How can we talk about women’s history in English-influenced western law without talking about voting rights? Well, sorry ladies. If we’re going to talk about voting rights, we’re going back a bit further than the suffragettes. The practice predates women’s interest in it by a few hundred years. We’ll cross that bridge when we get to it, but until we do, we’re going to be talking about men, darling. To learn more, tune in to HBR Talk at on Thursday, March 28, 2024, at 7PM EST, or find other viewing and listening options in the dropdown menu at the top of this page.
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Show Notes:
The first thing you have to know about has nothing directly to do with voting, but did change conditions between the English monarchy and the people in ways that influenced how voting rights evolved.
The Magna Carta – Negotiations for this agreement were set off by the failed foreign and domestic policies, despotic behavior, extravagant lifestyle, and heavy-handed taxation imposed by King John.
Onthisday.com, which refers to John as England’s worst-ever monarch, points out that “no monarch before or since has used the name.”
Yes, we’re talking about the King John of Robin Hood legend, brother of King Richard. Folklore notwithstanding, Richard really did leave England to go fight in the crusades, and when he was captured by Duke Leopold of Venice and later handed over to Holy Roman emperor Henry VI, John really did make an arrangement with the emperor to keep his elder brother captive, rather than pay.
Under John’s father, King Henry II, England had gained quite a bit of territory, including lands that had been French territory prior to his rule. Under John’s rule, through his own decisions, several territories were lost to King Philip of France (also known as Philip Augustus because he enlarged the boundaries of France by conquering lost territories.)
John’s attempts to get these lands back by force failed miserably, and he demanded more funding from his barons to try again. In response to these demands, his expanded & heavy taxation, and his despotic behavior, his barons confronted him with demands for reform and forced him to negotiate.
The resulting agreement, the Magna Carta, did not create a citizen’s right to vote, but it did establish that the Monarch doesn’t have absolute power, but is instead subject to the rule of law. It also established that the king couldn’t impose new taxes without the agreement of the leading churchmen and nobility.
As the UK government’s own history blog states, “Medieval kings were expected to consult with and take advice from the leading churchmen and nobility of their kingdoms. The greater nobility were generally tied to the king through bonds of kinship, ancestry and tenure – in post-Conquest feudal society the king’s tenants-in-chief held their lands of the king. They were considered natural leaders of the kingdom with both a right and an obligation to give counsel to the king.”
Clause 14 of the Magna Carta didn’t create parliament or give voting rights to the common man, but it did codify into law the fact that a set of nobles, whose positions came with responsibility for the people living on their lands, must meet and decide together how to advise their king before he could proceed with new taxation. This could be looked at as a proto-voting system in which the leadership of large swatches of people debates and decides on their behalf regarding whether to consent to actions the reigning monarch wanted to take, or to oppose those actions and refuse to fund them, leading to rebellion & civil war.
Although John signed the agreement, he quickly betrayed it by asking Pope Innocent to back him in declaring it null and void. Meanwhile, on his own, Pope Innocent condemned the agreement, and forbade observance or enforcement of the charter.
The resulting conditions led to a violent conflict called the First Barons’ War, during which John became ill and died, succeeded by then 9 year old King Henry III.
With the king’s executors trying to maintain the power of the monarchy amid the barons’ rebellion, the interference of the French monarchy and the Catholic church, the charter did not become established again until 1217, when a newer version which gave barons more authority over their feudal subjects, but watered down the restrictions on the monarch’s ability to levy taxes, was signed to signal the end of the war.
Though the document continued to evolve through time, there are 2 things about it that are relevant to modern suffrage. One is the concept of council, which shows that the first hard limit on a monarch’s unilateral power is the consent or dissent of the people the monarchy relies upon to govern segments of the country and see to the welfare of the subjects therein. To quote the UK government’s history blog again, “The idea of the ‘common counsel of our kingdom’ shows that the barons were thinking of themselves as the embodiment of the community of the realm.” The other is that the legal establishment of this concept is very solidly drawn up in blood from a war waged by men in those positions of responsibility. It was not just a set of ideas, but a very deeply held belief that this system of checks and balances was important to ensure the welfare of the nation and its people.
Why is this important?
That would be the next detail we need to visit: Parliament.
While the great counsel was not the same as a modern representative parliament, it’s a clear predecessor and contributor to its development. Australia’s parliamentary education office webpage cites 1236 as the first instance when a great counsel was referred to as “Parliament.”
This page also gives a concise description of the next conflict, describing how King Henry III repeated John’s mistake of continuing conflict with the barons and failure to honor his agreements with them, resulting in the Second Barons’ War and the King’s defeat in 1264, and Simon de Montfort’s Parliament in 1265. Though it was very short-lived as Monford was killed in battle later that same year by Henry III’s son Edward, it is considered a predecessor of modern parliaments because it included commoners. When Edward ruled, he continued this standard by including 2 elected representatives from each county, city and town in his parliament.
This would be when local elections expanded the concept of common council from the nobility and clergy to commoners, via their elected representatives. Again, this right of ensuring the decisions of the monarch would rely on the consent or dissent of men in positions of responsibility was very solidly written in the blood of its advocates and defenders.
Note about a consideration not discussed in the literature: Something I think a lot of modern people won’t think about – what this history describes is an evolution of participation in government by the people, involving travel by messengers and then representatives across a nation during a time when travel was done on horseback or using horse & carriage at the risk of being attacked by robbers or animals, when accidents were an extreme risk (no modern communication, either) and travel also meant possible exposure to unknown illnesses that could neither be prevented, nor effectively treated, because effective methods of doing so were as yet unknown. One would either face this risk alone knowing injury in transit could mean a horrible death, or pay for a team, including guards of some sort, to mitigate the risk. This is exactly the kind of dangerous thing that was considered a male obligation, from which women were exempt. Representation in the great council was an obligation of men in positions of responsibility over area populations, not a man’s right from which women were simply arbitrarily excluded.
In his 2013 paper written for the UK parliament’s Research Briefings online library, Titled “The History of the Parliamentary Franchise,” Neil Johnston explains that, “‘Before 1430 there is evidence that the right to vote for the knights of the shires in English county elections was given to “every free inhabitant householder, freeholder and non-freeholder”. There was no requirement for freeholders to be landed freeholders; the freehold could relate to something other than land.“‘
The paper states that there was no exclusion codified into law for women, but instead states the supposition that local tradition would cause the same exclusion. A document found in 2013 pertaining to 19th century elections indicates that tradition might not have been so exclusionary as people think. However, we’ll talk more about that later.
In his paper, Johnston explains two basic types of franchise; county, and borough.
Here’s where some people (especially my fellow countrymen) might need to brush-up on vocabulary so before proceeding with Johnston’s work, here goes:
The medieval English borough was an urban centre identified by a charter granting privileges, autonomy, and (later) incorporation. As an autonomous corporation, the borough functioned outside the general administrative hierarchy of the shire and hundred. In other words, a village, town, or city.
…in Great Britain, a county. The Anglo-Saxon shire (Old English scir) was an administrative division next above the hundred… It was administered by an ealdorman (alderman) and by a sheriff (i.e., shire-reeve), who presided over the shire court. After the Norman Conquest the French term county was introduced and generally supplanted shire in preferred official use.
…unit of English local government and taxation, intermediate between village and shire, which survived into the 19th century. Originally, the term probably referred to a group of 100 hides…
…in early English history, the land necessary to support a free peasant family. In the 12th and 13th centuries, the hide commonly appeared as 120 acres (50 hectares) of arable land, but it probably represented a much smaller holding before 1066. It was the basis of the earliest taxation and the basis for mustering the primitive English militia, the fyrd. Basically, a homestead.
tribal militia-like arrangement existing in Anglo-Saxon England from approximately AD 605. Local in character, it imposed military service upon every able-bodied free male. It was probably the duty of the ealderman, or sheriff, to call out and lead the fyrd. Fines imposed for neglecting the fyrd varied with the status of the individual, landholders receiving the heaviest fines and common labourers the lightest. The Anglo Saxon Fyrd (Millitia)
These definitions and their connections provide an understanding of a very solid connection between land division, land ownership, men’s obligation toward the community, and military service, something to bear in mind as we read on.
According to Johnston’s description of the county franchise, aside from legislation to address corrupt officials bypassing the election process, which occurred in a variety of ways, nothing changed until “In 1429, a petition was presented to the King by the Commons…” The complaint, essentially, was that poor people were voting on what was viewed as the pretense of having an equal voice to that of a knight or esquire.
Johnston writes:
“The petition called for the vote to be restricted to those freeholders resident in a county with a freehold value of 40 shillings a year. A freehold was not restricted to land; it could refer to many types of property. The petition led, in 1430, to such a statute being passed and all leaseholders, regardless of the value of their leased land, were stripped of the vote. The 40 shilling resident freeholder requirement for the county franchise remained until 1832 although the interpretation of what constituted a freehold was extended in the intervening years, and the residency requirement gradually became obsolete.”
The University of Nottingham defines a freehold as follows:
Freehold land was and is held ‘in fee simple’. Freehold land was owned absolutely by the owner, who was free to sell it, pass it by will, or settle it….
Britanica.com adds that The term originally designated the owner of an estate held in free tenure, who possessed, under Magna Carta, the rights of a free man. A freehold estate was distinguished from nonfreehold estates… and Knight service and frankalmoign, which required military and ceremonial services respectively, and free socage, which involved certain services of husbandry or manual labour, were types of free tenure.
Socage
… in feudal English property law, form of land tenure in which the tenant lived on his lord’s land and in return rendered to the lord a certain agricultural service or money rent.
In feudal society, lords were individuals who held land from the king and were responsible for managing the land and providing military service to the king.
The lord was obligated to provide military service to the king, and in exchange, the king granted the lord land to manage and control. This relationship was known as the feudal system.The lords were also responsible for providing protection to their subjects, maintaining law and order, and collecting taxes.
So what the 40 shilling franchise of 1430 established was that voting rights in county elections which to send county members to parliament were to be limited to only those earning 40 shillings annually in rent from property earned through military service to the crown (government,) or similarly dedicated service to the church.
As Johnston explains, “The 40 shilling resident freeholder requirement for the county franchise remained until 1832 although the interpretation of what constituted a freehold was extended in the intervening years, and the residency requirement gradually became obsolete.” He further points out that this gave only 1.35% of the population voting rights, and states that “In 1831, just before the reforms of the Great Reform Act, Middlesex had a population of 1,358,330 and an estimated electorate of 3,000 (0.22%) but in Herefordshire the figures were an estimated 4,000 voters from a population of 111,211 (3.6%).”
Of the borough franchise, Johnston found no set criteria, no uniform franchise across the nation, and no systematic form of electoral registration. Industrial influence prior to the industrial revolution had concentrated population centers and royal patronage in the south. This combination of factors led to some variety in types of types of franchise, under the following main categories;
Scot and lot boroughs
Scot and Lot was a contribution towards municipal expenses, largely poor relief, scot being the amount and lot the share. In other words, qualification by taxpayer status.
Potwalloper boroughs
A potwalloper was a voter living in an English borough before the Reform Act of 1832 and qualifying for suffrage as a householder by the boiling of his own pot at his own fireplace. In other words, qualification by virtue of financial independence from poor relief.
Burgage boroughs
Johnston describes burgage as “land and/or property tenure in a town for which payment was usually made to the king or a lord by the exchange of money rather than services.” In other words, qualification by virtue of renting property.
Freeman boroughs
A freeman was a man who was not a noble or a serf. This would be a medieval equivalent of middle class with obligations. As Johnston writes, “ When early boroughs were granted charters many made references to freemen, who also had to undertake municipal duties, and the status of a freeman was incorporated into the rules governing the Parliamentary franchise within some Parliamentary boroughs.” In other words, the qualifying factor was obligation/employment.
Corporation boroughs
Johnston describes corporation boroughs as “boroughs where the corporation governing a borough held the power to elect the Members of Parliament.” Literally, local government decided who would represent the people of these communities at parliament.
In discussing Other pre-1832 Parliamentary franchises, Johnston explains the inclusion of Scotland, Wales, and Ireland over time.
He notes that regular Welsh representation in Parliament dates back to the mid-sixteenth century, though there’s evidence of representation “in the last Parliament summoned by Edward II.” He also notes that “In the reign of Henry VIII the duty of sending a knight of the shire to Westminster, and paying his expenses, was regarded as a financial burden and this may be the reason that the Welsh counties were only required to send one MP. In relation to the English counties the counties in Wales were comparatively less affluent.”
Ireland and Scotland are a complicated matter, due to their historical relationship and their historical relations with England, as well as religious conflict in Ireland. We’re not going to get into the whole history, except to state that Ireland’s politics during the time of King John were influenced by King John’s terrible behavior during his reign, and during the reign of his successor, Edward I. Irish parliament formed in 1297. What’s relevant to the evolution of modern voting rights is the election standards, which from Johnston’s report seem to have started out similar to those of Britain, with the 40 shilling franchise.
Early on that was the full standard for the county franchise, and the borough franchise, he reports, “had the same mix of voting qualifications as the English boroughs in the English Parliament.”
One major difference explained was the disenfranchisement of Catholics in Ireland in two ways, from about 1692 to 1829. Of voters, Johnston states, “The Parliamentary franchise in the Irish counties was specifically withheld from Roman Catholics by statute from 1727 to 1793… this effectively barred about 80% of the male adult population in the counties of Ireland from exercising the vote in Parliamentary elections.” However, even if they could have voted, they still would not have been represented, as, according to Johnston, “In order to take their seats MPs and peers had to take an oath abrogating the supremacy of the Pope and make a declaration that transubstantiation did not occur at the Last Supper. Catholic peers continued to be summoned to Parliament but could not make such a declaration and as a result, from 1692 until its abolition in 1800, the Irish Parliament was a Protestant assembly. Catholics continued to be barred from sitting in the UK Parliament until 1829 when the Roman Catholic Relief Act 1829 made it lawful for any Roman Catholic to sit and vote in either House of Parliament (with the exception of Roman Catholic priests who were prevented from standing for election to the House of Commons).”
Parliament.uk explains that “Until the early 17th century England and Scotland were two entirely independent kingdoms. This changed dramatically in 1603 on the death of Elizabeth I of England. Because the Queen had died unmarried and childless, the English crown passed to the next available heir, her cousin James VI, King of Scotland. England and Scotland now shared the same monarch under what was known as a union of the crowns.” It was another hundred years before the two nations united under the 1706 Treaty of Union. Since Scotland had its own parliament and system prior to this event, Johnston explains, “The method of election of the 45 MPs to serve in the House of Commons was left to the Scottish Parliament to determine,” and that the first time around these “were chosen from the sitting Members (commissioners) of the Scottish Parliament, in part to avoid elections in Scotland from producing an anti-Union majority.” The parliament decided that “30 county representatives and 15 burgh representatives should be elected to serve in the House of Commons in Westminster” following the country’s existing election process and standards. The county electorate, made up of 40 shilling freeholders, is estimated to be about 0.1% of the population. The borough electorate consisted of town councils. Town councils were, since 1469, appointed by the previous town council.
This original variety of qualifications for voting rights had one thing in common – they all excluded the lowest economic class from having the right to vote, all based on the upper classes having a degree of obligation to one’s community and country, including answering the call for military service. Johnston also noted that county and borough franchise types had something in common: “Whether county or borough seats, all elections were conducted in public and votes were cast in public by each voter. Poll books were kept and patrons could see who voted for which candidate.” In other words, not only was civic obligation a required condition for voting rights, but the voter’s choices as an obligor were public information, open to the judgment of those on whose behalf he was presumed to have cast his vote, as well as anyone else who might take an interest.
Next week, we’ll continue by discussing more about changes to the franchise between 1430 and 1832 and the entry into the franchise by Australia, Canada, and the United States. In the meantime…
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