Ashby v White

Ashby v White
Court	Court of King's Bench
Decided	1 January 1703
Citation(s)	(1703) 92 ER 126, (1703) 2 Ld Raym 938, (1703) 1 Sm LC (13th Edn) 253
Case opinions
Holt CJ, Powell J, Powys J, Gould J
Keywords
Rights, vote, property

Ashby v White (1703) 92 ER 126, is a foundational case in UK constitutional law and English tort law. It concerns the right to vote and misfeasance of a public officer.

Mr Ashby was prevented from voting at an election by the misfeasance of a constable, Mr White, on the apparent pretext that he was not a settled inhabitant.

At the time, the case attracted considerable national interest, and debates in Parliament. It was later known as the Aylesbury election case. In the House of Lords, it attracted the interest of Peter King, 1st Baron King who spoke and maintained the right of electors to have a remedy at common law for denial of their votes, against Tory insistence on the privileges of the House of Commons.

Sir Thomas Powys defended William White in the House of Lords. The argument submitted was that the Commons alone had the power to determine election cases, not the courts.

Lord Holt CJ was dissenting from the judgment in the Court of King's Bench, but his dissent was upheld by the House of Lords by a vote of fifty to sixteen. His judgment reads as follows.

So in the case of Mellor v Spateman, 1 Saund. 343, where the Corporation of Derby claim common by prescription, and 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 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 transcendent 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.

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