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tule can never
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,
One who makes a contract for an office contrary to the purport An offender aof this statute, is so far disabled to hold the sane, that he cannot gainst this staat 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 ofice, 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, 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.(6)
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 co
any 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 paymaster“ general of his Majesty's forces, the coinmissioners 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 appointinent or control of “ the East India company,(c) in as full and ample a manner as if
minal at common law. See the judge (6) 5 Bac. Abr. 195. Offices and Ofment of Lord Mansfield in Rex v. ficers (F). Hawk. P. C. c. 67. s. 5. Vaughao, 4 Burr. 2500.
Salk. 468. 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 making or en
" 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
persons shall sell, or bargain for the sale of, or receive, have, or buying or selling, 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 rewards for 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, 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 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 6.3. c. 126. The fourth section enacts, “ that if any person or persons shall S. 4. Persons
“ receive, have, or take, any money, fee, reward, or profit, direceiving or paying 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 offices, and any
“ contract or agree to receive or have any money, fee, gratuity, negociations “ loan of money, reward or profit, directly or indirectly, for any or pretended “ interest, solicitation, petition, request, recommendation, or negociations relating there
“ negociation whatever, inade 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 parly to any ploy:nent under the crown, or the East
“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, 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 per“son 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.”
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 8,5. 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, tices, a misdeand every person aiding or assisting therein, is guilty of a misde- meanor. meanor. And by the sixth section any person advertising any 501. 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 &c. to a penalty of 501.
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 forces at the done in relation thereto by authorised regimental agents not ad- prices regulatvertising and not receiving money, &c. in that behalf. (d) But ed by regi
mental agents. 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. (C)
(d) 49 Geo. 3. c. 126. s. 7.; and the in the battle-axe guards in Ireland. 53 Geo. 3. c. 54. excepts purchases, &c. (C) 49 Geo. 3. c. 126. S. 8. And the of any commissions or appointments commission is to be sold; and half the
6 Edw. 6. c. 16. and as to
49 Geo. 3.
And it is provided also, that every person who shall sell his selling commissions for
commission in his Majesty's forces, and not continue to hold any more than the commission, and shall upon or in relation to such sale receive, regulated directly or indirectly, any money, &c. beyond the regulated price
, guilty of mis- of the commission sold, and every person who shall aid or assist demeanor. such person therein, shall be guilty of a misdemeanor. Further ex- This act contains further exceptions; and provides, that it shall ceptions as to not extend to any office excepted from the 5 and 6 Edw. 6. c. 16. ed from 5 and 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 offices legally
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) Deputations. With respect to deputations to offices, it is enacted, that the act
shall not extend to prevent or make void any deputation to any c. 126.
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 pay
Annual reservations, charges, or payments, out of fees or pro
fits of any office, to any person who shall have held such office, in person former any commission, or appointment of any person succeeding to such ly holding the office, and agreements, &c. for securing such reservations, charges, office.
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) Right of ap- The statute contains an enactment, that when the right, estate, pointment
or interest, of any person shall be forfeited under any of its proviwhen forfeited vests in the sions, or the provisions of the 5 and 6 Edw. 6. c. 16. the right of king. such appointment shall vest in and belong to the king. (i) Trial of Offences against this act, or the 5 and 6 Edw. 6. c. 16. by any offences
governor, lieutenant-governor, or person having the chief command, committed abroad.
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) Punishment of It is enacted also, that any person who shall commit in Scotland misdemeanors
any misdemeanor against this act shall be liable to be punished by in Scotland.
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)
ments out of
produce, not exceeding 5001., to be paid contains an exception as to the masto the informer, and the remainder to ters, six clerks, and examiners, of the go to the king.
chancery in Ireland, till after the death, (f) Id. S. 9.
&c. of the present possessors. (g) 49 Geo. 3. c. 126. s. 10. And see (i) Id. S. 2. ante, 151.
(k) Id. S. 14. (h) Id. S. 11. The twelfth section (1) 49 Geo. 3. c. 126, s. 13.
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 purposes. place; and the person receiving the office, &c. shall forfeit' it, be incapacitated for holding it, and shall forfeit 5001.: 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.