Chapter I. of This Work.—Editorial Note.

74 This convention of the English Constitution, 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 principal 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 Constitution 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 assent 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 passed 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 illustrate 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” (Hergenröther, 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” (Hergenröther, Vol. I., p. 65). The next quotation is from a modern Protestant historian “The Pope would like to have freedom of conscience in Sweden and Russia; but he does not wish for it on principle, but only as a means which may be used by Providence to propagate the truth in those countries. Pius IX. and Mgr. Pie were agreed that only in countries where the Catholics are in a minority might religious freedom be wished for by Catholics” (Nielsen “History of the Papacy in the Nineteenth Century,” Vol. II., p. 263). See also Ueber die Entwickelung des Katolischen Kirchenrechts im 19. Jahrhundert, Von Dr. Fritz Fleiner.

86 Mr. Gladstone (“Church and State,” p. 185) enumerates eight principles adopted by modern Governments with regard to the support of religion and the treatment of its varieties. He subsequently reduces them to four; the first in which heresy and schism were visited with civil penalty pro salute animæ for the cure of the individual. The second in which they were similarly visited, but chiefly in the view of preventing the infection of society within which limits they had appeared. The third in which disqualifications of a civil kind are imposed instead of penalties. The fourth is that in which all forms of religion claim from Government a precisely equal regard, as respects either civil privileges or positive assistance (pp. 187, 188). Zeller (“Staat und Kirche,” p. 6) reduces the principles to three; substantial identity of Church and State; complete separation; partial separation and identity.

87 As to meaning of “establishment,” see Bradfield v. Roberts (1899), 175 U.S. 291.

88 The German Reichsgesetz of July 3rd, 1869, expressly repeals all civic disqualifications based upon religion (Laband, Vol. I., p. 148).

89 See as to cases which have come before the Swiss Courts (Buckhardt, p. 484).

90 Keith: “Responsible Government in the Dominions,” Vol. III., 1423n. In Gignac’s “Compendium Juris Canonici ad Usum Cleri Canadensis” (1901) is a statement of the large rights which the Catholic Church has acquired in Canada in virtue of treaties.

91 See, as to the effect of this section, Barrett v. City of Winnipeg (1892) A.C. 445; also Brophy v. Attorney-General of Manitoba (1895) A.C. 202.

92 “There is at present no general marriage law for the Dominion, and it is disputed whether the Dominion Parliament has power to pass such an Act. Each province has legislated with respect to this subject. The Government of the Dominion have just referred to the Supreme Court (March 11th) a stated case regarding the respective jurisdictions of the Dominion and provinces in regard to a marriage law. The Quebec provinces argued that there is no power on the part of the Dominion Parliament to submit such a case to the Supreme Court. The point stands over until May 7th.” (The Globe, Toronto, March 12th.)

93 Brown v. Curé de Montreal, L.R. 6, P.C. 157. See O’Keefe v. Cullen, Report by Fitzpatrick; also 7 Irish Reports, 319.

94 The Times, March 1st, 1911.

95 It is only right that the rest of the letter should be quoted: “But it is, in my opinion, much to be regretted that by the promulgation of the decree, and even more by the language which appears to be sometimes used to secure obedience to it, the Roman Catholic Church should introduce confusion into domestic life and give rise to unnecessary and disquieting doubts as to the legal validity of marriages already contracted, or as to the lawful status of persons who may hereafter marry.”

96 “Ecclesia haec matrimonia mixta communiter improbavit atque detestata,” Lehmkuhl Theologia Moralis, Vol. II., p. 511.

97 See Statement by Monsignor Bidwell in Dublin Review, 148, p. 327; also article “Apostolicæ Sedis.” Vacant, Dictionnaire Théologie Catholique.

98 Reiffensteuel, Vol. II., p. 245, asserts that the privilege is not lost by immemorial custom, even as to civil matters.

99 It is perhaps hardly necessary to remind the reader that Lord Welby was a member of the Royal Commission on the Financial Relations between England and Ireland which reported in 1896.—Editorial Note.

100 The “true” revenue differs from the collected revenue, by making allowance for duties paid in the one country on articles consumed in the other.

101 Any charge in excess of £1,000,000 on the Constabulary was to be borne by the Imperial Exchequer.

102 Probably over-estimated.

103 True Revenue £8,000,000, Irish Expenditure £6,000,000, Contribution £2,000,000.

104 It is not clear from the Bill or the explanatory paper, whether the Irish Postal Revenue will be paid into the British Exchequer in the first instance, or retained in the Irish Exchequer. I presume the former.

105 £11,339,000 minus £7,562,000 = £3,777,000.

106 The Constabulary charge is fixed at first at £1,337,000. If in the six years of Imperial control the cost rises to (say) £1,500,000-£1,500,000 will be the sum transferred; but the Bill does not say what is to happen if the cost were to fall to (say) £1,300,000. Explanation is needed as to the effect of the proviso that regard is to be had to the prospect of any increase or decrease expected to arise from causes not being matters of administration.

107 60 and 61 Vic. c. 66, 7 Edward VII. c. 44.

108 6 & 7 Will. IV., c. 29; 7 Will. IV., and 1 Vict., c. 25; 5 & 6 Vict., c. 24.

109 Civil Service Estimates, 1912-1913, Class III., p. III.

110 6 & 7 Will. IV., c. 13; 2 & 3 Vict., c. 75; 22 & 23 Vict., c. 22.

111 Civil Service Estimates, 1912-1913, Class III., p. 119.

112 Taking Census of 1911 as a basis, see Civil Service Estimates 1912-1913, Class III. pp. 111 and 119, Reports of H.M. Inspectors of Constabulary for England and Wales, 1910, p. 135.

113 “Against Home Rule,” p. 155.

114 4 Bingham, “New Cases,” p. 574.

115 Judgments of the Superior Courts in Ireland published under the direction of the Attorney-General for the information of magistrates (1889), p. 23.

116 Attorney-General v. Kissane, 32 Law Reports, Ireland, p. 220.

117 4 Bingham, “New Cases”, p. 574 supra.

118 “The Motu Proprio ‘Quantavis Diligentia’ and its Critics,” by the Archbishop of Dublin, p. 10.

119 Speech upon the Address, February, 1909.

120 This sum has, since the 31st of March, been considerably reduced.

121 Part I. of this Chapter incorporates the statement on the Land Question prepared by the Right Hon. W. F. Bailey, Estates Commissioner for the Commission on Congestion in Ireland, presided over by the Earl of Dudley. It has been brought up-to-date, but otherwise it is almost word for word as the learned Commissioner wrote it.

122 Cf. Mr. Balfour, The Times, November 7th, 1911.

123 A considerable portion of this chapter appeared in the form of an article in The Contemporary Review in the year 1887, but it has been rewritten by Lord Fitzmaurice for the purposes of this work. We have to thank the Editor of the The Contemporary Review for his kind permission to make use of the original text—Editorial Note.

124 Speech of October 28th, 1738: “Grattan’s Speeches,” i., 183.

125 Grattan to Fox, April 18th, 1782: “Fox’s Correspondence,” i., 403.

126 “Grattan’s Speeches,” i., 129.

127 “Fox’s Correspondence,” by Lord Russell, i. 412.

128 Lord Rockingham to Lord Shelburne, May 25th, 1782, “Parliamentary History,” xxxiv., 979.

129 “Life of Lord Shelburne,” iii., 144.

130 “Fox’s Correspondence,” i., 417, 418.

131 “Life of Lord Shelburne,” iii., 145.

132 See “Life of Grattan.”

133 “Fox’s Correspondence,” i., 416; “Life of Lord Shelburne,” iii., 143.

134 “Life of Lord Shelburne,” iii., 146.

135 Fox: “Speeches,” ii., 64, 65.

136 “Grattan’s Speeches,” Vol. III., 355, 409; January 15th, February 22nd, 1800. “Fox’s Correspondence,” i., 426; “Life of Lord Shelburne,” iii., 149; “Parliamentary History,” xxx., 957 (Speech of General Fitzpatrick).

137 Speech of July 19th, 1782.

138 Speech of Grattan, January 15th, 1800: “Speeches,” Vol. III., 355.

139 “Fox’s Correspondence,” i., 431.

140 “Life of Lord Shelburne,” iii., 150.

141 “Parliamentary History,” xxxiv., 675, 678; “Memoirs of the Whig Party,” by Lord Holland, I. 147; “Life of Lord Shelburne,” iii., 554, 555.

142 Letter on the Affairs of Ireland, 1797.

143 28 Geo. III., c. 28.

144 Much interesting light has been thrown on the history of the struggle in 1782-1783 between Grattan and Flood, by the publication of the Diary and Correspondence of Lord Charlemont, in the Reports of the Historical MSS. Commission, Twelfth Report, Appendix Part X., 1891. The abstract doctrine of the legislative supremacy of the British Parliament, and not only the practical application of that doctrine, was strenuously disputed by many of the leaders of Colonial Opinion in America as well as in Ireland at the commencement of the XVIIIth century, as a reference to the literature of the Stamp Act and the Declaratory Act of 1766 will show. The doctrine itself was one of the consequences of the Revolution of 1688, which true to the general principle of exalting the importance of the British Parliament, abolished on the one hand the right of the Crown to tax the Colonies by virtue of its prerogative, and on the other asserted a right in the British Parliament to legislate and tax in the “settled” Colonies of the Crown concurrently with the local representative assemblies, and, if necessary, over their heads. The same class of arguments were used both by Colonial and by Irish statesmen against the claims of the British Parliament to interfere as between them and the Crown; but the Irish case was always the stronger of the two, because her advocates were able to start from the admitted right and position of Ireland as a kingdom, with a Crown of her own. To the claims of the British Parliament, the Whig statesmen, recognising their danger in practice, tried to set constitutional limitations, and hence grew up the distinction, on which the elder Pitt relied, between the right of Great Britain to impose by law internal taxation within the Colonies for the purposes of revenue, and her right to levy external taxation for the regulation of Colonial trade. This distinction, however, from a legal point of view, Lord Mansfield showed, would not bear examination, and he laid down the law to be, that the Parliament of Great Britain had an absolute legislative supremacy over her Colonies—and by implication over Ireland—in all cases whatever, whether for internal or external objects; whether to impose a tax, or to regulate trade; whether to levy money, or to make general enactments; and this doctrine it was which was recorded in the Declaratory Act of George III. of 1766, relating to the Colonies, the counterpart of the Declaratory Act of George I., relating to Ireland. (See Bancroft, Vol. III., Ch. xix., The Absolute Power of Parliament; “Life of Lord Shelburne,” Vol. I., Ch. iv., p. 253.)

145 “Life of Lord Shelburne,” i., 285.

146 Montesquieu, “Considérations sur la Grandeur et la Decadence des Romains.”

147 Lecky.

148 For further details see Dublin Castle and the Irish People.

149 Bright.

150 Poor Law Commission (Ireland) Report 1903-1906, p. 12.

151 “Dublin Castle and the Irish People.”

152 Gavan Duffy: “Young Ireland.”

153 “In Ireland,” said Lord Normanby, “the landlord has the monopoly of the means of existence, and has a power of enforcing his bargains which does not exist anywhere—the power of starvation.”

154 Gavan Duffy: League of North and South.

155 I have done so in “Dublin Castle and the Irish People,” see p. 264, et seq.

156 Mr. Commissioner Bailey.

157 John Stuart Mill.

158 A debate took place in the House of Lords on the subject on February 17th, 1905. The correspondence between Mr. G. Wyndham and Sir A. MacDonnell on the latter’s appointment appears as an appendix in “The Outlook in Ireland” (John Murray. 1912.)

159 Mr. Barry O’Brien’s “Life of Parnell.” Vol. I., p. 93.

160 “Federation and Empire,” p. 315. (H. Henry & Co., 1896.)

161 This Table has already been published in a chapter which I contributed to “Home Rule Problems,” edited by Basil Williams (King, 1911).

162 “Home Rule Problems,” pp. 67-72. (King, 1911.)

163 “Parliamentary Debates,” Vol. CCCXVIII., p. 688.

164 A Quarterly Review of the politics of the British Empire, which is entirely free from any partisan prepossessions.

165 See Kipling’s “Ulster.”

166 “Irish Nationality” (Home University Library.)