CHAPTER VII.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 otherso-called authoritydepends 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 ofParliament 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; andall 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 oneobiter dictumof 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 andlawagainst the Woman’s Franchise. So terrible can be the consequences of the by-utterances of a Judge whencareless, 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 “theOracle,” 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 ininhabitant 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 atainted 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 Cokehastened 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 yourselfto 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 bewilfully ignorantthere 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.). Holtv.Lyle, and Catherinev.Surrey had been decided when he was Attorney-General. These affirmed that “afeme solecould 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. (SeeChisholm Anstey’s “Supposed Constitutional Restraints.”) Chief Justice Best fromthe 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 sayswithout authorityis 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 tohis own heirsto 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 lowto 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 (Cokev.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 afeme solethat 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 afeme soleof full age and seized of land, holden by knight’sservice,[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.”

15.In discussing the “Parliament of Marlebridge” (52 Henry III., chap, vi., p. 3) he says: “Albeit the heir be notprimogenitus, 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 (Entinckv.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 anantecedent 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 viewsand 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, theoaths of some single women that were freeholderswere 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 oursex 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 forladies, except when done without remuneration; domestic work was not cognisable in coin of the realm, therefore women were said to besupportedby their male relatives, though they might labour ten times as much as they. It was natural to educate them little, so that they should notknow; 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.” (Seein Nicholsonand 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, whichshe 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 ythis father Francis Earl of Cumberland and this Earl Henry his sonhad 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 seala 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; andher 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 theAthenæum, No. 3475, p. 709, June 2, 1894.

In an article on “Letter-writing,” published inThe 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 “StatePapers” 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 leftto 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 Parliamenttherein 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 herfellow-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 protestedagainst 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 “AnEssay 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 bythe natural superiority of their Sexthey mean that every man is superior to every woman, which is the obvious meaning, and that which must bestuck 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 manthink 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 withmen, 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 forceallwomen 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 weresome Legal Cases triedand 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 agovernorof a workhouse at Chelmsford in Essex, and Mr. Parker moved to quash the order because it was anoffice not suitable to her sex, but the Justices upheld the appointment” (2 Lord Raymond, 1014). “My Lady Broughton waskeeperof the Gatehouse Prison” (3 Keble, 32). “A woman was appointed clerk in the King’s Bench” (seeShowers’ P.C.).

A lady’s appointment to beCommissionerof Sewers was also contested, but it was “decided that as the office by statute” shall be granted to suchpersonor persons as the said Lords should appoint, “the wordpersonstands 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 iswarrantable 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. (SeeCallis. 250.)

In Hilary Term, 1739, the case of Olivev.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 169indisputablevotes and 40women’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? Thecounsel 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-Generalv.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 Holtv.Lyle and Catharinev.Surrey, according to Hakewell, “that afeme 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 aresui juristill they are married.

The Lord Chief-Justice said the case of Holtv.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 “allpersonspaying 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 awoman for voting for a Parliament man.” Justice Probyn agreed that they who pay have a right to nominate. Itmight be thoughtthat it required animproved understandingfor a woman to vote for a Parliament man, but the case of Holtv.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 servantscirca sacra. (Romans xvi. 21.) Women have presented to churches. He decided that a womancould 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. (See27 Strange.)

In the case of Rexv.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 therecan be no custom of the parish to appoint her, because it is an Office[16]createdby Act of Parliament. To the petitioner’s election he replied that there wasnot to be a woman Overseer, anobiter dictumreversed in the King’s Bench in 1788 in Rexv.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 thinkthere is not” (Durnford and East’s “Term Reports”).

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