receiving their appointments; but are still obliged to do Law in so if promoted to a higher ministerial office.* 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.' Canada.. It is worthy of notice, as indicative of colonial opinion upon this In Aussubject, that the constitution which was established in South tralia. Australia, upon the introduction of 'responsible government' in 1855, expressly permitted a member of either House (both chambers being then 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.z It is, in fact, the only colony with a constitution framed after the English model, wherein the experiment has been tried of dispensing with the vacation of the seat of a member accepting a ministerial office. 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; 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 nine years of responsible government in South Australia, there were no less than fifteen separate ministries, besides occasional modifications in the personnel of existing Cabinets: a result to which the facilities of change, afforded by the regulation in question, must have largely ▾ Ante, p. 256. Case of Mr. Hunt, Secretary to the Treasury, whose seat was vacated on Feb. 28, 1868, by his acceptance of the office of Chancellor of the Exchequer. ▾ Local Ordinance, No. 2, of 18556, passed under the authority of the Imp. Act, 13 & 14 Vict. c. 59. vol. See Commons Papers, 1862, xxxvii. pp. 166–170. What constitutes 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.b 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 been made to amend the constitution in this direction, and as the existing law is now said to be working 'smoothly and well,' it is unlikely that any change will be made.d Having ascertained the circumstances under which a an accept member of the House of Commons is required, by law, to vacate his seat, upon accepting office under the crown, we have next to enquire, what constitutes an acceptance of office sufficient to justify the issue of a new writ? ance of office. 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. 181. Forster, South Australia, pp. 160, b Ibid. p. 208, 209. South Australian Parliamentary d Private letter from Colonial Under-Secretary of South Australia, dated June 18, 1868. See Hats. Prec. vol. ii. p. 61 n. 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.f 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 the moment, but again moved later in the evening, and agreed to, without further remark.h Complaint having been made of this proceeding at the next sitting, the Attorney-General stated that it had been repeatedly decided, 'that a vacancy under the Act of 6 Anne, c. 7 attached on the earliest proof of the acceptance, whether by letter, word of mouth, the kissing of hands, or in any other manner, however informal; and that it was not necessary to wait for the complete appointment, but that then the writ might be issued, and the election take place; and if afterwards the appointment were completed by warrant, letters patent, or in any other form, no new vacancy was thereby created, because such appointment was merely the sequel to the acceptance of the offer of office which had occasioned the original vacancy.' Therefore 'the House need be under no alarm for having issued the writ; on the contrary, it would have been a departure from law not to have issued it.'1 165. May, Const. Hist. vol. i. pp.164, See Mr. Rose's case in 1804, cited in 2 Hats. p. 45 n. Hans. Deb. vol. clxxiv. p. 1197; Commons Journ. vol. cxix. p. 174. Hans. Deb. vol. clxxiv. pp. 1288, 1289. It is the period of the acceptance of office, and not the period at which the patent is made out, to which the law is applicable.' On this principle, Mr. Wynn was declared not to have vacated his seat for Montgomeryshire, though he had received a patent re-appointing him to an office he had held for years, but which was annulled by the demise of the crown, which patent was dated subsequently When the issue of a new writ may be delayed. But while it is customary to issue a new writ so soon as a member has agreed to accept a disqualifying office, mere agreement does not of itself disqualify. It is true, that by agreeing to accept an office from the crown, a member places himself under the influence against which the Statute of Anne is directed. Nevertheless, if there be a reasonable excuse to justify delay, it has been usual for the House to await the performance of some formal act of acceptance, before proceeding to order the issue of a new writ. Meanwhile, the member is not debarred from the exercise of any of his legislative functions. For example: In the session of 1822 Mr. Canning spoke and voted in the House of Commons repeatedly after he had agreed to accept the post of Governor-General of India; and even referred in one of his earliest speeches to his intended departure, which was to take place after the close of the session. But after all the office was not conferred upon him; for when on his way to Liverpool to take leave of his constituents, he received intelligence which led to his remaining in England. In 1840 Mr. Horsman, M.P. for Cockermouth, issued an address to his electors, dated the 18th May, informing them that he had been offered the post of a Junior Lord of the Treasury, and had felt it to be his duty to accept it;' adding, that after the debate on a certain bill then under discussion, he would present himself for re-election. It was not until May 21 that a new writ was ordered for Cockermouth, Mr. Horsman having, meanwhile, spoken and voted in the House. Next day the attention of the House was called to these facts, and the above-mentioned address read from a newspaper. But though undisputed, no proceedings could be taken upon mere newspaper authority, and the Government declined to state at what precise time Mr. Horsman had accepted office. So the matter was allowed to drop.k to his election, his acceptance having Lord Nugent's case, Mirror of member applied in general terms for the Chiltern Hundreds by letter, through a friend, and then left England, a new writ was ordered, the technical objection being overruled. Mirror of Parl. 1838, p. 4391. J Parl. Deb. N. S. vol. vii. p. 136. Ibid. Index, verbo Canning, G. Bell, Life of Canning, pp. 319-322. Edinb. Review, vol. cix. p. 269. Mirror of Parl. 1840, pp. 3243, 3265, 3308. Upon the formation of Sir R. Peel's administration in September 1841, the office of Lord Chancellor of Ireland was assigned to Sir E. B. Sugden. On September 20 the question was asked in the House of Commons, why no new writ had been moved for upon this nomination, to which Sir E. B. Sugden replied, 'it is quite true that I have considered it my duty to accept the appointment; but those measures have not as yet been completed which are necessary to displace the former officers.' Sir R. Peel confirmed this statement, saying, it is intended the appointment should be made, but the ceremony even of kissing hands has not yet taken place.' Later in the evening, a member having remarked on the presumed infraction of constitutional principle in Sir E. B. Sugden remaining in the House after he had agreed to accept a disqualifying office, Sir E. B. Sugden declared that he stood on his rights as a member, in maintaining his place in the House; that though he had agreed to accept office, he had not legally accepted, as the appointment had not actually been made. The office in question is held by patent, and is conferred by the delivery of the Great Seal into the hands of the person nominated. He therefore considered that he should be neglecting his duty to his constituents if he abstained from acting as their representative, while he had a legal right to do so. Lord John Russell adverted to the fact, that it was customary upon the formal acceptance of office to move for a new writ,' and that, in many such cases, the avoidance of the seat was immediate, though weeks elapsed before the appointment was formally completed. But the present case, together with that of Mr. Horsman above mentioned, showed that it behoved the House to come to some decision on the subject, and to adopt some uniform practice. Next day the matter was again discussed. Sir R. Peel stated that, according to his interpretation of the Act, it was not necessary for any member, to whom office may have been tendered, to vacate his seat 'until the completion of the formal proceedings, which may be considered legally and specially to constitute appointment.' But he had no objection to an understanding that a written tender and acceptance of office should be accounted sufficient to vacate the seat. A mere verbal conversation was not enough to proceed upon. In Sir E. B. Sugden's case the formal instruments had 'advanced to such a stage as practically to preclude a revocation of the offer;' he therefore would agree to a motion for a new writ. Lord John Russell very much doubted the expediency of requiring a written acceptance' before vacating the seat. After some further remarks the new writ was ordered." m On November 22, 1830, a new writ was ordered by the Mirror of Parlt. 1841, Sess. 2, p. 327. Ibid. pp. 331-333. |