← catalogue

The New Irish Constitution: An Exposition and Some Arguments

by unknown · English · Gutenberg #35172 · 885,549 chars · public domain (US)

The Project Gutenberg eBook of The New Irish Constitution: An Exposition and Some Arguments
    
This eBook is for the use of anyone anywhere in the United States and
most other parts of the world at no cost and with almost no restrictions
whatsoever. You may copy it, give it away or re-use it under the terms
of the Project Gutenberg License included with this eBook or online
at www.gutenberg.org. If you are not located in the United States,
you will have to check the laws of the country where you are located
before using this eBook.

Title: The New Irish Constitution: An Exposition and Some Arguments

Editor: J. H. Morgan


        
Release date: February 4, 2011 [eBook #35172]
                Most recently updated: June 16, 2020

Language: English

Other information and formats: www.gutenberg.org/ebooks/35172


*** START OF THE PROJECT GUTENBERG EBOOK THE NEW IRISH CONSTITUTION: AN EXPOSITION AND SOME ARGUMENTS ***





                        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


Introduction
Part I. The New Constitution
   I.—The Constitution: A Commentary. BY PROFESSOR J. H. MORGAN
   II.—Irish Administration Under Home Rule. BY LORD MACDONNELL OF
   SWINFORD
   III.—The Judicial Committee And The Interpretation Of The New
   Constitution. BY SIR FREDERICK POLLOCK
   IV.—Constitutional Limitations Upon The Powers Of The Irish
   Legislation. BY SIR JOHN MACDONELL, C.B., LL.D.
   V.—Financial Relations BY LORD WELBY
   VI.—The Judiciary, The Police, And The Maintenance Of Law And Order. BY
   THOMAS F. MOLONY, K.C., HIS MAJESTY’S SECOND SERJEANT-AT-LAW, CROWN
   COUNSEL FOR DUBLIN.
   VII.—The Present Position Of The Irish Land Question. BY JONATHAN PIM,
   K.C.
      Part I. The Fair Rent Acts and the Land Purchase Acts.
      Part II. The Statutes Relating to the Relief of Congestion in
      Ireland.
      Part III. Statutes Relating to the Provision of Allotments of Land
      and Dwellings for Agricultural Labourers in Ireland.
      Part IV. Compulsory Registration of Land in Ireland.
Part II. A Historical Argument
   VIII.—Irish Nationality. BY MRS. J. R. GREEN
   IX.—Ireland As A Dependency. BY PROFESSOR A. F. POLLARD
   X.—Ireland, 1782 And 1912 BY LORD FITZMAURICE
   XI.—Grattan’s Parliament. BY G. P. GOOCH
   XII.—“The Government Of Ireland In The Nineteenth Century”. BY R. BARRY
   O’BRIEN
   XIII.—The History Of Devolution. BY THE EARL OF DUNRAVEN
Part III. Contemporary Views
   XIV.—Irish Nationalism And Liberal Principle. BY PROFESSOR L. T.
   HOBHOUSE
   XV.—The Imperial Parliament
      (I) The State Of Parliamentary Business. BY CECIL HARMSWORTH, M.P.
      (II) The Tendency Towards Legislative Disintegration. A Review Of
      The Statute Book. BY H. DE R. WALKER
      (III) Colonial Forms Of Home Rule. BY SIR ALFRED MOND, BART., M.P.
   XVI.—Contemporary Ireland And The Religious Question
      (I) A Catholic View. BY MONSIGNOR O’RIORDAN
      (II) Catholic Tolerance in Practice.
      (III) The Papal Decrees.
      (IV) Some Protestant Views.
Footnotes






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 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 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
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 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, 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 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 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 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 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 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 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, 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 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 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 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 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,
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 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 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 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 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 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
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
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 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, 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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) 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
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 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 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 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 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 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 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 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 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 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, 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 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, 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 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 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 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 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 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 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 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
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 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; 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 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 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 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 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 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 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
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 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
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 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 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 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 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.

    “Aucun empêchement au mariage ne peut être fondé sur des motifs
    confessionels.”


While declaring the principle of liberty of conscience, the Swiss Federal
Constitution permits the cantons to give a privileged position to certain
religious denominations; they may give them subsidies; they may invest
them with certain prerogatives denied to other bodies less favoured. For
example, in Fribourg, the Catholic and the Protestants are put on a
footing of equality. Owing to the powers possessed by the separate cantons
religious equality is not so complete as at first sight might seem. No
serious difficulty appears to have been experienced in giving effect to
the above provisions(89) which are not so complete as those found in the
Home Rule Bill.

III. SAFEGUARDS IN COLONIES

I come to legislation which may seem of a kind more helpful and
instructive than that of Continental countries. In the British Colonies
there is no connection between the State and Church. The sole important
exception is in Canada, where “the church can compel by law the payment of
dues by Roman Catholics, and thus obtains great privilege from, while
independent of, the State.”(90)

In framing the Constitution for the Canadian Dominions the religious
question chiefly considered related to education; it was deemed necessary
to guard against legislation which might impair existing rights. It was
with an eye to the possibility of injustice being done to the
denominational schools that special provisions were inserted in the North
American Act accordingly (30 & 31 Vic., c. 3, 1867, Section 93):


    “In and for each province the Legislative may exclusively make
    laws in relation to education, subject and according to the
    following provisions:

    “(1) Nothing in any such Act shall prejudicially affect any right
    or privilege with respect to denominational schools which any
    class of persons have by law in the province at the union;

    “(2) All the powers, privileges and duties at the union law
    conferred and imposed in Upper Canada on the separate schools and
    school trustees of the Queen’s Roman Catholic subjects shall be
    and the same are hereby extended to the dissentient schools of the
    Queen’s Protestant and Roman Catholic subjects in Quebec;

    “(3) Where in any province a system of separate or dissentient
    schools exists by law at the union, or is thereafter established
    by the Legislature of the province, an appeal shall lie to the
    Governor-General in Council from any Act or decision of any
    provincial authority affecting any right or privilege of the
    Protestant or Roman Catholic minority of the Queen’s subjects in
    relation to education;

    “(4) In case any such provincial law as from time to time seems to
    the Governor-General in Council requisite for the due execution of
    this section is not made, or in case any decision of the
    Governor-General in Council on any appeal under this section is
    not duly executed by the proper provincial authority in that
    behalf, then and in every such case, and as far only as the
    circumstances of each case require, the Parliament of Canada may
    make remedial laws for the due execution of the provisions of this
    section, and of any decision of the Governor-General in Council
    under this section.”(91)


Lately there have arisen religious difficulties to which this section has
no application. By the Confederation Act (Section 91) the Dominion
Parliament has exclusive jurisdiction as to marriage and divorce;
jurisdiction which would appear to relate to capacity as to marriage. By
Section 92 in each province the legislature may exclusively make laws as
to “the solemnisation of marriage in the province,” which would appear to
extend to all matters affecting the form and ceremony; a division of
powers certain to produce sooner or later conflicts. Recently the _Ne
temere_ decree was promulgated in Canada. The effect upon Roman Catholics
has been considered in what is known as the Hebert case, the chief facts
of which were these: Eugene Hebert and Emma Clouatre, both Roman
Catholics, were married by a Protestant clergyman. The marriage was
declared null and void by Archbishop Bruchesi. His decision was confirmed
by Judge Laurendeau. But on appeal it was reversed by Judge Charbonneau,
who held that any officer qualified by the State to marry persons could
marry persons of any religious faith; that the _Ne temere_ decree had no
legal validity and was binding only upon the consciences of Roman
Catholics.

To quote a report of Judge Charbonneau’s judgment:


    “I do not think that the Roman congregation ever intended the _Ne
    temere_ Decree to have a civil effect. It applies to Roman
    Catholics only. As for the Archbishop’s nullification, it has the
    same legal effect, but not more than the decree upon which it is
    based. It simply declares that no Catholic marriage ceremony was
    performed.”—(_Globe_, Toronto, February 23rd, 1912.)


So far as I know, there has been no appeal to the Judicial Committee, and
I take it that Judge Charbonneau’s decision is binding in Canada.(92)

In the Constitution of the Australian Dominion is a provision similar to
that quoted above from the Constitution of the United States. (Section
116):


    “The Commonwealth shall not make any law for establishing any
    religion, or for imposing any religious observance, or for
    prohibiting the free exercise of any religion, and no religious
    test shall be required as a qualification for any office or public
    trust under the constitution.”


This enactment, so far as I am aware, has not been the subject of
interpretation. Religious equality in Australia has virtually no history.

IV. SAFEGUARDS FOR IRELAND

I come to the position of things in Ireland. It may be well at the outset
to make clear two points. The first is the present legal status of the
Roman Catholic Church in that country. It is the same as that of any other
voluntary association; its position theoretically no better and no worse.
It possesses autonomy; it enjoys freedom as to doctrine and worship; its
constitution is not interfered with; it regulates clerical education; it
nominates its bishops; it administers its property in its own way.

It may thus enjoy immense power, especially if there be no true national
system of primary education; it may well be doubted whether it possesses
as much power in any other country as in Ireland. But like other voluntary
religious associations the Catholic Church is not wholly withdrawn from
the supervision and control of the Law Courts. A series of decisions of
our highest courts with reference to Churches in Ireland and Scotland, and
the colonies, have laid down certain principles equally applicable to the
Roman Catholic Church and to all other religious bodies; in particular,
these principles: that the State can exercise control over all religious
bodies possessing property when it is proved to be contravening its rules
to the injury of members. In the case of societies resting upon a
consensual basis, Courts of Justice are bound when due complaint is made
that a member of the society has been injured as to his rights in any
matter of a mixed spiritual and temporal character, to inquire into the
laws or rules of the Society.(93) Further the authority of a Church cannot
be legally used for purposes inimical to the State or contrary to any
statute. It may make rules for its own members; it cannot enforce them
against others; they are invalid against them if contrary to the terms of
any statute. It may, for example, declare that it will not regard a
marriage with a deceased wife’s sister as valid; it may refuse to
recognise as members those who so marry. But such rules will not legally
invalidate a union which a statute has legalised. Probably this has not
always been fully borne in mind by those who have denounced the
promulgation of the decree _Ne temere_ in Ireland. Resolutions have been
passed against it here and in Ireland. Many Nonconformist bodies have
protested against the promulgation of the decree in British Dominions. The
decree is, I think, objectionable for several reasons, and not least
because it discourages mixed marriages, an effect which seems to me
deplorable, for nothing is better calculated to put an end to
uncharitableness and hatred than the frequency of such unions. But while
such a decree may do harm, it will have no direct effect except as between
the members of the Catholic Church _in foro conscientiæ_. The Irish
marriage law, which with a few exceptions is the same as the English, is
binding on all Catholics and Protestants. Lord Llandaff who speaks at once
as a lawyer and as a Catholic, puts this point clearly:


    “The invalidity was that of the sacramental and not of the legal
    marriage, and what the Church said to one of her subjects in such
    circumstances was: ‘You are married; you are a husband; but you
    may not receive the sacrament, and therefore you are in a state of
    sin, and in that sense your marriage in void, according to your
    conscience, though not according to the law.’ ”(94)


A movement of retrogression the promulgation of the decree may have been;
but every religious body must be free to lay down rules as to its
membership. To quote the letter of the Archbishop of Canterbury of
November 8th, 1911, on this subject: “Any branch of the Church of Christ
must clearly have the power of defining the conditions of membership.”(95)
It is but fair to remember that the decree _Ne temere_ is part of a
settled policy. The Church of Rome has often shown its disapproval of
mixed marriages which Benedict XIV. declared “abominable.”(96) It is but
fair also to take note of the plea that this decree is the latest attempt
to secure uniformity in regard to marriage law; attempts which have been
pursued since the _Tametsi_ decrees of the Council of Trent. Before the
reform in the marriage law then effected there was much confusion and
looseness. All that was required for a valid marriage was that the
contracting parties should express to each other their mutual consent by
words _de præsenti_; a state of things which favoured fraud and led to
uncertainty. The Tridentine change must appear to most lawyers to have
been a great reform; marriage was to be solemnised in the presence of the
parish priest of one of the parties and of two witnesses. But this
ecclesiastical law is not even now in force in several countries. It was
promulgated in most Catholic countries; it was never promulgated in purely
Protestant countries, or in all countries with a mixed population. It
applied to marriages between two Catholics but not necessarily to mixed or
to Protestant marriages. It might be in force in one part of a country and
not in another. Thus the _Tametsi_ decree was in force in the greater part
of the province of Armagh since the time of Elizabeth. Not until 1827 was
it promulgated in the province of Dublin. Now we are told that it was to
secure still further uniformity that the decree _Ne temere_ was published.
It requires all persons baptized in the Catholic Church, and those who
have been converted to it from heresy or schism, to marry in the presence
of the parish priest or ordinary of the place in which the marriage is to
be celebrated, otherwise the Church will regard it as null. If neither of
the contracting parties is a Catholic the Church recognises the marriage
as valid wherever it is celebrated.(97) How far other motives may have
operated I cannot say; it is only fair to bear in mind that the decree is
defended as a fresh effort to introduce certainty and definiteness as to a
fundamental institution.

I may here refer to the fears expressed as to the effects of the decree,
_Motu Proprio, Quantavis Diligentia_ of October 9th, 1911; a decree which,
it is said, might conceivably place every sincere Roman Catholic in
antagonism with his duties to the State. The principle of that decree
seems to me highly objectionable; it is an impossible attempt to revive
the past; a form of the greatest of all heresies, disbelief in spiritual
forces unsupported by privilege. But here, too, it is well to understand
the case made by defenders of that decree, and before deploring its
effects in Ireland to be certain that, in the view of the Catholic Church,
it is in force there. When the Church was all powerful, there existed a
_privilegium fori_ according to which no layman could bring a cleric
before a lay tribunal; a privilege based upon the words of St. Paul to the
Corinthians who resorted to the Pagan Courts. By various Concordats the
Papacy had agreed to abrogate this right wholly or partly. In some
countries the privilege had become extinct. In October 1869, was issued
the bull of Pius IX., _Apostolicæ Sedis Moderationi convenit_ which
appeared to revive the _privilegium fori_. This, however, is denied by
Roman Catholic theologians; according to them where no such Concordat
exists, a custom has grown up that breaches of ecclesiastical immunity are
to be overlooked; in any case it operates only as to canonical
offences.(98) Whether that interpretation is correct or not, I need not
enquire. But obviously such a rule has no legal efficacy; and it would be
a strong measure to deny the Church the right to give to its adherents
such monitions—for its commands are no more—as it thinks fit.

V. FUTURE SAFEGUARDS

In the Home Rule Bills of 1886 and 1893 were elaborate provisions designed
to secure equality of treatment. Thus the Irish Legislature was prohibited
from making any law.


    Respecting the establishment or endowment of religion, or
    prohibiting the free exercise thereof; imposing any disability or
    conferring any privilege on account of religious belief;
    abrogating or derogating from the right to establish any place of
    denominational education or any denominational institution or
    charity; prejudicially affecting the right of any child to attend
    a school receiving public money without attending the religious
    instruction at that school; or impairing without either the leave
    of Her Majesty in Council first obtained on an address presented
    by the legislative body of Ireland, or the consent of the
    Corporation interested, the rights, property or privileges of any
    existing corporation, incorporated by Royal Charter or local or
    general Act of Parliament.

    (Summary of Clause 4 in Bills of 1886 and 1893.)


Two comments may be made upon these provisions. They were so minute as to
be at once a source of frequent irritation and certain to give rise to
frequent conflicts with the Irish Legislature and as to be calculated to
encourage litigation. Further, they did not specifically deal with the
subject of marriage, an omission which, in view of the decree _Ne temere_,
seems objectionable. They are replaced by a general clause to the
following effect:


    “In the exercise of their power to make laws under this Act the
    Irish Parliament shall not make a law so as either directly or
    indirectly to establish or endow any religion, or prohibit the
    free exercise thereof, or give a preference, privilege or
    advantage, or impose any disability or disadvantage, on account of
    religious belief or religious or ecclesiastical status, or make
    any religious belief or religious ceremony a condition of the
    validity of any marriage.”


How far these provisions will be eluded probably no one can say with
certainty. It is difficult enough to ascertain the present situation in
Ireland without attempting to predict with confidence the future.
Statements diametrically opposite are vouched for by persons of equal
experience and opportunity of knowledge. “Facts” in that country are so
elusive. What is true in the south is fiction in the north, and _vice
versa_. It may be admitted that machinery designed to protect minorities
counts for less than the spirit actuating those who work it. The greatest
security no doubt for religious liberty would be the presence of a general
spirit of mutual forbearance; militant bigotry could not permanently exist
alongside the prevalence of the spirit of charity; and Ulster, as well as
other parts of Ireland, might make its contribution thereto. Some new
forces there are working for toleration, I believe that they are
increasing. Among them are these: the action of democratic institutions in
which persons of all creeds take part; the prosperity of the country
bringing in its train to all parts of the country new ideas and hopes and
interests; the performance by Catholics and Protestants of common civic
duties; the constant stream, strongly charged with secular elements,
flowing between Ireland and the United States; the silent influence of
literature and newspapers permeated by a spirit which no priesthood can
exorcise; the frequency of mixed marriages as proved by the action of the
Catholic Church against them; the existence of urgent political and social
questions as to which men are not divided according to their religious
beliefs. These are so many manifestations of the modern spirit, from the
operation of which Ireland no more than any other part of the western
world can escape. They may prove stronger than legal safeguards.

I shall not attempt to measure the relative strength of these influences,
but I should be inclined to rate highest the ultimate effect of democracy,
and of a Parliament in which must be a Protestant minority powerful by
their talents, their wealth and their energy. Democracy has everywhere its
own problems, as engrossing for it as any in which the Church is
interested. It will solve them in its own way, which may not be always the
Church’s. “Nothing,” says Mr. Bryce with reference to America, “excites
more general disapproval than any attempt by an ecclesiastical
organisation to interfere in politics.” Under democratic institutions
there may be the same results in Ireland. The remodelling of primary
education will probably be one of the first struggles in which an Irish
Parliament will be engaged. The fight will be in the open, which is a
clear gain. The Church may for a time succeed in retaining its present
hold over the schools. It is quite as likely that it will lose ground, and
that the first Irish Minister of Education will be the first to incur
ecclesiastical censure. There is much evidence of the growth of a
widespread toleration extending it may be hoped, to the northeast corner
of Ulster:


    “Since the Local Government Act of 1898,” writes Mr. Annan Bryce,
    “it has not been found that the priest interferes unless in the
    rare cases where there is a question of personal morality, and
    then not always with success.”


The opinions of three Lord-Lieutenants upon this point cannot be ignored.

Lord Aberdeen:


    “After years of continuous residence in Ireland, watching affairs
    and meeting people of every class and creed, I am profoundly
    impressed with the baselessness of alarm about the consequences of
    Home Rule.

    “On Home Rule for Ireland, I repeat and emphasise the opinion of
    my former telegrams, especially regarding apprehension of
    religious intolerance.”


The late Lord Spencer:


    “I have had some experience of Ireland, and yet I do not know any
    specific instance where there has been the exercise of religious
    intolerance on the part of the Roman Catholics against their
    Protestant countrymen.”


The Marquis of Crewe:


    “In 1886 and 1893 the animosity between classes, largely agrarian
    in its origin, was far stronger than at present, and the line of
    cleavage roughly followed that of religious difference. But even
    in those days, as I well remember, it was evident that the
    possibilities of intolerance in a self-governed Ireland were
    deliberately and grossly exaggerated, with a party motive. Now,
    when the various classes know each other better, and there is less
    occasion for friction, the attempt to excite religious discord
    will utterly fail, as I firmly believe.”


The safeguards provided by the measure deal specifically with the subjects
as to which fears of religious inequality exist: establishment and
endowment, education and marriage; as compared with them, the provisions
in the Canadian and Australian Acts are very imperfect. They guard, in
explicit terms, against the dangers to religious liberty and equality in a
way in which probably no other Constitution does.

A necessary supplement to any Legislature with limited jurisdiction is a
Court of Appeal. Under the proposed constitution, the Irish Courts will be
free to determine the constitutional character of any measures passed by
the Irish Parliament; and from their decisions an appeal will lie to the
Judicial Committee of the Privy Council, which will decide questions
similar to those determined by it with reference to the Canadian and
Australian constitutions, and by the Supreme Court of the United States
reviewing the constitutional character of State legislation. It may be
surmised that the Court will be faithful to the principles which it has
laid down in dealing with the powers of the Parliaments of the Dominions.
It has not hesitated to interfere in Canada with ecclesiastical sentences
or censure which it believed invalid (see _e.g._, _Brown_ v. _Curé de
Montreal_). It will, we may assume, do likewise in Ireland.

To conclude: He who believes in political freedom will believe also that
religious oppression cannot long co-exist with it. Never, so far as I
know, has ecclesiastical tyranny been enduring under democratic
institutions; and I see no reason why the result should be different in
the new Ireland which the Land Acts and the Local Government Act have
created. Full and free political life is the best, perhaps the only,
solvent of intolerance.




V.—Financial Relations(99) BY LORD WELBY


    “The Channel forbids Union, the Ocean forbids separation. I demand
    the continued severance of the Parliament with a view to the
    continued everlasting unity of the Empire.”


Terse words in which a great statesman summed up the relation of Ireland
to England. The Home Rule Bill will give the sanction of law to Grattan’s
aphorism. It bids Ireland manage her own affairs, freeing her in her own
house from official bondage to an unsympathetic consort. If the Act of
Enfranchisement is drawn in a trustful and large spirit, it will, we may
feel assured, end the feud of centuries, and create unity where the Act of
Union has created enmity.

The policy of Home Rule is wise in itself, and worthy the statesmanship of
a nation always bold in the hour of need, and, as experience of its
working is gained, it will commend itself more and more to the commonsense
of a practical people, but the immediate success of the first Home Rule
Act will depend greatly on the skill and wisdom with which the details of
a complicated measure are devised, facing fairly the financial evils
consequent on Tory obstinacy, and avoiding, in reasonable degree, offence
to popular prejudice and existing interests.

The provisions which will adjust the financial relations between the two
nations are not among the least difficult of those details, and Parliament
must solve the puzzling problem without delay. It must begin by
temporarily giving local government in Ireland a fair start at the cost of
the British tax-payer.

Let us, in the first place, clear the ground from some doubtful arguments
which, used as premises, will probably lead the unwary to false
conclusions. A plea is often put forward that England is a rich country
and Ireland a poor country, and it is argued that identical taxation
therefore wrongs Ireland. But England is not a rich country, in the broad
sense. It is a country in which there is vast accumulation of wealth, but
in which, also, there is a great mass of poverty—poverty probably
exceeding the poverty of Ireland, and, therefore, identical taxation if it
wrongs the poor of Ireland, wrongs still more the poor of England. Critics
arguing from this false premise contend that the extension of the
Income-tax to Ireland was a wrong, that is to say, the wealthy man living
in Ireland, where living is relatively cheap, ought not to contribute to
the national expenditure on the same principle as the wealthy man living
in England, where living is relatively dear; or, to put the argument in
another form, it is sound finance to take Income-tax from a man in
England, struggling on a few hundreds a year. It is unsound finance to
take Income-tax from, say, the profits earned in Ireland by the Guinness
firm. Nationalists, misled by the plea of Ireland’s poverty, have relied
on this argument, and Conservatives also have used it chiefly to discredit
Mr. Gladstone, who extended the Income-tax to Ireland; but the argument is
false in itself, and cannot be made the basis of sound financial
legislation. As a matter of fact, taxes on articles of general
consumption, on the necessaries of life, fall heavily on the poor, and the
argument of over-taxation applies in great degree to the poor in the great
towns of England, and to the poor in Ireland. If, then, the poor of
Ireland are to be relieved, the poor of England must be relieved also, and
identical taxation would still be the result. The statesman must find a
truer gauge by which to measure the relative capacity of the two countries
to bear taxation.

Again, during the long discussion on financial relations, much time has
been wasted in criticising that provision of the Act of Union, which fixed
the respective contributions of Great Britain and Ireland to the common
purposes of the Empire at the proportion of fifteen and two. That
proportion, in fact, was not exacted, and it may be put aside as
theoretical.

A summary of recent financial history in Ireland will enable the reader to
understand the circumstances in which Parliament takes up the problem of
Home Rule. Towards the close of the eighteenth century the condition of
Ireland was bad. England, selfish to the last degree in her commercial
policy, treated Ireland as little better than a conquered country, and
ruined her commercially and industrially by restrictions on her trade.
Protestants and Catholics joined in patriotic resistance, and wrung at
last freedom of trade in 1779, and an independent Parliament in 1782.
Thenceforward for a time the financial administration of Ireland was
regulated in accord with Irish interest. The country prospered financially
under the new order. Large sums were spent in promoting agriculture and
manufactures, and in grants for public works, and the country’s finance
was restored to order. During the years of peace, 1782 to 1793, Ireland
contributed on the average £584,000 to military—that is to the common
expenses of the Empire. The military expenditure of Great Britain in the
peace years, 1786 to 1792, averaged £5,142,000. Ireland was then a most
important factor in the State, for the population was to that of England
in the proportion of nearly one to two.

Pitt desired to establish reciprocity between the two countries and at the
same time to obtain from Ireland a contribution on a fixed principle for
the Navy, wise proposals worthy of the Minister; but the two Parliaments
could not agree. That of England bowed to the pernicious claims of
ascendancy and to the supposed interests of the commercial classes. Pitt
was defeated. The French Revolution and a war lasting nearly twenty-two
years followed, and in the midst of the war broke out the Rebellion of
1798. If the charge of the Irish debt at the outbreak of the war and the
average civil expenditure of Ireland between 1793 and the Union is
deducted from the average income of Ireland, the surplus constituted
Ireland’s real contribution to the common expenditure and it averaged
about £900,000 a year. The year 1800 marks a great change of policy. Pitt
put an end to the independent Parliament of Ireland and passed the Act of
Union, bad in itself, and worse by the means which made it law. It sought
to make the two countries one for all purposes of revenue, and that object
was kept steadily in view.

From 1800 to 1817 the United Parliament imposed taxes on both England and
Ireland, but the Irish Treasury collected the Irish Revenue, defrayed the
local expenditure of Ireland as sanctioned by the United Parliament and
remitted the surplus in aid of the war expenditure. The greater part of
the burthen fell upon Great Britain, but Ireland’s share drained greatly
her resources. Her revenue which had produced £1,837,000 in 1793, reached
£7,305,000 in 1817, an increase of 300 per cent., while her contributions
during the years of war to the common expenditure calculated on the
principle adopted in the preceding paragraph amounted to about £3,000,000.
During the same period Great Britain contributed to the war out of revenue
about £43,000,000 on the annual average.

In 1817 the Irish Treasury was abolished, the exchequers of the two
countries were united, the British and Irish Revenues were paid alike into
the one exchequer. The Irish local expenditure was defrayed from that
exchequer under the check of the English Treasury, and the United
Parliament imposed and repealed Irish taxes. From 1817 for many years
Ireland fared badly. Her representatives in Parliament served her ill.
Tories, Whigs, and independent members failed alike in making England
understand Irish needs, and the British Parliament neglected Irish
interests. The years between 1817 and 1842 mark the first period of Irish
financial history dating from the war. It was a period of stagnation. Both
countries required time to recover from the calamity incident to war; but
the recovery would have been more rapid, even under heavy taxation, had
not progress been retarded by the unwise legislation of protection, which
fettered enterprise and restricted commerce. This evil, however, injured
Great Britain more than Ireland. In 1824 the separate Customs Departments
of the two countries were abolished. The trade between Great Britain and
Ireland was treated as coasting, and from that time no official record has
been kept of goods exported from and imported into both countries.

In 1817 the taxes levied in England were similar to, but not identical
with, those levied in Great Britain. Ireland was exempt from many taxes
levied here, and in some cases, such as spirits, she paid a lower rate of
duty. A period of profound peace enabled the government to remit taxation;
but those remissions were chiefly made in deference to British interests,
and in making them Irish interests were little considered. The truth of
this statement is illustrated by the Revenue Returns. The estimated
“_true_”(100) Revenue of Great Britain fell from £51,500,000 in 1820 to
£46,250,000 in 1840, although population, and with it consumption, had
increased. The “_true_” Revenue of Ireland in the same period rose from
£5,250,000 to £5,500,000. But it must be added that many of the taxes
remitted were taxes _not levied in Ireland_. In respect to them Great
Britain had to a certain extent a claim to prior consideration.

The second period of financial history extended from 1842 to 1869, a
period of rapid recovery and of great prosperity in Great Britain, but not
so in Ireland. Famine fell upon her in 1846, and thinned her population,
followed by emigration, which showed how poverty pressed upon the poor,
while the Fenian movement of 1866 showed how widespread was the spirit of
unrest. A highly cultivated Liberal statesman was Lord-Lieutenant during
several years of the period. An interesting diary which he kept leaves the
impression that the leading statesmen of the day were not reading the
signs of the times, or gauging the gravity of a growing movement. This was
hardly the period to choose for increasing the taxation of Ireland,
nevertheless in 1853 Mr. Gladstone extended the Income-tax to Ireland,
counterbalancing it in part by the remission of loans granted to Ireland
during the famine—a very insufficient compensation. But the Income-tax did
not touch the poor, and as I have pointed out there was no reason why the
wealthy and comparatively well-to-do classes in Ireland should not
contribute to the public expenditure like their brethren in Great Britain.
This plea, however, does not extend to the spirit duties which during 1853
Mr. Gladstone and Mr. Disraeli raised to the level of the spirit duties in
Great Britain. That tax undoubtedly was paid in great measure by the
poorer classes.

In one direction there was improvement. In 1842 Sir Robert Peel acceded to
power, and inaugurated at once the policy of liberating trade which has
conferred such benefits on Great Britain, and in a minor degree on
Ireland. The era of prosperity which followed the adoption of the Free
Trade policy increased greatly the consuming power of the people, and
enabled Mr. Gladstone to largely reduce duties on the principal articles
of food consumed by the poorer classes. For example, he and his successors
reduced the tea duties from 2s. 2d. to 6d. and abolished the sugar duties.
This was undoubtedly the true method of remedying the evil which underlies
the plea that identical taxation wronged Ireland. I have shown that that
evil was caused not by identical taxation, but by heavy taxes on food,
which oppressed alike the poor of Ireland, and the more numerous poor of
Great Britain. The policy adopted met the local grievance, by modifying if
not removing the general grievance, and this remedy of the general
grievance was only rendered possible by the growing prosperity of Great
Britain. The poor of Ireland had therefore their full share of the benefit
caused by the prosperity of Great Britain. The historian must give full
weight to this consideration when he criticises the increase of the Irish
spirit duty. There can be little doubt as to the verdict of history, if
the choice lies between cheap whisky and dear food on the one side, and
cheap food and dear whisky on the other. Between 1860 and 1900 the Customs
and Excise duties which were reduced exceeded the like duties increased by
some £22,000,000 a year, and Ireland had her share in the reduction.

In 1864 a Committee of the House of Commons inquired into the taxation of
Ireland, but it led to no useful result. In other directions the monotony
of neglect continued. The Government and Parliament paid little or no
attention to Irish needs. Ireland was the Cinderella of the three
kingdoms, and fared accordingly.

The third period ranged from 1869 to 1896. It might be termed the Home
Rule period, for it includes the two Home Rule Bills of Mr. Gladstone, but
it includes also other great measures relating to Ireland. Indeed, during
the whole period of seventeen years Ireland engrossed, to a great degree,
the attention of Parliament. The change was very remarkable. Up to 1869
England was indifferent to, or bored by, Ireland. She was stupid. She did
not trouble herself to learn Irish wants, and she could not understand the
spirit of Irish nationality. The Devon Commission, a Conservative
Commission, appointed by a Conservative Minister, Sir Robert Peel,
reported that 2,500,000 people in Ireland were on the verge of starvation,
and gave warning of the evils, the perils, inherent in the Irish land
system. England took no notice of either warning. The famine answered the
first in cruel fashion. The second was pigeon-holed. Wise in her own Home
administration, wise of late years in her Colonial administration, she
knew no remedy for Ireland but force, and force is no remedy. She
accepted, almost as matters of ordinary administration, Coercion Acts
which marked with a black stigma most years of the century, unable to see
that that fact alone was a disgrace to her statesmen, her Parliament, and
her people.

Early in the Home Rule days I heard a great English statesman say: “The
first duty of a Government is to bring the people into agreement with the
law; till it does that it fails in its first duty, and England has
hitherto failed to bring Ireland into agreement with the law”—a truth well
and forcibly expressed.

In 1869 a man of great power and eloquence, wide views, and firm resolve
became Prime Minister. He realised the habitual injustice of England to
Ireland, and he saw the perils impending. By his strength of will he
forced an unwilling country and an indifferent Parliament to devote its
serious attention to Irish questions. He disestablished the Church. He was
defeated on Irish education, but he laid the foundation of a land
settlement by conferring on the tenants, in spite of strenuous opposition
from the Tories, the rights of fair rents, fixity of tenure, and free
sale, and his measures were marked by an earnest desire to deal liberally
with Ireland to the utmost extent consistent with equity to the British
tax-payer. Finally, when Ireland sent to Westminster more than four-fifths
of her representatives pledged to Home Rule, he accepted this expression
of the national will, and became a convert to the principle of Home Rule.
I deal later in detail with his two Home Rule Bills of 1886 and 1893,
which were defeated, and I need only here deal with finance of the third
period, apart from the provision of the Home Rule Bills.

Before Mr. Gladstone was converted to Home Rule, Home Rule finance
attracted little attention. That eminent statistician, Sir Robert Giffen,
made, indeed, in 1885, a singular suggestion to the _Statist_ newspaper,
viz., that the Irish landlords should be bought out at the cost of the
Imperial Exchequer, and that the rent charge, which would then be payable
by the purchasing tenant, should be given to an Irish authority, in lieu
of payments from the Exchequer, for the internal administration of
Ireland.

Again, Sir Robert wrote an article in the _Nineteenth Century Review_,
March, 1886, a few weeks before the introduction of the first Home Rule
Bill, to show how unimportant, from a financial point of view, Ireland had
become to us, and to suggest the expediency of devising some form of
Government under which the special needs and circumstances of that country
would receive more and better attention than they did under the existing
arrangements. His figures might be, in some instances, doubtful, perhaps
even incorrect, but it can hardly be denied that he made good his point.
Sir Robert was, we see, greatly in advance, not only of the ordinary
Briton, but of financial experts generally, both as regards the land
question and also that of the Government of Ireland.

Perhaps the most able thinker and writer on economic questions in the
second half of the nineteenth century was the late Mr. Bagehot, and, in
proof of the general indifference to Irish questions in England, it is
notable that his collected works, ranging over a wide field in politics
and literature, contain no paper on the government or condition of
Ireland. Yet he had witnessed O’Connell, the famine, the depopulation of
Ireland, the Committee on Irish Taxation, and the Fenian outbreak in 1866.

In 1890 Mr. Goschen, as Chancellor of the Exchequer, in the Conservative
Government, moved for a Committee of the House of Commons to consider the
financial relations of England, Scotland, and Ireland. The Committee was
instructed to inquire into the equity of their financial relations in
regard to the resources and population of the three kingdoms. It had
hitherto been much discussed whether Ireland could be regarded as a
separate financial entity from the rest of the kingdom. The Irish Taxation
Committee of 1864, of which Sir Stafford Northcote and Mr. Lowe were
prominent members, had refused to admit the principle of such separate
entity, and that had been generally the Conservative contention. But, in
the reference to the Committee of 1890, the Conservative Government
accepted the principle. The Home Rule Bills of 1886 and 1893 were, of
course, based upon it. Thus, 1890 marks an important advance in the
discussion, and thenceforward, by consent of both parties, the separate
“entity” was established.

After the rejection of the second Home Rule Bill the Liberal Government
appointed a Royal Commission to inquire into the financial relations of
the two countries and their relative taxable capacity. The Report of this
Commission deserves attention, because it was exhaustive in its inquiries,
because the information it laid before the public has since that time been
generally used in discussion, and because many of the recommendations made
were far-reaching and suggestive. There was, as might be expected, great
difference of opinion. The Conservative members and the Nationalist
members made their several Reports. Attention, however, may be directed to
one of the Reports, because it received the concurrence of the Nationalist
members and of three English members—one of 

Showing first 200,000 characters. Full text: gutenberg.org/ebooks/35172