The New Irish Constitution

An Exposition and Some Arguments

Edited on Behalf of The Eighty Club by

J. H. Morgan, M.A.

Professor of Constitutional Law at University College, London

Late Scholar of Balleol College, Oxford

“For the later kindness done in season, though small in comparison, may cancel a greater previous wrong”—Thucydides I. 42.

Hodder And Stoughton

Londo, New York, Toronto

1912

Contents

[pg i]

Introduction

A word of explanation seems necessary as to the origin of this work, its design, and the obligations under which it has laid the Editor. The Committee of the Eighty Club requested me some few months ago to undertake the preparation of a book dealing with the Irish question. They did me the honour of leaving entirely to my discretion both the design of the work and the choice of the contributors. Of books about Ireland, particularly of those which wear the livery of political parties, there are enough and to spare. Most of them are retrospective. I am not insensible to the value of a historical argument—as the design of the second part of this book sufficiently attests—but “few indeed,” as Burke has remarked, “are the partisans of departed tyranny,” and it seemed to me more profitable to pay some attention to the present and the future. The restoration to Ireland of her Parliament is an event which not only appeals to the imagination of the historian, but also stimulates the speculation of the jurist, and invites the assistance of the administrator. I have, therefore, attempted in the earlier part of this book to secure a sober and dispassionate study of the new order of government by writers who can speak with the authority of a life's vocation. Their names need no commendation from me.

The second part of the book may be regarded as supplementary to the first, in that it deals with constitutional history. When public men of such distinction as Mr. Balfour can speak of Irish patriotism, in so far as it used a Parliamentary vocabulary, as an exotic, and Irish nationality as a political afterthought, it seems not unimportant to show, as Mrs. J. R. Green and Professor Pollard have here shown, that the title-deeds of that nationality are not the forgeries of a political scriptorium, but are as authentic as anything an Englishman can boast. No one who has served any apprenticeship to Irish history needs to be reminded of the indomitable charm with which Irishmen have always taken captivity captive, and naturalised the alien and the oppressor. No argument for Irish nationality is more potent than this. One may, if one is so perverse, think Bolton pedantic, Molyneux curious, Swift rhetorical, and Grattan forensic, but there is no denying that these Anglo-Irish champions of Irish nationality spoke with a truly native passion. Nor is it a little remarkable that at the eleventh hour history should have repeated itself, and that the heart of the ruling caste should have throbbed, as Lord Dunraven has shown in his remarkable chapter, with a new impulse toward self-government. Grattan's Parliament, as one may read in Mr. Gooch's essay, was composed of men of much the same antecedents and prestige as those who are associated with Lord Dunraven in that significant movement of Irish Unionism which has to-day met Nationalism half-way. That Parliament is about to be restored to Ireland under conditions, which, as Lord Fitzmaurice shows, are, allowing for the difference in time and in the categories of political thought, substantially those which the Rockingham Ministry would, had they been free [pg iii] agents, have imposed in 1782. Their imposition would have precluded the union, and we should have been saved that sorry story, to be read in Mr. Barry O'Brien's succinct pages, of concessions delayed until they had lost their grace, and promises redeemed when they had lost their virtue.

Much of these historical chapters is but melancholy reading. But it is for Englishmen to remember these things, as it will be, I hope and pray, for Irishmen to forget them.

The third part of the book comes nearer home. At a time when our fellow-subjects across the oceans are repudiating, as Irishmen have repudiated, the name of “colonists,” with all its suggestions of the dependent tenure of Roman law, and are claiming, as Irishmen long ago claimed, the status of a “dominion,” it does not lie with Englishmen, least of all of the Imperialist school, to challenge the claims of the Irishmen of to-day to nationality. Professor Hobhouse reminds us that where this stubborn non-conformity to the ruling order endures, it must be accepted as the touchstone of nationalism. But the Irish demands are reinforced by English exigencies, and, as three Liberal Members of Parliament remind us, the Imperial Legislature is already disintegrating domestically under the stress of its manifold burdens. Not for the first time is the path of justice thus discovered to be also the path of expediency.

In the later chapters of this book will be found a view of the present state of Ireland, from the pens of those best qualified to speak of it, the pens of men who have spent their lives in ministering to her people. I would commend to the attention of the reader those chapters, in which a great dignitary of the Roman Church, a distinguished scholar of the Church of Ireland, and [pg iv] two members of Nonconformist bodies, who stand high in their respective communions, pray for the deliverance of the social life of their country from the obsession of a busy and alien fanaticism.

Dea magna, dea Cybelle, dea domina Dindymi,

Procul a mea tuus sit furor omnis, era, domo:

Alios age incitatos, alios age rabidos.

It must be understood that the responsibility for each chapter is confined to the person who wrote it. We are all united in a common allegiance to the principles of Home Rule, but that allegiance is not incompatible with some diversity of view as to the form which it should take. It seems to me that the book gains, rather than loses, in value by this degree of latitude of opinion. It is, perhaps, hardly necessary to add that the order in which the chapters appear makes no pretence to anything so invidious as an order of merit—otherwise the first chapter would have been the last; it is designed simply with a view to a logical sequence.

I wish to thank Lord Haldane and Mr. Birrell for the enjoyment of certain privileges in the preparation of the book, without the concession of which its appearance at this moment would have been impossible. I have also to thank Lord Haldane for reading the proofs of my own chapter on the Government of Ireland Bill, and giving me the benefit of that profound learning which is always so generously placed at the service of the student who seeks its guidance. To my friends, Lord Fitzmaurice, Mrs. J. R. Green, and Mr. J. A. Spender, I am indebted for many kind offices of a [pg v] diplomatic character. Throughout the conduct of my editorial task I have had the wise counsel and unfailing support of Mr. Bourchier Hawksley, the Chairman of the Home Rule Committee of the Eighty Club, and to him I desire to express my grateful acknowledgments.

J. H. Morgan.
The Temple.
May, 1912.

Part I. The New Constitution

I.—The Constitution: A Commentary. By Professor J. H. Morgan

“Home Rule is at bottom Federalism,” we are told[1] by the most distinguished jurist among its opponents. It is urged against it that Federal Governments are almost invariably weak Governments, and that, in so far as they are strong, they are as “symmetrical” as the new constitution is unsymmetrical. Cornewall Lewis once thought it necessary to write a book on the Use and Abuse of Political Terms, and there is a great danger in the present controversy of our being enslaved by the poverty of our political vocabulary. The term “Federalism” is put to such new and alien uses as to darken counsel and confuse thought. That Federal Executives are usually weak, that in the dual allegiance of a Federal system men often prefer the State authority which is near to the Federal authority which is remote, that the respective limits of Federal and State legislation are defined with difficulty and observed with reluctance, that conflict of laws is more often the rule than the exception, that [pg 004] Federal constitutions are rigid rather than flexible, and, in a word, that progress is sacrificed to stability: all these things are true, and all these things are irrelevant. The Government of Ireland Bill is not, and cannot be, the corner-stone of a Federal system for the United Kingdom, although its duplication in the case of Scotland and of England would not be impossible, should it appear desirable. We may, for want of a better term, call it the foundation of a system of Devolution, but we must not call it Federalism.

Putting on one side for the moment the question whether Home Rule is Federalism or not, I am inclined to enter a protest against all these attempts to fit the Bill into the categories of the jurist. It is very doubtful whether any two constitutions in the world, even federal constitutions, can be brought under one species. Two of the most successful “federal” constitutions present the gravest anomalies to the theorist. The Canadian Constitution, according to Professor Dicey, betrays a logical fallacy in the very words of its preamble;[2] and German jurists have wrangled no less inconclusively than incessantly about the legal character of the Empire and as to where its sovereignty resides;[3] yet in neither case has the practical operation of these constitutions been much the worse for the legal solecisms which they present. Indeed, it would not be too much to say with Aristotle that the “mixed” and not the “pure” type of government is the most successful, [pg 005] and that when Federalism is, as in the United States, at its purest, it is also at its weakest. The constitution of Imperial Germany ought, on this kind of reasoning, to be a flagrant perversion, and yet it has persisted in enduring for some forty-one years, and the prestige of its principal organ, the Bundesrath, although violating all Mr. Balfour's principles as to “equality” in its constitution, is, according to the doyen of the constitutional lawyers of Germany, increasing every day.[4] The argument that “Federalism” is incompatible with the preponderance of the “predominant partner,” and that no “federal” union is possible in these islands owing to the superior position occupied by England, would, even if it were relevant, be easily refuted by the example presented by the hegemony of Prussia.

The same objection may be urged against the contention that the grant of self-government, whether to Ireland alone or to the rest of the United Kingdom, is both reactionary and unprecedented. The progress of all civilised communities, we are told, is towards political integration, not away from it. Devolution, it is said, is gratuitous in the case of a “United” Kingdom whose very union represents an ideal imperfectly achieved by the less fortunate countries which have had to be content with something less complete in the form of Federalism. Nations or Colonies mutually independent federate as a step towards union; it is “unprecedented” to reverse the process and qualify union by looser ties of cohesion. Now this attempt “to construct a normal programme for all portions of mankind”[5] cannot be sustained. If it [pg 006] could, it would avail as a conclusive argument against the grant of self-government to our Colonies whose claims to legislative independence grow with their growth and strengthen with their strength.[6] But it is not even true of Federal Unions. Anyone who takes the trouble to study the history of judicial interpretation of the American Constitution will find that there is a constant ebb and flow in the current of “unionism.” The intention of the framers of the 14th Amendment to create a United States citizenship has been largely neutralized by the decisions of the Supreme Court, which have inclined strongly in the direction of the legislative autonomy of the States.[7] Nor is this all. We are told that Federal Constitutions are “round and perfect and self-contained,”[8]—that they are characterized by “equality” of all the parts—and that, like the work of the divine law-giver of early communities, they are finished the moment they are begun.[9] But these confident inductions cannot be sustained. The history of the constitution of the United States and of Imperial Germany tells another story—a story of ancillary communities and dependencies in various stages of political apprenticeship. If we look for the American Constitution where all such constitutions must really be sought, that is to say not in the original text, but in the commentary of the courts, we shall find a truly remarkable tendency of late years to [pg 007] emphasize this heterogeneity, inequality and incompleteness.[10]

The new Bill proposes a delegation of authority, both executive and legislative. Unlike a Federal constitution, it contemplates no distribution of sovereignty (begging a question which has often vexed the jurists as to the partibility of sovereignty). The new Government in Ireland will, indeed, be carried on in the name of the Crown, the writs of the Irish Court will run in the King's name, the statutes of the Irish Parliament will be enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Senate and Commons. But the Imperial Government and the Imperial Parliament will remain supreme. The executive power in Ireland will continue vested in His Majesty, though some prerogatives may be delegated to the Lord-Lieutenant who, as respects them, will exist in a dual capacity—some of these he will exercise on the advice of the Imperial Government, others on the advice of the Irish Government. So far, however, as the law, as distinguished from convention, is concerned, he will be in no way bound to act on the advice of his Irish Ministers except in so far as his “instructions” require him to do so. The words of the Bill do, indeed, contemplate with more explicitness than is usual in our written constitutions, a transfer of executive as well as of legislative authority, but they are by no means exhaustive, and [pg 008] they still leave it to His Majesty to determine[11] what prerogatives shall be delegated after the Act has come into force. As regards the legislative power, it will remain with the Imperial Government to give it effect by granting or withholding the King's assent to Irish legislation,[12] and the Imperial Parliament may, at any time, exercise its supremacy to the prejudice of such legislation, even after it has found its way on to the Irish statute-book. As regards the judiciary, there will, of course, be no dual judiciary: Irish Courts will interpret and enforce Imperial as well as Irish statutes, but both in the one case and in the other their judgments will be subject to appeal to an Imperial Court—the Judicial Committee of the Privy Council. In other words, the Imperial power will be supreme in the executive, the legislative, and the judicial sphere.

Now in Federalism in the true sense—and I regard the constitution of the United States as the archetype—there is no such subordination. The authority of the constituent states and of the Federal nation are distinct and independent of one another. The Governor of the State is appointed not by the Federal authority, but by the State itself, whose servant he is. There [pg 009] is no “Crown” to serve as a common denominator of State and Federal Executives.[13] The one is not subordinate to the other, but is co-ordinate with it. The legislation of the State is subject to no external veto by the President. Nor is it subject to a legislative veto. In all matters not expressly conceded to the Federal Legislature, the State Legislatures remain as supreme after the enactment of the Federal Constitution as they were before it. In the legislative, as in the executive, sphere, the two authorities are co-ordinate. So with the judiciary. The decisions of the State Courts, in so far as they deal with State matters, and do not involve the interpretation of the Federal Constitution, are final and subject to no appeal to the Supreme Court at Washington. Conversely, Federal Circuit Courts exist independently of the State Courts to decide cases arising under Federal statutes or involving the interpretation of the Federal Constitution, and their judgments are enforced not by the State Executive but by the Federal Executive, which has its own marshals for the purpose. Nor can an act done by a Federal official, in obedience to a Federal statute, be punished by the State Court, even though it appear to involve a breach of a law of the State.[14]

It is this dual allegiance that constitutes the inherent weakness of all Federal systems. Arguments based upon it have been urged against the grant of self-government to Ireland. Even those who admit that Federal analogies have no application so far as the relations of the Imperial and Irish legislatures are concerned, and who concede that the Irish Parliament will be as subordinate as a State Parliament in a Federal system is co-ordinate—none the less insist that in the relation of the two executives there is a real and perilous dualism. Many opponents allege, and no doubt, believe, that, with an Irish Parliament sitting at Dublin, the King's Writ will not run, the decisions of the Judicial Committee will not be enforced. Imperial statutes will not be obeyed, and Imperial taxes will not be collected. If there were a real delimitation of Courts and Executives, Imperial and Irish, under the new system, such a danger, though remote, would be conceivable. But no such sharp distinction is to be found in the Bill. In political unions, the central Government may act upon its subjects in a particular state directly through its own agencies—its own Courts, its own Executive officers, and its own police—this is the true Federal type; or it may act indirectly through the agency of the State authorities. Conversely, the State Governments may act directly through their own agencies—this again is the Federal principle, or they may act indirectly through Imperial agencies. Now wherever this indirect action is employed in both its forms the distinction between the two authorities is confused, the Federal principle undergoes a qualification which, by depriving it of half its symmetry, deprives it of all its weakness. Just this reciprocal relationship is established between the Imperial Government and the Irish Government.

Imperial officials will be at the service of the Irish Government, and Irish officials at the service of the Imperial Government. For example, in the collection of taxes imposed by the Irish Parliament, the Irish Government will depend upon Imperial revenue officers to assess and collect them. The Imperial Government, on the other hand, will depend upon Irish Courts and Irish sheriffs to enforce their collection. Irish sheriffs will, in turn, depend upon an Imperial constabulary to assist them in levying execution. I shall return to some of these points in greater detail when I come to deal with the relations between the Executive and the Judiciary, and the maintenance of law and order. It is sufficient for me to remark here that the Irish Nationalist who wishes to defy the Imperial Government, and the Irish Unionist who wishes to defy the Irish Government, will each be hard put to define what he is pleased to regard as the limits of political obligation. He will find it difficult to distinguish where the authority of the Irish Government ends and that of the Imperial Government begins.

The Supremacy of the Imperial Parliament.

In the new Bill the supremacy of the Imperial Parliament is secured by express words. The words are not necessary. No Parliament can bind its successors, and what one Parliament has done another Parliament may undo. Even when one Parliament has been at pains, by declaring its legislation “perpetual” or “unalterable” to bind posterity—as in the case of certain clauses in the Irish and Scotch Acts of Union—its injunctions have been disregarded by its successors with no more formality than is necessary in the case of any other legislation. An Act setting up a new Constitution is no more irrevocable than an Act authorising the [pg 012] imposition of the income tax. If, therefore, the Imperial Parliament chooses to grant a Constitution to Ireland, there is nothing to prevent its revoking or amending that grant, even (we submit) though it should have been at pains to enact that the Constitution could only be surrendered or altered by the consent of the Legislature which that Constitution created. Some doubts did, indeed, arise as to this point in the case of the Home Rule Bill of 1886, which not only excluded the Irish members from Westminster, but made provision for the amendment of the new Constitution by stipulating that such amendment should be made, if at all, by the joint authority of the Irish and English Parliaments. Whether this would have had the effect of preventing the “Imperial” Parliament from amending such a Home Rule Act without calling in the assistance of the Irish Parliament was much discussed at the time.[15] Obviously, the question does not now arise, as the Irish members are to continue to sit at Westminster.[16]

It is therefore open to the Imperial Parliament at any time to repeal or amend the Government of Ireland Bill after it has become law. On the other hand, the Irish Parliament will have no power, except in so far as such power is conceded by the Act itself, to alter its provisions. This is stated in the Bill itself,[17] but the statement is superfluous. It follows from the doctrine of the supremacy of the Imperial Parliament that statutes of that Parliament can only be repealed by the Parliament itself. No constitution granted to a British Colony, however large the grant of self-government it contains, can be altered by that colony unless the power to alter it is expressly conceded. Such a power, when the Constitution itself does not prescribe some particular method of constitutional amendment, has indeed been granted in general terms by Section 5 of the Colonial Laws Validity Act, but this Act could not apply to Ireland, which is outside the legal definition of a colony contained in the Interpretation Act of 1889. The only powers of constitutional amendment which the Irish Legislature will possess are those expressly conceded in Clause 9, which enables it after three years from the passing of the Act to deal with the franchise and with re-distribution.

The Irish Parliament will, of course, have power to [pg 014] repeal any existing Acts of the Imperial Parliament in so far as they relate to Ireland, and do not deal with matters exempted from its authority. It would be impossible for it to legislate for the peace, order, and good government of Ireland if it had not this power, and the power is implied in the general grant. But if the Imperial Parliament chooses to continue to legislate for Ireland, even in matters in regard to which the Irish Parliament has been empowered to legislate, such Imperial legislation will be of superior obligation. This is also a corollary of the doctrine of the supremacy of Parliament, and it was not necessary to state it in the Bill.[18] The grant of particular legislative powers to Ireland does not prevent the Imperial Parliament from subsequently legislating in derogation of those powers. The supremacy of the Imperial Parliament is as inexhaustible as the fountain of honour.

It is just here that the divergence from Federal principles is most marked. Under the British North America Act the legislative powers of the provinces are “exclusive” of Dominion legislation within their own sphere.[19] So, too, in the case of the Australian Constitution, under which the residuary legislative powers remain with the States, the Federal Parliament is excluded from legislating in any matters not expressly conceded to it. The result is seriously to limit the operations of such powers as it does possess. It has, for example, [pg 015] over Customs and Excise, but there are other ways of giving a preference to a trade than by the imposition of duties: a low standard of factory legislation may operate in the same direction, as the Federal Parliament found to its cost when it attempted to pass an Excise Tariff Act, depriving manufacturers of the advantages of the new tariff in those States in which a certain industrial minimum was not observed. The Act was held invalid by the High Court[20] on the ground that it exceeded the powers conferred on the Federal Parliament by the Constitution, and encroached on the exclusive powers of industrial legislation which belonged to the States. No such situation would be possible under the Government of Ireland Act, because the powers of the Irish Legislature are not exclusive of the powers of the Imperial Parliament, but merely concurrent. And whenever an Irish and an Imperial statute conflict, the rule of construction will be in favour of the latter.

The Powers of the Irish Parliament

The Irish Parliament is given a general power to make laws for “the peace, order, and good government” of Ireland. The words are those usually employed in the grant of legislative power in colonial constitutions, and they have been interpreted as authorising “the utmost discretion of enactment for the attainment of the objects appointed to them.”[21] No considerations of policy or equity or repugnancy to the common law would avail to challenge an Irish statute on the ground that it was ultra vires. Within the limits assigned to it the Irish Parliament will have authority [pg 016] as plenary and as ample as the Imperial Parliament itself possesses or can bestow, and it may, if it so pleases, delegate this authority.[22] The Irish legislature will, however, have no power to legislate extra-territorially.[23] It could not, for example, pass a law to punish the Irish subjects of the Crown for offences committed outside Ireland.

Now, these powers are undeniably large—larger, indeed, than is usually the case even in Federal systems where the unenumerated or “residuary” powers are left to the State. It is conceivable that they might be exercised to the prejudice of the Imperial Government and of the union of the two kingdoms, and there is nothing in these clauses of the Act to prevent them being so exercised. Treating it as a statute on the ordinary principles of the interpretation of statutes, the Judicial Committee would have no option but to regard as valid any legislation of the Irish Parliament that did not come within the exempted powers. With policy they are not and would not be concerned. But then it must be remembered that there is the possibility of the exercise of the veto of the Imperial Government in cases where legislation, though intra vires, is inequitable, inexpedient, or contrary to Imperial interests. This executive veto is really a juristic fact of great importance—it has always been present to their lordships'[24] mind as a reason for refusing to apply to the interpretation of the Federal constitutions of Canada and Australia the restrictive principles of the Supreme [pg 017] Court, as laid down in Marshall's famous doctrine of “implied restraints.”[25] When no such veto is in the hands of the Central Government, it becomes necessary to restrict, either in the text of the constitution, or in judicial interpretation of it, with considerable precision, the powers of the local legislatures. This is why a true Federal system always involves a very large amount of litigation. But litigation is a thing to be avoided, if possible. It encourages political parties to carry test cases into the courts.

Constitutional Restrictions.[26]

The problem of protecting the rights and privileges of minorities in Ireland by constitutional restrictions is the most delicate that ever perplexed the mind of the jurist. It is one which puts the Irish problem in a category by itself. In no other Constitution in the Empire—with the exception of a single clause in the British North America Act—is any attempt made to fetter the discretion of Parliaments by the imposition of juristic limitations upon their legislative capacity. To say a Parliament shall not legislate except upon certain subjects is one thing, to attempt to define how it shall legislate upon those very subjects is quite another. The latter is as difficult as the former is simple. To adopt a pedestrian illustration, it is easy enough to forbid motorists to drive along certain roads, but to forbid them to drive “recklessly” along any road is another matter. “Recklessly” at once raises [pg 018] questions of standards of negligence and actionable rights. How are we going to distinguish “just” from “unjust” legislation, taxes which discriminate from taxes which do not, “rights” of the subject which a Parliament may disregard from those which it must respect? There has never been any doubt that a colonial legislature may deal with the common law rights of the subject as it pleases, may abolish trial by jury, suspend the writ of habeas corpus, pass bills of attainder, enact ex post facto legislation, take private property without compensation, and indemnify the Executive against actions for breaches of the law—if any doubt ever existed it was set at rest by the Colonial Laws Validity Act. But in the case of Ireland it was thought necessary—owing, doubtless, largely to the fears excited in the minds of Englishmen by the Protestant minority in Ulster and the commercial interests in both countries—to insert in the earlier Home Rule Bills an elaborate series of restrictions upon the exercise of even those legislative powers which the Irish Parliament might admittedly possess. For a parallel to these restrictions one would have to go back to the Constitution of the United States and the philosophy of “natural rights.” A more difficult problem it is impossible to conceive, because a Constitution of this kind runs counter to the whole tradition of Parliamentary sovereignty in this country and the colonies. Anyone who takes the trouble to study the decisions of the Privy Council when colonial legislation has been impugned on the ground of its infringing the common law rights of the subject or “natural justice”[27] will discover that constitutional limitations of this kind upon the powers of colonial Legislatures are not recognised by our judges. In the [pg 019] absence of express words in the colonial Constitutions, such restraints do not exist. “The only thing,” as Lord Halsbury grimly remarked on one occasion, for the subject whose actionable rights are taken away by a Colonial Act of Indemnity “to do is to submit.”

The earlier Home Rule Bills were characterised by a most elaborate code of rights which the Irish Legislature might not infringe. Its main provisions might be classified as having three objects in view: (1) The protection of the subject in life, liberty, and property; (2) the prevention of legislation discriminating against any part of the United Kingdom, and (3) the preservation of the existing rights and privileges of the Protestant community in Ireland. In one form or another almost all these principles are to be found embodied in the Constitution of the United States, and in the case of the first of them a clause of the famous 14th Amendment was actually incorporated, with some slight alterations, in Sub-section 8 of Section 4 of the Bill of 1893, according to which the powers of the Irish Legislature should not extend to the making of any law

“whereby any person may be deprived of life, liberty, or property without due process of law in accordance with settled principles and precedents or may be denied the equal protection of the laws or whereby private property may be taken without just compensation.”

These impressive words bristled with legal controversy. Did they, for example, secure to the subject the preservation of the right to trial by jury? In the States of America it has been authoritatively laid down[28] that, in the absence of further defining words in the State constitutions, they do not. Such procedure is indeed safeguarded in the Federal Courts, but only in consequence of express words. In the case of the States, [pg 020] Cooley, a great authority, says that “whatever the State establishes will be due process of law,” and Story regarded the words by themselves as simply securing a judicial hearing—that is to say, as they stand they merely secure the separation of legislative and judicial functions and prevent the State Legislature from passing laws which are in effect judicial decrees.

What the words would really have secured to the subject in Ireland was very doubtful. The object of the draughtsman appears to have been to secure to the subject in Ireland all the protection of the law, including trial by jury, which he would have enjoyed at the date of the passing of the Bill, understanding by law both common law and statute law. If the Imperial Parliament had, subsequent to the date of the Act itself, passed legislation limiting trial by jury or other common law rights, this would, presumably, have provided the Irish Parliament with a new “settled principle and precedent,” enabling it to go further. In other words, the clause might have operated to secure a certain standardization of legislation as between the two countries.

The Argument Against Restrictions.

But it seems to me that such standardization is best secured by definitely reserving certain subjects of legislation to the Imperial Parliament rather than by imposing upon the exercise of such legislation by the Irish Parliament constitutional limitations which are certain to raise great doubts and provoke excessive litigation. It would be far better to reserve criminal law, as has been done in Canada, in the case of the provincial legislatures—though not without difficulty—than to lay down certain abstract principles. Moreover, is it desirable to maintain such uniformity of legislative principle? There is a great deal to be said for reserving certain [pg 021] subjects of legislation to the Imperial Parliament, but to impose on the whole sphere of legislation entrusted to the Irish Parliament the same principles as those governing the English Statute-Book, or the common law, is to subject almost every conceivable Irish statute to the challenge of litigious politicians. This is what has happened in the United States. The clause, as it stood, might quite conceivably have prevented the Irish legislature from extending the procedure of the Summary Jurisdiction Acts to cases where it was not so extended in England—a most mischievous result, seeing that this procedure is the sanction by which nearly every new statute extending the scope of industrial or public health legislation or conferring powers on local authorities is enforced.

Uniformity of legislation between the two countries is not desirable in all directions nor has it hitherto been followed. In matters of expropriation, for example, the drastic procedure of the Housing and Town Planning Act has not been adopted in Ireland. Ireland has her own standard in these matters in the case of the Irish Local Government Act, and the Land Purchase Acts, and I am not at all sure that the principles of the English Land Clauses Consolidation Act and Railway Clauses Consolidation Acts as to arbitration and compensation are by any means ideal. Still less has uniformity in the matter of criminal law been the rule hitherto between the two countries. It would be difficult to find a parallel in this country for the Crimes Act of 1887 (which is still on the Statute-Book although it is no longer put in force by proclamation) with its extensions of summary jurisdiction to cases of criminal conspiracy, intimidation, riot, and unlawful assembly, and its provisions for a change of venue.

It is perhaps more open to question whether the [pg 022] words of the 1893 Bill designed to secure to the subject “the equal protection of the laws,” and to prevent legislation discriminating against Englishmen and Scotsmen[29] under certain circumstances, ought not to have been repeated. The words “equal protection of the laws” have been interpreted in the United States in such a way as to secure that legislation, particularly in the exercise of the “police power,” shall be impartial in its operation.[30] On this interpretation, they would for example, have prevented an Irish Legislature from exempting Catholic convents which are used as workshops from the operation of the Factory Acts. But that might be secured in another way, and the words might, if adopted, have operated to prevent much useful legislation. It seems likely enough that discriminating legislation, in so far as it tended to prevent a particular class of persons from residing in Ireland or penalised non-residents, would be held invalid in any case on the ground that it conflicted with the reservation to the Imperial Parliament of such subjects as “trade” and “naturalization.”[31] And, as regards non-residents, it must be remembered that the grant of legislative powers can only be exercised “in respect of matters exclusively relating to Ireland or some part thereof”—words which may be found to be of considerable importance.

The same may be said of the omission in the Bill, to provide, as its predecessor of 1893 provided, for the maintenance of securities for the liberty of the subject and the preservation of his common law rights. It is almost impossible to do this without entering on an [pg 023] uncharted sea of litigation. Modern legislation, especially social and industrial legislation, infringes common law rights at every point. I have ventured elsewhere[32] to describe the modern tendency of industrial legislation as a tendency, inverting Maine's famous aphorism, to advance from contract to status, that is to say, to limit to an increasing extent the contractual freedom of the worker, and to confer on him a certain status by the protection of him against himself.[33] The greater part of our Irish land legislation impaired the obligation of contracts. Professor Dicey criticised the Bill of 1893 for not going further than it did in its incorporation of clauses taken from the Constitution of the United States with the intention of securing the common law rights of the subject. But it may be remarked that many of those clauses have proved an almost intolerable limitation upon the power of the legislatures to deal with the regulation of trade and industry, so intolerable that the Supreme Court has of late made a liberal use of the fiction of “the police power”[34] to enable the legislatures to pass legislation which otherwise might have seemed [pg 024] to “abridge the privileges” of citizens of the United States or deprive them of “liberty or property without due process of law.”[35]

At the same time it must be remembered that, although the Irish Parliament is not debarred from statutory interference with common law rights, its legislation will be subject to rules of interpretation, at the hands of the Judicial Committee, by which statutes are always construed in favour of the subject. It is a well-accepted rule of construction in English courts that common law rights cannot be taken away except by express words.[36] It is something to secure that the interpretation of the new Constitution and of Irish statutes shall, in the last resort, be wholly in the hands of an Imperial Court. The chartered protection of the rights of the individual by a fundamental Act is always difficult and often impossible. In the last resort it depends very much on the interpretation which the judges choose to place upon such an Act.[37]

The Executive Veto.

It is obvious, therefore, that the principal and indeed almost the only safeguard provided in the Bill against inequitable or discriminating legislation[38] is the veto of the Lord-Lieutenant acting on the instructions of the Imperial Government. A political check is preferred to a juristic check. The apostolic maxim “all things are lawful but all things are not expedient,” appears to have been the motto of the draughtsman. Not law but policy will decide what Irish Acts are to be placed on the Statute-Book. It must be admitted that this is the principle most in harmony with precedent if the constitutions granted to the colonies are to be regarded as precedents. No colony would have tolerated for a moment the elaborate network of restrictions in Clause 4 of the Bill of 1893, through the finely-woven meshes of which it would have been hard for any Irish legislation of an original or experimental character to pass. If we are really in earnest about setting up a Parliament on College Green, we cannot do otherwise. The executive veto must be the real check, and in the presence of such a check, English judges would always be very loath[39] to declare the Acts of a legislature ultra vires merely because they infringed common law rights.

Now this check may be exercised on one of two grounds. The Imperial Government may “instruct” the Lord-Lieutenant to refuse his assent either on the ground that the bill in question is politically objectionable, or on the ground that it is, in their opinion, in [pg 026] excess of the powers conferred on the Irish Legislature. It is desirable in every way that the two should be distinguished in order that the Imperial Parliament may be able to hold the Cabinet of the day responsible when its action is purely a question of policy. On the other hand, it is no less desirable that the Cabinet should, in the interests of the public in Ireland, be in a position to test the validity of an Irish Bill which, though unobjectionable on the ground of policy, may be questionable on the ground of law. It is a common error that in all written constitutions the courts, particularly those of the United States, have proprio motu the power of declaring ultra vires any legislative act which infringes the principles of the Constitution. Laboulaye fell into this error in his study of the American Constitution. But the American Courts have no such power. Until a case arises in the ordinary course of litigation, under the statute in question, there is no means of annulling it, and there have been many Acts[40] on the Federal Statute Book which are quite conceivably “unconstitutional” in the letter as well as in the spirit, but have never been declared ultra vires for the simple reason that no one has found his private rights affected. This holds particulars of questions of the distribution of power. It might for example, occur in the case of an Irish Bill which proposed to deal with one of the reserved services. To meet this difficulty and to avoid the trouble which might arise from an Act being placed in the Irish Statute Book[41] and observed in Ireland only to be subsequently declared ultra vires in the course of litigation, it is [pg 027] provided in the Government of Ireland Bill[42] (Clause 29) that if it appears to the Lord-Lieutenant or a Secretary of State expedient in the public interest that the validity of an Irish Act should be tested he may represent the same to His Majesty in Council and the question may then be heard and determined by the Judicial Committee in the same manner as an appeal from a Court in Ireland. It is not necessary to suppose that the executive veto will be a dead letter, and to argue from its disuse in the case of the self-governing colonies is to argue from the like to the unlike. In the case of the provincial legislatures of Canada it has been exercised by the Dominion Government where provincial legislation is inequitable, or contrary to “the settled policy” of the Dominion.

Exempted Powers.

The enumeration of matters in respect of which the Irish Parliament shall have no power to make laws is a little deceptive, inasmuch as many of the matters so enumerated would have been outside its power in any case. Ireland is not, so long as the Act of Union remains on the Statute Book, a sovereign state, and “the making of peace or war” and the negotiation of [pg 028] treaties would, as a matter of international law, have been impossible in her case, even if they had not been expressly prohibited. “Merchant shipping” and “the return of fugitive offenders” would also have been excluded from her authority by the rule of law[43] which precludes a subordinate legislature from extra-territorial legislation. The same may be said of Copyright. The colonies have only been enabled to deal with these matters in virtue of clauses in Acts of the Imperial Parliament.[44] But it would not be true to say that the position of the Irish Parliament is assimilated to that of the legislature of a self-governing colony. The exclusion of subjects relating to allegiance, such as naturalization[45] and treason,[46] and of legislation as to aliens is exceptional. All the self-governing colonies have power to deal with these matters, as also with the subject of naval and military forces. Perhaps the most important exemption in the case of Ireland is that of trade, trade-marks, designs, merchandise marks and patent rights. I cannot help regretting that, inasmuch as the principle has been adopted of giving Ireland general and unenumerated powers, the number of specific exemptions has not been enlarged. It is highly desirable to avoid conflict of laws in the United Kingdom as far as possible. It must be remembered that the Statute Book has, quite apart from the Act [pg 029] of Union, bound Ireland to England by many legislative ties; there is a uniform system of industrial, commercial, and, to some extent, criminal law for the whole of these Islands—Factory Acts, Companies Acts, the law of negotiable instruments, criminal procedure, old-age pensions, and insurance legislation; in all these there is legislative standardization, and the tendency of all modern political unions, notably those of the Australian Commonwealth and the German Empire, is in this direction. Confusion, injustice, and economic inequalities constantly occur in a modern State whose inhabitants are living under a “conflict of laws.” Fiscal considerations point the same way. It may be safely assumed that English opinion will not tolerate any considerable divergence between the fiscal systems of England and Ireland. Moreover, financial considerations apart, the regulation of “trade” is, as in every political union, reserved for the central legislature. But to distinguish between “trade” on the one hand and “industry” on the other is not an easy problem, and Ireland may discriminate against England only less effectively by lowering the standard of the Factory Acts than by a tariff.

The “subject matter” of the Old Age Pensions Acts, National Insurance Acts, and Labour Exchanges Acts has, it is true, been excluded. It seems regrettable that the category is not enlarged to include the Companies Acts, the Sale of Goods Act, the Bills of Exchange Act, and the Factory Acts. It would be highly undesirable to have the “industrial minimum” for the United Kingdom, so laboriously attained by our factory legislation, lowered in the interests of particular interests in Ireland. The advantages of securing uniformity by the inclusion of the three great statutes relating to commercial law is also very obvious. Two of them, indeed, [pg 030] represent a great step in that codification of English law which is the dream of English jurists, they have been adopted as a model in some of our colonies, and it would seem highly desirable that the standard thus attained should remain fixed. In urging this, I do not forget what I have already said, in connection with the subject of constitutional limitations, as to the undesirability of exacting too rigid a degree of uniformity in English and Irish legislation, but constitutional limitations are one thing and exceptions quite another. It is very difficult to subject the whole field of Irish legislation to juristic principles, but it is comparatively easy to exempt from that field the subject matter of particular Acts. The whole question resolves itself into a consideration of the point at which uniformity should be determined. The Bill seems to fix the point much too low.

Of course, one way of dealing with the question would have been to grant Ireland only particular and enumerated powers of legislation, as has been done in the case of the provincial legislatures of Canada. There is much to be said for this. It seems the line of least resistance; it is always easier to add to powers which appear deficient than to withdraw powers which have proved excessive. But it undoubtedly invites litigation and it is very difficult, if not impossible, to define what are exclusively Irish matters without in the last resort using some such general term (as is used in the British North America Act) as “generally all matters of a merely local nature.”

The great economy shown by the draughtsman in the number of the exceptions from the powers of the Irish legislature, as well as in the number of the restrictions upon the exercise of those powers, means, as we have already indicated, that the whole weight of control [pg 031] over the Irish legislature is thrown upon the executive and legislative veto of the Imperial Government. Is it sufficient to rely upon the paramount power of the Imperial Parliament to override by statute Irish legislation which may be inequitable or inexpedient, and upon the exercise of the veto of the Imperial Government? These checks are the exercise of a force majeure, which is often invidious and always difficult. Above all they are political. The exercise of them depends on the party in power in Great Britain, and as such it may excite resentment among the Irish people as an invasion of the autonomy granted to them. On the other hand, exceptions and restrictions are a legal, not a political, check—they operate through the agency of the courts of law without the intervention of political considerations. Moreover—and this perhaps is the most important consideration—they rest upon the consent of the Irish people expressed in the terms of the Home Rule Act to which their representatives are a party. For an Irish Parliament to defy them would be to defy the very Act which was the charter of its existence. But they invite litigation. It all resolves itself into a question of hitting the mean between the dangers of litigation on the one hand and of political pressure on the other. Probably, however, the occasions of conflict will be few and unimportant, and the temper of the Irish Parliament may be much more conservative than its critics imagine.

The Executive

The new Bill is remarkable for the explicitness with which it invests Ireland with control over the Executive. For the first time in the written constitutions of the Empire we have a statutory Executive, and not only [pg 032] is it a statutory Executive, but it is to be a Parliamentary Executive defined by statute. In the earlier Bills nothing was more remarkable than the brevity and allusiveness with which this question of the Government of Ireland was treated. “The Executive power in Ireland shall continue vested in Her Majesty the Queen” was the language employed in the Bill of 1893. Under that Bill the Government of Ireland would have continued, even after its passage into law, to be in the hands of the English Cabinet and it would have rested with that Cabinet to determine how large or how small a part of the prerogatives of the Crown should be delegated to the Lord-Lieutenant. Paradoxical as it may seem, it would have been quite possible for a Unionist Government, coming into power immediately after the Home Rule Bill had passed into law and an Irish Parliament had met at Dublin, to retain in their own hands the Executive authority in Ireland without any breach of statutory obligations. The Bills of 1886 and 1893 left it in the discretion of the Crown to decide what the powers of the Lord-Lieutenant should be. Following Colonial precedents, the Constitution would have had to be supplemented[47] by prerogative legislation in the shape of Letters Patent defining those powers. Moreover, these powers were to have been vested not in the Lord-Lieutenant in Council, but in the Lord-Lieutenant alone. Something was indeed, said about an “Executive Committee” of the Irish Privy Council to aid and advise in the Government of Ireland—this was the only hint of responsible Government that the Bill contained—but nothing was said of the powers or [pg 033] constitution of the Committee nor of the extent to which the Lord-Lieutenant was bound to act on its advice. Its constitution was left to the discretion of Her Majesty. Its powers would, of course, as in the case of the Colonies, have been decided by the tacit adoption of the unwritten conventions of the English Constitution that the advisers of the Governor must command the confidence of the Legislature which votes supplies.

Very different is our new Bill. The Executive power does indeed continue “vested in His Majesty the King,” and nothing is to affect its exercise—in other words, it is to continue in the hands of the Imperial Government—except “as respects Irish services as defined for the purpose of this Act.” The exception is a new departure and the general effect of the whole clause (Clause IV.) is expressly to hand over in statutory terms “all public services in connection with the administration of the Government of Ireland” except the reserved services and such services as those in regard to which the Irish Parliament have no power to make laws. The effect of this is to hand over an executive authority co-extensive with the legislative authority.[48] Moreover, in regard to Irish services, the Executive power is to be exercised by the Lord-Lieutenant through Irish Departments, and the heads of these Departments are given the Parliamentary title of “Ministers” and, what is more remarkable, it is expressly provided (a provision [pg 034] to be found in only one or two, and those the latest, of our Colonial Constitutions) that:

“No such person shall hold office as an Irish Minister for a longer period than six months, unless he is or becomes a member of one of the Houses of the Irish Parliament.”

Never in any constitution that emanated from the practised hand of the Parliamentary draughtsman has there been such a complete transfer in express statutory terms of the executive power. Taken together with the comparatively unrestricted grant of legislative power, it constitutes a grant of a larger measure of self-government than is to be found in any of the earlier Bills.

At the same time there is here no cause for alarm. It must be remembered that the Lord-Lieutenant will exist in a dual capacity—like a constitutional king he will be bound in Irish matters to act on the advice of his Irish Ministers but, like a Colonial governor, he will also in all Imperial matters be bound to obey the instructions of the Imperial Government. In regard to legislation the position here is quite clear: he may veto measures which his own Ministers have promoted if the Imperial Government think it advisable so to instruct him. In regard to the executive, he will, of course, enjoy less latitude; it is quite clear that the Imperial Government will, under this clause, find it practically impossible to interfere in purely Irish administration. The Irish Government will, of course, be carried on in the name of the Crown, and it will enjoy the same prerogatives at common law as the Imperial Government in such matters as the use of the prerogative writs mandamus and certiorari, and the immunity from actions in tort. Ireland has its own Petitions of Right Act.

At the same time a distinction must be drawn between the prerogatives relating to the exercise of Irish [pg 035] services and prerogatives which cannot be so defined. Some of the latter may be delegated to the Lord-Lieutenant by his patent, and these he will exercise not on the advice of the Irish, but of the Imperial, Government. Moreover, there are certain powers conferred by statute on the Lord-Lieutenant, or the Lord-Lieutenant in Council, such as the power of proclaiming disaffected districts under the Crimes Act, of suspending the operation of the Irish Habeas Corpus Act, and of controlling the constabulary, not all[49] of which will be exercisable on the advice of Irish Ministers. Prerogatives not so exercisable will no doubt be exercised on the advice of the Secretary of State for Home Affairs who is even now the medium of formal communications between the Lord-Lieutenant and the Crown. The Chief Secretary[50] will, of course, disappear altogether; he will be replaced by the Executive Committee. The Lord-Lieutenant will, of course, cease to be a member of the English Ministry; his position will be assimilated to that of a Colonial Governor, and his tenure fixed for a term of years so as to make his tenure of office independent, as it must be in the exercise of his new constitutional duties, of the fortunes of English Parties.

The Irish Legislature

The constitution of the legislature itself calls for little comment. It follows with some fidelity the features [pg 036] of Mr. Gladstone's Bills, but the substitution of a nominated Senate for the “Council” or “Order” elected on a property franchise is a new departure. Nomination of late has fallen into some discredit both in theory and in practice.[51] Colonial experience is not encouraging. Nomination by the Crown means in practice nomination by the Governor, on the advice of the Cabinet of the day, and Ministries in Canada and New South Wales have put this prerogative to such partizan uses as to reduce the Upper House to a very servile condition. When nomination is for life and not for a fixed term of years the evils of this system may be mitigated, but they are not removed. The one thing that can be said about the proposed Senate is that its powers in legislation are of such a limited character that an Irish Executive would be under little temptation to “pack” it. A Senate of only forty members compelled to meet in joint session a House of Commons of 164 members every second time that it rejects or objectionably amends a bill is not likely to prove a very formidable obstacle to legislation. But the nomination by the Executive is in any case somewhat objectionable, and it would seem better to provide that at the end of the first term of eight years the Senators should be appointed by some system of election, whether on a basis of proportional representation or otherwise.[52] But [pg 037] to their nomination for the first term by the Imperial Government I see no very cogent objection. Indeed, the expedient has much to be said for it, for the discretion, if wisely exercised, will enable the Imperial Government not only to secure to Irish minorities a degree of representation which no conceivable system of election could secure, but also to appoint men of moderate opinions—one immediately thinks of Sir Horace Plunkett—who, in the strife of extremists, might have no chance of election by either party. It has been argued in some quarters that a Second Chamber is wholly unnecessary, and the example of the single-chamber legislatures in some of the Canadian provinces has been cited. The argument, however, overlooks one really important function of the Senate, namely its duty to provide for the security of tenure of the Irish judges. Clause XXVII. provides that judges appointed after the passing of the Act shall only be removable on an Address of both Houses of the Irish Parliament, and, should the Senate refuse to concur in a demand by the lower House for the removal of a judge, there is no such means of overcoming its resistance in a joint session as is the case with legislation. This is well.

There is one provision in the Bill[53] which will serve to strengthen the position of the Senate as an advisory body and may operate to give it an initiative in the introduction of Government legislation—the provision which enables an Irish Minister who is a member of either House to sit and to speak in both Houses. This is a practice common on the Continent, and not wholly unknown [pg 038] in the case of some of our Colonial Constitutions, and it has much to commend it. The Senate is placed under the same disabilities as to money bills as are imposed on the House of Lords by the Parliament Act. Thereby it is placed in an inferior position to that of most of the Second Chambers in the Colonies, all of which can reject, and some of which may also amend, money bills. The disability is the less surprising having regard to its character as a nominee body—it is when the Second Chambers of the Colonies are elective, that their powers in regard to money bills are considerable.[54]

The privileges of the Imperial Parliament are conferred by the Government of Ireland Bill upon the Irish Parliament. In the absence of such grant the Irish Parliament would not have had such privileges—although it might have adopted them by legislation—for the lex et consuetudo Parliamenti are not implied in the grant of a constitution.[55] It is not uncommon to prescribe in Colonial Constitutions that the legislature shall have such privileges as are enjoyed by the House of Commons at the time of grant. In the present case, the Irish Parliament may define its privileges, if it thinks fit, by legislation, though it is difficult to imagine any occasion for its doing so. The really important thing is that it cannot enlarge those privileges beyond the scope of the privileges of the Imperial Parliament. This is the one constitutional limitation in the Bill—apart from the “safeguards” as to legislation in regard to religion and marriage contained in Clause III.—and it is by no means unimportant. The powers of the Imperial Parliament—particularly as to the right [pg 039] of the two Houses to commit for contempt without cause shewn—are a sufficiently high standard.

Irish Representation in the House of Commons[56]

Irish representation at Westminster has always been the riddle of the Home Rule problem. I have no space to examine here in detail the alternative solutions which were put forward in the earlier Home Rule Bills. But there is one general consideration which must always be borne in mind in the theoretical discussion of any solution. It is the very simple consideration that representation is what mathematicians would call a “function” of legislative power—the one is dependent upon the other. If the legislative powers over Ireland reserved to the Imperial Parliament are large, the representation of Ireland in that Parliament must not be small. It is at this point that Mr. Gladstone's original proposal for total exclusion broke down. He reserved to the Imperial Parliament considerable powers of legislation in regard to Ireland and yet proposed to exercise those powers in the absence of Irish representatives.

It was no answer to cite colonial analogies. The Irish problem is not, as I have pointed out elsewhere, a colonial problem. No one at present proposes to give Ireland complete fiscal autonomy, for example. Nor is it strictly apposite to say that the Imperial Parliament legislates for the Colonies in the absence of colonial [pg 040] representatives. Such legislation is now almost exclusively confined to what I may call enabling legislation in matters in which the Colonies, owing to their status as Dependencies, are unable to legislate. In such matters as copyright, merchant shipping, marriage, extradition, the Imperial Parliament legislates for the Colonies largely because colonial laws cannot operate ex-territorially, and such Imperial legislation is usually effected by means of application clauses which enable the Colonies to adopt it or not as they please. But rarely if ever does the Imperial Parliament legislate for a self-governing colony as it has done and will continue to do in the case of such domestic Irish affairs as old-age pensions, land purchase, Customs and Excise, defence, naturalisation, to say nothing perhaps of industrial and commercial law. I have already indicated my opinion in favour of confining these subjects to the Imperial Parliament, but even were the opposite course taken there would still remain the fiscal question. We cannot continue to tax Ireland unless the Irish representatives are to remain at Westminster.

The presence of the Irish members at Westminster is imperative if the supremacy of the Imperial Parliament is not to be illusory. Mr. Balfour[57] contends that it will be as illusory as it has been in the case of the Colonies. But the Colonies are not represented in the Imperial Parliament, and to differentiate Ireland in this respect is to make all the difference between a legal formula and a political fact.

There remains the question of inclusion. No one would question the propriety of reducing Irish representation to its true proportions on a population basis—in other words, from its present figure of 103 to one of 70. The real difficulty arises when we consider [pg 041] whether those members, whatever their numbers, are to attend at Westminster in the same capacity as the British members. We are to-day confronted by the same problem as that which vexed the Parliament of 1893: are Irish members to vote upon all occasions or only upon those occasions when exclusively Irish and exclusively Imperial affairs are under discussion? The original text of the 1893 Bill adopted the latter solution. At first it has much to commend it, for it avoids—or attempts to avoid—the anomaly of refusing self-government to Great Britain while granting it to Ireland: if Irish members are to govern themselves at Dublin without the interference of Englishmen, why, it has been pertinently asked, should not the converse hold good at Westminster? But two very grave difficulties stand in the way; one is the difficulty of distinguishing between Irish and non-Irish business at Westminster; the other is the difficulty, even when such distinction is made, of maintaining a single majority under such circumstances. Withdraw the Irish members on certain occasions and you might convert a Liberal majority at Westminster on certain days into a Unionist majority on other days. A Liberal Government might have responsibility without power in British matters and a Unionist Opposition power without responsibility. One Executive could not co-exist with two majorities. Such a state of affairs might have been conceivable some seventy or eighty years ago, when Ministries were not regarded as responsible for the passage of legislation into law. It would be conceivable in France, where Ministries come and go and the Deputies remain. But it would be fatal to the Cabinet system as we know it.

Another objection to the “in-and-out” plan is the extreme difficulty of classifying the business of the [pg 042] House of Commons in such a way as to distinguish between what is “Irish” and what is not. If that business were purely legislative the difficulty would not be so great, but the House controls administration as well as legislation. Any question involving a vote of confidence in the Cabinet might legitimately be regarded as a matter in which the Irish members had a right to have a voice. The motion for the adjournment of the House, following on an unsatisfactory answer by a Minister, might be regarded as such. Who would decide these things? The Bill of 1893 provided for their determination by the House. In that event the Irish members would presumably have had a voice in determining on what subjects they should or should not vote, and they would have been masters of the situation under all circumstances. By their power to determine the fate of Imperial Ministries they might have determined the exercise of the Imperial veto on Irish legislation and reduced it to a nullity. It may, indeed, be urged that the Irish vote often dominates the situation at Westminster even under present circumstances, but it must be remembered that it is now exercised in the consistent support of the same administration, whereas under an “in-and-out” system its action might be capricious and apt to be determined solely by Irish exigencies of the moment.

There remains the plan of the inclusion of Irish members for all purposes. This at least has the advantage of simplicity. If Irishmen constantly attended at Westminster without distinction of voting capacity they would be less likely to regard their presence there as an instrument for reducing to impotence the exercise of the Imperial veto upon Irish legislation. It is quite conceivable, indeed, that once Home Rule is granted Irishmen will be Imperialists at Westminster without [pg 043] becoming Nationalists at Dublin—the natural conservatism of the Irish character may reassert itself. Close observers of Irish thought are inclined to believe that the grant of Home Rule will act as a great solvent in Irish political life, and that with the iron discipline of Nationalism relaxed, and its cherished object attained, lines of cleavage, social, economic, and industrial, will appear in Ireland and vastly change the distribution of Irish parties both at Dublin and at Westminster. Ulster “Unionists” may be found voting with a Liberal Government on education questions and Irish “Nationalists” against it. Irish representatives at Westminster may become more, rather than less, closely identified with British interests. And it should be remembered that it would be no new thing for members from one part of the United Kingdom to be voting on measures which solely concerned another part of the Kingdom. This is happening every day. As Mr. Walker points out elsewhere, a process of legislative disintegration has been going on within the walls of the Imperial Parliament itself, which is already being forced to legislate separately for the three separate parts of the United Kingdom. He estimates that during the last twenty years no less than 49.7 per cent. of the public general Acts have applied only to some one part of the United Kingdom instead of to the whole.

The Government of Ireland Bill adopts the principle of total inclusion, but qualifies the anomaly which is involved in the presence of Irish members voting on non-Irish questions by reducing the representation of Ireland to the number of forty-two, and thus to a figure far below that to which Ireland is entitled on the basis of population. At the same time it must be admitted that the anomaly is not thereby removed. The position of Irish members voting on purely English legislation [pg 044] after the grant of Home Rule will indeed—numbers apart—be more anomalous than it was before it. An anomaly can be tolerated so long as it is universal in its operation, and Scotch and English members can at present view with equanimity the spectacle of Irish members voting in their own affairs so long as they themselves exercise the same privilege in those of their neighbours. Reciprocity of this kind produces a certain unity of thought in a deliberative assembly. But the anomaly at once becomes invidious if Irishmen are placed in a privileged position. It is perhaps more theoretical than real, as the actual weight that could be thrown into the scale of the division lobby by a Nationalist majority (taking the present balance of parties in Ireland) of about twenty-six cannot be considerable, even if, as is very doubtful, it were consistently exercised.

Still the anomaly remains. Is it possible to meet it by some extension of Home Rule to the legislative affairs of England and Scotland?

The Further Extension of Home Rule

The anomaly, however, remains. How is it to be met? Obviously it is but a temporary difficulty if, as the Prime Minister has suggested in his speech on the first reading, the Bill is to be regarded as but the first step in a general devolution of the legislative powers of the Imperial Parliament. But everything depends on how far that devolution is to be carried. The Prime Minister's reference to a change in the Standing Orders suggests a further development of the Committee system already in operation in the case of the Scottish Standing Committee by which the House has delegated a certain degree of provincial autonomy to a group of members. It would be possible to extend [pg 045] this to the creation of a Standing Committee for England and Wales. Under such a system Irish Members would be excluded from the Committee stages of legislation which was neither Irish nor Imperial. But there remains the Report stage, which is always apt to resolve itself into a Second Committee stage[58] in which the whole House participates. Moreover, an impassable limit is set to this process of domestic devolution by the necessity that the Government of to-day should command a majority in each of these Committees. A Liberal Ministry would probably find itself in a minority in an English Standing Committee, and a Unionist Ministry would, with equal probability, find itself in a minority in a Scottish Committee. Committees have become not so much a sphere for the legislative initiative of the private member as a new outlet for Government business. Contentious bills introduced or adopted by the Government are referred to them, and the moment this is the case the Minister in charge who is confronted in Committee with amendments which he does not care to accept may invite the whole House on the Report stage of the Bill to disallow them. The House itself, jealous of any surrender of its prerogatives, is only too apt to turn the Report stage into a second Committee stage. The responsibility of a Government department for the preparation and execution of legislation is to-day so indispensable that effective legislative devolution is almost impossible without devolution of the executive also. A Committee to which the Minister in charge of the Bill is not responsible is not in a position to exercise effectual control over legislation. Indeed it seems impossible to contemplate a devolution of legislative power without a [pg 046] corresponding devolution of executive power. So long as we have but one Executive in the House of Commons it is impossible to have two or three legislatures within the walls of that House. Moreover, it is just as imperative to restore the diminishing control of members of Parliament over administration as it is to re-establish their authority in legislation. There is a growing and regrettable tendency to confer upon Government departments both legislative and judicial powers—powers to make statutory orders and to interpret them, which is depriving our constitution of what has hitherto been regarded by foreign students as one of its most distinctive features—the subordination of the executive to the legislature and to the courts. The distinction between Gesetz und Verordnung,[59] between statute and order, is fast disappearing in the enormous volume of statutory orders. Powers to make rules under particular statutes are entrusted to Scotch, Irish, and English Departments which have the effect of diminishing the control of the House of Commons without transferring it to any representative substitute. The great increase of grants-in-aid for administrative purposes has also given the departments a power of indirect legislation by the latitude they enjoy in the distribution of them such as is further calculated to diminish the control of the House of Commons over questions of Irish and Scotch policy. Rarely do any marked departures by the departments come under the review of the House of Commons; the claims of the Government over the time-table of the House, fortified by certain rulings of the Speaker,[60] [pg 047] may and frequently do preclude any examination of them. In the words of a famous resolution, one may say “the power of the Executive has increased, is increasing, and ought to be diminished.”

But it is no remedy for this state of things to provide for administrative devolution alone. To devolve the authority which a great Department of State, such as the Board of Agriculture, exercises over the whole of Great Britain by the simple process of assigning its Scotch business to the Secretary for Scotland, does not increase the control of Scottish members over the executive. This process of administrative devolution, which is always going on, is not accompanied by any measure of legislative devolution; the Secretary for Scotland is not thereby brought under the control of the Scotch Standing Committee.

To create a new Scottish or Irish Department does not increase Parliamentary control over Scottish or Irish administration; rather it diminishes it. The heads of a Scottish Education Office, Local Government Board, and Department of Agriculture have been made responsible not to the House of Commons but to the Secretary for Scotland. Like the Chief Secretary for Ireland, he is a Prime Minister without a Cabinet and without a Legislature, and his policy is determined primarily not by Scottish or Irish opinion, but by the alien issues of imperial politics. Obviously there will never be any remedy for these anomalies until we have a Legislature with an executive responsible to it.

Scottish Home Rule

At the present moment we have in the case of Scotland devolution in a state of arrested development. This process of disintegration is reflected in separate Estimates in finance and in distinct draftsmanship in [pg 048] legislation. In legislation, indeed, marked changes have also taken place under cover of alterations in the Standing Orders of the House of Commons. An itinerant delegation of Scotch members has been set up to deal with private bill procedure in Scotland, and domestic devolution within the walls of the House of Commons has taken the shape of a Scotch Grand Committee. Few or none of these changes have any preconceived relation with the others; they represent experiments framed to meet the exigencies of the moment, but they all bear eloquent witness to a fact which has changed the whole aspect of the Home Rule problem and made that aspect at once more practical and less intimidating—the fact that the House of Commons has found itself increasingly incompetent to do its work. The fact is disguised by a multitude of expedients, all of them, however, amounting to a renunciation of legislative authority. These changes represent the disjecta membra of Scottish Home Rule—they have no coherence, they point not so much to a solution of the problem as to its recognition.

None the less, I think the Irish Government Bill does provide us with a prototype. There is nothing in it, with the exception of the financial clauses, which forbids its adoption in the case of Scotland and of England. But I think, as I have already indicated in another connection, that the category of reserved subjects ought to be considerably enlarged so as to secure the maintenance of the existing uniformity of legislation in commercial and industrial matters. There are, however, undeniable difficulties in the way of an identity of local constitutions. Legislation in regard to land is exempted from the control of the Irish Legislature to an extent which Scotland would hardly be prepared to accept. Control over legislation [pg 049] relating to marriage is retained in the case of Ireland; I doubt if it would be tolerated in Scotland, whose marriage law differs[61] from that of England to a far greater extent than is the case with the marriage law of Ireland. In common law England and Ireland have the same rules;[62] it is only in statute law that they differ. In Scotland the common law is radically different. There will, therefore, be some difficulty in finding a common denominator for the Imperial Parliament—and in avoiding, even under “Home Rule All Round” a certain divergence in the legislative capacities of the members from Scotland and Ireland, with the attendant risk of an “in-and-out” procedure.

II.—Irish Administration Under Home Rule. By Lord MacDonnell of Swinford

[The following article was, at my request, written by Lord MacDonnell before he became acquainted with the provisions of the Home Rule Bill. We agree in thinking it desirable that the article should appear without alteration as an expression of the views which Lord MacDonnell had formed on the subject.—The Editor.]

I am asked to state my opinion as to the changes of Administrative Direction and Control which should be introduced into the system of Irish Government in the event of a Home Rule Bill becoming law.

As I write (in March) I am not acquainted with the provisions of the promised Bill and my conjectures in regard to them may, in some respects at all events, fall wide of the mark. But there are cardinal principles which, presumably, must govern the Bill, and lend to conjecture some approximate degree of accuracy. Among such principles are the establishment of a representative assembly (Mr. Birrell has told us there will be two Houses), with powers of legislation and of control over the finances allocated to Ireland; the maintenance of the supremacy of the Imperial Parliament; and the preservation of the executive authority of the King in Ireland.

Assuming then that the Bill will, in essence, be a [pg 051] measure of devolution under which the supremacy of the Imperial Parliament will be preserved, the Executive Power in Ireland will continue vested in the King (as under the Bills of 1886 and 1893) and a representative body controlling the Finances (and consequently the Executive) will be established, an intelligent anticipation may be made of the organic changes in the existing system of Irish Government which are likely to be required when the Bill becomes law.

I do not propose to push this anticipation into regions beyond those of constitutional or organic change. It may happen that re-arrangements of the Civil Service in Ireland, Inter-Departmental Transfers of the Executive Staffs, and reductions of redundant establishments, may ensue on the creation of the Irish Legislature.[63] But these changes, if they take place, will not be organic or constitutional changes; nor could anticipations in respect of them be now worked out with due regard to vested rights or economical administration. If not so worked out, such anticipations would be either valueless or harmful.

I shall therefore not attempt on this occasion to allocate establishments, or to suggest scales of pay, for the departments of the future Irish Government which I shall suggest in the following paragraphs. But I shall, as opportunity offers, point to such retrenchments of higher administrative posts as appear to follow from the organic changes I shall indicate as necessary.

The dominating constitutional change will, of course, be the establishment of a Parliament which, operating [pg 052] through a Ministry responsible to it, will control and direct the various departments engaged in the transaction of public business. It is unnecessary to consider here how that Parliament will be recruited, though I may express my conviction that justice to minorities, the mitigation of political mistrust, and the promotion of efficiency in the Public Services, urgently require the recruitment to be on the system of proportional representation. But I assume that when recruited, the Parliament's general procedure will be fashioned on the model of the Imperial Parliament at Westminster. To that end the first thing the new Parliament will have to do is to create its own establishment of officers and clerks, to frame its Standing Orders relating to the conduct of public business, and to settle any subsidiary rules that the Westminster precedents may suggest.

Having thus provided itself with the requisite machinery for the exercise of its powers, the Irish Parliament would naturally next proceed to bring under its supervision the various existing agencies for the direction and control of the public business of the country.

At present the business of Civil Government in Ireland is carried on through the following forty-seven Departments, Boards, and Offices, which I group with reference to the degree of control exercised over them by the Irish Government at the present time.

Departments, etc., under the Control of the Irish Government.

(1) Royal Irish Constabulary.
(2) Dublin Metropolitan Police.
(3) Prisons Board.
(4) Reformatory and Industrial School Office.
(5) Inspectors of Lunatics.
(6) General Registry of Vital Statistics.
(7) Registry of Petty Sessions Clerks.
(8) Resident Magistrates.[64]
(9) Crown Solicitors.
(10) Clerks of Crown and Peace.
(11) Office of Arms (Ulster King of Arms).

Departments, etc., under the Partial Control of the Irish Government.

(1) Land Commission.
(2) Commissioners of charitable donations and bequests.
(3) Public Record Office.

Departments, etc., not under Control of the Irish Government, but having the Chief Secretary as Ex Officio President.

(1) Local Government Board.
(2) Department of Agriculture and Technical Instruction.

Departments, etc., not under the Control of the Irish Government except as regards Appointments and, in some instances, the Framing of Rules of Business.

(1) Board of National Education.
(2) Board of Intermediate Education.
(3) Commissioners of Education. (Endowed Schools).
(4) National Gallery.
(5) Royal Hibernian Academy.
(6) Congested Districts Board.

Boards Exercising Statutory Powers in Ireland but not under Control of the Irish Government.

(1) Public Loan Fund.
(2) Commissioners of Irish Lights.
(3) Queen's University, Belfast.
(4) National University.

Departments, etc., not Controlled by the Irish Government.

(1) The Judiciary.
(a) The Supreme Court of Judicature and its officers.
(b) Recorders.[65]
(c) County Court Judges.
(2) Registry of Deeds.
(3) Local Registration of Titles.
(4) Railway and Canal Commission.
(5) Commissioners of Public Works.
(6) General Valuation and Boundary Survey of Ireland.
(7) Treasury Remembrancer's Office.
(8) National School Teachers' Superannuation Office.

English Civil Departments Working in Ireland and not under the Control of the Irish Government.

(1) Customs.
(2) Inland Revenue.
(3) General Post Office.
(4) Board of Trade (Dublin and other Ports).
(5) Quit Rent Office (Woods and Forests).
(6) His Majesty's Stationery Office.
(7) Civil Service Commissioners.
(8) Inspector of Mines.
(9) Inspector of Factories.
(10) Registrar of Friendly Societies and Trades Unions, Building and Co-operative Societies.
(11) Ordnance Survey of Ireland.
(12) Public Works Loan Commissioners.
(13) Exchequer and Audit Department.

It is thus apparent that at present the Irish Government exercises control over only a small portion of the official agencies working in the country. Many of these agencies—some of first-class importance and dealing with strictly Irish business—are uncontrolled by the Irish Government, while the supervision exercised over them by the Imperial Parliament is of the most shadowy character. The congestion of public business in Westminster effectually prevents attention being paid to any Irish business—at least to any Irish business out of which party capital cannot be made.

In these circumstances, the first duty of the new Parliament will be to co-ordinate, and establish its control over, the dísjecta membra of Irish Government. To that end it will, presumably, group into classes or departments the various “Boards,” “Offices,” and other official agencies enumerated above on the principle of common or cognate functions. Such a classification is an essential preliminary to the establishment of effectual Parliamentary control over the transaction of public business. I proceed to suggest such a scheme of classification, but a preliminary word is necessary.

Some controversy has taken place as to what is, and [pg 056] what is not, business of a “purely Irish nature,” with which alone, the Irish Government is to be concerned under the promised Bill. In my opinion, the following Departments, out of those enumerated above, namely:

(1) Customs,
(2) Excise,
(3) Post Office, Telegraphs, etc.,
(4) Treasury Remembrancer's Office,
(5) Civil Service Commissioners,
(6) Exchequer and Audit Office, and
(7) Public Works Loan Commissioners,

can not be so classed, for the following reasons.

The control of the levy of Customs and Excise Revenue by the Irish Legislature, would imperil the fiscal solidarity of the United Kingdom, and be destructive of the further extension of Home Rule on federal lines. The Imperial Parliament should continue to control these all-important Departments, but power may be usefully reserved to the Irish Legislature to vary, under certain defined conditions, the duties on particular articles or commodities, without, however, any reservation of power to vary the articles themselves. For such a reservation, there is a precedent in the Isle of Man (Customs) Act of 1887, as I explained in an address delivered before the Irish Bankers' Institute last November. The suggestion was further developed in an Article on Irish Finance, which I contributed to the Nineteenth Century and After for January, 1912. In this connexion, it should be remembered that Mr. Gladstone's Bills of 1866 and 1893, excluded the Customs and Excise Revenue from Irish Control: and that the present Leader of the Irish Parliamentary Party, following, in this respect, Mr. Parnell's example, has recognized the propriety of the exclusion.

The suggestion I make preserves the principle, thus [pg 057] confirmed by high authority, while it allows to Ireland, working in concert with Great Britain, the opportunity of adjusting her taxation to her own special necessities.

The Administration of Posts and Telegraphs in Ireland is intimately associated with the Department's Administration in Great Britain; and though Ireland has an indefeasible claim, which can be readily conceded, to the great bulk of the patronage within her shores, (patronage mostly of a petty and purely local character) I fail to see in that claim sufficient justification for localizing the Irish part of the business and thereby incurring the risk of dislocating the working of a great Imperial Department. And my objection to transferring the Postal Department to the new Government is emphasised by the fact that in Ireland this Department is worked at a loss of about a quarter of a million sterling annually. There would, therefore, be a tendency on the part of the new Irish Government to curtail expenditure on the Post Office, to the detriment of the public convenience of the United Kingdom, in order that the expenditure on the Department should balance the income.

The Treasury Remembrancer's Office will probably disappear with the system of which it is the symbol: but the Civil Service Commission calls for further consideration. As I am, at present, Chairman of the Royal Commission on the Civil Service, I feel myself precluded from writing on this important matter with complete freedom; but this much I may say—in recruiting her Civil Service Ireland will be well advised to follow the same general system of appointment, promotion, and conditions of service as prevail in Great Britain, (though this uniformity need not be taken to apply to scales of emolument). The enforcement of this principle will not militate against the establishment [pg 058] by the Irish Parliament, if so advised, of an Irish Civil Service as distinguished from the service which now exists for the United Kingdom as a whole. But I earnestly trust that if a separate Irish Civil Service be established there will be no limitation of candidature to Irish-born subjects of the Crown. Ireland would, in my opinion, commit a fatal mistake—fatal in more ways than one—if she imposed any impediment to the free competition by British-born subjects for appointments in the Irish Service, should one be created. She will gain far more than she will lose from reciprocity in this connection.

Assuming for the purpose in hand that the present general policy of recruitment for the Civil Service will continue, the question arises whether there should be an independent Civil Service Commission established in Dublin: or whether the Irish Government should ask the Burlington Gardens Commission to hold examinations in Ireland for the Irish service, associating with themselves some distinguished Irish educationalists. Personally I am strongly in favour of the latter alternative, on the ground of economy; and because of the advantage of using experienced British agencies for common purposes. Good feeling and mutual understanding will be thereby promoted.

Turning to the remaining Imperial Departments, I think the Exchequer and Audit Office should relinquish its Irish functions to a similar office restricted in its operations to Irish finances only[66]; while the Public Works Loans Commissioners would probably cease to do business in Ireland.[67] Loans to municipalities [pg 059] and other public bodies in Ireland would, under the new dispensation, be probably made by the Irish Treasury acting on the advice of the Irish Board of Works.

I had, at first, thought of adding the Department of “Woods and Forests” (Quit Rents) to the list of excluded Departments, but I trust that, following the treatment proposed in Clause 24 of the Bill of 1893, this source of income may be made over to the Irish Parliament. If not, the Department should swell the list of exclusions. In the same way I had at first intended including the Land Commission in the excluded list, because of the imperative necessity which exists of retaining the Finance and Administration of Land Purchase under the control of the Imperial Treasury. I need not labour this point; all intelligent persons are agreed that the use of British Credit is essential to the furtherance of Irish Land Purchase, that Ireland, of herself, could not finance her great Land Purchase undertaking, because the cost would be prohibitive and would bring to an end that great scheme on whose successful accomplishment the peace and prosperity of Ireland so greatly depend. If the Government decides to exclude the Land Commission permanently from the control of the Irish Legislature no Irishman need object; but, for reasons to be stated in the sequel, I am disposed to think that the Land Commission might be better placed in a temporarily reserved, than in a permanently excluded, list.

With these exceptions I think that all the other public Departments and Offices enumerated may be regarded as dealing with business of a purely Irish character, the administration of which may be localized to Ireland. All of them, with the important addition of “Finance” and of certain other minor subjects which [pg 060] are known officially as “Votes,” I would group into Departments of Government in the following way, premising that I do not pretend to give an exhaustive list of “sub-heads,” which, indeed, must vary with changing circumstances and the growth of work. As I have said, the object of this grouping or classification is to facilitate the introduction of parliamentary control over every branch or kind of public business in Ireland.

Suggested Scheme of Administrative Departments of the Reformed Irish Government.

Group I.—The Treasury.

(1) General Finance.

(a) Taxation, Bills before the Legislature.

(b) Budgets, Recoverable Loans, Local Taxation Account.

(c) Courts of Law, Legal Establishments, Legal Business.

(d) Other Civil Departments, Pensions, Valuation and Boundary Surveys.

(e) Trade and Commerce.

(f) Exchequer and Audit.

(2) Local Finance.

(a) Municipalities, Urban Councils.

(b) County and Rural Councils.

(3) Registry, Receipt and Issue of Letters.

Group II.—Law and Justice.

(1) Supreme Court of Justice and its Officers.

(2) Recorders.

(3) County Court Judges.

(4) Resident Magistrates.

(5) Crown Business.

(a) General.

(b) Law Officers.

(c) Crown Prosecutors, Crown Solicitors.

(d) Petty Sessions Clerks.

(6) Police.

(a) Royal Irish Constabulary.

(b) Dublin Metropolitan Police.

(7) Prisons, Reformatories, Criminal Lunatics.

(8) Miscellaneous.

(9) Registry, Receipt and Issue of Letters.

Group III.—Education, Science and Art.

(1) Primary.

(2) Secondary.

(3) University.

(4) Technical.

(5) College of Science.

(6) National Gallery, Public Libraries, Museums.

(7) Registry, etc., of Letters.

Group IV.—Local Government.

(1) Rural.

(2) Urban.

(3) Sanitation.

(4) Medical Relief, Hospitals.

(5) Poor Law Relief, Orphanages and Asylums.

(6) Crop Failure, Famine Relief.

(7) Labour questions, Housing of the working-classes.

(8) Audit of Local Accounts.

(9) Registry, etc., of Letters.

Group V.—Public Works.

(1) Roads and Buildings.

(2) Railways and Canals.

(3) Marine Works.

(4) Drainage, Irrigation and Reclamation.

(5) Mines and Minerals.

(6) Registry of Letters.

Group VI.—Agriculture.

(1) General.

(2) Relief of Agricultural Congestion. (Congested Districts Board).

(3) Land Improvement, Seeds, Manures, Agricultural Implements, etc.

(4) Improvement in the breed of Horses, Cattle, etc.

(5) Diseases of Animals and Plants.

(6) Agricultural Schools, Experimental and Demonstration Farms, etc.

(7) Arboriculture, Afforestation.

(8) Registry of Letters.

Group VII.—The Land Commission.

(1) Land Purchase.

(2) Relief of Congestion.

(3) Recovery of Annuities and Sinking Fund.

(4) Fixation of Judicial Rents.

(5) Registry, etc., of Letters.

Group VIII.—Registration.

(1) General and Vital Statistics.

(2) Deeds.

(3) Titles.

(4) General Records.

(5) Friendly Societies.

(6) Registry of Receipts and Issue of Letters.

Group IX.—General Purposes.

(1) Sea and Inland Fisheries.

(2) Labour Questions, other than Housing.

(3) Scientific Investigations.

(4) Thrift and Credit Societies; Agricultural Banks.

(5) Quit Rents.[68] (Woods and Forests).

(6) Temporary Commissions of Enquiry.

(7) Stationery.

(8) Office of Arms.[69]

Before proceeding to discuss the method by which the control of the Legislature may be most easily and effectively established over these various departments, I wish to consider whether any of them should be temporarily reserved from that control. There is undoubtedly, a strong feeling among Irish Unionists, and among many moderate Nationalists, that, if Home Rule does come, Judicial Patronage, and the control over the Police, should be in the beginning reserved or excepted from the general transfer of control to the new Government which would take place when the Bill becomes law. On the other hand, the Nationalist Party are, I understand, anxious that there should be no delay in transferring the judicial patronage. They have been dissatisfied with the exercise of judicial patronage in the past: and they wish for a distribution more to their liking in the immediate future.

I have myself no fear that judicial patronage will be misused to the detriment of any party by the Irish Government of the future; but Irish Unionists are apprehensive on the point; and in my opinion something should be done to allay their fears. If the Bill should contain provisions similar to Clause 19 of the Bill of 1893, which maintained in the Irish Supreme Court two judges with salaries charged on the Consolidated Fund of the United Kingdom, appointed by the King in Council, and removable only by his Order, the Unionist apprehensions might be, to some extent at all events, removed. But as the Financial Provisions of the coming Bill will probably be different [pg 064] from those of the Bill of 1893, a clause like Clause 19 of that Bill may not be inserted.[70]

In that case, I think it would tend to the establishment of general confidence if the patronage in connexion with judicial appointments were, during the transition period, reserved and administered, as at present, by the Lord-Lieutenant. I think it would be good policy to abstain from every transfer of authority from the Lord-Lieutenant to which the Irish minority may at the outset reasonably object. There must be a period of transition—be it seven years or ten years or even longer—during which the minority will be suspicious of such change as I am now concerned with. I would let these suspicions wear themselves out, as in time they are sure to do with the growth of further knowledge and of that saner outlook on Imperial and Irish affairs, which collaboration towards common objects brings with it. It seems to me that in the reassurance of opponents and hesitating well-wishers, and even in the immunity, for a time, from the pressure and annoyances of this class of patronage, the new Irish Government may well find, in its infancy, satisfaction for the temporary withholding of a part of its prerogatives. It might be an instruction to the Lord-Lieutenant, that, during the transition period, (which need not be long) the wishes of the Irish ministry, in regard to appointments to judicial vacancies, should be ascertained and fully considered before the vacancies are filled.

But if this view cannot prevail then I suggest that during the transition period the patronage in connexion with the Supreme Court should, at all events, [pg 065] be reserved. It is highly desirable that the apprehensions of the Irish Unionists should be allayed in every practicable way.

Advantage should, I think, be taken of this opportunity to remove the Irish Chancellorship from the list of political appointments. Whatever strong reasons or justification may exist in England for the Lord Chancellor changing with the Government, there should be none that I can discover in the Ireland of the future, unless it be in connection with the appointment of Justices of the Peace. But fairness in distributing that sort of patronage can surely be secured by other means than a frequently recurring and unnatural change of Chancellors, whereby the Pension List is heavily and unnecessarily burdened.

In connexion with the Royal Irish Constabulary, I am clear that the control should rest, as now, with the Lord-Lieutenant (that is, with the Imperial Government) until Land Purchase has made further progress, and the new Government has gained experience of administration; but it is only fair that during this period of reservation the Imperial Government should allow Ireland a drawback on the cost of the police force, the present strength of which is excessive if judged from the Irish point of view.

The situation will, of course, be anomalous inasmuch as there will be an Executive Government responsible to the Irish Parliament yet relieved of the prime responsibility resting on all Governments—the maintenance of law and order. This anomaly cannot be avoided: it inevitably arises from the political conditions of the case. The best way of dealing with the situation will be to maintain existing arrangements which are directed by the Under-Secretary and to preserve the subordination of the Law Officers to the [pg 066] Lord-Lieutenant in all matters relating to the maintenance of order. But while the Minister for Law and Justice should have no control over the police during this transition period, his wishes in regard to any matter will, of course, be carefully considered; his request for the performance by the police of all duties not of a purely police character which they now customarily discharge, will be complied with, and his proposals to reduce the strength of the force, and thereby effect saving in the public expenditure, will no doubt be favourably considered by the Lord-Lieutenant if the state of the country permits.

I presume the Bill will indicate the kind of police force which in time will take the place of the existing force. I confess I am not prepossessed in favour of the plan embodied in this connexion in the Bill of 1886 or 1893. I think the best plan will be to retain the organization of the Royal Irish Constabulary, and to reduce the present force by short recruitment when the Imperial Government think that can be safely done. I deprecate the creation of a local force under the control of the local authorities.[71]

Finally, the question whether the force to be locally employed should be armed, or not armed (as the Bill of 1893 proposed), may be left to be decided at the time by the Imperial Government: but, in any case, it will, I think, be necessary for the Irish Government to maintain a sufficiently strong armed body of police in Dublin and other suitable centres to deal with emergencies.

The control over the staff of Resident Magistrates is so intimately bound up with the existing system of police administration that one cannot be safely separated from the other, and this section of Law and Justice should, in my opinion, also be reserved during the transition period. At the same time I think the services of the Resident Magistrates can be more fully utilized in the business of general administration than they are at present.

There is less reason for retaining the Dublin Metropolitan Police under the Lord-Lieutenant's direct control during the transition period than for retaining the Royal Irish Constabulary; and if the national feeling would be gratified by giving to the Irish Parliament, at once, the control of the Dublin police, I would defer to that feeling. But my personal opinion is that the Irish Parliament in its earliest days would be wise to concentrate upon self-organization, the establishment of control over the departmental system, and the taking stock of the condition of the country in all the various aspects of national life. It will then with greater assurance of success take over from the Imperial Government the responsibility for the maintenance of order.

I have already referred to the Land Commission. There is a general agreement that the department of land purchase, which depends essentially upon the use of British credit, should remain with the Imperial Government. The only question is: should this department be permanently excluded from Irish control, or only temporarily excluded, the period of exclusion being in the discretion of the Imperial Government? In view of the temporary character of the Land Commission, the possibility that Legislation affecting land may be necessary before the Annuities generally cease, [pg 068] and the certainty that when they do cease, either generally or in any particular area, it will be desirable to remove all limitations on the functions of the Irish Legislature in reference to land, I am disposed to think it, on the whole, better to treat the Land Commission as a “reserved” instead of an “excluded” subject, and thereby make its ultimate transfer to Irish control a matter of executive action on the part of the Imperial Government. But I admit the existence of strong reasons for total exclusion, and I should not question a decision in favour of the latter course.[72] Should it be excluded, I would suggest that it shall be open for the Irish Government to bring to the notice of the Lord-Lieutenant any matters in which the administration of the Land Commission seems to be defective.

In this connexion I desire to call attention to the Congested Districts Board and the power which it at present exercises of purchasing land under the Land Purchase Acts. It is imperatively necessary, if this Board is to be retained in its existing or in any modified shape, that its work of relieving congestion and improving the condition of the peasantry of the West should be brought under the supervision and control of the Irish Legislature. But if the land purchase operations of the Land Commission are to be excluded or reserved from control by the Irish Legislature, it is very difficult to defend the subjection to such control of the land purchase functions of the Congested Districts Board. How can the British Treasury be reasonably asked to become responsible for prices fixed by an Irish body over which it will have no control whatever? Such a situation would be utterly anomalous.

The anomaly can be avoided (as suggested in my Minute appended to the Report of the Royal Commission on Congestion, 1908) by relieving the Congested Districts Board of its functions as a purchasing authority and having purchases of land made for it, on its requisition, by the Land Commission.

Having thus indicated my opinion as to the departments or sections of departments to be temporarily reserved from the control of the Irish Parliament, I come to the question of how that control should be exercised over the departments remaining on the list. In this connexion I invite reference to Clauses 20-22 of the Irish Council Bill. That Bill (Clause 19) contemplated the appointment of committees of council, with paid chairmen, to administer the departments into which public business was to be distributed under the Bill. It was my own expectation, had the Council Bill become law, that the chairmen of these Committees of Council would in course of time have become ministers for the departments concerned; but, in the beginning and until experience had been gained, it seemed desirable to give the embryonic ministers the help, and to impose on them the restraint, of colleagues. Whether the future Irish Legislature will see prudence or wisdom in this course, one can only conjecture; but one may trust that it may. In the following observations, however, and without meaning to imply any preference for “Ministers” over “Chairmen of Committees,” I shall employ the word “Minister.”[73]

The first Department on my list is the Treasury. Here the new Irish Administration must break entirely fresh ground and build from the foundation. An Irish [pg 070] Exchequer must be created, a system of Treasury Regulations and accounts must be evolved; an Irish Consolidated Fund must be established; and a Bank must be selected with which the Irish Government will bank. (Much pressure will, I anticipate, be brought to bear on the Irish Ministry to distribute its favours in this connexion; but, it would, I submit, be highly inconvenient to keep accounts with separate banks). At present the Chief Secretary's office in Dublin Castle has a financial section, but the new Government will derive no inspiration from its procedure. It will be better to look for precedents in Whitehall. They will show a Treasury Board composed of members of the Government but with the responsibility resting on one called the Chancellor of the Exchequer who is answerable to Parliament for the country's finances and, subject to the decision of the Cabinet, possesses complete control over them (excepting the Army and Navy Estimates). It will, I suggest, be wise for the Irish Legislature to follow this precedent, and place the Irish Treasury in charge of a Body of Commissioners (being Members of the Parliament) with a Treasurer or Chancellor of the Exchequer, specially responsible to it.

The governing principle, from the parliamentary point of view, of our financial system, is that no expenditure can be proposed to Parliament except by a Minister of the Crown.[74] I trust that the principle will be reproduced in the Irish Parliament, and rigidly enforced. In no other way can an adequate safeguard be provided against irresponsible and hasty proposals for spending public money.

The Imperial Treasury at present, exercises financial [pg 071] control over every department and branch of the public service (over the Army and Navy estimates I believe the control is less effective than in other directions). This is a wholesome practice, and it should be copied by the Irish Legislature with one qualification. At present, the financial control of the Treasury is occasionally accompanied by a degree of administrative interference which I venture to think is sometimes injurious to the public interests. The Treasury is deficient in administrative knowledge; and for this reason its interference has not infrequently led to inefficiency. Some administrative restraint is, of course, inseparable from financial control; but when money is sanctioned for a particular purpose, the administrative officers on the spot can regulate detailed expenditure better than gentlemen at a distance.

The new Parliament should certainly provide a Public Accounts' Committee; and a Comptroller and Auditor-General, as under the Exchequer and Audit Act of 1866; and I suggest for consideration, that the Departments should be competent to challenge, before the Public Accounts' Committee, any over-interference on the part of the Treasury in administrative details. While I should be glad to see in Ireland the most effective check upon wasteful expenditure, I deprecate the exercise of a meticulous interference in administrative details.

The secretariat arrangements to be made in connection with the Department of Law and Justice, will depend on the extent of “temporary reservation” to be effected. If there is to be the larger reservation, during the transition period which I have suggested above, nothing need now be done. Matters will continue, during that period, on their present footing. If there is to be only partial reservation, the portion of [pg 072] the existing office staff in Dublin Castle which deals with the unreserved sections can be detached for employment under the Minister, who in this case would doubtless also hold another portfolio. When the Department is brought fully under Irish control, there will be found in Dublin Castle gentlemen specially competent to give effect to the policy of the Legislature in this Department of Irish Government.

But, whether the Judicial Department is brought sooner or later under Irish control, an early opportunity should be taken of reviewing the entire judicial organization with the view of pruning away redundancies and placing it on a more economical basis. Few will be found to deny that the existing staff of County Court Judges and legal officials of various grades is excessive; and no one, with knowledge, will maintain that a Supreme Court of 14 Judges, costing with their subordinate officers £181,209 a year, is not too costly for a country with a population of 4-¼ millions. In the House of Commons Return (Cd. 210 of July, 1911), the number of civil servants of all grades in the Supreme and Appellate Courts of England (with their 39 judges) is shown as 461, while in the Supreme and Appellate Courts of Ireland (with their 14 judges) it is shown as 257!

The administration of Education is at present distributed between three Boards and the Irish Government and the circumstances call for drastic reorganization. The Boards of National and Intermediate Education should be abolished, and a Department of Education created under the control of a Minister responsible to the Irish Legislature. Such a Minister would find ready to his hand an official staff (working under the direction of a very competent “Commissioner of Education”) which will not at the outset require any large increase.

In the Irish Council Bill a Committee of Council for Education was proposed, which provided for the admission of gentlemen not being members of the Irish Council; the object being to conciliate public feeling which is notoriously sensitive upon this matter, and to secure special opportunities for representatives of the various religious creeds of making their views felt. I believe that the liberality of that provision was very inadequately understood in 1907; but in the altered conditions of the present time, I do not repeat the proposal. The Irish Parliament, under the coming Bill, will be a stronger representation of the popular will than the Irish Council would have been, at all events, at the outset.

This change of administrative control, direction, and responsibility in respect of Education will, I trust, have a powerful effect in improving secular instruction, which is at present notoriously inefficient; but it need not (apart from any declaration of policy by the Irish Legislature), involve any change in the religious aspect of the teaching. Teaching in Irish primary schools of all creeds is in practice denominational (though not so in theory). My hope is that it will remain so. What the change will involve is the control of the Department over the appointment, the promotion, the removal, the qualifications, and the conditions of service of every person employed in Irish schools. That is as it should be.

The “Endowed Schools” are conducted under schemes which have, I believe, been settled by the Judicial Tribunals, and I do not suggest any interference with such schemes, but the efficiency of the secular teaching in those schools should be subject to the supervision of the Department of Education.

I come next to the Local Government Board, which consists at present of an ex-officio President (the Chief [pg 074] Secretary) and three members, one of the three being Vice-President and the real head of the Board. The appointment of a Minister, being a member of the Irish Legislature, in place of the ex-officio President who never sits on the Board, will convert this Board into a Department with a responsible Minister in charge. One member of the Board (not the medical member) may be dispensed with, and the Executive Establishment calls for revision. This Board comes into contact with the people in many intimate relations of their lives and on its successful administration will largely depend the popularity of the new Administration.

The next Department is the Board of Public Works and Buildings, which at present is a Treasury Department independent of Irish control. For the “Chairman” should be substituted a Minister responsible to the Legislative Assembly. At present there are three members, but one of these may, I think, be dispensed with at once. I look to this Department to confer benefits, long delayed, on the country; I would, especially, instance, drainage. Ireland stands in need of nothing more than a system of arterial drainage carried out on a large scale.

At present the Commissioners of Public Works in Ireland make recoverable loans on behalf of the Treasury for land improvement and such like purposes. In the scheme indicated above, the making of these loans would come within the functions of the Finance Department. But the Department of Works would naturally be the Treasury's Agents advising on the necessity for such loans and supervising the expenditure of them, when borrowed for large betterment undertakings.

The next Department is the Department of Agriculture and Technical Instruction. In the scheme [pg 075] outlined above Technical Instruction has been brought under the Education Department, while the Congested Districts Board has been brought under the supervision of the Department of Agriculture. The Act under which the Department of Agriculture at present works provides for two Bodies, to assist and advise the Vice-President, (who, as in the case of the Local Government Board, is the working head of the department)—a Board having a veto on expenditure, and a Council which gives general advice on policy. Both the Board and the Council were devised to supply that popular element in which the system of Irish Government is at present lacking. Under the new dispensation this popular element will be amply supplied. Both Bodies will therefore be unnecessary; their continuance would conduce to embarrassment and friction with the all-controlling Legislature. Both the Council and the Board should be abolished. The President and Vice-President should also disappear, and in their place should emerge a responsible Minister in charge of the Department. This Department seems to be, after the Judicial Department, the most expensively organised in Ireland. It is true that it comprises some branches which have elsewhere an independent status: but notwithstanding this, I am convinced that a revision of its numerous and costly establishments is needed in the interests of economy and efficiency.

I have already suggested that the Congested Districts Board should be relieved of the duty of purchasing land, the Land Commission being required to make these purchases on requisition from the Congested Districts Board. I would add (in accordance with the principle suggested by paragraph 100 of the Report of the Royal Commission on Congestion in Ireland, (1908)) that the creation of an Irish Legislature destroys [pg 076] the justification for this Board. The work can be better done by an Executive Agency working under the control of a Committee of Parliament. But if a Board is retained it should not be the large Board we have now. A small Board of five will be more conducive to efficiency and far more amenable to the control of the Legislature. That control I venture to add will be most beneficially exercised in bringing about the abandonment of the Congested District Board's present policy of spoon-feeding the congested villages of the West; and of dealing with them not, to any extent, on eleemosynary principles, but exclusively on those of self-help. The Board's methods of relieving congestion should be assimilated to the practice of the Land Commission on dealing with congested areas, if men now living are to see the end of the Board's activities.

In connexion with Registration, I think it is desirable to bring all kinds of registration under the control of one Minister, but the work is mostly of a routine character and a single Minister will doubtless find himself able to direct this and also the last Department remaining on my list.

This Department—for General Purposes—brings together the remaining Boards and Offices dealing with official work in Ireland; and under it may in future be brought any official business of a temporary character, not of sufficient importance to be dealt with by a separate Office, but yet of such importance that a vote is taken for it in Committee of Supply.

I have placed “Fisheries” in this Department because that important industry requires more attention than it has hitherto received, or than it can receive from the Department of Agriculture. It will also be observed that I have placed in this Department the [pg 077] subject of Thrift and Credit Societies and Co-operative Banks: thus dissociating them from the Department of Agriculture, which deals with them at present but with which they have no necessary connexion. They have been made far too much the battle-ground of contending parties. Some supervision by the Government over these co-operative agencies may perhaps be necessary, but they will flourish most when interference by the Government is least felt.

It remains to refer to the position and functions of the Lord-Lieutenant under the new dispensation (it is, of course, to be presumed that no religious disqualification will any longer attach to the office). On the assumption that the Executive power will continue vested in the King, all executive acts of the Irish Government must issue by authority of the Lord-Lieutenant through whom will also be communicated the assent to, or the withholding of assent from, Acts of the Irish Legislature. The Bill of 1893 (Clause 5 (2)) provided for:

“An Executive Committee of the Privy Council in Ireland to aid and advise in the government of Ireland being of such members and comprising persons holding such offices under the Crown as His Majesty, or if so authorised, the Lord-Lieutenant, may think fit, save as may be otherwise directed by Irish Act.”[75]

It will be desirable that such a Committee of the Irish Privy Council should be created to assist the Lord-Lieutenant. But while the majority of the Committee should always be composed of Ministers, it would, I think, conciliate the minority, and otherwise make for efficiency, if some members on the Privy Council Committee, were taken from outside the [pg 078] Government. If the Committee were composed of ten members, seven might be Ministers, and three members might be taken from outside the Government: the decision of the Council would be that of the majority.

Of course, I am conscious of the fact, that this arrangement may be objected to on the ground that it would expose the plans of the Government, in particular cases, to gentlemen who might not be of the Party in Office. But Privy Councillors are bound by oath to secrecy; and I think the danger of a dishonourable betrayal of trust is incommensurate with the advantages which this representation of outside feeling on the Committee, would bring. Moreover, the Lord-Lieutenant would be free not to summon any particular Privy Councillor to a session of the Committee, if the Prime Minister objected to his presence. The proceedings of the Privy Council would be secret, and no Minutes of dissent would be recorded.

I take it that under the coming Bill, the Lord-Lieutenant will have no power to initiate action otherwise than by suggestion to the Ministers concerned, who, may, or may not, act on the suggestion. Ordinarily, the Lord-Lieutenant in Council will accept the Minister's advice: but when he differs, and persists in differing, he would be bound in the last resort to refer the matter to the British Cabinet. Ex-concessis, all proceedings of the Irish Legislature or Government will be subject to the ultimate control of the Imperial Parliament.

It will be necessary to provide for the representation of the Irish Government in the Imperial Parliament (a different thing from the representation of Ireland, which, if the solidarity of the United Kingdom is to be preserved, must be maintained, though, as I have already said, in a proportion “which should be sensibly [pg 079] less than the proportion existing between British Members and their electorates”). Some Member of the Imperial Parliament must answer for that Government; and the question arises whether the Member should be an Irish Member, designated by the Irish Government, as its representative, or a British Minister. In view of the fact that the Acts of the Irish Government will be subject to the control of the Imperial Parliament, and must, therefore, come regularly under the cognizance of the British Ministry, I suggest that the duty should be discharged by the British Home Secretary, pending the time when the establishment of the Federal System (Home Rule all round) will call for a more far-reaching Parliamentary adjustment.

If the Land Commission (Group VII.) be excluded from Irish control, the number of Ministers in charge of departments would be seven, reducible to six by giving the portfolios of Groups VIII. and IX. to the same Minister, and to five if a separate Minister for Law and Justice be not at once appointed. With the Prime Minister, who might have charge of a department, or, as in Canada, might be President of the Privy Council, a Cabinet of seven or six as a minimum number would be composed; and this would seem to be an adequate number, at all events to begin with.

The general result of the preceding suggestions should be that responsibility for every agency engaged in the administration of public business in Ireland will attach to a particular Minister, responsible to the Irish Parliament; that interest in Irish public business will be enormously stimulated in Ireland, and that a salutary public control will be effectively exercised. In particular, it may be expected that public money will be husbanded, and when expended, will be spent to the best advantage.

It is not possible within the limits of a paper like this, to enumerate the provisions of law, peculiar to Ireland which the organic changes indicated in the preceding paragraphs may necessitate. An enquiry into that matter (as into the redundancy of Judicial, Executive and Secretariat establishments) will no doubt be undertaken by the Irish Government on a suitable opportunity. But it is probably correct to say that changes of substantive law will not be so much required as changes of practice, whereby the administration of the law may be brought more into harmony, than it is at present, with popular sentiment.

It is always to be remembered that the scheme of Home Rule or Devolution which is advocated in this paper, does not contemplate the creation of a body of law for Ireland, different from that prevailing in Great Britain. In all matters of status, property and personal rights, the laws of the two countries will, I presume, remain identical; and no legislation of a restrictive, sectional, or sectarian character will be permissible in the one country, which is not permitted in the other. It is also to be presumed that the decrees of English Courts will be as enforceable by Irish Courts and Authorities as they are now, and vice versa; and that, in fact, the Judicial and Executive Organisations will be as available, under the new order of things, for carrying on His Majesty's Government in both countries, as they are now.

If this be understood, most of the doubts and fears, and forebodings of evil to come from this extension of Irish Local Government, will, I predict, be soon dissipated.

III.—The Judicial Committee And The Interpretation Of The New Constitution. By Sir Frederick Pollock

“In this [the United States] and all other countries where there is a written constitution designating the powers and duties of the legislative, as well as of the other departments of the government, an act of the legislature may be void as being against the constitution.” So James Kent wrote in his Commentaries when the foundation of American independence was still within living memory, and an observer in search of constitutional autonomy under the British flag beyond the British Islands would have been driven to find his best example in Barbados. Kent continues: “The judicial department is the proper power in the government to determine whether a statute be or be not constitutional”; for the interpretation of the constitution which is the supreme law of the land is as much a judicial act as the interpretation of an ordinary written law. This is the view most natural to minds trained in English legal and political tradition. It was established in the United States by a decision of the Supreme Court at Washington early in the nineteenth century, and, though not previously free from controversy, has been received ever since; [pg 082] and it has been accepted by British publicists and lawyers as applicable to the decision of causes involving constitutional questions throughout the British Empire. As Chief Justice Marshall said:

“If two laws conflict with each other, the courts must decide on the operation of each. If the courts are to regard the constitution, and the constitution is superior to any ordinary act of the Legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.”[76]

The principle, so far as I know, has never been disputed by any English authority, but occasions for its application did not often arise before our own time. In strictness of law the King in Parliament has supreme legislative power, as with or without Parliament he has supreme executive power, in every part of his dominions. But in fact very large powers of government have been granted in various ways and at various times, and in the cases which now concern us are coupled with an effectual understanding, though of a political rather than legal nature, that they shall not be recalled. It may be observed that a grant of this kind is quite possible without representative institutions. Extensive powers of government and jurisdiction, including the highest “regalities” which could be granted to a subject, were conferred on individuals by several of the early colonial charters. William Penn's charter is perhaps the best known of these, and is a striking example. This, however, is remote from the present purpose, as is the still wider subject of the political and semi-political authorities granted by charter to the East India Company and other trading companies. We have now to attend only to the creation of autonomous powers by statutes of the Imperial Parliament.

The accustomed form in such creations is to confer [pg 083] in express words power to make laws for the peace, order (sometimes “welfare”), and good government of the territory in question. Within the limits prescribed in its constitution, legislative power so created is full and perfect. The Judicial Committee of the Privy Council has repeatedly laid down—not for one Dominion only, but alike for British India, Ontario and New South Wales—that it must not be likened to the merely vicarious authority of a delegate or agent, and is not to be restrained by the rules applicable to agency. So far as it extends, it is a plenary power analogous to that of the Imperial Parliament itself and not to a ministerial authority which cannot be delegated; and this applies to the federated units in a federal system no less than to central or unitary legislature.[77] It is, therefore, not quite accurate, though useful in the first introduction of novices to the subject, to liken the enactments of any such local legislature to the by-laws made under statutory authority by a railway company or a town council. Such bodies can make the regulations they are empowered to make, but cannot delegate the framing of any regulation, or the decision of questions arising under it, to the traffic manager or the town clerk. But a local legislature, within the limits of subject-matter originally fixed, can do all that its creator the Parliament of the United Kingdom could have done. The working safeguard against legislation which, by improvidence or oversight, would conflict with Imperial requirements, is the refusal of royal assent by the local Governor on the advice of his Ministers, or, in the last resort, by the Home Government. Some of the earlier Acts establishing [pg 084] self-government, following the common form of the old colonial charter, provided that local legislation should not be repugnant to the laws of England. This might have been held to forbid such revolutionary changes as abolishing the publicity of Courts of Justice or depriving prisoners of the right to trial by jury. In our own time the question has been raised whether the sacred number of twelve jurymen could be reduced by Order in Council in a criminal court established under the Foreign Jurisdiction Acts in an Asiatic country.[78] But in 1865 it was expressly declared by the Colonial Laws Validity Act that the enactments of colonial legislatures should not be called in question for repugnancy to the law of England in any other sense than repugnancy to some Act of the Imperial Parliament or an order made under its authority.

These matters are only preliminary to the questions that arise under federal constitutions, but they are necessary to be understood if we are to avoid confusion. In the case of a federated Dominion within the British Empire the federal constitution is itself an Act of the Imperial Parliament, and therefore all exercise of legislative power in the Dominion, whether by the central legislature or by that of any constituent State or Province, must be consistent with its provisions, or otherwise it will clearly be invalid to the extent of the repugnancy or excess. Every such constitution has to assign the bounds of central and local legislation; in the case of Canada, for example, the field of action open to the Dominion Parliament at Ottawa and the legislatures of the several Provinces. In strict legal theory the Confederation Act of Canada or the Commonwealth Act of Australia can be amended at Westminster [pg 085] like any other Act of Parliament; but, as in fact these constituent Acts were framed by Canadian and Australian statesmen, so it is well understood that the Home Parliament will not touch them except at the request of Canada or Australia. With such request, there have been amendments and legislative interpretations of the Canadian Constitution. If any Act of Parliament might be called unconstitutional, uninvited intermeddling with the constitution of a self-governing colony would be so. We may pause here to draw one immediate consequence. Whenever Home Rule is enacted and established for Ireland, Parliament must harden its heart against all endeavours, from whatever quarter they may proceed, to obtain any alteration in the scheme save as it may be required by the regularly expressed will of Ireland as a whole. This should be an understanding outside and above all party divisions, British or Irish; and it is equally necessary whether or not a certain number of Irish members continue to sit at Westminster.

We now turn to the possible conflicts of legislation under a federal constitution. It will be convenient to use the more expressive and generally understood word “State” for the autonomous components of the federation. The Canadian term “Province” is prior in time within the Empire; but it might be misleading to readers unacquainted with Canadian affairs, as tending to suggest merely administrative functions like those of a County Council: a body which has many important duties and some delegated legislative authority, but cannot reasonably be called autonomous. A federal constitution must assign some legislative powers exclusively to the federal legislature, and it may reserve or assign others exclusively to the State legislatures. It may also leave a region in which [pg 086] the States have power to legislate, but subject to a concurrent and superior power in the federal authority. This is actually the case in Canada. Hence questions may arise of a more complicated kind than those which are open under unitary Home Rule; they may nevertheless be instructive in simpler cases. The Judicial Committee has deliberately abstained from laying down any general system of interpretation or any presumption in favour of extending or limiting the powers of either Federal or State legislation. It is prepared to take some pains to reconcile apparently conflicting enactments, but beyond that no precise method can be formulated. The Court must deal with the problem of each case on its own merits. “The true nature and character of the legislation in the particular instance under discussion must always be determined in order to ascertain the class of subject to which it really belongs.”[79] Again: “In performing this difficult duty, it will be a wise course for those on whom it is thrown to decide each case which arises as best they can, without entering more largely upon an interpretation of the statute than is necessary for the decision of the particular question in hand.”[80] It would seem obvious without argument that the courts of Canada, Australia, or in the future, Ireland, cannot be bound in any case to give effect to two conflicting enactments of the local and the central legislative bodies at once, notwithstanding that some of the language used by the Judicial Committee a few years ago, on an appeal from the Supreme Court of Victoria, suggests that there is no authority anywhere, short [pg 087] of an Act of the Imperial Parliament, capable of resolving such a contradiction.[81]

The question remains what should be the ultimate court of appeal for questions of this kind arising under an Irish Home Rule Act. According to our general forensic habit and tradition, it would be the court to which appeals are taken in the ordinary course from the Court of Appeal in Ireland, namely the House of Lords. It appears however to have been decided that this duty will be more appropriate to the Judicial Committee of the Privy Council. Now it is high time, for quite independent reasons, that these two courts of last resort, which are composed in practice of the same, or very nearly the same members, should be merged in a single tribunal of final appeal for the whole of the British Empire. In the meanwhile the only material difference is that when noble and learned persons are sitting as the House of Lords they can and do express their individual opinions in the form of speeches addressed to the House itself, and when they sit as “their Lordships” of the Privy Council, or “this Board,” only one opinion is given as the Judicial Committee's advice to His Majesty. For my part I rather think that the suppression of dissenting opinions does not work well in cases of constitutional interpretation. Some decisions of the Judicial Committee within pretty recent memory have been hardly intelligible; one is tempted to conjecture that not all of the reasons for them commanded unanimous assent, and the reasons to which the whole or the greater part of their Lordships could agree were not the best that [pg 088] any of them could have given. Separate and dissenting opinions are freely given in the Supreme Court of the United States, which has dealt with the most delicate constitutional questions ever since its work began. If I were an Irishman I think I should prefer the House of Lords to the Judicial Committee. But, as above said, it is hoped that before very long they will cease to be distinct tribunals. Moreover there is a practical reason, which shall now be mentioned, for making the Judicial Committee the final Court of Appeal in this behalf.

It appears from the published text of the Bill [cl. 29, sub.-cl. 1] that the Lord-Lieutenant or a Secretary of State—in ordinary political language either the Irish Government or the Home Government—may refer a question whether any provision of an Irish Act or Bill is constitutional to be heard and determined by the Judicial Committee of the Privy Council. That Committee is to decide who are the proper parties to argue the case. There does not seem to be any reason to apprehend that the parties interested would make difficulties on the score of expense; they would be either public authorities or representative associations. This provision is really not a novelty but a special declaration, and perhaps an enlargement, of the very wide power given by the Act which established the Judicial Committee in 1833,[82] and empowered the King “to refer to the said Judicial Committee for hearing or consideration any such other [pg 089] matters whatsoever as His Majesty shall think fit”: a power more than once exercised in our own time.[83] It is quite easy, however, for even learned persons who are not familiar with the practice of the Privy Council to overlook the existence of this enactment, and therefore the insertion of an express clause in the Home Rule Bill is judicious. Probably no one will seriously propose to deprive the Crown, as regards Ireland, of a power which it already has throughout the British Empire. But it is a matter from which party politics ought to be rigorously excluded. It should be understood that the power will not be exercised without a considered opinion of the law officers, in Ireland or here, that there is a substantial and arguable question.

IV.—Constitutional Limitations Upon The Powers Of The Irish Legislation. By Sir John Macdonell, C.B., LL.D.

Securities For Religious Freedom

It may be of interest before dealing with the safeguards for religious liberty in Ireland to describe those adopted in other countries. This survey, made in no controversial spirit, may help to give a proper sense of perspective and proportion. A brief comparative study of the legal safeguards for religious liberty may not perhaps help much to inspire the spirit of charity and toleration, which are its best supports. But we know our own position better when we know that of others. It is some gain also to find that others have had the same problems as ours, and have solved them with more or less success. Certain fears are much abated when it is recognised that it is proposed to make in Ireland an experiment of a kind which has been satisfactorily carried out elsewhere. Political justice has been found, in the countries to which I refer, compatible with religious freedom. Why not in Ireland?

Constitutional Limitations

I. Progress of Religious Liberty

In most States to-day religious liberty exists with some qualifications—it is one of the most characteristic features of modern legislation. All religious denominations are tolerated; some may be favoured; all are free so long as they do not come into conflict with generally accepted principles of morality. In most States there is a further advance; we find a tendency, more and more accentuated, towards religious equality; more and more is it the policy of States to place all religious denominations upon the same footing. This principle is not carried out completely in all or indeed in most States. Certain churches are in a special sense State Churches. In some countries, the churches of large parts of the population are treated as “recognised churches,” to their advantage and to the exclusion, it may be, of others. In Austria, for example, there are six recognised churches and religious societies; and a similar system exists in Hungary.

I do not attempt to analyse the many causes of these movements. The fact at all events is that, whether as the result of the attrition, everywhere going on, of dogmatic creeds, or of the growth of the spirit of tolerance, or of indifference, or the rediscovery of charity as a fundamental principle of Christianity, or because toleration is the line of least resistance, or because it best accords with democracy, almost everywhere in modern times in Europe and America religious equality seems to be the condition towards which States are moving. It is worthy of notice that complete freedom is demanded by many sincere adherents of churches [pg 092] who are impatient of State control, and who believe that spiritual life thrives best in an atmosphere of freedom. It is the creed, I am inclined to think, of an ever increasing number that the existence of a free Church in a free State is to the welfare of both.

Even where the principle is questioned, practice tends to conform thereto. Reluctantly and grudgingly conceded as a favour, religious toleration becomes part of the habitual attitude of mind at first of the more enlightened and then of ordinary men. The principle of religious liberty or equality is still disputed by the Church of Rome.[84] The doctrines of Gregory VII. and Innocent III. are still asserted as of old. The syllabus of Pius IX. condemns the principle of equality as enshrining an error not less pernicious because common; it is the vain attempt to equalise creeds incomparable with each other and radically different; such liberty is no better than liberty to err. That is the position taken up in the Papal Syllabus. But in modern times all churches, the Roman Catholic not excepted, have yielded, often insensibly and reluctantly, to the pressure of facts. The ideal condition may be domination of the church; the practical problem in adverse circumstances is how to make the best compromise. Vatican decrees notwithstanding, the powers which issue them cannot, and do not, press their claims as they once did. Immutable in doctrine, they are found to be adaptive in practice. Churches which retract nothing alter their practice; they do not escape the influence of the age and the country, Ireland not excepted, in which they work. Everywhere the tendency is towards religious equality; I find abundant [pg 093] evidence of it even in the policy of the Church of Rome. Many books have been written describing the recent increase of the pretensions of Papal absolutism. There exists, so far as I am aware, no complete history of the policy pursued by the Church of Rome in countries in which it cannot give full effect to its doctrines respecting the true connection between Church and State. Such a history would reveal the existence and exercise of a singularly adaptive power; the growth of a policy suitable for and acceptable in non-Catholic countries and under democratic rule. In the wonderfully rich system of the Canon law are devices suitable for all circumstances. The Church may promulgate a decree in one country and not in another; the Tridentine decrees at the close of some four centuries are not yet made universally obligatory. It may for centuries leave it uncertain whether a bull specially assertive of the power of the Church, is in force in a particular country. The doctrine of the Canon law as to the efficacy of customs, and particularly local customs, permits of variations in accordance with the necessities of time and place. Semper eadem, but elastic and always opportunist—such is the character of the actual policy of the Church;[85] and there is no reason to think that it will be otherwise in Ireland under popular government.

The Roman Catholic Church has lately shown itself [pg 094] accommodating in Germany in regard to the marriage law. When Dr. Hogan of Maynooth College writes of “the peaceful character and disposition of the church and her reluctance to cause any disturbance of the social affairs of States or communities, even where the vast majority of the people are hostile to her religious claims”; when he adds “if it can be shown that a new law (the Ne temere decree) inflicts any serious grievance on Protestants in this country, we are satisfied that due consideration will be given to any representations which may be made in this matter,” he is borne out by the recent policy of his Church, even if one cannot admit the accuracy of his further statement: “Such has always been the policy and practice of the Church in this matter.”—(See Irish Ecclesiastical Record, February, 1911). The system never breaks, but it bends—bends to the exigencies of new situations, and particularly of democratic institutions, such as will exist in Ireland under Home Rule.

II. Securities for Religious Liberty

How to obtain and still more how to secure such liberty or equality is a problem in every modern State. The actual solutions, though many, fall into a few [pg 095] groups[86]; I enumerate the chief. There are countries with State Churches in which have gradually been made concessions to other denominations. England is the typical example. Religious equality (so far as it exists) is the result of a long series of measures; the successive removal of disabilities of Dissenters and Roman Catholics; of measures relating to the tenure of public offices, and as to marriage, or oaths. No one Act states any governing principle. After the fashion of English legislation there has been movement from point to point, though, on the whole, always, or with few relapses, in modern times, in one direction. The securities for equality are found in a long series of individual statutes. Such, also, may be said to have been the history of religious equality in Hungary; as in so many countries there has been a gradual abandonment of the old maxim cujus regio, ejus religio.

I am concerned with the safeguards for equality within a State, and so I need say little or nothing of the Gallican system, which was intended to secure liberty against foreign intrusion. It was the liberty claimed by a church, which refused toleration to other denominations; the protests of a national Church part of [pg 096] Catholicism against the intrusion of the Papacy; it was the assertion of claims, which, to quote Saint Simon, “blessent douloureusement la Cour de Rome”; assertions of the doctrine that the French kings were in secular matters independent of the Pope, and that the Pope's spiritual authority was limited by the laws of the church. In some countries, churches have secured a large measure of religious liberty or autonomy by means of Concordats with the civil Power. The typical case is that of the Catholic Church in France, where such a system may be said to have existed from the Concordat of Bologna, concluded between Francis I. and Leo X. in 1516, until recent times, with the exception of a short break at the Revolution; they may be said to have established an offensive and defensive alliance between Church and State.

I come to systems and devices chiefly used in modern times to secure religious liberty or equality. They are to be found in particular in countries possessing written constitutions. Either they lay down with more or less clearness principles of religious equality, or, dealing specifically with some pressing danger or difficulty, they provide a safeguard as to it. The first striking example of this kind of restriction is to be found in America. Dread of the existence of an established Church and of its ultimate effects upon republican institutions was shared by the framers of the United States Constitution and most of the framers of the States Constitutions. The provision which Jefferson caused to be inserted in the Virginia Bill of Rights and the article in the Massachusetts Declaration of Rights have been copied with variations by the States. Speaking generally, they provide for equality of treatment of religious denominations (Stimson, “Federal and State Constitutions,” p. 137). In the Constitution [pg 097] of the United States there is only one Article on the subject (Amendment, Article 1). “Congress shall make no law respecting the establishment[87] of religion or prohibiting the free exercise thereof.” In the United States true equality exists; all denominations are treated alike; the modern tendency towards equality has triumphed as the result partly of national habits and partly of constitutional restrictions.

I may here cite one or two examples of modern Constitutions which have laid down principles designed to secure religious equality.[88] Naturally Switzerland, with its population nearly equally divided into Catholics and Protestants, has been obliged to deal with this question, and so far as I am aware, it has done so with success. The principles of religious equality are embodied in the amended Constitution of 1874. I quote the chief provisions, because they are on the whole the most complete set of existing safeguards which I have found.

“Article 49.—La liberté de conscience et de croyance est inviolable. Nul ne peut être constraint de faire partie d'une association religieuse, de suivre un enseignement religieux, d'accomplir un acte religieux, ni encourir des peines, de quelque nature quelles soient, pour cause d'opinion religieuse.

“L'exercice des droits civils ou politiques ne peut être restreint par des prescriptions ou des conditions de nature ecclésiastique ou religieuse, quelles qu'elles soient.

“Nul ne peut, pour cause d'opinion religieuse, s'affranchir de l'accomplissement d'un devoir civique.

“Nul n'est tenu de payer des impôts dont le produit est spécialement affecté aux frais proprement dits du culte d'un communauté religieuse à laquelle il n'appartient pas. L'exécution ultérieure de ce principe reste réservée à la legislation fédérale.

“Article 50.—Le libre exercice des cultes est garanti dans les limites compatibles avec l'ordre public et les bonnes mœurs.

“Article 54.—Le droit de mariage est placé sous la protection de la conféderation.