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It is an offence at common law to refuse to serve an office when Refusal to exeduly elected. (6) And the refusal of persons to execute ministerial cute offices. offices to which they are duly appointed, and from the execution of which they have no proper ground of exemption, seems in general to be punishable by indictment.
Thus it has been held to be indictable for a constable, after he has been duly chosen, to refuse to execute the office, (c) or to refuse to take the oath for that purpose. (d) But a person is not liable to Constables. serve the office of constable unless he be resident in a parish. Where, therefore, a person occupied a house and paid all parish rates in respect of it, and carried on the trade of a printer, frequenting the house daily on all working days, and sometimes remaining there during the night at work, but not sleeping in the house, it was held that he was not liable to serve the office of constable in the parish where the house was situated. (e) But where a person occupied a warehouse in M., and usually slept at a lodging-house in M. from Monday till Saturday, when he returned to his mother's in H., where he also had premises, and he did suit and service to the court-leet of H., the Court thought that he was liable to be appointed a constable of M. (f)
It is sufficient, in an indictment for refusing to execute the office of constable, to state that the defendant unlawfully, &c., “ did neglect and refuse to take upon himself the execution of the said office;" and it is not necessary to state that he refused to be sworn. (9) Upon such an indictment, proof that he refused to be sworn is sufficient prima facie evidence of a refusal to take the office; but if it were proved that, although not sworn, he had acted as constable, the refusal to take the oath would not prove that he refused to take the office. (9)
Where there is a special custom of swearing in constables, as in the City of London, it is unnecessary to set such custom out in the indictment. (9)
The 1 & 2 Wm. 4, c.41, which authorizes justices in cases of tumult, riot, &c., to appoint special constables, enacts, by ss. 7 & 8, that
any person appointed and neglecting to take the oath, and act, shall be liable to certain penalties. (h) So a person is indictable for refusing to take upon himself the office of overseer of the poor. (i) For though the poor. the 43 Eliz. c. 2, says only that certain persons therein described shall be overseers, and gives no express indictment for a refusal of the office; yet upon the principles of common law, which are that every man shall be indicted for disobeying a statute, the refusal to serve when duly appointed is indictable. (j) But there should be previous
(6) Rex v. Bower, 1 B. & C. 587.
(e) Rex o. Lowe, 2 Stra. 92. Rex v. Chapple, 3 Campb. 91. Rex o. Genge, Cowp. 13. Rex o. Clerke, 1 Keb. 393.
(d) Rex o. Harpur, 5 Mod. 96. Fletcher o. Ingram, 5 Mod. 127.
(e) Rex 0. Adlard, 4 B. & C. 772. 7 D. & R. 340.
(5) Rex o. Mosley, 3 A. & E., 488, 5 N. & M. 261. See this case as to what is an excessive fine for refusing to serve the office.
(9) Rex o. Brain, 3 B. & Ad. 614.
cial constables appointed under the 1 & 2
(0) Rex v. Jones, 2 Stra. 1145. S. C. 7
(j) Rex v. Jones, 1 Bott, supra.
notice of the appointment; and the indictment should show that the defendant was bound to undertake the office by setting forth how he was elected. (k) And if an indictment for refusing to serve the office of constable on being thereto chosen by a corporation do not set forth the prescription of the corporation so to choose, it is bad; for a corporation has no power of common right to choose a constable. (1)
An indictment for refusing to execute an office must aver that the party had notice of the appointment. (m)
(k) Rex v. Harpur, 5 Mod. 96. In “ take the said office of overseer of the Rex v. Burder, 4 T. R. 778, it was held “parish to which he was so appointed," that an appointment of an overseer of the was held good on demurrer. poor for the year next ensuing must be un- (1) Rex v. Bernard, 2 Salk. 52. I derstood to be for the overseer's year : and an Lord Raym. 94. indictment, stating that the defendant was (m) Rex v. Fearnley, I. T. R. 316. Rex appointed “overseer of the poor of the parish v. White, Cald. 183. Rex v. Winship, “of A.," and that he afterwards refused “to Cald. 72. Rex v. Kingston, 8 East, 41.
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 anything 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 anything 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)
The buying and selling such offices has therefore been considered Offence at an offence malum in se, and indictable at common law. (6) In a common law. 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 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 coast-waiter. 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 offence charged was clearly a misdemeanor at common law. (d)
The case of Rex v. Vaughan, was an attempt only to bribe a Attempt to cabinet minister and a member of the privy council to give the de- bribe a mi;
nister to give fendant an office in the colonies. (e) And where the defendant,
an office, 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
(a) I Hawk. P. C. c. 67, s. 3. Bac. (e) 4 Burr. 2494. A criminal informaAbr. tit. Offices and Officers.
tion was granted against the defendant for (b) Stockwell v. North, Noy. 102. offering the Duke of Grafton, then first lord Moor 781., S. C.
of the treasury, the sum of 50001. as a bribe (c) 4 Burr, 2494.
to procure the reversion of the office of (d) Rex o. Pollman and others, 2 clerk of the supreme court of the island of Campb. 229.
12 Rich. 2, c.
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 and selling offices, by the enactments of several statutes.
The 12 Rich. 2, c. 2, enacted, “ that the chancellor, treasurer, 2. Chancel- keeper of the privy seal, steward of the King's house, the King's lor, &c., to be chamberlain, clerk of the rolls, the justices of the one bench and of will not make the other, barons of the exchequer, and all other that shall be called officers for any to ordain, name, or make, justices of the peace, sheriffs, escheators, gift, &c.
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." (9) 4 Hen. 4, c. 5. The 4 Hen. 4, c. 5, ordained “ that no sheriff shall let his baili
wick to farm to any man for the time that he occupieth such
office.” 5 & 6 Ed. 6, But a principal statute relating to this subject is the 5 & 6 Ed. 6, c. 16. Persons selling offices
c. 16, (h) which, for the avoiding corruption which might thereafter relating to the happen in the officers, in places wherein there is requisite to be had administration the true administration of justice or services of trust, and to the of justice, 4.6., intent that persons worthy and meet to be advanced should thereoffice, and be after be preferred, enacts, that if any person bargain or sell any disabled to
office, or deputation of office, or take any money or profit directly or indirectly, or any promise, &c., bond, or any assurance 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 ; (i) and provides 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. (ii) 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
have such of. fice.
( Rex . Beale, cited in Rex v. Gibbs, I East, R. 183.
(gFor the exposition of this statute see the Earl of Macclesfield's trial, 6 Sta. Tri. 477. 16 Howell's Sta. Tri. 767.
(k) Repealed, “so far as regards the
revenue of customs, or offices in the service
(1) Sect. 3.
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 com- Cases decided missary in ecclesiastical courts, are within the meaning of this sta- upon this statute; (1) also the place of cofferer, (m) and that of surveyor
of the customs; (n) and the place of customer of a port; (0) 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; (x) 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 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 of An offender this statute, is so far disabled to hold the same, that he cannot at against this any time during his life be restored to a capacity of holding it by hold the office. any grant or dispensation whatever. (a)
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 prin- tion of an office cipal make a deputation reserving a less sum out of the salary, it is
(k) Sect. 5. The statute 6 Geo. 4, c. see post, 49 Geo. 3, c. 126, next page. 89, authorised the purchase of the office of (r) Ellis o. Ruddle, 2 Lev. 151. receiver and comptroller of the seal of the (s) Godbolt's case, 4 Leon. 33. 4 Court of King's Bench and Common Pleas, Mod. 223, S. C. cited. and of the custos brevium of the Court of (t) Sparrow v. Reynold, Pasch. 26 Common Pleas by the commissioners of the Car. 2, C. B. Bac. Abr. Offices and Treasury, for certain annuities; and after Officers (F). the confirmation of the agreement by par- (u) i Vern. 98. liament the rights and interests of all pero (w) 2 Vern. 308. Ca. temp. Talb. 40. sons claiming or entitled to claim under (.:) See 1 H. Blac. 326, where it is the letters patent mentioned in the act, are said by Lord Loughborough, C. J., that to cease and determine.
the case in 2 Vern. is contrary to an evident (1) 12 Co. 78. 3 Inst. 148. Cro. Jac. principle of law. 269. Hawk. P. C. c. 67, s. 4.
(y) Purdy v. Stacy, 5 Burr. 2698. (m) Sir Arthur Ingram's case, 3 Bulst. (2) Blankard v. Galdy, 4 Mod. 222.
S. C. Co. Lit. 234, where it is said 2 Salk. 411. 2 Lord Raym. 1245, S. C. that the king could not dispense with this cited 2 Mod. 45. S. P. undetermined ; statute by any non obstante ; and Cro. Jac. and see Bac. Abr. Offices and Officers (F). 385, S. C. is cited.
But if the office, though in the plantations, (n) 2 And. 55, 107.
had been granted under the great seal of (0) 1 H. Blac. 327.
England, the sale of it would have been () Law o. Law, Cas. temp. Talb. held criminal at common law. See the 140. 3 P. Wms. 391, S. C.
judgment of Lord Mansfield in Rex o. (9) Macarty o. Wickford, Trin. 9 Geo. Vaughan, 4 Burr. 2500. 2, B. R. Bac. Abr. Offices and Officers (a) Hob. 75. Co. Lit. 234. Cro. Car. (F). It was also held in this case, that 36). Cro. Jac. 386. Ca. temp. Talb. the statute did not extend to Ireland. But 107.