respect 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. tute can never 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 gainst this staat any time during his life be restored to a capacity of holding it by any grant or dispensation whatever. (a) afterwards hold the office. fice is within the statute. 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 tion of an ofprincipal make a deputation reserving a less sum out of the salary, 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) 66 extends the 5 public offices offices under But this statute has been much extended by the 49 Geo. 3. 49 G. 3. c. 126. c. 126., which, after reciting it, enacts, "that all the provisions & 6 Edw. 6. c. "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 "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 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 paymaster66 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 victualling, 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 66 minal at common law. See the judgment of Lord Mansfield in Rex v. Vaughan, 4 Burr. 2500. (a) Hob. 75. Co. Lit. 234. Cro. Car. 361. Cro. Jac. 386. Ca. temp. Talb. 107. (b) 5 Bac. Abr. 195. Offices and Officers (F). 1 Hawk. P. C. c. 67. s. 5. Salk. 468. 6 Mod. 234. Godolphin v. Tudor, Comb. 356. S. P. (c) By the 33 Geo. 3. c. 52. s. 66. it was enacted that the making or en 49 G. 3. c. 126. Persons s. 3. buying or sell money or rewards for of fices, guilty of misdemeanor. 66 66 persons "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." The third section of this statute enacts, "that if any person or 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, "contract, bond, or assurance; or shall by any way, device, or means, contract or agree to receive or have any money, fee, gratuity, loan 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 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 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. receiving or paying money for soliciting or obtaining offices, and any negociations or pretended negociations relating there 66 66 66 6. 66 66 The fourth section enacts, "that if any person or persons shall 8. 4. Persons receive, have, or take, any money, fee, reward, or profit, di"rectly or indirectly, or take any promise, agreement, covenant, contract, bond, or assurance, or by any way, means, or device, "contract or agree to receive or have any money, fee, gratuity, "loan of money, reward or profit, directly or indirectly, for any interest, solicitation, petition, request, recommendation, or 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 nomination, 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 66 tering into, or being a party to any ployment under the crown, or the East India Company, by any British subject there resident, should be deemed a misdemeanor. 66 66 66 "tion, appointment, deputation, or resignation; and also if any person or persons shall give or pay, or cause or procure to be "given or paid, any money, fee, gratuity, loan of money, reward or profit, or make, or cause, or procure to be made, any pro"mise, agreement, covenant, contract, bond, or assurance, or by any way, means, or device, contract or agree, or give or pay, 66 or cause or procure to be given or paid, any money, fee, gratuity, loan of money, reward, or profit, for any solicitation, petition, request, recommendation, or negociation whatever, "made or to be made, that shall in anywise touch, concern, or "relate to any nomination, appointment, or deputation to, or resignation of, any such office, commission, place, or employ"ment as aforesaid, or for the obtaining or having obtained, di"rectly or indirectly, the consent or consents, or voice or voices, "of any person or persons as aforesaid, to any such nomination, appointment, deputation, or resignation; and also if any person or persons shall, for or in expectation of gain, fee, gratuity, "loan of money, reward, or profit, solicit, recommend, or nego"ciate, in any manner, for any person or persons, in any matter "that shall in anywise touch, concern, or relate to, any such "nomination, appointment, deputation, or resignation aforesaid, or for the obtaining, directly or indirectly, the consent or con"sents, or voice or voices, of any person or persons to any such "nomination, appointment, or deputation, or resignation afore"said, 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." 66 66 66 66 any place for traffic in of By the fifth section of the act, if any person shall open or keep 49 G. 3. c. 126. any house or place for the soliciting or negociating any business $.5. Keeping relating to vacancies in offices, &c. in or under any public depart- business relatment, or to the sale or purchase of such offices, or appointment to ing to such them, or resignation, transfer, or exchange of them, such offender, fices, a misdeand every person aiding or assisting therein, is guilty of a misde- meanor. meanor. And by the sixth section any person advertising any 50%. penalty on office, place, &c. or the name of any person as broker, &c. or advertising, printing any advertisement or proposal for such purposes, is liable to a penalty of 501. &c. tute of certain Majesty's There are, however, several exceptions from the provisions of Exceptions this statute. It does not extend to commissions or appointments from this stain the band of gentlemen pensioners, or in his Majesty's yeoman offices, and alguard, or in the Marshalsea, or the Court of the King's Palace at so of commisWestminster; or to purchases and exchanges of commissions in sions in his his Majesty's forces, at the regulated prices; or to any thing done in relation thereto by authorised regimental agents not advertising and not receiving money, &c. in that behalf. (d) But officers receiving or paying, or agreeing to pay, more than the regulated prices, or paying agents for negociating, on conviction by a court martial, are to forfeit their commissions, and be cashiered. (e) (d) 49 Geo. 3. c. 126. s. 7. ; and the 53 Geo. 3. c. 54. excepts purchases, &c. of any commissions or appointments in the battle-axe guards in Ireland. (e) 49 Geo. 3. c. 126. s. 8. And the commission is to be sold; and half the forces at the prices regulated by regi mental agents. And it is provided also, that every person who shall sell his commission in his Majesty's forces, and not continue to hold any commission, and shall upon or in relation to such sale receive, directly or indirectly, any money, &c. beyond the regulated price of the commission sold, and every person who shall aid or assist such person therein, shall be guilty of a misdemeanor. This act contains further exceptions; and provides, that it shall not extend to any office excepted from the 5 and 6 Edw. 6. c. 16. or to any office which was legally saleable before the passing of this act, and in the gift of any person by virtue of any office of which such person is or shall be possessed under any patent or appointment for his life; or to render invalid, or in any manner to affect, any promise, covenant, trust, &c. entered into or declared before the passing of this act, and which then was valid in law or equity. (f) With respect to deputations to offices, it is enacted, that the act shall not extend to prevent or make void any deputation to any office, in any case in which it is lawful to appoint a deputy, or any agreement, &c. lawfully made in respect of any allowance or payment to such principal or deputy respectively, out of the fees or profits of such office. (g) Annual reservations, charges, or payments, out of fees or profits of any office, to any person who shall have held such office, in any commission, or appointment of any person succeeding to such office, and agreements, &c. for securing such reservations, charges, or payments, are also excepted: provided that the amount of the reservations, &c. and the circumstances and reasons under which they shall have been permitted, shall be stated in the commission or instrument of appointment of the successor. (h) The statute contains an enactment, that when the right, estate, or interest, of any person shall be forfeited under any of its provisions, or the provisions of the 5 and 6 Edw. 6. c. 16. the right of such appointment shall vest in and belong to the king. (i) Offences against this act, or the 5 and 6 Edw. 6. c. 16. by any governor, lieutenant-governor, or person having the chief command, civil or military, in his Majesty's dominions, colonies, or plantations, or his secretary, may be prosecuted and determined in the Court of King's Bench at Westminster, in the same manner as any crime, &c. committed by any person holding a public employment abroad may be prosecuted under the provisions of the 42 Geo. 3. c. 85. (k) It is enacted also, that any person who shall commit in Scotland any misdemeanor against this act shall be liable to be punished by fine and imprisonment, or by the one or the other of such punishments, as the judge or judges, before whom the offender shall be committed, may direct. (1) produce, not exceeding 5007., to be paid contains an exception as to the mas- (k) Id. S. 14. (4 49 Geo. 3. c. 126. s. 13. CHAP. XV.] Of Buying and Selling Offices. c. 118. s. 3. purposes. By the 49 Geo. 3. c. 118. s. 3. if any person give or promise any 49 Geo. 3. office, place, or employment, upon any express contract or agree- Giving any ment to procure, or endeavour to procure, the return of any person office, &c. to serve in Parliament, the person returned shall vacate his seat, for election and be incapacitated to serve during that Parliament for the same place; and the person receiving the office, &c. shall forfeit it, be incapacitated for holding it, and shall forfeit 5007.: and any person holding any office under his Majesty, who shall give such office, appointment, or place, upon any such express contract or agreement, shall forfeit the sum of 10001. (m) (m) See this act more at length in the subsequent Chapter on Bribery, p. 159, 160. |