Section 32 of the Bill of 1893, Borrowed From the Colonial Laws Validity

Act, will no doubt be applied.

2. Minority Safeguards.--This point, too, I dealt with in Chapter X. Let the Nationalist Members come forward and frankly accept any prohibitory clauses which the fears of the minority may suggest, provided that they do not impair the ordinary legislative power which every efficient Legislature must enjoy. Almost every conceivable safeguard for the protection of religion, denominational education, and civil rights was inserted in the Bill of 1893, including even some of the "slavery" Amendments to the United States Constitution. The list may require revision--(a) in view of the recent establishment of the National University, and the disappearances of all apprehension about the status of Trinity College, Dublin; (b) in regard to an extraordinarily wide Sub-clause (No. 9) about interference with Corporations; (c) in regard to the words, "in accordance with settled principles and precedents," which appeared in Sub-clause (No. 8) (Legislature to make no law "Whereby any person may be deprived of life, liberty, or property without due process of law in accordance with settled principles and precedents," etc.). A debate on this question may be found in Hansard, May 30, 1893. The words italicized were added in Committee on the motion of Mr. Gerald Balfour, though the Attorney-General declared that they gave no additional strength to the phrase "due process of law," while they certainly appear calculated to provoke litigation. Sir Henry James appeared to think that they made the suspension of the Habeas Corpus Act ultra vires. If that is their effect, there is no reason why they should be inserted. Even a Canadian Province, whose powers are more limited than those of the subordinate States in any other Federation, has "exclusive" powers within its own borders over "property and civil rights," and can, beyond any doubt, suspend the Habeas Corpus Act, if it pleases.

The same superfluous words appeared in Sub-clause (No. 9) about Corporations.

THE IRISH LEGISLATURE.

As I urged in Chapter X., this is a subject in which large powers of constitutional revision--much larger than those contained in either of the Home Rule Bills--should be given to the Irish Legislature itself, corresponding to the powers given by statute to the self-governing Colonies, and to the powers always held by the constituent States of a Federation. In the Bill itself it would be wisest to follow beaten tracks as far as possible, and not to embark on experiments. Present conditions are, unhappily, very unfavourable for the elaboration of any scheme ideally fit for Ireland.

A Bi-Cameral Legislature.--Working on this principle, we must affirm that Ireland's position, without representation in the Imperial Parliament, would certainly make a Second Chamber requisite. Three of the Provinces within the Federation of Canada (Manitoba, British Columbia, and Ontario) prefer to do without Second Chambers--so do most of the Swiss Cantons--but all the Federal Legislatures of the world are bi-cameral, and all the unitary Constitutions of self-governing Colonies have been, or are, bi-cameral.

The Upper Chamber.--One simple course would be to constitute the Upper Chamber of a limited number of Irish Peers, chosen by the whole of their number, as they are chosen at present for representation in the House of Lords. Historical and practical considerations render this course out of the question, though some people would be fairly sanguine about the success of such a body in commanding confidence, on the indispensable condition that all representation at Westminster were to cease. It has been membership, before the Union of an ascendency Parliament, and after the Union of an absentee Parliament, which has kept the bulk of the Irish peerage in violent hostility to the bulk of the Irish people. Those Peers who seek and obtain a career in an Irish popular Legislature--to both branches of which they will, of course, be eligible--will be able to do valuable service to their country. The same applies to all landlords. Now that land reform is converting Ireland itself into a nation of small landholders, who, in most countries, are very Conservative in tendency, the ancient cleavage is likely to disappear. Indeed, an ideal Second Chamber ought perhaps to give special weight to urban and industrial interests, while aiming, not at an obstructive, but at a revising body of steady, moderate, highly-educated business men.

We have to choose one of two alternatives: a nominated or an elective chamber. The choice is difficult, for second chambers all over the world may be said to be on their trial. On the other hand, nothing vital depends upon the choice, for experience proves that countries can flourish equally under every imaginable variety of second chamber, provided that means exist for enabling popular wishes, in the long-run, to prevail. The European and American examples are of little use to us, and the widely varied types within the Empire admit of no sure inferences. Allowance must be made for the effect of the Referendum wherever it exists (as in Australia and Switzerland), as a force tending to weaken both Chambers, but especially the Upper Chamber of a Legislature. It does, indeed, seem to be generally admitted, even by Canadians, that the nominated Senate of the Dominion of Canada, which is added to on strict party principles by successive Governments, is not a success, and it was so regarded by the Australian Colonies when they entered upon Federation, and set up an elective Senate. The South African statesmen, who had to reckon with racial divisions similar to those in Ireland, compromised with a Senate partly nominated, partly elected, but made the whole arrangement revisable in ten years.

It would be desirable, perhaps, on similar grounds of immediate policy, to let those who now represent the minority in Ireland have a deciding voice in the matter. No arrangement made otherwise than by a free Ireland herself can be regarded as final, and I suggest only that a nominated Chamber would be the best expedient at the outset, or in the alternative a partly nominated, partly elected Chamber.

If and in so far as the Upper Chamber is elective, should election be direct or indirect? There is a somewhat attractive Irish precedent for indirect election, namely, the present highly successful Department of Agriculture, whose Council and Boards the County Councils have a share in constituting, and I have seen and admired a most ingenious scheme of Irish manufacture for constructing the whole Irish Legislature and Ministry on this principle. But the objections appear to be considerable. Local bodies in the future should not be mixed up in national politics. That has been their bane in the past. Besides, the principle of indirect election is under a cloud everywhere, most of all in the United States. Australia rejected it in 1900, and the South Africans, while giving it partial recognition in the Senate, made the expedient provisional.

The Lower House.--The Lower House might very well be elected on the same franchise and from the same constituencies as at present, subject to any small redistributional modifications necessitated by changes of population. This is certainly a matter which Ireland should have full power to settle for itself subsequently.

Lord Courtney's proposals for Proportional Representation merit close consideration and possess great attractions, especially in view of their very favourable reception from Nationalists in Ireland. My own feeling is that such novel proposals may overload a Bill which, however simply it be framed, will provoke very long and very warm discussion. If the system were to be regarded by the present minority as a real safeguard for their interests, its establishment, on tactical grounds alone, would be worth any expenditure of time and trouble; but, if they accept the assumption that existing parties in Ireland are going to be stereotyped under Home Rule, and then point to the paucity of Unionists in all parts of Ireland but the north-east of Ulster, they can demonstrate that no practicable enlargement of constituencies could seriously influence the results of an election. My own view, already expressed, is that, provided we give Ireland sufficient freedom, wholly new parties must, within a short time, inevitably be formed in Ireland, and the old barriers of race and religion be broken down, and, therefore, that all expedients devised on the contrary hypothesis will eventually prove to be needless and might even prove unpopular and inconvenient. On the other hand, merits are claimed, with a great show of reason, for Proportional Representation, which are altogether independent of the protection of minorities from oppression. It is claimed that the system brings forward moderate men of all shades of opinion, checks party animus, and steadies the policy of the State. But I think that a free Ireland should be the judge of these merits. At present the bulk of the people do not understand the subject, and need much education before they can appreciate the issue.

Meanwhile, the conventional party system, based on conventional constituencies, will, to say the least, do no more harm to Ireland than to any other State in the Empire. Any minor defects will be infinitesimal beside the vast and beneficial change wrought by responsible government.

DISAGREEMENT BETWEEN THE TWO HOUSES.

It is essential to provide for this, and it would be difficult to better the proposal in the Bill of 1893: that after two years, or an intervening dissolution, the question should be decided by a joint vote in joint session.

MONEY BILLS AND RESOLUTIONS.

To originate in the Lower House on the motion of a Minister.

POLICE.

The Royal Irish Constabulary and Dublin Metropolitan Police should be under Irish control from the first. The former force will undoubtedly have to be reconstituted, and its reconstitution, as an ordinary Civil Police, ought to be undertaken by the Irish Government, but the financial interests of "retrenched" officers and men should be safeguarded in the Bill itself.

JUDGES.

All future appointments should be made by the Irish Government, without the suspensory period of six years named in the Bill of 1893. Present Irish Judges should retain their appointments, as in both previous Bills. The precedent of Canada, where provincial Judges, unlike the State Judges of Australia, are appointed and paid by the Federal Government, is certainly not relevant.

LAW COURTS.

The Federal analogy, except in one particular noticed under the next heading, has no application to Ireland. Only one provision of any importance is needed, namely, that Appeals, in the last resort, should be to the Judicial Committee of the Privy Council instead of to the House of Lords. The Judicial Committee is the final Court of Appeal for the whole Empire, and, strengthened by one or more Irish Judges, should hear Irish Appeals. It is true that the tribunal has been subjected to some criticism lately, especially from Australia. Federal States naturally wish to secure pre-eminent authority for their own Supreme Courts. But the tribunal is, on the whole, popular with the colonial democracies, and the argument from distance and expense does not apply to Ireland. At the end of an interesting discussion at the last Imperial Conference, in which suggestions were put forward for strengthening the Judicial Committee by Colonial Judges, it was agreed that new proposals should be made by the Imperial Government for an Imperial Final Court of Appeal in two divisions, one for the United Kingdom, another for the Colonies. If that step is taken, the position of Ireland will need fresh consideration.

DECISION OF CONSTITUTIONAL QUESTIONS.

The validity of an Irish Act which has received the Royal Assent will, like that of a Colonial Act which has received the Royal Assent, be determined in the ordinary course by the Irish Courts, with an ultimate appeal to the Judicial Committee, which should be strengthened for the occasion by one or more Irish Judges. But both the previous Home Rule Bills made the convenient provision that the Lord-Lieutenant should have the power of referring questions of validity arising on a Bill, before its enactment, to the Judicial Committee of the Privy Council for final decision. There is a useful Canadian precedent for this provision, in the Imperial Act passed in 1891, for giving the Governor-General in Council power, in the widest terms, to refer, inter alia, questions touching provincial legislation to the Supreme Court of Canada, with an appeal from it to the Judicial Committee. To follow this precedent would not involve any Federal complications.

EXCHEQUER JUDGES.

If Ireland controls her own Customs and Excise, no provision for this tribunal appears to be necessary, unless it be that some counterpart is needed for the Colonial Courts of Admiralty. The Bill of 1886 (Clause 20) limited the jurisdiction to revenue questions. The Bill of 1893 (Clause 19) widened it to include "any matter not within the power of the Irish Legislature," or "any matter affected by a law which the Irish Legislature have not power to repeal or alter." The minds of the authors of this clause were evidently affected by the Federal principle which involves two judicial authorities--one for Federal, one for provincial matters. There seems to be no reason for embarking on any such complications in the case of Ireland.

SAFEGUARDS FOR EXISTING PUBLIC SERVANTS IN IRELAND.

Retrenchment, and in some departments drastic retrenchment, will be needed in the Irish public service, just as it was needed in the Transvaal after the grant of Home Rule to that Colony. It is highly desirable that statutory provision should be made safeguarding existing interests. No such provision was made in the case of the Transvaal, and some bad feeling resulted. The past responsibility for excessive Civil expenditure lies, of course, on Great Britain, as it lay in the case of the Transvaal, and on grounds of abstract justice it would have been fair in that case for Great Britain to have assumed a limited part of the expense of compensating retrenched public servants. The practical objections to such a policy are, however, very great. In this, as in all matters, Ireland will gain more by independence than by financial aid, however strongly justified. All payments should be a direct charge upon the Irish Exchequer, not, as in some cases under the Bill of 1893, upon the Imperial Exchequer in the first instance, with provision for repayment from Ireland.

FINANCE.

I summarize the conclusions already indicated in previous chapters:

1. Fiscal independence, with complete control over all Irish taxation and expenditure.

2. Initial deficit to be supplied by a grant-in-aid, diminishing annually and terminable in a short period, say, seven years.

3. Future contribution to Imperial services to be voluntary.

4. Remission to Ireland of her share of the National Debt, and relinquishment by Ireland of her share of the Imperial Miscellaneous Revenue.

5. Imperial credit for Land Purchase to be extended as before, by loans guaranteed on the Consolidated Fund, under any conditions now or hereafter to be made by the Imperial authorities.

Loans to the Public Works Commissioners to be optional.

REPRESENTATION AT WESTMINSTER.

To cease.

CONFERENCE BETWEEN THE IRISH AND IMPERIAL AUTHORITIES.

This is a very important point, because friendly consultation, as at present with the Colonies, will take the place of Irish representation in the Imperial Parliament, and will prove a far more satisfactory means of securing harmony and co-operation. Arrangements similar to those of the Imperial Conference, only more precise and efficient, and of a permanent character, should be made for consultation between the Irish and British authorities on all subjects where the interests of the two countries touch one another. The need for more frequent consultation with the Colonies is being felt with increasing force, and although no permanent consultation body has yet been created, special ad hoc conferences have recently been held--for Defence in 1909, and for Copyright in 1910--in addition to the quadrennial meetings, where a vast amount of varied topics are discussed, and the most valuable decisions arrived at.

What the precise machinery should be in the case of Anglo-Irish relations I do not venture to say. The Ministers of the respective countries will be so easily accessible to one another that there would seem to be no need for the frequent attendance of a powerful personnel at joint meetings. But a Standing Committee, with a small official staff, would be necessary.

CONSTITUTIONAL AMENDMENT.

For amendment of the Home Rule Act itself it is not possible to make any statutory provision. Like all Constitutional Acts, it will only be alterable by another Imperial statute, which, if it were needed, should be promoted by Ireland. But one of the most important clauses in the Act itself will be that defining Ireland's power to amend her own Constitution without coming to Parliament. I venture to repeat the view that this power should be as wide as possible, consistently with the maintenance of the Imperial authority, and subject, of course, to provisions prescribing--(1) a time-limit for the initial arrangements; (2) the method of ascertaining Irish opinion; and (3) the majority in the Legislature, or in the electorate, or in both, necessary to sanction a constitutional change. If a Home Rule Constitution, passed into law in the heat of a party fight at Westminster, proves to be perfect, a miracle will have been performed unparalleled in the history of the Empire. At this moment a Committee of Ireland's ablest men of all parties should be at work upon it, with an instructed public opinion behind them. So only are good Constitutions made, and even the very best need subsequent amendment.

FOOTNOTES:

For details of prior Home Rule Bills, see the Appendix.

The Victorian and South Australian Constitutions of 1855 state in clear terms that the Ministry must be members of the Legislature, and all the Australian Constitutions of the same date, except that of Tasmania, formally exclude all other officials from the Legislature. The Transvaal Constitution of 1906 made no reference to either point; nor do the Federating Acts of 1867, 1900, and 1909 for Canada, Australia, and South Africa.

A fifth custom, very common, of compelling new Ministers to seek re-election is incorporated in most of the Australian Constitutions, but was expressly ruled out in Section 47 of the Transvaal Constitution of 1906.

See Hansard, July 3, 1893, Speech of Mr. John Morley.

The words "subject to this Constitution" or "subject to this Act" are sometimes added, but have no special significance. The Australian Commonwealth Constitution Act does not mention the Governor's "instructions," but only his "discretion."

British North America Act, 1867, Sects. 55-57; Commonwealth of Australia Constitution Act, 1900, Sects. 58-60.

See especially pp. 213-229.

See pp. 223-225.

Taken from Amendment XIV. to the United States Constitution, passed July 28, 1866.

British North America Act, 1867, Sect. 92 (13). But the Province may not encroach on powers reserved to the Dominion--e.g., in bankruptcy (Gushing v. Depuy [before Jud. Comm. of Privy Council]). See the "Constitution of Canada," J.E.C. Munro, pp. 247-253. There has been much litigation over points where Dominion and Federal powers overlapped. (See "Federations and Unions of the British Empire," H.E. Egerton, pp. 151-153).

For the proposals of the Bills of 1886 and 1893, see Appendix.

South Africa Act, 1909, Sects. 24 and 25.

See pp. 155-162.

See Pamphlet No. 17, published by Proportional Representation Society, and an excellent paper by Mr. J.F. Williams in "Home Rule Problems."

Cd. 5741, 1911, pp. 46-51.

See Appendix and the Bill of 1886, Clause 25; Bill of 1893, Clause 22.

54 and 55 Vict., Ch. 25, Sect. 4.

Courts of Admiralty in the Colonies are regulated by Imperial Acts, though by an Act of 1890 large powers were conferred on the Colonies of declaring ordinary Courts to be Courts of Admiralty (see Moore's "Commonwealth of Australia," pp. 11 and 251).

See Clauses 27-30 of the Bill of 1886, and Clauses 25-28 of the Bill of 1893.

See the Precis of Proceedings, Cd. 5741, 1911.

See pp. 225-227.

See Section 128 of the Australia Constitution Act, 1900, and