THE LONG EBB.
“Ye have made the law of none effect by your tradition.”
=The Errors of Sir Edward Coke.=—In a historical treatise it is not
necessary fully to analyse causes. Facts must be left to speak for
themselves. It is a patent fact that, early in the seventeenth century,
men’s views regarding women became much altered, and the liberties of
women thereby curtailed. But there is generally one voice that in
expressing seems to lead the opinion of an age. The accepted voice of
this period, on this subject, was not that of the “learned Selden”
[vi.], but of the “legal Coke.” He first pronounced an opinion on the
disability of women, and, as every other _so-called authority_ depends
upon his, it is necessary to examine the grounds of his opinion first,
as with him all his followers must stand or fall.
When he was speaking against the Procuratores Cleri having a voice in
Parliament, it was urged on him that it was unjust that persons should
have to be bound by laws which they had had no voice in making. To this
he replied, “In many cases multitudes are bound by Acts of Parliament
which are not parties to the elections of knights, citizens or
burgesses, as all they that have no freehold, or have freehold in
ancient demesne; and _all women having freehold or no freehold_, and men
within the age of one and twenty years” (“Fourth Institute,” 5). He
quotes no record, he suggests no authority, he adduces no precedent. He
could not. Yet from this one _obiter dictum_ of his, uttered in the heat
of his discussion against clergymen, recorded in loose notes, and
published without correction after his death, has arisen all consequent
opinion, custom and _law_ against the Woman’s Franchise. So terrible can
be the consequences of the by-utterances of a Judge when _careless,
prejudiced, or wilfully ignorant_. That Coke could be all three it is
easy to prove.
(1) In Prynne’s “Introduction to the Animadversions on the Fourth Part
of the Lawe of England,” he says, “My ardent desires and studious
endeavours to benefit the present age and posterity to my power by
advancing learning ... by discovering sundry misquotations, mistakes of
records in our printed law books reports, especially in the Institute of
that eminent pillar of the Common Law, Sir Edward Coke, published, with
some disadvantage to him and his readers since his death, whose
quotations (through too much credulity and supineness) are generally
received, relied on, by a mere implicit faith, as infallible Oracles,
without the least examination of their originals.”
Male credulity in regard to Coke has been the cause of so much direct
and indirect suffering to women that it is not surprising that they now
attempt to get behind “the Oracle,” and question the Spirit itself of
the English Constitution. Many other writers besides Prynne refer to
Coke’s want of care. “In 1615 the King told him to take into
consideration and review his Book of Reports; wherein, as His Majesty is
informed, be many extravagant and exorbitant opinions set down and
published for positive and good law.” (Chalmers’ Biog. Dict.) “The
Institutes published in his lifetime were very incorrect. The 4th part
not being published till after his death, there are many and greater
inaccuracies in it.” One example in the contested passage may be noted.
He says that those who had no freehold had no vote. He did not die until
1634, and the notes for the “Fourth Institute” were the last work of his
life. But Granville’s “Reports” prove that by the Parliaments of 1621
and 1628 the Franchise was declared to be vested in _inhabitant
householders whether freeholders or not_, so he was incorrect as to that
statement at least.
(2) That, through prejudice, he could be blinded to Justice can be seen
in that picture preserved by his Biographers of his hounding Sir Walter
Raleigh to his death by virulent unjudicial denunciations; or in that
other when he and his followers made a riot with swords and staves in
seizing his daughter from the home in which his wife (formerly Lady
Hatton) had placed her. The King’s Council severely reprimanded him for
his illegal action then. (_See_ “The Letter of the Council to Sir Thomas
Lake regarding the Proceedings of Sir Edward Coke at Oatlands,” “Camden
Miscell.,” vol. v.)
The petition of Sir Francis Michell to the House of Commons, 23rd
February, 1620, contains trenchant criticisms on Coke’s conduct as
partial and passionate. Though they may be somewhat discounted by the
writer’s position, they must have had some basis of truth. Michell said
that when summoned before the Bar, Sir Edward Coke prejudiced his cause
by saying aloud, “When I was Chief-Justice, I knew Sir Francis Michell;
he is a _tainted man_,” which saying discouraged his friends from
speaking on his behalf. He repeats elsewhere that Coke was wont “to make
invectives by the hourglass”; and indeed adds many other more serious
charges. Michell was put out, as was the custom, when his case was being
discussed. In his absence, he was condemned to go to the Tower, and on
being re-admitted, thought he was to be allowed to defend himself as was
the custom, and “asked leave to speak for himself, which Sir Edward Coke
_hastened to refuse_” (Sir Simon d’Ewes’ Papers, Harl. MSS., 158, f.
224). “His rancour, descending to Brutality was infamous” (Dict. Nat.
Biog.). Sir Francis Bacon writes to him, “As your pleadings were wont to
insult our misery and inveigh literally against the person, so are you
still careless in this point to praise or dispraise upon slight grounds
and that suddenly, so that your reproofs or commendations are for the
most part neglected and contemned, when the censure of a Judge coming
slow but sure should be a brand to the guilty and a crown to the
virtuous.... You make the laws too much lean to your opinion, whereby
you show yourself to be a legal tyrant” (Foss’s “Lives of the Judges”).
James I. is known to have called him “the fittest engine for a tyrant
ever was in England.”
He was an only son with seven sisters, which position probably made him
overvalue his own sex. His well-known matrimonial disputes probably
helped to increase his prejudice against the other sex.
(3) That he could be _wilfully ignorant_ there is abundant ground to
believe. He married again five months after his first wife’s death,
without Banns or Licence, and to escape Excommunication, he pleaded
Ignorance of the Law!! “Not only does he interpolate, but he is often
inaccurate; sometimes, as in Gage’s case, he gives a wrong account of
the decision, and still more often the authorities he cites do not bear
out his propositions of law. This is a fault common to his Reports and
his Institutes alike, and it has had very serious consequences upon
English Law” (Dict. Nat. Biog.). Holt _v._ Lyle, and Catherine _v._
Surrey had been decided when he was Attorney-General. These affirmed
that “a _feme sole_ could vote for a Parliament man.” The Gatton case
had been decided in a Parliament, and by a Committee of which he was a
member; and whether he had concurred in it or not, he cannot but have
been aware that other members of Parliament, even in his day, allowed
the woman’s privilege.
Others have accused him of suppressing and falsifying legal documents.
(_See_ Chisholm Anstey’s “Supposed Constitutional Restraints.”) Chief
Justice Best from the Bench said, “I am afraid that we should get rid of
a good deal of what is considered law in Westminster Hall if what Lord
Coke says _without authority_ is not law.” 2 Bing, 296.
One other case which afterwards told heavily upon women we may note.
“Coke artfully inserted in the marriage settlement of his fourth son
John, with the daughter and heiress of Anthony Wheatley, a clause of
reversion to _his own heirs_ to the exclusion of heirs female, which was
not discovered until 1671, when John having died, leaving seven
daughters, their mother’s paternal inheritance passed away from them to
their uncle Robert, Coke’s fifth son.”
“His legal propositions may often be unsound in substance, but in his
mode of stating what he believes or wishes to be law he often reaches
the perfection of form” (Dict. Nat. Biography). This “_form_” may be
sufficient to satisfy legal technicalities, but I think I have brought
forward enough to show that intelligent women have reason to object to
him as a “tainted” authority. [vii.]
Coke tells us in his “Fourth Institute,” what properties a Parliament
man should have. “He should have three properties of the elephant;
first, that he hath no gall; second, that he is inflexible and cannot
bow; third, that he is of a most ripe and perfect memory. First to be
without gall, that is without malice, rancour, heat and envy.” We have
shown that Coke was deficient in the first quality prescribed by
himself for just judgment. His abject submission to the Archbishop
after his Breach of the Canon Law, shows that he could bow very low to
escape the consequences of his wrongdoing; his groveling in the dust
before James, when he had roused the King to wrath, shows that he
could do the same when he thought he was right, “from which we may
learn that he was, as such men always are, as dejected and fawning in
adversity as he was insolent and overbearing in prosperity” (Chalmers’
“Biography”). We must now prove that he was deficient in the third
quality also. His memory was imperfect. He forgot one Statute when he
was criticising another; he forgot what he had written in the “Second
Institute,” when he was preparing his manuscript for the Fourth. It is
only by self-contradiction that he can hold the opinion now under
discussion. From his own works we must judge him on this count (Coke
_v._ Coke). In the “Fourth Institute,” 5, he classifies women with
minors. In the “Second Institute,” c. iii., 96, his authorised and
corrected work, he says on the contrary, “Seeing that a _feme sole_
that cannot perform knight’s service may serve by deputy, it may be
demanded wherefore an heir male being within the age of twenty-one
years may not likewise serve by deputy. To this it is answered, that
in cases of minoritie all is one to both sexes, _viz._, if the heire
male be at the death of the ancestor under the age of one and twenty
years, or the heire female under the age of fourteen, they can make no
deputy, but the Lord will have wardship. Therefore, Littleton is here
to be understood of a _feme sole_ of full age and seized of land,
holden by knight’s service,[15] either by purchase or descent.” One
would have thought this clear enough for a legal mind to follow. Women
do not, therefore, come into the same class as minors in regard to
their appointing deputies. But they do come into the class of
Electors. (“Second Institute,” 119.) “A woman may be a free suitor to
the Courts of the Lord, and though it be generally said that the free
Suitors be Judges [viii.] in these courts, this is intended of men and
not of women.”
Footnote 15:
In discussing the “Parliament of Marlebridge” (52 Henry III., chap,
vi., p. 3) he says: “Albeit the heir be not _primogenitus_, but an
heir female, or male lineal or collateral, yet everyone of them be
within the same mischief.”
We have already noted the illegal character of this opinion; but we
repeat it here intentionally. Coke does not see that in avoiding one of
the horns of a dilemma he throws himself on the other. If “women could
be suitors,” and were “not intended to be judges” or pares, the only
other duty left them as suitors, would be “to elect their knights of the
shire!”
The study of the original statutes supports the freedom of women as to
both duties, as well as the fact of their having exercised that freedom.
In Howell’s “State Trials,” 19 (Entinck _v._ Carrington, 6 George III.),
there is a question asked and answered, worthy of repetition here—“Can
the judges extrajudicially make a thing law to bind the Kingdom by a
declaration that such is their opinion? I say no. It is a matter of
impeachment for any judge to affirm it. There must be an antecedent
principle or authority from whence this opinion may be fairly collected,
otherwise the opinion is null, and nothing but ignorance can excuse the
judge that subscribed it.” That women had to submit then is no reason
that they should submit now, as the same case explains—“It would be
strange doctrine to assert that all the people of this land were bound
to acknowledge that as universal law which a few had been afraid to
dispute.”
=A believer in Coke’s views= and methods of perpetuating them was Sir
Simon d’Ewes, High Sheriff of Suffolk. At the elections of 1640, Oct.
19th and 22nd, Sir Roger North and his Royalist friends had charged him
with partiality towards the Puritan candidates. He cleared himself
eagerly and then added, “It is true that by the ignorance of some of the
Clarkes at the other two tables, the =oaths of some single women that
were freeholders= were taken without the knowledge of the said High
Sheriff, who as soone as he had notice thereof instantly sent to forbidd
the same, conceiving it a matter verie unworthie of any gentleman, and
most dishonorable in such an election, to make use of their voices,
_although in law they might have been allowed_. Nor did the High Sheriff
allow of the said votes, upon his numbering of the said Poll, but with
the allowance and consent of the said two Knights themselves, discount
them and cast them out” (Sir Simon d’Ewes’ Papers; Harl. MS., 158). Thus
in a second illustrative case, personal opinion and prejudice were
allowed to counteract law and privilege. And the law-abiding women
yielded to what they were told was law, and, being kept in ignorance,
they knew no better.
But in the very next year women showed that they took a strong interest
in public affairs.
In vol. ii., p. 1673, Parliamentary History, is preserved the Petition
to the Commons for Redress of Grievances, Feb. 4th, 1641. On the last
day of sitting many women had been observed to crowd much about the door
of the Commons, and Sergeant-Major Skippon applied to the House to know
what to do with them, they telling him that where there was one now
there would be 500 next day. The House bade him speak them fair.
Next day they presented their petition (printed by John Wright at King’s
Head in Old Bailey).
“To the Honourable Knights, Citizens, and Burgesses of the House of
Commons assembled in Parliament, the Humble Petition of the Gentlewomen,
Tradesmen’s Wives, and many others of the Female Sex, all inhabitants of
London and the Suburbs thereof, with the lowest submission showing,
etc.”
They acknowledge the care of the House in the affairs of State. They
have cheerfully joined in petitions which have been exhibited “in behalf
of the purity of religion and the liberty of our husband’s persons and
estates.” “We counting ourselves to have an interest in the common
privileges with them.”
“It may be thought strange and unbeseeming to our sex to show ourselves
by way of petition to this Honourable Assembly. But the matter being
rightly considered of ... it will be found a duty commanded and
required. (1) Because Christ hath purchased us at as dear a rate as he
hath done men, and therefore requireth like obedience for the same mercy
as men. (2) Because in the free enjoying of Christ in His own laws, and
a flourishing estate of the Church and Commonwealth consisteth the
happiness of women as well as of men. (3) Because women are sharers in
the common calamities that accompany both Church and Commonwealth, when
oppression is exercised over the Church or Kingdom wherein they live;
and unlimited power given to the prelates to exercise authority over the
consciences of women as well as men: witness Newgate and Smithfield, and
other places of persecution, wherein women, as well as men, have felt
the smart of their fury,” etc.
“The petition was presented by Mrs. Anne Stagg, a gentlewoman and
brewer’s wife, and many others with her of like rank and quality. Mr.
Pym came to the Common’s door, addressed the women and told them that
their petition had been thankfully accepted and would be carefully
considered.”
Coke’s papers had been seized by the King at his death in 1634, but on
the 12th May, 1641, the House of Commons ordered Coke’s heir to print
them, and thus his views on this point were perpetuated.
On the 13th February, 1620, Coke had committed the House to
extraordinary doctrine in another relation to women. Among Mr. Lovell’s
witnesses was a lady, Mrs. Newdigate, “the House calling to have them
called in. Sir Edward Coke out of St. Barnard said, A woman ought not to
speak in the congregation. Examination hereof committed to a committee”
(_Commons Journal_). It is strange that Sir Edward Coke should have gone
so far afield as St. Barnard when St. Paul might have come in as
conveniently. Had he read the gospels as carefully as he had read St.
Barnard, he would have seen that one of the first two preachers of
Christ was Anna the prophetess, who spake of Him in the temple to all
them that looked for redemption in Jerusalem (Luke ii. 36), and that it
was through women that Christ sent the first message to the Apostles and
Disciples, that became the watchword of early Christianity, “Christ is
arisen” (Matthew xxviii., Luke xxiv., John xx.). Coke’s precedent on
this point was reversed in his own century.
On the 17th November, 1666, “Some debate arising whether Mrs. Bodville,
mother of Mrs. Roberts, should be admitted as witness, the matter being
debated in the House, the question being put whether Mrs. Bodville be
admitted, it was resolved in the affirmative, and Mrs. Bodville, with
several other witnesses was examined” (_Commons Journal_).
His utterance on the Women’s Franchise has coloured the minds of willing
disciples until to-day. In Add. MS. 25, 271, Hakewell on impositions,
says, “To make a man judge in his own cause and especiallie ye mightie
over ye weake, and that in pointe of profitt to him that judgeth, were
to leave a way open to oppression and bondage.” So women proved. There
is no doubt that Puritanism on the one hand, and the frivolity of the
fashions of the Restoration on the other, tended to make women content
with their narrowed political privileges, and restricted educational
opportunities. Only among the Society of Friends, commonly called
Quakers, did women retain their natural place. Though there were some
brilliant exceptions, the majority of women, by the procrustean methods
of treatment in vogue were reduced to the state of incompetency that
society came to believe was natural to them. “It was unwomanly for women
to think and act for themselves.” “Women had no concern in public
affairs.” “Men knew much better than women did what was good for them,”
were proverbs.
By losing one privilege they lost others. New laws were made prejudicial
to their interests, and old laws retranslated in a new and narrow
spirit. Precedent gained power to override statute; the notions of
justice between the sexes became warped and distorted.
The laws of inheritance were altered, the rights of women in their
property further ignored. Sophistical Labour Creeds were introduced to
support masculine property privilege. Work was ignoble for _ladies_,
except when done without remuneration; domestic work was not cognisable
in coin of the realm, therefore women were said to be _supported_ by
their male relatives, though they might labour ten times as much as
they. It was natural to educate them little, so that they should not
know; it was natural to take privileges from those who knew not what
they lost.
=Protesting Women.=—But the Suppression of the Sex did not go on without
various Protests on the part of women during the 200 years of this
Backdraw in the tide of Civilisation. We cannot spare time for every
detail; but three illustrative women must be noted—the first born in the
16th Century, protesting against the infringement of the Inheritance
Laws in relation to women; the second born in the 17th Century, against
the withdrawal of their educational advantages; the third born in the
18th Century, against their social, civil and political degradation.
Anne Clifford, born in 1590, was the only daughter of George, Earl of
Cumberland, and of his good wife, Margaret Russel. She and her two noble
sisters, Elizabeth, Countess of Bath, and Anne, Countess of Warwick,
were distinguished for family affection, and all other womanly virtues.
The Countess of Warwick was Elizabeth’s favourite Lady-in-Waiting. Anne
was much with this aunt in her youth, was a favourite of Queen
Elizabeth, and was destined for her court. Her father refused to allow
her, like other noble ladies of her time, to learn ancient and modern
languages, so she made the most of the opportunities to be found in her
own. “Her instructor in her younger years was the learned Mr. Daniel,
the Historiographer and Poet. She was much interested in searching out
old documents about her ancestors and very jealous of preserving her
rights.” (_See_ in Nicholson and Burn’s “History of Cumberland and
Westmoreland, the Autobiography of Mr. Sedgwick, who was her
Secretary.”) She was well prepared by her beloved mother and respected
tutor for the exigencies of her future life. The Queen died in 1602-3,
and her father in 1605. A woman being considered of age at 14, she chose
her mother as her guardian, who initiated the proceedings against her
brother-in-law, the new Earl of Cumberland, which lasted until his
death. The Earldom of Cumberland had been entailed in Heirs Male, but
the secondary Titles, the Baronies of Clifford, Westmoreland, and Vescy,
with all the Lands and Castles in Westmoreland belonging to them, were
entailed in the Heir General. Her uncle, however, took possession, and
favoured by the King, the power of wealth, and Sex Bias among those in
power, he was able to hold them against her, in spite of her private and
public petitions. His son, Henry, was summoned to Parliament by the
title of Lord Clifford, a right which should have been hers, as she
bitterly complained. Meanwhile, in 1609, she married Richard, Earl of
Dorset. “On 25th July, 1610, my cousin, Henry, married Lady Francis
Cecil, daughter to Robert, Earl Salisbury, which marriage was purposely
made that by that power and greatness of his the lands of mine
inheritance might be worsted and kept by strong hand from me” (Harl.
MS., 6177, Anne Clifford’s Diary). 16th July, 1615, “the great trial for
my lands in Craven.” Her husband agreed with the Earl of Cumberland to
leave it to the King’s arbitration, which she would never agree to,
standing upon her rights. In 1617 she was brought before King James in
Whitehall to give her consent to the arbitration, “which I utterly
refused, and was thereby afterwards brought to many and great troubles.”
Her uncle offered £20,000 as a compromise for the Westmoreland estates,
which she would not hear of, but which her prodigal husband urged her to
accept. Indeed, he attempted to strain his marital rights, and backed by
the King, signed the agreement with her uncle, which she refused to
acknowledge, and defeated the plans of the trio by her firmness. For she
was a true descendant of the old stock of women, and wished “to live and
die with the feeling that she is receiving what she must hand down to
her children neither tarnished nor depreciated, what future
daughters-in-law may receive, and so pass on to her grand children”
(Tac. Germ. c. 19). She was determined to hold by her rightful
inheritance. Her husband died on 28th March, 1624, and the contest went
on with renewed vigour.
In the Domestic Series “State Papers,” vol. cxxvi. 7, 1628, there is
preserved “Reasons to prove that by the Common Law dignities conferred
by Writ of Summons to Parliament descend to females, where there is a
sole heir, and not co-heirs; being the reasons alleged for Mary, Lady
Fane, in her suit for the Barony of Abergavenny in 1587, with other
reasons alleged to show that such dignities by custom and reason descend
to heirs female, produced on behalf of Anne claiming to be Lady
Clifford.”
Also in same series, April, 1628, there is “The Petition of Anne,
Countess Dowager, late wife of Richard, Earl of Dorset, deceased, and
daughter and sole heir of George, Earl of Cumberland, Lord Clifford,
Westmoreland and Vescy, to the King. On the death of her father, the
titles of Clifford, Westmoreland and Vescy descended to the petitioner,
yet Francis, Earl of Cumberland, has published that the name of Lord
Clifford and that of Lord Vescy pertain to him; and Henry Clifford,
Chivaler, was summoned to this present Parliament, and styles himself
Lord Clifford ... prays the King to admit her claim to the dignities of
Clifford, Westmoreland and Vescy, and to order the Earl of Cumberland
and Henry, his son, to forbear to style themselves by these names.”
In 1630 she married Philip, Earl of Montgomery, who shortly afterwards
became the Earl of Pembroke by the death of his brother, and she again
claimed her inheritance, still, however, in vain. In 1641 died her
uncle, leaving one son, Henry, and one daughter, Elizabeth, married to
the Earl of Cork. Two years later her cousin Henry died without heir
male, and without further dispute, Anne stepped into her inheritance,
thereby proving her original right. She had not sold it! “1644. So by
the death of this cousin German of mine, Henry Clifford Earl of
Cumberland, without heirs male, ye lands of mine inheritance in Craven
and Westmoreland reverted unto me without question or controversie after
y^t his father Francis Earl of Cumberland and this Earl Henry his son
had unjustly detained from me the antient lands in Craven from ye death
of my father and ye lands in Westmoreland from ye death of my mother
until this time, yet had I little or no profit from ye estate for some
years after by reason of ye civil wars.” On the death of her second
husband in 1649, she retired to the north, and began to fortify her
castles. The parliamentary forces demolished them, but she said that as
often as Cromwell pulled them down she would build them up again. After
a time, admiring her spirit, the Protector gave orders she should not be
molested. She was not even yet free from litigation, as at first she had
troubles with her tenants. In every case, however, through knowledge,
experience, and firmness she finally triumphed. A cloth-worker having
bought a property held under her by the yearly rent of one hen, he
refused to acknowledge her as his Seigneuress by paying that small rent.
But she sued him successfully, and though she spent £200, she secured
that hen, and the right of which it was the symbol.
She asserted all the privileges connected with her inheritance. In her
Diary she says, “As the King came out of Scotland, when he lay at Yorke,
there was a striffe between my father and my Lord Burleighe who was then
President who should carie the sword; but it was adjudged on my father’s
side, because it was his office by inheritance, and so is lineally
descended upon me.” She became High Sheriff of Westmoreland also by
right of her inheritance, and exercised its duties in person for a time.
“The 29th December, 1651, did I sign and seal a patent to Mr. Thomas
Gabetis to be my Deputy Sheriff of ye County of Westmoreland.”
Looking back on her life in the quiet of her northern home she said, “I
must confess, with inexpressible thankfulness that I was born a happy
creature in mind, body, and fortune, and that those two Lords of mine to
whom I was afterwards by the Divine providence married, were in their
several kinds worthy noblemen as any were in this Kingdom. Yet was it my
misfortune to have contradictions and crosses with them both, with my
first Lord about the desire he had to make me sell my rights in ye lands
of mine inheritance for money, which I never did nor never would consent
unto, insomuch as this matter was the cause of a long contention betwixt
us, as also for his profuseness in consuming his estate.” Her dispute
with her second husband arose because she would not compel her daughter
by her first husband, against the girl’s desire, to marry his son by his
first wife. The consequence of these two disputes, in both of which she
was in the right, was that “the marble halls of Knoll and the gilded
towers of Wilton, were often to me the Bowers of secret anguish.” She
was not what has been called a man’s woman, but she was essentially a
woman’s woman. All good women were her friends, her cousin the Countess
of Cork, daughter of her usurping uncle; her sister-in-law the Countess
of Dorset, wife of her brother-in-law, whom she considered her greatest
enemy. Though King James was against her, Queen Anne was her warm
friend. She had no children by her second husband; and her two sons by
Earl Dorset died young. She had great consolation in the affection first
of her mother, then of her two daughters, and also of her grandchildren.
It was in connection with one of these that an important incident
occurred, necessary to be fully explained here.
I have been allowed to utilise some critical points communicated by me
to the _Athenæum_, No. 3475, p. 709, June 2, 1894.
In an article on “Letter-writing,” published in _The World_, April 5th,
1753, Sir Horace Walpole quotes the famous and often repeated letter by
Anne Clifford, Dowager-Countess of Pembroke, to the Secretary of State,
who wanted her to nominate his follower for Appleby:—
“I have been neglected by a Court, I have been bullied by a
usurper, but I will not be dictated to by a subject. Your man
sha’n’t stand.
“ANNE DORSET, Pembroke and Montgomery.”
Lodge and other writers doubt its genuineness. The author of the
“Dictionary of National Biography” gives as reasons for doubting it,
that Sir Joseph Williamson, to whom it was supposed to be addressed, was
not made Secretary of State until 1674; that Anne died in 1675, and that
there was no election between these dates; also, that it was not in the
style of her correspondence, and the signature was unusual, because she
always signed her titles in the order of creation—Pembroke, Dorset, and
Montgomery—and not in the order of her two marriages. None of the
critics, however, seem to have followed out the correspondence in the
Domestic Series of “State Papers” at the Public Record Office, which,
though it does not include the contested letter, yet illustrates it in a
remarkable manner.
The Parliament elected in 1661, 13 Charles II., has been called “The
Long or Pensionary Parliament,” lasting till 1678. (_See_ “Parl.
Returns,” vol. lxii., part i., p. 530.) John Lowther, Esq. of Hackthrop,
and John Dalston, Esq. of Accornbank, were Burgesses for Appleby. John
Lowther’s death necessitated a new election, and in January, 1667-8,
there was great excitement in and about Appleby. From Anne’s position as
High Sheriff of the County, she had the right to nominate a Candidate;
from her great goodness and bounty to the place, the Corporation were
willing to gratify her by electing whom she would. She determined to
have one of her grandsons the Tuftons, sons of her daughter, Countess
Thanet, four of whom were over 21, and in need of occupation. Failing
them, she meant to have selected her kinsman, Anthony Lowther. But
Joseph Williamson, Secretary to Lord Arlington, then Secretary of State,
had set his heart on that seat, and by all means in his power, open and
underhand, attempted to secure it. He was a native of those parts, and
had friends and relatives there, who all bestirred themselves in his
favour. Everybody “plied the Countess,” Williamson himself, his brother
and friends, the neighbouring gentry, the Justices of the Peace, the
Bishop of Winchester, Lord Arlington himself. Her replies at first were
very kindly, but they gradually became more and more “definite.”
Anne’s first letter, explaining how her interest was engaged, dated Jan.
16th, 1667-8, was addressed to “Mr. Secretary Williamson at Whitehall,”
showing that there is no weight in the argument as to Williamson’s
appointment not taking place till 1674, as being Under-Secretary, he
could be addressed so. Further, it is evident that the contested letter
was not addressed to Williamson, but to Lord Arlington, about
Williamson, though it may certainly have been re-addressed, and sent to
him later, and may have been found among his papers.
To Lord Arlington on Jan. 17th, she writes, “Mr. Williamson, being of so
eminent an ingenuity, cannot miss a Burgess-ship elsewhere.” On Jan.
25th, Arlington writes again to her on behalf of his Secretary. On Jan.
29th, George Williamson writes to his brother: “Unless the three Tuftons
be taken off by Lady Thanet’s means, it is impossible for any man to
oppose.... Dr. Smith fears the taking off of the old Lady, but if done,
we shall be joyful.” Feb. 4th, Dan Fleming writes to Williamson about
plying the Lady Pembroke: “If you cannot accomplish this, you should
stay the Writ as long as you can, until you have a good account of your
interest in Appleby.” The same day Dr. Smith wrote to Williamson telling
him of his friend’s work: “The success of it will be seen by her answer
to Lord Arlington, whereof she showed me a copy. I cannot see how it is
possible to do any good unless her grandchildren be taken off.” George
Williamson writes same date to his brother, that Lord Arlington had been
urging Thomas Tufton to withdraw. “Neither Arlington nor the Bishop make
any impression on the wilful Countess.” On Feb. 6th, Lord Arlington
writes again, to whom Anne replies: “It was myself and neither my
daughter of Thanet, nor any of my children, that made me attempt making
one of her sons a Burgess for Appleby.” “If it should happen otherwise,
I will submit with patience, but never yield my consent. I know very
well how powerful a man a Secretary of State is throughout the King’s
dominions, so am confident that by your Lordship’s favour and
recommendation you might quickly help this Mr. Williamson to a
Burgess-ship without doing wrong or discourtesy to a widow that wants
but two years of fourscore, and to her grandchildren whose father and
mother suffered as much in their worldly fortunes for the King, as most
of his subjects did.”
One can see that the spirited old lady has been kindled to white heat,
and that very little more would make her say something very like what
has been preserved by Walpole.
As to her style, she employed a Secretary, Mr. Sedgwick. That Secretary
was absent from Skipton Castle for a few days at this time. It is just
possible that the young Candidate, Thomas Tufton himself, became her
clerk on the occasion, and transmitted his grandmother’s words as he
thought she said them, without anything of Sedgwick’s clerkly polish.
On Feb. 9th George Williamson writes to his brother, enclosing a letter
from Dr. Smith, “If the town be left to their own freedom, your brother
will carry it, but I doubt that the Countess will never let it come to
that, being resolved to present one to them. If none of her
grandchildren will accept, she will pitch upon Anthony Lowther. She has
been heard to say that if they all refuse, she will stand for it
herself, by which you may imagine what the issue is likely to be.”
Feb. 13th. Sir John Lowther to Williamson says, that he had taken off
his kinsman from the candidature. “I believe that her Ladyship will
prevail in her resolution with regard to her relatives,” “and will
neither desire, seek, nor need, anybody’s help to make whom she
desires.” I know this by a letter from the Mayor.
Feb. 23, Thomas Gabetis, Under-Sheriff, writes to Mr. Williamson, that
he studied to serve him, but the Countess had planned otherwise. “The
Corporation being disposed to gratify her for her great nobleness and
bounty to the place. My station obligates me to render service with
obedience to her commands, especially in this particular.”
Here comes the period at which the undated letter preserved by Walpole
might well have been written. But between him and the printers it seems
to have disappeared. There is no further letter now on the subject among
the State Papers.
But in her Diary, Harl. MS., she writes, “And on ye second day of March
in this year my grandchild, Mr. Thomas Tufton, was chosen Burgess of ye
Town of Appleby to serve in the House of Commons in Parliament therein
assembled, and sitting in Parliament at Westminster, in ye place of Mr.
John Lowther, my cosin’s son, who dyed; so as Mr. Thomas Tufton, my
grandchild, begann first of all to sitt in ye said House of Commons at
Westminster as a member thereof, the 10th day of March, he being ye
first grandchild of mine yt ever sate in ye House of Commons.”
On 21st Sept., 1668, in 1670, and in 1674, this Mr. Thomas Tufton
visited his grandmother and his constituency, still Burgess.
So she had her way with the Secretary of State, as she had had with the
King, the Protector, and her noble husbands. Her motto, it may be
remembered, was “Preserve your loyalty, defend your rights.”
Many other women have been right in their contentions, but to very few
have been given with the spirit and courage, the wealth, power, patience
and opportunity to secure success. Her struggle was no purely personal
one; it was the first Protest against the invasion of the rights of her
sex. She saw how “legal precedent” was drifting.
Mr. Joshua Williams on Land Settlement says, “I have not been able to
discover any trace of a limitation of an estate, tail, or any other
estate to an unborn son prior to 3 and 4 Philip and Mary” (“Judicial
Papers,” vol. i., part i., p. 47).
We have already noted the decision of Judge Popham in the case of Lady
Fane, which Anne Clifford quoted as precedent for her own case in vain.
She utilised every opportunity of improving herself and blessing her
fellow-creatures. She would not go where she could do no good. Being
invited to the Court of Charles II. she replied, “I could not go, unless
I were to wear blinkers, like my horses!”
Dr. Donne said of her, that she “was able to converse on any subject,
from predestination to slea-silk.”
In her Funeral Sermon, preached by Bishop Rainbow, he mentioned her
learning, hospitality, and encouragement of letters, and reckoned among
her many virtues, Courage, Humility, Faith, Charity, Piety, Wisdom.
“Thus died this great wise Woman, who, while she lived, was the Honour
of her Sex and her Age, fitter for a History than a Sermon.”
=In 1694 Mary Astell protested= against the state of things in her day
in a small anonymous publication, “A Serious Proposal to the Ladies, by
a Lover of their Sex.” Speaking of the repute learning was held in about
150 years ago, she says, “It was so very modish that the fair Sex seemed
to believe that Greek and Latin added to their charms, and Plato and
Aristotle untranslated were frequent ornaments of their closets. One
would think by the effects that it was a proper way of educating them,
since there are no accounts in history of so many great women in any one
age as are between 1500 and 1600.” She refers to Mr. Wotton’s
“Reflections on Ancient and Modern Learning,” p. 349, and makes clear
that her proposal is to found an institution for the higher education of
women, to be dedicated to the Princess Anne of Denmark. In 1696 she also
published “An Essay in Defence of the Female Sex, by a Lady.” Defoe next
year in his “Essays on Projects,” proposed to establish Academies for
women, and criticises “the Lady” who had suggested the idea under the
conditions of a Monastery.
“Reflections upon Marriage” appeared in 1700. In the third edition of
the latter, 1706, answering objections, in the Preface, she says, “These
Reflections have no other design than to correct some abuses which are
none the less because power and prescription seem to authorise them.
’Tis a great fault to submit to Authority when we should only yield to
Reason,” ... “designing nothing but the Pubic Good, and to return, if
possible, the native Liberty, the Rights and Privileges of the
Subject.... She did not indeed advise women to think men’s folly wisdom,
nor his brutality that love and worship he promised in the matrimonial
oath, for this required a flight of wit and sense much above her poor
ability, and proper only to masculine understandings.... ’Tis true,
through want of learning and of that superior genius which men, as men,
lay claim to, she was ignorant of the natural inferiority of our sex,
which our masters lay down as a self-evident and fundamental truth. She
saw nothing in the reason of things to make this either a principle or a
conclusion, but very much to the contrary, it being Sedition, at least,
if not Treason, to assert it in this Reign. For if by _the natural
superiority of their Sex_ they mean that every man is superior to every
woman, which is the obvious meaning, and that which must be stuck to if
they would speak sense, it would be a sin in any woman to have dominion
over any man, and the greatest Queen ought not to command, but to obey
her Footman, because no municipal Laws can supersede or change the Laws
of Nature. If they mean that some men are superior to some women, that
is no great discovery. Had they turned the tables they would have found
that some women are superior to some men. Or, had they remembered their
Oath of Allegiance and Supremacy, they might have known that one woman
is superior to all the men in the Kingdom, or else they have sworn to
very little purpose, and it must not be supposed that their Reason and
Religion would suffer them to take Oaths contrary to the Law of Nature
and the Reason of Things.” “That the Custom of the World has put women,
generally speaking, into a state of subjection, is not denied; but the
right can be no more proved by the fact than the predominance of vice
can justify it. They say that Scripture shows that women were in a state
of subjection. So were the Jews, under the Chaldeans; and the Christians
under the Romans. Were they necessarily inferior? That ingenious
theorist, Mr. Whiston, argues, ‘that before the Fall woman was the
superior.’ Woman is put into the World to serve God. The service she
owes a man at any time is only a business by-the-bye, just as it may be
any man’s business to keep hogs. He was not made for this, but if he
hires himself out to such an employment, he ought conscientiously to
perform it.... We do not find any man think any the worse of his
understanding because another has more physical power, or conclude
himself less capable for any post because he has not been preferred to
it.... If all men are born Free, how are all women born slaves? Not
Milton himself would cry up Liberty for Female Slaves, or plead the
Lawfulness of resisting a private Tyranny.... If mere power gives a
right to rule, there can be no such thing as Usurpation, but a
Highwayman, so long as he has Strength to force, has also a right to
command our obedience. Strength of mind goes along with Strength of
body, and ’tis only for some odd accidents, which philosophers have not
yet thought worth while to inquire into, that the sturdiest porter is
not also the wisest man.... Sense is a portion that God has been pleased
to distribute to both sexes with an impartial hand; but learning is what
men have engrossed to themselves, and one cannot but admire their
improvements.” She winds up with another Eulogy on the good Queen Anne.
But society did not then reform itself upon her suggestions.
Before the close of the eighteenth century, however, =Mary
Wollstonecraft Godwin blew a loud trumpet blast=, in her indignant
“Vindication of the Rights of Women.” She treats the subject on lines
that men and women are only now beginning to learn to read. “There can
be no duty without reason. There can be no morality without equality.
There can be no justice when its recipients are only of one sex. Let us
first consider women in the broad light of human creatures, who, in
common with men, are placed upon the earth to unfold their faculties.”
“Who made man the exclusive judge, if woman partakes with him the gift
of reason? Do you not act a tyrant’s part when you force _all_ women by
denying them civil and political rights, to remain immured in their
families, groping in the dark? Surely you will not assert that a duty
can be binding that is not founded on reason.” “Women may be convenient
slaves, but slavery will have its constant effect, degrading both the
master and the abject dependent.” “It is time to effect a revolution in
female manners, time to restore to women their lost dignity and to make
them labour by reforming themselves, to reform the world.” She was too
much in advance of her times to be successful in spreading her views,
especially as they were entangled with other opinions even more
unpopular in her day. Yet she sowed the seed that is still growing. The
society she pictures gives a painful illustration of the effects of the
exclusively masculine creeds of her century.
Yet, during that dark age of women’s privilege, there were =some Legal
Cases tried= and decided, refreshing in their results, as they showed
that dispassionate judges could still do something for women, when they
followed the ordinary principles of Philology, and decreed that a common
term could stand for woman as well as for man, even when it meant a
privilege.
“A woman was appointed by the Justices to be a _governor_ of a workhouse
at Chelmsford in Essex, and Mr. Parker moved to quash the order because
it was an office not suitable to her sex, but the Justices upheld the
appointment” (2 Lord Raymond, 1014). “My Lady Broughton was _keeper_ of
the Gatehouse Prison” (3 Keble, 32). “A woman was appointed clerk in the
King’s Bench” (_see_ Showers’ P.C.).
A lady’s appointment to be _Commissioner_ of Sewers was also contested,
but it was “decided that as the office by statute” shall be granted to
such _person_ or persons as the said Lords should appoint, “the word
_person_ stands indifferently for either sex ... and though women have
been discreetly spared ... yet I am of opinion, for the authorities and
reasons aforesaid, that this appointment is _warrantable in law_. Women
have been secluded as unfit, but they are not in law to be excluded as
incapable,” _i.e._, the election determined eligibility; and so the
Countess of Warwick was allowed to retain the benefits of her election.
(_See_ Callis. 250.)
In Hilary Term, 1739, the case of Olive _v._ Ingram was heard before Sir
William Lee, Chief-Justice, Sir Francis Page, Sir Edmund Probyn, Sir
William Chappel, Justices, to decide whether a woman could vote for a
sexton, and whether she could be a sexton. A woman candidate for the
office of sexton of the Church of St. Botolphs without Bishopsgate had
169 _indisputable_ votes and 40 _women’s votes_; the plaintiff had 174
indisputable votes and 22 women’s votes. The woman had been declared
elected.
The case was considered so important that it was heard four times.
First, whether a woman could vote? The counsel against argued that women
could not vote in this case, as they did not do so in others; that they
did not vote for members of Parliament, quoting Coke. The counsel for
argued that non-user did not imply inability; that women paying Scot and
Lot had a right to vote on municipal affairs; that they voted in the
great Companies; that it had been decided in Attorney-General _v._
Nicholson that women had a right to elect a preacher. If they could
elect to a higher office, how could they not do so to a lower? It had
been decided in Holt _v._ Lyle and Catharine _v._ Surrey, according to
Hakewell, “that a _feme sole_, if she has a freehold, may vote for a
Parliament man.” Women did come to the old County Courts, though not
compellable thereto. Women are _sui juris_ till they are married.
The Lord Chief-Justice said the case of Holt _v._ Lyle is a very strong
case, but as I am not bound now to say whether a woman can vote for a
Parliament man, I will reserve that point for further consideration. The
question here is, whether a woman can be included in “all _persons_
paying Scot and Lot.” It was a just rule that they who contributed to
maintain the elected should themselves be electors. There is a
difference between exemption and incapacity. If women are qualified to
pay Scot and Lot, they are qualified to keep a sexton. They who pay must
determine to whom they will pay. He decided that women could vote for a
sexton. Justice Page agreed with Chief-Justice Lee on the general
question, but added, “I see no disability in a woman for voting for a
Parliament man.” Justice Probyn agreed that they who pay have a right to
nominate. It _might be thought_ that it required an _improved
understanding_ for a woman to vote for a Parliament man, but the case of
Holt _v._ Lyle was a very strong case.
The woman having thus secured a majority of “indisputable votes,” the
next question was, could she hold office? The objection was that women
could not hold places of trust, of exertion, of anything to do with a
church.
Chief-Justice Lee said a woman is allowed to be a Constable, an
Overseer, a Governor of a Poorhouse, a Gaoler, a Keeper of a Prison, a
Churchwarden, a Clerk of the Crown in the King’s Bench. Very high
offices have been held by Ladies. In regard to the Church, women have
been allowed to baptise; there have been Deaconesses, and female
servants _circa sacra_. (Romans xvi. 21.) Women have presented to
churches. He decided that a woman _could be sexton_. The others
concurred. (Leach’s “Modern Term Reports,” vol. vii.)
Strange, the opposing counsel, in reporting the case shortly and
confusingly, says that he knew many women sextons at the time. (_See_ 27
Strange.)
In the case of Rex _v._ Chardstock, where “the parish was obstinate in
not having another Overseer than a woman,” Justice Powell had testily
declared that a woman cannot be Overseer of the Poor, that there _can be
no custom of the parish to appoint her, because it is an Office_[16]
_created_ _by Act of Parliament_. To the petitioner’s election he
replied that there was _not to be a woman Overseer_, an _obiter dictum_
reversed in the King’s Bench in 1788 in Rex _v._ Stubbs. “Can a woman be
Overseer of the poor?” the only qualification necessary by the
Statute[17] (43 Eliza.), is that the Overseer be “a substantial
householder.” A woman can be “a substantial householder, and therefore
she is eligible.” Justice Ashurst referred to the other offices that
women had held, as quoted above. “This office has no reference to sex.
The only question is whether there be anything in the nature of the
office that should make a woman incompetent, and we think _there is
not_” (Durnford and East’s “Term Reports”).
Footnote 16:
Yet before the said creation of the Statute (43 Eliz.; even in 7
Eliz.) there were Overseers of the poor in Westminster, (_see_ p. 148
_Athenæum_, No. 3458, February 3rd., 1894).
Footnote 17:
_Ibid._
Yet before the time that male rivals contested the election with a
woman, women had exercised the office without objection. “In the
township of Gorton, parish of Manchester, 1748, Widow Waterhouse was
overseer of the poor. In 1775 Sarah Schofield played the flute in the
chapel choir. In 1826 Mary Grimston appointed sexton. In 1829 the vestry
sent for Ruth Walker to come and break stones” (_Notes and Queries_, 5th
series, vol. iv., p. 269). In the Parish Register, Totteridge,
Middlesex, March 2nd, 1802, entry—burial. Mrs. Elizabeth King, widow,
for 46 years Clerk of this Parish, in her 91st year. _Note._—As long as
she was able she attended, and with great strength and pleasure to her
hearers, read prayers. (p. 493.) Mrs. Anne Bass of Ayleston,
Leicestershire an excellent churchwarden for many years. (_Notes and
Queries_, 5th series, vol. iv., 269, 493.)
The opening of the nineteenth century was signalised by the cessation of
the Napoleonic wars; and the Peace brought wider opportunities of
leisure, learning, and literature to both sexes. Yet so powerful had
become the force of Custom in confusing men’s ideas of Justice, that
even James Mill, the pupil of Jeremy Bentham, in his masterly article on
“Government” for the Supplement to the “Cyclopædia Britannica”
(afterwards republished in pamphlet form, 1825) could allow it to blind
his eyes to the logical results of his own reasoning. In page 494 he
says, “That one human being will desire to render the person and
property of another subservient to his pleasures, notwithstanding the
pain or loss of pleasure which it may occasion to that other individual,
_is the foundation of government_. The desire of the object implies the
desire of the power necessary to accomplish the object. The desire,
therefore, of that power which is necessary to render the persons and
properties of other human beings subservient to our pleasures, is a
grand governing law of human nature.” Yet the writer of this searching
analysis of the cause and need of government says elsewhere (p. 300),
“One thing is pretty clear, that all those individuals whose interests
are indisputably included in those of other individuals, may be struck
off from political rights without inconvenience. In this light may be
viewed all children up to a certain age, whose interests are involved in
those of their parents. In this light, also, women may be regarded, the
interest of _almost all of whom_ is involved in either that of their
fathers or that of their husbands.” Yet even at that early date a man,
inspired by a woman, rose up to protest against this sweeping assertion.
William Thompson, in 1825, published a little book, dedicated to Mrs.
Wheeler, that puts the whole question in a broad modern light, “_The
Appeal_ of one Half of the Human Race, Women, against the Pretensions of
the other Half, Men, to retain them in Political, and thence in Civil
and Domestic Slavery. In reply to a paragraph of Mr. Mill’s celebrated
article on Government.” This interesting book was the first voice of a
nineteenth century man against the degradation of women. He points out
that Mill has not nearly reached the level of his master, Bentham, in
his conception. He asks, what is to become of those not included in the
“nearly all”? what of those that are? “Why are women’s interests
included in those of men? Mr. Mill’s article seeks to evade the equal
claims of the other half of the human race to similar protection against
the abuse of the same power, against the application of the general
principle of security to women.” “In order to include women in the
proscription of children, a fiction must be manufactured, as none of the
good reasons applicable to children would be found to apply to women,
and this romance of an identity of interest is the ingenious, say
rather, the vulgar, the audacious fiction devised” (p. 15). “From this
examination it results that the pretext set up to exclude women from
political rights, namely, the inclination of men to use power over them
beneficently; would, if admitted, sweep away the grand argument itself
for the political rights of men.” “We shall investigate the
philosophical pretext of the ‘article’ for the degradation of one half
of the adult portion of the human race in the following order:—(1) Does
the identity of interest between men and women, in point of fact, exist?
(2) If it do exist, is it a sufficient cause, or any reason at all, why
either of the parties, with interests thus identified, should therefore
be deprived of political rights? (3) Is there in the nature of things
any security for equality of enjoyments proportional to exertion and
capabilities, but by means of equal civil rights? or any security for
equal civil but by means of equal political rights? In regard to the
first, there are three great classes of women. First, all women without
fathers or husbands; second, adult daughters in their father’s
establishment; third, wives. The first class have no men to identify
their interests with; they are therefore the class, sometimes scornfully
called, _the unprotected_. Adult daughters can acquire legal rights as
against their fathers, but on marriage they forfeit their freedom, and
are again thrown back into the class of children or idiots.” “Involving
of interests must mean that one enjoys as much as the other, is this
true as between husband and wife?” “The very assumption of despotic
power by the husbands over wives is in itself a demonstration, that in
the opinion of husbands, a contrariety, and not an involving of
interests, exists between them and their wives. Domestic despotism
corrupts man’s moral frame.” “If it is more difficult for women to
labour, why should men further increase the difficulty by protecting
themselves? In justice to the stronger excluding party, as well as to
the weaker, all such powers of excluding ought to be withheld” (p. 149).
Many must have read, but few assimilated Mr. Thompson’s able and
generous arguments.
Meanwhile, in regard to the Representation of the People’s Acts, the
parliamentary franchises had been revised and cobbled, but in none was
any but the general term used. The Act 7 and 8 William III. describes
electors as “freeholders,” or “persons”; 18 George II., c. xviii., 19
George II., c. xxviii., use the same general terms. That of 3 George
III. limits the franchise “to persons who had taken up their freedom for
12 months.”
Those of 11 George III., c. lv.; 22 George III., c. xxxi.; 44 George
III., c. lx.; 11 George IV., and 1 William IV., c. lxxiv., confer the
suffrage on “_every_ Freeholder being above the age of 21 years, or on
inhabitant householders of same age.” There is no term ever used, that
might not include a woman. But just at the time when the tide of
civilisation and education was beginning to rise again, just after “The
Appeal of Women” had appeared, by W. Thompson and Mrs. Wheeler (1825),
all historical precedent was reversed. Concentrated social _opinion_
became boldly expressed in _law_.
=In the Reform Bill of 1832=, the word “male” was interpolated before
“persons” in the Charters of the newly created Boroughs. Never before,
and never since has the phrase “male persons” appeared in any Statute of
the Realm. By this Act, therefore, women were legally disfranchised for
the first time in the history of the English Constitution. The privilege
of abstention was converted into the penalty of exclusion. Curiously
enough, the framers seemed to have had dim notions of this, as in all
reference to older Charters the term “person” only appeared, and the
interpolating adjective “male” is suppressed. Therefore in Boroughs
holding by older Charters women were not necessarily excluded, except by
the reflex action of the 1832 Statute. (_See_ 2 William IV., c. xlv., s.
24, 25, 31, 32, and 33.)
In strange contrast to the spirit of this Act were the Bills passed in
1833 and 1834, which gave freedom, at the nation’s expense, to all
Colonial slaves.
The Municipal Franchises naturally followed the example of the
Parliamentary one, and in spite of Charter, and in spite of precedent,
limited their privileges to “male persons.”
For many years these readings remained in uncontested force, not without
protest on the part of women and of the friends of justice. In 1851,
Lord Romilly’s Bill, otherwise called Lord Brougham’s Bill, “for
shortening the language of the Acts of Parliament,” was passed. This
decided that the word “man” should always include “woman” except where
otherwise expressly stated. In that year the Earl of Carlisle presented
a Petition drafted at a public meeting in Sheffield for the extension of
the Parliamentary Suffrage to women. Sympathetic minds were stirred by
the great American Convention of the subject, and in the _Westminster
and Foreign Quarterly_, July, 1851, appears the notable article on “The
Enfranchisement of Women,” by Mrs. Mill. “That women have as good a
claim as men have to the suffrage and to be jury, it would be difficult
for any one to deny.” “It is one axiom of English freedom that taxation
and representation always go together; it is another that all persons
must be tried by their peers, yet _both_ are denied to women.” “A reason
must be given why what is permitted to one person is interdicted to
another.” “Far from being _expedient_, the division of mankind into two
castes, one born to rule the other, is an unqualified mischief, a source
of perversion and demoralisation both to the favoured class and to those
at whose expense they are favoured, producing none of the good which it
is the custom to ascribe to it, and forming a bar to any really vital
improvement either in the character or the social condition of the human
race.”
“It is the boast of modern Europeans and Americans that they know and do
many things which their fore-fathers neither knew nor did; it is the
most unquestionable point of their superiority that custom is not now
the tyrant that it formerly was. Yet in this case prejudice appeals to
custom and authority.” “Great thinkers from Plato to Condorcet have made
emphatic protests in favour of the equality of women.” “We deny the
right of any portion of the species to decide for another portion, or
any individual for another individual what is and what is not their
‘proper sphere.’ The proper sphere of all human beings is the largest
and highest they can attain to.”
=The Bill of 1867.= Again the “Representation of the people” came before
the House in 1867. The word “man” was exchanged for “male persons” of
the 1832 Charter. John Stuart Mill redeemed his father’s errors and
moved an Amendment that it should be made expressly to include women.
“We ought not to deny to them what we are conceding to everyone else, a
right to be consulted; of having, what every petty trade or profession
has, a few members who feel specially called on to attend to their
interests, to point out how these interests are affected by law.” “The
want of this protection has affected their interests vitally. The rich
can make private laws unto themselves by settlements, but what of the
poor?”
“Educational endowments founded for both sexes have been limited to
boys. The medical profession shuts its doors when women strive to enter
in. The Royal Academy shut its doors when women began to distinguish
themselves. There is no meaning in the objection that women have no time
to attend to politics. Do all enfranchised men take time?” “What is the
meaning of political freedom? Is it anything but the control of those
that make politics by those who do not?” (p. 7). His Amendment was lost.
But so also was the Amendment that the phrase “male persons” of 1832
should be replaced. The Bill enacted that every man of full age, and not
subject to legal incapacity, “duly qualified and registered,” should
have the right to vote. During the discussion, the Hon. G. Denman,
Justice of the Common Pleas, asked the following question—“Why, instead
of the words ‘male person’ of the Act of 1832, the word ‘man’ had been
substituted in the present Bill? In the fifth clause of the Bill he
found that after saying that every ‘man’ should be entitled to be
registered, it proceeds to say, ‘_or a male person_ in any university
who has passed any senior middle examination.’ In the light of Lord
Romilly’s Act, if the Court of Queen’s Bench had to decide to-morrow on
the construction of these clauses they _would be constrained_ to hold
that they _conferred the_ suffrage on _female persons_ as well as on
males.” The Government did not answer the question, but it passed the
Bill as it stood. This, therefore, to ordinary, as well as to logical
minds, seemed to reinstate women in their ancient though neglected
privileges, which the advance of education had taught them now to
appreciate. Therefore, next year, 5,347 women had themselves duly
registered in the town of Manchester alone, in the neighbouring town of
Salford about 1,500, and large numbers in other places. Great
uncertainty prevailed as to how to treat them, but most of the revising
barristers threw them out. The Manchester women consolidated their
claims and appealed against their decision.
=The case of Chorlton= _v._ =Lings= was heard before the Court of Common
Pleas in Westminster, Nov. 7th and 10th, 1868, Lord Chief-Justice Bovill
and Justice Willes, Keating and Byles, sitting on the Bench. The facts
can be found in the Law Reports, and it is good that they should be
recalled to the minds of the rising generation.
Yet they are treated in a more lively manner in the pages of _The
Times_. Mr. Coleridge, Q.C., and Dr. Pankhurst appeared on behalf of the
women, Mr. Mellish against. Miss Becker, the woman’s champion, was
present, and many other ladies. Mr. Coleridge stated that there were
5,347 women duly registered in the town of Manchester, qualified _except
by sex_ to be electors. The Chief-Justice asked him if he had found any
cases of women exercising political privileges before then? He said he
had not![18] But he added that the Statute for the County Courts _might_
have included both sexes. The Chief-Justice interpolated, “The Common
Law existed before the Statute Law. There is no trace, so far as I know,
of women having been admitted to the assemblies of the wise men of the
land!”[19] (Laughter.) Mr. Coleridge gave the examples of the Countess
of Westmoreland voting by attorney and Mrs. Copley signing the
indenture. Justice Willes interposed, “She might have been a returning
officer, which office she unquestionably might fill!”[20] Mr. Coleridge
then quoted Luders as to the women burgesses of Lyme Regis; the Statute
of Henry VI., which limited suitors to forty shilling freeholders and
the citizen burgesses, as all being enacted of “chusers” or “electors”
in common terms. Hallam (ch. xiii.), states that “all Householders
paying Scot and Lot, and Local Rates, voted for members of Parliament.”
Women could be freeholders, householders, citizens, burgesses, suitors,
taxpayers, therefore they could vote. It is true that the Reform Bill of
1832 read these as only applied to “male persons,” but the Bill of 1867
used the term “man,” while Lord Romilly’s Act had decided the term “man”
should include woman, unless where it was otherwise expressly stated. It
was not “otherwise expressly stated” in the Statute of 1867. There was
no legal restraint against women voting, and he quoted the case of Holt
_v._ Lyle, which affirmed that a _feme sole_ had a right to vote for a
Parliament man.
Footnote 18:
_See_ Ante to the contrary p. 64.
Footnote 19:
P. 10.
Footnote 20:
P. 70.
Mr. Mellish, in opposition, said that Manchester was a new Borough in
1832, and claimed by its Charter the franchise for “male persons.” The
Bill of 1867 stated that it would not alter existing franchises. The
ground of women being excluded was their _legal incapacity_. It is true
no statute took their right away, because they never had it! “As well
suitors as others,” of 52 Henry III., did not necessarily mean women.
“They could not be Esquires or Knights.” Justice Willes interposing—“Not
only in Books of Romance but in Books of Chivalry we see they can!” “The
case quoted by Mr. Coleridge is valueless. If a lady were not present to
vote, it was clearly illegal for her to do so by attorney. Mrs. Copley
was Patron of the Borough, and probably acted as returning officer. In
Olive _v._ Ingram the majority of the Judges were against the woman’s
claim.[21] Peeresses could not sit in the House of Lords.” Justice
Willes interposing—“Yet peeresses marrying commoners, the commoners
became Peers, and sat _jure mariti_. Is not that, at least,
representative of a woman?” Mr. Mellish then referred to the parallel
case that had been tried in Scotland. Judgment was against the women,
first, because they were legally incapacitated; and second, because to
_give_ them a vote would be against public policy, as it was a premium
on ladies to remain unmarried in order to retain their votes, and a
premium to them to desire that their husbands might die in order that
they might become enfranchised as widows.” Mr. Coleridge said that the
Scotch case had no bearing on this. Lord Chief-Justice Bovill was
obliged to concede that “it is quite true that a few women being parties
to indentures of returns of members of Parliament have been shown, and
it is quite possible that there may have been some other instances in
early times of women having voted and assisted in legislation. Indeed,
such instances are mentioned by Selden. Yet the fact of the right not
having been asserted for centuries raises a very strong presumption
against its ever having had legal existence.”[22] And though he
acknowledged that in many statutes “man” may be properly held to include
women, he decided against this interpretation here. The rest of the
judges agreed with him.
Footnote 21:
He could only have read the short and misleading report by Strange,
the counsel for the opposition, as the assertion does not seem borne
out by the case _in extenso_. As Strange also affirmed that women
could not hold by military tenure, his judgment regarding them on
other points may well be doubted.
Footnote 22:
The last recorded example of women proffering their vote was in 1640,
less than 260 years before, p. 99. While Amersham and other towns had
not voted for 321 years, p. 92.
The second case, Chorlton _v._ Ressler, a woman freeholder at Rusholme
with a county qualification with no relation to the 1832 Charter of
Manchester, they refused to hear. Dr. Pankhurst was silenced. The Lord
Chief-Justice said to him—“Do you expect to convince us that we are
wrong, and that we ought to alter our judgment just given?” Dr.
Pankhurst—“Your judgment is inchoate, and might be altered during the
term. (Laughter.) This is not a point of Common Law but of
Constitutional Law.”
The next case was Wilson _v._ Town Clerk of Salford; Martha Wilson
having appeared on the Overseer’s List, and not having been objected to,
wanted to know why she had been struck out. She was curtly referred to
the decision in Chorlton _v._ Lings.
The next case, Bennet _v._ Bromfit, was a consolidated appeal of men and
women against the revising barrister at Ormskirk, who had held that
certain notices of objection were valid, without the reasons of
objection being stated. Here the Revising Barrister had decided that
Ellen Ashcroft was qualified to vote. The Lord Chief-Justice
interposed—“The Revising Barrister may have decided that Ellen Ashcroft
had a right to vote, but we have decided that she has not.” “But, your
Lordship, what has to become of Birch, Roberts and the other men
concerned in this appeal?” “It is laid down that where appeals are
improperly consolidated they cannot be heard.”
And thus, in a Court of Common Law, amid peals of amused laughter, the
Constitutional Privilege of British Freewomen was taken from them, as a
Justice worded it, “_forever_.”
Yet Coke himself had declared “Judges ought not to give any opinion of a
matter of Parliament because it is not decided by the Common Law, but
_secundum legem et consuetudini_ Parliamenti” (“Fourth Institute,” 15).
In 1704, the Commons had resolved that “they cannot judge of the right
of elections without determining the right of electors; and if the
electors were at liberty to prosecute suits touching the right of giving
voices in other courts, there might be different voices in other courts
which would make confusion and be dishonourable to the House of Commons,
and that such an action was a breach of privilege.”
But this decision was accepted from the Common Law Courts, and, by
Christmas, 1868, there was not a “Freewoman” left in Britain, except the
_One_ who sat on the throne, holding her privileges, not as her female
subjects did, by Statutes written in general terms, but by Statutes
where the language designates the male sex alone.
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