the people that the government is maladministered by corrupt persons, that are employed in such or such stations either in the navy or army. To say that corrupt officers are appointed to administer affairs, is certainly a reflection on the government. If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it, and nothing can be worse to any government, than to endeavour to procure animosities, as to the management of it: this has always been looked upon as a crime, and no government can be safe without it be punished. Now you are to consider, whether these words I have read to you, do not tend to beget an ill opinion of the administration of the government? To tell us, that those that are employed know nothing of the matter, and those that do know are not employed. Men are not adapted to offices, but offices to men, out of a particular regard to their interest, and not to their fitness for the places this is the purport of these papers. Gentlemen, I must leave it to you; if you are satisfied that he is guilty of composing and publishing these papers at London, you are to find him guilty. (From Holt's, C.J., charge to the jury. S.T. xiv. 1126.) ΧΙ ASHBY v. WHITE AND OTHERS [The importance of this historic case, with which is also concerned The Case of the Aylesbury Men, justifies the length of the extracts. Matthew Ashby brought an action against William White, Mayor of Aylesbury, and others, for refusing his vote at an election of burgesses to Parliament, and obtained a verdict with costs and £5 damages. On a motion in the Queen's Bench in arrest of judgment before Lord Chief Justice Holt and Justices Powell, Powys, and Gould, judgment was given for the defendant on the ground that an action did not lie against the returning officers, Holt, C.J., dissenting. The case was brought on writ of error before the House of Lords, and on January 14, 1703, the judgment of the Queen's Bench was reversed on the grounds set forth in Holt's dissenting judgment in the court below (Excerpt I.). The House of Commons at once took the challenge up, and after debating it from January 17 to 25, adopted certain resolutions to protect their interpretation of their privileges (see Excerpt II., p. 271). The House of Lords also debated this question and passed counter-resolutions, and conferences between the two chambers failed to effect a reconciliation. When five other Aylesbury men, supported by the decision of the House of Lords, brought actions similar to that of Ashby's, they were promptly committed to Newgate by the House of Commons for a breach of privilege. A motion to obtain their discharge on a writ of habeas corpus was argued in the Queen's Bench before the same four judges who had already given a judgment in Ashby v. White, and with the same result. By three to one (Holt, C.J., again dissenting) the court refused to order their discharge (see Excerpt IV.). Paty, one of the five Aylesbury men, petitioned the Queen for a writ of error to bring his case before the House of Lords, as Ashby had done; the Commons petitioned the Queen not to grant the writ, whereupon the Crown referred the question to the judges as to whether such writs were "of right" or "of grace." Ten judges answered that such writs were "of right" (ex debito vel merito justitiae), two that they were "of grace" (ex gratia). The Lords also drew up a representation to the Crown, and Anne solved the difficulty by proroguing Parliament. This freed the Aylesbury men from the restrictions of the privilege of the House of Commons, and they finally obtained verdicts against the returning officers. On the whole matter see S.T. xiv. 695-888; Hallam, C.H. iii. 274; Anson, L.C. i. 170; Broom, C.L. 841-874; May, P.P. 57–142. The extracts are: (1) from Holt's judgment in the Queen's Bench; (2) the resolutions of the House of Commons; (3) the counter-resolutions of the House of Lords; (4) the judgments of the judges in the argument on the writ of Habeas Corpus for "the Aylesbury men"; (5) the certificates of the judges to the question submitted by the Crown; (6) from the representation of the Lords to the Crown with the Queen's answer.] I The Case is truly stated, and the only question is, whether or not, if a Burgess of a Borough that has an undoubted right to give his vote for the chusing a Burgess of Parliament for that Borough, is refused giving his vote, has any remedy in the King's Courts for this Wrong against the Wrong-doer? All my Brothers agree that he has no Remedy; but I differ from them, for I think the Action well maintainable, that the Plaintiff had a Right to vote, and that in consequence thereof the Law gives him a Remedy, if he is obstructed; and this Action is the proper Remedy. By the Common Laws of England, every Commoner hath a Right not to be subjected to Laws, made without their Consent; and because it cannot be given by every individual Man in Person by Reason of Number and Confusion, therefore that Power is lodged in the Representatives, elected by them for that purpose, who are either Knights, Citizens or Burgesses; and the Grievance here is, that the Party not being allowed his Vote, is not represented. The Election of Knights of Shires is by Freeholders; and a Freeholder has a Right to vote by Reason of his Freehold, and it is a real Right. . . . In Boroughs. they have a Right of voting Ratione Burgagii and Ratione Tenurae; and this like the Case of a Freeholder before mentioned is a real Right, annexed to the Tenure in Burgage. . . . This is a noble Franchise and Right, which entitles the subject in a Share of the Government and Legislature. And here the Plaintiff having this Right, it is apparent that the Officer did exclude him from the enjoyment of it, wherein none will say he has done well, but Wrong to the Plaintiff; and it is not at all material whether the Candidate, that he would have voted so, were chosen, or likely to be so, for the Plaintiff's Right is the same, and being hindered of that, he has Injury done him, for which he ought to have Remedy. It is a vain Thing to imagine, there should be Right without a Remedy; for Want of Right and Want of Remedy are Convertibles: If a Statute gives a Right, the Common Law will give Remedy to maintain it; and wherever there is Injury, it imposts a Damage. And there can be no Petition in this Case to the Parliament, nor can they judge of this Injury, or give Damages to the Plaintiff. And although this Matter relates to the Parliament, yet it is an injury precedaneous to the Parliament; and where Parliamentary Matters come before us, as incident to a Cause of Action concerning the Property of the Subject, which we in Duty must determine, though the Matter be Parliamentary, we must not be deterred, but are bound by our Oaths to determine it. The Law consists not in particular Instances, but in the Reason that rules them; and if where a Man is injured in one Sort of Right, he has a good Action, why shall he not have it in another? And though the House of Commons have Right to decide Elections, yet they cannot judge of the Charter originally, but secondarily in the Determination of the Election; and therefore where an Election does not come in Debate, as it doth not in this Case, they have nothing to do: and we are to exert and vindicate the Queen's Jurisdiction, and not to be frighted because it may come in Question in Parliament; and I know nothing to hinder us from judging Matters depending on Charter or Prescription. He concluded for the Plaintiff. (Holt's Judgment. Holt's Reports (ed. 1737), pp. 525 et seq.) II RESOLUTIONS OF THE HOUSE OF COMMONS Mr. Freeman. The question as I have it upon my Paper, is this: "That according to the known law and usage of parliament, neither the qualification of any elector, or the right of any person elected, is cognizable or determinable elsewhere than before the Commons of England in parliament assembled, except in such cases as are specially provided for by act of parliament." But some gentlemen are for leaving out these words, ["Neither the qualification of any elector, or,"] So that I must put a question, Whether these words shall stand part of the question? (Members. Aye, aye.) Then Mr. Freeman put the Question, and the Committee divided. Teller for the Ayes, Mr. Gulston 215 97 So it was carried, that those words should stand part of the question. And the main Question being put, Resolved, 2. "That according to the known law and usage of parliament, neither the qualifications of any elector, or the right of any person elected, is cognizable or determinable elsewhere, than before the Commons of England in parliament assembled, except in such cases as are specially provided for by act of parliament." Resolved, 3. "That the examining and determining the qualification or right of any elector, or any person elected to serve in parliament, in any court of law, or elsewhere than before the Commons of England in parliament assembled, except in such cases as are specially provided for by act of parliament, will expose all mayors, bailiffs, and other officers, who are obliged to take the poll, and make a return thereupon, to multiplicity of actions vexatious suits, and unsupportable expenses, and will subject them to different and independent jurisdictions, and inconsistent determinations in the same case, without relief." Resolved, 4. "That Matthew Ashby having, in contempt of the jurisdiction of this House, commenced and prosecuted an action at common law against William White, and others, the constables of Aylesbury, for not receiving his Vote at an election of burgesses to serve in parliament for the said borough of Aylesbury, is guilty of a breach of the privilege of this House." Resolved, 5. "That whoever shall presume to commence or prosecute any action, indictment, or information [at common law],1 which shall bring the right of electors, or persons elected to serve in parliament, to the determination of any other jurisdiction than that of the House of Commons, except in cases specially provided for by act of parliament, such person and persons, and all attornies, solicitors, counsellors, serjeants-at-law, soliciting, prosecuting or pleading in any such case, are guilty of a high breach of the privilege of this House." Ordered, "That the said Resolutions be fixed upon WestminsterHall Gate, signed by the Clerk." These Resolutions, with this, (to wit,) Resolved 1. "That according to the known laws and usage of parliament, it is the sole right of the Commons of England in parliament assembled, except in cases otherwise provided for by act of parliament to examine and determine all matters relating to the right of elections of their own members" . . . were reported to the House. (C.J., Jan. 25, 1704.) III RESOLUTIONS OF THE HOUSE OF LORDS This State of the Case being read, and approved of, the House came to the following Resolution; (videlicet,) "It is resolved, by the Lords Spiritual and Temporal in Parliament assembled, 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 Queen's Courts against such Officer, to assert his Right, and recover Damages for the Injury." "It is resolved, by the Lords Spiritual and Temporal in Parliament assembled, 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 in Parliament, and to subject the Freeholder and other Electors to their arbitrary Will and Pleasure." 1 Omitted, on amendment, next day—January 26, 1704. |