of England, women are not returned of juries, nor put into offices or commissions, nor eligible to serve in Parliament, or admitted to be members of the House of Peers; but, by reason of their sex, they are exempted from such employment. The omission of the electoral franchise from that enumeration [of exemption] is remarkable. If women were, at that time, considered to be excluded by any "custom of England" from the Parliamentary franchise, as well as from Parliament, it is scarcely conceivable that Whitelocke would have omitted to mention so important a fact. Singular to say, there is no trace of any such custom or usage in the reports or amongst the records, not even, so far as the author's researches have been successful, in the Journals of the House of Commons itself; and yet the right of the returning officer to reject the vote of a female elector when tendered at the polling-booth is always assumed to be an adjudged point. Mr. Oldfield appears to have been under the impression that the resolution of the House of Commons upon the occasion of the Westminster election, asserting the incapacity of an alien to vote in elections of members to serve in Parliament, extended to "women" also. If it were so, the incident would have no weight, for the enactment, which, according to a second resolution of the same date, was to be prepared for carrying into effect that intention, never received the sanction even of that House. But, in truth, no mention of "women" appears in either resolution. Nor was there, in that year, or at any other period, any resolution or determination of the House, so far as the author's information goes, directly impeaching the capacity of any female, in respect of her sex, to vote at an election to Parliament. 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.
