induced her to exercise
her privilege as regards the Member of Parliament, while she preserved
the dignity of her nobility by voting by Attorney.
Footnote 9:
_See_ Petitions to Parliament (Hen. IV.), Burke’s “Extinct Peerages,”
“Inquisitions _Post-Mortem_.” (Hen. V.)
I have not found any example of a lady “Knight of the Shire,” but
neither have I found the shadow of a _law_ against their existence
beyond that of the electors’ choice, or the ladies’ convenience. Anne
Clifford said that if her candidate did not come forward “she would
stand herself.” (Dr. Smith to Williamson, Jan. 1668. Dom. Ser. State
Papers, Public Record Office.) But as women summoned to do military
service were _allowed_ to send a substitute, as women summoned to the
County Courts were _allowed_ to absent themselves, and _allowed_ to send
an Attorney, so were they allowed to send their knights to the House of
Commons.
If women of the Middle Ages had but realised what their ancestresses did
before them, “that they were receiving what they must hand down to their
children neither tarnished nor depreciated, what future daughters-in-law
may receive, and may so pass on to their grandchildren” (Tacitus Germ.,
c. viii.), the needs of litigation on this point might not have arisen
later.
=Could Nominate to Private Boroughs.=—Certain Boroughs formerly held by
military tenure seemed to have been included in those permitted to
return burgesses to Parliament, though belonging to one owner. When
women inherited the property and held the Borough, they returned their
one or two members, as the custom might be, in their own name. “The
members of many ancient Boroughs were often returned by the Lords, and
sometimes by the Ladies of the Manors or Boroughs” (Plowden’s “Jura
Anglorum,” p. 438). Many cases are doubtless lost among the piles of
missing records. But two very illustrative examples have been preserved
for us, just sufficient to clear away all doubts from the minds of
students of history that women sometimes exercised the privileges they
possessed.
In a bundle of Returns for 14 and 18 Eliz., Brady has preserved, and
Heywood, in his “County Elections,” has quoted, that of Dame Dorothy
Packington, the owner of the private Borough of Aylesbury. In days when
military service might have been demanded of her, she would have sent
her “substitute” to defend her sovereign; in days when subsidy service
was expected of her, she sent a “substitute” to Parliament to defend her
interests there, and she paid for both her military and civil
representatives. “To all Christian people to whom this present writing
shall come, I, Dame Dorothy Packington, widow, late wife of Sir John
Packington, Knight, Lord and Owner of the Town of Aylesbury, sendeth
greeting. Know ye me, the said Dame Dorothy Packington, to have shown,
named, and appointed my trusty and well-beloved Thomas Lichfield and
John Burden, Esquires, to be my burgesses of my said town of Aylesbury.
And whatsoever the said Thomas and George, burgesses, shall do in the
service of the Queen’s highness in that present parliament to be holden
at Westminster the 8th day of May next ensuing the date hereof, I, the
same Dame Dorothy Packington, do ratify and approve to be my own act, as
fully and wholly as if I were, or might be present myself.” She signed
their indentures, sealed them, paid “their wages” and their expenses in
whole, as others did in part. That the return was held good is
sufficient to prove its legality.[10] There is not the shadow of grounds
for a belief that she “acted as returning officer,” as some have said
who have not studied the case. Later on, when the population of
Aylesbury increased, and the ambitions of Aylesbury extended, there was
an appeal by the inhabitants for permission to share in the Returns.[11]
But the objection to the monopoly of the Family-Return did not include
an objection to the woman that exercised it.
Footnote 10:
_See_ List of Parliamentary Returns, vol. i., p. 487.
Footnote 11:
A trial in Aylesbury because some inhabitants brought a case against
the revising barrister for refusing their vote, saying that “refusing
to take the plaintiffs’ vote was an injury and damage.” (Jacob’s “Law
Dictionary.”)
Another memorable instance is preserved for us in the Journals of the
House of Commons itself.
I have found out so many curious, hitherto un-noted details about it,
that I thought it advisable fully to illustrate the conditions of the
case, so that it may not again be mistranslated, as it has so often
been. On March 25th, 1628, there was a contested election for the
Borough of Gatton. There were _two_ indentures returned, one by the
inhabitants of the borough, and the other by Mr. Copley. Though he
returned Sir Thomas Lake, and Mr. Jerome Weston, “it was held not good
that he should have returned alone.” The case was argued out before the
Committee of privileges in the House of Commons, of which Glanvil,
Hakewell, and Sir Edward Coke were members. Mr. Copley based his claim
on returns made by Roger Copley, as the _sole inhabitant_ in 33 Henry
VIII.; and by Mr. Copley in 1 and 2 Phil. and Mary, 2 and 3 Phil. and
Mary. “On the other part, in 7 Edward VI., Mrs. Copley et omnes
inhabitantes returned. In 28º, 43º Eliz. 1º, 18º Jac., the return was
made by the inhabitants, and in all later parliaments Mr. Copley joined
with the other inhabitants.”
The Committee and the other members of the House decided that “Mrs.
Copley and the other inhabitants” was the true and legal Precedent for
the form of Return. And that is the last word Parliament has had to say
upon a Woman-Elector. (_See Commons Journal_ of date.) But the
side-lights of the story are interesting. In the first place, the
_Commons Journal_ has a misprint of an “s” in two cases. Roger Copley
died in 1550-1; and from the manuscript copies of the _Commons Journal_
we may see that _Mrs._ Copley is entered as returning alone in 1 and 2
Philip and Mary, and 2 and 3 Philip and Mary. (_See_ Lansdowne MS.,
545.) Further, both the printed and the MS. copy are wrong about her
title, as she was the Lady Elizabeth Copley, or “Elizabeth Copley Domina
de Gatton.” This mistake shows that her own _seal_ was affixed to the
indenture with her Christian name, to which the Committee added “Mrs.”
instead of “Lady.” Further, she must also have returned in 4 and 5
Philip and Mary, and must have returned her son.[12] On the 5th March
young Copley of Gatton was committed to the sergeant for irreverent
words spoken of Her Majesty, and on 7th March Parliament was prorogued
till 5th November. (_Commons Journal._) This receives further
explanation in additional MS. 24, 278, collected by Sir Richard St.
George Norroy:—“Sat., 5th March, 4 and 5 Philip and Mary. For that Mr.
Copley, a member of this house, hath spoken irreverent words of the
Queenes Majestie, concerning the Bill for confirmacion of pattents,
saying that he feared the Queene might thereby give away the Crowne from
the right inheritor, the house commanded, by Mr. Speaker, that Copley
should absent himself until consultation more had thereof. And after
consultation had and agreed to be a grievous fault, Copley was called in
and required this House to consider his youth, and that if it be an
offence it might be imputed to his young yeares. The House referred the
offence by the Speaker to the Queene with a plea for mercy, and Mr.
Copley committed to the custody of the Sergeant-at-arms. Monday, 7th
March, Mr. Speaker declared that he had declared to the Queenes Majestie
the matter touching Copley, wherein hir pleasure was that he should be
examined whereof fresh matter did spring. Nevertheless, Her Majestie
would well consider the request of the House in his favour. In the
afternoon Parliament prorogued” (_Commons Journal_). “Elizabeth, the
second wife and widow of Sir Roger Copley, daughter of Sir William
Shelley, Justice of the Common Pleas, presented to the Church of Gatton
in 1552, as did her son Thomas in 1562; but after that time, the family,
being Roman Catholics, it was vested in trustees, 1571” (Manning and
Bray’s “Surrey”). The troubles of the Copleys and Gatton arose from
_recusancy_, not women’s elections. Elizabeth died in 1560, “seized of
Gatton,” held of the Queen in fealty for 1d. rent, and 20s. castleguard
to Dover Castle. (_See_ “Inquisition _Post-Mortem_,” 29 April, 2 Eliz.)
It must, therefore, have been settled on herself. The daughter of Sir
William Shelley would surely be well advised of her legal rights, and,
perhaps, her association of the other inhabitants with herself in her
election of 7 Edward VI., arose from an appreciation of the tendency of
popular opinion in favour of an inhabitant suffrage, instead of a
freeholding one.
Footnote 12:
“Thomas Copley Armiger, Thomas Norton Armiger, Gatton.” Names supplied
from the Crown Office in place of original returns. (Parliamentary
Returns, vol. i., p. 398.)
In Harl. MS., 703, Burghley writes to the Sheriff of Surrey:—“Whereas
there are to be returned by you against the Parliament two Burgesses for
Gatton in that Countie of Surrey, which, _heretofore_, have been
_nominated by Mr. Coplie_, for that there are no Burgesses in the
Borough there to nominate them, for as much as by the death of the said
Mr. Copley and minoritie of his sonne, the same which his lands are
within the survey and rule of the Court of Wards, whereof I am her
Majestie’s chiefe officer, you shall, therefore, forbeare to make
returne of anie for the saide towne, without direction first had from me
therein, whereof I praie you not to faile” (St. James, 13th Nov., 1584).
Sir Thomas died abroad, 1584, aged 49, leaving William, his son and
heir. Apparently Francis Bacon and Thomas Busshop had been nominated by
Burghley; because the next letter preserved, dated 24th Nov., 1584,
tells the Sheriff to appoint Edward Browne, Esq., in the place of Bacon,
who had been returned for another borough. In 11th Sept., 1586,
Walsingham instructs the Sheriff of Sussex to send up Mrs. Copley of
Rossey to the charge of the Warden of the Fleet, and the two Gages, and
they are to have no conference. Jan. 29th, 1595, Buckhurst writes to Sir
Walter Covert and Harry Shelley, Esq., to apprehend “the Lady Copley and
certaine other daungerous persons remayning with her as it is enformed,
where very dangerous practizes are in hande” (Harl. 703, f. 87).
“The Queen, by reason of —— Copley, Esq, going beyond sea and not
returning according to Parliament, presented Ralph Rand, M.A., to the
Church of Gatton, 8th Feb., 1598.”
On 7th Feb., 1620, the House considered the return of Gatton in Surrey.
One Smith, a burgess for that town, and a son of Mr. Copley appeared.
Mr. Copley, lord of the town, a recusant convict, with six of his
lessees, no freeholders, made their choice the Tuesday before; the
freeholders made their choice, on the Wednesday, of Sir Thomas Gresham
and Sir Thomas Bludder. The first return held void. Sir Henry Brittayne
asked leave to speak; he said “the writ was directed Burgensibus, and
delivered to Mr. Copley. The town was but of seven houses, all but one
Copley’s tenants. That the election by them good not being freeholders.
That all the freeholders, except one, dwelt out of the town, and only
held of the manor in the town.” “Sir Edward Coke spoke against Copley’s
return, and moved for a new election, _in case of danger from Copley_”
(_Commons Journal_). (_See_ also Lansd. MS., 545; Hakewell’s “Report of
the Gatton Case.”)
This, therefore, makes the controversy comprehensible that, in 1628, was
illustrated by the records.
Mr. William Copley was not inclined tamely to resign the ancient
privilege of his family of sending up Burgesses for their own Borough;
he attempted to do so again, in spite of the decision of 1620, and
through the adverse decision in his case, Parliament affirmed, and Sir
Edward Coke with it, the right of a woman to vote.
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