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Chapter that the office of postmaster-general should not be deemed
XXIII. anomena

a new office, disqualifying the holder from being elected, or
sitting and voting as a member of the House of Commons:
but that any member accepting the office, though eligible
for re-election, should vacate his seat.

By the 22 Geo. III. c. 82, not more than two principal Under-
secretaries of state could sit in the House of Commons; and of state.
not more than one under-secretary to each department would
appear to have been admissible to the House of Commons
under the 15 Geo. II. c. 22, s. 3; and as doubts were
entertained whether more than two under-secretaries could
sit there, in practice there were, until 1855, only two under-
secretaries who held seats in that house at the same time.?
But on the establishment of the secretary of state for war in
1855, an Act was passed to enable a third principal secretary,
and a third under-secretary, to sit in the House of Commons;
and again, in 1858, by the 21 & 22 Vict. c. 106, on the
appointment of a fifth secretary of state for India, it was
provided that four principal and four under-secretaries may
sit as members of the House of Commons at the same time.
In 1864, notice was taken that five under-secretaries had
been sitting in the house, in violation of the latter Act, and
a motion was made that the seat of the fifth under-secretary
had been vacated. The house, however, referred the question
to a committee, who reported that the seat of the under-
secretary last appointed was not vacated. At the same
time, as the law had been inadvertently infringed, it was
thought necessary to pass a bill of indemnity. An Act, 27
& 28 Vict. c. 34, was also passed, providing that in future,
if, when there are four under-secretaries in the house,
another member accepts the office of under-secretary, his
seat shall be vacated, and he shall not be re-eligible while
four other under-secretaries continue to sit in the house. If

secretaries

? For similar provisions in later s. 8 (1) (president of the board of statutes see 34 & 35 Vict. c. 70, s. 4 education). See also amendment (president of the local government of 7 Geo. IV. c. 32 (president of board); 48 & 49 Vict. c. 61, s. 3 board of trade) by 51 & 52 Vict. c. (secretary for Scotland); 52 & 53 57. Vict. c. 30, s. 8 (president of board ? 2 Hatsell, 63, n. of agriculture); 62 & 63 Vict. c. 33, 3 174 H. D. 3 s. 1218, 1231, &c.

five secretaries or under-secretaries are returned at a general Chapter
election, none shall be capable of sitting and voting until
the number is reduced to the statutory limit. And the
same rule is further applied to other offices, of which the

number may be limited by statute.
Cumula- The Act of Anne has, in some cases, been held not to
tive offices.

apply to the acceptance of other offices of state, by gentle-
men already holding office from the Crown. Thus the
acceptance of the paid offices of lord justice in England
and in Ireland, when held in conjunction with other offices
of state, was ruled not to vacate seats in Parliament, as
appears from the cases of Mr. Craggs, Mr. Walpole, and

Lord Midleton.1
First lord After the Revolution of 1688, the office of lord high
of the
treasury,

treasurer being executed by commissioners, it was customary
for the first commissioner (or lord) of the treasury to hold
also the office of chancellor of the exchequer. Among other
examples may be mentioned that of Sir R. Walpole in 1716,
and again from 1721 to 1741; of Mr. Pitt from 1783 to
1801, and again in 1804 until his death ; of Mr. Canning in
1827, and Sir Robert Peel in 1834. But as the two offices
were generally accepted at the same time, no question arose
as to the vacation of the seat. In 1770, however, Lord
North, being then chancellor of the exchequer, accepted also
the office of first lord of the treasury. On that occasion,
no new writ was moved, nor was any doubt expressed as to
the legal effect of the acceptance of this second office.
Again, in October, 1809, Mr. Spencer Perceval, while chan-
cellor of the exchequer, succeeded the Duke of Portland as
first lord of the treasury, but retained his former office.
Doubts were expressed by Lord Redesdale, whether he had
not vacated his seat: but Lord Chancellor Eldon and Mr.
Speaker Abbot agreed that he had not; and no new writ
was issued. In August, 1873, Mr. Gladstone, already first

and cl

cellor of the exchequer.

See offices without salary, P. 650.

1 2 Hatsell, 47.

2 2 Lord Colchester's Diary, 214. 215. Lord Eldon wrote, 25th Dec. 1809, “I think Mr. P.'s seat is not void by any acceptance of any office

of profit since his election. The Act has not said that if the king gives an increase of profit to a person already holding an office of profit, his seat shall be void, but only that if any

Chapter lord of the treasury, further assumed the office of chancellor

of the exchequer. Controversy ensued as to the legal con-
sequences of this proceeding: but as Parliament was dis-
solved during the recess, the complicated questions involved
in this case, including former precedents under the Act of
Anne, and the due construction of remedial provisions
of the Reform Act of 1867, did not become the subject of
adjudication.

By the 6 Anne, c. 41, s. 27, the receipt of a new or other New army
commission by a member who is in the army or navy, is omava.
excepted from the operation of the Act, and does not vacate sions.
his seat; 2 and the same exception has been extended, by
construction, to officers in the marines ; 8 and to the office
of master-general or lieutenant-general in the ordnance,
accepted by an officer in the army ;4 and to military
governments accepted by officers in the army. On the 9th Military
June, 1733, General Wade having accepted the office of
governor of the three military forts in Scotland, it was
resolved that the acceptance of such an office by a member,
being an officer in the army, did not vacate his seat. The
acceptance of a commission in the militia does not vacate
the seat of a member. It has always been held that the Ambas-
office of ambassador, or other foreign minister, does not dis- *
qualify, nor its acceptance vacate the seat of a member :
but the acceptance of the office of consul or consul-general
has been deemed to vacate a seat, though the member was

the office of commands. considered to be re-eligible. By 22 & 23 Vict. c. 5, it was Chapter Pension

commands.

sador.

person accepts an office of profit his seat shall be void.”

"I think with you," wrote the Speaker, “ that under the statute of Anne, there must be the concurrence of office and profit conjointly in the new grant, which is to vacate the seat; to reaccept the same office under a new commission has never, in practice, been held to vacate a seat; and the acceptance of a new annexation of profit to an office already in possession, has been con. sidered equally free from the same consequences," 2 Walpole, Life of Spencer Perceval, 51-54.

Lord Selborne's Memorials (Part 2), i. 326.

? “The receipt of any new com-
mission in the army or navy, unless
within this exception, disqualifies
under sec. 24," Rogers on Elections
part ii. p. 16 (17th ed., revised 1900).

3 2 Hatsell, 45, n.
+ 22nd June, 1742, 24 C. J. 284.

s General Carpenter, Governor of
Minorca, 1716; General Conway,
Governor of Jersey, 1772, 17 Parl.
Hist. 538; 2 Hatsell, 48. 52, n.; 39
C. J. 970; 54 ib. 292.
622 ib. 201.
: 38 & 39 Vict. c. 69.

XXIII. declared that persons holding diplomatic pensions were not holders.

disqualified from being elected or sitting and voting in the
House of Commons. And by 32 & 33 Vict. c. 15, pensions,
&c., for civil services, under the Superannuation Acts, do
not disqualify the holder from being elected, or sitting or
voting, as a member of the House of Commons. A recorder
is eligible to serve in Parliament except for the borough of

which he is recorder.2
Offices In January, 1821, Mr. Bathurst held temporarily the
without
salary.

presidentship of the board of control, without its emolu-
ments, in connection with another cabinet office then held
by him; and under those circumstances did not vacate his
seat;3 and the holder of a new office, created in 1887, of
parliamentary under-secretary to the Lord-Lieutenant of
Ireland, did not come within the scope of 41 Geo. III. c. 52
(see p. 640), because no salary or profit attached to the

office.4
Petitioning At one time it was doubted whether a candidate claiming
candidates
eligible. a seat in Parliament by petition, was eligible for another

place before the determination of his claim : but it was re-
solved, on the 16th April, 1728, “that a person petitioning,
and thereby claiming a seat for one place, is capable of
being elected and returned, pending such petition.”5 In
case the petitioner should, after his election, establish his
claim to the disputed seat, the proper course would appear

1 2 Hatsell, 22. 54; 106 C. J. 12 (Dungarvan writ).

2 3 & 4 Vict, c. 108, s. 66; 45 & 46 Vict. c. 50, s. 163. New writs issued on acceptance of office, 125 C. J. 412; 148 ib. 392. 615; 150 ib. 3. 33 Lord Sidmouth's Life, 339.

* 15th and 28th April, 1887, 313 H. D. 3 s. 888. 1003; see also n. 1 p. 648. In 1881 and 1906 new writs were issued in the cases of Mr. Herbert Gladstone and Mr. Fuller, who had accepted lordships of the treasury, without salary. A new writ was not issued in the case of a member, who having accepted a

lordship of the treasury without salary before his election, was subsequently made a lord of the treasury with salary, 152 Parl. Deb. 4 s. 97. See also the answer to a question, 21st January, 1897, as to a member of the house acting as a commissioner of assize and also the personal explanation of the member himself, 45 ib. 196, 200.

5 21 C. J. 135; 2 Hatsell, 73. It seems also that a person returned for one place may petition for another, Rogers on Elections, part ii. (17th ed. revised 1900), p. 178.

Members returned for two places, see

election.

tion of ommittees

der the Grenville

Chapter to be to allow him to make his election for which place he
XXIII.

-_ would serve, in the same manner as if he had been returned
for both places at a general election."
Whenever any question is raised, affecting the seat of a Questions

affecting p. 652.

member, and involving matters of doubt, either in law or the seat of
fact, it is customary to refer it to the consideration of a membe
committee.
Before the year 1770, controverted elections were tried Trial of

controand determined by the whole House of Commons, as mere verted party questions, upon which the strength of contending ele factions might be tested. 8

In order to prevent so notorious a perversion of justice, Constituthe house consented to submit the exercise of its privilege to to a tribunal constituted by law, which, though composed unde of its own members, should be appointed so as to secure Act. impartiality, and the administration of justice according to the laws of the land, and under the sanction of oaths. The principle of the Grenville Act, and of others which were passed at different times since 1770, was the selection by lot of committees for the trial of election petitions. Partiality and incompetence were, however, generally complained of in the constitution of committees appointed in this manner; and in 1839, an Act was passed establishing a new system, upon different principles, increasing the responsibility of individual members, and leaving but little to the operation of chance.

This principle was maintained, with partial alterations of Present the means by which it was carried out, until 1868, when ys the jurisdiction of the house, in the trial of controverted

stem.

· This point was considered in 1849, when such a case seemed likely to occur; but there have been no precedents.

? Case of Mr. Wynn (Stewardship of Denbigh), 94 C. J. 58; of Mr. Whittle Harvey, registered hackney carriages, ib. 29; of Mr. Hawes (see p. 170); of Baron Rothschild, as a government contractor (see p. 32); of Sir B. O'Loghlen (see p. 641); of succession to a peerage (Earldom of Sel.

borne) (see p. 633, n.); of the holding
of a single election in a case of two
writs being issued (see p. 638); and of
the grant of the Chiltern Hundreds
to a member who has succeeded to
a peerage (see p. 634, n.).

3 E.g. Sir Robert Walpole's resig-
nation (1741) in consequence of an
adverse vote upon the Chippenham
Election petition ; see also 1 Caven.
dish, Deb. 476, 505; 1 May, Const.
Hist. (7th ed.), 362.

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