The suffrage franchise in the thirteen English colonies in America

Front matter

^6.

W

A^ O

Preface

This historical sketch of the colonial suffrage is the outgrowth of studies begun several years ago in the Department of Philosophy of the University of Pennsylvania. The purpose of the writer has been to present the dynamic or developmental aspect of the subject rather than the analytic; he has not been content with a mere summary of the suffrage qualifications in the several colonies, but has endeavored to trace the growth of colonial ideals and practices respecting the elective franchise. A comparative or analytic treatment might have been of value to the student of colonial institutions, but there were sufficient reasons for putting this method aside. In the first place, the excellent analysis to be found in Bishop's History of Elections in the American Colo-^ nies could scarcely be improved upon; and, secondly, the comparative arrangement would give but slight opportunity for the narrative element. Consequently, the subject has been treated locally ; and, wherever the existing records have rendered such treatment possible, sufficient details have been given to lead to a comprehension of the motives of colonial legislators in their policy of suffrage restrictions. The disadvantages of repetition have been braved rather than sacrifice the consecutive narrative in any colony.

To a complete knowledge of the suffrage franchise, an acquaintance with the representative systems, the methods of voting and the whole elective machinery is necessary; and frequent references have been made to these subjects. The author has, however, had in mind the fact that detailed studies of some of these features have already been made, and he has governed himself largely in the inclusion or rejection of such material, by the extent to which it has hitherto been used. Thus in the New England colonies, the systems of which have been carefully studied, he has limited himself narrowly to the suffrage qualifications ; in other cases, as in iv Preface.

the Camlinas and New York, more attention has been given under which the suffrage was exer-

material fur the study has been gathered almost exni the printed records of the several colonies, and i the various editions of colonial laws. For the latter, continuous use has been made, during the preparation of the k, of the valuable Charlemagne Tower Collection of Colli Laws in the library of the Historical Society of Penn- . ania. The writer regrets that the two volumes of Pro- >r 11. L. Osgood, which have done so much to classify the facts and clarify our ideas of colonial administration in the seventeenth century, were not in print during the preparation of this volume. The absence of an extended bibliography is to be accounted for by the copious use of foot-notes. In conclusion, the author wishes to extend his thanks for the encouragement and advice given so generously by the members of the Department of History of the University of Pennsylvania, and particularly to express his appreciation of the interest in the work shown by Professor John Bach Mc- M aster and Professor Herman V. Ames. At a time when it seemed that the work must remain unfinished, their interest led to its completion. Acknowledgment is gratefully made also of the uniform courtesy shown to the author by the librarian of the Historical Society of Pennsylvania, Mr. John W. Jordan, and by his assistants, during many months of almost continuous use of the Society's collections.

Albert E. McKinley.

Philadelphia, January, 1905.

Contents

CHAPTER PAGE

I. Parliamentary Suffrage in England i

II. The Suffrage in Virginia 17

CHAPTER I. Parliamentary Suffrage in England

The thirteen American colonies were communities whose thoughts and habits as well as language were English.. Groups of settlers from other nations might be found along the Atlantic seaboard in the seventeenth and eighteenth centuries, but their numbers were, proportionately, small, and their influence upon American institutions slight. But while the colonies were distinctively English, they were also American. Frequent reference will be made in the following pages to the purely arbitrary English suffrage qualification of an annual income of forty shillings from freehold land, which at one time or another the strength of English precedent forced upon the voters of more than half of the colonies. On the other hand, the only reason for making this study has been to show the adaptation of English political ideals and practices to American conditions; had the new environment or conscious endeavor forced no change in the English customs, this story would have been but a short one.

The body of this work will, therefore, be devoted to an account of the attempt in each colony to administer the English theories of election and representation under widely different conditions from those which held good in the England of colonial days. We shall trace the influence of cheap land, of religious zeal, or of frontier ideals of equality upon the English aristocratic political system ; and we shall notice the ever-continuing effort of the English authorities to dupli-

2 i kise in the English Colonics.

in the diverse American settlements the political fran-

gland In the final chapter the features of diver-

grlisfa system will be summarized and the

poi] imilarity collated The present chapter will be

►rt account of the parliamentary suffrage in

In the seventeenth century, the age of greatest American nization, the English House of Commons was still repreit had been for over three hundred years, of two quite distinct constituencies. There were, first, the county representatives, two of whom were elected for each county of England, and one for each Welsh county; and secondly, the corporation members, two of whom usually, but in a cases only one, came from the cities, 1 certain designated towns or boroughs, the Cinque ports and the two universities. Previous to 1677 frequent changes in the number of members of the house were made; but after that date, until the reform act of 1832, there were 513 representatives of England and Wales. Of this number, 92 came from the counties, and the remainder, 421, represented the various corporations. 2

The electors of these county and corporation members were required to possess definite qualifications, certain of which were imposed upon all electors of members of parliament, while others were required only of narrow groups of electors. The ancient age restriction of twenty-one years was required of all electors, 3 and the immemorial exclusion of women from political life was always adhered to in the letter, although perhaps broken in the spirit in the elections

1 London alone sent four representatives.

1 Porritt, The Unrcformed House of Commons, I, 15-17.

* Originally there were several ages at which men of different classes of society reached a legal station (Pollock and Maitland, History of English Law, II, 436) ; but at the time of the colonization of America the age of twenty-one years required for those who held by knight's • Bid been extended from the gentry and had become the lawful age for all classes {ibid.; Coke, Inst., I, 78 b, 171 b, 245 b; Blackstone, I, 173).

of a few boroughs. 1 The actual presence of the elector, a requirement which made proxy voting illegal, 2 was found throughout the English elective system, and led to an opposition in England to the establishment of balloting methods in America. 3 The voter in all cases must be either a native-born English citizen, or a naturalized foreigner. 4

Besides these time-honored qualifications, there were more temporary ones which for a greater or less length of time were imposed upon all electors. These were commonly some form of oath or attachment to the established government. Thus under Cromwell, the Instrument of Government of 1653 excluded Catholics from all elections for members of parliament, and disfranchised all who had " aided, advised, assisted or abetted" the war against Parliament, " unless they have been since in the service of the Parliament, and given signal testimony of their good affection thereunto." 5 After the Restoration there was no such intervention with the suffrage. The legislation of the Cavalier Parliament was directed against the holding of office by dissenters in the national government or in the municipalities, but it did not

1 In the boroughs where the right of suffrage was dependent upon the holding of certain ancient lands or lots, called therefore burgageboroughs, women who held such land were permitted to transfer the right to vote in virtue thereof to their husbands, sons, sons-in-law, or their nephews (Porritt, I, 40, 223) ; and in freeman boroughs, where the freemanship was conferred by marriage with a freeman's daughter, such marriageable females were much in demand (ibid., 78-80). See also History of Richmond in County of York (anon., 1814), 138.

2 5 Day's Reports, 333, quoted by Baldwin, New Haven Hist. Soc. Papers, V, 196. Except in the case of peers, who were privileged to select proxies to vote for them in the House of Lords (Blackstone, I, 168). At a very early period proxies may have been permitted (Cox, Antient Parliamentary Elections, 109).

4 As the foreigner possessed few civil rights even in England at common law, so he could exercise no political rights while out of allegiance to the king. Even naturalized persons could not serve as members of the House of Commons until 1870 (33 and 34 Vict., chap. 13).

B Instrument of Government, sects, xiv-xviii.

4 TJu \ckue in the English Colonics.

I general restriction upon the suffrage. 1 The however, brought a more general and more permanent qualification upon electors. By a statute of 1696 1 the sheriffs or officers of election for members of rliament were required, upon the request of any candidate, to administer certain oaths to electors, and no person take the oaths could vote " for the Election of -ht of the Shire Citizen Burgesse or Baron of the [ue Ports i" serve in Parliament." The enforcement of this provision, 1 later amended 4 and extended to parliamentary elections in Scotland, 5 while not excluding Catholics by name, must necessarily have cut out many of them from parliamentary elections, especially those who had Jacobite sympathies. 6

These qualifications, — age, sex, attendance upon election,

'The "Five-Mile Act," 17 Chas. II, ch. 2, practically excluded all rating preachers from voting for members of Parliament in boroughs; but it did not extend to all dissenters, nor, presumably, did it exclude these preachers from voting in the counties. 7 7 and 8 Win. Ill, ch. 27, sect, xviii. 'The oaths are as follows:

"I A B doe sincerely Promise and Sweare That I will be Faithfull and beare true Allegiance to Their Majestyes King William and Queene Mary. Soe helpe me God &c.

" I A B doe Sweare That I doe from my Heart Abhor Detest and Abjure as Impious and Hereticall that Damnable Doctrine and Position That Princes Excommunicated or Deprived by the Pope or any Authoritie of the See of Rome may be Deposed or Murthered by their Subjects or any other whatsoever.

" And I doe Declare That noe Forreigne Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction Power Superiority Preeminence or Authoritie Ecclesiasticall or Spirituall within this Realme. Soe helpe me I &c." (1 Wm. and M, ch. 8). '6 Ann., ch. 23.

1 Catholics were, of course, excluded in a more definite way from

ng in the House of Commons by reason of the denial of belief in

trmnsubstantiation taken by all members of the House. It is probable

thll ' during the eighteenth century abstained from political

activities (Amherst, History of Catholic Emancipation, I, 78-80).

native or naturalized citizenship, and the taking of certain oaths, — were the general restrictions imposed upon all electors in England during the colonial epoch. In addition to these, however, there were numerous local or special qualifications which made the suffrage in England a most unsystematic political practice. These can best be appreciated by separating the uniform suffrage for county members from the heterogeneous qualifications required of electors in the boroughs.

A. THE COUNTY FRANCHISE.

During the first two hundred years of the history of parliamentary representation, it seems probable that the knights of the shires were elected by all the free men of the respective counties. 1 Not freeholders alone, but persons of lower standing took part in the elections during the thirteenth, fourteenth, and early part of the fifteenth centuries. In 1430, however, Parliament restricted this wide franchise. 2 The reasons for so doing are set forth in the preamble of the statute :

" Whereas the Elections of Knights of Shires to come to the Parliament of our Lord the King in many Counties of the Realm of England have now of late been made by very great outrageous and excessive Number of People dwelling within the same Counties of the Realm of England, of the which most Part was of People of small Substance and of no Value whereof every of them pretended a Voice equivalent as to such Elections to be made, with the most worthy Knights and Esquires dwelling within the same Counties, whereby Manslaughters Riots Batteries and Divisions among the Gentlemen and other People of the same Counties, shall very likely rise and be, unless some convenient and due Remedy be provided in this Behalf."

Whereupon it was enacted,

" That the Knights of the Shires to be chosen within the same Realm of England, to come to the Parliaments of our Lord the King, hereafter to be holden, shall be chosen in every County of the Realm of England by People dwelling and resident in the same Counties, whereof every one of them shall have free Land or Tenement to the Value of Forty Shillings by the Year at the least above all Charges."

1 H. Cox, Antient Parliamentary Elections, 64-86 passim; 103-108, 124 ; Grego, History of Parliamentary Elections, 7.

2 8 Hen. VI, ch. 7.

Franchise in the English Colonies.

Tin having the greatest number of such " choosers"

In their favor were tu be the knights for the county; and

sheriffs were impowered " to examine upon the Evangelists"

determine if he possessed the required quali-

tfon.

In spite of the great changes in the value of the shilling; in spite of the growth of the copyhold and other tenures than the freehold; in spite of the difficulty of determining the value of a freehold under the law, and in spite of the indefinite meaning of the word freehold itself; despite all these farts, English conservatism retained the forty shilling freehold as the exclusive qualification of county voters, for •ir hundred years, and as an alternative to other qualifications it is still a part of the English elective system.

It will be noticed from the above excerpt that the voter required to reside within the county. A similar provision had been enacted some years before the property requirement was adopted; 1 and it was continued in subsequent statutes. 2 In spite of the statutory provision, however, by the time of American colonization, the opposite practice had been adopted ; the freeholder was no longer required to be a resident of the county where his freehold lav and where he voted ; but he could vote in several counties if he possessed the necessary freehold in each. The process by which this change had come about is not very clear, but the right of non-residents to vote was well-established in the seventeenth century; 3 and, in 1774, when the early residence acts had been found " by long usage to be unnecessary" and obsolete, they were formally repealed. 4 A poll in Northampton County in 1730 showing a proportion of about Q per cent, of " outvoters," or non-residents, 5 gives an

1 1 Henry V, ch. 1.

* A convenient work upon elections is A Collection of the Statutes Now in Force Relative to Elections down to the Present Time, R.

•rd, London, 1790. 5 Porritt, House of Commons, I, 24; A. Kelly, An Essay on the Franchise, 25.

* See Copies of the Polls taken at the Several Elections for Members

present the County of Northampton in Parliament in the Years

Parliamentary Suffrage in England. y

idea of the extent to which non-residents voted in the county elections.

Throughout the eighteenth century, while no change was made in the forty-shilling freehold, yet there was abundant parliamentary legislation relating to the conduct of elections. Some of these acts, particularly those of 1696, 1 and 171 1, 2 exercised a wide influence upon the machinery of elections in the colonies, and their provisions were sometimes copied verbatim into the colonial election laws. For convenience of comparison with the American legislation, a few of the terms of these acts may be mentioned in this connection. In 1696, to prevent " charge and expense" in elections, various forms of bribery were forbidden. 3 In the same year a comprehensive election act was passed to abolish the evil practices which had " greatly injured and abused" the right of election. 4 The method of issuing and returning election writs and precepts was fixed ; the place of election was to be the most public and usual place of meeting of the county court for the last forty years ; in case the election could not be determined " upon the View with the Consent of the Freeholders there present," a poll was to be taken by the sheriff and clerks, who were sworn to " truely and indifferently" take down the names of each freeholder, the place of his freehold, and the persons for whom he voted. Voters could be required to swear or affirm that they possessed a freehold of the yearly value of forty shillings ; and the poll should be continued from day to day until all the freeholders had been polled. Trustees and mortgagees were not to be

1702, 1705, 1730, 1745, and 1806, Northampton, 1832, p. 79-185 passim. At the election of June 8, 9, 10, 1730, there were at least 288 outvoters out of 4171 electors.

1 7 and 8 Wm. Ill, chs. 7 and 25.

2 10 Ann., ch. 31 (so numbered in Statutes of the Realm, IX, 698-700, but in previous editions of the Statutes at Large it was ch. 23).

8 7 and 8 Wm. Ill, ch. 7. No candidate shall " directly or indirectly give, present or allow, to any person or persons having voice or vote in such election, any money, meat, drink, entertainment, or provision, or make any present, gift, reward, or entertainment, or shall at any time hereafter, make any promise, agreement, obligation or engagement to give or allow any money, meat" etc. Elections so obtained were to be void. * 7 and 8 Wm. Ill, ch. 25.

8 The Suffrage Franchise m the English Colonies.

permit* kc by virtue of their trusts or mortgages,

U11 K in actual possession or in receipt of the rents

an.! of the estates. 1 Conveyances to multiply votes,

plit and divide the interest in freeholds in order to qualify icveral persons for the suffrage were to be void. 2 Another clause provided that " noe more than one single

Hall be admitted to one and t/ie same House or Tene-

men

By the preamble of the act of 1711, 3 it is stated that '• many fraudulent and scandalous Practices have been used of late, to create and multiply Votes at the Election of Knights of the Shires ;" and it is enacted that all such conveyances, in- 1 of being void as was provided in the former act, were t' 1 be good and valid against the persons making them, while all bonds given to defeat the purpose of the present act were to be void. Further, both the person making such a transfer and the one voting by virtue of it were to be liable to a fine of forty pounds apiece. Two other provisions were in the nature of direct additions to the old forty-shilling qualification. The first of these provided that no person could vote virtue of lands or tenements " which have not been charged or assessed to the publick Taxes, Church Rates, and Parish Duties, in such Proportion as other Lands or Tenements of Forty Shillings per Annum;" 4 thus virtually re-

1 " Noe Person or Persons shall be allowed to have any Vote in Election of Members to serve in Parliament for or by reason of any Tru>t Estate or Mortgage unless such Trustee or Mortgagee be in actual possession or receipt of the Rents and Proffits of the same Estate, but that the Mortgager or Cestui que trust in possession shall and may vote for the same Estate notwithstanding such Mortgage or Trust."

" And that all Conveyances of any Mesuages Lands Tenements or Hereditaments in any County, City, Borough, Towne Corporate, Port or Place in order to multiply Voices or to splitt and divide the Interany Houses or Lands among severall Persons to enable them to att Elections of Members to serve in Parliament are hereby declared to bee void and of none Effect." " 10 Ann., ch. 31 (23).

* By 12 Ann., ch. 5, it was explained that this ought not to exclude Dl from voting who were in possession of the required amount td land, which legally was not taxed — such as church lands.

quiring the elector to be a taxpayer as well as a freeholder. 1 The second provision required the elector to be in receipt of the rents and profits of the freehold, or entitled to receive them for one year before an election " unless such Lands or Tenements came to such Person within the Time aforesaid by Descent, Marriage, Marriage Settlement, Devise or Presentation to some Benefice in the Church or by Promotion to some Office, unto which such Freehold is affixed."

By later legislation annuities and rent-charges must have been registered with the clerk of the peace twelve months before the date of the election; 2 and in 1757 it was provided that no person could be qualified to vote for knights of the shires by virtue of a copyhold estate. 3

In concluding the subject of the county suffrage it may be mentioned that the franchise under the forty-shilling freehold provision was extended in two ways. The first of these was by means of the splitting up of estates into parcels just large enough to qualify a person as an elector. Such voters were called " faggot" voters, and, as has been noticed, parliament attempted by statute to prevent their multiplication. There is no question, however, that as the value of money declined, the forty shilling qualification became easier of attainment, and thus led to a wider franchise. The same result was reached in a second way by a broader interpretation of the word freehold as an estate for life or greater dignity. What had originally been attached to real estate alone, now came to be applied to annuities or to rent-charges, or any other form of income continuing during the life of the holder. It was even extended to positions in the church or the judicial service where the tenure and income were for life. Thus, clergymen of the Church of England, the holders of lectureships, judicial officers and clerks of the peace, schoolmasters, and even choristers in the cathedrals 4 voted in respect of their offices. By the increase in the num-

x The statute only required the freehold to have been assessed for the taxes, they need not have been paid; but in the majority of cases at least tax-assessing and tax-paying would be equivalent terms.

2 Blackstone, I, 173.

4 Porritt, Unreformed House of Commons, I, 22, 23.

io The Suffrage Franchise in the English Colonics.

ber i . and by the extension of the term freehold

under the act of 1430 was thus gradually exl; llli: BOROUGH AND CORPORATION FRANCHISE.

While the suffrage in the counties was based upon a single and uniform legal requirement, there existed in the seventeenth and eighteenth centuries a bewildering variety of

unifications for the borough and corporation suffrage franchise There was no law imposing a general qualification upon the electors in these places, but their franchise was fixed by local custom, by royal charters, or by the " last determination" of the House of Commons. 2 The right of suffrage might extend to all the householding inhabitants of the borough, or it might be limited solely to the score of officers of the corporation; it might include hundreds of resident and non-resident freemen, or pertain only to the holders of a dozen or fifty ancient land-tenures ; in some places it included the forty-shilling freeholders, in others the occupants of certain original houses, often little more than dilapidated hovels, in others still every potwalloper, or man boiling his own pot, had the right to vote. For the sake of clearness a short statement will be made of the suffrage under each of the following heads: (1) The inhabitant, and inhabitant-householder suffrage; (2) the potwalloper suffrage; (3) the burgage tenure suffrage; (4) the freeman suffrage; (5) the corporation suffrage; and (6) the university franchise. 3

1 . The Inhabitant and Inhabitant-Householder Franchise. This was the broadest borough suffrage, the most natural

1 After the Reform Act of 1832 had added several new optional qualifications, it could be said that there were eighty-five avenues to the suffrage, most of which led to the county franchise through various interpretations of the term freehold (ibid.). I S Win. Ill, ch. 7; 2 Geo. II, ch. 24. *Thi> analysis is nearly identical with that used by Porritt, Unrest Commons, I, chap. III. I cheerfully acknowledge my indebtedness to this writer for many of the following illustrations concerning the borough suffrage.

Parliamentary Suffrage in England. n

one, and that which conformed most closely to the early English custom. In the earliest days of borough representation, it is probable that the suffrage included all the legal burgesses, and these are believed to be the householding inhabitants who bore a part in the taxes and other burdens of the community, — in other words, paid scot and lot. 1 This early suffrage continued to be exercised in many boroughs throughout the period of English history we have under consideration. During the eighteenth century there were over fifty boroughs in which the inhabitants, or inhabitant-householders, exercised the suffrage, either alone or in conjunction with other classes of voters. 2 In some cases the ancient scot and lot provision appears to have been lost, 3 while, on the other hand, in most of these boroughs, an inhabitant receiving alms could not act as an elector. 4 There was no general residence requirement in these places during the period we are studying, and not until after the American Revolution was there a compulsory six months' residence before the election. 5

2. The Potwalloper Franchise. This was similar to the inhabitant-householder franchise, except that it extended the right to vote to those who, not owning or renting an entire house, yet had a separate fireplace, or boiled the pot for themselves and their families. 6 Potwallers or potwallopers, as determined in one contested case, were " persons furnishing their own diet, whether householders or only lodgers." 7 In such cases usually the elector must, as in the inhabitant-householder boroughs, be assessed for the local taxes (pay scot and lot) ; 8 and, generally also, those receiving alms

1 Cox, Antient Parliamentary Elections, 165-181.

2 Kelly, Essay on the Elective Franchise, 27-41 passim.

3 Ibid.

* Oldfield, History of Boroughs (ed. 1794), passim; Grego, History of Parliamentary Elections, 5.

6 Wallop = ebullire, infervescere ; walling = boiling (Cox, Antient Parliamentary Elections, 191, note).

7 Kelly, Elective Franchise, 33.

8 But even this was not required in Honiton ; Porritt, I, 31.

u The Su Franchise in the English Colonies.

hided As in the inhabitant boroughs there was no general residence qualification. 1

y The Burgage Tenure Franchise. A burgage tenure . defined as land or tenements lying in a borough and ing to the king or other lord a certain annual rental. 2 tenures dated back hundreds of years from the seventeenth century, and often formed but a small part of the land of a pi >pnl< »us community. Yet to them and them alone m many towns was the privilege of electing members of Parliament attached.

In no group of boroughs did the suffrage vary more than it did in the burgage boroughs, and local custom here seems to have done its best to bring confusion into the elective tem. In some cases the right to vote was given to the holders only of the original burgages, as in Petersfield, w here the electors were " the freeholders of lands, or ancient dwelling-houses or shambles built on ancient foundations;" 3 in other boroughs the franchise was vested in the inhabitants of the ancient tenures, as in Weobley, where it rested upon the " inhabitants of certain ancient vote-houses of twenty shillings per annum and upwards, residing in the houses days before the election and paying scot and lot, and also in the owners of such houses paying scot and lot and resident in the houses at time of election." 4 Again it might be the leaseholders for a certain term of years, or even, in two cases, the copyholders 5 of the estates, who possessed the right to vote. There was a similar diversity within the thirty-nine burgage boroughs respecting the residence of voters. In Cricklade and Weobley 7 a residence of forty

1 In only three boroughs, apparently, did the potwalloper suffrage rest upon parliamentary determination (Tregony, Honiton, and Taunton; see Oldfield, Hill of Boroughs, I, 92, 171; II, 53) ; probably it ted in other places under local interpretations of the words inhabior housekeepers. 'Coke, lust., I, 108 b, 109 a.

' Oldfield, Boroughs, I, 297. * Ibid., 308.

1 In the two boroughs of Westbury and Cricklade occur the only the suffrage based upon copyholds (Oldfield. Boroughs, II, 216, 223).