The New Irish Constitution Part 1

The New Irish Const.i.tution.

by J. H. Morgan.

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 a.s.sistance of the administrator. I have, therefore, attempted in the earlier part of this book to secure a sober and dispa.s.sionate 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 const.i.tutional 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 t.i.tle-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 apprentices.h.i.+p 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 pa.s.sion. 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 a.s.sociated 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 lat.i.tude 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 CONSt.i.tUTION

I.-The Const.i.tution: 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 const.i.tution 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 const.i.tutions 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 const.i.tutions in the world, even federal const.i.tutions, can be brought under one species. Two of the most successful "federal" const.i.tutions present the gravest anomalies to the theorist. The Canadian Const.i.tution, 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 const.i.tutions 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 const.i.tution 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 princ.i.p.al organ, the Bundesrath, although violating all Mr. Balfour's principles as to "equality" in its const.i.tution, is, according to the doyen of the const.i.tutional 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 Const.i.tution 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 citizens.h.i.+p 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 Const.i.tutions 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 const.i.tution of the United States and of Imperial Germany tells another story-a story of ancillary communities and dependencies in various stages of political apprentices.h.i.+p. If we look for the American Const.i.tution where all such const.i.tutions 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 const.i.tution, 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 const.i.tutions, 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 a.s.sent 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 const.i.tution of the United States as the archetype-there is no such subordination. The authority of the const.i.tuent 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 Const.i.tution 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 Const.i.tution, are final and subject to no appeal to the Supreme Court at Was.h.i.+ngton. Conversely, Federal Circuit Courts exist independently of the State Courts to decide cases arising under Federal statutes or involving the interpretation of the Federal Const.i.tution, 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 const.i.tutes 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 a.n.a.logies 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 relations.h.i.+p 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 a.s.sess 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 a.s.sist 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 Const.i.tution is no more irrevocable than an Act authorising the imposition of the income tax. If, therefore, the Imperial Parliament chooses to grant a Const.i.tution 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 Const.i.tution could only be surrendered or altered by the consent of the Legislature which that Const.i.tution 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 Const.i.tution 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 a.s.sistance 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 const.i.tution 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 Const.i.tution itself does not prescribe some particular method of const.i.tutional 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 const.i.tutional amendment which the Irish Legislature will possess are those expressly conceded in Clause 9, which enables it after three years from the pa.s.sing 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 Const.i.tution, 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 pa.s.s 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 Const.i.tution, 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 const.i.tutions, 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 a.s.signed 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, pa.s.s 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 lords.h.i.+ps'(24) mind as a reason for refusing to apply to the interpretation of the Federal const.i.tutions 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 const.i.tution, 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.

Const.i.tutional Restrictions.(26)

The problem of protecting the rights and privileges of minorities in Ireland by const.i.tutional 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 Const.i.tution 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 ill.u.s.tration, 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_, pa.s.s 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 Const.i.tution of the United States and the philosophy of "natural rights."

A more difficult problem it is impossible to conceive, because a Const.i.tution 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 const.i.tutional 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 Const.i.tutions, 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."