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He is aware that the House of Commons did,
upon one remarkable occasion, deny the capacity of a female
to be heard even as a witness at their bar; and that this
extraordinary vote was obtained through the influence of Sir
Edward Coke, the only text-writer who can be vouched for the
position, that a woman's vote ought not to be received at a
parliamentary election.

Further on, pages 94 and 95;

On the other hand, there are extant many parliamentary
returns for counties and boroughs from the earliest times,
which were made by female electors, and yet were received.
Some of them are enumerated in Prynne's Collections of
Parliamentary Writs. Some of later dates are mentioned in
the Commons' Journals themselves. Others are to be found in
the repositories of the learned or the curious.

Three of the returns in question which related to one and
the same borough, were, at a period long subsequent,
produced before a "Committee of Privilege and Election,"
presided over by the great parliamentary lawyer, Mr.
Hakewell, as evidence for and against the respective parties
in an election trial then pending. The question was whether
the borough was close or open; that is to say, whether
amongst the former returns so produced, those by "Mrs.
Copley, as sole inhabitant," showed the suffrage to be
limited to the Lord or Lady of Gatton for the time being, or
whether those by "Mrs. Copley, _et omnes inhabitantes_,"
showed the suffrage to be of a more popular character. No
question of sex was raised on either side, and neither the
report of the committee which found for the popular right,
nor the resolution of the house for giving effect thereto,
and for taking the Lord of the Manor's return off the file,
contain any allusion to the question of sex.

At that time the House of Commons was not prepared to enter
into conflict with the courts of law, and "privilege" had
not attained to the height which, amid the excitement of the
era of 1688, it was doomed to reach. It was impossible for
the Committee of Privileges, in the Gatton case, to deny the
female suffrage without coming into collision with the law,
which had been declared but a few years previously by the
judges. (Holt _vs._ Lyle and Coates _vs_. Lyle, 14 Jac., 1
and Catherine _vs_. Surrey, (Hakewell MSS.,) Append., 7
Mod., 264-5.) "The opinion of the judges," it was said by
Sir William Lee, a chief justice of the King's Bench in
1739, "was that a _feme-sole_, if she has a freehold," in a
county (as it seems) "may vote for members of Parliament,"
and that women when sole had a power to vote.... In Lady
Packington's case (she) returns to Parliament; that the
sheriff made a precept to her, as lady of the manor, to
return two members to Parliament.... In the case of Holt
_vs_. Lyle it is determined that a _feme-sole_ freeholder,
in counties, may claim a vote for Parliament men, but, if
married, her husband must vote for her.... I only mention
what I found in a manuscript by the famous Hakewell.

CHIEF-JUSTICE--Coverture then incapacitated a woman from voting?

Mr. RIDDLE.--No, your honor; the right to vote attached to the
freehold, and by the old law that by marriage vested in the
husband.

In the case of Olive _vs._ Ingram, 7th Mod. Reps., already
recited by the author, it was urged that the right of woman
suffrage was lost by _non-user_, which is thus disposed of. I
quote from page 97:

The same can not be said of the learned Solicitor General's
objection of _non-user_. "As their claim," he argued, "is at
common law, and usage is the only evidence of right at
common law, they ought to show it, or else _non-user_ shall
be evidence of a waiver of the right, if they ever had any."
The reply was conclusive enough. "There was a difference
between being exempted and being incapacitated." But there
was another and a not less conclusive reply. The franchise
was a public, not a private right--_omnis libertas regia
est, et ad coronam pertinet_--[every liberty is royal and
pertinent to the crown]--and of such there can be no waiver,
for the right implies a duty, and the duty is co-equal and
co-extensive with the right.

I now ask your attention to the case of Jane Allen, which came
before Mr. Anstey in the Revising Court, a tribunal created by
the parliamentary elector's trial bill of 1868, and which sits to
revise the registration of voters, under the Act of 1867, and
from whom appeals lie to the Court of Common Pleas. The case came
up in 1868, and was fully and ably argued, and the Revising
Barrister went luminously over the whole ground in an exhaustive
opinion when he rendered judgment. I find the case in the Eng.
Law Mag. and Law Rev. for 1868, at p. 121:

_In re Jane Allen_ (_Parish of St. Giles-in-the-Fields_).
_September 23, 1868_.

This was a claim to be entered on the St. Giles' list of
occupiers for the borough, under the "Representation of the
People Act, 1867," s. 3; the claimant's name, in common with
those of all female occupiers, having been omitted by the
overseers.

* * * * *

The Revising Barrister said, p. 132: In the meantime, and
dealing with the case according to my own opinion of what
the law is, I hold, in the first place, that this incapacity
of mere sex, as it is called, did not exist at common law in
any constituency; and (on the authority of the cases cited
already of Catherine _vs._ Surrey, Holt _vs._ Lyle, and
Coates _vs._ Lyle, which show that there is in counties no
such incapacity even as to the freehold franchise, even
under the acts passed before 1832, greatly narrowing the
basis of that suffrage there), that, _ fortiori_, there was
no such incapacity in boroughs of the common right at least,
and also of many, perhaps all, of those by custom also, as
appears by the valuable records preserved from the time of
the Conquest down to our own time, including the Damesday
and the Doom Books of the various boroughs. For I find that
(although in some boroughs, a later charter or special act
of Parliament was to the contrary), where the common right
obtained, the woman burgess took her place, and her name was
inscribed on the burgess roll with the male burgesses,
enjoying the same rights and liable to the same heavy
duties--such as watch and ward, scot and lot, and the like,
as the burgesses of the male sex. Curiously enough, I see
that it has been objected to the right of female suffrage
within the last few days, that there is this analogy between
the right of franchise and the liability to watch and ward.
It is because that analogy exists, that I think that the
claim of franchise must surely prevail, it being clear that,
under the common law, a woman was liable to the former
burthen, as she is still liable to serve as a constable, as
an overseer of the poor, and the like offices, and,
therefore, was rightfully put upon the burgess roll, and
voted in the borough court equally with the male burgess.

But the matter does not rest there. The Rolls of Parliament,
which end with the reign of Queen Mary, certainly contain no
notice of the right of women to vote at common law, because
they contain no entries relating to the right of suffrage at
all, and I, therefore, pass them by. But I make this
observation upon them, that they do contain not unfrequent
notices of the presence of women in Parliament itself. But
the returns to the parliamentary writs of the period are
more to the purpose. Take, for instance, those relating to
the county of York, collected by Prynne for quite another
purpose than the present. He had to show that the lords and
esquires of that great county, and not the freeholders at
large, had for the long period of time which began with the
reign of Henry IV. and ended with that of Edward IV., alone
returned the knights of that shire to Parliament, and among
those lords and esquires not a few clearly appear to have
been of the female sex. But now I pass to the period of the
journal.

It was said by Mr. Bennett [who argued against woman
suffrage], that if a single instance could be shown in which
a woman had voted, and not simply claimed the right to vote,
then _cadit questio_. But two such cases, Lady Packington's
case and Mrs. Copley's case, were admitted by Mr. Bennett
himself. I do not think that he explained away the effect of
that admission. It was certainly not as a mere returning
officer that either of those ladies signed and returned the
indenture. It was as a person having or claiming to have,
the sole property in the soil of the whole of the populous
borough of Aylesbury, that Lady Packington made her return;
and during two or three generations the Packington family
had, or had claimed to have, precisely that right.

* * * * *

It is thus made broad and clear that the right of woman to the
elective franchise was one of the best acknowledged and clearest
of common law rights; and that in the whole circle of English
authority the ghost of a dictum can alone be raised to question
it.



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