Precedents. Offices of profit. A similar case had arisen in 1809, when Mr. Perceval, the chancellor of the exchequer in the 'Portland Administration,' was commissioned by the king,-upon the Duke of Portland's resignation,— to form a new ministry. He thereupon assumed the office of first lord of the treasury, in addition to that of chancellor of the exchequer. Upon the question whether this necessitated his reelection, he took the advice of the speaker of the House of Commons, the lord chancellor, and the law officers of the crown. All these authorities concurred in the opinion that his seat was not vacated.▾ But in 1861 Lord Palmerston, then first lord of the treasury, vacated his seat and went for re-election upon accepting from the crown the lord-wardenship of the Cinque Ports. In February 1868, upon the resignation of Earl Derby, the ministry was reconstructed by Mr. Disraeli, who became premier. None of the ministers who retained their former offices, or who simply exchanged offices, were required to go for re-election. In August 1873, Mr. Gladstone, first lord of the treasury, assumed, in addition thereto, the office of chancellor of the exchequer. It was contended, by some persons, that under these circumstances the law necessitated his going for re-election; but he was properly advised by the crown law officers that this was needless, as an exchange of office, and an accumulation of office, by a minister of the crown, are identical in principle." The offices of profit referred to in the Act are thus enumerated in Schedule H: Lord High Treasurer. Commissioner for executing the offices of Treasurer of the Exchequer of Great Britain and Lord High Treasurer of Ireland President of the Privy Council. Vice-President of the Committee of Council for Comptroller of her Majesty's Household. Treasurer of her Majesty's Household. Vice-Chamberlain of her Majesty's Household. p. 52. 215. Walpole, Life of Perceval, v. 2, Ashley, Life of Palmerston, v. Any Principal Secretary of State. Chancellor and Under-Treasurer of her Majesty's Paymaster-General. Lord High Admiral. Commissioner for executing the office of Lord High Commissioner of her Majesty's Works and Public President of the Committee of Privy Council for Chief Secretary for Ireland. The President of the Local Government Board." Chancellor of the Duchy of Lancaster. Judge-Advocate-General. Attorney-General for England. Lord Advocate for Scotland. The foregoing list is nearly identical with that given in the previous chapter, wherein is enumerated the officers of which an administration is usually composed. But it omits certain subordinate functionaries, attached to the royal household,-such as captains of the gentlemen-at-arms and of the yeomen-of-the-guard,-who are occasionally appointed from the benches of the House of Commons. These gentlemen necessarily vacate their seats on receiving their appointments, but are not invariably required to seek for re-election. And it makes no mention of the political under-secretaries, who, as By 34 & 35 Vict. c. 70, sec. 4. b By 48 & 49 Vict. c. 61, sec. 3. Motion to repeal provisions in Statute of Anne. Law in In Australia. we have previously explained, do not vacate their seats on receiving their appointments; but are still obliged to do so if promoted to a higher ministerial office." On February 23, 1869, Viscount Bury moved for leave to bring in a Bill into the House of Commons to repeal the provisions of the Statute of Anne, which require the re-election of members accepting office under the crown. But it being evident, from the debate which ensued, that the House was unwilling to entertain this proposal,considering that the clause in the Reform Act of 1867 had gone far enough in mitigating the severity of the Statute of Anne,-the motion was withdrawn.h On May 12, 1874, Mr. Yorke moved to resolve, that in the interest of the public service, members accepting the office of attorney- or solicitor-general should not be required to vacate their seats. But, after a short debate, the motion was negatived, without a division.i In Canada, where, as a general rule, the English parliamentary practice prevails, the law concerning the vacation of seats on accepting office has been modified in a similar direction ever since 1853. First, by the statute 16 Vict. c. 154, and afterwards by the amended statute 20 Vict. c. 22, sec. 7, it was provided, that if a member of the legislative assembly, or an elected member of the legislative council, who holds any of the (enumerated) offices forming part of the provincial administration, resigns his office, and within one month after his resignation accepts any other of the said offices, he shall not thereby vacate his seat in the said assembly or council.'* It is worthy of notice, as indicative of colonial opinion upon this subject, that the constitution which was established in South Australia, upon the introduction of 'responsible government' in 1856, Ante, p. 317. Case of Mr. Hunt, secretary to h Hans. D. v. 194, p. 210. * Con. Stat. of Canada (1887) p. 181. It has been held by the Canadian courts that such changes may be made oftener than once within the month; and that they are not limited to changes in an existing ministry. U.C.Q.B. Rep. v. 17, p. 310; U.C.C.P. Rep. v. 8, p. 479. expressly permitted a member of either House (both chambers being elective), to accept a political office in the ministry without being required to go for re-election.' Herein South Australia differed from her sister colonies of New South Wales, Victoria, and Tasmania. In fact, it is only in this colony and in New Zealand that the experiment has been tried of dispensing with the vacation of the seat of a member accepting a ministerial office.m Avowedly introduced in order to save the country from the cost and excitement entailed by frequent elections, and to facilitate a speedy re-adjustment of offices upon a change of ministry, the experiment has failed in both colonies; and by removing an obvious impediment to frequent ministerial changes, it has fostered the element of instability, which is one of the most serious evils incident to parliamentary government. During the first twenty years of responsible government in South Australia (1856-1876), there were no less than twenty-nine successive administrations: a result to which the facilities of change, afforded by the regulation in question, must have largely contributed." In the session of 1865-6 the South Australian ministers submitted to the local Parliament a Bill to amend the constitution, which contained a provision to abolish this objectionable innovation, and to oblige members accepting any ministerial office to go to their constituents for re election. The introduction of such a clause betokens a change of opinion on the part of colonial statesmen, and a desire to revert to ancient constitutional practice in this particular. But the Bill was thrown out on its second reading. The clause in question was much opposed, principally on the ground that, as the duration of the legislature was limited to three years, further ministerial elections were undesirable. No further attempt has since been made to amend the constitution in this direction, and as the existing law is said to be working' smoothly and well,' it is unlikely that any change will take place. stitutes an accept Having ascertained the circumstances under which What cona member of the House of Commons is required, by law, to vacate his seat, upon accepting office under the ance of crown, we have next to enquire, what constitutes an acceptance of office sufficient to justify the issue of a new writ? office. Agreement to accept office va cates seat. Precedents. Ordinarily, and as a matter of convenience, mere agreement to accept a disqualifying office vacates the seat. But such agreement should be distinctly stated, as the ground of vacancy; and, at any rate, in offering himself for re-election the candidate must appear before his constituents as an actual office-holder under the crown, in order to legalise his new election after accepting the particular office. In 1801 Mr. Addington, being at the time a member of the House of Commons, received the king's commands to form a new administration, in which it was intended that he should fill the post of chancellor of the exchequer. The arrangements for the new ministry were in progress, when they were interrupted by the king's illness. Believing that the delay would be short, Mr. Addington thought to expedite matters by accepting the Chiltern Hundreds. Thereupon, on February 19, a new writ was ordered. Mr. Addington had fully anticipated that his appointment as chancellor of the exchequer would have taken place before his re-election. But this was prevented by the continued illness of the king; and he was again returned, and took his seat in the House on February 27, not as a minister of the crown, but as a private member. It was not until March 14 that the king was sufficiently recovered to admit of his receiving the seals from Mr. Pitt, and transferring them to Mr. Addington. This formal acceptance of office by Mr. Addington again vacated his seat; and it was March 23 before he re-appeared in the House as a minister of the crown." This double election would have been avoided had Mr. Addington been able to vacate his seat in the first instance, on the ground of his having 'agreed to accept' the office of chancellor of the exchequer. Technically, this would have been quite justifiable, but whether the probable formation of the new administration was likely to be affected by the state of the king's health, we are unable to determine. In 1864 Mr. Bruce accepted the office of vice-president of the committee of council on education, a post which can only be held by a privy councillor. Upon the motion for the issue of a new writ, it was objected that Mr. Bruce had not yet been sworn in as a member of the privy council. Secretary Sir George Grey replied, that in several similar cases persons appointed had not been sworn in as privy councillors until after the issue of the writ, and the reelection of the member. The motion for the writ was withdrawn at * See Mr. Rose's case in 1804, cited in 2 Hats. p. 45 n. |