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CHAPTER THE FIFTEENTH.

OF BUYING AND SELLING OFFICES.

CONCERNING the sale of offices of a public nature, it has been well observed, that nothing can be more palpably prejudicial to the good of the public, than to have places of the highest concernment, on the due execution whereof the happiness of both king and people depends, disposed of, not to those who are most able to execute them, but to those who are most able to pay for them ; nor can any thing be a greater discouragement to industry and virtue than to see those places of trust and honour, which ought to be the rewards of persons who by their industry and diligence have qualified themselves for them, conferred on those who have no other recommendation but that of being the highest bidders; neither can any thing be a greater temptation to officers to abuse their power by bribery and extortion, and other acts of injustice, than the consideration of having been at a great expense in gaining their places, and the necessity of sometimes straining a point to

make their bargain answer their expectations. (a) Offence at The buying and selling of such offices has therefore been concommon law. sidered as an offence malum in se, and indictable at common

law. (b) In a late - case of an indictment for a conspiracy to obtain money, by procuring from the lords of the treasury the appointment of a person to an office in the customs, it was proposed to argue on behalf of one of the defendants, that the indictment was bad on the face of it, as it was not a misdemeanor at common law to sell or to purchase an office like that of coastwaiter. But Lord Ellenborough, C. J. said that if that were to be made a question, it must be debated on a motion in arrest of judgment, or on a writ of error: but that, after reading the case of Rex v. Vaughan, (c) it would be very difficult to argue that the offence charged in the indictment was not a misdemeanor. And Grose, J. afterwards, in passing sentence, said that there could be no doubt but that the cffence charged was clearly a misdemeanor

at common law. (d) Attempt to

The case of Rex v. Vaughan, cited by Lord Ellenborough, was bribe a minis- an uttempt only to bribe a cabinet minister and a meniber of the ter to give an office,

(a) 1 Hawk. P. C. c. 67. s. 3. 5 Bac. (c) 4 Burr. 2494. Abr. 191, Offices and Officers.

(d) Rex v. Pollman and others, 8 (6) Stockwell v. North, Noy. 102. Campb. 229. Moor 781. S.C.

.

&c. to be

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privy council to give the defendant an office in the colonies. (e) And in a case where the defendant, who was clerk to the agent for the French prisoners of war at Porchester Castle, took bribes in order to procure the exchange of some of them out of their turn, it appears to have been made the subject of an indictment. (f)

But it has been endeavoured to prevent the mischiefs of buying Statutes. and selling offices, by the enactments of several statutes.

The 12 Rich. 2. c. 2. enacted " that the chancellor, treasurer, 12 Rich.2.c.2. “keeper of the privy seal, steward of the king's house, the king's

in Chancellor, “chamberlain, clerk of the rolls, the justices of the one bench swornthat they “and of the other, barons of the exchequer, and all other that will not make “shall be called to ordain, name or make, justices of the peace,

officers for any

gift, &c. “sheriffs, escheators, customers, comptrollers, or any other officer “ or minister of the king, shall be firmly sworn that they shall “not ordain, name, or make, any of the above-mentioned officers “for any gift or brokage, favour or affection; nor that none “ which pursueth by himself, or by other, privily or 'openly, to be “in any manner of office, shall be put into the same office, or in “any other, but that they make all such officers and ministers of “the best and most lawful men, and sufficient to their estimation “ and knowledge.”(g)

The 4 Hen. 4. c. 5. ordained “ that no sheriff shall let his 4 Hen. 4. c. 5. “bailiwick to farm to any man for the time that he occupieth “such office.”

But a principal statute relating to this subject is the 5 & 6 Ed. 6. 5 & 6 Ed: 6. c. c. 16., which, for the avoiding corruption which might thereafter

selling offices happen in the officers, in places wherein there is requisite to be relating to the had the true administration of justice or services of trust, and to administration the intent that persons worthy and meet to be advanced should

to be advanced whild of justice, &c.

shall forfeitthe thereafter be preferred, enacts, that if any person bargain or sell office, and be any office, or deputation of office, or take any money or profit disa

and have such ofdirectly or indirectly, or any promise, &c. bond, or any assur-, i ance to receive any money, &c. for any office or deputation of office, or to the intent that any person should have, exercise, or enjoy, any office, or the deputation of any office, which office, or any part or parcel thereof, shall in anywise concern the administration or execution of justice, or the receipt, controlment, or payment of the king's treasure, rent, revenue, &c. or any the king's customs, or the keeping the king's towns, castles, &c. used for defence, or which shall concern any clerkship in any court of record where justice is ministered; the offender shall not only forfeit all his right to such office or deputation of office, but also shall be adjudged a person disabled to have, occupy, or enjoy, such office or deputation. The statute further enacts that such bargains, sales, bonds, agreements, &c. shall be void ;(h) and pro

16. Persons

disabled to

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(e) 4 Burr. 2494. A criminal in- (f) Rex v. Beale, cited in Rex v. formation was granted against the Gibbs, 1 East. R. 183. defendant for offering the Duke of (g) For the exposition of this staGrafton, then first lord of the trea- tute see the Earl of Macclesfield's trial, sury, the sum of 50001. as a bribe to 6 Sta. Tri. 477. 16 Howell's Sta. Tri. procure the reversion of the office of 767. clerk of the supreme court of the (h) Sect. 3. island of Jamaica.

BOOK

II

Cases decided upon this statute.

vides that the act shall not extend to any office whereof any person shall be seised of any estate of inheritance, nor to any office of the keeping of any park, house, manor, garden, chase, or forest. (i) It provides also that all judgments given or things done by offenders, after the offence and before the offender shall be removed from the exercise of the office or deputation, shall be good and sufficient in law. And further, that the act shall not extend to be prejudicial or hurtful to any of the chief justices of the King's Bench or Common Pleas, or to any of the justices of assize ; but that they may do concerning any offices to be granted by them as they might have done before the making of this act.(k)

It has been held that the offices of chancellor, registrar, and commissary in ecclesiastical courts, are within the meaning of this statute ;(l) also the place of cofferer, (m) and that of surveyor of the customs ;(n) and the place of customer of a port ; (o) and the offices of collector and supervisor of the excise ;(p) and in a writ of error on a judgment in Ireland it was held clearly that the offices of clerk of the crown, and clerk of the peace, were within the statute.(9) But offices in fee have been held to be out of the statute ;(r) and the sale of a bailiwick of a hundred is not within it, for such an office does not concern the administration of justice, nor is it an office of trust. (s) It has also been adjudged that a seat in the six clerks' office is not within the statute, being a ministerial office only;(t) and it was held that it did not extend to military officers, (u) nor to the purser of a ship, (w) but this last decision was doubted ; (.r) and in a later case it was said by Lord Mansfield, that if the Lords of the Admiralty were to take money for their warrant to appoint a person to be a purser, it would be criminal in the corrupter and corrupted.(y) It was decided also, that this statute did not extend to the plantations.(z) But with (i) Sect. 4.

2. B. R. 5 Bac. Abr. 195. Offices and (1) Sect. 5. The statute 6 Geo. 4. Officers (F). It was also held in this c. 89. authorized the purchase of the case, that the statute did not extend to office of receiver and comptroller of Ireland. But see post, 49 Geo. 3. c. the seal of the Court of King's Bench 126. and Common Pleas, and of the custos (r) Ellis v. Ruddle, 2 Lev. 151. brevium of the Court of Common (8) Godbolt's case, 4 Leon. 33. 4 Pleas by the commissioners of the Mod. 223. S. C. cited. Treasury, for certain annuities ; and (1) Sparrow v. Reynold, Pasch. 26 after the confirmation of the agree- Car. 2. c. B. 5 Bac. Abr. 195. Offices ment by parliament the rights and in- and Officers (F). terests of all persons claiming or enti- (u) i Vern. 98. tled to claim under the letters patent (W) 2 Vero. 308. Ca. temp. Talb. mentioned in the act, are to cease and 40. determine.

(.) See 1 B. Blac. 326., where it is (1) 12 Co. 78. 3 Inst. 148. Cro. Jac. said by Lord Loughborough, C. J., 269. 1 Hawk. P. C. c. 67. s. 4. that the case in 2 Vern. is contrary to

(in) Sir Arthur Ingram's case, 3 an evident principle of law. Bulst. 91. S. C. Co. Lit. 234, where (y) Purdy v. Stacy, 5 Burr. 2698. it is said that the king could not dis. («) Blaukard v. Galdy, 4 Mod. 222. pense with this statute by any non ob- 2 Salk. 411. 2 Lord Raym.-1245. S.C. slante ; and Cro. Jac. 385, S. C. is cited. cited 2 Mod. 45. S. P. undetermined; (n) 2 And. 55, 107.

and see 5 Bac. Abr. 195. Offices and (0) 1 H. Blac. 327.

Oficers (F). But if the office, though (p) Law v. Law, Cas. temp. Talb. in the plantations, had been granted 140. 3 P. Wms. 391. S. C.

under the great seal of England the (9) Macarty v. Wickford, Trin. 9 G. sale of it would have been held crirespect to military and naval commissions, and the different places in the public departments of government, the colonies or plantations, or in the appointment of the East India Company, alterations have been made by a recent statute which will be presently mentioned.

One who makes a contract for an office contrary to the purport An offender aof this statute, is so far disabled to hold the same, that he cannot gain

tute can never at any time during his life be restored to a capacity of holding it afterwards by any grant or dispensation whatever. (a)

hold the office. With regard to the deputation of an office, it is held that where What deputaan office is within the statute, and the salary is certain, if the

fice is within principal make a deputation reserving a less sum out of the salary, the statute. it is good : so, if the profits be uncertain, arising from fees, if the principal make a deputation, reserving a certain sum out of the fees and profits of the office, it is good : for in these cases the deputy is not to pay unless the profits arise to so much ; and though a deputy by his constitution is in place of his principal, yet he has no right to his fees, they still continuing to be the principal's; so that, as to him, it is only reserving a part of his own, and giving away the rest to another. But where the reservation or agreement is not to pay out of the profits, but to pay generally a certain sum, it must be paid at all events; and a bond for performance of such agreement is void by the statute.(b) . But this statute has been much extended by the 49 Geo. 3. 49 G.3. c. 126.

extends the 5 c. 126., which, after reciting it, enacts, “ that all the provisions " therein contained shall extend to Scotland and Ireland, and to 16. to Scotland “ all offices in the gift of the crown, or of any office appointed and Ireland, to

public offices “ by the crown; and all commissions, civil, naval, or military; In this country " and to all places and employments, and to all deputations to and in the coany such offices, commissions, places, or employments, in the

lonies, and to

offices under respective departments or offices, or under the appointment or the East India “ superintendance and control of the lord high treasurer, or com- Company. “ missioners of the treasury, the secretary of state, the lords com“ missioners for executing the office of lord high admiral, the

master general and principal officers of his Majesty's ordnance, “ the commander in chief, the secretary at war, the paymaster“ general of his Majesty's forces, the commissioners for the affairs “ of India, the commissioners of the excise, the treasurer of the

navy, the commissioners of the navy, the commissioners for vic

tualling, the commissioners of transports, the commissary general, “ the storekeeper general, and also the principal officers of any other “ public department or office of his Majesty's government in any “ part of the united kingdom, or in any of his Majesty's dominions, “ colonies, or plantations, which now belong or may hereafter belong " to his Majesty ; and also to all offices, commissions, places, and “ employments belonging to or under the appointment or control of “ the East India company,(c) in as full and ample a manner as if

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minal at common law. See the judg. (6) 5 Bac. Abr. 195. Offices and Ofment of Lord Mansfield in Rex v. ficers (F). i Hawk. P. C. c. 67. . 5. Vaughan, 4 Burr. 2500.

Salk. 463. 6 Mod. 231. Godolphin v. (a) Hob. 75. Co. Lit. 234. Cro, Car. Tudor, Comb. 356. S. P. 36). Cro. Jac. 386. Ca. temp. Talb. (c) By the 33 Geo. 3. c. 52. s. 66. 107.

it was enacted that the inaking or en

BOOK II. “ the provisions of the said act were repeated, and made part of “ this act : and the said act and this act shall be construed as one

“ act, as if the same had been herein repeated and re-enacted.” 49 G. 3. c. 126. The third section of this statute enacts, “ that if any person or s. 3. Persons buving or sell- “ persons shall sell, or bargain for the sale of, or receive, have, or ing, or receiv- “ take any money, fee, gratuity, loan of money, reward, or profit, ing or paying “ directly or indirectly, or any promise, agreement, covenant, money or re

or of “contract, bond, or assurance; or shall by any way, device, or fices, guilty of " means, contract or agree to receive or have any money, fee, misdemeanor. " gratuity, Joan of money, reward, or profit, directly or indirectly;

“ and also if any person or persons shall purchase, or bargain for “ the purchase of, or give or pay any money, fee, gratuity, loan

of money, reward, or profit, or make or enter into any promise, ~ agreement, covenant, contract, bond, or assurance to give or “ pay any money, fee, gratuity, loan of money, reward, or profit; “ or shall by any ways, means, or device, contract or agree to “ give or pay any money, fee, gratuity, loan of money, reward or 6 profit, directly or indirectly, for any office, commission, place, « or employment, specified or described in the said recited act “ (5 & 6 Edw. 6. c. 16.) or this act, or within the true intent or “ meaning of the said act, or this act, or for any deputation “ thereto, or for any part, parcel, or participation of the profits 6. thereof, or for any appointment or nomination thereto, or resig“ nation thereof, or for the consent or consents, or voice or voices “ of any person or persons, to any such appointment, nomination, “ or resignation ; then and in every such case, every such person, « and also every person who shall wilfully and knowingly aid, “ abet, or assist such person therein, shall be deemed and adjudged

“ guilty of a misdemeanor.” 49 G. 3. c. 126. The fourth section enacts, “that if any person or persons shall 8. 4. Persons " receive, have, or take, any money, fee, reward, or profit, direceiving or paving money “rectly or indirectly, or take any promise, agreement, covenant, for soliciting “contract, bond, or assurance, or by any way, means, or device, or obtaining

1 my “ contract or agree to receive or have any money, fee, gratuity,

6 offices, and any negociations “ loan of money, reward or profit, directly or indirectly, for any or pretended “ interest, solicitation, petition, request, recommendation, or relating there

negociation whatever, made or to be made, or pretended to be to, guilty of a '“ made, or under any pretence of making, or causing or procurmisdemeanor. “ing to be made, any interest, solicitation, petition, request, re

commendation, or negociation, in or about or in anywise touch“ing, concerning, or relating to, any nomination, appointment, « or deputation to, or resignation of, any such office, commission, “ place, or employment, as aforesaid, or under any pretence for “ using or having used any interest, solicitation, petition, request, " recommendation, or negociation, in or about any such nomina“ tion, appointment, deputation, or resignation, or for the ob“ taining or having obtained the consent or consents, or voice or “ voices, of any person or persons as aforesaid to such nomina

tering into, or being a party to any ployment under the crown, or the East corrupt bargain or contract, for the India Company, by any British subject giving up or obtaining, or in any other there resident, should be deemed a manner touching or concerning the misdemeanor. trust aud duty of any office or em

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