CHAPTER V.

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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British freewomen · 第 5 / 9 章