The New Irish Constitution Part 33

_ 39 Cf. Philips __v.__ Eyre_ _supra_.

40 This would apply to the Tenure of Office Act.

41 The mere fact that the Crown had given its consent to an Irish Act would not make that Act _intra vires_ if it exceeded the powers of the Irish Legislature. It might subsequently be declared _ultra vires_ by a Court at any time.

42 I am not at all sure that this provision was necessary. The Crown already has the power under 3 & 4 Will. IV. cap 41, sec. 4 to refer to the Judicial Committee any such matters whatsoever as it may think fit. The Canadian Government has a similar power conferred on it by the Supreme Court Act, 1875, extended by 54 & 55 Vict., enabling the Governor-General in Council to refer to the Supreme Court certain specified matters, particularly questions touching the validity of provincial or Dominion legislation. The decision of the court operates as a declaratory judgment, on which an appeal may be taken to the Judicial Committee. For example of its exercise _cf._ the Manitoba Schools Case. See Sir Frederick Pollock's remarks in Chapter III.

43 The English judges, even when favourable to the claims of the early Irish Parliament, insisted on this limitation. _Cf._ the Case of the Merchants of Waterford; Year Book, Ric. III., fol. 12.

_ 44 Cf._ Section 264 of the Merchant s.h.i.+pping Act of 1894; also the Fugitive Offenders Act of 1881 (44 & 45 Vict., cap. 69).

_ 45 Cf._ the Naturalization Act of 1870.

46 The law as to treason is not necessarily the same in the Colonies.

_Cf. Riel_ v. _The Queen_, 10 App. Cas. 675, and also _R._ v.

_Marais_, L.T. Rep. Lx.x.xV., p. 363.

47 There can, I think, be no doubt as to the necessity. I know but one opinion, and not a very authoritative one, to the contrary, namely that of a Chief Justice of the Colony of Victoria. See _Musgrove_ v.

_Toy_ V.L. Rep. XIV. 349, and _supra_.

48 Even, however, if there had not been such an express grant of the executive power in the Act, the Irish Parliament might, I think, have a.s.sumed it by legislation. A colonial Legislature can, subject, of course, to the veto of the Crown, confer on the Colonial Government the prerogatives in so far as they are necessary to the domestic government of the colony. _Cf._ Lefroy, "Legislative Power in Canada," p. 180.

49 No doubt the statutory powers exercisable under the first two Acts would come within the control of the Irish Government.

50 His office is not the creation of statute except in so far as it was necessary to place his salary on the Estimates. His office has, however, frequently received statutory recognition in connection with the creation of new Departments. _Cf._ the Irish Local Government Board Act (1872), Section 3.

51 I have examined with some care the theory of Second Chambers in my articles in _The Nineteenth Century_, for November, 1910, and June, 1911. I may also refer the reader to my book on "The House of Lords and the Const.i.tution," and particularly to the Lord Chancellor's preface to the same. Foreign examples are dealt with in the reprint of the author's lectures on "The Place of a Second Chamber in the Const.i.tution" (1911).

52 There is this much to be said for nomination, that it does fulfil the condition laid down by Alexander Hamilton and by Story as the first canon of the bi-cameral theory-namely, that the basis of the two chambers should be radically different. See Story's Commentaries (ed. Bigelow) Vol. I., Section 690. This is not so easy to secure by election in modern times when there is suspicion of any other than a democratic franchise.

53 Clause XII. (4).

54 For a survey of the Second Chambers in the Colonies I may refer the reader to my article on the subject in _The Contemporary Review_ for May, 1910.

_ 55 Kielley_ v. _Carson_, 4 Moore P.C. 63.

56 I refer the reader for detailed treatment of the subjects of Irish Appeals, Const.i.tutional Limitations, and Police and Judiciary, to the chapters by Sir Frederick Pollock, Sir John Macdonell and Serjeant Molony. I have not thought it necessary to touch on the financial provisions of the Bill, as they are exhaustively treated by Lord Welby in Chapter V.

_ 57 The Times_, April 16th.

58 See Mr. Cecil Harmsworth's essay on the "State of Public Business,"

Chap. XV. of this work.

_ 59 Cf._ for example, Jellinek's "Gesetz und Verordnung" (Freiburg, 1887), pp. 20-35.

60 I may here refer to an article of mine in the _Nineteenth Century_ for April of last year.

61 Statutory changes in the common law (it would be more correct to call it "the civil law") of Scotland are rarely made by Parliament except on the initiative, or with the consent, of Scottish members.

There is a remarkable clause in the Act of Union between England and Scotland (6 Anne, Cap II., Art. xviii.) providing that "no alteration may be made in the (Scotch) laws which concern private right except for evident utility of the subjects within Scotland."

62 The law relating to matrimonial causes in Ireland is governed by the Matrimonial Causes and Marriage Law (Ireland) Amendment Act of 1870, and is practically the same as the English Law before the Matrimonial Causes Act of 1857.

63 Power to make such re-arrangements or transfers by Order in Council is given by Sections XL. and XLIV. of the Government of Ireland Bill.-EDITORIAL NOTE.

64 The control by Government, of course, does not extend to the magistrates' judicial functions.

65 Recorders and County Court Judges are appointed by the Irish Government.

66 Clause XXI. of the Bill provides for this.-EDITORIAL NOTE.

67 "Money for loans in Ireland shall cease to be advanced either by the Public Works Loans Commissioners or out of the Local Loans Fund"

(Clause XIV. (3)).-EDITORIAL NOTE.

68 If transferred to the Irish Government.

69 The Office of Arms is now directly controlled by the Lord-Lieutenant, and it is a question whether it should not remain so.

70 The clause in question which set up a Court to be known as the Exchequer Division with a quasi-federal jurisdiction has not been repeated. _See_ Chapter I. of this work.-EDITORIAL NOTE.

71 Clauses II. and V. provide for the reservation of the Constabulary for a period of six years from the appointed day, at the end of which the force is to be transferred to the Irish Government. The Dublin Metropolitan Police is transferable at once.-EDITORIAL NOTE.

72 Under the Bill it is permanently reserved, _i.e._, "excluded."-_Ibid._

73 Provision is made by Clause IV. of the Bill for the appointment of heads of Departments who shall be known as "Ministers." _See_ Chapter I. of this work.-EDITORIAL NOTE.

74 This convention of the English Const.i.tution, which rests on a Standing Order of the House of Commons, is embodied in the Bill (Clause X. (2)).-_Ibid._

75 A similar provision appears in the new Bill, but the character of the Executive Committee is much more explicitly defined. _See_ Clause IV.; _also_ Chapter I. of this work.-EDITORIAL NOTE.

_ 76 Marbury_ v. _Madison_, 1 Cranch, at pp. 177-8.

77 The princ.i.p.al authority is _Hodge_ v. _Reg._ (1883) 9 App. Ca. 117, 132. See also the _Maritime Bank of Canada's_ case (1892) A.C. 437, 442.

_ 78 Ex parte Carew_ (1897) A.C. 719. It is not clear that the judgment was adequately considered.

79 See _Russell_ v. _Reg_. (1882) 7 App. Ca., 829, 839.

_ 80 Citizens' Insurance Company of Canada_ v. _Parsons_ (1881) 7 App.

Ca. 96, 109.

_ 81 Webb_ v. _Outrim_ (1907) A.C. 81. The appeal which before the Const.i.tution Act of 1900 lay direct to the Crown in Council from the Supreme Courts of the several Australian Colonies is not abolished.

82 3 and 4 Will. IV. c. 41, s. 4. Under this section the question whether the Royal a.s.sent should be given to a Bill of the Irish Parliament could certainly be referred to the Judicial Committee, but it seems doubtful whether an Act already pa.s.sed could be so dealt with, as the matter would then be beyond the competence of an Order in Council.

83 See Prof. Harrison Moore in _Law Quart. Rev._, xx. 236.

84 The Syllabus of March 8th, 1861 (Proposition 57) condemned the proposition that "any other religion than the Roman Catholic may be established by the State."

85 To ill.u.s.trate this, I quote first from a Roman Catholic writer of distinction: "Religious liberty may be introduced when it is required for the common good, to prevent greater evils, or when it has been a necessity" (Hergenrother, Vol. II., p. 364). "Where modern States exist with freedom of conscience and several religious denominations with equal rights, it is impossible further to carry out the principles of the Church. In these days the Church is confined to the purely ecclesiastical domain, and her whole endeavours must be directed to preserve her necessary freedom, or if she does not possess it, to win it back" (Hergenrother, Vol. I., p.