Ashby V White
Ashby V White
A man who has a right to vote at an election for Members of Parliament may maintain an action
After a verdict for the plaintiff on not guilty pleaded, it was moved in arrest of judgment by
Serjeant Whitacre, that this action was not maintainable. And for the difficulty it was ordered to
stand in the paper, and was argued Trin. 1 Q. Anne by Mr. Weld and Mr. Mountague for the
defendants, and this term judgment was given against the plaintiff, by the opinion of Powell,
Powys, and Gould, Justices, Holt Chief Justice being of opinion for the plaintiff. *130
Gould Justice. I am of opinion, that judgment ought to be given in this case for the defendants,
and I cannot by any means be reconciled to give my judgment for the plaintiff for there are no
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foot-steps to warrant such an opinion, but only a single case. I am of opinion, that this action is
not maintainable for these four reasons: first, because the defendants are judges of the thing,
and act herein as judges: secondly, because it is a Parliamentary matter, with which we have
nothing to do: thirdly, the plaintiff’s privilege of voting is not a matter of property or profit, so
that
the hindrance of it is merely damnum sine injuria: fourthly, it relates to the publick, and is a
popular offence.
As to the first, the King’s writ constitutes the defendant a judge in this case, and gives him power
to allow or disallow the plaintiff’s vote. For this reason it is, that no action lies against a sheriff
for
taking insufficient bail, because he is the judge of their sufficiency. So is the case of Medcalf v.
Hodgeson , Hutt. 120, and their sufficiency is not traversable, 1 Lev. 86, Bentley v. Hore . Upon
the same reason the resolution of the Court is founded in the case of Hammond v. Howell , 2
Mod. 218, that no 1 action lies against a man for what he does as a judge. 9 Hen. 6, 60, p. 9.
2. This is a Parliamentary matter, and the Parliament is to judge whether the plaintiff had a right
of electing or not; for it may be a dispute, whether the right of election be in a select number, or
in
the populace; and this is proper for [942] the Parliament to determine, and not for us; and if we
should take upon us to determine, that he has a right to vote, and the Parliament be of opinion
that he has none, an inconvenience would follow from contrary judgments. So in 2 Ventr. 37,
Onslow’s case , it is adjudged, that no 2 action lies for a double return of members to serve in
Parliament. The resolution of the King’s Bench in the case of Barnardiston v. Soame , 2 Lev.
114,
was given on this particular reason, that there had been a determination before in Parliament in
favour of the plaintiff. And Hale said, we pursue the judgment of the Parliament; but the plaintiff
would have been too early, if he had come before; and yet that judgment was reversed.
3. It is not any matter of profit, either in praesenti or in futuro. To raise an action upon the case,
both damage and injury must concur, as is the case of 19 Hen. 6, 44, cited Hob. 267. If a man
forge a bond in another’s name, no action upon the case lies, till the bond be put in suit against
the party: so here, it may be this refusal of the plaintiff’s vote may be no injury to him, according
as the Parliament shall decide the matter; for they may adjudge, that he had no right to vote,
whereby it will appear, the plaintiff was mistaken in his opinion as to his right of election, and
consequently has sustained no injury by the defendant’s denying to take his vote.
4. It is a matter which relates to the public, and is a kind of popular offence, and therefore no
action is given to the party; for by the same reason one man may bring an action, a hundred
may, and so actions infinite for one default; which the law will not allow, as is agreed in
Williams’s
case , 5 Co. 73 a. and 104 b. Boulton’s case . Perhaps in this case after the Parliament have
adjudged the plaintiff has a right of voting, an information may lie against the sheriff for his
refusal
to receive it. So the case of Ford v. Hoskins , 2 Cro. 368. 2 Brownl. 194. Such an action as this
was never brought before, and therefore shall be taken not to lie, though that be not a conclusive
reason. As to the case of Sterling v. Turner , 2 Lev. 50. 2 Ventr. 50, where an action was brought
by the plaintiff, who was candidate for the place of Bridge-master of London, for refusing him a
poll, and adjudged maintainable, there is a loss of a profitable place. So the case of Herring v.
Finch , 2 Lev. 250, where the plaintiff brought an action on the case against the defendant, for
that the plaintiff being a freeman, who had a voice in the election of mayor, the defendant being
the present mayor refused to admit his voice; in that case the defendant is guilty of a breach of
his faith: and in both these cases the plaintiff has no other remedy, either in [943] Parliament or
any where else, as the plaintiff in our case has. So that I am of opinion, that judgment ought to be
given for the defendant upon the merits. But upon this declaration the plaintiff cannot maintain
any action, for the plaintiff does not allege in his count, that the two burgesses elected were
returned, and if they were never returned, there is no damage to the plaintiff. See 2 Bulstr. 265.
Powys Justice. I am of the same opinion, that no action lies against the defendant, 1. Because
the defendant as bailiff is quasi a judge, and has a distinguishing power *131 either to receive or
refuse the votes of such as come to vote, and does preside in this affair at the time of election:
though his determination be not conclusive, but subject to the judgment of the Parliament, where
2. If the defendant misbehave himself in his office by making a false or double return, an action
lies against him for it on the late statute, 7 & 8 W. 3, c. 7, and therein all this matter of refusing
the plaintiff’s vote is comprised, and all the special matter is scann’d in that action. And if you
allow the plaintiff to maintain an action for this matter, then every elector may bring his action,
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and so the officer shall be loaded with a number of actions, that may ruin him; and he may
follow
one law suit, though he may not be able to follow many. These actions proceed from heat, I will
not call it revenge; and it is not like splitting of actions, scilicet, of one cause of action into many,
but the causes of action are several, and the Court cannot unite them, but A. B. C. D. E. and a
3. There is a vast intricacy in determining the right of electors, and there is a variety, and a
different manner and right of election in every borough almost. As in some boroughs every
potwaller has a right to vote, in some, resiants only vote, and in others the out-lying burgesses
that live a hundred miles off; nay, I know Ludlow a borough, where all the burgesses’ daughters
husbands have a right to vote. But now all this matter is comprised in an action against the
officer
for a false return. But it is objected, that by the law of England every one who suffers a wrong
has
a remedy; and here is a privilege lost, and shall not the plaintiff have a remedy? To that I answer,
first, it is not an injury, properly speaking; it is not damnum, for the plaintiff does not lose his
privilege by this refusal, for when the matter comes before the committee of elections, the
plaintiff’s vote will be allowed as a good vote; and so in an action upon the case by one of the
candidates for a false return, [944] this tender of his vote by the plaintiff shall be allowed as
much
as if it had been given actually and received. And if this refusal of the plaintiff’s vote be an
injury,
it is of so small and little consideration in the law, that no action will lie for it; it is one of those
things within the maxim, de minimis non curat lex. In the case of Ford v. Hoskins , 2 Cro. 368.
Mo. 833. 2 Bulstr. 336. 1 Roll. Rep. 125, where an action is brought against the lord of a
copyhold manor, for refusing to accept one named as successor for life by the preceding tenant
for life, according to the custom, there the plaintiff suffers an injury, and yet it is adjudged, that
no
action lies. The late statute 7 & 8 W. 3, c. 7, gives an action against the officer for a misfeasance
to the party grieved, i.e. to the candidate, who is to 3 give his vote; so that by the judgment of the
Parliament he cannot have any action. Before the Statute of 23 H. 6, no 4 action lay for the
candidate, who was the party aggrieved, against the officer, for a false return, because it related
to Parliamentary matters, as is adjudged 3 Lev. 29, 30, Onslow v. Rapley , and yet he had an
injury; and till the 7 & 8 W. 3, no 5 action lay for the candidate against the officer for a double
return, as is adjudged in the same case, 3 Lev. 29. 2 Ventr. 37, and yet he suffered an injury
thereby; a fortiori no action shall lie for the plaintiff in this case.
4. This action is not maintainable for another reason, which I think is a weighty one, viz. this
action is primae impressionis; never the like action was brought before, and therefore as 6
Littleton, s. 108, uses it to prove that no action lay on the Statute of Merton, 20 H. 3, c. 6, si
parentes conquerantur, for if it had lain, it would have sometimes been put in use: so here. So in
the case of Lord Say and Seale v. Stephens , Cro. 142, for the law is not apt to catch at actions.
It is agreed by the consent of all ages, that no 7 action lay at common law against the officer for a
double return; and yet in one year, viz. 1641, there were no less than seventy double returns,
and yet they made no Act to help it, though the Parliament could not be misconusant of the
matter.
5. Another reason against the action is, that the determination of this matter is particularly
reserved to the Parliament, as a matter properly conusable by them, and to them it belongs to
determine the fundamental rights of their House, and of the constituent parts of it, the members;
and the Courts of Westminster shall not tell them who shall sit there. Besides, we are not
acquainted with the learning of elections, and there is a particular cunning in it not known to us,
nor do we go by the same rules, and they often determine contrary to our opinion without doors.
The *132 late [945] statute, which enacts, that the last determination of the House as to the right
of election shall be a rule to the Judges in the trial of any cause, is a declaration of their power,
and the paths the Judges are to walk in are chalked out to them, so that they are not left to use
their own judgment; but the determination of the House is to be the rule of law to us, and we are
not to examine beyond that. Suppose in this action we should adjudge one way, and after in
Parliament it should be determined another way; or suppose a Judge of Nisi Prius, before whom
the cause comes to be tried, should say, I am not bound by the rule of the last determination in
Parliament in this action, for this is another sort of action, not within the meaning of the statute;
6. Another reason against this action is, that if we should allow this action to lie for the plaintiff,
a
fortiori we must allow an action to be maintainable for the candidates against the defendant for
the same refusal; for the candidates have both damnum et injuriam, and are the parties
aggrieved; and if we should allow that, we shall multiply actions upon the officers at the suit of
the
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candidates, and every particular elector too; so that men will be thereby deterred from venturing
to act in such offices, when the acting therein becomes so perilous to them and their families. I
will not insist upon the exceptions to the declaration, but give my opinion upon the merits. I
think
there is a sufficient allegation in the count of the return of the election, especially after a verdict.
Nor shall I insist, that it does not appear in the declaration, how near the party was to be chosen;
nor that this action is brought merely for a possibility, for this is an action for a personal injury,
and the plaintiff might give his vote for which he pleased, either the candidate that had fewer or
more voices, or he might give his vote for one who had no other burgess’s voice but the
plaintiff’s
own; for the plaintiff in those cases is deprived as much of his privilege, as if the person for
whom
he voted was nearest to be chosen. But it has been objected, that the defendant should not have
absolutely refused to receive the plaintiff’s vote, but should have reserved it for a scrutiny, and
should have admitted it de bene esse. To that I answer, he might indeed have done so, but he
was not obliged to do it, for the officer is supposed to know every man’s right and pretence of
election, and commonly the weaker party are for bringing in new votes, and devising new
contrivances; but the officer ought to disallow them at first, and not to give so much countenance
law comes before us, if it be a clear case, we may give judgment in it on the first argument, and it
will be a good judgment, although it be usual to hear several arguments. The objection of weight
[946] is the resolution between Sterling and Turner , 2 Lev. 50. Hale said it was a good
precedent: and the case of Herring and Finch , 2 Lev. 250, though as to that case it was not
adjudged upon the matter of law, but went off upon a point of evidence; yet I will admit the
action
to lie for the plaintiff in those cases, but they do not at all relate to the Parliament, but are matters
of custom merely relating to the government of the city, and are properly determinable at
common law. And although it may be said, that this case also relates to the government of the
town, so does a public nusance in a highway; but if a particular person receive an injury, he may
have his action; but that does not relate to the Parliament as this matter does, and the whole
case here turns upon that, viz. its being a Parliamentary matter. If we should admit this action to
lie, we shall have work enough in Westminster-Hall brought in by a side-wind; nay, so much,
that
we shall even be glad to petition the Parliament to take this power away from us. Besides, the
judgment here cannot be called properly a determination, it will only be a litigation; for our
judgment cannot be cited as an authority in Parliament, nor will the Parliament mind it, or be
bound up by it, for they 8 themselves are not bound even by their own determination, but may
determine contrary to it, though that be a rule upon the Courts of Westminster. But it has been
objected, that this is no determination of the election in this judgment, but only of a particular
injury. To that I answer, it will be in consequence of a determination of the election; for if the
plaintiff had a right to vote, then this action is maintainable; if he has no right, then he can have
no action; and by consequence twenty others may have a right to vote, and the election may turn
upon this single vote; and his right of voting is as much Parliamentary as the whole election, and
may as much intangle the case. It is said *133 in Onslow’s case , 2 Ventr. 37, that the Courts at
Westminster must not inlarge their jurisdiction in these matters, farther than the statute gives
them; and indeed it is a happiness to us, that we are so far disengaged from the heats, which
attend elections. Our business is to determine of meum and tuum, where the heats do not run so
high, as in things belonging to the Legislature: therefore this being an unprecedented case, I
shall conclude with a saying of my Lord Coke, 2 Bulst. 338. Omnis innovatio plus novitate
Powell Justice. I am of the same opinion, that judgment ought to be arrested. As to the novelty of
this action, I think it no argument against the action; for there have been actions on the case
brought, that had never been brought before, but had their beginning of late years, and we must
judge upon the same reason as other cases have been determined by. I do not agree with my
brother [947] upon their first reason, that the defendant is a judge. I do not understand what my
brother Powys means by saying, he is quasi a judge; surely he must be a judge or no judge. The
bailiff is not a Judge, but only an officer, or minister to execute the precept. But I agree with
them
in their other reasons to give judgment against the plaintiff, and chiefly because in this action
there does not appear such an injury or damage as is necessary to maintain an action on the
case. An injury must have relation to some privilege the party has. The case of Turner and
Sterling , 2 Lev. 50, is adjudged upon a particular reason; for the defendant by refusing him the
poll, deprived him of the means of knowing whether he had a right or not. If cestuy que use
desires the feoffees to make a feoffment over to another, and they refuse, no action upon the
case lies against them for this refusal. And in the case of Ford against Hoskins , 2 Bulstr. 337. 2
Cro. 368, it is resolved, that no action lies for the nominee against the lord, for refusing to keep a
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court, and to admit him; yet that is a hard case, for the party is thereby deprived of the means of
coming to his right. But that case differs from the case of Sterling against Turner; for the party
hath a known remedy in Chancery, to compel the lord to hold a court, and admit him, but the
other hath no remedy against the mayor but an action. Here is no injury to the plaintiff, for
though
he has alleged in his declaration, that he had a right to vote, and was hindered of it by the
defendant, yet that does not give him a right, unless the finding thereof by the jury do confer
such
right; but that cannot be so, for the jury cannot judge of this right in the first instance, because it
is
a right properly determinable in Parliament. The Parliament have a peculiar right to examine the
due election of their members, which is to determine whether they are elected by proper electors,
such as have a right to elect; for the right of voting is the great difficulty in the determination of
the due election, and belongs to the Parliament to decide. But it is objected, admitting the
plaintiff
had a right to vote, and was deprived of it, shall he have no remedy? To that I answer, he shall
have a remedy in proper time, but the plaintiff here comes too soon, he shall have a remedy by
action after the Parliament have determined that he had a right, but not before. This is not such a
right, the deprivation whereof will make an injury, till it be determined in Parliament. But the
plaintiff has a proper remedy by petition to the Parliament setting forth his case, and after the
Parliament have adjudged that he had a right of voting, he shall have an action at law to recover
damages, when his right is so fixed and settled. The opinion of my Lord Hobart in the case of Sir
William Elvis and The Archbishop of York , Hob. 317, 318, and the reason of that opinion
comes
very near to the present case, that if the church be litigious, and two clerks be presented to the
Ordinary, and he award a jure patronatus, [948] to inquire which patron has the right, and the
inquest find for one, and yet the Ordinary receive the clerk of the other, contrary to the finding of
the jury, in that case if the other patron bring his quare impedit against the usurper and his
incumbent, not naming the bishop, and proves his title, he may afterwards have an action upon
the case against the Ordinary, for that wilful wrong delay and trouble, that he hath put him to;
and
he shall recover costs and damages, not in respect of the value of the church (for there are no
damages for that by the common law, but by West. 2, 13 Ed. 1, st. 1, c. 5, s. 3, but for the other
respects before mentioned. But if he name the Ordinary in the quare impedit, he can have no
other action of the case;. neither shall he have such action upon the case before he hath tried his
title in a proper action, and against the proper parties. So that in that case, though the *134
patron’s right, being found by the jury on the jure patronatus, is in some measure determined, yet
he shall not maintain an action upon the case against the Ordinary, but he must first prove his
title in a proper manner by a quare impedit, and thereby prove the Ordinary a disturber; and after
that he may bring his action on the case against the Ordinary for his damages. Where the party
has no possibility of settling his right, as in the case of Sterling and Turner , there he shall
maintain his action for the disturbance before his right be settled; but where he has a proper
method, as in our case, he shall not maintain an action till his right be determined; and the
determinations upon the several actions, or of the different judgments by the House of
Commons, and the Judges at common law: for the House may be of opinion that the plaintiff has
a right to vote, and yet the Judges may be of opinion upon the action that he hath none, and give
judgment against him, and then though he has a right he will have no remedy: et e converso. But
this difference of opinions will be prevented by such a previous application to the House before
any action brought. Besides in this case, here is not a damage upon which this action is
maintainable; for to maintain an action upon the case, there must be either a real damage, or a
possibility of a real damage, and not merely a damage in opinion or consequence of law. For a
possibility of a damage, as an action upon the case lies for the owner of an ancient market, for
erecting a new market near his; and yet perhaps the cattle that come to the old market might not
be sold, and so no toll due; and consequently no real damage, but there is a possibility of a
damage. But in our case there is no possibility of a damage. It is laid in the declaration, that the
defendant obstructed him from giving his vote; but that is too general, without shewing the
manner how he obstructed him, as that the defendant kept him out of the usual place, where the
votes are taken. The plaintiff [949] shews no damage in his count, and the verdict will not supply
it, for the plaintiff ought always to allege a damage; as in an action upon the case brought against
the lessee by him in the reversion, for refusing to permit him to enter to view waste, it would not
be sufficient to allege thus generally, that the defendant obstructed him, &c. It is laid here, that
the defendants ipsum the plaintiff ad suffragium suum dare obstruxerunt, et penitus
recusaverunt, I do not know what that means in this case. Indeed it is a sufficient description of a
disseisin of a rent seck, but if the plaintiff gives his vote for a candidate, that is as effectual as if
the officer writ it down, for it is his vote by the giving of it, and the officer cannot hinder him of
it,
and on a poll it will be a good vote, and must be allowed, and so there is no wrong done to the
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plaintiff; for his vote was a good vote notwithstanding what the defendant did. Besides the
plaintiff
can make no profit of his vote; and it is like the case of a quare impedit, in which the plaintiff at
common law recovered no damages, because he ought not to sell the presentation, and so could
make no profit of it. So here, for it would be criminal for the plaintiff to sell his vote. Perhaps the
putting the plaintiff to trouble and charge, to maintain and vindicate his right of voting, might be
sufficient damage to maintain an action on the case; but as our case is, I cannot see that the
plaintiff has received any damage. Great inconveniencies do attend the allowance of this action,
as my brothers have said; as that it will occasion multiplicity of actions, and for that reason it is,
that the law gives no action to a private person for a publick nusance, for there is a remedy by
indictment to redress it. So here the plaintiff has a remedy in Parliament. As to the case of
Westbury against Powell , Co. Lit. 50 a. where the inhabitants of Southwark had a watering place
for their cattle by custom, which was stopped up; there any inhabitant might have an action,
because there was no other remedy by presentment or the like: but if it had been a nusance
presentable, no 9 action would have lain. So in the case of Sterling and Turner , the party had no
other remedy. So in the case of Herring and Finch , which is a strong case; and I do not know
whether an action will lie in that case, for refusing to admit his voice to the election of a mayor;
but there the plaintiff has no other remedy, nor other way to settle his right. If we should
adjudge,
that this action lies, it will be dangerous to execute any office of this nature, and will deter men
from undertaking publick offices, which will be a thing of ill consequence. I am of opinion upon
the whole matter, that after a determination in the Parliament for the plaintiff’s right, the trouble
and charge of vindicating it will maintain an action, but in this case no action lies, and therefore
[950] Holt Chief Justice. The single question in this case is, whether, if a free burgess of a
corporation, who has an undoubted right to give his vote in the election of a burgess to serve in
Parliament, be refused and hindered to give it by the officer, if an action on the case will lie
I am of opinion that judgment ought to be given in this case for the plaintiff. My brothers differ
from me in opinion, and they all differ from one another in the reasons of their opinion; but
notwithstanding their opinion, I think the plaintiff ought to recover, and that this action is well
maintainable, and ought to lie. I will consider their reasons. My brother Gould thinks no action
will
lie against the defendant, because, as he says, he is a judge; my brother Powys indeed says, he
is no judge, but quasi a judge; but my brother Powell is of opinion, that the defendant neither is a
judge, nor any thing like a judge, and that is true: for the defendant is only an officer to execute
the precept, i.e. only to give notice to the electors of the time and place of election, and to
assemble them together in order to elect, and upon the conclusion to cast up the poll, and
But to proceed, I will do these two things: first, I will maintain that the plaintiff has a right and
privilege to give his vote: secondly, in consequence thereof, that if he be hindered in the
enjoyment or exercise of that right, the law gives him an action against the disturber, and that
this
I did not at first think it would be any difficulty, to prove that the plaintiff has a right to vote, nor
necessary to maintain it, but from what my brothers have said in their arguments I find it will be
necessary to prove it. It is not to be doubted, but that the commons of England have a great and
considerable right in the government, and a share in the legislative, without whom no law passes;
but because of their vast numbers this right is not exerciseable by them in their proper persons,
and therefore by the constitution of England, it has been directed, that it should be exercised by
representatives, chosen by and out of themselves, who have the whole right of all the commons
of England vested in them: and this representation is exercised in three different qualities, either
as knights of shires, citizens of cities, or burgesses of boroughs; and these are the persons
qualified to represent all the commons of England. The election of knights belongs to the
freeholders of the counties, and it is an original right vested in and inseparable from the freehold,
and can no more be severed from their freehold, than the freehold itself can be taken away.
Before the Statute of 8 H. 6, c. 7, any man that had a freehold, though never so small, had a right
of voting, but by that statute the right of election is confined to such persons as have lands or
tene- [951] -ments to the yearly value of forty shillings at least, because as the statute says, of
the tumults and disorders which happened at elections, by the excessive and outrageous number
of electors; but still the right of election is as an original right, incident to, and inseparable from
the freehold. As for citizens and burgesses, they depend on the same right as the knights of
shires, and differ only as to the tenure, but the right and manner of their election is on the same
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foundation. Now boroughs are of two sorts; first, where the electors give their voices by reason
of
their burgership; or, secondly, by reason of their being members of the corporation. Littleton, in
his chapter of Tenure in Burgage 162, C. L. 108 b. 109, says, tenure in burgage is, where an
ancient borough is, of the which the King is lord, of whom the tenants hold by certain rent, and it
is but a tenure in socage: and sect. 164, he says, and it is to wit, that the ancient towns called
boroughs be the most ancient towns that be within England, and are called boroughs, because of
them come the burgesses to Parliament. So that the tenure of burgage is from the antiquity, and
their tenure in socage is the reason of their estate, and the right of election is annexed to their
estate. So that it is part of the constitution of England, that these boroughs shall elect members
to serve in Parliament, whether they be boroughs corporate or not corporate; and in that case the
right of election is a privilege annexed to the burgage land, and is, as I may properly call it, a real
privilege. But the second sort is, where a corporation is created by charter, or by prescription,
and the members of the corporation as such chuse burgesses to serve in Parliament. The first
sort have a right of chusing burgesses as a real right, but here in this last case it is a personal
right, and not a real one, and is exercised in such manner as the charter or custom prescribes;
and the inheritance of this right, or the right of election itself, is in the *136 whole body politic,
but
the exercise and enjoyment of this right is in the particular members. And when this right of
election is granted within time of memory, it is a franchise that can be given only to a
corporation,
as is resolved by all the Judges against my Lord Hobart, in the case of Dungannon in Ireland , 12
Co. 120, 121. That if the King grant to the inhabitants of Islington, to be a free borough, and that
the burgesses of the same town may elect two burgesses to serve in Parliament, that 10 such a
grant of such privilege to burgesses not incorporated is void, for the inhabitants have not capacity
to take an inheritance. See Hob. 15. The principal case there was, the King constituted the town
of Dungannon to be a free borough, and that the inhabitants thereof shall be a body politic and
corporate, consisting of one provost, twelve [952] free burgesses, and commonalty; and in the
same name may sue and be sued; et quod ipsi praefati praepositi et liberi burgenses burgi
quolibet Parliamento, in dicto regno nostro Hiberniae in posterum tenendo, and so proceeds to
give them power to treat, and give voice in Parliament, as other burgesses of any other ancient
borough, either in Ireland or England, have used to do. And upon this grant, it was adjudged, by
all the Judges of England, that this power to elect burgesses is an inheritance of which the
provost and burgesses were not capable, for that it ought to be vested in the intire corporation,
viz. provost, burgesses, and commonalty, and that therefore the law in this case did vest that
privilege in the whole corporation in point of interest, though the execution of it was committed
to
some persons, members of the same corporation. 12 Co. 120, 121. Hob. 14, 15. As to the
manner of election, every borough subsists on its own foundation, and where this privilege of
election is used by particular persons, it is a particular right vested in every particular man; for if
we consider the matter, it will appear, that the particular members and electors, their persons,
their estates, and their liberties, are concerned in the laws that are made, and they are
represented as particular persons, and not quatenus a body politic; therefore, when their
particular rights and properties are to be bound (which are much more valuable perhaps than
those of the corporation) by the act of the representative, he ought to represent the private
persons. And this is evident from all the writs, which were anciently issued for levying the wages
of the knights and burgesses that served in Parliament. As 46′ Edw. 3, Rot. Parl. Memb. 4, in
dorso. For when wages were paid to the members, they were not assessed upon the corporation,
but upon the commonalty as private persons, as the writ shews, which indeed is directed to the
sheriff, or to the mayor, &c. yet the command is, quod de communitate comitatus, civitatis, vel
burgi, habere faciat militibus, civibus, aut burgensibus, 10l. pro expensis suis. But now, if the
corporation were only to be represented, and not the particular members of it, then the
corporation only ought to be at the charge; but it is plain that the particular members are at the
charge. And this is no new thing, but agreeable to reason and the rules of law, that a franchise
should be vested in the corporation aggregate, and yet the benefit of it to redound to the
particular members, and to be enjoyed by them in their private capacity. As is the case of Waller
and Hanger , Mo. 832, 833, where the King granted to the Mayor and Citizens of London, quod
nulla prisagia sint soluta de vinis civium et liberorum hominum de London, &c. And there it was
resolved, that although the grant be to the corporation, yet it should not enure to the [953] body
politic of the city, but to the particular persons of the corporation, who should have the fruit and
execution of the grant for their private wines, and it should not extend to the wines belonging to
the body politic; and so is the constant experience at this day. So in the case of Mellor v.
Spateman , 1 Saund. 343, where the Corporation of Derby claim common by prescription, and
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though the inheritance of the common be in the body politic, yet the particular members enjoy
the
fruit and benefit of it, and put in their own cattle to feed on the common, and not the cattle
belonging to the corporation; but that is not indeed our case. But from hence it appears that every
man, that is to give his vote on the election of members to serve in Parliament, has a several and
particular right in his private capacity, as a citizen or burgess. And surely it cannot be said, that
this is so inconsiderable a right, as to apply that maxim to it, de minimis non curat lex. A right
that
a man has to give *137 his vote at the election of a person to represent him in Parliament, there
to concur to the making of laws, which are to bind his liberty and property, is a most
transcendant
thing, and of an high nature, and the law takes notice of it as such in divers statutes: as in the
statute of 34 & 35 H. 8, c. 13, intitled An Act for Making of Knights and Burgesses within the
County and City of Chester; where in the preamble it is said, that whereas the said County
Palatine of Chester is and hath been always hitherto exempt, excluded, and separated out, and
from the King’s Court, by reason whereof the said inhabitants have hitherto sustained manifold
disherisons, losses, and damages, as well in their lands, goods, and bodies, as in the good, civil,
and politic governance, and maintenance of the commonwealth of their said county, &c. So that
the opinion of the Parliament is, that the want of this privilege occasions great loss and damage.
And the same farther appears from the 25 Car. 2, c. 9, an Act to enable the County Palatine of
Durham to send knights and burgesses to serve in Parliament, which recites, whereas the
inhabitants of the County Palatine of Durham have not hitherto had the liberty and privilege of
electing and sending any knights and burgesses to the High Court of Parliament, &c. The right of
voting at the election of burgesses is a thing of the highest importance, and so great a privilege,
that it is a great injury to deprive the plaintiff of it. These reasons have satisfied me as to the first
point.
2. If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and
a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to
imagine
a right without a remedy; for 11 want of right and want of remedy are reciprocal. As if a
purchaser
of an advowson in fee-simple, before any presentment, suffer an usurpation, and six months to
pass, without bringing his quare impedit, he 12 has lost his right to the advowson, because he has
lost his quare impedit, which was [954] his only remedy; for he 13 could not maintain a right of
advowson; and though he afterwards usurp and die, and the advowson descend to his heir; yet 14
the heir cannot be remitted, but the advowson is lost for ever without recovery. 6 Co. 50. Where
a
man has but one remedy to come at his right, if he loses that he loses his right. It would look very
strange, when the commons of England are so fond of their right of sending representatives to
Parliament, that it should be in the power of a sheriff, or other officer, to deprive them of that
right, and yet that they should have no remedy; it is a thing to be admired at by all mankind.
Supposing then that the plaintiff had a right of voting, and so it appears on the record, and the
defendant has excluded him from it, no body can say, that the defendant has done well; then he
must have done ill, for he has deprived the plaintiff of his right; so that the plaintiff having a
right
to vote, and the defendant having hindered him of it, it is an injury to the plaintiff. Where a new
Act of Parliament is made for the benefit of the subject, if a man be hindered from the enjoyment
of it, he shall have an action against such person who so obstructed him. How else comes an
action to be maintainable by the party on the Statute of 8 Ric. 2, de Scandalis Magnatum, 12 Co.
134, but in consequence of law? For the statute was made for the preservation of the publick
peace, and that is the reason that no writ of error lies in the Exchequer Chamber by force of the
Statute of 27 Eliz. in a judgment in the King’s Bench on an action de scandalis, for it is not
included within the words of the statute; for though the statute says, such writ shall lie upon
judgments in actions on the case, yet it does not extend to that action, although it be an action on
the case, because 15 it is an action of a far higher degree, being founded specially upon a statute,
1 Cro. 142. If then when a statute gives a right, the party shall have an action for the
infringement
of it, is it not as forcible when a man has his right by the common law? This right of voting is a
right in the plaintiff by the common law, and consequently he shall maintain an action for the
obstruction of it. But there wants not a statute too in this case, for by West. 1, 3 Ed. 1, c. 5, it is
enacted, that forasmuch as elections ought to be free, the King forbids, upon grievous forfeiture,
that any great man, or other, by power of arms, or by malice or menaces, shall disturb to make
free election. 2 Inst. 168, 169. And this statute, as my Lord Coke observes, is only an
inforcement of the common law; and if the Parliament thought the freedom of elections to be a
matter of that consequence, as to give their sanction to it, and to enact that they should be free; it
is *138 a violation of that statute, to disturb the plaintiff in this case in giving his vote at an
[955] And I am of opinion, that this action on the case is a proper action. My brother Powell
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indeed thinks, that an action upon the case is not maintainable, because here is no hurt or
damage to the plaintiff; but surely every injury imports a damage, though it does not cost the
party one farthing, and it is impossible to prove the contrary; for a damage is not merely
pecuniary, but an injury imports a damage, when a man is thereby hindred of his right. As in an
action for slanderous words, though a man does not lose a penny by reason of the speaking
them, yet he shall have an action. So if a man gives another a cuff on the ear, though it cost him
nothing, no not so much as a little diachylon, yet he shall have his action, for it is a personal
injury. So a man shall have an action against another for riding over his ground, though it do him
no damage; for it is an invasion of his property, and the other has no right to come there. And in
these cases the action is brought vi et armis. But for invasion of another’s franchise, trespass vi
et armis does not lie, but an action of trespass on the case; as where a man has retorna brevium,
he shall have an action against any one who enters and invades his franchise, though he lose
nothing by it. So here in the principal case, the plaintiff is obstructed of his right, and shall
therefore have his action. And it is no objection to say, that it will occasion multiplicity of
actions;
for if men will multiply injuries, actions must be multiplied too; for every man that is injured
ought
to have his recompence. Suppose the defendant had beat forty or fifty men, the damage done to
each one is peculiar to himself, and he shall have his action. So if many persons receive a
private injury by a publick nusance, every one shall have his action, as is agreed in William’s
case , 5 Co. 73 a. and Westbury and Powell , Co. Lit. 56 a. Indeed where many men are
offended by one particular act, there they must proceed by way of indictment, and not of action;
for in that case the law will not multiply actions. But it is otherwise, when one man only is
offended by that act, he shall have his action; as if a man dig a pit in a common, every commoner
shall have an action on the case per quod communiam suam in tam amplo modo habere non
potuit; for every commoner has a several right. But it would be otherwise if a man dig a pit in a
highway, every passenger shall not bring his action, but the 16 party shall be punished by
indictment; because the injury is general and common to all that pass. But when the injury is
particular and peculiar to every man, each man shall have his action. In the case of Turner
against Sterling , the plaintiff was not elected, he could not give in evidence the loss of his place
as a damage, for he was never in it; but the gist of the action is, that the plaintiff having a right to
stand for the place, and it being difficult to determine [956] who had the majority, he had
therefore a right to demand a poll, and the defendant by denying it was liable to an action. If
publick officers will infringe mens rights, they ought to pay greater damages than other men, to
deter and hinder other officers from the like offences. So the case of Hunt and Dowman , 2 Cro.
478, where an action on the case is brought by him in reversion against lessee for years, for
refusing to let him enter into the house, to see whether any waste was committed. In that case
the action is not founded on the damage, for it did not appear that any waste was done, but
because the plaintiff was hindered in the enjoyment of his right, and surely no other reason for
But in the principal case my brother says, we cannot judge of this matter, because it is a
Parliamentary thing. O! by all means be very tender of that. Besides it is intricate, and there may
be contrariety of opinions. But this matter can never come in question in Parliament; for it is
agreed that the persons for whom the plaintiff voted were elected; so that the action is brought
for
being deprived of his vote: and if it were carried for the other candidates against whom he voted,
his damage would be less. To allow this action will make publick officers more careful to
observe
the constitution of cities and boroughs, and not to be so partial as they commonly are in all
elections, which is indeed a great and growing mischief, and tends to the prejudice of the peace
of the nation. But they say, that this is a matter out of our jurisdiction, and we ought not to
inlarge
it. I agree we ought not to incroach or inlarge our jurisdiction; by so doing we usurp both on the
right of the Queen and the people: but sure we may determine on a charter granted by *139 the
the Parliament. And if it be a matter within our jurisdiction, we are bound by our oaths to judge
of
it. This is a matter of property determinable before us. Was ever such a petition heard of in
Parliament, as that a man was hindred of giving his vote, and praying them to give him remedy?
The Parliament undoubtedly would say, take your remedy at law. It is not like the case of
My brother Powell says, that the plaintiff’s right of voting ought first to have been determined in
Parliament, and to that purpose cites the opinion of my Lord Hobart 318, that the patron may
bring his action upon the case against the Ordinary after a judgment for him in a quare impedit,
but not before. It is indeed a fine opinion, but I do not know whether it will bear debating, and
how
it will prove, when it comes to be handled. For at common law the patron had no remedy for
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damages [957] against the disturber, but the Statute 13 Ed. 1, st. 1, c. 5, s. 3, gives him
damages; but if he will not make the bishop a party to the suit, he has lost his remedy which the
statute gives him. But in our case the plaintiff has no opportunity to have remedy elsewhere. My
brother Powys has cited the opinion of Littleton on the Statute of Merton that no action lay upon
the words, si parentes conquerantur, because none had ever been brought, yet he cannot
depend upon it. Indeed that is an argument, when it is founded upon reason, but it is none, when
it is against reason. But I will consider the opinion. Some question had arose on the penning of
that statute on those words, si parentes conquerantur, &c. what was the meaning of them,
whether they meant a complaint in a Court in a judicial manner. But it 17 is plain the word
conquerantur, means only si parentes lamententur, that is only a complaint in pais, and not in a
Court; for the guardian in socage shall enter in that case, and shall have a special writ de
ejectione custodiae terrae et haeredis. But this saying has no great force, if it had it would have
been destructive of many new actions, which are at this day held to be good law. The case of
Hunt and Dowman before mentioned was the first action of that nature, but it was grounded on
the common reason, and the ancient justice of the law. So the case of Turner and Sterling . Let
us consider wherein the law consists, and we shall find it to be, not in particular instances and
precedents; but on the reason of the law, and ubi eadem ratio, ubi idem jus. This privilege of
voting does not differ from any other franchise whatsoever. If the House of Commons do
determine this matter, it is not that they have an original right, but as incident to elections. But
we
do not deny them their right of examining elections, but we must not be frighted when a matter
of
property comes before us, by saying it belongs to the Parliament; we must exert the Queen’s
jurisdiction. My opinion is founded on the law of England. The case of Mors and Slue , 1 Ventr.
190, 238, was the first action of that nature, but the novelty of it was no objection to it. So the
case of Smith and Crashaw , 1 Cro. 15. W. Jones, 93, that an action of the case lay for falsely
and maliciously indicting the plaintiff for treason, though the objections were strong against it,
yet
it was adjudged, that if the prosecution were without probable cause, there was as much reason
the action should be maintained, as in other cases. So 15 Car. 2, C. B. between Bodily and Long
, it was adjudged by Bridgman Chief Justice, &c. that an action on the case lay for a riding,
whenever the plaintiff and his wife fought, for it was a scandalous and reproachful thing. So in
the
case of Herring and Finch , 2 Lev. 250, no body scrupled, but that the action well lay, for the
plaintiff was thereby deprived of his right. And if an action is maintainable against an officer for
hindring the plaintiff from [958] voting for a mayor of a corporation, who cannot bind him in his
liberty nor estate, to say, that yet this action will not lie in our case, for hindering the plaintiff to
Friday the 14th of January 1703, this 18 judgment was reversed in the House of Lords, and
judgment given for the plaintiff by fifty Lords against sixteen. Trevor Chief Justice and Baron
Price were of opinion with the three Judges of the King’s. Bench. Ward C. B. and Bury and
Smith
Barons were of opinion with the Lord Chief Justice Holt, Tracy dubitante, Nevill and Blencowe
absent. *140
(Note, I had it from good hands, that Tracy agreed clearly, that the action lay, but was doubtful
Upon the arguments of this case Holt Chief Justice said, the plaintiff has a particular right vested
in him to vote. Is it not then a wrong and an injury to that right, to refuse to receive his vote? So
if
a borough has a right of common, and the freemen are hindred from enjoying it by inclosure or
the like, every freeman may maintain his action. This action is brought by the plaintiff for the
infringement of his franchise. You would have nothing to be a damage, but what is pecuniary,
and a damage to property. If a man has retorna brevium, although no fees were due to him at
common law, yet if the sheriff enters within his liberty, and executes process there, it is an
invasion of his franchise, and he may bring his action; and there is the same reason in this case.
Although this matter relates to the Parliament, yet it is an injury precedaneous to the Parliament,
as my Lord Hale said in the case of Bernardiston vers. Soame , 2 Lev. 114, 116. The Parliament
cannot judge of this injury, nor give damage to the plaintiff for it: they cannot make him a
recompence. Let all people come in, and vote fairly; it is to support one or the other party, to
deny
any man’s vote. By my consent if such an action comes to be tried before me, I will direct the
jury
to make him pay well for it; it is denying him his English right, and if this action be not allowed,
a
man may be for ever deprived of it. It is a great privilege to chuse such persons, as are to bind a
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Lord Raymond