Understanding the importance of Ashby v White House of Lords Appeal 1704

The chronology of events:

• 1703 (Michaelmas Term, 2 Anne): Action upon the case brought by Ashby against the constables of Aylesbury. The plaintiff declared that he was duly qualified to vote for two burgesses of Parliament and offered his vote, but the defendants maliciously obstructed him and refused to receive it. A verdict was found for the plaintiff.
  Not guilty plea;  Cause went down to Trial; and a Verdict was given for the Plaintiff (Ashby) , and Five Pounds Damages, and also Costs.

•  Date not specified (after verdict): A motion was made in the Court of King’s Bench to arrest judgment (appeal), arguing that the action did not lie.
• Date not specified (after argument in King’s Bench): Chief Justice Holt was of the opinion that judgment should be for the plaintiff, but Mr. Justice Powel, Mr. Justice Powys, and Mr. Justice Gold held a different opinion, resulting in majority judgment being entered for the defendant (White).
  Ashby v White [1703] 92 ER 126
• Date not specified (after initial judgment): Ashby brought a writ of error (appeal) in Parliament (House of Lords).
• 1704 (January 14): The House of Lords reversed the judgment of the King’s Bench and gave judgment that the plaintiff (Ashby) should recover.
  House of Lords Appeal [1704 of Ashby v White [1703] 92 ER 126

• 1704 (March 27): The House of Lords formally reported and agreed to the “State of the Case” for Ashby v. White & al. in Error. This report outlined the reasoning for their reversal, laying down three positions:
  1. Legal Right to Vote: The plaintiff, as a Burgess of the Borough, had a legal right to give his vote for the election of Parliament Burgesses. This right was described as an original and fundamental right, inherent in a freeholder by reason of his freehold. For burgesses, the right could be by reason of burgage tenure (a real right) or vested in the corporation (a personal right for the benefit of individual members).
  2. Right Entails a Remedy: As a necessary consequence and an inseparable incident to that right, the plaintiff must have a remedy to assert and maintain it. This emphasized the principle that “there is no such Notion in the Law of England as a Right without a Remedy”. If a statute requires an act for the benefit of another, or prohibits an act to his injury, the injured party shall have an action, even if not explicitly stated by the statute. The Statute of Westminster 1, Chapter 5, which enacts that “Elections shall be free” , was cited, stating that hindering a rightful voter is a manifest violation of that statute.
  3. Proper Remedy: The action upon the case pursued by the plaintiff was the proper remedy, supported by the grounds and principles of the ancient Common Law of England. It was argued that when a man has a franchise and is hindered in its enjoyment, an action upon the case is the proper remedy. The officer in this case was deemed ministerial, not judicial, and therefore accountable for malicious hindrance. The novelty of the action was dismissed, as the law is not confined to particular precedents but to the reason that governs them. The House of Lords also asserted that the Courts are by Law the “First and original Expounders of the Statutes of this Realm”.
• 1704 (March 27): The House of Lords passed several resolutions emphasizing these principles of law:
  • It was resolved that, by the known Laws of this Kingdom, every Freeholder, or other Person having a Right to give his Vote at the Election of Members to serve in Parliament, and being wilfully denied or hindered so to do, by the Officer who ought to receive the same, may maintain an Action in the Courts against such Officer, to assert his Right, and recover Damages for the Injury.
  • It was resolved that the asserting that a person, having right to give his vote at an election, and being hindered so to do by the officer who ought to take the same, is without remedy for such wrong by the ordinary course of law, is destructive of the property of the subject, against the freedom of elections, and manifestly tends to encourage corruption and partiality in officers who are to make returns to Parliament, and to subject the Freeholders and other Electors to their arbitrary will and pleasure.
  • It was resolved that declaring Mathew Ashby guilty of a Breach of Privilege of the House of Commons, for prosecuting an Action against the Constables of Aylesbury, for not receiving his Vote at an Election, after he had, in the known and proper Methods of Law, obtained a Judgement in Parliament for Recovery of his Damages, is an unprecedented Attempt upon the Judicature of Parliament, and is, in Effect, to subject the Law of England to the Votes of the House of Commons.
  • It was resolved that the deterring Electors from prosecuting Actions in the ordinary Course of Law, where they are deprived of their Right of voting, and terrifying Attornies, Solicitors, Counsellors, and Serjeants at Law, from soliciting, prosecuting, and pleading, in such Cases, by voting their so doing to be a Breach of Privilege of the House of Commons, is a manifest assuming a Power to control the Law, to hinder the Course of Justice, and subject the Property of Englishmen to the arbitrary Votes of the House of Commons.
  • The Lords explicitly stated that “That certainly can never be esteemed a Privilege of Parliament, that is incompatible with the Rights of the People”. They further clarified that neither statute law nor common law provides a remedy in the House of Commons for such an injury, and that a man’s right, like his freehold or liberties, cannot be “conclusively determined in a Cause between other Parties”. The resolution also highlights Magna Carta, Chapter 29, which states: “No Freeman shall be disseised of his Freehold, or Liberties, or free Customs, unless by the lawful Judgement of his Peers, or by the Law of the Land”. This emphasizes that the common law and property rights cannot be altered by the votes of the Commons.
• 1704 (March 27): The House of Lords ordered the report and resolutions to be forthwith printed and published.
• 1704 (March 27): The Lord Keeper of the Great Seal of England was ordered to send the State of the Case and resolutions to all Sheriffs in England and Wales, with instructions to communicate them to each city and borough within their precincts.

Principles of Law from the King’s Bench Judgment (as inferred from Holt C.J.’s dissent and the reversal):

• Parliamentary Matter Exclusivity: A matter concerning the right to vote in a parliamentary election might be solely determinable by Parliament, meaning the King’s Courts (Common Law Courts) do not have jurisdiction until Parliament has decided the right to vote.
• No Action for False Return if Parliament Can Determine: For a false return in an election, the party might have no action where there may be a determination in the House of Commons, due to the inconvenience of contrary resolutions.

Principles of Law from the House of Lords Judgment (concurring with Holt C.J. and establishing the precedent):

• Legal Right to Vote: A burgess of a borough has an undoubted legal right to give his vote for choosing a burgess of Parliament for that borough. This right is a part of his freehold for knights of the shire, or a real right annexed to burgage tenure, or a personal inheritance vested in the corporation but exercised by particular members for cities and corporations.
• Right Entails a Remedy (Ubi Jus Ibi Remedium): Where there is a right, there must be a remedy for its obstruction or denial. This means that the law will not imagine “Injuria sine Damno” (injury without damage), as every injury imports damage.
• Common Law Provides Remedy for Statutory Rights: If a statute gives a right, the common law will give a remedy to maintain it.
• Judicial Cognizance of Parliamentary Matters (When Incidental): Even if a matter relates to Parliament, if it is an injury “precedaneous to the Parliament” or if “Parliamentary matters come before us, as incident to a cause of action concerning the property of the subject,” judges are bound by their oaths to determine it.
• Courts are the First Expounders of Statutes: The Queen’s Courts are by law the first and original expounders of the statutes of the Realm.
• Judicial Determination of Rights based on Freehold, Custom, or Charter: The right of choosing members of Parliament is founded upon the elector’s freehold, prescription, custom, or Letters Patents, all of which are primarily and originally cognizable by the Queen’s Courts.
• Distinction between Right of Electors and Elected: There is a significant difference between the right of the electors and the right of the elected. The right to choose is a matter originally established, even before there is a Parliament, and is a freehold or a franchise, which the common law must defend.
• Parliamentary Privileges Cannot Contradict Rights of the People: A privilege of Parliament cannot be esteemed as such if it is incompatible with the rights of the people.
• Protection of Property and Liberties by Law of the Land: Every Englishman is entitled to reparation for injuries done to his rights and franchises through the ordinary methods of justice. Magna Carta, Chapter 29, explicitly states that “No Freeman shall be disseised of his Freehold, or Liberties, or free Customs, unless by the lawful Judgement of his Peers, or by the Law of the Land”. This implies that the common law and property rights cannot be altered by the votes of the House of Commons.
• Damages as Remedy: Where the plaintiff cannot recover the thing lost (e.g., a vote in an election that is over), the law will always give him damages in lieu thereof. The House of Commons cannot give damages to the plaintiff.
• Accountability of Ministerial Officers: Officers, such as constables and sheriffs, who are entrusted with the execution of the law in elections, are ministerial and not judicial. If they refuse a rightful vote, they act contrary to their duty and are liable to an action.
• Fraud and Malice as Basis for Action: It is the fraud and malice in the officer’s actions that entitle the injured party to an action; an honest mistake from difficulty of the case would not lead to a finding of guilt by a jury