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.
[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.
[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.