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, à 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