Ashby v. White

A returning officer at the Aylesbury election refused to take a qualified burgess's vote. The King's Bench held that the burgess had no claim. The House of Lords reversed that judgment and held that a voter wilfully denied his vote may sue the officer in the ordinary courts for damages.

Quick Revision

Parties

Mathew Ashby — plaintiff (in error); a burgess and inhabitant of the borough of Aylesbury, qualified to vote.

William White and others — defendants (in error); the constables of the borough of Aylesbury, to whom the Sheriff's precept was delivered for the election.

Procedural History

1. Ashby sued the defendants in an action on the case (a claim founded on the particular facts of the wrong). The defendants pleaded Not Guilty, and the cause went down to trial.
2. The jury gave a verdict for the plaintiff, with £5 damages and costs.
3. In the Court of King's Bench, the defendants moved in arrest of judgment (a request to stop the entry of judgment), saying the action did not lie. Counsel argued the point, and the Court then argued it.
4. Lord Chief Justice Holt held that judgment should be given for the plaintiff. Mr. Justice Powel, Mr. Justice Powys and Mr. Justice Gold held the opposite, and judgment was entered for the defendants.
5. Ashby brought a writ of error (a proceeding that takes a judgment to a higher court for review) in Parliament. Counsel argued the cause at the Bar of the House of Lords.
6. Ten of the Judges present in the House were heard, and the Lords debated the matter fully.
7. The House held that the King's Bench judgment was erroneous. It held that the plaintiff had a good cause of action and ought to have judgment.
8. On 14 January 1703 the House of Lords reversed the judgment and gave judgment that the plaintiff should recover.
9. The Lords read and approved a State of the Case and then passed four Resolutions. They also made two Orders about printing the report and sending it to the Sheriffs.

Facts

1. On 26 December in the 12th year of King William the Third, a writ issued out of Chancery to the Sheriff of Bucks. The writ recited that the King had ordered a Parliament to be held at Westminster on the sixth of February following.
2. The writ commanded the Sheriff to cause two Knights to be elected for the County, two Citizens for every City and two Burgesses for every Borough.
3. The Sheriff made a precept (a written order) under the seal of his office. He directed it to the Constables of the Borough of Aylesbury and commanded them to cause two Burgesses of the Borough to be elected.
4. The Sheriff delivered the precept to the defendants, whose duty it was to execute it.
5. By virtue of the writ and precept, the burgesses of the Borough were summoned and assembled before the defendants to elect two Burgesses.
6. Ashby was then a Burgess and Inhabitant of the Borough and was duly qualified to give his vote at that election.
7. Ashby was ready and offered his vote to the defendants for the choice of Sir Thomas Lee, Baronet, and Simon Mayne, Esquire. The defendants were required to receive and admit his vote.
8. The defendants knew the facts. They fraudulently and maliciously intended to harm Ashby and to defeat him of his privilege.
9. The defendants hindered Ashby from voting and refused to let him vote. The two Burgesses were elected without any vote from him, to his damage.
10. The jury found that the hindrance was done by fraud and malice (a wrongful intention to injure).

Issues Raised

1. Did Ashby, as a Burgess of the Borough, have a legal right to give his vote at the election of Parliament Burgesses?
2. If he had that right, must he have a legal remedy to assert and maintain it?
3. Is an action on the case the proper remedy under the grounds and principles of the ancient common law of England?
4. Was it a good objection that Ashby did not show that his candidates were elected, or would have been elected if his vote had been taken?
5. Did Ashby suffer damage in law from the refusal of his vote, which would support an action?
6. Was the action barred because it was novel, would multiply actions, or would expose officers to suits?
7. Was the matter one for Parliament and the House of Commons alone, so that the Queen's Courts had no jurisdiction?
8. Did the earlier cases of Onslow and of Barnadiston and Soames show that no action lay?
9. Would allowing the action breach the privilege of the House of Commons?

Arguments Contended

The reported State of the Case sets out the arguments used to support the Lords' opinion, and answers to the objections raised against it. The defendants' side is recorded only through those objections.

Arguments used to support the Lords' opinion (from the State of the Case)

• Ashby had a legal right to give his vote as a Burgess. As a necessary consequence he must have a remedy to assert and maintain it.
• Knights of the Shire represent all the Freeholders. The right to vote was originally part of the freehold. The Statute of 8 H. VI, c.7 only limited it to freeholders of forty shillings a year, and so shows it is an original and fundamental right.
• Citizens and Burgesses are in substance the same, since every city is a borough. Some boroughs hold their right by burgage tenure, as belonging to their estates (Littleton's Tenures, Sects. 162-164).
• Other boroughs hold the right by prescription (long custom) or by charter, as belonging to the corporation. The inheritance of the franchise is in the corporation, but its benefit and exercise are in the members who elect. Authorities: Jones 165 (Hyward and Fulcher); 46 Ed. III; Moore 832 (Waller v. Hanger); 1 Saund. 343 (Waller and Spateman); Meller and Walker.
• The wages of Citizens and Burgesses were always levied on the goods of the members, not of the corporation.
• Two Parliaments confirmed the right. The Act for Chester (34 and 35 H. VIII, c.13) said exclusion from sending Burgesses caused damage to lands, goods and bodies. The Act for Durham (25 Car. II, c.9) called the right a liberty and privilege.
• Some rights have no common law remedy, such as a legacy. That is because the Constitution assigns causes to different courts, so a man must go to the right place. There is no right without a remedy in the law of England.
• A man who loses or quits his remedy loses his right. Authorities: Coke's 6th Rep. 58 (Bridgeman's Case); a lost quare impedit for an advowson (a claim to a church living).
• It would be absurd that an officer could deprive electors of a right on which the lives, liberty and property of all the people depend, and leave the injured person without remedy. The law would then tolerate the injury.
• Ford v. Hoskyns (2 Cro. 388; Mo. 842) is no bar. The nominee there had no right until admitted, but Ashby's right of voting was vested in him without any previous admittance. An action lies for defrauding and hindering a man in a right he has.
• Where a statute requires an act for another's benefit, the party injured has an action even if the statute gives none in express terms. Authorities: Coke 10 Rep. 75 (Case of the Marshalsea); 12 Rep. 100; Co. Mag. Car. 118. The same reason applies where the common law gives a right.
• The Statute of Westminster 1, c.5 enacts that elections shall be free. An officer who hinders a voter makes the election not free and breaks that statute. The defendants are offenders within its words, since the jury found fraud and malice.
• An action on the case is the proper remedy. The law provides proper remedies for every wrong: trespass for assault and battery, false imprisonment, trespass to goods, house or land, and an action on the case where a franchise is disturbed.
• An action on the case also lies against an officer entrusted with the execution of process who does an injury. For example, a sheriff who will not execute a writ is liable. The defendants were commanded to admit every person having a vote, so refusal broke the duty of their office.
• It does not matter whether the candidate Ashby voted for was chosen. His right was to give his suffrage and be a party to the election. The right of action accrues on the refusal of the vote, and the return, a matter after the fact, does not make it better or worse.
• The law never imagines injuria sine damno (a legal wrong without damage); every injury imports damage in its nature. A man who picks a lock and enters a house may cause no money loss, but the owner recovers damages for the invasion of possession.
• Turner v. Starling supports this. Turner was a candidate for Bridgemaster of London Bridge and demanded the poll. The Lord Mayor refused it. The action was held maintainable, because every candidate has a right to the poll, even though the poll might have gone against him. Also cited: 29 E. III. 18; Hunt and Dowman (2 Car. 478; 2 Rolls 21).
• If offences multiply, remedies against them should be advanced. Punishing officers by damages will hinder corruption among borough officers.
• The rule against multiplying actions applies to one act injuring many, as in Williams's Case (Co. 5 Rep. 72) and Fincux v. Hovenden (3 Cr. 664), on not saying divine service in a chapel or on stopping a lane. Each refusal of a vote is a distinct act, so it is a separate wrong. The rule also applies only where another remedy exists. Examples: ploughing up common land; stopping a common watering-place.
• If a mayor or bailiff could refuse voters, he could make a majority of his own choosing. He would then return persons who would sit in the House of Commons, make laws and impose taxes until the right of election was decided. The House cannot compensate the harm done in the meantime.
• Ashby has no other remedy. No indictment lies, because the wrong is personal to him and the wrong to the public is only an evil example. An honest officer with a real doubt has nothing to fear, since fraud and malice entitle the party to the action.
• The officer is only ministerial and not a judge. His business is to execute the precept, assemble the electors, receive votes, count them, declare the election and return the persons elected. A sheriff must, at his peril, know what goods a man has when he levies execution.
• The novelty of the action is no objection. There have probably been few occasions for such suits, and a man of small means might have been discouraged by the prospect of small damages. Ashby showed a true English spirit in asserting one of the most valuable privileges of an Englishman.
• The law is not confined to particular precedents. It consists in their reason. Maxims: Ratio Legis est Anima Legis; Ubi eadem Ratio, ibi idem Jus.
• Several actions were new when first brought and were still upheld. Examples: Hunt and Dowman (1618, landlord's action against a tenant who hindered him from searching the house); Turner and Starling; Moss and Slue (1 Cr. 15; Jones 93), an action against a ship's master; Smith and Cranshaw (Palmer 313), for maliciously indicting a man for high treason; and Heming and Beal (2 Levinz 250), against a mayor for refusing a vote in a mayoral election.
• The right to vote for a Mayor is admitted to be actionable. There can be no difference unless it ranks higher than the right to choose Members of Parliament.
• The Statute of Westminster 2, c.24 also supports the action. It directs the Chancery clerks to make a writ in a like case falling under like right and wanting like remedy, so the King's Court does not fail in justice.
• The case is proper for the Queen's Courts. The right to choose Knights rests on a freehold, which those courts try by jury on oath. The right to choose Citizens and Burgesses rests on prescription, custom or letters patent (a royal grant under seal). Customs are tried by a jury of twelve from the county, and letters patent are judged by the Court with a writ of error available.
• The Act of 7 and 8 W. III on the last determination of the House of Commons only tells the returning officer whom to return. It does not stop a voter suing an officer who knowingly refuses a vote that the House's determination would allow. The Queen's Courts are the first and original expounders of statutes.
• No other court can try this injury but the courts of Westminster. Whoever challenges one court's jurisdiction must name another court with jurisdiction, and here that is impossible.
• The House of Commons judges the right of election of its own members. But there is a great difference between the right of electors and the right of the elected. The elector's right is a freehold or a franchise established even before there is a Parliament, and the same law that gives it must defend it.
• No single elector has ever complained to the House of Commons that he was denied a vote. When electors complain of a false return, the House tries electors' rights only incidentally, as any court may. Ecclesiastical courts, for example, may decide incidental matters, and the common law courts try marriage where an action depends on it.
• The Courts of Law judge an elector's right for another end: to assert it and to repair the elector in damages. The House of Commons cannot do that, and no application was ever made to it to do so.
• If the House took up individual complaints, it would have no leisure for the ardua et urgentia negotia regni (the difficult and urgent business of the kingdom) for which the writ calls Members together. The remedy in the ordinary courts is adequate, with witnesses on oath and damages assessed by sworn countrymen.
• The Lords answered the presentation example. A presenter disturbed in his right recovers the presentation itself, but an elector cannot recover a lost vote at an election that is over. So damages are his only reparation, and the House of Commons cannot give damages.
• Parliament might be dissolved before an elector's turn came. No later Parliament has taken up injuries done at an earlier election.
• On the risk of different judgments in different courts, the same happens between courts at Westminster Hall and in the House itself. The House never gives a direct judgment on one elector's right. Where it touches such a right, it does so only pro ista vice (for that occasion), and the elector is no party to that suit.
• The courts have advantages the House lacks: juries and the power to give oaths. The House is concerned only that the person it approves sits. It cannot claim the sole power to decide the rights of those who elect it.
• The privilege of the House of Commons cannot be incompatible with the rights of the people. Every Englishman is entitled to reparation in the ordinary way, with juries and witnesses on oath. Magna Charta, c.29 says no freeman shall be deprived of his freehold, liberties or free customs except by the lawful judgment of his peers or the law of the land.
• No statute or common law gives a remedy in the House of Commons. Immemorial usage shows no man ever applied to the House for such relief.

For the defendants, White and others (as objections recorded)

The reported State of the Case does not set out arguments made by counsel for the defendants. It records their side only through the objections listed below.

• Some rights have no remedy at common law, such as a legacy, and the right to vote was said to be like that.
• Ford v. Hoskyns was relied on. An action on the case did not lie against a lord who refused to admit a nominee, because the nominee had no right without admission.
• It did not appear that Ashby's candidates were elected, or would have been elected with his vote.
• Ashby had no damage, or no injury that would support an action.
• The action would cause many actions to be brought.
• The action was novel, since no such action had ever been brought.
• The matter concerned Parliament and belonged to the law and custom of Parliament, so it was not for the Queen's Courts.
• The 7 and 8 W. III Act required the last determination of the House of Commons on election rights to be followed.
• Only the House of Commons could decide election rights. Different judgments in different courts would cause confusion and dishonour it, so the action was a breach of its privilege.
• A presentation disturbed was said to bring no damages at common law, and the elector's right was compared to a mere right of nomination.
• Onslow's Case (33 Car. II) held that no action lay for a false return of a Member. Barnadiston and Soames held that a candidate could not sue the sheriff for a double return. A fortiori (all the more), it was said, an elector, perhaps only a cobbler, could not sue.
• Allowing the action would let the Lords judge the right of Members of the House of Commons to sit and their other privileges, such as actions for words spoken in the House.
• Many inconveniences would follow if the action were allowed. The defendants gave few particular instances.

Court's Reasoning

The judgment is the Lords' State of the Case. It is a single report of the Lords' opinion, without numbered paragraphs and without separate opinions of individual Lords. This section follows its order. Steps below marked Held state what the State of the Case decided. Steps marked Noted state the answer given to an objection or an authority.

Lord Chief Justice Holt (dissenting in the Court of King's Bench)

1. Noted: Lord Chief Justice Holt held that judgment should be given for the plaintiff. The reasons he gave are not set out separately in this report.

Opinion of the House of Lords: three positions

1. Held: the Lords held that the King's Bench judgment was erroneous and that the plaintiff had a good cause of action.
2. Noted: the Lords laid down three positions. First, Ashby, as a Burgess, had a legal right to vote for Parliament Burgesses.
3. Noted: secondly, a necessary consequence and an inseparable incident of that right is that he must have a remedy to assert and maintain it.
4. Noted: thirdly, the action he brought is the proper remedy, supported by the grounds and principles of the ancient common law of England.

First position: Ashby had a legal right to vote

1. Noted: the House of Commons consists of Knights, Citizens and Burgesses. Knights of the Shires represent all the Freeholders of the counties.
2. Noted: anciently every freeholder had an equal right to vote. This right was part of his freehold and inherent in his person, like the natural profits of his soil.
3. Noted: the Statute of 8 H. VI, c.7 recited the inconvenience of small men claiming an equal right. It limited the right to freeholders with forty shillings a year. So the right of a freeholder to vote for Knights is original and fundamental.
4. Noted: Citizens and Burgesses differ in name but are the same in substance, because every city is a borough that sends Members to Parliament.
5. Noted: there are two sorts of boroughs. The older are ancient towns whose lands are held in burgage. The right to send Burgesses is annexed to their estates. Littleton's Tenures, Sects. 162-164, describes them.
6. Noted: the second sort of borough holds the right by prescription, time immemorial, or by charter within time of memory. The burgage right is a real right, belonging to houses and lands. The corporation right is a personal right, belonging to the body politic.
7. Noted: this second right is not annexed to any freehold. It is vested in the corporation and arises when a town is incorporated. The grant is of two Burgesses, to be chosen by all the freemen and inhabitants, or by a selected number under the charter.
8. Noted: the inheritance of the privilege is in the whole corporation aggregate. Its benefit, possession and exercise are in the persons the charter appoints to elect.
9. Held: where a corporation has such a privilege, its members have the benefit in their private capacity, because the corporation as such is not represented. Jones 165 (Hyward and Fulcher) supports this.
10. Why: citizens and freemen are incorporated for better government. The privilege is given for the advantage of the members whose estates the Acts of their representatives will bind. 46 Ed. III supports this. The wages of Citizens and Burgesses were always levied on members' goods and estates, not the corporation's.
11. Noted: corporations often hold interests that benefit members privately. Waller v. Hanger (Moore 832) is an example. The King granted the Mayor and Citizens of London that no prisage (a royal levy on wine) be taken from Citizens and Freemen, which benefits each freeman's own wines.
12. Noted: Waller and Spateman (1 Saund. 343) and Meller and Walker show the same thing. Though the franchise is inherited by the corporation, it is for the benefit of its members.
13. Noted: choosing representatives is a great advantage to inhabitants, because the representatives are then under an obligation to present their grievances and advance their profit.
14. Noted: two Parliaments took this view. The Act for Chester (34 and 35 H. VIII, c.13) recited that the inhabitants, excluded from Parliament, suffered manifold losses in lands, goods and bodies. It gave them Knights for the county and Citizens for the city.
15. Noted: the Act for Durham (25 Car. II, c.9) recited that the inhabitants had not had the liberty and privilege of electing Knights and Burgesses.
16. Held: the first Act says being excluded from sending Members is damage. The other says it is a liberty and privilege to send them. So the right of election is a legal right.
17. Noted: the right of electing Knights inheres in the freehold. The right of electing Burgesses belongs, in some places, to the real estates of the inhabitants. In others it is vested in the corporation for its electing members.

Second position: a legal right must have a legal remedy

1. Noted: the Lords met the objection that some rights, such as an unpaid legacy, have no common law remedy. The English Constitution distributes causes to different courts. It leaves no subject injured without an adequate remedy, if he goes to the right place.
2. Noted: a man who seeks a legacy at common law, when it is recoverable in the Ecclesiastical Court, has himself to blame. The same is true of suing for land in the Admiralty court or for equity in the Common Pleas.
3. Held: "But there is no such Notion in the Law of England as a Right without a Remedy." The Lords added that he who loses or quits his remedy loses his right.
4. Noted: for example, a man with a bond for £1,000 who releases all actions loses his right to the money (Coke's 6th Rep. 58, Bridgeman's Case).
5. Noted: likewise, a man who buys an advowson (the right to present a clergyman), at the next vacancy allows another person to present a clergyman (usurpation) and does not bring the quare impedit in time, loses all remedy and so his right.
6. Noted: it would be strange that the Commons of England have a share in legislation through elected representatives, in which every forty-shilling freeholder, citizen and burgess votes, and yet an officer could hinder them without remedy.
7. Why: on this right depend the lives, liberty and property of all the people of England. That the defendants did wrong in hindering Ashby cannot be denied. If the law gives no action, it tolerates the injury, which is absurd in any government.
8. Noted: Ford v. Hoskyns held that no action lay against a lord who refused to admit a nominated tenant. The reason there shows it does not apply here. The nominee had no right until admitted, but Ashby's right was vested in him without admittance.
9. Held: even if no action lies for not giving a right, an action must lie for defrauding and hindering a man from enjoying a right he has.
10. Noted: where a statute requires an act for another's benefit, or forbids an act to his injury, the party injured has an action, though none is given in express terms. The Case of the Marshalsea (Coke 10 Rep. 75), 12 Rep. 100 and Co. Mag. Car. 118 show it. The same reason applies where the common law gives a right or forbids a wrong.
11. Noted: here an Act of Parliament is not wanting. The Statute of Westminster 1, c.5 enacts "That Elections shall be free." An officer who hinders a voter makes the election not free and violates the statute, besides injuring the voter.
12. Noted: the statute shows how much Parliament valued freedom of choice. The common law was the same before, but the Sanction of an Act was thought necessary. The King commands, on great forfeiture, that no great man shall by force of arms, malice or menaces disturb a free election.
13. Held: the defendants did not use force or menaces, but they maliciously hindered Ashby. The Jury found fraud and malice, so they are offenders within the very words of the statute.
14. Held: it was apparent that Ashby had a right and the defendants had wronged him. By consequence of law he must have a remedy to vindicate his right and repair the wrong.

Third position: an action on the case is the proper remedy

1. Noted: an action on the case is founded on the particular case of the party injured. The law provides proper remedies in all cases of wrong.
2. Noted: examples given are trespass, assault and battery for a beating or wounding, and false imprisonment for imprisonment. Trespass lies where goods are taken or a house or lands are entered.
3. Held: where a man has a franchise and is hindered in enjoying it, an action on the case is the proper remedy. Ashby had a privilege and franchise, and the defendants disturbed him in its most essential part, his right of voting.
4. Noted: an action on the case lies against any officer or minister of justice entrusted with executing process who does an injury. A sheriff who will not execute a writ by arresting the defendant or taking his goods is an example.
5. Noted: the defendants' precept was founded on the King's writ. They were commanded to cause two Burgesses to be elected, to give notice, and to admit every one who had a vote. Refusing a man with a right to vote was contrary to the duty of their office.
6. Held: on the objection that it did not appear that Ashby's candidates were elected or would have been, this is not material. His right was to give his suffrage and be a party to the election. If excluded he is wronged, even if his candidates were elected.
7. Held: the right of action accrues on the refusal of the vote. It is not made better or worse by the return, which is a matter ex post facto (after the event).
8. Held: on the objection that Ashby had no damage, the law never imagines any such thing as injuria sine damno. Every injury imports damage in its nature.
9. Noted: as an illustration, a man who picks a lock and enters a house without consent may cause no pecuniary damage. The owner still recovers damages for the invasion of possession and property.
10. Noted: Turner and Starling (24 Car. II, in Common Bench and afterwards in King's Bench) is one such case. Turner stood to be a Bridgemaster of London Bridge, to be elected by a Common Hall. He demanded the poll, and the defendant, then Lord Mayor, refused it.
11. Held: the action was maintainable for refusing the poll, because every candidate has a right to it. Even if the poll might have gone against Turner, denial of that right was a good ground of action.
12. Noted: 29 E. III. 18 and Hunt and Dowman (2 Car. 478; 2 Rolls 21) were decided on the same reason. No good reason makes this case differ from other cases.

Answers to objections: many actions, novelty, and the danger to officers

1. Held: the objection that the action would cause many actions is answered in this way. If many wrongs have been done, there is more reason to support the action to punish them and to prevent more. If offences multiply, remedies should be advanced.
2. Noted: if one man is beaten and imprisoned, that is no objection to his action because others treated the same way may sue. Borough officers should be liable to make satisfaction, and their purses are the means to hinder growing corruption.
3. Noted: the rule against multiplying actions applies where one act injures many persons, so none may sue alone. Williams's Case (Co. 5 Rep. 72) and Fincux v. Hovenden (3 Cr. 664) are examples, on not saying divine service in a chapel and stopping a lane or common way.
4. Held: refusal of each vote is a distinct act. The party whose vote was denied alone may sue. If an officer denies a hundred voters, those are a hundred separate wrongs and a hundred actions, like a man who flings stones and hits a hundred men.
5. Why: it is a strong argument for the action, because an officer free to refuse voters could easily make a majority on his side, and elections would be meaningless. He would return the man chosen by a majority of his own making.
6. Noted: this would encourage officers to be partial and corrupt. Persons so returned would sit in the House of Commons, make laws and impose taxes until the right of election was determined. Later correction by the House cannot compensate the mischief done in the meantime.
7. Noted: the rule against multiplying actions applies only to acts where another remedy is available. Where an action is the only remedy, the wrongdoer must answer many actions. Ploughing up the ground on which a hundred persons have common is an example. Stopping a common watering-place is another.
8. Held: Ashby has no other remedy. No indictment lies, because it is a personal wrong to him. The wrong to the public arises only as an evil example.
9. Held: there is no danger to an honest officer who means to do his duty. Where the right of voting is really doubtful, and he seeks information, his mistake arises from the difficulty of the case. No jury will find him guilty in that case, because fraud and malice entitle the party to the action.
10. Held: the defendants knew Ashby was a Burgess and fraudulently and maliciously hindered his voting. Justice requires that such an obstinate and unjust officer should not escape.
11. Held: the officer is only ministerial, not a judge, and not acting in a judicial capacity. His task is to execute the precept, assemble the electors, receive their votes, count them, declare the election and return the persons elected.
12. Noted: he faces no difficulty other than what is necessary in all cases. A sheriff executing against goods must at his peril take notice what goods a man has.
13. Held: novelty is no objection. Few occasions for such suits have probably arisen. It is hoped few officers dared maliciously refuse an undisputed vote.
14. Noted: an injured voter might have been discouraged by the prospect of small damages, and a cautious officer would refuse only the votes of men too poor to vindicate their rights. Ashby had a true English spirit and would not sit down under a wrong to one of the most valuable privileges of an Englishman.
15. Held: the ground of law is plain, certain and universal. Where any man is injured in his right by being hindered in or deprived of enjoying it, the law gives him an action to repair himself.
16. Noted: Hunt and Dowman (16 Jac. I, 1618) was an action by a landlord against a tenant for hindering him from searching the house to see whether it was in repair. It was not brought before that time. Turner and Starling was not brought until 23 Car. II.
17. Held: the law of England is not confined to particular precedents but consists in their reason, which is more extensive than the circumstances of any one case. Ratio Legis est Anima Legis, and Ubi eadem Ratio, ibi idem Jus, are known maxims.
18. Noted: an action against a ship's master for a robbery of a ship lying in the Thames was upheld on the same reason as against a common carrier. Such an action was unknown until 23 Car. II (Moss and Slue, 1 Cr. 15; Jones 93).
19. Noted: in Smith and Cranshaw (Palmer 313) an action on the case lay for maliciously and without probable cause indicting a man of high treason. It was the first such action and was still upheld, on the same reason as for a malicious indictment for felony.
20. Noted: in Heming and Beal (2 Levinz 250) an action on the case lay against a mayor for refusing the plaintiff his vote at the choice of a new mayor. No scruple was raised that the action lay, though it was the first precedent.
21. Held: it is granted that a freeman who is denied his vote for a mayor may sue. There can be no difference between that case and this, unless the right to vote for a mayor is of higher estimation in law than the right to choose Members of the High Court of Parliament.
22. Noted: the action is also sanctioned by the Statute of Westminster 2, c.24. It provides that where a writ exists in one case and none in a like case falling under like right and wanting like remedy, the Chancery clerks shall agree in making a writ. This is so the King's Court does not fail in ministering justice.

Answer to the objection that this is a matter for Parliament

1. Noted: the objection most insisted on was that the matter belonged to Parliament and to the law and custom of Parliament, and so was not triable in the Queen's Courts. The Lords gave two answers. The case is proper for the Queen's Courts, and no other provision exists for the plaintiff's injury.
2. Held: the case is proper for the Queen's Courts. The right of choosing Knights of the Shire is founded on the elector's freehold. Matters of freehold are decided originally in the Queen's Courts by the common law, by a jury on oath and witnesses on oath. So are all benefits and rights depending on the freehold.
3. Noted: if a sheriff refuses a freeholder's voice, nothing hinders the Queen's Court from trying by jury whether the plaintiff was a freeholder.
4. Noted: the right of choosing Citizens and Burgesses depends on prescription, custom or letters patent. Customs and prescriptions are triable by the country, meaning a jury of twelve men of the county where the custom is alleged. This is known law without exception.
5. Noted: letters patent, if pleaded specially, must be judged by the Court. If a party thinks the Court has judged wrongly, he has a writ of error until a final judgment.
6. Held: every right an elector can have is proper for the Queen's Courts. Boroughs elect in various ways, but all depend on charters or customs, so they are no harder to decide than other franchises or liberties.
7. Noted: the Act of 7 and 8 W. III makes the last determination of the House of Commons the rule. This means only that the returning officer must return the person chosen by a majority of electors qualified by that determination. If he does so he incurs no danger, but the House itself is not bound by the rule.
8. Held: if an officer knowingly denies a man a vote that the last determination entitles him to, nothing stops that man suing. The Act does not, because the Queen's Courts are by law the first and original expounders of the statutes of the realm.
9. Held: secondly, no other court or jurisdiction is appointed by the law of England to determine the right and repair the injury, except the courts of Westminster. Whoever challenges the jurisdiction of one court must entitle some other court to have jurisdiction, which is impossible here.
10. Noted: the objection said the right of election of Members is for the House of Commons, which is jealous of it. It said the Commons cannot judge the right of election without judging the electors' rights. It said that suits elsewhere would produce different judgments, cause confusion and dishonour the House, so an action would breach its privilege.
11. Noted: the Lords accepted that the House of Commons exercises jurisdiction over the right of election of its own members. Long usage, and the sanction of the 7 W. III Act, prevent that being questioned, though it was once exercised elsewhere.
12. Held: the merits of the election of a Member are proper for the House because only it can give the proper remedy. It can exclude the usurper and give the seat to the person who has the right.
13. Held: there is a great difference between the right of electors and the right of the elected. The one is a temporary right to a place in Parliament pro hac vice (for this occasion). The other is a freehold or a franchise.
14. Why: who has a right to sit in the House may be decided there. But who has a right to choose is established before there is a Parliament. A man has his freehold by the common law, and the law annexes his right of voting to it. The same law that gives the right must defend it.
15. Noted: any other power that pretends to take away his right of voting might as well pretend to take away the freehold on which it depends.
16. Noted: to say Ashby may apply to the House of Commons is not enough unless proved. No single elector of any county or borough ever complained to the House that he was denied a vote and asked it to decide his particular right.
17. Noted: sometimes electors have complained that persons were returned who were not duly elected. That brings the merits of the election in question, which the House can decide. As incident to that, it may try the right of electors.
18. Noted: all courts have such incidental power. Ecclesiastical courts, proceeding by the Civil Law, may determine things foreign to their jurisdiction if a suit is originally proper for them. Examples are letters patent or conveyances of land, though these belong to the common law courts.
19. Noted: matrimony belongs to the Ecclesiastical Court. If a question arises between supposed married parties in their lifetime, or on dower or bastardy, it is decided there. But if a man and woman sue as husband and wife and the defendant pleads in abatement that they were not married, a jury tries it where the action is brought.
20. Noted: if a title to land depends on a marriage, a jury may determine the marriage in an action to try the title.
21. Held: this shows that the House of Commons may decide who are electors only incidentally, so far as necessary to try the right of election. It does not follow that, when the right of election is not in question, it can try the right of an elector.
22. Noted: when the House examines a candidate's right, it decides who may join in making laws and public services. If it judges electors, it does so only for that purpose.
23. Held: the Courts of Law judge an elector's right for another end. They assert a legal right and repair in damages an elector wrongly hindered from exercising it. The House of Commons cannot do this, and no application was ever made to it to do so.
24. Noted: deciding election cases takes a great part of a session. If the House also took up particular complaints from electors, it would have no leisure for the ardua et urgentia negotia regni, the safety and defence of the kingdom, for which the writ calls it.
25. Held: the law has provided an adequate remedy in ordinary methods of justice, where damages may be recovered. Ashby knew he had a legal right to vote and, when deprived, resorted to the law. Most electors would think it in their interest to resort to Westminster Hall, where witnesses swear and sworn countrymen assess damages.
26. Noted: where a man is injured and cannot recover the thing itself, the law always gives damages instead.
27. Noted: it was said that a party disturbed in a right of presentation could not recover damages at common law, and that was compared to the elector's right, said to be only nomination. The Lords answered that there the law gives the presentation back by judgment.
28. Held: Ashby cannot possibly recover his lost vote, because the election is over and cannot be had again. He cannot have reparation except in damages, and the House of Commons cannot give them.
29. Noted: if Ashby and other injured electors had to go to the House for satisfaction, Parliament might be dissolved before his turn. The law would then be notoriously defective. Also, no later Parliament ever took up an injury done at an earlier Parliament's election.
30. Noted: even if the next House tried it, it would face endless work, as the next election would raise as many new questions as the earlier one.
31. Held: on the objection of confusion from different judgments in different courts, the same happens daily in Westminster Hall. Courts there differ on the same question without harm to the public. The House of Commons also decides the right of election in the same borough differently in different Parliaments and does not think itself dishonoured.
32. Held: this contrariety of judgment can never appear. The House never gives a direct judgment on an individual elector's right. It votes on a general question of the right of competitors, or on where the right of election in a borough lies. These are only means to decide the right of election.
33. Noted: if the House judges a particular elector's right, it does so only pro ista vice (for that occasion) and only so far as the case before it requires. The elector is no party to that suit, and his freehold is not finally concluded by it. It cannot be right reason for a man's right to be conclusively determined in a cause between other parties.
34. Held: where is the damage to the public if the House of Commons and the Courts of Westminster differ? Courts of Law have advantages the House lacks: juries and the power of administering oaths. The House should not be displeased if electors go to such courts.
35. Noted: the House is concerned only that the person it approves sits. As the Elected, it would be strange if that entitled the House to claim sole power to decide the rights of its electors, which would be to choose its own electors.

Answer based on Onslow's Case and Barnadiston and Soames

1. Noted: it was urged that Onslow's Case (33 Car. II) held that no action lay at common law for a false return of a Member. In Barnadiston and Soames the candidate could not sue the sheriff for a double return. A fortiori, an elector, perhaps only a cobbler, should not be allowed to sue.
2. Held: the law of England has no respect to persons. An elector who is a cobbler is a freeman of England, with the great privilege of being represented in Parliament.
3. Noted: Barnadiston's Case was decided with great variety of opinion among the Judges. It alarmed the House of Commons so much that a committee inquired into it as a grievance in the session of 1679.
4. Noted: the great design of the Act of the Seventh Year of the late King was to cure the inconveniences from that judgment and from Onslow's Case, which only followed Barnadiston's. But there is no resemblance between those cases and the case of an elector.
5. Noted: in Barnadiston's Case, the reason for the judgment was that a double return was no return the law took notice of, but was only allowed by the custom of Parliament. An officer who doubts and makes a double return submits to the judgment of the House of Commons, which has jurisdiction. It would be hard to subject him to an action for doing so.
6. Noted: for a false return, other reasons might be assigned, which do not apply to an elector. A false return injures every elector, though chiefly the candidate, so it may fall within the reason of Williams's Case, and no elector may sue singly.
7. Held: another obvious reason is that the candidate has a proper remedy to recover his place. The right of election is triable in the House, where he recovers his seat, which the law principally regards. There is no reason he should have another remedy elsewhere.
8. Held: it is absurd to say the elector's right of choosing is founded on the law and custom of Parliament. It is an original right, part of the Constitution as much as Parliament is. The persons elected derive their authority from those who have the original right to choose them.
9. Noted: this does not touch the jurisdiction of the House of Commons to try the right of election of its own members. Those who claim to sit must make out their right to the House. But there is no ground to infer that the House can try the right of other persons who are not its Members and claim no place among them.

Answer based on the Lords judging the Commons

1. Noted: it was said that allowing the action would let the Lords judge the right of Members of the House of Commons to sit, and by parity of reason their other privileges, such as actions for words spoken in the House. This would have ill consequences.
2. Held: first, the objection has little application here, because the action has no relation to the sitting of the Member for whom the elector voted.
3. Held: secondly, under the English Constitution the ultimate resort in point of judicature is lodged with the Lords. Whatever the case concerns, when it comes before them by writ of error, they are bound to give judgment one way or the other.
4. Noted: as to words spoken in the House of Commons, the information brought in the King's Bench in 5 Car. I against Sir John Elliot, Denzil Holles and Benjamin Valentine was the greatest attempt on liberty of speech. They pleaded to the jurisdiction, as the acts were done in Parliament. The plea was overruled, judgment was given against them and great fines were imposed (Cro. Car. 181).
5. Noted: in the Parliament of 1640 the proceedings were considered with great warmth. On 8 July 1641 the House of Commons resolved that the information was a breach of privilege and that overruling the plea and the judgment were against the law and privilege of Parliament.
6. Noted: after the Restoration the House did not think those votes a sufficient security. In 1667, the best expedient was to resolve that the 5 Car. I judgment was illegal and against the freedom and privilege of Parliament. The House presented the resolution to the Lords at a conference on 10 December 1667 and asked their concurrence.
7. Noted: the next day the Lords concurred. As the Commons desired, the Lords ordered Lord Holles to bring a writ of error in Parliament. On 15 April 1668 the cause was heard in Parliament and the King's Bench judgment was reversed, to the great satisfaction of the House of Commons.
8. Held: so little did the House of Commons entertain jealousy that it resorted to the Lords' judicature on so weighty an occasion.

Answer on inconvenience, and Magna Charta

1. Noted: the objection said many inconveniences would follow the action, but it gave few particular instances.
2. Held: nothing is plainer than that great inconveniences will be prevented by Ashby succeeding. The subject's right and property will be secured against the partiality and corruption of officers trusted to receive and allow votes. This meets false returns at the first approach. Having just returns is all the House of Commons should desire.
3. Noted: if the action did not lie, occasions of complaint would multiply. Returning officers would become masters of elections, admitting and rejecting electors as they pleased, with impunity.
4. Noted: if electors could only seek a remedy before the House of Commons, it would be worse than the disease. Most cases would never be determined for want of time. Those heard would get no damages. Also, the parties to the injury, those who sit on a false return, would be parties to the judgment.
5. Held: to deny this action is to deny the benefit of the law in a matter of the most tender concern to an Englishman. It is very strange to call it a breach of privilege of the House of Commons for an elector to seek a remedy at law when wrongfully denied a vote.
6. Held: that can never be a privilege of Parliament which is incompatible with the rights of the people. Every Englishman is entitled to reparation in the ordinary methods of justice, where juries and witnesses are on oath.
7. Noted: Magna Charta, c.29 says no freeman shall be deprived of his freehold, liberties or free customs unless by the lawful judgment of his peers or by the law of the land. Judgment of peers of a commoner means a jury of lawful men upon their oaths.
8. Held: no man can say that per legem terrae (by the law of the land) he can have a remedy for satisfaction, and to assert his right, in the House of Commons. No statute gives it. The common law does not either, since it rests on immemorial usage, and no precedent shows that any man applied to the House for relief on such an occasion.

Authorities

• Statute of 8 Hen. VI, c.7 — cited by the Lords to show the freeholder's right to vote is original and fundamental; limited to forty-shilling freeholders.
• Littleton's Tenures, Sects. 162-164 — describes tenure in burgage; cited for the boroughs whose right to send Burgesses is annexed to their estates.
• Jones 165 (Hyward and Fulcher) and 46 Ed. III — cited for the members of a corporation enjoying its privileges privately, and for wages levied on members' goods.
• Waller v. Hanger (Moore 832); Waller and Spateman (1 Saund. 343); Meller and Walker — cited for corporate franchises that benefit members in their private capacities.
• 34 and 35 Hen. VIII, c.13 (Chester) and 25 Car. II, c.9 (Durham) — two Acts treating a right of election as a legal right and its loss as damage.
• Bridgeman's Case (Coke's 6th Rep. 58) — cited for the rule that a man who quits his remedy loses his right; quare impedit for an advowson.
• Ford v. Hoskyns (2 Cro. 388; Moore 842) — relied on by the objectors; distinguished, because the nominee had no right until admitted.
• Case of the Marshalsea (Coke 10 Rep. 75); Coke 12 Rep. 100; Co. Mag. Car. 118 — cited for the rule that a party injured by breach of a statute duty has an action.
• Statute of Westminster 1, c.5 — elections shall be free; relied on to show the defendants' act broke the statute.
• Turner v. Starling (the report gives both 24 Car. II and 23 Car. II) — cited for an action against the Lord Mayor for refusing a poll to a candidate for Bridgemaster of London Bridge.
• 29 E. III. 18; Hunt and Dowman (2 Car. 478; 2 Rolls 21) — cited as decided on the same reason.
• Williams's Case (Co. 5 Rep. 72); Fincux v. Hovenden (3 Cr. 664) — cited for the rule against multiplying actions where one act injures many; distinguished.
• Moss v. Slue (1 Cr. 15; Jones 93); Smith v. Cranshaw (Palmer 313); Heming v. Beal (2 Levinz 250) — cited as new actions still upheld.
• Statute of Westminster 2, c.24 — cited for making a writ in a like case falling under like right and wanting like remedy.
• Act of 7 and 8 W. III — cited by objectors as binding officers to the last determination of the House of Commons; explained as governing only the return.
• Onslow's Case (33 Car. II) and Barnadiston v. Soames — relied on by the objectors; distinguished.
• Case of Sir John Elliot, Denzil Holles and Benjamin Valentine (Cro. Car. 181; 5 Car. I, reversed 15 April 1668) — cited to show the Commons themselves resorted to the Lords' judicature.
• Magna Charta, c.29 — cited for the rule that no freeman may lose his liberties except by lawful judgment of his peers or the law of the land.
• Also cited in footnotes: none; the report has no footnotes.

Judgement

1. The Lords held that the King's Bench judgment was erroneous. They held that Ashby has a good cause of action and ought to have judgment.
2. On 14 January 1703 the House of Lords reversed the King's Bench judgment. It gave judgment that the plaintiff should recover.
3. The Lords passed four Resolutions after reading and approving the State of the Case.
4. Resolution 1: by the known laws of the kingdom, every freeholder, or other person with a right to vote at an election of Members of Parliament, who is wilfully denied or hindered by the officer who ought to receive the vote, "may maintain an Action in the Queen's Courts against such Officer, to assert his Right, and recover Damages for the Injury".
5. Resolution 2: to assert that such a person is without remedy in the ordinary course of law destroys the subject's property. It is against the freedom of elections and tends to encourage corruption and partiality in returning officers. It subjects freeholders and electors to their arbitrary will.
6. Resolution 3: to declare Mathew Ashby guilty of a breach of privilege of the House of Commons is an unprecedented attempt on the judicature of Parliament. It would subject the law of England to the votes of the House of Commons. He had sued the Aylesbury constables in the proper methods of law and had obtained a judgment in Parliament.
7. Resolution 4: deterring electors from suing, and terrifying attorneys, solicitors, counsellors and serjeants at law from acting in such cases by voting it a breach of privilege of the House of Commons, is a manifest assumption of power to control the law. It hinders the course of justice and subjects the property of Englishmen to the arbitrary votes of the House of Commons.
8. Order 1: the report of the Lords Committees on the State of the Case on the writ of error (Mathew Ashby, plaintiff; William White and others, defendants), and the Resolutions of the day, shall be printed and published. The Lords Committees who drew it, or any three of them, shall give directions on this.
9. Order 2: the Lord Keeper of the Great Seal of England shall send the State of the Case and the Resolutions to all Sheriffs in England and Wales. The Sheriffs shall each communicate one copy to every City and Borough in their precincts, and each Sheriff shall have as many copies as needed for each City and Borough to have one.
10. Amount of recovery: not stated separately in the Lords' judgment. The jury at trial had given £5 and costs.

Legal Principle / Ratio

A voter with a legal right to vote who is wilfully denied his vote by the officer bound to receive it may sue that officer in the ordinary courts for damages. It is no answer that the voter's candidate was elected. A legal right must have a legal remedy.

The Lords' first Resolution states the holding: such a person "may maintain an Action in the Queen's Courts against such Officer, to assert his Right, and recover Damages for the Injury".

• Ratio: a wilful denial of a legal right to vote is actionable in the common law courts. Damage is implied from the wrong.
• Ratio: the right is an original right of the elector, independent of the House of Commons' jurisdiction over the election of its own members.
• Obiter: the judgment does not label any passage obiter. The answers on Elliot's case, Barnadiston's Case and the Lords' ultimate judicature respond to objections.

Critical Analysis

Analysis based on the judgment text.

• The report gives no separate opinions of individual Lords and no bench list, so the votes and the reasons of each cannot be seen from it.
• The reasoning relies on the officer's fraud and malice. The report says a real mistake in a doubtful case gives no action. It leaves open how far liability reaches for honest error.
• The report says the House of Commons decides the right of election of its own Members. It does not fully explain the boundary when the House and the courts decide the same right differently.
• Damages are treated as implied from the wrong. The report gives the jury's £5 verdict but does not discuss how damages are to be measured.

Significance

• The Lords held that a legal right must have a remedy, and rejected the argument that no damage means no action.
• The report states that every injury imports damage, giving the idea behind injuria sine damno (a legal wrong without proof of loss).
• The report states there is "no such Notion in the Law of England as a Right without a Remedy", the idea usually labelled ubi jus ibi remedium (where there is a right, there is a remedy).
• It confirmed that the ordinary courts may try a voter's claim against an election officer, and that the House of Commons' privilege does not remove it.
• The Lords' orders required the report to be printed and sent to every Sheriff.

Exam-Important Points

• Rule: a qualified voter wilfully denied his vote by the officer bound to receive it may sue for damages. Trap: it does not matter whether his candidate won.
• Maxims: ubi jus ibi remedium (the usual label for the rule, not the report's own words); injuria sine damno; Ratio Legis est Anima Legis; Ubi eadem Ratio, ibi idem Jus.
• Procedure: jury verdict of £5 with costs; the King's Bench arrested judgment (Holt, C.J. dissenting); the Lords reversed on writ of error on 14 January 1703.
• Statutes: Statute of Westminster 1, c.5 (elections shall be free); Statute of Westminster 2, c.24 (writs in like cases); Magna Charta, c.29.
• Malice: the honest doubtful officer is not liable. Fraud and malice entitle the party to the action.
• Distinctions: voter versus candidate. A candidate's remedy is in the House of Commons, so Onslow's and Barnadiston's cases do not apply to an elector.
• Citation trap: the citation is not in the judgment text. The report has no paragraph numbers.

Prepared from the full text of the judgment. The report has no numbered paragraphs.