the Commonwealth by any person whose services are not wholly employed by the Commonwealth.

HISTORICAL NOTE.-In the Commonwealth Bill of 1891, the provisions as to disqualifications and vacancies were contained in clauses 46, 47, 48, and 49 of Chap. I. Clause 46 provided for the disqualification of persons under certain disabilities; clause 47 declared vacant the seats of members becoming subject to such disabilities; clause 48 provided for both disqualification and vacancy in case of contractors; and clause 49 did the same in the case of persons holding or taking an office of profit under the Crown. The same arrangement was followed in the Adelaide draft of 1897; but at the Melbourne session, before the first report, the four clauses were re-arranged into two: one disabling certain persons from being chosen or sitting as members, the other vacating the seats of members in certain cases. The debates will be most conveniently referred to under the heads of the several disabilities:

Foreign Allegiance.-At the Adelaide session, Mr. Gordon suggested the insertion of words removing the disability of a person who has taken an oath of foreign allegiance, if he since become a naturalized British subject. No amendment was moved. (Conv. Deb., Adel., p. 736.)

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Attainder or Conviction.-In the Commonwealth Bill of 1891, the provision was that a person "attainted of treason, or convicted of felony or any infamous crime" should be incapable until the disability is removed by . . . the expiration or remission of the sentence, or a pardon, or release, or otherwise." In Committee, Mr. Wrixon objected to the express provision that an ex-convict might be a member of Parliament, and proposed to make the disqualification permanent; but this was negatived by 27 votes to 9. (Conv. Deb., Syd. [1891], pp. 655-9.) At the Sydney session, 1897, Mr. Barton mentioned a suggestion by Sir Samuel Griffith to substitute more precise terms for "felony or other infamous crime." (Conv. Deb., Syd. [1897], pp. 1020-2.) Accordingly at the Melbourne session, before the first report and after the fourth report, the provision was altered to its present form. (See Conv. Deb., Melb., p. 2445.)

Bankruptcy or Insolvency.—At the Sydney session, 1897, a suggestion by the Legislative Assembly of New South Wales, to omit the disqualification of " an undischarged bankrupt or insolvent or a public defaulter" was supported by Mr. Carruthers, but was negatived. (Conv. Deb., Syd. [1897], pp. 1015-9.) The same omission was again moved by Mr. Carruthers at the Melbourne session. It was argued on the one hand that bankruptcy did not necessarily involve moral delinquency; and on the other that, for the public security, a bankrupt ought to be disqualified until the court has pronounced upon his conduct and given him a discharge. The amendment was again negatived. (Conv. Deb., Melb., pp. 1931-41.)

Office of Profit.-Conv. Deb., Syd. (1891), pp. 660-2, 898; Conv. Deb., Adel., pp. 754-6; Conv. Deb., Syd. (1897), pp. 1028-9. At the Melbourne session, Sir John Forrest moved to insert an exemption in favour of any of the Queen's Ministers in a State," which was agreed to. (Conv. Deb., Melb., pp. 1941-2. See ib. p. 2448.)

At the Adelaide session, Sir Geo. Turner suggested the insertion of a provision similar to section 6 of the Constitution of Victoria, making it penal for any person, while he is a member of Parliament, or within six months after ceasing to be a member, to accept any office of profit under the Crown. After debate a proposal was made by Sir William Zeal, to the effect that until the Parliament otherwise provides, no person while a member or within six months of ceasing to be a member should hold or take any office which would disqualify a person from being chosen or sitting as a member. This was carried by 19 votes to 18. (Conv. Deb., Adel., pp. 739-53, 1198.) At the Sydney session, a suggestion by the Legislative Council of New South Wales, that this provision be omitted, was agreed to by 19 votes to 10. (Conv. Deb., Syd. [1897], pp. 1029-34.)

Agreement with the Public Service.—Conv. Deb., Adel., pp. 736-7; Conv. Deb., Syd. (1897), pp. 1022-8.

General.-At the Sydney session, 1897, Mr. Glynn, in accordance with one of three alternative suggestions made by Sir Samuel Griffith, proposed to insert at the beginning of the clause the words "until the Parliament otherwise provides." This was negatived by 26 votes to 8. (Conv. Deb., Syd. [1897], pp. 1012-5.)

Section 44 enumerates different kinds of status which, while they continue, render "any person" incapable of being chosen or of sitting as a senator or a member. That is to say, the continuance of the disqualifying status makes a person" incapable of becoming or being a senator or a member.

If a disqualified person is declared duly elected, he is nevertheless not chosen within the meaning of the Constitution, and accordingly is not a senator or a member. He is forbidden to sit as a senator or a member, and is liable to a penalty if he does so sit. This section does not, like the next section, declare that "his place shall become vacant," because he is incapable of having a place. The proper course for the House, upon proof of the disqualification, is either (1) to declare the candidate next on the poll duly elected, or (2) to declare that the seat is vacant-not that "his place is become vacant "—and require another election.

§ 143. "Allegiance, Obedience, or Adherence."

Allegiance is the lawful obedience which a subject is bound to render to his sovereign. Allegiance is of three kinds: natural, acquired, or local. (1) Natural allegiance is that which every subject born from his birth owes to his sovereign. He is said to be a natural liegeman, as the sovereign is said to be his natural liege lord. (2) Allegiance is acquired where one is naturalized, or made a denizen. (3) The allegiance owed by every resident in the British dominions for the protection he enjoys is called local. It is customary, however, at the present day to restrict the use of the word to the first and second of these-the bond which attaches a subject to his sovereign-though some authors still speak of "local allegiance" as due by both British subjects and aliens alike, while within the dominions of the Crown, to distinguish it from the allegiance due by British subjects on foreign soil, and entitling them also to protection there. Under British law, until the Naturalization Act of 1870, no naturalborn British subject could divest himself of his allegiance; but since that Act he may make a declaration of alienage, and thereafter he ceases to be a British subject. Aliens, on naturalization, are required to take an oath of allegiance (see Naturalization Act, 1870, 33 and 34 Vic. c. 14, s. 9; Naturalization Oaths Act, 1870, 33 and 34 Vic. c. 102; and Regulations issued by the Home Office in exercise of the powers contained in the Naturalization Acts, 1870. Encyclopedia of the Laws of England, vol. i. p. 225.)

§ 144. "A Subject or a Citizen."

A subject is one who, from his birth or oath, owes lawful obedience or allegiance to his liege lord or sovereign. "Citizen" is the term usually employed, under a republican form of government, as the equivalent of "subject" in monarchies of feudal origin. (Ency. of the Laws of Eng., iii. p. 35.) See Note § 463 infra, "Subject of the Queen."

"While the active duties of the citizen of a Commonwealth can hardly be discharged beyond the territories of that Commonwealth, the duties of the subject of a king, the subject, that is, of a personal master, are as binding on one part of the earth's surface as on another. I have just used words which go to the root of the matter. I have used words citizen' and 'subject.' The difference between the two conceptions can nowhere put on a more living shape than in the use of those two names. The Greek would have deemed himself degraded by the name of 'subject.' To him the word that best translates it expressed the position of men who, either in their own persons or

in the person of the cities to which they belonged, were shorn of the common rights of every city, of every citizen. We use the word 'subject' daily without any feeling of being lowered by it. It has become so familiar that it is assumed as the natural phrase to express membership of a political body, and it is often used when it is quite out of place. I once read, and that in a formal document, of a 'Swiss subject,' and I had the pleasure of explaining that there had been no subjects, no Unterthanen, in Switzerland since 1798. And the question comes, What are we to say instead? Swiss citizen,' 'French citizen,' citizen of the United States,' have this awkwardness about them, that the community whose membership they express is not a city. The very awkwardness points to the main difference between the world of old Hellas and the world of modern Europe, the difference in scale. Be it kingdom or be it commonwealth, the State with which modern politics have to deal is not a city but something vastly greater." (Freeman, Greater Greece and Greater Britain, pp. 23-24.)

$ 145. "Attainted of Treason."

In 1870 O'Donovan Rossa, a convict in prison under sentence of penal servitude for life for felony under the Treason-Felony Act, 11 and 12 Vic. c. 12, was returned as member of the House of Commons for the County of Tipperary. It was contended that as he was not " attainted of treason" there was no disqualification, but the House determined that "John O'Donovan Rossa having been adjudged guilty of felony and sentenced to penal servitude for life, and being now imprisoned under such sentence, he has become and still continues incapable of being elected or returned as a member of the House," and a new writ was issued.

$146. "Or has been Convicted, and is Under Sentence for any Offence."

An offence is some act or omission which is triable and punishable, either on indictment or information, in a superior court before a jury, such as a felony or misdemeanor, or summarily before Justices, according to the direction of the law creating the offence. A person convicted of an offence of any description against the law of the Commonwealth or against the law of a State, whether it be felony or misdemeanor, or an offence punishable on summary conviction, and undergoing sentence of imprisonment for the term of one year or more, is disqualified for membership until he has served his sentence.

In England persons convicted of treason or felony, and sentenced to imprisonment with hard labour, or for a term exceeding twelve months, are incapable of being elected members of the House of Commons or of sitting and voting therein until they have served their sentence. (33 and 34 Vic. c. 23, sec. 2.) Conviction for misdemeanor or offences punishable summarily does not disqualify for membership of the House of Commons. The House, however, has jurisdiction to expel any member guilty of an infamous or disgraceful offence, even though it does not amount to a felony followed by a conviction and sentence as above defined.

In 1875 John Mitchel was returned to the House of Commons for the County of Tipperary, without a contest. It was well known that he was an escaped prisoner and had not completed the term of transportation for which he had been sentenced. A new writ was accordingly issued, and Mitchel was again returned to the House, after a contest. The defeated candidate filed a petition against Mitchel's return and praying for the seat. It was referred to the Court of Common Pleas in Ireland, and the petitioner, who had given due notice of the disqualification, was adjudged entitled to the seat. (May, 10th ed. pp. 33 and 619.)

$147. "Office of Profit under the Crown."

A person holding an office of profit under the Crown is incapable of being chosen or of sitting as a senator or as a member of the House of Representatives. This general disqualification would apply to persons holding office under the Crown in any part of the British dominions, with the exceptions mentioned at the end of this section, viz., (1) the

Queen's Ministers of State for the Commonwealth; (2) the Queen's Ministers for a State; (3) officers or members of the Queen's army or navy in receipt of pay, half-pay, or a pension; and (4) to officers or members of the naval or military forces of the Commonwealth whose services are not wholly employed by the Commonwealth.

The office of President of the Senate, or Speaker of the House of Representatives, with a salary annexed thereto, would not be an office of profit under the Crown. Those dignitaries are appointed by the respective Houses, not by the Crown; they are not servants of the Crown. (See Conv. Deb., Melb., p. 2448.)

"In England the holders of new offices under the Crown created since 25th October, 1705, are incapable of being elected or of sitting and voting (6 Anne, c. 41, s. 24) unless a statutory exception has been made in favour of such new offices. By sec. 25, members of the House of Commons accepting from the Crown old offices, that is to say, offices created before 1705, vacate their seats, but may be re-elected." (Encycl. Laws of England, ix. p. 399.)

No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the United States shall be a member of either House during his continuance in office." (Const. of U.S. Art. I. sec vi. subs. 2.)

In England, persons in receipt of pensions from the Crown, during pleasure, are disqualified by 6 Anne c. 41, sec. 24; but under 32 and 33 Vic. c. 15 and c. 43, this does not apply to pensioners in the diplomatic and civil services. Persons disqualified under this Constitution are those in receipt of pensions payable out of the revenues of the Commonwealth during the pleasure of the Crown. Pensioners paid out of the Imperial revenue, or out of the revenues of States, are subject to no disability under this

section.

$149. "Interest in any Agreement."

This is a disability arising from any contract or agreement for valuable consideration, which any person may have entered into to supply any goods or perform any service to the Government of the Commonwealth. In England, Government contractors are disqualified under 22 Geo. III. c. 45, sec. 1. The reason for the disqualification of Government contractors is that they are supposed to be liable to the influence of their employers.

$150. "The Queen's Ministers of State for the Commonwealth."

The Queen's Ministers of State for the Commonwealth, appointed by the GovernorGeneral under sec. 64, are exempt from the general prohibition directed by sub-sec. iv. against office-holders and place-holders occupying seats in the Federal Parliament. It is one of the fundamental principles of the existing system of responsible government, that Ministers of the Crown should be capable of being members of Parliament, and that they should not hold office for any lengthened period, unless they are members; the reason being that they are responsible to Parliament for their political conduct, and should therefore be present in one of the Chambers in order to answer questions respecting the administration of their departments, to hear Parliamentary criticism, and, if necessary, to defend themselves when attacked.

$151. "The Queen's Ministers for a State."

The members of a State legislature are not debarred from becoming members of the Federal Parliament (see Historical Note to sec. 43), and it was thought equally desirable that the members of a State Government should not be so debarred.

§ 152. "Officer or Member of the Queen's Navy or Army.” Under this exception to the rule for the exclusion of place-holders, a person in the receipt of pay, half-pay, or a pension, as an officer or member of the Imperial Navy, or of the Imperial Army, is qualified to be a member of the Federal Parliament. In England, the statute 6 Anne c. 41, s. 27, contains an exception in favour of officers in the army and navy accepting a new commission.

Vacancy on happening of disqualification.

45. If a senator or member158 of the House of Representatives

(i.) Becomes subject to any of the disabilities mentioned in the last preceding section: or

(ii.) Takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors: or

(iii.) Directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State :

his place shall thereupon become vacant.

HISTORICAL NOTE. -For reference to the corresponding provisions of the Commonwealth Bill of 1891, and the Adelaide draft of 1897, see Historical Note, sec. 44.

The provision as to fees or honorariums was first suggested by Mr. Carruthers at the Adelaide session, 1897, and ultimately agreed to. (Conv. Deb., Adel., pp. 737-8, 1034-44.) At the Sydney session, a suggestion of the Legislative Council of New South Wales, to omit the paragraph, was negatived. (Conv. Deb., Syd. [1897], p 1028.) At the Melbourne session, after the second report, Mr. Reid moved to insert "or for work done or services rendered in Parliament for or on behalf of any person or corporation.” This was agreed to. (Conv. Deb., Melb., pp. 1944-7.) After the fourth report, verbal amendments were made. (See Conv. Deb., Melb., pp. 2448-9.)

§ 153. "If a Senator or Member."

The preceding section enumerates different kinds of status, which, while they continue, disqualify "any person from becoming or being a senator or a member; this section enumerates different acts or events which, if they are done by or happen to a senator or a member, disqualify him from continuing to be a senator or a member. The preceding section refers to the continuing existence of a disqualifying status; this section to the happening of a disqualifying event. This section therefore deals only with senators or members who were qualified at the time of their election, but who become disqualified afterwards.

The disqualifying event mentioned in sub-sec. i. is the acquirement of any of the kinds of status enumerated in the preceding section. If such status existed at the time of the election, the person affected is not a senator or a member; he is dealt with under the preceding section. But if, after becoming a senator or a member, he "becomes subject to" the disability, eo instanti his seat is vacated under this section.

The disqualifying acts mentioned in sub-secs. ii. and iii. are acts which do not involve a continuing status, but which, if done by a senator or a member, vacate his seat.