NEW WRIT FOR THE COUNTY OF WILTSHIRE (WESTERN OR WESTBURY, DIVISION). (Hansard, 19 February 1906)

MR. J. CHAMBEKLAIN (Birmingham, W.)
I rise for the purpose of moving that the debate be adjourned in order to raise a question of considerable constitutional and personal interest. The Motion is that a new writ should be issued on the ground of the appointment of the gentleman named to an office of profit, viz., one of the Commissionerships of the Treasury. But, as a matter of fact, the office concerned is not an office of profit. There is no pay of any kind attached to it; and, consequently, I maintain that the seat is not vacated; that Mr. Fuller is still a Member of the House, and that it is out of order to move for a new writ. It is urged, I know, that though not now an office of profit, this office has been such in times past, or on certain occasions was assumed to be. An illustration has been given us in the shape of the action of the House in regard to the appointment to the Chiltern Hundreds and other similar offices. The House no doubt knows that by its constitution no Member elected to it can relinquish his seat, and in order that he may be able to resign if he wishes to do so, he is presented with an office, and then, under the constitution, which requires anyone accepting an office of profit under the Crown to vacate his seat, he is allowed to resign and a writ is moved for. The great authority on these questions is the work of Sir Erskine May, which states, with regard to the Chiltern Hundreds and other similar offices— These offices, indeed, are merely nominal; but as the warrants of appointment grant them together with all wages, fees, allowances, etc., they assume the form of offices of profit. It is a convenient assumption of something which is not the fact; because 98 although these offices do carry with them all such fees and wages as may pertain to them, as a matter of fact no wages or fees do so pertain and the pecuniary advantage is only imaginary. Still, it has always been held that the fact that on the warrant fees and wages are referred to justifies the House in accepting the appointment as one of profit. I wish to call attention in the first place to the very clear distinction between the office of profit so described on the Warrant and the office to which Mr. Fuller has been appointed. If we turn to Sir William Anson's book on the Law of the Constitution it appears that the Letters Patent which are issued for the Commissioners of the Treasury contain no corresponding phrase. There is no allusion in the Letters Patent to any fees or any pecuniary advantage whatsoever, and there is therefore no pretence for saying in the case of the Lords Commissioners of the Treasury that we may assume, as in the case of a gentleman appointed to the Chiltern Hundreds, that he has been appointed to a place of profit. My contention, therefore, is that in the case of the present Motion there is no vacancy, that the hon. Gentleman cannot relinquish his office, and accordingly I move that the debate be adjourned. But that is not the only point at issue. There is not merely a great constitutional point; there is also a personal point. This hon. Gentleman succeeded to an office previously held by the hon. and gallant Gentleman the Member for West Newington, who was appointed in like manner before the general election to the office of unpaid Lord of the Treasury. Now he has been appointed to a paid lordship, and for the first time he has assumed an office which is undoubtedly one of profit. The House will see that if the contention of the mover of this Motion is correct, and if the office to which the hon. Member for West Wiltshire has, been appointed is an office of profit, then it is merely a transfer which has taken place. But if my differing contention is right, and the office to which the hon. Member for West Wiltshire has been appointed is not a paid office, then the only appointment with which the House has to deal is the appointment of the hon. and gallant Member for West Newington. 99 It is the latter whose seat is vacant and not that of the hon. Member for the Western Division of Wiltshire. There are several other precedents to which I must refer. There is the case of the Lord Warden of the Cinque Ports. It has been held that that is an office of profit, although I believe that there also no money passes, and the holder of the office gains no pecuniary advantage by reason of his appointment. But in the case of the office of the Lord Warden there occur words in the warrant which allow it to be assumed to be an office of profit, The warrant says that the occupant is granted all wrecks, and all fees, rewards, commodities, emoluments, profits, perquisites and other advantages. On that ground, and although as I say these advantages are really unreal, it is assumed to be an office of profit. In 1881 there was the case of the appointment of the present Home Secretary to a similar office to that now in question, but although Sir Erskine May said that the seat was vacated, he did not refer to any debate in the House or any opinion given on the subject. I am bound to point out that that is a case precisely in point, and if it were illegal then the fact that it was done by common consent and without opposition does not make it a sufficient precedent for the present case, neither does it justify it. There is another case, even more in point, the case of the late Mr. King Harman, who, in 1887, was appointed Under-Secretary to the Lord-Lieutenant of Ireland. That also was an unpaid office, and on that occasion it was held that the seat was not vacated and no fresh election took place. I consider that to be a case precisely in point, and I must say that unless we take a common sense view we really are placed in a ridiculous position, because if the hon. Member for West Wiltshire is still a Member, and if under the circumstances the hon. and gallant Member for West Newington has to vacate his seat, the latter, unless he does so, will render himself liable on the information of any person to a fine of a very considerable amount—I believe £500—every time he takes his seat or participates in a division. If my contention is right, the hon. and gallant Member is not entitled to vote in this House, and the hon. Member for West 100 Wiltshire is not entitled to resign. In such cases as these, raising questions of law, it has been the universal practice, a precedent which I hope the Prime Minister will follow, to allow the debate to be adjourned and to appoint a Committee to examine into precedents. I move accordingly.

§ THE ATTORNEY-GENERAL (Sir J. LAWSON WALTON,) Leeds, S.
Notwithstanding the ingenious and forensic argument of the right hon. Gentleman, I think my hon. and gallant friend the Member for West Newington need have no qualms, and can take his seat and vote without being under any apprehension. The right hon. Gentleman has not fully stated the important constitutional question which arises for consideration in this case. The question is not whether Mr. Fuller has or has not assented to make no application for a salary, or whether or not it is proposed to ask Parliament to vote him a salary; but whether the office which has been conferred upon him is within the contemplation of the series of statutes applicable to the case an office of profit under the Crown. There are no less than four Acts of Parliament which deal with the Commissioners of the Treasury, or Lords of the Treasury, as they are popularly called. There is the Act of William III., which disqualified servants of the Crown from sitting in this House, but created an exception in favour of the Commissioners of the Treasury then in being, clearly, therefore, contemplating that Members who held that office were by reason of their tenure of it disqualified from serving in Parliament. Then in the time of Queen Anne came a statute by which reelection was imposed on any Member who took an office of profit under the Crown, and there was a distinct restriction against any increase in the number of the Commissioners of the Treasury, again treating the office as one of profit under the Crown. In another statute power was given to enlarge the number of Commissioners by two. Lastly, and I submit conclusively, there is the statute of 1867, which contains a schedule entitled "Offices 101 of profit under the Crown," and among those offices stands that of Commissioner of the Treasury. In view of these considerations it is very difficultto say that an office of that character has not been conferred upon Mr. Fuller. It is impossible to say that because Mr. Fuller has agreed to accept the office without remuneration, or because it is not proposed to ask Parliament to vote him any remuneration, therefore the office itself does not come under the contemplation of these statutes. There is, further, the precisely analogous case of my right hon. friend the Home Secretary in 1881, in which those eminent authorities Lord James of Hereford and the late Lord.Herschell gave exactly the same opinion; as that at which the present law officers have arrived, and as a result of that opinion a writ was issued for the re-election of my right hon. friend by the then Speaker. I submit that the precedent thus created, with the eminent authorities which I have quoted, decide the present case against the contentions and criticisms of the right hon. Gentleman poposite.

§ SIR EDWARD CARSON (Dublin University)
said this was not a question of a political nature. It was one which might concern a Member of either Party. But it was of importance in view of the position of the hon. and gallant Member for West Newington, that the hon. and gallant Member for West Newington when he went to his constituents at the general election held an office which brought him no profit from the Crown. Now, however, the hon. Member held an office which brought him profit. This question of re-election had never arisen upon an exactly similar case.

§ THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (Mr. HERBERT GLADSTONE,) Leeds, W.
I am a precedent myself. During the last six months of the Government of 1885 I drew pay as a Junior Lord of the Treasury.

§ SIR EDWARD CARSON
said he did not think that that was a precedent, because the present Home Secretary's case was never brought before the House. There was no case, so far as he knew, in which the House had determined that an 102 hon. Member who held an unpaid office did not have to go again to his constituents when pay was attached. If the House that afternoon created a precedent it would be going against the whole spirit of the statutes dealing with the necessity of re-election. There had been many cases since he had held a seat in this House where a Member had been appointed to an office without a re-election being deemed necessary. There was the case of Mr. Darling—now Mr. Justice Darling—who was sent out as a Commissioner of Assize. Pay usually attached to that office, but Mr. Darling arranged to take no salary, and, in consequence of that it was held that no writ was necessary. That was precisely an analagous case to this. The point to be borne in mind was that the hon. Member for West Newington when elected held an office to which no profit was attached. Since his election he had been presented to a salaried office. Was the House going to lay it down that his case did not come within the Act of Parliament which provided that Members accepting offices of profit should vacate their seats. The case being a new one, the proper way to determine it was, he submitted, not by a vote of the House, but by the appointment of a Committee.

§ THE SOLICITOR-GENERAL (Sir W. ROBSON,) South Shields
submitted that in dealing with Mr. Fuller's case, the point to be decided was not whether any particular Member was or was not going to derive profit, but what the office itself was. The earlier statutes treated the office as being one of profit because they imposed limitations on the number of such offices that could be created. It would be a somewhat novel thing in English legislation to find the Legislature anxious to impose limitations on the number of offices with no profit. The Legislature did not mind how many such offices were created, but the moment a salary was attached then the limitation applied. The present office of Mr. Fuller was described as an "office of profit," and it would be impossible for the law officers of the Crown to treat it otherwise than in the way now proposed.