Resignation

Arthur Balfour said in the Commons in 1902 that ‘The acceptance of the Chiltern Hundreds is a dodge which was discovered in the middle of the 18th century, by which the immemorial rule of Parliament, that a man could not resign, was evaded, and which gave the necessary elasticity and alleviation of the rules; and ever since that date, although the rule that a member may not resign has remained in undiminished force, it has always been got out of by this curious practice of taking an office of emolument under the Crown, an office which carries with it no emolument, and which is not, except in any but the most technical sense, under the Crown at all’. What he said still applies: resignation from the House of Commons is achieved through application for one of a small number of notional offices in the gift of the chancellor of the exchequer which are held to disqualify their holders from Membership – usually the Stewardship of the Chiltern Hundreds, sometimes the manor of Northstead, although others have been used in the past: the Stewardships of the manors of East Hendred, Old Shoreham, Hempholme, and Poynings; and the escheatorships of Munster and Ulster (for Irish seats). Their continued use is some indication of how awkward the House seems always to have found the question of those Members who want to resign their seats.

What to do with those who had been elected but were in practice unable, or unwilling, to serve, was a problem with which the House of Commons never really got to grips ( see also this previous blog). The first time we know it to have been discussed was in February 1576, when the House resolved ‘that any person being a Member of the same, and being either in service of Ambassage, or else in execution, or visited with sickness, shall not in any wise be amoved from their place in this House, nor any other to be during such time of service, execution or sickness elected’. The issue arose again in early 1581, early in the third session of the same Parliament (which had been originally elected in 1572). Despite the 1576 resolution, new writs had been issued to replace not only members who had died since the previous session, but also men who were abroad on the Queen’s military or diplomatic service, or simply ill: the House agreed to invalidate these elections, though following representations from individual Members it ordered a new writ in one of the cases (Norwich), and in another (York) decided to allow the substitution. Similar problems were raised in November 1605, when John Hassard, a burgess for Lyme Regis, asked to be excused because of his gout, and was turned down (four years later, in 1610, he was allowed to retire, following a petition from his borough). William Swaddon, a burgess for Calne,  who was said to be ‘weak, and not able to serve, by reason of age, and not likely to recover’ was, however, allowed to retire.

A couple of cases raised in 1605 were further discussed the following year,  following a nudge from the lord chancellor who provided a list of members who were absent in the king’s service – ambassadors, men holding judicial or administrative positions in Ireland, and (slightly incongruously) the attorney general. The Committee of Privileges, who reported on the issue, referred to a recent precedent – the replacement as Member for Westbury in 1605 of Sir James Ley, appointed chief justice in Ireland – and made a distinction between men who were appointed to office under patents for life, who were replaced, and those – such as the ambassadors – who were appointed on a more temporary basis (the distinction presumably applying only to offices that entailed the absence of the holder from Parliament, rather than all offices held as a life patent, for there were many, at least subsequently who held domestic offices under life patents and yet retained their seats). But the House came to no conclusion in relation to the attorney (whose service as an assistant to the House of Lords raised the question) and also avoided (after some confusion) actually coming to a decision on whether any of the appointments actually had the result of voiding an election.

During the 1620s there was a trickle of cases, though none of them were quite so straightforward as the earlier requests to resign on grounds of sickness or absence abroad. One of them, the offer of Robert Bromfield, elected at Southwark to relinquish his claim, to avoid a dispute over the result, elicited a decision from the House that once a Member had been elected, withdrawal was not possible, the first time it seems to have stated this in terms. Another was the case of Sir Thomas Gerrard, chosen for Liverpool, who asked to vacate his seat on 8 March 1624, though the House concluded that he was a Catholic simply trying to evade the obligation to take the oaths of allegiance and supremacy: he quickly went to ground. A third was the case of Sir Thomas Estcourt, at Gloucestershire, who was said to have modestly declined to continue to contest the seat when it became clear that there would be a vote, but the poll continued regardless, and he was elected. His opponent claimed that Estcourt had disqualified himself by apparently declining to serve. According to the very lawyer-like report on the case of John Glanville, the Chairman of the Committee of Privileges and elections, ‘it was held clearly… that no man being lawfully chosen, can refuse the place; for the county 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’. The House agreed with the committee’s decision that Estcourt was lawfully elected, though it made no statement like Glanville’s about whether it was possible to refuse membership.

There were, nevertheless, cases in which this principle was ignored. A member (a Mr Abbot) was refused permission in 1641 to ‘decline his election’, though no further information was given. Andrew Marvell was threatened in 1663 with an attempt to replace him as one of the Members for Hull on account of his absence in Russia on a diplomatic mission. The case of William Leveson Gower, who apparently ‘disclaimed and renounced’ his return for Malton in 1677, was particularly odd. He had secured election for another constituency – the family borough of Newcastle-under-Lyme – since there had been a dispute about his original election in 1673 that was still not resolved.

The issue of resignation was already mixed up with the issue of official service, although only on the grounds of the impossibility of attendance in the Commons when a Member was unable to be present in the Commons either because of his absence abroad on diplomatic or military service or because of his attendance in the House of Lords. The growing concern in the late seventeenth century about attempts to bind individual Members more closely to royal interests through appointment to office would eventually, if accidentally, fuse them together.

The 1694 Act setting up the machinery for a national lottery and also granting the Crown various additional excise duties also contained a provision that no member of the House of Commons should ‘be concerned directly or indirectly’ in tax collection, with the exception of the Commissioners of the Treasury and the officers and commissioners for managing the Customs and Excise. Several members were caught over the next few years by the provision, at least once the House’s attention was drawn to it, and expelled from the House. Two other acts, in 1700 and 1701 added excise and customs officers to the list. A series of Acts passed from 1701 were more comprehensive. The key provisions were in the first Regency Act, passed in early 1706 after a mighty struggle (Royal Assent 19 March 1706, 4 and 5 Anne, c. 20, though also referred to as 4 Anne c. 8). The Act replaced a rather more comprehensive provision in the 1701 Act of Settlement designed to come into effect on the death of Queen Anne and the transfer of power to the House of Hanover, and was the subject of a frantic struggle by the court to avoid the collapse of their patronage powers, and by independent Tory and Whig members to protect a piece of legislation they saw as essential to prevent the growth of executive dominance. The final result listed (section 29) a number of offices whose holders would be barred from sitting in the House of Commons following the dissolution of the existing Parliament, as well as ‘any person having any pension from the Crown during pleasure’; also barred the holders of any new offices created after that time. For good measure it also declared (section 30) that if any Member of Parliament ‘shall at any time after the dissolution or determination of this present Parliament accept of any Office of Profit from the Crown during such Time as he shall continue a Member his election shall be … void and a new Writ shall issue for a new Election as if such Person … was naturally dead’, although, a crucial compromise achieved during the passage of the Act,  it allowed that any such person would be capable of re-election thereafter; and it placed a penalty of £500 on any person sitting or voting in the Commons when disqualified (s. 34). There was an exemption for army and navy officers (s. 32). A second Regency Act, passed two years later after the Union with Scotland (Royal Assent 13 Feb. 1708, c. 41, though also referred to as 6 Anne c. 7), ensured that the provisions came into effect at the beginning of the session of October 1707, deemed to be the first Parliament of Great Britain. (A resolution of the House of Commons of 10 November 1707 had already asserted this point.)

Shortly after the resolution was passed, and well before the second Act, the House obtained from the government lists of the offices specifically listed as requiring exclusion (18 November 1707), and new writs were issued for various Members who were found to be on the lists, though some resigned before they were removed. The practice, envisaged in the Act, of standing again for re-election following disqualification became routine. Among the first was Sir Simeon Stewart, reelected after appointment to an office for life, as chamberlain of the exchequer. It was not long before Members began to use appointment to office as a way of relinquishing their seats. The practice is still sometimes traced to the decision of the House of Commons on 25 November 1740 that the Denbighshire seat held by Sir Watkin Williams Wynne, one of the most senior of Tories in the Commons, was automatically vacated by his acceptance of the office of the stewardship of the lordship and manor of Bromfield and Yale, and it is sometimes implied that the use of the Chiltern Hundreds to enable John Pitt to vacate his seat in 1750 was the first case of voluntary resignation. But as Betty Kemp showed more than sixty years ago, the practice had already become well-established by then. The first obvious case was the appointment of successive Onslows, Thomas in 1715 and Denzil in 1717 to the position of outranger of Windsor Forest which enabled both to relinquish borough constituencies and secure the county seat of Surrey, a position far more suitable to their own view of the status of the family. The Wynne case probably established that disqualification applied to stewardships as well as other offices, which was certainly not immediately obvious. Thereafter a number of Members vacated their seats because they held the stewardships of various manors – such as Otford (1741), Berkhamsted (1752), Kennington (1757) and Shippon (1765). But in these latter cases there were real emoluments attached to the position. It is not difficult to see why after 1750 the Chiltern Hundreds, and, for a while, a small number of other offices which were also worthless to their recipients should have become the normal route for resignation – although in such cases the lack of emoluments, while making the grant easy, also made it doubtful whether they could be regarded counted as offices of profit (the Commons Clerk, John Hatsell, was particularly dubious).

As resignation in this manner became standard practice, it became very clear why the idea should have been treated with considerable suspicion in the first place. It was bad enough that Members should resign their seats in order to set up the constituency to elect another family member; worse were those cases it enabled a patron in control of an individual borough to force the removal of the sitting Member if they found themselves at variance with his political opinions, or simply on a whim. Charles Mellish was forced to vacate his seat at Aldborough in 1784 after falling out with its patron, the Duke of Newcastle, over his adherence to the coalition. Abel Smith was similarly forced to resign the same seat six years before.  Charles Tottenham in 1831  took the Chiltern Hundreds because his father wanted to replace him in the borough of New Ross with a ‘thorough-going Tory’. Even in 1846, well after the Reform Act had altered the relationship between many patrons and their constituencies, Sir Robert Peel complained about how, as the Conservative party split over the Corn Laws, aristocratic patrons would put such pressure on those inclined to vote with his government to resign.

In an unreformed electoral system resignation offered plenty of other ways of gaming the system for the advantage of individuals rather than their constituents – such as, for example, the dodgy deal cooked up in Renfrewshire by John Shaw Stewart and William McDowall in 1780: Stewart would do the first three years of the Parliament and then resign, to be followed by McDowall for the next three. It also offered a way out for some who decided that membership of the Commons was simply not worth it, and wanted to treat the unexpired portion of their term as a sort of lease, to be sold: Charles Beauclerk resigned in 1798 because the opposition (to which he adhered) had no prospect of office, and ‘all those who purchased seats are selling as well as they can’. By resigning he recouped £2000 of his original £5000 outlay on election to his successor. There were plenty who resigned for more acceptable reasons, perhaps in order to avoid the expense of contesting an election petition, such as John Luxmoore in 1785; because of poor health, such as George Johnstone in 1787, three months before his death;  or, in the case of Lord Barrington in 1777, because of his ‘great dislike of the House of Commons’.  Most conscientious of all were those Members whose resignation was sparked by their profound disagreement with their constituents, a practice which may have become more common after 1832, and which Sir Robert Peel, with an eye to his majorities over the Corn Laws, but also to constitutional theory, regarded as particularly dangerous – despite the fact that he himself had followed it in his resignation from the Oxford University seat after his decision to support Catholic emancipation.

What was more concerning than the individual instances of improper use of the ability to resign, was the prospect that the government – which retained the power of conferring any office which would disqualify a Member – would use it for electoral advantage. It was made very evident when in 1769 it enabled Henry Luttrell to relinquish his own seat in order to contest Middlesex against John Wilkes, who had been expelled from the House in a long-drawn out struggle with the government, and then, even though Wilkes came in with a large majority, it ensured that the committee of elections would reverse the result and ensure Luttrell’s election. Something similar happened a few years later on the death of the other member for Middlesex. In early 1775 Lord North’s refusal to grant the Chiltern Hundreds to Nathaniel Bayly, who had been defeated at Abingdon in 1774, but had also been elected at Westbury, provoked some debate on the practice. Bayly wanted to resign his seat in order to have another go at Abingdon, where the victor’s election had been overturned on petition. North’s refusal was clearly on political grounds. George Grenville initiated a debate on the issue in early 1775, shortly after North’s refusal. Grenville was the son of a prime minister in 1763-5 who had been particularly exercised by the abuse of the electoral system (though it has to be said that he was also not above refusing to grant the Chiltern Hundreds when he thought the member concerned might try to intervene in an election against his own candidate). Grenville proposed that the House should have a more straightforward mechanism to enable people to resign their seats through application to the Speaker, rather than enabling a minister to control the system. There was much support for it, but the motion was defeated, albeit with a substantial minority. [Parliamentary History, xviii. 413-14, 15 March 1775]

North continued to turn down requests for the Chiltern Hundreds:  in 1775 he rejected Thomas Foley’s request (Foley wanted to stand for Herefordshire, where North had his own candidate); and in 1776 he rejected the request of George Byng  and accepted that of George Tufnell, member for Beverly, when both sought to contest another vacancy at Middlesex. But the 1775 debate, and North’s failure to secure the election of Tufnell at Middlesex, may have encouraged the convention to form that the government would not, in practice, refuse to appoint any Member who wished it to an office that would effect his resignation. This did, however, remove a potential safeguard to other abuses. The most notorious was exposed in 1842 by the radical James Roebuck, involving the boroughs of Nottingham, Harwich, Lewes, Penryn, Falmouth and Reading. The select committee appointed to investigate found that in each case there had been bribery on each side, and in order to avoid a protracted and expensive case before an election committee the parties’ agents had reached a compromise agreement. Any election petitions challenging the result of the election would be withdrawn; one of the successful members would resign his seat; and the parties would collude in the return of one of the unsuccessful ones at the ensuing election. In the wake of the committee’s investigations the chancellor of the exchequer (Henry Goulburn) did refuse the application of one of those concerned (Lord Chelsea) for the Chiltern Hundreds, a refusal which was believed to be likely to result in Chelsea losing £2,000 in guarantees entered into under the compromise agreement. It also encouraged chancellors to tighten up their practice in asking questions before granting the office, though their inquiries remained perfunctory, as Gladstone outlined in 1880:

The common practice is to consider especially … whether the gentleman who asks for the office can by any possibility be escaping from any duty he owes to Parliament, or any Law under which he has come by his election to Parliament, and holds a seat in Parliament. And the practice is, unless there is some ground or colour of positive objection of the nature I have indicated, to grant the office without making further inquiry.  [26 July 1880]

But dubious cases continued to come in. In 1859 Roebuck raised another case in the House, on the face of it similar to that of 1842, concerning the election of William Mitchell at Bodmin, though this time his motion for an inquiry was defeated. There was more dissatisfaction following the revelation that Edwin James was granted the office in 1861 in order to resign before his exposure as a fraud and a swindler, and the convoluted and messy case of the Liberal minister John George Dodson, who was granted the office in anticipation of a petition relating to the result of his original election for Chester, before his appointment to cabinet office had required another election, at which he was again returned.

The most serious attempt to tidy up this messy corner of the British constitution was mounted by Sir William Harcourt, chancellor of the exchequer in 1893 in the last Gladstone administration. It was provoked by another scandal, that of the fraudster Jabez Balfour: challenged on why he had allowed Balfour to take the ‘honourable’ position of the Chiltern Hundreds, rather than seek to have him expelled him from the House, Harcourt pointed out the difficulty of the latter procedure, and denied the honour attached to the office. A muddle over the unnecessary resignation of another man, Bernard Coleridge, who had inherited a peerage, resulted in the establishment of a select committee, no doubt at the instance of Harcourt himself, who had made clear his desire for reform, to review the system. Though chaired by the Home Secretary, Herbert Asquith, and supported by an immensely long memorandum from Harcourt’s department, the committee never managed to produce any conclusions on the system as a whole. A private bill in 1901 was probably the last attempt to do away with it. It is perhaps only still tolerated because the House found other ways of regularising the expulsion of individuals who were convicted of criminal offences, because most of the other abuses of the system were dealt with through other reforms of the electoral system, and because getting rid of it is far more bother than seems worthwhile.

Betty Kemp wrote in 1956 that ‘the only real defence of the Chiltern Hundreds is negative and equivocal: it has produced an interesting chapter of constitutional history’. ‘The most curious of the many curious survivals in our parliamentary constitution and parliamentary practice’, as Balfour called it in 1902 [Hansard, 17 Feb. 1902, col. 212] maybe it can also stand as one of many examples of the very British tendency to work around a constitutional problem rather than spend political energy by directly confronting it.

Further reading:

Josh Chafetz, ‘Leaving the House: the Constitutional Status of Resignation from the House of Representatives’ Duke Law Journal, Vol. 58, No. 2 (Nov., 2008), pp. 177-236

Betty Kemp, ‘The Stewardship of the Chiltern Hundreds’, in Essays Presented to Sir Lewis Namier , ed. Richard Pares and A.J.P. Taylor (1956), 204-226.

Report from the Select Committee on House of Commons (Vacating Seats) HC (1894) 278, Appendix No. 5.

Factsheet from the House of Commons Library: https://www.parliament.uk/about/how/guides/factsheets/procedure/p11/

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