The New Irish Constitution Part 28

"118. Full faith and credit shall be given, throughout the Commonwealth to the laws, the Public Acts and records, and the judicial proceedings of every State.

"120. Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision."

In South Africa where, owing to local circ.u.mstances, a purely federal system was held to be inappropriate, the powers granted to the subordinate provincial legislatures are much more restricted than in Australia and Canada. In the "South Africa Act, 1909," Paragraph 59 simply provides that the (Central) "Parliament shall have full power to make laws for the peace, order, and good government of the union," a formula similar to those used in the Canadian and Australian Const.i.tutions as also in the Gladstonian Home Rule Bills. On the other hand, several paragraphs in Section 5 dealing with the provinces almost recall the centralising tendencies of France, such as for instance, the provision that the Governor-General in Council is to appoint the administrator, or Chief Executive Officer, of the province, in whose name all executive acts relating to provincial affairs shall be done-an official who presents a certain resemblance to the French Prefect.

The powers reserved to the Executive Committee of the Provincial Council, presided over by the Administrator, comprise:

Taxation within the province;

The borrowing of money on its sole credit;

Education, other than higher education;

Agriculture;

Hospitals, charitable, munic.i.p.al and other local inst.i.tutions;

Local works and undertakings within the province, other than railways and harbours and bridges connecting two provinces;

The imposition of fines, penalties, or imprisonment for enforcing provincial laws and generally all matters which, in the opinion of the Governor-General in Council, are of a merely local or private nature in the province.

Taking the Canadian Const.i.tution as the most workable model, let us consider in the light of that instrument what powers it would be reasonable to hand over to an Irish Legislature. There are two ways of proceeding in framing any such Const.i.tution. One is to grant general powers with specific limitations, the course followed by Mr. Gladstone in his two Home Rule Bills. The second is to specify the powers to be given to the subordinate Legislature, outside of which it cannot act. Good reasons may be advanced for both methods; but in view of the difficulty of accurately foreseeing all the needs and necessities to be provided for by a new legislative body and the great risk of overlooking important matters, the inclusion of which later on might encounter very serious obstacles, the method of giving general powers with exceptions and restrictions specified in the Act seems the more workmanlike of the two.

If the latter course be adopted, following the precedent created in the Bills of 1886 and 1893, the new Legislature will acquire general powers to make the necessary laws for the peace, order and good government of Ireland. The powers thus granted in general terms will of course be very extensive, comprising, as they must, the liberty of raising taxes, borrowing money, and dealing with education, public wors.h.i.+p, property and civil rights, land, factory and company laws, the administration of justice, licensing, etc., etc.

In connection with taxation the important question arises whether the power should be granted to any unit of a federal state to impose Customs Duties. In the models we have referred to no local legislature is ent.i.tled to deal with Customs or Tariffs. Indeed all three Const.i.tutions expressly provide that there shall be free trade within the limits of the federation. It is inconceivable that a British Parliament should ever grant, or that the Irish representatives should ever ask for, powers which would enable Ireland to set up a radically different fiscal system to that adopted by the rest of the United Kingdom. Thus the precedents established by the Const.i.tutions of the different Dominions would undoubtedly have to be followed. There is a further question to consider, namely, how and to what extent it will be possible to reconcile any conflict that may arise between the powers exercised by the central and local legislatures in collecting taxes. For instance is the income tax to be retained as a purely Imperial tax, or is the Irish Parliament to have power to levy, either in subst.i.tution for it or in addition to it, an income tax of its own? The same question arises with regard to excise duties. As no income tax is imposed in any of the three self-governing Dominions referred to, their const.i.tutions throw no light on this point. Nor does the Const.i.tution of the German Empire, as there the income tax is a state and not an Imperial tax. A solution of this problem might be possible on two lines. One by allowing the Irish Government to impose its own income tax, paying a fixed contingent to the British Treasury. The second method would be to allow the Irish Parliament to make additions to the British tax, in the way that German munic.i.p.alities are allowed to make additions to the State income tax. Something of this kind seems contemplated under the Government Bill.

In the Dominions licenses for the sale of alcoholic liquors, excise duties, and land taxes are all imposed by the States. They might also be very well made State, that is to say Irish, taxes in Ireland. The future financial relations between Ireland and Great Britain, however, are dealt with in another chapter.

In considering what subjects would naturally be withdrawn from the jurisdiction of the future Irish Legislature, as of other subsequent British local legislatures, it will be well to see which of these exclusions are common to the Canadian and Australian Const.i.tutions. These are: trade and commerce, indirect taxation, borrowing money, postal, telegraphic, and telephonic services, naval and military defence, lighthouses, etc., quarantine, fisheries, census and statistics, currency, coinage and legal tender, banking, other than State banking, weights and measures, bills of exchange and promissory notes, bankruptcy and insolvency, copyrights patents and trade marks, naturalization and aliens, marriage and divorce. There are also a few differences in the matter of exclusions between the two Dominions. For instance, Canada's list of reservations for the Central Parliament begins with "The Public Debt and Property," for which there is no exactly corresponding heading in the Australian Const.i.tution. This Canadian list also includes navigation and s.h.i.+pping, savings banks, the criminal law and penitentiaries. On the other hand the subjects reserved for the Central Parliament in Australia, comprise, _inter alia_, bounties, insurance, other than State insurance, trading or financial corporations, invalid and old-age pensions, immigration and emigration, "external affairs," control of railways for military and naval transport purposes, railway construction and extension, industrial conciliation and arbitration, etc.

The essential exclusions from the jurisdiction of State Legislatures are, of course, national defence, treaty making powers, laws affecting foreign trade and s.h.i.+pping, lighthouses, coinage and legal tender, trade marks, patents and copyrights to which might very well be added factory legislation, company legislation and the laws affecting negotiable instruments. It would seem a pity to break up the legislation on subjects that are less of local than of general interest, thus adding to their legal difficulties by diversity of legislation. As regards factory laws the question of the position under international conventions of an Irish Legislature demands specially careful consideration. There are, at present, two international conventions relating to factory laws, namely, those concerning the prohibition of white phosphorus in match manufacturing, and night work by women in industrial occupations. It is likely that they will shortly be followed by others regulating the hours of work of women and young persons and prohibiting night work by boys under eighteen. It is desirable that the advantages of such conventions should be retained for the Irish industrial worker.

The justification of most of the exclusions just enumerated is sufficiently obvious and their enforcement in most of the Dominion Const.i.tutions show that by common consent they have been accepted as reasonable, as for instance those dealing with national defence, treaty-making, peace and war, and the rights and privileges of the Crown.

There remains, perhaps the most important point of all, namely the control or power of restriction to be exercised by the Imperial Parliament over the legislation of the new Irish Legislature by means of a veto. The Canadian Const.i.tution confers upon the Dominion Government the same powers of disallowance of Acts of the provincial legislatures as belonged to the Imperial Government prior to 1867. According to Sir John Bourinot ("Parliamentary Procedure"), the Minister of Justice in 1868, laid down certain principles of procedure which have been generally followed up to the present time. On receipt of the Acts pa.s.sed in any province they are immediately referred to the Minister of Justice who reports upon them. If the Minister considers an Act free from objection and his report is approved by the Governor-General in Council, such approval is forthwith communicated to the Provincial Government. The Minister of Justice makes separate reports on those Acts which he may consider: (1) as being altogether illegal or unconst.i.tutional; (2) as illegal or unconst.i.tutional in part; (3) as, in case of concurrent legislation, clas.h.i.+ng with the legislation of the general Parliament; (4) as affecting the interests of the Dominion generally. It has also been the practice (adds Sir John Bourinot) in the case of measures only partially defective, not to disallow the Act in the first instance, but, if the general interest permits such a course, to give the local government an opportunity of considering the objections to such legislation and of remedying the defects thereof. In his book "How Canada is Governed," Sir John Bourinot makes some pertinent remarks upon the method of dealing with such cases:

"The Governor in Council can within one year from its receipt disallow an Act of a provincial legislature, and consequently prevent it becoming law.... As a rule it is the wiser policy to obtain an opinion from the Courts in all cases of doubt ... rather than use a political power which is regarded with suspicion by the provinces. The law allows such reference to the Supreme Court in Canada."

In Australia, where the powers of the States were established long before the Commonwealth came into existence, there is no direct power of veto, but in 1903 and subsequently, Acts were pa.s.sed by the Commonwealth Parliament giving the High Court jurisdiction in matters arising under the Const.i.tution or involving its interpretation. Thus, in the words of Mr. W.

Harrison Moore, Dean of the Faculty of Law in the University of Melbourne, in his "Const.i.tution of the Commonwealth of Australia," "the Commonwealth Government and the State Governments are in their relations independent and not hierarchical. There is no such general supervision of the State in the exercise of the powers belonging to it as is enjoyed by the Dominion Government over the Provinces of Canada.... The observance by the Commonwealth Government and the States of the limits set to their powers is secured by the action of the courts whose judicial duties may involve the determination of the validity of the authority under which acts are done, whether that authority is the Crown, a subordinate legislature, or any whatsoever save the Imperial Parliament."

If the Canadian example be followed the Imperial Parliament will retain powers of control of such a far reaching character over Irish legislation, as ought to dispel the fears of timid souls who are reluctant to entrust the Irish people with the task of working out their own destiny. The Canadian veto has not been a dead letter, but has exercised its restraining influence, both actively and pa.s.sively, over the Provincial Legislatures, which have naturally been averse to allowing matters to come to a crisis necessitating its use. Further, to follow precedent, the interpretation of the powers to be granted by the new Irish Const.i.tution should rest in the last resort in an appeal to the Privy Council.

With both these safeguards inserted in the Home Rule Bill much of the objection commonly felt against the creation of an Irish Parliament, an objection largely due to loose thinking, should disappear. It may be argued that both in Canada and Australia disputes do occasionally occur between the State Legislatures and the Central Parliaments as to their respective rights. That is one of the inevitable disadvantages of a federal regime, but, as a very distinguished Canadian statesman once said to the writer, the counterbalancing advantages of a de-centralized system far outweigh all such drawbacks. No student of current politics can be blind to the fundamental fact that the amalgamating of the Parliaments of Scotland, Ireland and England into one legislature, without at the same time unifying the legislation of those countries, has produced a state of congestion and overwork which cannot be permanently tolerated. In existing circ.u.mstances neither matters affecting the whole Empire nor local legislative needs can secure a sufficient expenditure either of energy or time to do them justice. By partially reversing the process of unification through a devolution of powers to local legislatures we should be following a precedent that has proved successful in other parts of the Empire and in foreign countries while at the same time putting our action into harmony with the true process of evolution.

XVI.-Contemporary Ireland And The Religious Question

(I) A Catholic View. BY MONSIGNOR O'RIORDAN

It is as characteristic of those who have fallen in fortune to talk of their wealth as it is of the consumptive to talk of their health. It is natural. If they were conscious of having the reality they would not feel the need of convincing others that they had it. For a like reason those speak most of virtues and gifts who have them least. One rightly suspects the spirit of those who keep insisting that all are intolerant who think and act on other principles and in other ways than theirs. The word tolerance has met the fate of other words which denote excellent things; it has come to be misused. "Tolerance," like "religion," "liberty," etc., has become a s.h.i.+bboleth, and like these it has been run to death.

When we speak of tolerance we necessarily refer to evil of some sort. In the matter of truth or untruth we are said to tolerate what is untrue, or what we think to be untrue. In the matter of right or wrong, we are said to tolerate what is wrong, or what we think to be wrong. If one says that he is tolerant of that in another which he himself believes to be true or right, he speaks as one who does not understand what he says. It is the same as saying that he is tolerant of his own convictions; in fact, that he tolerates himself. One is said to be tolerant of that in another which he thinks to be erroneous or wrong. Now, every principle which a man holds is a law to him. He may be mistaken; his principles may be false; but whilst he holds them as his principles he cannot under pain of inconsistency disown them in word or deed. No man has proprietary rights in principles. One has no right to compromise them. One may not barter them away, may not make them the basis of a policy of give and take. To do so would be to treat them not as principles but as mere opinions.

Principles are things to stand on, not things to play with as with p.a.w.ns on a chessboard. He who, whilst he professes some principle of belief or conduct in religious or civil life, is ready to agree with his neighbour in the opposite shows little regard for truth and little sense of duty. He who for the sake of some convenience is prepared to play with his principles has practically no principles at all. Such is one who professes universal toleration, although no person would be more pained at being thought an unprincipled man. It is a logical necessity for everyone to be intolerant of principles opposed to his own. In matters of mere _opinion_ one may be, and ought to be, tolerant of the opinions of others, since in face of those opinions he cannot claim an objective certainty for his own.

Let us ill.u.s.trate this. A rationalist who denies the existence of any higher than natural causes cannot admit any event to be miraculous. He may ascribe it to some hypothetical natural cause, or he may have no cause to a.s.sign; but he cannot on principle a.s.sign a supernatural cause, for the simple reason that he ignores anything above the natural forces which come within the sphere of experience. Thus the rationalist who claims tolerance as his characteristic virtue is intolerant of any doctrine which supposes the supernatural. He must be so, or he lets the ground go from under his feet. Again, the Protestant on his principle of private judgment must be intolerant of any doctrine which supposes an infallible authority on earth claiming a divine commission to teach us the meaning of divinely Revealed Truths. A Catholic who believes in a Church of divine inst.i.tution, one, visible, infallible, cannot be tolerant of a doctrine which makes different Churches belong by equal right to Christianity, each whilst conflicting with the others claiming Christ for its Founder. For the same reason a Catholic cannot be tolerant of a theory which holds all religions to be equally useful; that is, equally useless. He cannot be tolerant of any theory which involves a denial of Catholic doctrine, since he acknowledges an infallible authority as the source of the Catholic doctrine which he holds. I am now and here neither a.s.serting nor denying any theory or any doctrine, Catholic or non-Catholic. I am only setting forth the inconsistency implied in the toleration of principles opposed to one's own, whatever those principles be. Is it then irreclaimable prejudice, or indifference to the obligation of principle, that makes some persons throw up their arms and raise a cry of horror when they hear that some Catholic has been excommunicated for having denied or questioned some Article of Catholic faith? What is taken as a matter of course and of common justice in every society and in every club in the country, namely that one who is false to his society and unfaithful to its rules deserves expulsion, is stigmatised as intolerance and moral tyranny in the Catholic Church. There are certain rules in every a.s.sociation which a member may not break under pain of expulsion. But a man may say what he likes, write what he likes, do as he likes; may deny every doctrine, despise every principle, and may nevertheless have, according to some, a right to remain a member of the Catholic Church out of which only Romish intolerance would drive him.

Everyone then, whatever be his religious, philosophical, political, or social principles, must be intolerant of principles which are opposed to his own. Tolerance, however, claims a place in matters of opinion. But must not one think another's opinions false if they are opposed to his own? Certainly; but, being only opinions, one has no right to claim a monopoly of certainty for one's own as against those of others. Opinions have no claim to the privilege of principles. And what is true in theory of opinions holds in practice in matters of principle. One cannot, it is true, be tolerant of principles opposed to his own; but others must not suffer at his hands because they own principles which are not his.

Everyone must have credit for honesty, since one cannot fathom the depths of another's conscience. The Catholic Church, not to speak of its individual members, disowns such a pretension as that; _Ecclesia non judicat de internis_ is a maxim in Catholic theology. Thus, Catholic teaching, whilst it binds Catholics to be intolerant of principles and doctrines which it condemns, obliges them also to be tolerant of those who hold those principles and doctrines for the sake of the sincerity which it presumes in those who hold them. If we compare this tolerance, imposed as a duty by Catholic teaching, with the unlimited tolerance professed by some who a.s.sert the autonomy of individual reason, we shall find a contrast between, for instance, the n.o.ble tolerance of St. Francis de Sales and the bigotry of Voltaire. They were fellow countrymen. Each had great natural gifts, mental acquirements, and uncommon literary power. St.

Francis lived a century before Voltaire, and, therefore, nearer to what would now be called those traditions of bigotry from which Voltaire helped so much to set us free. Yet the latter let his pen splutter on all who dared to differ from him; the former in all his controversies dressed his arguments with honey instead of vinegar. That charity which disposes one to see good faith and honesty of purpose in persons in spite of their errors, is the only true source whence the spirit of toleration must flow into civil society. Toleration coming from any other source can give no guarantee of permanence; for it begins with expediency, and ends with it.

But the toleration which separates a man's sincerity from his possible errors, and which in civil life ignores the latter for the sake of the former, is founded on principle, and is above expediency or the changing combination of human affairs.

The sincerity of a man who professes tolerance of principles which he believes to be false is to be suspected; he should be taken as one who is practically indifferent to truth or error. One can rely on the fidelity of him who professes tolerance of others, in spite of some personal views of theirs which he abhors, because of the sincerity with which, as he presumes, they entertain those views. But if they should so obtrude those views into public life as to affect the rights of him who repudiates them, it becomes another matter. That would be an aggression on the civil rights of others; and no person should let himself be made a victim in the name of toleration.

Now, it is a significant fact that Catholic Maryland, before American Independence came, was the one State in America in which no person had to suffer civil disabilities for conscience sake. Members of Protestant sects who had to fly from the intolerance of more powerful Protestant sects in New England States always found toleration and a home there. Bancroft, the Protestant historian of the United States, writes of Maryland:

"Its history is the history of benevolence, grat.i.tude, and toleration. The Catholics who were oppressed by the laws of England were sure to find a peaceful asylum in the quiet harbours of the Chesapeake, and there, too, Protestants were sheltered from Protestant intolerance."

It is an equally significant fact that later on the non-Catholics of Maryland, in the day of their power, placed grievous disabilities on the children of those Catholics who had given their exiled fathers a refuge in their hour of need.

I will now consider how far those principles which I have set forth have found application in Ireland. I know no country where tolerance and intolerance are more talked of than there. It is sometimes good to talk tolerance, but it is always better to practise it. The word is not heard so much from Irish Catholics. Their relation to it is that they are constantly engaged in defending themselves from charges of intolerance poured out upon them from the vantage ground of ascendency. I doubt whether it is worth while to a.s.sure our accusers that those charges are not deserved. Those who call us intolerant in spite of our conduct will discard our a.s.surance in spite of our word. He who is in the habit of calling his neighbour intolerant is not likely to trust him as truthful.

There are in every race and cla.s.s individuals of an intolerant spirit. It has always been so, and will always be so. Those exceptions will remain in spite of the highest principles of a religion, a race, or a cla.s.s. The spirit of intolerance will be found in individuals within a cla.s.s, as well as between cla.s.ses; and in actual life society subdivides itself down to the units. Religion has been for the past few centuries the great cleavage line along which the spirit of intolerance is supposed to play in the distribution of privileges and power in civil life in Ireland. How are we to determine on which side tolerance and intolerance lie? Not certainly by witnesses on either side giving testimony in their own favour. We had better let facts speak then; or, if we accept the evidence of persons, we should hear what they have to say only of those of the other side.

The Synod of Kilkenny met in May, 1642. It was held by the Catholic Bishops of Ireland in connection with the Kilkenny Confederation. That Confederation was National and Catholic; part of its purpose was to support King Charles against those who sought to dethrone him. He did not personally deserve much sympathy from the Irish Catholics; nevertheless, who were the Loyalists then? Ireland was in a state of war, and the rebels were not the Catholics. Now the 18th Decree of the Synod of Kilkenny is as follows:

"Wee ordaine and decree that all and every such as from the beginning of this present warre have invaded the possessions or goods, as well moveable as unmoveable, spirituall or temporal, of any Catholic whether Irish or English, _or also of any Irish Protestant_ being not adversaries of this cause, and doe detaine any such goods, shall be excommunicated, as by this present Decree wee doe excommunicate them, if admonished they do not amend, &c."

That Decree speaks for itself; it protects Protestants equally with Catholics. The "Lawes and Orders of Warre," issued by Castlehaven the following year, and the conduct of the Confederates throughout, show the same spirit of toleration which is expressed in the Decree of the Bishops.

Another test of tolerance came with the restored power of Irish Catholics half a century later. How did they use their opportunity? Lecky knew it as well as anyone of his time; he was moreover out of sympathy with the religious and national ideals of the Irish Catholics. Now Lecky, referring to deeds of violence which took place in Ireland, writes ("History of Ireland in the Eighteenth Century," Vol. I., pp. 408, 409):

"Whoever will examine these episodes with impartiality may easily convince himself that their connection with religion has, in most cases, been superficial. Religious cries have been sometimes raised, religious enthusiasm has been often appealed to in the agony of the struggle; but the real causes have been conflicts of races and cla.s.ses, the struggle of a nationality against annihilation, the invasion of property in land, or the pressure of extreme poverty. Amongst the Catholics, at least, religious intolerance has not been a prevailing vice, and those who have studied closely the history and character of the Irish people can hardly fail to be struck with the deep respect for sincere religion in every form which they have commonly evinced.... In spite of the fearful calamities that followed the Reformation, it is a memorable fact that not a single Protestant suffered for his religion in Ireland during all the period of the Marian persecution in England. The treatment of Bedell during the outbreak of 1641, and the Act establis.h.i.+ng liberty of conscience pa.s.sed by the Irish Parliament of 1689 in the full flush of the brief Catholic ascendency under James II., exhibit very remarkably this aspect of the Irish character."