[Josh Chafetz, guest-blogging, July 21, 2008 at 12:19pm] Trackbacks
Leaving the House of Commons,

or, Part I of Leaving the House. Those of you who know your British government know that Members of the House of Commons have never had the right to resign their seats. Instead, they (today) apply for and are, as a matter of course, granted a royal office, the holding of which is incompatible with parliamentary service. This has the effect of vacating their House seats. How this system came about turns out to be fascinating (at least to me).

Parliament's origins are in the medieval curia regis, the King's council. Its job was to assist the Crown in administering the Kingdom. This explains why, until Elizabeth's reign, disputed parliamentary elections were handled by a Crown officer — the King was deeply interested in his parliament's composition. (Legislative jurisdiction over disputed elections is covered in more detail in chapters 7 and 8 of my book. (Still on sale at Amazon! Okay, last plug, I promise.) The kings, as it turned out, had very little interest in allowing their subjects to decline to serve, and they almost never allowed resignations.

Elizabeth faced an increasingly powerful and confrontational House of Commons, and it is during her reign that we begin to see many parliamentary privileges take their modern shapes. This included the House's successful assertion that it, and it alone, had jurisdiction over disputed parliamentary elections and qualifications. Concomitantly, the House asserted (again, successfully) that it, and it alone, had the right to determine whether or not a Member would be permitted to resign. The House, however, did not prove more permissive of resignations than the Crown had been.

Consider, for example, the 1624 election for the County of Gloucester. There were three candidates for the two open seats. The second-highest vote-getter, Sir Thomas Estcourt, had announced in advance that he did not want the seat. After his election, the House Committee of Privileges and Elections had to determine (among other things) "[w]hether Sir Thomas Estcourt was eligible, against his own consent, and contrary to his desire." The committee determined that he was eligible, because

no man, being lawfully chosen, can refuse the place; for the country and commonwealth have such an interest in every man, that when, by lawful election, he is appointed to this public service, he cannot, by any unwillingness, or refusal, of his own, make himself incapable; for that were to prefer the will, or contentment, of a private man, before the desire and satisfaction of the whole country, and a ready way to put by the sufficientest men, who are commonly those, who least endeavour to obtain the place.

However, at the beginning of the eighteenth century, a series of anti-Stuart statutes had the unintended consequence of creating new ways for Members to leave the House of Commons. The 1701 Act of Settlement, in addition to providing that the Crown would pass to the House of Hanover if (as expected) both William and Anne died without heirs, created several limitations on royal power to take effect when both William and Anne were dead. One of these limitations was the provision that anyone who occupied any Crown office or received any Crown pension would be ineligible to serve in the House of Commons. Had this provision gone into effect, it would have radically altered the theory of English government — it would have meant that even Secretaries of State (e.g., the later-developed office of Prime Minister) could not be Members of the House.

Before it could come into effect, however, that provision was replaced by a provision of the 1705 Regency Act, which excluded from the House of Commons anyone holding one of an enumerated list of Crown offices, anyone holding a Crown office created after 1705, or anyone holding a pension at the pleasure of the Crown. Moreover, any Member of the House of Commons who accepted "any Office of Profit from the Crown during such Time as he shall continue a Member" voided his election; however, so long as the office was not one of those enumerated, he could stand for reelection to the House of Commons. If reelected, he could hold both places.

Within a decade, Members figured out that they could use these provisions as a means of vacating their seats, provided they were on friendly terms with the royal officials in charge of doling out Crown offices, especially those offices which had very few responsibilities and/or very little income attached to them. (One of the royal offices used at least twice in the 1710s was Out-Ranger of Windsor Forest. Rangers were royal officials whose job it was to patrol the edges, or "purlieus," of forests and drive back into the forest any deer that might seek to explore life in the larger world. The "Out Ranger" was, as best I can tell, a Ranger who did not live in —- and therefore, did not actually patrol -— the forest for which he was responsible.)

Beginning in the 1750s, royal stewardships became the principal means of vacating House seats, and most particularly the Stewardship of the Chiltern Hundreds. (The Three Chiltern Hundreds of Stoke, Desborough, and Burnham, in Buckinghamshire, were royal properties at least as early as the reign of Edward I. The Hundreds were administered by a Steward, an office of profit under the Crown, appointed in the Exchequer. By the eighteenth century, the office had ceased to carry any administrative functions, nor was it any longer a source of measurable profit. However, it was still formally an office of profit under the Crown, and therefore resulted in the Steward's House seat being declared vacant.)

It is, in fact, still the case today that Members leave their seats in the House of Commons by accepting a Crown stewardship. Today, the Stewardship of the Chiltern Hundreds is granted alternatingly with the Stewardship of the Manor of Northstead. Leaving the House of Commons is colloquially referred to as "taking the Chiltern Hundreds," and one even occasionally sees the Chiltern Hundreds used as a metaphor for a useless office.

A couple of notes that will be relevant as I move into discussing resignations from American legislatures. First, although the Chiltern Hundreds is today granted as a matter of course, this was not always the case. Lord North (who served simultaneously as Prime Minister and Chancellor of the Exchequer) denied it on several occasions in the 1790s, and it was also denied on several occasions in the 1840s. And second, although Crown officers grant the Chiltern Hundreds, this system of leaving House seats came into being as the modern system of ministerial responsibility to Parliament was beginning to take shape. Thus, while the Chancellor of the Exchequer was (and is) legally a Crown officer, he was increasingly answerable to the House of Commons. Thus, Members were still seeking permission to quit their seats from, if not the House itself, at least someone answerable to it.

If you want further documentation of or elaboration on any of the points above, they are summarized from pages 8-19 of the article draft on SSRN. In the next few posts, I'll bring the history of legislative resignation up to the Constitutional Convention.