DIE Lunæ, 27 Martii.
Domini tam Spirituales quam Temporales præsentes
Epus. Duresme, & Crew.
Epus. Bath & Well.
|Ds. Custos Magni Sigilli.
Comes Pembroke, Præses.
Dux Buckingham, C. P. S.
Dux Devonshire, Senescallus.
Dux St. Albans.
Comes Carlisle, Marescallus.
Comes Jersey, Camerarius.
Ds. North & Grey.
Ds. Grey W.
The House being moved, "To put off the being in
a Committee of the whole House upon the Bill, intituled, An Act for granting to Her Majesty an additional Subsidy of Tonnage and Poundage for Three
Years; and for laying a further Duty upon French
Wines condemned as lawful Prize, and for ascertaining the Values of unrated Goods imported from
The East Indias; as ordered:"
The Question was put, "Whether this House shall
be now put into a Committee upon the said
Bill, as ordered?"
It was Resolved in the Negative.
ORDERED, That this House shall be put into a Committee upon the said Bill on Thursday next, at One
Ashby versus White & al. in Error:
The Lord Viscount Townshend made a Report from
the Lords Committees appointed to draw up the State
of the Case upon the Writ of Error lately depending
in this House, wherein Mathew Ashby was Plaintiff, and
William White and others were Defendants.
Which, being read, was agreed to, with an Amendment; and is as followeth; (videlicet,)
Report of the State of the Case.
"Ashby against White & al.
"The Plaintiff in this Action declares, That, the
26th of December in the 12th Year of King William the Third, a Writ issued out of Chancery, directed to the Sheriff of Bucks; reciting, "That the
King had ordered a Parliament to be held at Westminster, on the Sixth of February following:" The
Writ commanded the Sheriff to cause to be elected
for the County Two Knights, for every City Two
Citizens, and for every Borough Two Burgesses;
which Writ was delivered to the Sheriff, who made
a Precept, in Writing, under the Seal of his Office,
directed to the Constables of the Borough of Aylsbury, commanding them to cause Two Burgesses of
the said Borough to be elected, &c.; which Precept
was delivered to the Defendants, to whom it did
belong to execute the same. By virtue of which
Writ and Precept, the Burgesses of that Borough,
being summoned, did assemble before the Defendants,
to elect Two Burgesses; and they being so assembled,
in order to make such Election, the Plaintiff, being
then a Burgess and Inhabitant of that Borough,
being duly qualified to give his Vote at that Election, was there ready, and offered his Vote to the
Defendants, for the Choice of Sir Thomas Lee Baronet and Simon Mayne Esquire, and the Defendants
were then required to receive and admit of his Vote.
The Defendants, being not ignorant of the Premises,
but contriving, and fraudulently and maliciously intending, to damnify the Plaintiff, and to defeat him
of that his Privilege, did hinder him from giving his
Vote, and did refuse to permit him to give his Vote;
so that the Two Burgesses were elected without any
Vote given by the Plaintiff, to his Damage, &c.
Upon Not Guilty pleaded, the Cause went down to
Trial; and a Verdict was given for the Plaintiff, and
Five Pounds Damages, and also Costs.
"It was moved in the Court of King's Bench, in
Arrest of Judgement, "That this Action did not lie;"
and that Point was argued by Counsel, and afterwards by the Court.
"The Lord Chief Justice Holt was of Opinion, "That
Judgement in this Case ought to be given for the
Plaintiff;" but Mr. Justice Powel, Mr. Justice Powys,
and Mr. Justice Gold, being of a different Opinion,
Judgement was entered for the Defendant: Whereupon the Plaintiff brought a Writ of Error in Parliament; and the Cause being argued, at the Bar of
the House of Lords, by Counsel, and Ten of the
Judges who were present in the House being heard,
and the Matter fully debated by the Lords, the House
was of Opinion, "That the Judgement given in the
King's Bench was erroneous; and that the Plaintiff
has a good Cause of Action, and ought to have
"To maintain this Opinion, these Three Positions
were laid down:
"1. That the Plaintiff, as a Burgess of this Borough, had a legal Right to give his Vote for
the Election of Parliament Burgesses.
"2. That, as a necessary Consequence thereof,
and an Incident inseparable to that Right,
he must have a Remedy to assert and maintain it.
"3. That this is the proper Remedy, which the
Plaintiff hath pursued; being supported by
the Grounds and Principles of the ancient
Common Law of England.
"To make good the First Position, "That the Plaintiff has a legal Right to give his Vote at the Election
of Burgesses for this Borough;" it was said, "That it
is well known, the House of Commons consists of
Knights, Citizens, and Burgesses."
"The Knights of Shires represent all the Freeholders of the Counties. Anciently, every the least
Freeholder had as much Right to give his Suffrage,
as the greatest Owner of Lands in the County. This
Right was a Part of his Freehold, and inherent in his
Person by reason thereof, and to which he had as
good a Title as to receive the natural Profits of his
Soil. This appears by the Statute of 8 H. VI. Cap.
7; which recites the great Inconvenience which did
arise in the Election of Knights of the Shires, by
Men that were of small Substance, who pretended
to have an equal Right with Knights and Esquires
of the same County; therefore that Right was
abridged, and confined only to such Freeholders as
had Forty Shillings per Annum: But thereby it appears, that the Right which a Freeholder hath to
vote, in the Election for Knights of the Shire, is an
original and fundamental Right, belonging to him as
he is a Freeholder.
"The Second and Third Sort of Men, which compose the great Representation of the People of England, are Citizens and Burgesses; who though they
differ in Name, yet are in Essence and Substance the
same; for every City is a Borough, and as such sends
Members to Parliament.
"There are Two Sorts of Boroughs; the one more
ancient, the other more modern.
"Of the First Sort are the most ancient Towns of
England, whose Lands are held in Burgage; and, by
reason thereof, had the Right and Privilege annexed to their Estates, of sending Burgesses to Parliament.
"The Second Sort are those Cities and Boroughs
that have a Right by Prescription, Time immemorial,
or by Charter within Time of Memory, to choose Burgesses for the Parliament: Both these are upon
several Foundations; the one, as belonging to their
Burgages; the other, as belonging to their Corporations: The First is a real Right, belonging to their
Houses and Lands; the other is a Personal Right,
belonging to their Body Politic.
"As for the First, it is sufficiently described in Littleton's Tenures, Sect. 162, 163, 164. A Tenure in
Burgage is a Tenure in Soccage, and is called a
Tenure in Burgage, because these are the most ancient Towns in England; and from thence came the
Burgesses to Parliament: And they who have this
Privilege, have it as belonging to their Estates or
"The other Right of choosing Parliament Burgesses
is not annexed to any Freehold or Estate in Possession,
but vested in the Corporation of the Place; and is
created in this Manner; (videlicet,)
"When a Town was incorporated, a Grant was
either then or after made to the Body Politic, that
they shall have Two Burgesses for the Parliament, to
be chosen either by all the Freemen and Inhabitants
of the Place, or such a selected Number as is prescribed by the Charter.
"The Inheritance of this Privilege is in the whole
Corporation aggregate; but the Benefit, Possession,
and Exercise, is in the Persons of those who, by the
Constitutions of those Charters, are appointed to
"And in all Cases where a Corporation hath such
a Privilege, the Members thereof, in their private
Capacity, have the Benefit and Enjoyment thereof,
because the Corporation, as such, is not to be represented; for it is not necessary that it should have any
Estate; but, by being a Corporation, they have only
a Capacity to have Estates. Jones 165, Hyward, and
Fulcher. For as the Citizens and Freemen of a Place
are incorporated for the better Government of those
of the Place; so is this Privilege of having Burgesses
given for the Advantage of the particular Members
thereof, whose Estates are to be bound by the Acts
of their Representatives.
46 Ed. III. M 4. Dorso, &c.
"And therefore the Wages of Citizens and Burgesses were always levied, not upon the Estates or
Goods of the Corporation, but upon the Goods and
Estates of the Members thereof.
"It appears, by other Instances, that it is usual and
proper for Corporations to have Interests granted to
them, which enure to the Advantage of the Members in their private Capacities. Moore 832, Sir
Thomas Waller versus Hanger. The King granted to
the Mayor and Citizens of London, "That no Prisage
be taken and paid for Wines, of the Citizens and
Freemen of London." This enures to the Benefit of
every Citizen and Freeman of London for his own
Wines, in which the Corporation of the City hath
"The same Thing appears by the Case of Waller
and Spateman, I Saund. 343, and by the Case of
Meller and Walker. These Instances make it sufficiently appear, that though the Inheritance of this
Franchise be in the Body Corporate, yet it is for the
Benefit of the particular Members thereof; and it is
certainly a great Advantage for the Men or Inhabitants of a Place, to choose Persons to represent them
in Parliament, who thereby will have an Opportunity, and be under an Obligation, to represent their
Grievances, and advance their Profit.
"Of this Opinion have Two Parliaments been, as
appears by Two several Acts; the one, 34 and 35
H. VIII. Cap. 13; the other, 25 Car. II. Cap. 9.
The First is an Act for making Knights and Burgesses
within the County and City of Chester, which begins
in this Manner: "In humble Wise shew to Your
Majesty, the Inhabitants of Your Grace's County Palatine of Chester, that they being excluded and separated from Your High Court of Parliament to have
any Burgesses within the said Court, by reason
whereof the Inhabitants have hitherto sustained manifold Losses and Damages, as well in their Lands
as Goods and Bodies;" therefore it was Enacted,
"That they should have Knights for the County, and
Citizens for the City of Chester:" The other Act,
which constitutes Knights and Burgesses for the County Palatine and City of Durham, recites, "That the
Inhabitants thereof, hitherto, had not that Liberty
and Privilege of electing and sending Knights and
Burgesses to the High Court of Parliament."
"The Application of these Two Acts is very plain:
The First saith, "To be excluded from sending
Knights and Burgesses to Parliament, is a Damage to
Lands, Goods, and Body." The other saith, "That
it is a Liberty and Privilege to send them."
"Thus the Right of Election is explained, and
shewed to be a legal Right.
"That, of electing Knights of Shires belonging to,
and inherent in, the Freehold.
"The other, of electing Burgesses, is belonging, in
some Cities and Towns, to the Real Estates of the Inhabitants; and, in others, is vested in the Corporation, for the Benefit of the particular Members, who
are the Electors; the having of which is a great Benefit and Advantage to the People thereof, and will
prevent great Loss and Damage, that otherwise would
"2. It follows, that, in Consequence of this Right
or Privilege, the Possessors thereof must have a legal
Remedy to assert and maintain it.
"It was said, That there are many Rights, for which
a Man has no Remedy by the Common Law; as in
Case of a Legacy given, if it be not paid, the Party
cannot bring an Action for it. This is very true, but
not applicable to the present Purpose; for the Constitution of the English Government has wisely distributed to several Courts the Determination of proper
Causes; but has left no Subject, in any Case where
he is injured, without his adequate Remedy, if he will
go to the right Place for it. If a Man will seek for
a Remedy at Common Law for a Legacy, which by
our Constitution is to be recovered in the Ecclesiastical Court, it is his own Fault if he do not recover;
as it would be, if he should begin a Suit for Land in
the Court of Admiralty, or go for Equity to the
"But there is no such Notion in the Law of England
as a Right without a Remedy.
"He who loses or quits his Remedy, loses his
Right. If a Man has a Bond for Payment of One
Thousand Pounds, he has no Remedy to recover this
Money but by Action; therefore, if he releases all
Actions, he loses his Right to the Money, because he
has given away the Means to recover it. Coke's 6th
Rep. 58. Bridgeman's Case. If a Man purchases an
Advowson, and at the next Avoidance suffers an
Usurpation, and brings not the Quare Impedit in Time,
he hath lost all Manner of Remedy, and in Consequence his Right, to which neither he nor his Heirs
can ever be restored.
"Would it not look very strange, in a Constitution
so formed that the Commons of England have an
undoubted Share in the Legislative Authority, which
is to be exercised by their Representatives, chosen
by themselves, in which every Freeholder of Forty
Shillings per Annum hath a Right to vote for the
County, every Citizen for a City, and every Burgess
for a Borough; that if the Sheriff, or other Officer,
who is to cause the Election to be duly made, shall
hinder or deprive any of those Electors of his Right,
the Person injured shall have no Remedy, though
the Injury be done to such a Right, upon the Security whereof the Lives, Liberty, and Property, of all
the People of England so much depend?
"That the Defendants in this Case, by hindering
the Plaintiff from voting, have done ill, cannot be
denied; because they have excluded One, who has a
Right, from his Vote. Then, if the Law doth not
allow an Action to the Party injured, it tolerates the
Injury; which is absurd to say is tolerable, in any
"There was much Weight laid upon the Case of
Ford and Hoskyns, 2 Cro. 388, Mo. 842; which is,
"That where, by the Custom of the Manor, every.
Tenant for Life might name his Successor for his Life,
whom the Lord is to admit; if One be named, and the
Lord refuses to admit him, it was held an Action on
the Case would not lie, because the Nominee had no
Right without being admitted." But the Reason given
for that Opinion, shews it has no Relation to this Case;
for the Plaintiff's Right of voting is vested in him,
without any previous Admittance; therefore, though
it should be Law, that no Action will lie for not giving
a Right, yet certainly an Action must lie, for defrauding
and hindering a Man to enjoy a Right that he hath.
"When any Statute requires an Act to be done for
the Benefit of another, or to forbear the doing of
an Act which may be to his Injury, though no Action
be given in express Terms by that Statute for the
Omission or Commission; the general Rule of Law in
all such Cases is, That the Party injured shall have an
Action. Coke, 10 Rep. 75, the Case of The Marshalsea,
12 Rep. 100. Co. Mag. Car. 118. This is a Maxim
allowed and approved of in all Ages.
"There is the same Reason, where the Common Law
gives a Right, or prohibits doing a Wrong: But, in
this Case, an Act of Parliament is not wanting; for
the Stat. of West. 1. Cap. 5. enacts, "That Elections
shall be free." If he who hath a Right to vote be
hindered by him who is to take his Vote, or to
manage the Election, that Election is not free; such
an Impediment is a manifest Violation of that Statute,
as well as an Injury to the Party whose Vote is refused. This Stat. of West. 1. shews what Opinion the
King and Parliament had of the great Consequence
it was to the whole Realm, that People should have
their Freedom in Choice. And though the Common
Law was the same before, as appears even by the
Statute itself, the Words whereof are, "Elections
ought to be free;" yet it was adjudged necessary to
add the Sanction of an Act of Parliament thereunto:
"The King commandeth, upon great Forfeiture, that
no great Man, or other, by Force of Arms, or by Malice or Menaces, shall disturb any to make free Election." The Defendants did not by Force of Arms
drive the Plaintiff away from the Election, nor by
Menaces deter him; but they did maliciously hinder
him (so it is charged by the Plaintiff in the Declaration, and it is found by the Jury to be done by Fraud
and Malice); and so the Defendants are Offenders
within the very Words of the Statute of West. 1.
Where the Law is so clear as to the Right, and the Duty
so strictly enjoined by Act of Parliament to be observed, it seems a great Presumption to make it but
a light Thing.
"It being apparent that the Plaintiff had a Right, and
that the Defendants have done him Wrong; and
that, by Consequence of Law, he must have some
Remedy to vindicate his Right and to repair the
"3. The Third Thing to be shewn is, That the
Remedy the Plaintiff, pursued by bringing this Action,
is the proper Remedy allowed by the ancient Law
"This Action is that, which is called in the Law,
"An Action upon the Case;" that is, founded upon
the particular Case of the Party injured.
"The Law, in all Cases of Wrong and Injury, hath
provided proper and adequate Remedies.
"1. When a Man is injured in his Person, by being
beaten or wounded, the Law gives him an Action
of Trespass, Assault, and Battery; if by being imprisoned, an Action of False Imprisonment.
"2. If his Goods be taken away, or Trespass done
unto his House or Lands, an Action of Trespass
lies, to repair him in Damages.
"3. If a Man hath a Franchise, and is hindered
in the Enjoyment thereof, the proper Remedy
is by an Action upon the Case.
"The Plaintiff in this Case hath a Privilege and a
Franchise; and the Defendants have disturbed him in
the Enjoyment thereof in the most essential Part,
which is, his Right of voting.
"4. Where any Officer, or Minister of Justice entrusted with the Execution of the Process of Law, does
an Injury, an Action of the Case lies against him.
If the Sheriff will not execute a Writ, by arresting the
Party Defendant, or taking his Goods, the Plaintiff
shall have his Action upon the Case, because he refused to do his Duty, to the Plaintiff's Damage.
"The Precept which the Defendants received from
the Sheriff, in this Case; was founded upon the King's
Writ; and the Defendants are commanded to cause
Two Burgesses to be elected for the Borough of Aylsbury, of which they are to give Notice; and to admit
every One, who hath a Vote, to make Use of it; if
they refuse any Man to vote who hath a Right, they
act contrary to the Duty of their Office.
"It was objected, "That it did not appear that the
Persons for whom the Plaintiff voted were elected, nor
that they would have been elected if his Vote had
"The Answer is, "That it is not material, whether
the Person for whom the Plaintiff voted was chosen,
or would have been chosen if his Vote had been
taken: His Right and Privilege is, to give his Suffrage,
to be a Party in the Election; if he be excluded from
it, he is wronged, though the Persons for whom he
would have given his Vote were elected.
"The Right of Action must accrue upon the Refusal
of the Vote, and is never to be made better or worse
by the Return, which is a Matter ex post facto."
"It was said, in the arguing this Case, "That the
Plaintiff had no Damage, or at least that there was no
such Injury or Damage done to him as would support
"The Answer to that is, "That the Law will never
imagine any such Thing as Injuria sine Damno; every
Injury imports Damage in the Nature of it. If a Man
pick a Lock, and come into an House without the
Consent of the Owner, perhaps there is no Pecuniary
Damage done to the Value of a Farthing, yet the
Owner shall have an Action against him, and recover
Damages for the Invasion of his Possession and Property. There are many Cases of the same Nature,
which have been determined upon this Ground. In the
Case between Turner and Starling, 24 Car. II. in Com.
Ban. and afterwards in Ban. Reg. the Plaintiff
Turner, amongst others, stood to be One of the Bridgemasters of London Bridge, which Officer is to be
elected by a Common Hall of the City of London.
The Question was, "Who had the greatest Number
of Voices?" The Plaintiff demanded the Poll; and
the Defendant, being then Lord Mayor of London, refused it. It was adjudged, "That the Action was maintainable for refusing the Poll, because every Candidate
has a Right to have it; and though perhaps, if the
Poll had been granted to the Plaintiff in that Action,
it might have been against him, yet the Denial of
that Right was a good Ground of Action."
"Upon the same Reason, the Case 29 E. III. 18. was
determined; and also the Case of Hunt and Dowman,
2 Car. 478. 2 Rolls, 21.
"It is apparent, by what has been said, that the
Plaintiff in this present Case hath been injured, in
being denied his Right; and no good Reason can be
assigned, that so affects this Case, as to make it differ
from other Cases; though to that Purpose several
Matters were urged and insisted upon. As, First,
"That this would be the Occasion of many Actions."
"If that be so, there is the greater Reason to support
this Action, to punish the many Wrongs that have
been done, which will prevent any more of the like
Nature. If Offences multiply, Remedies against them
ought to be advanced. If other Officers of Boroughs
have been, or shall be, guilty of the like Misfeazances
as these Defendants have been, it is fit they should
be liable, as these Defendants are, to make Satisfaction.
If One Man be beaten and imprisoned, is it any Objection against his having an Action, because all others
who shall be as evilly treated as he hath been shall
have the like Remedies? The only Means to hinder
Corruptions, that will soon become frequent among
those Officers of Boroughs and Corporations, is to
let them see that they are obnoxious to the Law, and
that their Purses must make Satisfaction to all whom
they shall injure in this Manner. It is true, if One
Act which tends to the Injury of many Persons be
committed, no One Person injured shall be allowed
to have an Action, because the rest might have the
same, Co. 5 Rep. 72. Williams's Case, 3 Cr. 664.
Fincux versus Hovenden, the Case of not saying
Divine Service in a Chapel of a Manor to the Lord
and Tenants, or for stopping of a Lane or Common
Way, because the Defendant for One Act would have
a Multitude of Suits against him; the Injury alike
affecting a Multitude. But the Refusal of every Vote
is a distinct Act. The Party grieved, whose Vote was
denied, can only bring an Action for the Refusal; the
others, whose Votes were admitted, are not concerned.
And if an Officer denies an Hundred who have a
Right, these are a Hundred several Wrongs for
which he ought to be liable to as many several Actions: As, if a Man will make it his Business to fling
Stones, and shall hit a Hundred several Men, he must
make Satisfaction to them all. But surely this is so
far from being an Objection, that it is a strong Argument to support the Action; for, if the Mayor or
Bailiff of a Borough shall have Liberty to refuse Men
who have Votes, he can easily make a Majority to
vote on his Side; and then what will become of
Elections? The Officer will return him that is elected
by a Majority of his own making, by excluding the
Votes of others that have a Right.
"This would encourage Officers to be partial and
corrupt, and to return divers Persons to be elected in
that Manner, who at least must have Possession of
Seats in the House of Commons for some Time, and
give Voices in the making of Laws and imposing of
Taxes, until the Right of Election be determined.
"And though, upon hearing the Cause in the House
of Commons, this Matter may be set right at last;
yet, what can compensate for the Mischief that may
be done to the Kingdom in the mean Time, by the
Votes of those who shall be partially returned, and
are not the Representatives of the People of the
Place who are to choose them?
"Besides, the fore-mentioned Rule against multiplying
Actions is confined to such Acts where there is another Remedy to be had; but where there is no other
Remedy but an Action, the Wrong-doer must answer
to so many several Actions as there are Persons injured.
Suppose a Man will plough up the Ground in which
a Hundred Persons have Common, he must answer
all their Actions. If the Inhabitants of a Town have
a Common Watering-place, and a Stranger stops the
Current, whereby the Water is diverted; every Inhabitant shall have his Action, because there is no
"The injured Plaintiff, in this Case, has no other
Remedy besides this Action: No Indictment lies, because it is a Personal Wrong to the Party, and no
Wrong to the Public; but only in the Consequence
of it, as an evil Example, which tends to the Encouragement of other such Officers to commit the
like Transgressions. Nor is there any Danger to an
honest Officer, that means to do his Duty; for where
there is a real Doubt touching the Party's Right of
voting, and the Officer makes Use of the best Means
to be informed, and it is plain his Mistake arose from
the Difficulty of the Case, and not from any malicious or partial Design; no Jury will find an Officer
guilty in such a Case, nor can any Court direct them
to do it, for it is the Fraud and the Malice that entitles
the Party to the Action. In this Case, the Defendants
knew the Plaintiff to be a Burgess, and yet fraudulently and maliciously hindered him from his Right
of voting; and Justice must require, that such an
obstinate and unjust ministerial Officer should not
escape with Indemnity.
"That the Officer is only ministerial in this Case,
and not a Judge, nor acting in a Judicial Capacity, is
most plain; his Business is only, to execute the Precept,
to assemble the Electors, to make the Election, by
receiving their Votes, computing their Numbers, declaring the Election, and returning the Persons elected.
The Sheriff, or other Officer of a Borough, is put to
no Difficulty in this Case, but what is absolutely
necessary in all Cases. If an Execution be against
a Man's Goods, the Sheriff must at his Peril take
Notice what Goods a Man has."
"Another Objection was made, in respect to the Novelty of the Action; it was said, "Never any such
Action was brought."
"In Answer to this Objection, it may be said, "That
probably there have not been many Occasions given
for bringing such Suits. It is to be hoped, that
very few have ever been so presumptuous, as to dare
to make an obstinate and malicious Refusal of an undisputed Vote. If the Case has happened before,
perhaps the Party, out of Consideration that only
small Damages were to be expected, might be discouraged, and think it better to acquiesce. And it
is probable, the ill-designing Officer would be at least
so cautious, as to refuse the Votes of such Persons
only, as he thought, by reason of the Meanness of
their Circumstances, were unable to vindicate their
Right. It is not every One that has such a true
English Spirit as the Plaintiff, who could not sit down
meanly under a Wrong done to him in One of the
most valuable Privileges of an Englishman. It is not
the Novelty of the Action that can be urged against
it, if it can be supported by the old Grounds and
Principles of Law: The Ground of Law is plain,
certain, and indeed universal, That where any Man is
injured in his Right, by being either hindered in or
deprived of the Enjoyment thereof, the Law gives
him an Action to repair himself.
"The Case of Hunt and Dowman, which was 16
Jac. I. A° Domini 1618, of an Action by the Landlord against the Tenant, for hindering him from
searching his House to see whether it was in Repair,
was never brought before that Time; and that of
Turner and Starling was not brought till 23 Car. II.
"The Law of England is not confined to particular
Precedents and Cases; but consists in the Reason of
them, which is much more extensive than the Circumstance of this or that Case. Ratio Legis est Anima
Legis ; et, Ubi eadem Ratio, ibi idem Jus, are known
"An Action against the Master of a Ship, for that
the Ship lying in the River of Thames was robbed,
was maintained upon the same Reason as against a
Common Carrier; yet such an Action was never known
until 23 Car. II. in the Case of Moss and Slue, I
Cr. 15. Jones 93. Palmer 313, Smith and Cranshaw,
an Action of the Case was brought, for maliciously,
and without any probable Cause, indicting the Plaintiff of High Treason. This was the First Action that
was ever brought in such a Case; and yet it was
adjudged maintainable, upon the same Reason as upon
a malicious Indictment of Felony. 2 Levinz, 250,
Heming and Beal, an Action of the Case was brought
against the Mayor of a Town, for refusing the Plaintiff
to give his vote at the Choice of a new Mayor; and
there was not any Scruple made but that the Action
did well lie, though that was the First Precedent.
"It is granted, that if a Freeman, who hath a
Right to give his Vote for the Choice of a Mayor, be
denied his Vote, he may maintain an Action upon
"There can be no Difference between that Case
and this, unless it can be supposed that the Right to
vote at the Election of a Mayor is of higher Estimation in the Eye of the Law, than a Right to choose
Members to serve in the High Court of Parliament.
"This Action is not only founded upon the Reason of
the Common Law, but it hath the Sanction of an Act
of Parliament; videlicet, the Statute of West. 2. Cap.
24; which says, "That whensoever from thenceforth it shall fortune in Chancery, that in One Case a
Writ is found, and in a like Case falling under like
Right, and wanting like Remedy, none is found; the
Clerks of the Chancery shall agree in making a Writ,
and, by Consent of Men learned in the Law, a Writ
shall be made; lest it should happen hereafter, that
the King's Court might fail in ministering Justice to
"The Objection most insisted on was, "That this is a
Matter relating to Parliaments, and ought to be determined by the Law and Custom of Parliaments; and
for that Reason, is not cognizable in the Queen's
"In Answer to this Objection, it was shewed,
First, that this Case is proper, in the Nature of it,
to be determined in the Queen's Court.
"2. There is no other Provision made for the Plaintiff, who is highly injured in his Right, but by
bringing his Action in the Courts of Law, that
have Power to determine of Men's Lives, Liberties, and Properties.
"First, the Case, in the Nature of it, is proper for the
Queen's Courts. This will be apparent, if the several
Rights of electing Members to serve in the House of
Commons be considered.
"The Right of choosing Knights of the Shire is
founded upon the Elector's Freehold. Matters of Freehold are determinable originally and primarily in the
Queen's Courts, by the Rules and Methods of the
Common Law, by a Jury sworn, and by the Evidence
of Witnesses upon Oath; and as the Right of the
Freehold is determinable there, so are all Benefits,
Rights, and Advantages, depending thereupon, or
"If a Freeholder's Voice be refused by a Sheriff,
what is it should hinder the Queen's Court from
trying and determining this Matter, like all other
Questions of Freehold, by a Jury, upon the Oaths of
Witnesses, or Evidence in Writing, whether the
Plaintiff that supposes himself wronged was a Freeholder or not?
"The Right of choosing Citizens and Burgesses
depends either upon Prescription or Custom, or upon
Letters Patents. These are also primarily and originally
cognizable by the Queen's Courts: Customs and Prescriptions are triable by the Country; that is, by a
Jury of Twelve Men of that County, where the
Custom is alledged to be. This is known Law in all
Cases without Exception.
"And as to Letters Patents, if pleaded specially, the
Court must judge of them; and if either Party conceives the Court hath judged amiss, he hath his Remedy by Writ of Error, till at last it comes where
it will receive a final Judgement. So that every Right
which an Elector can have is proper for the Determination of the Queen's Courts. There are various
Ways of Election in different Boroughs; but they all
depend upon Charters or Customs, and therefore are
not more difficult to determine than other Franchises
or Liberties, which depend upon the same Foundations."
"And whereas it was said, "That by a late Act of
Parliament in the 7 and 8 W. III. the last Determination
of the House of Commons concerning the Right of
Elections is to be pursued;" it amounts to no more than
this, that the Officer who is to make the Return, is
to take Care to return him to be elected, who is chosen
by a Majority of Electors, qualified according to the
last Determination of the House of Commons: If he
does so, he incurs no Danger, he is not liable to an
Action. But the House of Commons itself is not bound
by that Rule. Now suppose the Officer will deny a
Man a Vote, who, according to the last Determination
there, ought to have One, and this the Officer did
well know; what is it hinders him that had Right
according to that Determination from bringing his
Action against the Officer who hath injured him? It
cannot be the Act of Parliament; for the Queen's
Courts are by Law the First and original Expounders of the Statutes of this Realm.
"But Secondly, there is no other Court or Jurisdiction appointed by the Law of England, for determining the Right and repairing this Injury, but the
Courts of Westminster.
"It is a general Rule, "That whoever impeaches the
Jurisdiction of One Court, must entitle some other
Court to have a Jurisdiction of that Cause;" but that
is impossible to be done in this Case.
"It was said, "That the Determination of the Right
of Elections of Members, to serve in Parliament, is
the proper Business of the House of Commons, which
they would be always very jealous of, and this Jurisdiction of theirs is uncontested; that they exercise a
great Power in that Matter, for they oblige the Officer
to alter his Return according to their Judgement;
and that they cannot judge of the Right of Election,
without determining the Right of the Electors; and
if Electors were at Liberty to prosecute Suits, touching
their Right of giving Voices, in other Courts, there
might be different Judgements, which would make
Confusion, and be dishonourable to the House of
Commons; and that therefore such an Action was a
Breach of their Privilege."
"As to these Objections, several Answers were given.
"It was admitted, that the House of Commons exercise a Jurisdiction in determining the Right of Election of their own Members; and though the Time
may be assigned when that Jurisdiction was exercised
in another Place, yet there has been a Usage long
enough to hinder that Point from being drawn in
Question, especially after the Sanction given to it by the
Act made in the Seventh Year of King William's Reign.
"But though it be true, that the Merit of the
Election of a Member be a proper Subject for the
House of Commons to judge of, because they only
can give the proper and most effectual Remedy, by
excluding the Usurper, and giving the Possession of
the Place to him who has the Right; yet there is a
great Difference between the Right of the Electors, and
the Right of the Elected: The One is a temporary
Right to a Place in Parliament pro hac vice; the other
is a Freehold, or a Franchise. Who has a Right to sit
in the House of Commons, may be properly cognizable there; but who has a Right to choose, is a
Matter originally established, even before there is a
Parliament; a Man has a Right to his Freehold by
the Common Law. And the Law having annexed his
Right of voting to his Freehold, it is of the Nature
of his Freehold, and must depend upon it. The same
Law that gives him his Right, must defend it for him;
and any other Power, that will pretend to take away
his Right of voting, may as well pretend to take away
the Freehold upon which it depends.
"To say the Plaintiff, in this Case, may apply to the
House of Commons, is not sufficient, unless proved.
Never any single Elector, of any County or Borough,
did complain to the House of Commons, that he was
debarred of his Vote, and desire them to determine his
"Sometimes some of those who have Right to choose,
in a Borough, have complained, that Persons have
been returned by the Officer who were not duly
elected, as being an Injury done to the whole Community of the Borough, to have a Person without
Right sit there as their Representative; but this is
only to bring the Merits of the Election in Question,
of which that House hath Cognizance; and therefore, as incident and necessary thereto, they may try
the Right of Electors, which of them, by Custom or
Letters Patents, have Voices. But this is no more than
all Courts have. In the Ecclesiastical Courts, which
proceed according to the Civil Law, if the Suit be
originally proper for their Jurisdiction, they have
Power to determine Things foreign thereto; as, if
Letters Patents or Conveyances of Lands come in
Question, though primarily and originally determinable in the Courts of Common Law. Matrimony is
properly under the Jurisdiction of the Ecclesiastical
Court; and if a Question arises between the supposed
married Parties in their Life-time, or upon Dower
or Bastardy, it shall be tried and determined there.
But when an Action is brought by a Man and Woman,
supposing her to be his Wife, if the Defendant pleads
in Abatement, that they were not married, it shall be
tried by a Jury where the Action was brought. So if
any one's Title to Lands depends on a Marriage; if
an Action be brought to try the Title, the Marriage
may be determined by a Jury. This shews plainly,
that, because the House of Commons may determine
who are Electors, and who are not, incidentally, and so
far only as it is necessary to try the Right of the
Election, it doth not follow, that, when the Right of
Election is not in Question, they can try the Right
of an Elector.
"When the Right of the Candidate is examined in
the House of Commons, it is in order to determine
which Person hath the Right to join with them in
the making of Laws, and other public Services;
and if, in order to the determining this Point, the
House of Commons must judge of the Electors, they
do it only to this Purpose. But the Courts of Law
judge of an Elector's Right wholly to another End;
as it is a legal Right to assert that, and to repair in
Damages the Elector, who is wrongfully hindered
from exercising it. This is what the House of Commons cannot do, nor to this Day was there ever any
Application made to them to do it; and, it may be
reasonably supposed, they will not now begin to take
it upon them.
"It commonly takes up a great Part of the Time of
a Session, to determine the Cases of Elections, before
they can be sure the House is composed of such as
have a Right to sit; but, should they once pretend to
take Cognizance of particular Mens Complaints, in
order to decide the Rights of Electors, it would be
impossible for them to have any Leisure to employ
themselves about the ardua et urgentia Negotia Regni,
the Safety and Defence of the Kingdom, for which
the Writ calls them together. It is granted, that the
deciding of the Right of Electors is a Matter of
great Weight, and in Consequence concerns the Lives
and Liberties of the Subjects of England: But the
Law hath provided a proper Remedy to be pursued
in the ordinary Methods of Justice, a Remedy that is
adequate, where Damages may be recovered. The
Plaintiff, in this Case, knew he had a Right by Law
to give his Vote; and when he found himself deprived
of it, he resorts to the Law for his Remedy: And it
is probable most of the Electors of England will be
of his Mind, and think it for their Interest to resort to the Courts of Westminster Hall, for asserting
this great Right of theirs upon Occasion, where they
may prove their Case by Witnesses upon Oath, and
have their Damages assessed by their Countrymen duly
sworn; nothing of which can be done, if they are to
seek for a Remedy in the House of Commons.
"Where a Man is injured, if he cannot bring his
Action to recover the Thing itself he hath lost by
the Injury, the Law will always give him Damages in
"It was said, in the Debate of this Case, "That Instances were to be given, where the Party injured did
not recover Damages; as in Case where One has a
Right of Presentation, and is disturbed, he could not
recover Damages at the Common Law; and that was resembled to the Right of an Elector, which was said to
be only a Right of Nomination." But the Answer to
this Objection is plain. "There the Law gives the Party
a Remedy to recover the Presentation, the Thing
that was taken from him, to which he is restored by
the Judgement. But in the present Case, there is no
Possibility for the Plaintiff to recover the Thing he
has lost, which was his Vote at the Election; for that
Election is over, and can never be had again; so that
the Plaintiff cannot possibly have any Reparation, unless it be in Damages; and this Sort of Reparation
the House of Commons cannot give him.
"If the Plaintiff, and all other injured Electors, should
be obliged to go to the House of Commons for Satisfaction; it may be reasonably supposed, the Parliament may be dissolved, before it could come to his
Turn to have his Cause heard. What would be the
Consequence of this? If the Plaintiff must be thereby
without Remedy, would not the Law be notoriously
defective? And yet none will say, that another Parliament did ever take Cognizance of any Injury done
upon Account of an Election to a preceding Parliament. But suppose the next House of Commons will
determine it, what endless Work would the House of
Commons be engaged in! For probably the ensuing
Election would make as many new Questions as that
which went before, and which the Parliament did not
live long enough to dispatch.
"As to what was objected, "That the same Matter
may come in Question in the House of Commons,
where it may be determined that this Plaintiff hath
no Right, so that great Confusion would arise from different Judgements in different Courts;" it is no more
than what may happen every Day in Westminster Hall,
where the several Courts may be of various Opinions
upon the same Question, and yet no Hurt is done to
the Public; nay this is no more than happens often
in the House of Commons, where the Right of Election, in the same Borough, is decided different Ways
in different Parliaments, and they do not think themselves dishonoured by it.
"This Contrariety of Judgement can never appear;
for the House of Commons never gives a direct Judgement on this or that individual Elector's Right: The
Voting is either upon a general Question of the Right
of the Competitors, or where the Right of Election
in the Borough is placed; whether all Inhabitants, or
those under a particular Qualification, or whether the
whole Commonalty, or a selected Number, have
Voices; and all these are but Ways and Means to determine the Right of Election.
"If the House of Commons judge of the Right of
a particular Elector at any Time, it is only pro ista
vice, so far as it relates to the particular Case before
them: But surely the House never thought the Elector's Freehold finally concluded thereby, because he is
no Party to that Suit; his Right came not there in
Question originally; but consequentially, in a Cause litigated between other Persons, to which he is no Party;
and it cannot be agreeable to right Reason, or the
Principles of Law, for a Man's Right to be conclusively determined in a Cause between other Parties.
"And, after all, where is the Damage to the Public,
if there should be a Variety in the Determination of
the House of Commons and the Courts of Westminster?
It is not impossible in the Nature of Things; for the
Courts of Law have great Advantages, which the
House of Commons want: They want the Help of
Juries, and the Power of giving Oaths; and they
ought not to be displeased with their Electors, if they
resort to Courts provided with these Powers, for asserting the Right of Election; especially when it is considered, that the Person, whose Pretensions the House
of Commons approves of, will sit there, which is all
they are concerned in. They are the Elected; and it
would be strange, if that should entitle them to challenge the sole Power of deciding the Rights of their
Electors, which is indeed to choose their Electors."
"It was urged, as a great Argument against the maintaining this Action, "That it had been adjudged, in
the Case of Mr. Onslow, in the 33th of King Charles the
Second, That no Action did lie at Common Law, for a
false Return of a Member to sit in Parliament; and
that, in the Case of Barnadiston and Soames, it was
adjudged, the Candidate could not maintain an Action
against the Sheriff for a Double Return; and if the
Person, elected to serve in Parliament, cannot maintain an Action against the Officer, it was urged a fortiori, that the Person electing, who perhaps is but a
Cobler, ought not to be allowed to have such an Action."
"It was answered, "That the Law of England has
no Respect to Persons; if an Elector be a Cobler, he
is a Freeman of England, and has that great Privilege
belonging to him, to be represented in Parliament:
It was remembered, with what great Variety of Opinion, among the Judges, that Case of Sir Sam. Barnadiston was determined, and what an Alarm that Judgement gave to the House of Commons, to such a Degree,
that in the Session of Parliament, 1679, a Committee
was appointed to inquire into it, as a Grievance; and
it was observed, that the great Design of the Act of
Parliament made in the Seventh Year of the late
King (which was often mentioned in the Debate of
this Case, to other Purposes) was, to cure the many
Inconveniencies arising from that Judgement, and the
Judgement in Mr. Onslow's Case, which only followed
Barnadiston's, and was judged upon the Authority of
it. But there is no Resemblance between those Cases
and the Case of an Elector. In Barnadiston's Case,
of a Double Return of Members, the Reason on
which the Judgement was founded was, thas a Double Return was no Return which the Law took Notice of, but was only allowed of by the Custom of
Parliament: When an Officer, who doubts, makes a
Double Return, he submits to the Judgement of the
House of Commons; and if that House admits of such
a Return, as they had often done, it would be hard
the Law should subject a Man to an Action, for submitting a Matter of Fact (the Truth of which the
Officer doubts) to the Determination of those who
have a Jurisdiction of the Matter, and approve the
Manner of such a Return.
"In the other Case, of a false Return of a Member,
several Reasons may be assigned for the Judgement,
which are not applicable to the Case of an Elector:
Perhaps it might be, because such a Return is a
manifest Injury to every One of the Electors
(though principally to the Candidate); and therefore
it might fall within the Reason of Williams's Case
abovementioned, that every Elector might sue him,
and therefore none of them severally can maintain
the Action. But there is another Reason very obvious, because the Candidate has a proper Remedy
to recover his Place, from which he is excluded by
the false Return: The Right of Election is cognizable
in the House of Commons; there he will recover his
Seat in Parliament, which is what the Law has the
principal Regard to; and there is no Reason he should
have another Remedy elsewhere.
"It is absurd to say, the Electors Right of choosing
is founded upon the Law and Custom of Parliament;
it is an original Right, Part of the Constitution of
the Kingdom, as much as a Parliament is, and from
whence the Persons elected to serve in Parliament
do derive their Authority, and can have no other but
that which is given to them by those that have the
original Right to choose them. This doth not touch the
Jurisdiction claimed and exercised by the House of
Commons, to try the Right of the Election of their
own Members; they who pretend to be admitted to
sit there, ought to make out their Right to the House;
but there is no Ground to infer from thence, that the
House hath Power to try or determine the Right of
other Persons, who are not their Members, and do not
pretend to any Place amongst them.
"It was said, "That, if this Action were allowed,
there would be a Way found out for the Lords to let
themselves into, to judge of the Right of the Members of the House of Commons to sit there, and, by
Parity of Reason, to judge of their other Privileges,
as if Actions were brought for Words spoken in the
House of Commons, or other Things happening in
that House; which would be of ill Consequence."
"But it was said, in the First Place, "That this Objection was little applicable to the present Case, because it has no Relation to the sitting of that Member, for whom the Elector, who brings his Action,
gave his Vote.
"And, Secondly, if Things are so ordered by the
Constitution of the English Government, that the ultimate Resort in Point of Judicature is lodged with the
Lords; let the Case concern what it will, when it is
brought before them by Writ of Error, they are
bound to give Judgement one Way or other." And
as to the particular Instance mentioned, relating to
Words spoken in the House of Commons, it was said,
"There never was a greater Attempt made upon
Liberty of Speech in the House of Commons, than
by the Information brought in the King's Bench,
5 Car. I. against Sir John Elliot, Denzil Holles, and
Benjamine Valentine Esquires, for Words spoken in
the House of Commons: They pleaded to the Jurisdiction of the Court, as being for what was done in
Parliament, and therefore ought not to be examined
or punished elsewhere; but Judgement was given
against them, and great Fines imposed upon them.
(Cro. Car. 181.) In the Parliament which met in
1640, these Proceedings were taken into Consideration with great Warmth; and, the 8th July 1641, it
was Resolved, in the House of Commons, "That the
exhibiting of that Information was a Breach of the
Privilege of Parliament, and that the over-ruling of
the Plea to the Jurisdiction of the Court, and the
Judgement, and all that followed thereupon, was
against the Law and Privilege of Parliament;" and
many other severe Votes were passed. Thus the Matter rested, till after the Restoration of King Charles
the Second. But, when Things grew to be settled,
and there was Leisure to consider of the Consequences
of former Proceedings, the House of Commons began to think, that those Votes were not to be depended upon, as a sufficient Security in a Case of so high
a Nature, since upon Liberty of Speech all Parliamentary Debates were founded, and they could not
think that great Privilege safe, while so solemn a
Judgement stood in Force: Therefore, in 1667, the
Consideration of this Matter took up a great Part of
the Session; and the best Expedient they could find
out was, First, to come to a Resolution among themselves, that the Judgement, given 5 Car. I. in that
Case, was an illegal Judgement, and against the Freedom and Privilege of Parliament; and then, to present this Resolution of theirs to the Lords, at a Conference; which was done 10 December 1667, and to desire their Concurrence. The next Day the Lords
concurred in the Resolution; and, at the same Time,
(which was the Thing aimed at and desired by the
House of Commons) the Lords ordered the Lord
Holles to bring a Writ of Error in Parliament, to the
End there might be a Judicial Determination of that
great Point; which was done accordingly; and, on
the 15th April 1668, that Cause coming to be
heard in Parliament, the Judgement, in the King's
Bench was reversed, to the great Satisfaction of the
House of Commons.
"So little did the House of Commons entertain Jealousies of this Kind, that they themselves resorted to
the Judicature of the Lords, in the Manner that has
been mentioned, upon so weighty an Occasion."
"It was objected, "That many Inconveniencies would
follow, if this Action were allowed;" but they were
very sparing in giving particular Instances of those Inconveniencies.
"But nothing is plainer than that, by the Plaintiff's
prevailing in this Action, great Inconveniencies will
be prevented, and the Subject's Right and Property
secured against the Partialities and Corruption of Officers, who are trusted in a Matter of so great Moment as the receiving and allowing their Suffrages
"This tends to encounter false Returns in the First
Approach; and to have just Returns, is all the House
of Commons ought to desire.
"How endless would the Inconveniencies be, if this
Action did not lie! How would Occasions of complaint be multiplied! The Officers, who had the Return, would become the Masters of Elections, and admit and reject Electors as they pleased, with Impunity; for, if the Electors are only to seek for a Remedy before the House of Commons, it would be a
Remedy worse than the Disease; the greatest Part of
their Cases would never be determined, for Want of
Time; and they who could get their Cases heard
could have no Amends, that is, no Damages given
them for Reparation of the Wrong; besides the Absurdity of having, for the most Part, the Parties to
the Injury, those who sit by a false Return, Parties
to the Judgement.
"So that, to deny this Action, is to deny the Benefit
of the Law, in a Matter of the most tender Concern
to an Englishman.
"To pretend it to be a Breach of Privilege of the
House of Commons, for an Elector to seek for Remedy at Law, if he be wrongfully excluded of his
Vote, is very strange.
"That certainly can never be esteemed a Privilege
of Parliament, that is incompatible with the Rights
of the People. Every Englishman is entitled to Reparation for the Injuries done to his Rights and Franchises, in the ordinary and common Methods of Justice,
where the Juries who try, and the Witnesses who give
Evidence, are to be upon their Oaths. Magna Charta,
Cap. 29, is very express: "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."
"By the lawful Judgement of the Peers, in the
Case of a Commoner, is meant by a Jury of lawful
Men, upon their Oaths.
"If One be injured in such a Manner as the Plaintiff in this Action hath been, no Man can say, that,
per Legem Terræ, by the Law of the Land, he can
have a Remedy for Satisfaction, and asserting his Right,
in the House of Commons. If there be any such Law,
it must be either Statute Law or Common Law. No
Statute gives him such a Remedy; nor doth the Common Law, because that is constant Usage for Time
immemorial; and there is not One Precedent can be
produced, that ever any Man, upon such an Occasion, did ever apply to the House of Commons for
"Upon the Fourteenth Day of January 1703, the
House of Lords reversed the Judgement; and gave
Judgement, That the Plaintiff should recover."
This State of the Case being read, and approved
of, the House came to the following Resolutions;
"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 to Parliament, and to subject the Freeholders and other Electors to their arbitrary Will
"It is Resolved, by the Lords Spiritual and Temporal
in Parliament assembled, That the 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 is Resolved, by the Lords Spiritual and Temporal in Parliament assembled, 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."
State of the Case to be printed:
"It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the Report, made
from the Lords Committees appointed to draw up
the State of the Case, upon the Writ of Error lately
depending in this House, wherein Mathew Ashby was
Plaintiff, and William White and others Defendants,
and the Resolutions made this Day relating thereunto,
shall be forthwith printed and published; and that the
Lords Committees who drew the said Report, or
any Three of them, do give Directions therein."
To be sent to the Sheriffs.
"It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the Right Honourable the Lord Keeper of the Great Seal of England do send to all the Sheriffs in the several Counties of England and Wales, the State of the Case, upon
the Writ of Error lately depending in the House of
Peers, wherein Mathew Ashby was Plaintiff, and William
White and others Defendants, with the Resolutions of
the House of Lords relating thereto; and also do order the several Sheriffs to communicate One of them
to each City and Borough within their Precincts; and
every Sheriff to have as many Reports sent him, as
shall be necessary for each City and Borough to have
Resolution of H. C. concerning Ld. Wharton's Appeal, and declaring the Law, voted unwarrantable, &c.:
"It is Resolved and Declared, by the Lords Spiritual and Temporal in Parliament assembled, That
the House of Commons, taking upon them, by their
Votes, to condemn a Judgement of the House of Lords,
given in a Cause depending before this House in the
last Session of Parliament, upon the Petition of Thomas
Lord Wharton, and to declare what the Law is, in
Contradiction to the Proceedings of the House of
Lords, is without Precedent, unwarrantable, and an
Usurpation of a Judicature to which they have no
Sort of Pretence."
To be printed.
"It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the Resolution
and Declaration made this Day, with respect to the
Votes of the House of Commons, in relation to the
Judgement of this House given upon the Petition of
Thomas Lord Wharton, the last Session of Parliament,
shall be forthwith printed and published."
Message from H. C. for Conference upon the Bill of Public Accompts.
A Message was brought from the House of Commons,
by Mr. Cesar and others:
To desire a Conference with their Lordships, upon
the Subject-matter of the Amendments made by this
House to the Bill, intituled, "An Act for the taking,
examining, and stating the Public Accompts of the
To which the House agreed.
Then the Commons were called in; and told, "That
the Lords agree to a Conference, as desired; and appoint it presently, in the Painted Chamber."
The Lords following were appointed Managers; (videlicet,)
Dux Buckingham, C. P. S.
Dux Devonshire, Senescallus.
Comes Lindsey, Magnus Camerarius.
Queen's Answer to Address, concerning Linen Manufacture in Ireland.
The Lord Treasurer acquainted the House, "That
he and the other Lords had attended Her Majesty,
with the Address of this House concerning the Linen
Manufacture in Ireland."
To which Her Majesty was pleased to return Answer
to this Effect:
"That Her Majesty will take a proper Time to recommend that Affair to the Parliament, in such Manner as desired; and that Her Majesty will also give
Encouragement to the planting of Hemp and Flax in
Ireland, for the Increase and Improvement of the
Manufacture of Hemp there."
Message from H. C. to remind the Lords of the Subsidy Bill.
A Message was brought from the House of Commons,
by Sir Humphry Mackworth and others:
To put this House in Mind of the Bill, intituled,
"An Act for granting to Her Majesty an additional
Subsidy of Tonnage and Poundage, for Three Years;
and for laying a further Duty upon French Wines
condemned as lawful Prize; and for ascertaining the
Values of unrated Goods imported from The East
Message to them, to remind them of the Bill for naturalizing the Protestant Subjects of Orange; and the Bill for manning the Navy.
Then, a Message was sent to the House of Commons,
by Mr. Rogers and Mr. Hiccocks:
To put them in Mind of the Bill, intituled, "An Act
for naturalizing the Protestant Subjects of the Principality of Orange, who have departed their Country
upon the Account of their Religion, and who are, or
shall, come to settle in this Kindom;" which tends so
much to the Encouragement of the Protestant Religion
And also to put them in Mind of the Bill, intituled,
"An Act for the more regular and speedy Manning of
the Royal Navy, and Increase of Seamen."
Whereas this Day was appointed, for the House to
be put into a Committee upon the Bill, intituled, "An
Act for punishing Mutiny, Desertion, and false Musters; and for better paying of the Army and Quarters, and for satisfying divers Arrears; and for a further Continuance of the Powers of the Five Commissioners for examining and determining the Accompts
of the Army:"
It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That this House shall be
put into a Committee upon the said Bill, To-morrow,
the First Business.
Conference on the Bill, for taking, &c. Public Accompts:
Then, the Commons being come to the Conference,
the House was adjourned during Pleasure, and the Lords
went to the Conference.
Which being ended, the House was resumed.
And the Lord Steward reported, "That the Lords
had attended the Conference; and that the Commons
did not agree to their Lordships Amendments made
to the Bill, (intituled, An Act for the taking, examining, and stating, the Public Accompts of the Kingdom;
and the Reasons for their Disagreement."
Report of it to be considered.
It is ORDERED, by the Lords Spiritual and Temporal
in Parliament assembled, That the Report of the Conference had this Day with the House of Commons,
upon the Bill, intituled, "An Act for taking, examining, and stating the Public Accompts of the Kingdom," shall be taken into Consideration To-morrow,
at One a Clock.
Reports of Admiralty, Papers to be made.
The House being acquainted, "That there are Two
Reports ready to be made, from the Lords Committees appointed to consider of the Papers received
from the Admiralty-office:"
It is ORDERED, by the Lords Spiritual and Temporal
in Parliament assembled, That the said Reports shall be
made To-morrow, next after the Committee upon the
Bill for punishing Mutiny and Desertion.
It is ORDERED, by the Lords Spiritual and Temporal
in Parliament assembled, That the Matters and Papers
relating to the Scottish Conspiracy shall be farther considered on Wednesday next, at Twelve a Clock.
Lists of Justices.
It is ORDERED, by the Lords Spiritual and Temporal
in Parliament assembled, That the Lists of the Justices,
now in Commission of the Peace, in the several Counties of this Kingdom, and also those put out since Midsummer 1700, shall be taken into Consideration To-morrow, after the Business already appointed.
Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque ad et in diem Martis,
vicesimum octavum diem instantis Martii, hora duodecima
Auroræ, Dominis sic decernentibus.
Lunæ, 29° die Maii, 1704,
Hitherto examined by us,