Chapter 11

16.Yet before the said creation of the Statute (43 Eliz.; even in 7 Eliz.) there were Overseers of the poor in Westminster, (seep. 148Athenæum, No. 3458, February 3rd., 1894).

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, Leicestershirean 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 thislight, also, women may be regarded, the interest ofalmost all of whomis 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 Appealof 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 toexclude 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 aninvolving 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 “everyFreeholder 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 socialopinionbecame boldly expressed inlaw.

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. (See2 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 Petitiondrafted 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 theWestminster 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, yetbothare denied to women.” “A reason must be given why what is permitted to one person is interdicted to another.” “Far from beingexpedient, 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 ofany 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 personin 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 theywould be constrainedto hold that theyconferred thesuffrage onfemale personsas 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 Chorltonv.Lingswas heard before the Court of Common Pleas in Westminster, Nov. 7th and 10th, 1868, Lord Chief-Justice Bovill and JusticeWilles, 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 ofThe 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, qualifiedexcept by sexto 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 Courtsmighthave 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 commonterms. 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 Holtv.Lyle, which affirmed that afeme solehad a right to vote for a Parliament man.

18.SeeAnte to the contrary p. 64.

19.P. 10.

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 theirlegal 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 Olivev.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 satjure 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 togivethem 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]Andthough 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.

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 casein extenso. As Strange also affirmed that women could not hold by military tenure, his judgment regarding them on other points may well be doubted.

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, Chorltonv.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 Wilsonv.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 Chorltonv.Lings.

The next case, Bennetv.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 rightto 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, butsecundum legem et consuetudiniParliamenti” (“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 theOnewho 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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