PART I. THE NEW CONSTITUTION

I.—The Constitution: 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 constitution 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 constitutions 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 constitutions in the world, even federal constitutions, can be brought under one species. Two of the most successful “federal” constitutions present the gravest anomalies to the theorist. The Canadian Constitution, 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 constitutions 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 constitution 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 principal organ, the Bundesrath, although violating all Mr. Balfour’s principles as to “equality” in its constitution, is, according to the doyen of the constitutional 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 Constitution 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 citizenship 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 Constitutions 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 constitution of the United States and of Imperial Germany tells another story—a story of ancillary communities and dependencies in various stages of political apprenticeship. If we look for the American Constitution where all such constitutions 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 constitution, 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 constitutions, 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 assent 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 constitution of the United States as the archetype—there is no such subordination. The authority of the constituent 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 Constitution 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 Constitution, are final and subject to no appeal to the Supreme Court at Washington. Conversely, Federal Circuit Courts exist independently of the State Courts to decide cases arising under Federal statutes or involving the interpretation of the Federal Constitution, 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 constitutes 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 analogies 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 relationship 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 assess 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 assist 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 Constitution is no more irrevocable than an Act authorising the imposition of the income tax. If, therefore, the Imperial Parliament chooses to grant a Constitution 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 Constitution could only be surrendered or altered by the consent of the Legislature which that Constitution 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 Constitution 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 assistance 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 constitution 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 Constitution itself does not prescribe some particular method of constitutional 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 constitutional amendment which the Irish Legislature will possess are those expressly conceded in Clause 9, which enables it after three years from the passing 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 Constitution, 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 pass 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 Constitution, 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 constitutions, 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 assigned 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, pass 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 lordships’(24) mind as a reason for refusing to apply to the interpretation of the Federal constitutions 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 constitution, 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.

Constitutional Restrictions.(26)

The problem of protecting the rights and privileges of minorities in Ireland by constitutional 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 Constitution 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 illustration, 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_, pass 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 Constitution of the United States and the philosophy of “natural rights.” A more difficult problem it is impossible to conceive, because a Constitution 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 constitutional 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 Constitutions, 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.”

The earlier Home Rule Bills were characterised by a most elaborate code of rights which the Irish Legislature might not infringe. Its main provisions might be classified as having three objects in view: (1) The protection of the subject in life, liberty, and property; (2) the prevention of legislation discriminating against any part of the United Kingdom, and (3) the preservation of the existing rights and privileges of the Protestant community in Ireland. In one form or another almost all these principles are to be found embodied in the Constitution of the United States, and in the case of the first of them a clause of the famous 14th Amendment was actually incorporated, with some slight alterations, in Sub-section 8 of Section 4 of the Bill of 1893, according to which the powers of the Irish Legislature should not extend to the making of any law

“whereby any person may be deprived of life, liberty, or property without due process of law in accordance with settled principles and precedents or may be denied the equal protection of the laws or whereby private property may be taken without just compensation.”

These impressive words bristled with legal controversy. Did they, for example, secure to the subject the preservation of the right to trial by jury? In the States of America it has been authoritatively laid down(28) that, in the absence of further defining words in the State constitutions, they do not. Such procedure is indeed safeguarded in the Federal Courts, but only in consequence of express words. In the case of the States, Cooley, a great authority, says that “whatever the State establishes will be due process of law,” and Story regarded the words by themselves as simply securing a judicial hearing—that is to say, as they stand they merely secure the separation of legislative and judicial functions and prevent the State Legislature from passing laws which are in effect judicial decrees.

What the words would really have secured to the subject in Ireland was very doubtful. The object of the draughtsman appears to have been to secure to the subject in Ireland all the protection of the law, including trial by jury, which he would have enjoyed at the date of the passing of the Bill, understanding by law both common law and statute law. If the Imperial Parliament had, subsequent to the date of the Act itself, passed legislation limiting trial by jury or other common law rights, this would, presumably, have provided the Irish Parliament with a new “settled principle and precedent,” enabling it to go further. In other words, the clause might have operated to secure a certain standardization of legislation as between the two countries.

The Argument Against Restrictions.

But it seems to me that such standardization is best secured by definitely reserving certain subjects of legislation to the Imperial Parliament rather than by imposing upon the exercise of such legislation by the Irish Parliament constitutional limitations which are certain to raise great doubts and provoke excessive litigation. It would be far better to reserve criminal law, as has been done in Canada, in the case of the provincial legislatures—though not without difficulty—than to lay down certain abstract principles. Moreover, is it desirable to maintain such uniformity of legislative principle? There is a great deal to be said for reserving certain subjects of legislation to the Imperial Parliament, but to impose on the whole sphere of legislation entrusted to the Irish Parliament the same principles as those governing the English Statute-Book, or the common law, is to subject almost every conceivable Irish statute to the challenge of litigious politicians. This is what has happened in the United States. The clause, as it stood, might quite conceivably have prevented the Irish legislature from extending the procedure of the Summary Jurisdiction Acts to cases where it was not so extended in England—a most mischievous result, seeing that this procedure is the sanction by which nearly every new statute extending the scope of industrial or public health legislation or conferring powers on local authorities is enforced.

Uniformity of legislation between the two countries is not desirable in all directions nor has it hitherto been followed. In matters of expropriation, for example, the drastic procedure of the Housing and Town Planning Act has not been adopted in Ireland. Ireland has her own standard in these matters in the case of the Irish Local Government Act, and the Land Purchase Acts, and I am not at all sure that the principles of the English Land Clauses Consolidation Act and Railway Clauses Consolidation Acts as to arbitration and compensation are by any means ideal. Still less has uniformity in the matter of criminal law been the rule hitherto between the two countries. It would be difficult to find a parallel in this country for the Crimes Act of 1887 (which is still on the Statute-Book although it is no longer put in force by proclamation) with its extensions of summary jurisdiction to cases of criminal conspiracy, intimidation, riot, and unlawful assembly, and its provisions for a change of venue.

It is perhaps more open to question whether the words of the 1893 Bill designed to secure to the subject “the equal protection of the laws,” and to prevent legislation discriminating against Englishmen and Scotsmen(29) under certain circumstances, ought not to have been repeated. The words “equal protection of the laws” have been interpreted in the United States in such a way as to secure that legislation, particularly in the exercise of the “police power,” shall be impartial in its operation.(30) On this interpretation, they would for example, have prevented an Irish Legislature from exempting Catholic convents which are used as workshops from the operation of the Factory Acts. But that might be secured in another way, and the words might, if adopted, have operated to prevent much useful legislation. It seems likely enough that discriminating legislation, in so far as it tended to prevent a particular class of persons from residing in Ireland or penalised non-residents, would be held invalid in any case on the ground that it conflicted with the reservation to the Imperial Parliament of such subjects as “trade” and “naturalization.”(31) And, as regards non-residents, it must be remembered that the grant of legislative powers can only be exercised “in respect of matters exclusively relating to Ireland or some part thereof”—words which may be found to be of considerable importance.

The same may be said of the omission in the Bill, to provide, as its predecessor of 1893 provided, for the maintenance of securities for the liberty of the subject and the preservation of his common law rights. It is almost impossible to do this without entering on an uncharted sea of litigation. Modern legislation, especially social and industrial legislation, infringes common law rights at every point. I have ventured elsewhere(32) to describe the modern tendency of industrial legislation as a tendency, inverting Maine’s famous aphorism, to advance from contract to status, that is to say, to limit to an increasing extent the contractual freedom of the worker, and to confer on him a certain status by the protection of him against himself.(33) The greater part of our Irish land legislation impaired the obligation of contracts. Professor Dicey criticised the Bill of 1893 for not going further than it did in its incorporation of clauses taken from the Constitution of the United States with the intention of securing the common law rights of the subject. But it may be remarked that many of those clauses have proved an almost intolerable limitation upon the power of the legislatures to deal with the regulation of trade and industry, so intolerable that the Supreme Court has of late made a liberal use of the fiction of “the police power”(34) to enable the legislatures to pass legislation which otherwise might have seemed to “abridge the privileges” of citizens of the United States or deprive them of “liberty or property without due process of law.”(35)

At the same time it must be remembered that, although the Irish Parliament is not debarred from statutory interference with common law rights, its legislation will be subject to rules of interpretation, at the hands of the Judicial Committee, by which statutes are always construed in favour of the subject. It is a well-accepted rule of construction in English courts that common law rights cannot be taken away except by express words.(36) It is something to secure that the interpretation of the new Constitution and of Irish statutes shall, in the last resort, be wholly in the hands of an Imperial Court. The chartered protection of the rights of the individual by a fundamental Act is always difficult and often impossible. In the last resort it depends very much on the interpretation which the judges choose to place upon such an Act.(37)

The Executive Veto.

It is obvious, therefore, that the principal and indeed almost the only safeguard provided in the Bill against inequitable or discriminating legislation(38) is the veto of the Lord-Lieutenant acting on the instructions of the Imperial Government. A political check is preferred to a juristic check. The apostolic maxim “all things are lawful but all things are not expedient,” appears to have been the motto of the draughtsman. Not law but policy will decide what Irish Acts are to be placed on the Statute-Book. It must be admitted that this is the principle most in harmony with precedent if the constitutions granted to the colonies are to be regarded as precedents. No colony would have tolerated for a moment the elaborate network of restrictions in Clause 4 of the Bill of 1893, through the finely-woven meshes of which it would have been hard for any Irish legislation of an original or experimental character to pass. If we are really in earnest about setting up a Parliament on College Green, we cannot do otherwise. The executive veto must be the real check, and in the presence of such a check, English judges would always be very loath(39) to declare the Acts of a legislature _ultra vires_ merely because they infringed common law rights.

Now this check may be exercised on one of two grounds. The Imperial Government may “instruct” the Lord-Lieutenant to refuse his assent either on the ground that the bill in question is politically objectionable, or on the ground that it is, in their opinion, in excess of the powers conferred on the Irish Legislature. It is desirable in every way that the two should be distinguished in order that the Imperial Parliament may be able to hold the Cabinet of the day responsible when its action is purely a question of policy. On the other hand, it is no less desirable that the Cabinet should, in the interests of the public in Ireland, be in a position to test the validity of an Irish Bill which, though unobjectionable on the ground of policy, may be questionable on the ground of law. It is a common error that in all written constitutions the courts, particularly those of the United States, have _proprio motu_ the power of declaring _ultra vires_ any legislative act which infringes the principles of the Constitution. Laboulaye fell into this error in his study of the American Constitution. But the American Courts have no such power. Until a case arises in the ordinary course of litigation, under the statute in question, there is no means of annulling it, and there have been many Acts(40) on the Federal Statute Book which are quite conceivably “unconstitutional” in the letter as well as in the spirit, but have never been declared _ultra vires_ for the simple reason that no one has found his private rights affected. This holds particulars of questions of the distribution of power. It might for example, occur in the case of an Irish Bill which proposed to deal with one of the reserved services. To meet this difficulty and to avoid the trouble which might arise from an Act being placed in the Irish Statute Book(41) and observed in Ireland only to be subsequently declared _ultra vires_ in the course of litigation, it is provided in the Government of Ireland Bill(42) (Clause 29) that if it appears to the Lord-Lieutenant or a Secretary of State expedient in the public interest that the validity of an Irish Act should be tested he may represent the same to His Majesty in Council and the question may then be heard and determined by the Judicial Committee in the same manner as an appeal from a Court in Ireland. It is not necessary to suppose that the executive veto will be a dead letter, and to argue from its disuse in the case of the self-governing colonies is to argue from the like to the unlike. In the case of the provincial legislatures of Canada it has been exercised by the Dominion Government where provincial legislation is inequitable, or contrary to “the settled policy” of the Dominion.

Exempted Powers.

The enumeration of matters in respect of which the Irish Parliament shall have no power to make laws is a little deceptive, inasmuch as many of the matters so enumerated would have been outside its power in any case. Ireland is not, so long as the Act of Union remains on the Statute Book, a sovereign state, and “the making of peace or war” and the negotiation of treaties would, as a matter of international law, have been impossible in her case, even if they had not been expressly prohibited. “Merchant shipping” and “the return of fugitive offenders” would also have been excluded from her authority by the rule of law(43) which precludes a subordinate legislature from extra-territorial legislation. The same may be said of Copyright. The colonies have only been enabled to deal with these matters in virtue of clauses in Acts of the Imperial Parliament.(44) But it would not be true to say that the position of the Irish Parliament is assimilated to that of the legislature of a self-governing colony. The exclusion of subjects relating to allegiance, such as naturalization(45) and treason,(46) and of legislation as to aliens is exceptional. All the self-governing colonies have power to deal with these matters, as also with the subject of naval and military forces. Perhaps the most important exemption in the case of Ireland is that of trade, trade-marks, designs, merchandise marks and patent rights. I cannot help regretting that, inasmuch as the principle has been adopted of giving Ireland general and unenumerated powers, the number of specific exemptions has not been enlarged. It is highly desirable to avoid conflict of laws in the United Kingdom as far as possible. It must be remembered that the Statute Book has, quite apart from the Act of Union, bound Ireland to England by many legislative ties; there is a uniform system of industrial, commercial, and, to some extent, criminal law for the whole of these Islands—Factory Acts, Companies Acts, the law of negotiable instruments, criminal procedure, old-age pensions, and insurance legislation; in all these there is legislative standardization, and the tendency of all modern political unions, notably those of the Australian Commonwealth and the German Empire, is in this direction. Confusion, injustice, and economic inequalities constantly occur in a modern State whose inhabitants are living under a “conflict of laws.” Fiscal considerations point the same way. It may be safely assumed that English opinion will not tolerate any considerable divergence between the fiscal systems of England and Ireland. Moreover, financial considerations apart, the regulation of “trade” is, as in every political union, reserved for the central legislature. But to distinguish between “trade” on the one hand and “industry” on the other is not an easy problem, and Ireland may discriminate against England only less effectively by lowering the standard of the Factory Acts than by a tariff.

The “subject matter” of the Old Age Pensions Acts, National Insurance Acts, and Labour Exchanges Acts has, it is true, been excluded. It seems regrettable that the category is not enlarged to include the Companies Acts, the Sale of Goods Act, the Bills of Exchange Act, and the Factory Acts. It would be highly undesirable to have the “industrial minimum” for the United Kingdom, so laboriously attained by our factory legislation, lowered in the interests of particular interests in Ireland. The advantages of securing uniformity by the inclusion of the three great statutes relating to commercial law is also very obvious. Two of them, indeed, represent a great step in that codification of English law which is the dream of English jurists, they have been adopted as a model in some of our colonies, and it would seem highly desirable that the standard thus attained should remain fixed. In urging this, I do not forget what I have already said, in connection with the subject of constitutional limitations, as to the undesirability of exacting too rigid a degree of uniformity in English and Irish legislation, but constitutional limitations are one thing and exceptions quite another. It is very difficult to subject the whole field of Irish legislation to juristic principles, but it is comparatively easy to exempt from that field the subject matter of particular Acts. The whole question resolves itself into a consideration of the point at which uniformity should be determined. The Bill seems to fix the point much too low.

Of course, one way of dealing with the question would have been to grant Ireland only particular and enumerated powers of legislation, as has been done in the case of the provincial legislatures of Canada. There is much to be said for this. It seems the line of least resistance; it is always easier to add to powers which appear deficient than to withdraw powers which have proved excessive. But it undoubtedly invites litigation and it is very difficult, if not impossible, to define what are exclusively Irish matters without in the last resort using some such general term (as is used in the British North America Act) as “generally all matters of a merely local nature.”

The great economy shown by the draughtsman in the number of the exceptions from the powers of the Irish legislature, as well as in the number of the restrictions upon the exercise of those powers, means, as we have already indicated, that the whole weight of control over the Irish legislature is thrown upon the executive and legislative veto of the Imperial Government. Is it sufficient to rely upon the paramount power of the Imperial Parliament to override by statute Irish legislation which may be inequitable or inexpedient, and upon the exercise of the veto of the Imperial Government? These checks are the exercise of a _force majeure_, which is often invidious and always difficult. Above all they are political. The exercise of them depends on the party in power in Great Britain, and as such it may excite resentment among the Irish people as an invasion of the autonomy granted to them. On the other hand, exceptions and restrictions are a legal, not a political, check—they operate through the agency of the courts of law without the intervention of political considerations. Moreover—and this perhaps is the most important consideration—they rest upon the consent of the Irish people expressed in the terms of the Home Rule Act to which their representatives are a party. For an Irish Parliament to defy them would be to defy the very Act which was the charter of its existence. But they invite litigation. It all resolves itself into a question of hitting the mean between the dangers of litigation on the one hand and of political pressure on the other. Probably, however, the occasions of conflict will be few and unimportant, and the temper of the Irish Parliament may be much more conservative than its critics imagine.

The Executive

The new Bill is remarkable for the explicitness with which it invests Ireland with control over the Executive. For the first time in the written constitutions of the Empire we have a statutory Executive, and not only is it a statutory Executive, but it is to be a Parliamentary Executive defined by statute. In the earlier Bills nothing was more remarkable than the brevity and allusiveness with which this question of the Government of Ireland was treated. “The Executive power in Ireland shall continue vested in Her Majesty the Queen” was the language employed in the Bill of 1893. Under that Bill the Government of Ireland would have continued, even after its passage into law, to be in the hands of the English Cabinet and it would have rested with that Cabinet to determine how large or how small a part of the prerogatives of the Crown should be delegated to the Lord-Lieutenant. Paradoxical as it may seem, it would have been quite possible for a Unionist Government, coming into power immediately after the Home Rule Bill had passed into law and an Irish Parliament had met at Dublin, to retain in their own hands the Executive authority in Ireland without any breach of statutory obligations. The Bills of 1886 and 1893 left it in the discretion of the Crown to decide what the powers of the Lord-Lieutenant should be. Following Colonial precedents, the Constitution would have had to be supplemented(47) by prerogative legislation in the shape of Letters Patent defining those powers. Moreover, these powers were to have been vested not in the Lord-Lieutenant in Council, but in the Lord-Lieutenant alone. Something was indeed, said about an “Executive Committee” of the Irish Privy Council to aid and advise in the Government of Ireland—this was the only hint of responsible Government that the Bill contained—but nothing was said of the powers or constitution of the Committee nor of the extent to which the Lord-Lieutenant was bound to act on its advice. Its constitution was left to the discretion of Her Majesty. Its powers would, of course, as in the case of the Colonies, have been decided by the tacit adoption of the unwritten conventions of the English Constitution that the advisers of the Governor must command the confidence of the Legislature which votes supplies.

Very different is our new Bill. The Executive power does indeed continue “vested in His Majesty the King,” and nothing is to affect its exercise—in other words, it is to continue in the hands of the Imperial Government—_except_ “as respects Irish services as defined for the purpose of this Act.” The exception is a new departure and the general effect of the whole clause (Clause IV.) is expressly to hand over in statutory terms “all public services in connection with the administration of the Government of Ireland” except the reserved services and such services as those in regard to which the Irish Parliament have no power to make laws. The effect of this is to hand over an executive authority co-extensive with the legislative authority.(48) Moreover, in regard to Irish services, the Executive power is to be exercised by the Lord-Lieutenant _through_ Irish Departments, and the heads of these Departments are given the Parliamentary title of “Ministers” and, what is more remarkable, it is expressly provided (a provision to be found in only one or two, and those the latest, of our Colonial Constitutions) that:

“No such person shall hold office as an Irish Minister for a longer period than six months, unless he is or becomes a member of one of the Houses of the Irish Parliament.”

Never in any constitution that emanated from the practised hand of the Parliamentary draughtsman has there been such a complete transfer in express statutory terms of the executive power. Taken together with the comparatively unrestricted grant of legislative power, it constitutes a grant of a larger measure of self-government than is to be found in any of the earlier Bills.

At the same time there is here no cause for alarm. It must be remembered that the Lord-Lieutenant will exist in a dual capacity—like a constitutional king he will be bound in Irish matters to act on the advice of his Irish Ministers but, like a Colonial governor, he will also in all Imperial matters be bound to obey the instructions of the Imperial Government. In regard to legislation the position here is quite clear: he may veto measures which his own Ministers have promoted if the Imperial Government think it advisable so to instruct him. In regard to the executive, he will, of course, enjoy less latitude; it is quite clear that the Imperial Government will, under this clause, find it practically impossible to interfere in purely Irish administration. The Irish Government will, of course, be carried on in the name of the Crown, and it will enjoy the same prerogatives at common law as the Imperial Government in such matters as the use of the prerogative writs _mandamus_ and _certiorari_, and the immunity from actions in tort. Ireland has its own Petitions of Right Act.

At the same time a distinction must be drawn between the prerogatives relating to the exercise of Irish services and prerogatives which cannot be so defined. Some of the latter may be delegated to the Lord-Lieutenant by his patent, and these he will exercise not on the advice of the Irish, but of the Imperial, Government. Moreover, there are certain powers conferred by statute on the Lord-Lieutenant, or the Lord-Lieutenant in Council, such as the power of proclaiming disaffected districts under the Crimes Act, of suspending the operation of the Irish Habeas Corpus Act, and of controlling the constabulary, not all(49) of which will be exercisable on the advice of Irish Ministers. Prerogatives not so exercisable will no doubt be exercised on the advice of the Secretary of State for Home Affairs who is even now the medium of formal communications between the Lord-Lieutenant and the Crown. The Chief Secretary(50) will, of course, disappear altogether; he will be replaced by the Executive Committee. The Lord-Lieutenant will, of course, cease to be a member of the English Ministry; his position will be assimilated to that of a Colonial Governor, and his tenure fixed for a term of years so as to make his tenure of office independent, as it must be in the exercise of his new constitutional duties, of the fortunes of English Parties.

The Irish Legislature

The constitution of the legislature itself calls for little comment. It follows with some fidelity the features of Mr. Gladstone’s Bills, but the substitution of a nominated Senate for the “Council” or “Order” elected on a property franchise is a new departure. Nomination of late has fallen into some discredit both in theory and in practice.(51) Colonial experience is not encouraging. Nomination by the Crown means in practice nomination by the Governor, on the advice of the Cabinet of the day, and Ministries in Canada and New South Wales have put this prerogative to such partizan uses as to reduce the Upper House to a very servile condition. When nomination is for life and not for a fixed term of years the evils of this system may be mitigated, but they are not removed. The one thing that can be said about the proposed Senate is that its powers in legislation are of such a limited character that an Irish Executive would be under little temptation to “pack” it. A Senate of only forty members compelled to meet in joint session a House of Commons of 164 members every second time that it rejects or objectionably amends a bill is not likely to prove a very formidable obstacle to legislation. But the nomination by the Executive is in any case somewhat objectionable, and it would seem better to provide that at the end of the first term of eight years the Senators should be appointed by some system of election, whether on a basis of proportional representation or otherwise.(52) But to their nomination for the first term by the Imperial Government I see no very cogent objection. Indeed, the expedient has much to be said for it, for the discretion, if wisely exercised, will enable the Imperial Government not only to secure to Irish minorities a degree of representation which no conceivable system of election could secure, but also to appoint men of moderate opinions—one immediately thinks of Sir Horace Plunkett—who, in the strife of extremists, might have no chance of election by either party. It has been argued in some quarters that a Second Chamber is wholly unnecessary, and the example of the single-chamber legislatures in some of the Canadian provinces has been cited. The argument, however, overlooks one really important function of the Senate, namely its duty to provide for the security of tenure of the Irish judges. Clause XXVII. provides that judges appointed after the passing of the Act shall only be removable on an Address of both Houses of the Irish Parliament, and, should the Senate refuse to concur in a demand by the lower House for the removal of a judge, there is no such means of overcoming its resistance in a joint session as is the case with legislation. This is well.

There is one provision in the Bill(53) which will serve to strengthen the position of the Senate as an advisory body and may operate to give it an initiative in the introduction of Government legislation—the provision which enables an Irish Minister who is a member of either House to sit and to speak in both Houses. This is a practice common on the Continent, and not wholly unknown in the case of some of our Colonial Constitutions, and it has much to commend it. The Senate is placed under the same disabilities as to money bills as are imposed on the House of Lords by the Parliament Act. Thereby it is placed in an inferior position to that of most of the Second Chambers in the Colonies, all of which can reject, and some of which may also amend, money bills. The disability is the less surprising having regard to its character as a nominee body—it is when the Second Chambers of the Colonies are elective, that their powers in regard to money bills are considerable.(54)

The privileges of the Imperial Parliament are conferred by the Government of Ireland Bill upon the Irish Parliament. In the absence of such grant the Irish Parliament would not have had such privileges—although it might have adopted them by legislation—for the _lex et consuetudo Parliamenti_ are not implied in the grant of a constitution.(55) It is not uncommon to prescribe in Colonial Constitutions that the legislature shall have such privileges as are enjoyed by the House of Commons at the time of grant. In the present case, the Irish Parliament may define its privileges, if it thinks fit, by legislation, though it is difficult to imagine any occasion for its doing so. The really important thing is that it cannot enlarge those privileges beyond the scope of the privileges of the Imperial Parliament. This is the one constitutional limitation in the Bill—apart from the “safeguards” as to legislation in regard to religion and marriage contained in Clause III.—and it is by no means unimportant. The powers of the Imperial Parliament—particularly as to the right of the two Houses to commit for contempt without cause shewn—are a sufficiently high standard.

Irish Representation in the House of Commons(56)

Irish representation at Westminster has always been the riddle of the Home Rule problem. I have no space to examine here in detail the alternative solutions which were put forward in the earlier Home Rule Bills. But there is one general consideration which must always be borne in mind in the theoretical discussion of any solution. It is the very simple consideration that representation is what mathematicians would call a “function” of legislative power—the one is dependent upon the other. If the legislative powers over Ireland reserved to the Imperial Parliament are large, the representation of Ireland in that Parliament must not be small. It is at this point that Mr. Gladstone’s original proposal for total exclusion broke down. He reserved to the Imperial Parliament considerable powers of legislation in regard to Ireland and yet proposed to exercise those powers in the absence of Irish representatives.

It was no answer to cite colonial analogies. The Irish problem is not, as I have pointed out elsewhere, a colonial problem. No one at present proposes to give Ireland complete fiscal autonomy, for example. Nor is it strictly apposite to say that the Imperial Parliament legislates for the Colonies in the absence of colonial representatives. Such legislation is now almost exclusively confined to what I may call enabling legislation in matters in which the Colonies, owing to their status as Dependencies, are unable to legislate. In such matters as copyright, merchant shipping, marriage, extradition, the Imperial Parliament legislates for the Colonies largely because colonial laws cannot operate ex-territorially, and such Imperial legislation is usually effected by means of application clauses which enable the Colonies to adopt it or not as they please. But rarely if ever does the Imperial Parliament legislate for a self-governing colony as it has done and will continue to do in the case of such domestic Irish affairs as old-age pensions, land purchase, Customs and Excise, defence, naturalisation, to say nothing perhaps of industrial and commercial law. I have already indicated my opinion in favour of confining these subjects to the Imperial Parliament, but even were the opposite course taken there would still remain the fiscal question. We cannot continue to tax Ireland unless the Irish representatives are to remain at Westminster.

The presence of the Irish members at Westminster is imperative if the supremacy of the Imperial Parliament is not to be illusory. Mr. Balfour(57) contends that it will be as illusory as it has been in the case of the Colonies. But the Colonies are not represented in the Imperial Parliament, and to differentiate Ireland in this respect is to make all the difference between a legal formula and a political fact.

There remains the question of inclusion. No one would question the propriety of reducing Irish representation to its true proportions on a population basis—in other words, from its present figure of 103 to one of 70. The real difficulty arises when we consider whether those members, whatever their numbers, are to attend at Westminster in the same capacity as the British members. We are to-day confronted by the same problem as that which vexed the Parliament of 1893: are Irish members to vote upon all occasions or only upon those occasions when exclusively Irish and exclusively Imperial affairs are under discussion? The original text of the 1893 Bill adopted the latter solution. At first it has much to commend it, for it avoids—or attempts to avoid—the anomaly of refusing self-government to Great Britain while granting it to Ireland: if Irish members are to govern themselves at Dublin without the interference of Englishmen, why, it has been pertinently asked, should not the converse hold good at Westminster? But two very grave difficulties stand in the way; one is the difficulty of distinguishing between Irish and non-Irish business at Westminster; the other is the difficulty, even when such distinction is made, of maintaining a single majority under such circumstances. Withdraw the Irish members on certain occasions and you might convert a Liberal majority at Westminster on certain days into a Unionist majority on other days. A Liberal Government might have responsibility without power in British matters and a Unionist Opposition power without responsibility. One Executive could not co-exist with two majorities. Such a state of affairs might have been conceivable some seventy or eighty years ago, when Ministries were not regarded as responsible for the passage of legislation into law. It would be conceivable in France, where Ministries come and go and the Deputies remain. But it would be fatal to the Cabinet system as we know it.

Another objection to the “in-and-out” plan is the extreme difficulty of classifying the business of the House of Commons in such a way as to distinguish between what is “Irish” and what is not. If that business were purely legislative the difficulty would not be so great, but the House controls administration as well as legislation. Any question involving a vote of confidence in the Cabinet might legitimately be regarded as a matter in which the Irish members had a right to have a voice. The motion for the adjournment of the House, following on an unsatisfactory answer by a Minister, might be regarded as such. Who would decide these things? The Bill of 1893 provided for their determination by the House. In that event the Irish members would presumably have had a voice in determining on what subjects they should or should not vote, and they would have been masters of the situation under all circumstances. By their power to determine the fate of Imperial Ministries they might have determined the exercise of the Imperial veto on Irish legislation and reduced it to a nullity. It may, indeed, be urged that the Irish vote often dominates the situation at Westminster even under present circumstances, but it must be remembered that it is now exercised in the consistent support of the same administration, whereas under an “in-and-out” system its action might be capricious and apt to be determined solely by Irish exigencies of the moment.

There remains the plan of the inclusion of Irish members for all purposes. This at least has the advantage of simplicity. If Irishmen constantly attended at Westminster without distinction of voting capacity they would be less likely to regard their presence there as an instrument for reducing to impotence the exercise of the Imperial veto upon Irish legislation. It is quite conceivable, indeed, that once Home Rule is granted Irishmen will be Imperialists at Westminster without becoming Nationalists at Dublin—the natural conservatism of the Irish character may reassert itself. Close observers of Irish thought are inclined to believe that the grant of Home Rule will act as a great solvent in Irish political life, and that with the iron discipline of Nationalism relaxed, and its cherished object attained, lines of cleavage, social, economic, and industrial, will appear in Ireland and vastly change the distribution of Irish parties both at Dublin and at Westminster. Ulster “Unionists” may be found voting with a Liberal Government on education questions and Irish “Nationalists” against it. Irish representatives at Westminster may become more, rather than less, closely identified with British interests. And it should be remembered that it would be no new thing for members from one part of the United Kingdom to be voting on measures which solely concerned another part of the Kingdom. This is happening every day. As Mr. Walker points out elsewhere, a process of legislative disintegration has been going on within the walls of the Imperial Parliament itself, which is already being forced to legislate separately for the three separate parts of the United Kingdom. He estimates that during the last twenty years no less than 49.7 per cent. of the public general Acts have applied only to some one part of the United Kingdom instead of to the whole.

The Government of Ireland Bill adopts the principle of total inclusion, but qualifies the anomaly which is involved in the presence of Irish members voting on non-Irish questions by reducing the representation of Ireland to the number of forty-two, and thus to a figure far below that to which Ireland is entitled on the basis of population. At the same time it must be admitted that the anomaly is not thereby removed. The position of Irish members voting on purely English legislation after the grant of Home Rule will indeed—numbers apart—be more anomalous than it was before it. An anomaly can be tolerated so long as it is universal in its operation, and Scotch and English members can at present view with equanimity the spectacle of Irish members voting in their own affairs so long as they themselves exercise the same privilege in those of their neighbours. Reciprocity of this kind produces a certain unity of thought in a deliberative assembly. But the anomaly at once becomes invidious if Irishmen are placed in a privileged position. It is perhaps more theoretical than real, as the actual weight that could be thrown into the scale of the division lobby by a Nationalist majority (taking the present balance of parties in Ireland) of about twenty-six cannot be considerable, even if, as is very doubtful, it were consistently exercised.

Still the anomaly remains. Is it possible to meet it by some extension of Home Rule to the legislative affairs of England and Scotland?

The Further Extension of Home Rule

The anomaly, however, remains. How is it to be met? Obviously it is but a temporary difficulty if, as the Prime Minister has suggested in his speech on the first reading, the Bill is to be regarded as but the first step in a general devolution of the legislative powers of the Imperial Parliament. But everything depends on how far that devolution is to be carried. The Prime Minister’s reference to a change in the Standing Orders suggests a further development of the Committee system already in operation in the case of the Scottish Standing Committee by which the House has delegated a certain degree of provincial autonomy to a group of members. It would be possible to extend this to the creation of a Standing Committee for England and Wales. Under such a system Irish Members would be excluded from the Committee stages of legislation which was neither Irish nor Imperial. But there remains the Report stage, which is always apt to resolve itself into a Second Committee stage(58) in which the whole House participates. Moreover, an impassable limit is set to this process of domestic devolution by the necessity that the Government of to-day should command a majority in each of these Committees. A Liberal Ministry would probably find itself in a minority in an English Standing Committee, and a Unionist Ministry would, with equal probability, find itself in a minority in a Scottish Committee. Committees have become not so much a sphere for the legislative initiative of the private member as a new outlet for Government business. Contentious bills introduced or adopted by the Government are referred to them, and the moment this is the case the Minister in charge who is confronted in Committee with amendments which he does not care to accept may invite the whole House on the Report stage of the Bill to disallow them. The House itself, jealous of any surrender of its prerogatives, is only too apt to turn the Report stage into a second Committee stage. The responsibility of a Government department for the preparation and execution of legislation is to-day so indispensable that effective legislative devolution is almost impossible without devolution of the executive also. A Committee to which the Minister in charge of the Bill is not responsible is not in a position to exercise effectual control over legislation. Indeed it seems impossible to contemplate a devolution of legislative power without a corresponding devolution of executive power. So long as we have but one Executive in the House of Commons it is impossible to have two or three legislatures within the walls of that House. Moreover, it is just as imperative to restore the diminishing control of members of Parliament over administration as it is to re-establish their authority in legislation. There is a growing and regrettable tendency to confer upon Government departments both legislative and judicial powers—powers to make statutory orders and to interpret them, which is depriving our constitution of what has hitherto been regarded by foreign students as one of its most distinctive features—the subordination of the executive to the legislature and to the courts. The distinction between Gesetz und Verordnung,(59) between statute and order, is fast disappearing in the enormous volume of statutory orders. Powers to make rules under particular statutes are entrusted to Scotch, Irish, and English Departments which have the effect of diminishing the control of the House of Commons without transferring it to any representative substitute. The great increase of grants-in-aid for administrative purposes has also given the departments a power of indirect legislation by the latitude they enjoy in the distribution of them such as is further calculated to diminish the control of the House of Commons over questions of Irish and Scotch policy. Rarely do any marked departures by the departments come under the review of the House of Commons; the claims of the Government over the time-table of the House, fortified by certain rulings of the Speaker,(60) may and frequently do preclude any examination of them. In the words of a famous resolution, one may say “the power of the Executive has increased, is increasing, and ought to be diminished.”

But it is no remedy for this state of things to provide for administrative devolution alone. To devolve the authority which a great Department of State, such as the Board of Agriculture, exercises over the whole of Great Britain by the simple process of assigning its Scotch business to the Secretary for Scotland, does not increase the control of Scottish members over the executive. This process of administrative devolution, which is always going on, is not accompanied by any measure of legislative devolution; the Secretary for Scotland is not thereby brought under the control of the Scotch Standing Committee.

To create a new Scottish or Irish Department does not increase Parliamentary control over Scottish or Irish administration; rather it diminishes it. The heads of a Scottish Education Office, Local Government Board, and Department of Agriculture have been made responsible not to the House of Commons but to the Secretary for Scotland. Like the Chief Secretary for Ireland, he is a Prime Minister without a Cabinet and without a Legislature, and his policy is determined primarily not by Scottish or Irish opinion, but by the alien issues of imperial politics. Obviously there will never be any remedy for these anomalies until we have a Legislature with an executive responsible to it.

Scottish Home Rule

At the present moment we have in the case of Scotland devolution in a state of arrested development. This process of disintegration is reflected in separate Estimates in finance and in distinct draftsmanship in legislation. In legislation, indeed, marked changes have also taken place under cover of alterations in the Standing Orders of the House of Commons. An itinerant delegation of Scotch members has been set up to deal with private bill procedure in Scotland, and domestic devolution within the walls of the House of Commons has taken the shape of a Scotch Grand Committee. Few or none of these changes have any preconceived relation with the others; they represent experiments framed to meet the exigencies of the moment, but they all bear eloquent witness to a fact which has changed the whole aspect of the Home Rule problem and made that aspect at once more practical and less intimidating—the fact that the House of Commons has found itself increasingly incompetent to do its work. The fact is disguised by a multitude of expedients, all of them, however, amounting to a renunciation of legislative authority. These changes represent the _disjecta membra_ of Scottish Home Rule—they have no coherence, they point not so much to a solution of the problem as to its recognition.

None the less, I think the Irish Government Bill does provide us with a prototype. There is nothing in it, with the exception of the financial clauses, which forbids its adoption in the case of Scotland and of England. But I think, as I have already indicated in another connection, that the category of reserved subjects ought to be considerably enlarged so as to secure the maintenance of the existing uniformity of legislation in commercial and industrial matters. There are, however, undeniable difficulties in the way of an identity of local constitutions. Legislation in regard to land is exempted from the control of the Irish Legislature to an extent which Scotland would hardly be prepared to accept. Control over legislation relating to marriage is retained in the case of Ireland; I doubt if it would be tolerated in Scotland, whose marriage law differs(61) from that of England to a far greater extent than is the case with the marriage law of Ireland. In common law England and Ireland have the same rules;(62) it is only in statute law that they differ. In Scotland the common law is radically different. There will, therefore, be some difficulty in finding a common denominator for the Imperial Parliament—and in avoiding, even under “Home Rule All Round” a certain divergence in the legislative capacities of the members from Scotland and Ireland, with the attendant risk of an “in-and-out” procedure.

II.—Irish Administration Under Home Rule. BY LORD MACDONNELL OF SWINFORD

[The following article was, at my request, written by Lord MacDonnell before he became acquainted with the provisions of the Home Rule Bill. We agree in thinking it desirable that the article should appear without alteration as an expression of the views which Lord MacDonnell had formed on the subject.—THE EDITOR.]

I am asked to state my opinion as to the changes of Administrative Direction and Control which should be introduced into the system of Irish Government in the event of a Home Rule Bill becoming law.

As I write (in March) I am not acquainted with the provisions of the promised Bill and my conjectures in regard to them may, in some respects at all events, fall wide of the mark. But there are cardinal principles which, presumably, must govern the Bill, and lend to conjecture some approximate degree of accuracy. Among such principles are the establishment of a representative assembly (Mr. Birrell has told us there will be two Houses), with powers of legislation and of control over the finances allocated to Ireland; the maintenance of the supremacy of the Imperial Parliament; and the preservation of the executive authority of the King in Ireland.

Assuming then that the Bill will, in essence, be a measure of devolution under which the supremacy of the Imperial Parliament will be preserved, the Executive Power in Ireland will continue vested in the King (as under the Bills of 1886 and 1893) and a representative body controlling the Finances (and consequently the Executive) will be established, an intelligent anticipation may be made of the organic changes in the existing system of Irish Government which are likely to be required when the Bill becomes law.

I do not propose to push this anticipation into regions beyond those of constitutional or organic change. It may happen that re-arrangements of the Civil Service in Ireland, Inter-Departmental Transfers of the Executive Staffs, and reductions of redundant establishments, may ensue on the creation of the Irish Legislature.(63) But these changes, if they take place, will not be organic or constitutional changes; nor could anticipations in respect of them be now worked out with due regard to vested rights or economical administration. If not so worked out, such anticipations would be either valueless or harmful.

I shall therefore not attempt on this occasion to allocate establishments, or to suggest scales of pay, for the departments of the future Irish Government which I shall suggest in the following paragraphs. But I shall, as opportunity offers, point to such retrenchments of higher administrative posts as appear to follow from the organic changes I shall indicate as necessary.

The dominating constitutional change will, of course, be the establishment of a Parliament which, operating through a Ministry responsible to it, will control and direct the various departments engaged in the transaction of public business. It is unnecessary to consider here how that Parliament will be recruited, though I may express my conviction that justice to minorities, the mitigation of political mistrust, and the promotion of efficiency in the Public Services, urgently require the recruitment to be on the system of proportional representation. But I assume that when recruited, the Parliament’s general procedure will be fashioned on the model of the Imperial Parliament at Westminster. To that end the first thing the new Parliament will have to do is to create its own establishment of officers and clerks, to frame its Standing Orders relating to the conduct of public business, and to settle any subsidiary rules that the Westminster precedents may suggest.

Having thus provided itself with the requisite machinery for the exercise of its powers, the Irish Parliament would naturally next proceed to bring under its supervision the various existing agencies for the direction and control of the public business of the country.

At present the business of Civil Government in Ireland is carried on through the following forty-seven Departments, Boards, and Offices, which I group with reference to the degree of control exercised over them by the Irish Government at the present time.

DEPARTMENTS, ETC., UNDER THE CONTROL OF THE IRISH GOVERNMENT.

(1) Royal Irish Constabulary. (2) Dublin Metropolitan Police. (3) Prisons Board. (4) Reformatory and Industrial School Office. (5) Inspectors of Lunatics. (6) General Registry of Vital Statistics. (7) Registry of Petty Sessions Clerks. (8) Resident Magistrates.(64) (9) Crown Solicitors. (10) Clerks of Crown and Peace. (11) Office of Arms (Ulster King of Arms).

DEPARTMENTS, ETC., UNDER THE PARTIAL CONTROL OF THE IRISH GOVERNMENT.

(1) Land Commission. (2) Commissioners of charitable donations and bequests. (3) Public Record Office.

DEPARTMENTS, ETC., NOT UNDER CONTROL OF THE IRISH GOVERNMENT, BUT HAVING THE CHIEF SECRETARY AS EX OFFICIO PRESIDENT.

(1) Local Government Board. (2) Department of Agriculture and Technical Instruction.

DEPARTMENTS, ETC., NOT UNDER THE CONTROL OF THE IRISH GOVERNMENT EXCEPT AS REGARDS APPOINTMENTS AND, IN SOME INSTANCES, THE FRAMING OF RULES OF BUSINESS.

(1) Board of National Education. (2) Board of Intermediate Education. (3) Commissioners of Education. (Endowed Schools). (4) National Gallery. (5) Royal Hibernian Academy. (6) Congested Districts Board.

BOARDS EXERCISING STATUTORY POWERS IN IRELAND BUT NOT UNDER CONTROL OF THE IRISH GOVERNMENT.

(1) Public Loan Fund. (2) Commissioners of Irish Lights. (3) Queen’s University, Belfast. (4) National University.

DEPARTMENTS, ETC., NOT CONTROLLED BY THE IRISH GOVERNMENT.

(1) The Judiciary. (_a_) The Supreme Court of Judicature and its officers. (_b_) Recorders.(65) (_c_) County Court Judges. (2) Registry of Deeds. (3) Local Registration of Titles. (4) Railway and Canal Commission. (5) Commissioners of Public Works. (6) General Valuation and Boundary Survey of Ireland. (7) Treasury Remembrancer’s Office. (8) National School Teachers’ Superannuation Office.

ENGLISH CIVIL DEPARTMENTS WORKING IN IRELAND AND NOT UNDER THE CONTROL OF THE IRISH GOVERNMENT.

(1) Customs. (2) Inland Revenue. (3) General Post Office. (4) Board of Trade (Dublin and other Ports). (5) Quit Rent Office (Woods and Forests). (6) His Majesty’s Stationery Office. (7) Civil Service Commissioners. (8) Inspector of Mines. (9) Inspector of Factories. (10) Registrar of Friendly Societies and Trades Unions, Building and Co-operative Societies. (11) Ordnance Survey of Ireland. (12) Public Works Loan Commissioners. (13) Exchequer and Audit Department.

It is thus apparent that at present the Irish Government exercises control over only a small portion of the official agencies working in the country. Many of these agencies—some of first-class importance and dealing with strictly Irish business—are uncontrolled by the Irish Government, while the supervision exercised over them by the Imperial Parliament is of the most shadowy character. The congestion of public business in Westminster effectually prevents attention being paid to any Irish business—at least to any Irish business out of which party capital cannot be made.

In these circumstances, the first duty of the new Parliament will be to co-ordinate, and establish its control over, the _dísjecta membra_ of Irish Government. To that end it will, presumably, group into classes or departments the various “Boards,” “Offices,” and other official agencies enumerated above on the principle of common or cognate functions. Such a classification is an essential preliminary to the establishment of effectual Parliamentary control over the transaction of public business. I proceed to suggest such a scheme of classification, but a preliminary word is necessary.

Some controversy has taken place as to what is, and what is not, business of a “purely Irish nature,” with which alone, the Irish Government is to be concerned under the promised Bill. In my opinion, the following Departments, out of those enumerated above, namely:

(1) Customs, (2) Excise, (3) Post Office, Telegraphs, etc., (4) Treasury Remembrancer’s Office, (5) Civil Service Commissioners, (6) Exchequer and Audit Office, and (7) Public Works Loan Commissioners,

can not be so classed, for the following reasons.

The control of the levy of Customs and Excise Revenue by the Irish Legislature, would imperil the fiscal solidarity of the United Kingdom, and be destructive of the further extension of Home Rule on federal lines. The Imperial Parliament should continue to control these all-important Departments, but power may be usefully reserved to the Irish Legislature to vary, under certain defined conditions, the duties on particular articles or commodities, without, however, any reservation of power to vary the articles themselves. For such a reservation, there is a precedent in the Isle of Man (Customs) Act of 1887, as I explained in an address delivered before the Irish Bankers’ Institute last November. The suggestion was further developed in an Article on Irish Finance, which I contributed to the _Nineteenth Century and After_ for January, 1912. In this connexion, it should be remembered that Mr. Gladstone’s Bills of 1866 and 1893, excluded the Customs and Excise Revenue from Irish Control: and that the present Leader of the Irish Parliamentary Party, following, in this respect, Mr. Parnell’s example, has recognized the propriety of the exclusion.

The suggestion I make preserves the principle, thus confirmed by high authority, while it allows to Ireland, working in concert with Great Britain, the opportunity of adjusting her taxation to her own special necessities.

The Administration of Posts and Telegraphs in Ireland is intimately associated with the Department’s Administration in Great Britain; and though Ireland has an indefeasible claim, which can be readily conceded, to the great bulk of the patronage within her shores, (patronage mostly of a petty and purely local character) I fail to see in that claim sufficient justification for localizing the Irish part of the business and thereby incurring the risk of dislocating the working of a great Imperial Department. And my objection to transferring the Postal Department to the new Government is emphasised by the fact that in Ireland this Department is worked at a loss of about a quarter of a million sterling annually. There would, therefore, be a tendency on the part of the new Irish Government to curtail expenditure on the Post Office, to the detriment of the public convenience of the United Kingdom, in order that the expenditure on the Department should balance the income.

The Treasury Remembrancer’s Office will probably disappear with the system of which it is the symbol: but the Civil Service Commission calls for further consideration. As I am, at present, Chairman of the Royal Commission on the Civil Service, I feel myself precluded from writing on this important matter with complete freedom; but this much I may say—in recruiting her Civil Service Ireland will be well advised to follow the same general system of appointment, promotion, and conditions of service as prevail in Great Britain, (though this uniformity need not be taken to apply to scales of emolument). The enforcement of this principle will not militate against the establishment by the Irish Parliament, if so advised, of an Irish Civil Service as distinguished from the service which now exists for the United Kingdom as a whole. But I earnestly trust that if a separate Irish Civil Service be established there will be no limitation of candidature to Irish-born subjects of the Crown. Ireland would, in my opinion, commit a fatal mistake—fatal in more ways than one—if she imposed any impediment to the free competition by British-born subjects for appointments in the Irish Service, should one be created. She will gain far more than she will lose from reciprocity in this connection.

Assuming for the purpose in hand that the present general policy of recruitment for the Civil Service will continue, the question arises whether there should be an independent Civil Service Commission established in Dublin: or whether the Irish Government should ask the Burlington Gardens Commission to hold examinations in Ireland for the Irish service, associating with themselves some distinguished Irish educationalists. Personally I am strongly in favour of the latter alternative, on the ground of economy; and because of the advantage of using experienced British agencies for common purposes. Good feeling and mutual understanding will be thereby promoted.

Turning to the remaining Imperial Departments, I think the Exchequer and Audit Office should relinquish its Irish functions to a similar office restricted in its operations to Irish finances only(66); while the Public Works Loans Commissioners would probably cease to do business in Ireland.(67) Loans to municipalities and other public bodies in Ireland would, under the new dispensation, be probably made by the Irish Treasury acting on the advice of the Irish Board of Works.

I had, at first, thought of adding the Department of “Woods and Forests” (Quit Rents) to the list of excluded Departments, but I trust that, following the treatment proposed in Clause 24 of the Bill of 1893, this source of income may be made over to the Irish Parliament. If not, the Department should swell the list of exclusions. In the same way I had at first intended including the Land Commission in the excluded list, because of the imperative necessity which exists of retaining the Finance and Administration of Land Purchase under the control of the Imperial Treasury. I need not labour this point; all intelligent persons are agreed that the use of British Credit is essential to the furtherance of Irish Land Purchase, that Ireland, of herself, could not finance her great Land Purchase undertaking, because the cost would be prohibitive and would bring to an end that great scheme on whose successful accomplishment the peace and prosperity of Ireland so greatly depend. If the Government decides to exclude the Land Commission permanently from the control of the Irish Legislature no Irishman need object; but, for reasons to be stated in the sequel, I am disposed to think that the Land Commission might be better placed in a temporarily reserved, than in a permanently excluded, list.

With these exceptions I think that all the other public Departments and Offices enumerated may be regarded as dealing with business of a purely Irish character, the administration of which may be localized to Ireland. All of them, with the important addition of “Finance” and of certain other minor subjects which are known officially as “Votes,” I would group into Departments of Government in the following way, premising that I do not pretend to give an exhaustive list of “sub-heads,” which, indeed, must vary with changing circumstances and the growth of work. As I have said, the object of this grouping or classification is to facilitate the introduction of parliamentary control over every branch or kind of public business in Ireland.

SUGGESTED SCHEME OF ADMINISTRATIVE DEPARTMENTS OF THE REFORMED IRISH GOVERNMENT.

_Group I.—The Treasury._ (1) General Finance. (_a_) Taxation, Bills before the Legislature. (_b_) Budgets, Recoverable Loans, Local Taxation Account. (_c_) Courts of Law, Legal Establishments, Legal Business. (_d_) Other Civil Departments, Pensions, Valuation and Boundary Surveys. (_e_) Trade and Commerce. (_f_) Exchequer and Audit. (2) Local Finance. (_a_) Municipalities, Urban Councils. (_b_) County and Rural Councils. (3) Registry, Receipt and Issue of Letters. _Group II.—Law and Justice._ (1) Supreme Court of Justice and its Officers. (2) Recorders. (3) County Court Judges. (4) Resident Magistrates. (5) Crown Business. (_a_) General. (_b_) Law Officers. (_c_) Crown Prosecutors, Crown Solicitors. (_d_) Petty Sessions Clerks. (6) Police. (_a_) Royal Irish Constabulary. (_b_) Dublin Metropolitan Police. (7) Prisons, Reformatories, Criminal Lunatics. (8) Miscellaneous. (9) Registry, Receipt and Issue of Letters. _Group III.—Education, Science and Art._ (1) Primary. (2) Secondary. (3) University. (4) Technical. (5) College of Science. (6) National Gallery, Public Libraries, Museums. (7) Registry, etc., of Letters. _Group IV.—Local Government._ (1) Rural. (2) Urban. (3) Sanitation. (4) Medical Relief, Hospitals. (5) Poor Law Relief, Orphanages and Asylums. (6) Crop Failure, Famine Relief. (7) Labour questions, Housing of the working-classes. (8) Audit of Local Accounts. (9) Registry, etc., of Letters. _Group V.—Public Works._ (1) Roads and Buildings. (2) Railways and Canals. (3) Marine Works. (4) Drainage, Irrigation and Reclamation. (5) Mines and Minerals. (6) Registry of Letters. _Group VI.—Agriculture._ (1) General. (2) Relief of Agricultural Congestion. (Congested Districts Board). (3) Land Improvement, Seeds, Manures, Agricultural Implements, etc. (4) Improvement in the breed of Horses, Cattle, etc. (5) Diseases of Animals and Plants. (6) Agricultural Schools, Experimental and Demonstration Farms, etc. (7) Arboriculture, Afforestation. (8) Registry of Letters. _Group VII.—The Land Commission._ (1) Land Purchase. (2) Relief of Congestion. (3) Recovery of Annuities and Sinking Fund. (4) Fixation of Judicial Rents. (5) Registry, etc., of Letters. _Group VIII.—Registration._ (1) General and Vital Statistics. (2) Deeds. (3) Titles. (4) General Records. (5) Friendly Societies. (6) Registry of Receipts and Issue of Letters. _Group IX.—General Purposes._ (1) Sea and Inland Fisheries. (2) Labour Questions, other than Housing. (3) Scientific Investigations. (4) Thrift and Credit Societies; Agricultural Banks. (5) Quit Rents.(68) (Woods and Forests). (6) Temporary Commissions of Enquiry. (7) Stationery. (8) Office of Arms.(69)

Before proceeding to discuss the method by which the control of the Legislature may be most easily and effectively established over these various departments, I wish to consider whether any of them should be _temporarily_ reserved from that control. There is undoubtedly, a strong feeling among Irish Unionists, and among many moderate Nationalists, that, if Home Rule does come, Judicial Patronage, and the control over the Police, should be in the beginning reserved or excepted from the general transfer of control to the new Government which would take place when the Bill becomes law. On the other hand, the Nationalist Party are, I understand, anxious that there should be no delay in transferring the judicial patronage. They have been dissatisfied with the exercise of judicial patronage in the past: and they wish for a distribution more to their liking in the immediate future.

I have myself no fear that judicial patronage will be misused to the detriment of any party by the Irish Government of the future; but Irish Unionists are apprehensive on the point; and in my opinion something should be done to allay their fears. If the Bill should contain provisions similar to Clause 19 of the Bill of 1893, which maintained in the Irish Supreme Court two judges with salaries charged on the Consolidated Fund of the United Kingdom, appointed by the King in Council, and removable only by his Order, the Unionist apprehensions might be, to some extent at all events, removed. But as the Financial Provisions of the coming Bill will probably be different from those of the Bill of 1893, a clause like Clause 19 of that Bill may not be inserted.(70)

In that case, I think it would tend to the establishment of general confidence if the patronage in connexion with judicial appointments were, during the transition period, reserved and administered, as at present, by the Lord-Lieutenant. I think it would be good policy to abstain from every transfer of authority from the Lord-Lieutenant to which the Irish minority may at the outset reasonably object. There must be a period of transition—be it seven years or ten years or even longer—during which the minority will be suspicious of such change as I am now concerned with. I would let these suspicions wear themselves out, as in time they are sure to do with the growth of further knowledge and of that saner outlook on Imperial and Irish affairs, which collaboration towards common objects brings with it. It seems to me that in the reassurance of opponents and hesitating well-wishers, and even in the immunity, for a time, from the pressure and annoyances of this class of patronage, the new Irish Government may well find, in its infancy, satisfaction for the temporary withholding of a part of its prerogatives. It might be an instruction to the Lord-Lieutenant, that, during the transition period, (which need not be long) the wishes of the Irish ministry, in regard to appointments to judicial vacancies, should be ascertained and fully considered before the vacancies are filled.

But if this view cannot prevail then I suggest that during the transition period the patronage in connexion with the Supreme Court should, at all events, be reserved. It is highly desirable that the apprehensions of the Irish Unionists should be allayed in every practicable way.

Advantage should, I think, be taken of this opportunity to remove the Irish Chancellorship from the list of political appointments. Whatever strong reasons or justification may exist in England for the Lord Chancellor changing with the Government, there should be none that I can discover in the Ireland of the future, unless it be in connection with the appointment of Justices of the Peace. But fairness in distributing that sort of patronage can surely be secured by other means than a frequently recurring and unnatural change of Chancellors, whereby the Pension List is heavily and unnecessarily burdened.

In connexion with the Royal Irish Constabulary, I am clear that the control should rest, as now, with the Lord-Lieutenant (that is, with the Imperial Government) until Land Purchase has made further progress, and the new Government has gained experience of administration; but it is only fair that during this period of reservation the Imperial Government should allow Ireland a drawback on the cost of the police force, the present strength of which is excessive if judged from the Irish point of view.

The situation will, of course, be anomalous inasmuch as there will be an Executive Government responsible to the Irish Parliament yet relieved of the prime responsibility resting on all Governments—the maintenance of law and order. This anomaly cannot be avoided: it inevitably arises from the political conditions of the case. The best way of dealing with the situation will be to maintain existing arrangements which are directed by the Under-Secretary and to preserve the subordination of the Law Officers to the Lord-Lieutenant in all matters relating to the maintenance of order. But while the Minister for Law and Justice should have no control over the police during this transition period, his wishes in regard to any matter will, of course, be carefully considered; his request for the performance by the police of all duties not of a purely police character which they now customarily discharge, will be complied with, and his proposals to reduce the strength of the force, and thereby effect saving in the public expenditure, will no doubt be favourably considered by the Lord-Lieutenant if the state of the country permits.

I presume the Bill will indicate the kind of police force which in time will take the place of the existing force. I confess I am not prepossessed in favour of the plan embodied in this connexion in the Bill of 1886 or 1893. I think the best plan will be to retain the organization of the Royal Irish Constabulary, and to reduce the present force by short recruitment when the Imperial Government think that can be safely done. I deprecate the creation of a local force under the control of the local authorities.(71)

Finally, the question whether the force to be locally employed should be armed, or not armed (as the Bill of 1893 proposed), may be left to be decided at the time by the Imperial Government: but, in any case, it will, I think, be necessary for the Irish Government to maintain a sufficiently strong armed body of police in Dublin and other suitable centres to deal with emergencies.

The control over the staff of Resident Magistrates is so intimately bound up with the existing system of police administration that one cannot be safely separated from the other, and this section of Law and Justice should, in my opinion, also be reserved during the transition period. At the same time I think the services of the Resident Magistrates can be more fully utilized in the business of general administration than they are at present.

There is less reason for retaining the Dublin Metropolitan Police under the Lord-Lieutenant’s direct control during the transition period than for retaining the Royal Irish Constabulary; and if the national feeling would be gratified by giving to the Irish Parliament, at once, the control of the Dublin police, I would defer to that feeling. But my personal opinion is that the Irish Parliament in its earliest days would be wise to concentrate upon self-organization, the establishment of control over the departmental system, and the taking stock of the condition of the country in all the various aspects of national life. It will then with greater assurance of success take over from the Imperial Government the responsibility for the maintenance of order.

I have already referred to the Land Commission. There is a general agreement that the department of land purchase, which depends essentially upon the use of British credit, should remain with the Imperial Government. The only question is: should this department be permanently excluded from Irish control, or only temporarily excluded, the period of exclusion being in the discretion of the Imperial Government? In view of the temporary character of the Land Commission, the possibility that Legislation affecting land may be necessary before the Annuities generally cease, and the certainty that when they do cease, either generally or in any particular area, it will be desirable to remove all limitations on the functions of the Irish Legislature in reference to land, I am disposed to think it, on the whole, better to treat the Land Commission as a “reserved” instead of an “excluded” subject, and thereby make its ultimate transfer to Irish control a matter of executive action on the part of the Imperial Government. But I admit the existence of strong reasons for total exclusion, and I should not question a decision in favour of the latter course.(72) Should it be excluded, I would suggest that it shall be open for the Irish Government to bring to the notice of the Lord-Lieutenant any matters in which the administration of the Land Commission seems to be defective.

In this connexion I desire to call attention to the Congested Districts Board and the power which it at present exercises of purchasing land under the Land Purchase Acts. It is imperatively necessary, if this Board is to be retained in its existing or in any modified shape, that its work of relieving congestion and improving the condition of the peasantry of the West should be brought under the supervision and control of the Irish Legislature. But if the land purchase operations of the Land Commission are to be excluded or reserved from control by the Irish Legislature, it is very difficult to defend the subjection to such control of the land purchase functions of the Congested Districts Board. How can the British Treasury be reasonably asked to become responsible for prices fixed by an Irish body over which it will have no control whatever? Such a situation would be utterly anomalous.

The anomaly can be avoided (as suggested in my Minute appended to the Report of the Royal Commission on Congestion, 1908) by relieving the Congested Districts Board of its functions as a purchasing authority and having purchases of land made for it, on its requisition, by the Land Commission.

Having thus indicated my opinion as to the departments or sections of departments to be temporarily reserved from the control of the Irish Parliament, I come to the question of how that control should be exercised over the departments remaining on the list. In this connexion I invite reference to Clauses 20-22 of the Irish Council Bill. That Bill (Clause 19) contemplated the appointment of committees of council, with paid chairmen, to administer the departments into which public business was to be distributed under the Bill. It was my own expectation, had the Council Bill become law, that the chairmen of these Committees of Council would in course of time have become ministers for the departments concerned; but, in the beginning and until experience had been gained, it seemed desirable to give the embryonic ministers the help, and to impose on them the restraint, of colleagues. Whether the future Irish Legislature will see prudence or wisdom in this course, one can only conjecture; but one may trust that it may. In the following observations, however, and without meaning to imply any preference for “Ministers” over “Chairmen of Committees,” I shall employ the word “Minister.”(73)

The first Department on my list is the Treasury. Here the new Irish Administration must break entirely fresh ground and build from the foundation. An Irish Exchequer must be created, a system of Treasury Regulations and accounts must be evolved; an Irish Consolidated Fund must be established; and a Bank must be selected with which the Irish Government will bank. (Much pressure will, I anticipate, be brought to bear on the Irish Ministry to distribute its favours in this connexion; but, it would, I submit, be highly inconvenient to keep accounts with separate banks). At present the Chief Secretary’s office in Dublin Castle has a financial section, but the new Government will derive no inspiration from its procedure. It will be better to look for precedents in Whitehall. They will show a Treasury Board composed of members of the Government but with the responsibility resting on one called the Chancellor of the Exchequer who is answerable to Parliament for the country’s finances and, subject to the decision of the Cabinet, possesses complete control over them (excepting the Army and Navy Estimates). It will, I suggest, be wise for the Irish Legislature to follow this precedent, and place the Irish Treasury in charge of a Body of Commissioners (being Members of the Parliament) with a Treasurer or Chancellor of the Exchequer, specially responsible to it.

The governing principle, from the parliamentary point of view, of our financial system, is that no expenditure can be proposed to Parliament except by a Minister of the Crown.(74) I trust that the principle will be reproduced in the Irish Parliament, and rigidly enforced. In no other way can an adequate safeguard be provided against irresponsible and hasty proposals for spending public money.

The Imperial Treasury at present, exercises financial control over every department and branch of the public service (over the Army and Navy estimates I believe the control is less effective than in other directions). This is a wholesome practice, and it should be copied by the Irish Legislature with one qualification. At present, the financial control of the Treasury is occasionally accompanied by a degree of administrative interference which I venture to think is sometimes injurious to the public interests. The Treasury is deficient in administrative knowledge; and for this reason its interference has not infrequently led to inefficiency. Some administrative restraint is, of course, inseparable from financial control; but when money is sanctioned for a particular purpose, the administrative officers on the spot can regulate detailed expenditure better than gentlemen at a distance.

The new Parliament should certainly provide a Public Accounts’ Committee; and a Comptroller and Auditor-General, as under the Exchequer and Audit Act of 1866; and I suggest for consideration, that the Departments should be competent to challenge, before the Public Accounts’ Committee, any over-interference on the part of the Treasury in administrative details. While I should be glad to see in Ireland the most effective check upon wasteful expenditure, I deprecate the exercise of a meticulous interference in administrative details.

The secretariat arrangements to be made in connection with the Department of Law and Justice, will depend on the extent of “temporary reservation” to be effected. If there is to be the larger reservation, during the transition period which I have suggested above, nothing need now be done. Matters will continue, during that period, on their present footing. If there is to be only partial reservation, the portion of the existing office staff in Dublin Castle which deals with the unreserved sections can be detached for employment under the Minister, who in this case would doubtless also hold another portfolio. When the Department is brought fully under Irish control, there will be found in Dublin Castle gentlemen specially competent to give effect to the policy of the Legislature in this Department of Irish Government.

But, whether the Judicial Department is brought sooner or later under Irish control, an early opportunity should be taken of reviewing the entire judicial organization with the view of pruning away redundancies and placing it on a more economical basis. Few will be found to deny that the existing staff of County Court Judges and legal officials of various grades is excessive; and no one, with knowledge, will maintain that a Supreme Court of 14 Judges, costing with their subordinate officers £181,209 a year, is not too costly for a country with a population of 4-¼ millions. In the House of Commons Return (Cd. 210 of July, 1911), the number of civil servants of all grades in the Supreme and Appellate Courts of England (with their 39 judges) is shown as 461, while in the Supreme and Appellate Courts of Ireland (with their 14 judges) it is shown as 257!

The administration of Education is at present distributed between three Boards and the Irish Government and the circumstances call for drastic reorganization. The Boards of National and Intermediate Education should be abolished, and a Department of Education created under the control of a Minister responsible to the Irish Legislature. Such a Minister would find ready to his hand an official staff (working under the direction of a very competent “Commissioner of Education”) which will not at the outset require any large increase.

In the Irish Council Bill a Committee of Council for Education was proposed, which provided for the admission of gentlemen not being members of the Irish Council; the object being to conciliate public feeling which is notoriously sensitive upon this matter, and to secure special opportunities for representatives of the various religious creeds of making their views felt. I believe that the liberality of that provision was very inadequately understood in 1907; but in the altered conditions of the present time, I do not repeat the proposal. The Irish Parliament, under the coming Bill, will be a stronger representation of the popular will than the Irish Council would have been, at all events, at the outset.

This change of administrative control, direction, and responsibility in respect of Education will, I trust, have a powerful effect in improving secular instruction, which is at present notoriously inefficient; but it need not (apart from any declaration of policy by the Irish Legislature), involve any change in the religious aspect of the teaching. Teaching in Irish primary schools of all creeds is in practice denominational (though not so in theory). My hope is that it will remain so. What the change will involve is the control of the Department over the appointment, the promotion, the removal, the qualifications, and the conditions of service of every person employed in Irish schools. That is as it should be.

The “Endowed Schools” are conducted under schemes which have, I believe, been settled by the Judicial Tribunals, and I do not suggest any interference with such schemes, but the efficiency of the secular teaching in those schools should be subject to the supervision of the Department of Education.

I come next to the Local Government Board, which consists at present of an _ex-officio_ President (the Chief Secretary) and three members, one of the three being Vice-President and the real head of the Board. The appointment of a Minister, being a member of the Irish Legislature, in place of the _ex-officio_ President who never sits on the Board, will convert this Board into a Department with a responsible Minister in charge. One member of the Board (not the medical member) may be dispensed with, and the Executive Establishment calls for revision. This Board comes into contact with the people in many intimate relations of their lives and on its successful administration will largely depend the popularity of the new Administration.

The next Department is the Board of Public Works and Buildings, which at present is a Treasury Department independent of Irish control. For the “Chairman” should be substituted a Minister responsible to the Legislative Assembly. At present there are three members, but one of these may, I think, be dispensed with at once. I look to this Department to confer benefits, long delayed, on the country; I would, especially, instance, drainage. Ireland stands in need of nothing more than a system of arterial drainage carried out on a large scale.

At present the Commissioners of Public Works in Ireland make recoverable loans on behalf of the Treasury for land improvement and such like purposes. In the scheme indicated above, the making of these loans would come within the functions of the Finance Department. But the Department of Works would naturally be the Treasury’s Agents advising on the necessity for such loans and supervising the expenditure of them, when borrowed for large betterment undertakings.

The next Department is the Department of Agriculture and Technical Instruction. In the scheme outlined above Technical Instruction has been brought under the Education Department, while the Congested Districts Board has been brought under the supervision of the Department of Agriculture. The Act under which the Department of Agriculture at present works provides for two Bodies, to assist and advise the Vice-President, (who, as in the case of the Local Government Board, is the working head of the department)—a Board having a veto on expenditure, and a Council which gives general advice on policy. Both the Board and the Council were devised to supply that popular element in which the system of Irish Government is at present lacking. Under the new dispensation this popular element will be amply supplied. Both Bodies will therefore be unnecessary; their continuance would conduce to embarrassment and friction with the all-controlling Legislature. Both the Council and the Board should be abolished. The President and Vice-President should also disappear, and in their place should emerge a responsible Minister in charge of the Department. This Department seems to be, after the Judicial Department, the most expensively organised in Ireland. It is true that it comprises some branches which have elsewhere an independent _status_: but notwithstanding this, I am convinced that a revision of its numerous and costly establishments is needed in the interests of economy and efficiency.

I have already suggested that the Congested Districts Board should be relieved of the duty of purchasing land, the Land Commission being required to make these purchases on requisition from the Congested Districts Board. I would add (in accordance with the principle suggested by paragraph 100 of the Report of the Royal Commission on Congestion in Ireland, (1908)) that the creation of an Irish Legislature destroys the justification for this Board. The work can be better done by an Executive Agency working under the control of a Committee of Parliament. But if a Board is retained it should not be the large Board we have now. A small Board of five will be more conducive to efficiency and far more amenable to the control of the Legislature. That control I venture to add will be most beneficially exercised in bringing about the abandonment of the Congested District Board’s present policy of spoon-feeding the congested villages of the West; and of dealing with them not, to any extent, on eleemosynary principles, but exclusively on those of self-help. The Board’s methods of relieving congestion should be assimilated to the practice of the Land Commission on dealing with congested areas, if men now living are to see the end of the Board’s activities.

In connexion with Registration, I think it is desirable to bring all kinds of registration under the control of one Minister, but the work is mostly of a routine character and a single Minister will doubtless find himself able to direct this and also the last Department remaining on my list.

This Department—for General Purposes—brings together the remaining Boards and Offices dealing with official work in Ireland; and under it may in future be brought any official business of a temporary character, not of sufficient importance to be dealt with by a separate Office, but yet of such importance that a vote is taken for it in Committee of Supply.

I have placed “Fisheries” in this Department because that important industry requires more attention than it has hitherto received, or than it can receive from the Department of Agriculture. It will also be observed that I have placed in this Department the subject of Thrift and Credit Societies and Co-operative Banks: thus dissociating them from the Department of Agriculture, which deals with them at present but with which they have no necessary connexion. They have been made far too much the battle-ground of contending parties. Some supervision by the Government over these co-operative agencies may perhaps be necessary, but they will flourish most when interference by the Government is least felt.

It remains to refer to the position and functions of the Lord-Lieutenant under the new dispensation (it is, of course, to be presumed that no religious disqualification will any longer attach to the office). On the assumption that the Executive power will continue vested in the King, all executive acts of the Irish Government must issue by authority of the Lord-Lieutenant through whom will also be communicated the assent to, or the withholding of assent from, Acts of the Irish Legislature. The Bill of 1893 (Clause 5 (2)) provided for:

“An Executive Committee of the Privy Council in Ireland to aid and advise in the government of Ireland being of such members and comprising persons holding such offices under the Crown as His Majesty, or if so authorised, the Lord-Lieutenant, may think fit, save as may be otherwise directed by Irish Act.”(75)

It will be desirable that such a Committee of the Irish Privy Council should be created to assist the Lord-Lieutenant. But while the majority of the Committee should always be composed of Ministers, it would, I think, conciliate the minority, and otherwise make for efficiency, if some members on the Privy Council Committee, were taken from outside the Government. If the Committee were composed of ten members, seven might be Ministers, and three members might be taken from outside the Government: the decision of the Council would be that of the majority.

Of course, I am conscious of the fact, that this arrangement may be objected to on the ground that it would expose the plans of the Government, in particular cases, to gentlemen who might not be of the Party in Office. But Privy Councillors are bound by oath to secrecy; and I think the danger of a dishonourable betrayal of trust is incommensurate with the advantages which this representation of outside feeling on the Committee, would bring. Moreover, the Lord-Lieutenant would be free not to summon any particular Privy Councillor to a session of the Committee, if the Prime Minister objected to his presence. The proceedings of the Privy Council would be secret, and no Minutes of dissent would be recorded.

I take it that under the coming Bill, the Lord-Lieutenant will have no power to initiate action otherwise than by suggestion to the Ministers concerned, who, may, or may not, act on the suggestion. Ordinarily, the Lord-Lieutenant in Council will accept the Minister’s advice: but when he differs, and persists in differing, he would be bound in the last resort to refer the matter to the British Cabinet. _Ex-concessis_, all proceedings of the Irish Legislature or Government will be subject to the ultimate control of the Imperial Parliament.

It will be necessary to provide for the representation of the Irish Government in the Imperial Parliament (a different thing from the representation of Ireland, which, if the solidarity of the United Kingdom is to be preserved, must be maintained, though, as I have already said, in a proportion “which should be sensibly less than the proportion existing between British Members and their electorates”). Some Member of the Imperial Parliament must answer for that Government; and the question arises whether the Member should be an Irish Member, designated by the Irish Government, as its representative, or a British Minister. In view of the fact that the Acts of the Irish Government will be subject to the control of the Imperial Parliament, and must, therefore, come regularly under the cognizance of the British Ministry, I suggest that the duty should be discharged by the British Home Secretary, pending the time when the establishment of the Federal System (Home Rule all round) will call for a more far-reaching Parliamentary adjustment.

If the Land Commission (Group VII.) be excluded from Irish control, the number of Ministers in charge of departments would be seven, reducible to six by giving the portfolios of Groups VIII. and IX. to the same Minister, and to five if a separate Minister for Law and Justice be not at once appointed. With the Prime Minister, who might have charge of a department, or, as in Canada, might be President of the Privy Council, a Cabinet of seven or six as a minimum number would be composed; and this would seem to be an adequate number, at all events to begin with.

The general result of the preceding suggestions should be that responsibility for every agency engaged in the administration of public business in Ireland will attach to a particular Minister, responsible to the Irish Parliament; that interest in Irish public business will be enormously stimulated in Ireland, and that a salutary public control will be effectively exercised. In particular, it may be expected that public money will be husbanded, and when expended, will be spent to the best advantage.

It is not possible within the limits of a paper like this, to enumerate the provisions of law, peculiar to Ireland which the organic changes indicated in the preceding paragraphs may necessitate. An enquiry into that matter (as into the redundancy of Judicial, Executive and Secretariat establishments) will no doubt be undertaken by the Irish Government on a suitable opportunity. But it is probably correct to say that changes of substantive law will not be so much required as changes of practice, whereby the administration of the law may be brought more into harmony, than it is at present, with popular sentiment.

It is always to be remembered that the scheme of Home Rule or Devolution which is advocated in this paper, does not contemplate the creation of a body of law for Ireland, different from that prevailing in Great Britain. In all matters of _status_, property and personal rights, the laws of the two countries will, I presume, remain identical; and no legislation of a restrictive, sectional, or sectarian character will be permissible in the one country, which is not permitted in the other. It is also to be presumed that the decrees of English Courts will be as enforceable by Irish Courts and Authorities as they are now, and _vice versa_; and that, in fact, the Judicial and Executive Organisations will be as available, under the new order of things, for carrying on His Majesty’s Government in both countries, as they are now.

If this be understood, most of the doubts and fears, and forebodings of evil to come from this extension of Irish Local Government, will, I predict, be soon dissipated.

III.—The Judicial Committee And The Interpretation Of The New Constitution. BY SIR FREDERICK POLLOCK

“In this [the United States] and all other countries where there is a written constitution designating the powers and duties of the legislative, as well as of the other departments of the government, an act of the legislature may be void as being against the constitution.” So James Kent wrote in his Commentaries when the foundation of American independence was still within living memory, and an observer in search of constitutional autonomy under the British flag beyond the British Islands would have been driven to find his best example in Barbados. Kent continues: “The judicial department is the proper power in the government to determine whether a statute be or be not constitutional”; for the interpretation of the constitution which is the supreme law of the land is as much a judicial act as the interpretation of an ordinary written law. This is the view most natural to minds trained in English legal and political tradition. It was established in the United States by a decision of the Supreme Court at Washington early in the nineteenth century, and, though not previously free from controversy, has been received ever since; and it has been accepted by British publicists and lawyers as applicable to the decision of causes involving constitutional questions throughout the British Empire. As Chief Justice Marshall said:

“If two laws conflict with each other, the courts must decide on the operation of each. If the courts are to regard the constitution, and the constitution is superior to any ordinary act of the Legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.”(76)

The principle, so far as I know, has never been disputed by any English authority, but occasions for its application did not often arise before our own time. In strictness of law the King in Parliament has supreme legislative power, as with or without Parliament he has supreme executive power, in every part of his dominions. But in fact very large powers of government have been granted in various ways and at various times, and in the cases which now concern us are coupled with an effectual understanding, though of a political rather than legal nature, that they shall not be recalled. It may be observed that a grant of this kind is quite possible without representative institutions. Extensive powers of government and jurisdiction, including the highest “regalities” which could be granted to a subject, were conferred on individuals by several of the early colonial charters. William Penn’s charter is perhaps the best known of these, and is a striking example. This, however, is remote from the present purpose, as is the still wider subject of the political and semi-political authorities granted by charter to the East India Company and other trading companies. We have now to attend only to the creation of autonomous powers by statutes of the Imperial Parliament.

The accustomed form in such creations is to confer in express words power to make laws for the peace, order (sometimes “welfare”), and good government of the territory in question. Within the limits prescribed in its constitution, legislative power so created is full and perfect. The Judicial Committee of the Privy Council has repeatedly laid down—not for one Dominion only, but alike for British India, Ontario and New South Wales—that it must not be likened to the merely vicarious authority of a delegate or agent, and is not to be restrained by the rules applicable to agency. So far as it extends, it is a plenary power analogous to that of the Imperial Parliament itself and not to a ministerial authority which cannot be delegated; and this applies to the federated units in a federal system no less than to central or unitary legislature.(77) It is, therefore, not quite accurate, though useful in the first introduction of novices to the subject, to liken the enactments of any such local legislature to the by-laws made under statutory authority by a railway company or a town council. Such bodies can make the regulations they are empowered to make, but cannot delegate the framing of any regulation, or the decision of questions arising under it, to the traffic manager or the town clerk. But a local legislature, within the limits of subject-matter originally fixed, can do all that its creator the Parliament of the United Kingdom could have done. The working safeguard against legislation which, by improvidence or oversight, would conflict with Imperial requirements, is the refusal of royal assent by the local Governor on the advice of his Ministers, or, in the last resort, by the Home Government. Some of the earlier Acts establishing self-government, following the common form of the old colonial charter, provided that local legislation should not be repugnant to the laws of England. This might have been held to forbid such revolutionary changes as abolishing the publicity of Courts of Justice or depriving prisoners of the right to trial by jury. In our own time the question has been raised whether the sacred number of twelve jurymen could be reduced by Order in Council in a criminal court established under the Foreign Jurisdiction Acts in an Asiatic country.(78) But in 1865 it was expressly declared by the Colonial Laws Validity Act that the enactments of colonial legislatures should not be called in question for repugnancy to the law of England in any other sense than repugnancy to some Act of the Imperial Parliament or an order made under its authority.

These matters are only preliminary to the questions that arise under federal constitutions, but they are necessary to be understood if we are to avoid confusion. In the case of a federated Dominion within the British Empire the federal constitution is itself an Act of the Imperial Parliament, and therefore all exercise of legislative power in the Dominion, whether by the central legislature or by that of any constituent State or Province, must be consistent with its provisions, or otherwise it will clearly be invalid to the extent of the repugnancy or excess. Every such constitution has to assign the bounds of central and local legislation; in the case of Canada, for example, the field of action open to the Dominion Parliament at Ottawa and the legislatures of the several Provinces. In strict legal theory the Confederation Act of Canada or the Commonwealth Act of Australia can be amended at Westminster like any other Act of Parliament; but, as in fact these constituent Acts were framed by Canadian and Australian statesmen, so it is well understood that the Home Parliament will not touch them except at the request of Canada or Australia. With such request, there have been amendments and legislative interpretations of the Canadian Constitution. If any Act of Parliament might be called unconstitutional, uninvited intermeddling with the constitution of a self-governing colony would be so. We may pause here to draw one immediate consequence. Whenever Home Rule is enacted and established for Ireland, Parliament must harden its heart against all endeavours, from whatever quarter they may proceed, to obtain any alteration in the scheme save as it may be required by the regularly expressed will of Ireland as a whole. This should be an understanding outside and above all party divisions, British or Irish; and it is equally necessary whether or not a certain number of Irish members continue to sit at Westminster.

We now turn to the possible conflicts of legislation under a federal constitution. It will be convenient to use the more expressive and generally understood word “State” for the autonomous components of the federation. The Canadian term “Province” is prior in time within the Empire; but it might be misleading to readers unacquainted with Canadian affairs, as tending to suggest merely administrative functions like those of a County Council: a body which has many important duties and some delegated legislative authority, but cannot reasonably be called autonomous. A federal constitution must assign some legislative powers exclusively to the federal legislature, and it may reserve or assign others exclusively to the State legislatures. It may also leave a region in which the States have power to legislate, but subject to a concurrent and superior power in the federal authority. This is actually the case in Canada. Hence questions may arise of a more complicated kind than those which are open under unitary Home Rule; they may nevertheless be instructive in simpler cases. The Judicial Committee has deliberately abstained from laying down any general system of interpretation or any presumption in favour of extending or limiting the powers of either Federal or State legislation. It is prepared to take some pains to reconcile apparently conflicting enactments, but beyond that no precise method can be formulated. The Court must deal with the problem of each case on its own merits. “The true nature and character of the legislation in the particular instance under discussion must always be determined in order to ascertain the class of subject to which it really belongs.”(79) Again: “In performing this difficult duty, it will be a wise course for those on whom it is thrown to decide each case which arises as best they can, without entering more largely upon an interpretation of the statute than is necessary for the decision of the particular question in hand.”(80) It would seem obvious without argument that the courts of Canada, Australia, or in the future, Ireland, cannot be bound in any case to give effect to two conflicting enactments of the local and the central legislative bodies at once, notwithstanding that some of the language used by the Judicial Committee a few years ago, on an appeal from the Supreme Court of Victoria, suggests that there is no authority anywhere, short of an Act of the Imperial Parliament, capable of resolving such a contradiction.(81)

The question remains what should be the ultimate court of appeal for questions of this kind arising under an Irish Home Rule Act. According to our general forensic habit and tradition, it would be the court to which appeals are taken in the ordinary course from the Court of Appeal in Ireland, namely the House of Lords. It appears however to have been decided that this duty will be more appropriate to the Judicial Committee of the Privy Council. Now it is high time, for quite independent reasons, that these two courts of last resort, which are composed in practice of the same, or very nearly the same members, should be merged in a single tribunal of final appeal for the whole of the British Empire. In the meanwhile the only material difference is that when noble and learned persons are sitting as the House of Lords they can and do express their individual opinions in the form of speeches addressed to the House itself, and when they sit as “their Lordships” of the Privy Council, or “this Board,” only one opinion is given as the Judicial Committee’s advice to His Majesty. For my part I rather think that the suppression of dissenting opinions does not work well in cases of constitutional interpretation. Some decisions of the Judicial Committee within pretty recent memory have been hardly intelligible; one is tempted to conjecture that not all of the reasons for them commanded unanimous assent, and the reasons to which the whole or the greater part of their Lordships could agree were not the best that any of them could have given. Separate and dissenting opinions are freely given in the Supreme Court of the United States, which has dealt with the most delicate constitutional questions ever since its work began. If I were an Irishman I think I should prefer the House of Lords to the Judicial Committee. But, as above said, it is hoped that before very long they will cease to be distinct tribunals. Moreover there is a practical reason, which shall now be mentioned, for making the Judicial Committee the final Court of Appeal in this behalf.

It appears from the published text of the Bill [cl. 29, sub.-cl. 1] that the Lord-Lieutenant or a Secretary of State—in ordinary political language either the Irish Government or the Home Government—may refer a question whether any provision of an Irish Act or Bill is constitutional to be heard and determined by the Judicial Committee of the Privy Council. That Committee is to decide who are the proper parties to argue the case. There does not seem to be any reason to apprehend that the parties interested would make difficulties on the score of expense; they would be either public authorities or representative associations. This provision is really not a novelty but a special declaration, and perhaps an enlargement, of the very wide power given by the Act which established the Judicial Committee in 1833,(82) and empowered the King “to refer to the said Judicial Committee for hearing or consideration any such other matters whatsoever as His Majesty shall think fit”: a power more than once exercised in our own time.(83) It is quite easy, however, for even learned persons who are not familiar with the practice of the Privy Council to overlook the existence of this enactment, and therefore the insertion of an express clause in the Home Rule Bill is judicious. Probably no one will seriously propose to deprive the Crown, as regards Ireland, of a power which it already has throughout the British Empire. But it is a matter from which party politics ought to be rigorously excluded. It should be understood that the power will not be exercised without a considered opinion of the law officers, in Ireland or here, that there is a substantial and arguable question.

IV.—Constitutional Limitations Upon The Powers Of The Irish Legislation. BY SIR JOHN MACDONELL, C.B., LL.D.

Securities For Religious Freedom

It may be of interest before dealing with the safeguards for religious liberty in Ireland to describe those adopted in other countries. This survey, made in no controversial spirit, may help to give a proper sense of perspective and proportion. A brief comparative study of the legal safeguards for religious liberty may not perhaps help much to inspire the spirit of charity and toleration, which are its best supports. But we know our own position better when we know that of others. It is some gain also to find that others have had the same problems as ours, and have solved them with more or less success. Certain fears are much abated when it is recognised that it is proposed to make in Ireland an experiment of a kind which has been satisfactorily carried out elsewhere. Political justice has been found, in the countries to which I refer, compatible with religious freedom. Why not in Ireland?

Constitutional Limitations

I. PROGRESS OF RELIGIOUS LIBERTY

In most States to-day religious liberty exists with some qualifications—it is one of the most characteristic features of modern legislation. All religious denominations are tolerated; some may be favoured; all are free so long as they do not come into conflict with generally accepted principles of morality. In most States there is a further advance; we find a tendency, more and more accentuated, towards religious equality; more and more is it the policy of States to place all religious denominations upon the same footing. This principle is not carried out completely in all or indeed in most States. Certain churches are in a special sense State Churches. In some countries, the churches of large parts of the population are treated as “recognised churches,” to their advantage and to the exclusion, it may be, of others. In Austria, for example, there are six recognised churches and religious societies; and a similar system exists in Hungary.

I do not attempt to analyse the many causes of these movements. The fact at all events is that, whether as the result of the attrition, everywhere going on, of dogmatic creeds, or of the growth of the spirit of tolerance, or of indifference, or the rediscovery of charity as a fundamental principle of Christianity, or because toleration is the line of least resistance, or because it best accords with democracy, almost everywhere in modern times in Europe and America religious equality seems to be the condition towards which States are moving. It is worthy of notice that complete freedom is demanded by many sincere adherents of churches who are impatient of State control, and who believe that spiritual life thrives best in an atmosphere of freedom. It is the creed, I am inclined to think, of an ever increasing number that the existence of a free Church in a free State is to the welfare of both.

Even where the principle is questioned, practice tends to conform thereto. Reluctantly and grudgingly conceded as a favour, religious toleration becomes part of the habitual attitude of mind at first of the more enlightened and then of ordinary men. The principle of religious liberty or equality is still disputed by the Church of Rome.(84) The doctrines of Gregory VII. and Innocent III. are still asserted as of old. The syllabus of Pius IX. condemns the principle of equality as enshrining an error not less pernicious because common; it is the vain attempt to equalise creeds incomparable with each other and radically different; such liberty is no better than liberty to err. That is the position taken up in the Papal Syllabus. But in modern times all churches, the Roman Catholic not excepted, have yielded, often insensibly and reluctantly, to the pressure of facts. The ideal condition may be domination of the church; the practical problem in adverse circumstances is how to make the best compromise. Vatican decrees notwithstanding, the powers which issue them cannot, and do not, press their claims as they once did. Immutable in doctrine, they are found to be adaptive in practice. Churches which retract nothing alter their practice; they do not escape the influence of the age and the country, Ireland not excepted, in which they work. Everywhere the tendency is towards religious equality; I find abundant evidence of it even in the policy of the Church of Rome. Many books have been written describing the recent increase of the pretensions of Papal absolutism. There exists, so far as I am aware, no complete history of the policy pursued by the Church of Rome in countries in which it cannot give full effect to its doctrines respecting the true connection between Church and State. Such a history would reveal the existence and exercise of a singularly adaptive power; the growth of a policy suitable for and acceptable in non-Catholic countries and under democratic rule. In the wonderfully rich system of the Canon law are devices suitable for all circumstances. The Church may promulgate a decree in one country and not in another; the Tridentine decrees at the close of some four centuries are not yet made universally obligatory. It may for centuries leave it uncertain whether a bull specially assertive of the power of the Church, is in force in a particular country. The doctrine of the Canon law as to the efficacy of customs, and particularly local customs, permits of variations in accordance with the necessities of time and place. _Semper eadem_, but elastic and always opportunist—such is the character of the actual policy of the Church;(85) and there is no reason to think that it will be otherwise in Ireland under popular government.

The Roman Catholic Church has lately shown itself accommodating in Germany in regard to the marriage law. When Dr. Hogan of Maynooth College writes of “the peaceful character and disposition of the church and her reluctance to cause any disturbance of the social affairs of States or communities, even where the vast majority of the people are hostile to her religious claims”; when he adds “if it can be shown that a new law (the _Ne temere_ decree) inflicts any serious grievance on Protestants in this country, we are satisfied that due consideration will be given to any representations which may be made in this matter,” he is borne out by the recent policy of his Church, even if one cannot admit the accuracy of his further statement: “Such has always been the policy and practice of the Church in this matter.”—(_See_ _Irish Ecclesiastical Record_, February, 1911). The system never breaks, but it bends—bends to the exigencies of new situations, and particularly of democratic institutions, such as will exist in Ireland under Home Rule.

II. SECURITIES FOR RELIGIOUS LIBERTY

How to obtain and still more how to secure such liberty or equality is a problem in every modern State. The actual solutions, though many, fall into a few groups(86); I enumerate the chief. There are countries with State Churches in which have gradually been made concessions to other denominations. England is the typical example. Religious equality (so far as it exists) is the result of a long series of measures; the successive removal of disabilities of Dissenters and Roman Catholics; of measures relating to the tenure of public offices, and as to marriage, or oaths. No one Act states any governing principle. After the fashion of English legislation there has been movement from point to point, though, on the whole, always, or with few relapses, in modern times, in one direction. The securities for equality are found in a long series of individual statutes. Such, also, may be said to have been the history of religious equality in Hungary; as in so many countries there has been a gradual abandonment of the old maxim _cujus regio, ejus religio_.

I am concerned with the safeguards for equality within a State, and so I need say little or nothing of the Gallican system, which was intended to secure liberty against foreign intrusion. It was the liberty claimed by a church, which refused toleration to other denominations; the protests of a national Church part of Catholicism against the intrusion of the Papacy; it was the assertion of claims, which, to quote Saint Simon, “_blessent douloureusement la Cour de Rome_”; assertions of the doctrine that the French kings were in secular matters independent of the Pope, and that the Pope’s spiritual authority was limited by the laws of the church. In some countries, churches have secured a large measure of religious liberty or autonomy by means of Concordats with the civil Power. The typical case is that of the Catholic Church in France, where such a system may be said to have existed from the Concordat of Bologna, concluded between Francis I. and Leo X. in 1516, until recent times, with the exception of a short break at the Revolution; they may be said to have established an offensive and defensive alliance between Church and State.

I come to systems and devices chiefly used in modern times to secure religious liberty or equality. They are to be found in particular in countries possessing written constitutions. Either they lay down with more or less clearness principles of religious equality, or, dealing specifically with some pressing danger or difficulty, they provide a safeguard as to it. The first striking example of this kind of restriction is to be found in America. Dread of the existence of an established Church and of its ultimate effects upon republican institutions was shared by the framers of the United States Constitution and most of the framers of the States Constitutions. The provision which Jefferson caused to be inserted in the Virginia Bill of Rights and the article in the Massachusetts Declaration of Rights have been copied with variations by the States. Speaking generally, they provide for equality of treatment of religious denominations (Stimson, “Federal and State Constitutions,” p. 137). In the Constitution of the United States there is only one Article on the subject (Amendment, Article 1). “Congress shall make no law respecting the establishment(87) of religion or prohibiting the free exercise thereof.” In the United States true equality exists; all denominations are treated alike; the modern tendency towards equality has triumphed as the result partly of national habits and partly of constitutional restrictions.

I may here cite one or two examples of modern Constitutions which have laid down principles designed to secure religious equality.(88) Naturally Switzerland, with its population nearly equally divided into Catholics and Protestants, has been obliged to deal with this question, and so far as I am aware, it has done so with success. The principles of religious equality are embodied in the amended Constitution of 1874. I quote the chief provisions, because they are on the whole the most complete set of existing safeguards which I have found.

“_Article_ 49.—La liberté de conscience et de croyance est inviolable. Nul ne peut être constraint de faire partie d’une association religieuse, de suivre un enseignement religieux, d’accomplir un acte religieux, ni encourir des peines, de quelque nature quelles soient, pour cause d’opinion religieuse.

“L’exercice des droits civils ou politiques ne peut être restreint par des prescriptions ou des conditions de nature ecclésiastique ou religieuse, quelles qu’elles soient.

“Nul ne peut, pour cause d’opinion religieuse, s’affranchir de l’accomplissement d’un devoir civique.

“Nul n’est tenu de payer des impôts dont le produit est spécialement affecté aux frais proprement dits du culte d’un communauté religieuse à laquelle il n’appartient pas. L’exécution ultérieure de ce principe reste réservée à la legislation fédérale.

“_Article_ 50.—Le libre exercice des cultes est garanti dans les limites compatibles avec l’ordre public et les bonnes mœurs.

“_Article_ 54.—Le droit de mariage est placé sous la protection de la conféderation.

“Aucun empêchement au mariage ne peut être fondé sur des motifs confessionels.”

While declaring the principle of liberty of conscience, the Swiss Federal Constitution permits the cantons to give a privileged position to certain religious denominations; they may give them subsidies; they may invest them with certain prerogatives denied to other bodies less favoured. For example, in Fribourg, the Catholic and the Protestants are put on a footing of equality. Owing to the powers possessed by the separate cantons religious equality is not so complete as at first sight might seem. No serious difficulty appears to have been experienced in giving effect to the above provisions(89) which are not so complete as those found in the Home Rule Bill.

III. SAFEGUARDS IN COLONIES

I come to legislation which may seem of a kind more helpful and instructive than that of Continental countries. In the British Colonies there is no connection between the State and Church. The sole important exception is in Canada, where “the church can compel by law the payment of dues by Roman Catholics, and thus obtains great privilege from, while independent of, the State.”(90)

In framing the Constitution for the Canadian Dominions the religious question chiefly considered related to education; it was deemed necessary to guard against legislation which might impair existing rights. It was with an eye to the possibility of injustice being done to the denominational schools that special provisions were inserted in the North American Act accordingly (30 & 31 Vic., c. 3, 1867, Section 93):

“In and for each province the Legislative may exclusively make laws in relation to education, subject and according to the following provisions:

“(1) Nothing in any such Act shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the province at the union;

“(2) All the powers, privileges and duties at the union law conferred and imposed in Upper Canada on the separate schools and school trustees of the Queen’s Roman Catholic subjects shall be and the same are hereby extended to the dissentient schools of the Queen’s Protestant and Roman Catholic subjects in Quebec;

“(3) Where in any province a system of separate or dissentient schools exists by law at the union, or is thereafter established by the Legislature of the province, an appeal shall lie to the Governor-General in Council from any Act or decision of any provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen’s subjects in relation to education;

“(4) In case any such provincial law as from time to time seems to the Governor-General in Council requisite for the due execution of this section is not made, or in case any decision of the Governor-General in Council on any appeal under this section is not duly executed by the proper provincial authority in that behalf, then and in every such case, and as far only as the circumstances of each case require, the Parliament of Canada may make remedial laws for the due execution of the provisions of this section, and of any decision of the Governor-General in Council under this section.”(91)

Lately there have arisen religious difficulties to which this section has no application. By the Confederation Act (Section 91) the Dominion Parliament has exclusive jurisdiction as to marriage and divorce; jurisdiction which would appear to relate to capacity as to marriage. By Section 92 in each province the legislature may exclusively make laws as to “the solemnisation of marriage in the province,” which would appear to extend to all matters affecting the form and ceremony; a division of powers certain to produce sooner or later conflicts. Recently the _Ne temere_ decree was promulgated in Canada. The effect upon Roman Catholics has been considered in what is known as the Hebert case, the chief facts of which were these: Eugene Hebert and Emma Clouatre, both Roman Catholics, were married by a Protestant clergyman. The marriage was declared null and void by Archbishop Bruchesi. His decision was confirmed by Judge Laurendeau. But on appeal it was reversed by Judge Charbonneau, who held that any officer qualified by the State to marry persons could marry persons of any religious faith; that the _Ne temere_ decree had no legal validity and was binding only upon the consciences of Roman Catholics.

To quote a report of Judge Charbonneau’s judgment:

“I do not think that the Roman congregation ever intended the _Ne temere_ Decree to have a civil effect. It applies to Roman Catholics only. As for the Archbishop’s nullification, it has the same legal effect, but not more than the decree upon which it is based. It simply declares that no Catholic marriage ceremony was performed.”—(_Globe_, Toronto, February 23rd, 1912.)

So far as I know, there has been no appeal to the Judicial Committee, and I take it that Judge Charbonneau’s decision is binding in Canada.(92)

In the Constitution of the Australian Dominion is a provision similar to that quoted above from the Constitution of the United States. (Section 116):

“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the constitution.”

This enactment, so far as I am aware, has not been the subject of interpretation. Religious equality in Australia has virtually no history.

IV. SAFEGUARDS FOR IRELAND

I come to the position of things in Ireland. It may be well at the outset to make clear two points. The first is the present legal status of the Roman Catholic Church in that country. It is the same as that of any other voluntary association; its position theoretically no better and no worse. It possesses autonomy; it enjoys freedom as to doctrine and worship; its constitution is not interfered with; it regulates clerical education; it nominates its bishops; it administers its property in its own way.

It may thus enjoy immense power, especially if there be no true national system of primary education; it may well be doubted whether it possesses as much power in any other country as in Ireland. But like other voluntary religious associations the Catholic Church is not wholly withdrawn from the supervision and control of the Law Courts. A series of decisions of our highest courts with reference to Churches in Ireland and Scotland, and the colonies, have laid down certain principles equally applicable to the Roman Catholic Church and to all other religious bodies; in particular, these principles: that the State can exercise control over all religious bodies possessing property when it is proved to be contravening its rules to the injury of members. In the case of societies resting upon a consensual basis, Courts of Justice are bound when due complaint is made that a member of the society has been injured as to his rights in any matter of a mixed spiritual and temporal character, to inquire into the laws or rules of the Society.(93) Further the authority of a Church cannot be legally used for purposes inimical to the State or contrary to any statute. It may make rules for its own members; it cannot enforce them against others; they are invalid against them if contrary to the terms of any statute. It may, for example, declare that it will not regard a marriage with a deceased wife’s sister as valid; it may refuse to recognise as members those who so marry. But such rules will not legally invalidate a union which a statute has legalised. Probably this has not always been fully borne in mind by those who have denounced the promulgation of the decree _Ne temere_ in Ireland. Resolutions have been passed against it here and in Ireland. Many Nonconformist bodies have protested against the promulgation of the decree in British Dominions. The decree is, I think, objectionable for several reasons, and not least because it discourages mixed marriages, an effect which seems to me deplorable, for nothing is better calculated to put an end to uncharitableness and hatred than the frequency of such unions. But while such a decree may do harm, it will have no direct effect except as between the members of the Catholic Church _in foro conscientiæ_. The Irish marriage law, which with a few exceptions is the same as the English, is binding on all Catholics and Protestants. Lord Llandaff who speaks at once as a lawyer and as a Catholic, puts this point clearly:

“The invalidity was that of the sacramental and not of the legal marriage, and what the Church said to one of her subjects in such circumstances was: ‘You are married; you are a husband; but you may not receive the sacrament, and therefore you are in a state of sin, and in that sense your marriage in void, according to your conscience, though not according to the law.’ ”(94)

A movement of retrogression the promulgation of the decree may have been; but every religious body must be free to lay down rules as to its membership. To quote the letter of the Archbishop of Canterbury of November 8th, 1911, on this subject: “Any branch of the Church of Christ must clearly have the power of defining the conditions of membership.”(95) It is but fair to remember that the decree _Ne temere_ is part of a settled policy. The Church of Rome has often shown its disapproval of mixed marriages which Benedict XIV. declared “abominable.”(96) It is but fair also to take note of the plea that this decree is the latest attempt to secure uniformity in regard to marriage law; attempts which have been pursued since the _Tametsi_ decrees of the Council of Trent. Before the reform in the marriage law then effected there was much confusion and looseness. All that was required for a valid marriage was that the contracting parties should express to each other their mutual consent by words _de præsenti_; a state of things which favoured fraud and led to uncertainty. The Tridentine change must appear to most lawyers to have been a great reform; marriage was to be solemnised in the presence of the parish priest of one of the parties and of two witnesses. But this ecclesiastical law is not even now in force in several countries. It was promulgated in most Catholic countries; it was never promulgated in purely Protestant countries, or in all countries with a mixed population. It applied to marriages between two Catholics but not necessarily to mixed or to Protestant marriages. It might be in force in one part of a country and not in another. Thus the _Tametsi_ decree was in force in the greater part of the province of Armagh since the time of Elizabeth. Not until 1827 was it promulgated in the province of Dublin. Now we are told that it was to secure still further uniformity that the decree _Ne temere_ was published. It requires all persons baptized in the Catholic Church, and those who have been converted to it from heresy or schism, to marry in the presence of the parish priest or ordinary of the place in which the marriage is to be celebrated, otherwise the Church will regard it as null. If neither of the contracting parties is a Catholic the Church recognises the marriage as valid wherever it is celebrated.(97) How far other motives may have operated I cannot say; it is only fair to bear in mind that the decree is defended as a fresh effort to introduce certainty and definiteness as to a fundamental institution.

I may here refer to the fears expressed as to the effects of the decree, _Motu Proprio, Quantavis Diligentia_ of October 9th, 1911; a decree which, it is said, might conceivably place every sincere Roman Catholic in antagonism with his duties to the State. The principle of that decree seems to me highly objectionable; it is an impossible attempt to revive the past; a form of the greatest of all heresies, disbelief in spiritual forces unsupported by privilege. But here, too, it is well to understand the case made by defenders of that decree, and before deploring its effects in Ireland to be certain that, in the view of the Catholic Church, it is in force there. When the Church was all powerful, there existed a _privilegium fori_ according to which no layman could bring a cleric before a lay tribunal; a privilege based upon the words of St. Paul to the Corinthians who resorted to the Pagan Courts. By various Concordats the Papacy had agreed to abrogate this right wholly or partly. In some countries the privilege had become extinct. In October 1869, was issued the bull of Pius IX., _Apostolicæ Sedis Moderationi convenit_ which appeared to revive the _privilegium fori_. This, however, is denied by Roman Catholic theologians; according to them where no such Concordat exists, a custom has grown up that breaches of ecclesiastical immunity are to be overlooked; in any case it operates only as to canonical offences.(98) Whether that interpretation is correct or not, I need not enquire. But obviously such a rule has no legal efficacy; and it would be a strong measure to deny the Church the right to give to its adherents such monitions—for its commands are no more—as it thinks fit.

V. FUTURE SAFEGUARDS

In the Home Rule Bills of 1886 and 1893 were elaborate provisions designed to secure equality of treatment. Thus the Irish Legislature was prohibited from making any law.

Respecting the establishment or endowment of religion, or prohibiting the free exercise thereof; imposing any disability or conferring any privilege on account of religious belief; abrogating or derogating from the right to establish any place of denominational education or any denominational institution or charity; prejudicially affecting the right of any child to attend a school receiving public money without attending the religious instruction at that school; or impairing without either the leave of Her Majesty in Council first obtained on an address presented by the legislative body of Ireland, or the consent of the Corporation interested, the rights, property or privileges of any existing corporation, incorporated by Royal Charter or local or general Act of Parliament.

(Summary of Clause 4 in Bills of 1886 and 1893.)

Two comments may be made upon these provisions. They were so minute as to be at once a source of frequent irritation and certain to give rise to frequent conflicts with the Irish Legislature and as to be calculated to encourage litigation. Further, they did not specifically deal with the subject of marriage, an omission which, in view of the decree _Ne temere_, seems objectionable. They are replaced by a general clause to the following effect:

“In the exercise of their power to make laws under this Act the Irish Parliament shall not make a law so as either directly or indirectly to establish or endow any religion, or prohibit the free exercise thereof, or give a preference, privilege or advantage, or impose any disability or disadvantage, on account of religious belief or religious or ecclesiastical status, or make any religious belief or religious ceremony a condition of the validity of any marriage.”

How far these provisions will be eluded probably no one can say with certainty. It is difficult enough to ascertain the present situation in Ireland without attempting to predict with confidence the future. Statements diametrically opposite are vouched for by persons of equal experience and opportunity of knowledge. “Facts” in that country are so elusive. What is true in the south is fiction in the north, and _vice versa_. It may be admitted that machinery designed to protect minorities counts for less than the spirit actuating those who work it. The greatest security no doubt for religious liberty would be the presence of a general spirit of mutual forbearance; militant bigotry could not permanently exist alongside the prevalence of the spirit of charity; and Ulster, as well as other parts of Ireland, might make its contribution thereto. Some new forces there are working for toleration, I believe that they are increasing. Among them are these: the action of democratic institutions in which persons of all creeds take part; the prosperity of the country bringing in its train to all parts of the country new ideas and hopes and interests; the performance by Catholics and Protestants of common civic duties; the constant stream, strongly charged with secular elements, flowing between Ireland and the United States; the silent influence of literature and newspapers permeated by a spirit which no priesthood can exorcise; the frequency of mixed marriages as proved by the action of the Catholic Church against them; the existence of urgent political and social questions as to which men are not divided according to their religious beliefs. These are so many manifestations of the modern spirit, from the operation of which Ireland no more than any other part of the western world can escape. They may prove stronger than legal safeguards.

I shall not attempt to measure the relative strength of these influences, but I should be inclined to rate highest the ultimate effect of democracy, and of a Parliament in which must be a Protestant minority powerful by their talents, their wealth and their energy. Democracy has everywhere its own problems, as engrossing for it as any in which the Church is interested. It will solve them in its own way, which may not be always the Church’s. “Nothing,” says Mr. Bryce with reference to America, “excites more general disapproval than any attempt by an ecclesiastical organisation to interfere in politics.” Under democratic institutions there may be the same results in Ireland. The remodelling of primary education will probably be one of the first struggles in which an Irish Parliament will be engaged. The fight will be in the open, which is a clear gain. The Church may for a time succeed in retaining its present hold over the schools. It is quite as likely that it will lose ground, and that the first Irish Minister of Education will be the first to incur ecclesiastical censure. There is much evidence of the growth of a widespread toleration extending it may be hoped, to the northeast corner of Ulster:

“Since the Local Government Act of 1898,” writes Mr. Annan Bryce, “it has not been found that the priest interferes unless in the rare cases where there is a question of personal morality, and then not always with success.”

The opinions of three Lord-Lieutenants upon this point cannot be ignored.

Lord Aberdeen:

“After years of continuous residence in Ireland, watching affairs and meeting people of every class and creed, I am profoundly impressed with the baselessness of alarm about the consequences of Home Rule.

“On Home Rule for Ireland, I repeat and emphasise the opinion of my former telegrams, especially regarding apprehension of religious intolerance.”

The late Lord Spencer:

“I have had some experience of Ireland, and yet I do not know any specific instance where there has been the exercise of religious intolerance on the part of the Roman Catholics against their Protestant countrymen.”

The Marquis of Crewe:

“In 1886 and 1893 the animosity between classes, largely agrarian in its origin, was far stronger than at present, and the line of cleavage roughly followed that of religious difference. But even in those days, as I well remember, it was evident that the possibilities of intolerance in a self-governed Ireland were deliberately and grossly exaggerated, with a party motive. Now, when the various classes know each other better, and there is less occasion for friction, the attempt to excite religious discord will utterly fail, as I firmly believe.”

The safeguards provided by the measure deal specifically with the subjects as to which fears of religious inequality exist: establishment and endowment, education and marriage; as compared with them, the provisions in the Canadian and Australian Acts are very imperfect. They guard, in explicit terms, against the dangers to religious liberty and equality in a way in which probably no other Constitution does.

A necessary supplement to any Legislature with limited jurisdiction is a Court of Appeal. Under the proposed constitution, the Irish Courts will be free to determine the constitutional character of any measures passed by the Irish Parliament; and from their decisions an appeal will lie to the Judicial Committee of the Privy Council, which will decide questions similar to those determined by it with reference to the Canadian and Australian constitutions, and by the Supreme Court of the United States reviewing the constitutional character of State legislation. It may be surmised that the Court will be faithful to the principles which it has laid down in dealing with the powers of the Parliaments of the Dominions. It has not hesitated to interfere in Canada with ecclesiastical sentences or censure which it believed invalid (see _e.g._, _Brown_ v. _Curé de Montreal_). It will, we may assume, do likewise in Ireland.

To conclude: He who believes in political freedom will believe also that religious oppression cannot long co-exist with it. Never, so far as I know, has ecclesiastical tyranny been enduring under democratic institutions; and I see no reason why the result should be different in the new Ireland which the Land Acts and the Local Government Act have created. Full and free political life is the best, perhaps the only, solvent of intolerance.

V.—Financial Relations(99) BY LORD WELBY

“The Channel forbids Union, the Ocean forbids separation. I demand the continued severance of the Parliament with a view to the continued everlasting unity of the Empire.”

Terse words in which a great statesman summed up the relation of Ireland to England. The Home Rule Bill will give the sanction of law to Grattan’s aphorism. It bids Ireland manage her own affairs, freeing her in her own house from official bondage to an unsympathetic consort. If the Act of Enfranchisement is drawn in a trustful and large spirit, it will, we may feel assured, end the feud of centuries, and create unity where the Act of Union has created enmity.

The policy of Home Rule is wise in itself, and worthy the statesmanship of a nation always bold in the hour of need, and, as experience of its working is gained, it will commend itself more and more to the commonsense of a practical people, but the immediate success of the first Home Rule Act will depend greatly on the skill and wisdom with which the details of a complicated measure are devised, facing fairly the financial evils consequent on Tory obstinacy, and avoiding, in reasonable degree, offence to popular prejudice and existing interests.

The provisions which will adjust the financial relations between the two nations are not among the least difficult of those details, and Parliament must solve the puzzling problem without delay. It must begin by temporarily giving local government in Ireland a fair start at the cost of the British tax-payer.

Let us, in the first place, clear the ground from some doubtful arguments which, used as premises, will probably lead the unwary to false conclusions. A plea is often put forward that England is a rich country and Ireland a poor country, and it is argued that identical taxation therefore wrongs Ireland. But England is not a rich country, in the broad sense. It is a country in which there is vast accumulation of wealth, but in which, also, there is a great mass of poverty—poverty probably exceeding the poverty of Ireland, and, therefore, identical taxation if it wrongs the poor of Ireland, wrongs still more the poor of England. Critics arguing from this false premise contend that the extension of the Income-tax to Ireland was a wrong, that is to say, the wealthy man living in Ireland, where living is relatively cheap, ought not to contribute to the national expenditure on the same principle as the wealthy man living in England, where living is relatively dear; or, to put the argument in another form, it is sound finance to take Income-tax from a man in England, struggling on a few hundreds a year. It is unsound finance to take Income-tax from, say, the profits earned in Ireland by the Guinness firm. Nationalists, misled by the plea of Ireland’s poverty, have relied on this argument, and Conservatives also have used it chiefly to discredit Mr. Gladstone, who extended the Income-tax to Ireland; but the argument is false in itself, and cannot be made the basis of sound financial legislation. As a matter of fact, taxes on articles of general consumption, on the necessaries of life, fall heavily on the poor, and the argument of over-taxation applies in great degree to the poor in the great towns of England, and to the poor in Ireland. If, then, the poor of Ireland are to be relieved, the poor of England must be relieved also, and identical taxation would still be the result. The statesman must find a truer gauge by which to measure the relative capacity of the two countries to bear taxation.

Again, during the long discussion on financial relations, much time has been wasted in criticising that provision of the Act of Union, which fixed the respective contributions of Great Britain and Ireland to the common purposes of the Empire at the proportion of fifteen and two. That proportion, in fact, was not exacted, and it may be put aside as theoretical.

A summary of recent financial history in Ireland will enable the reader to understand the circumstances in which Parliament takes up the problem of Home Rule. Towards the close of the eighteenth century the condition of Ireland was bad. England, selfish to the last degree in her commercial policy, treated Ireland as little better than a conquered country, and ruined her commercially and industrially by restrictions on her trade. Protestants and Catholics joined in patriotic resistance, and wrung at last freedom of trade in 1779, and an independent Parliament in 1782. Thenceforward for a time the financial administration of Ireland was regulated in accord with Irish interest. The country prospered financially under the new order. Large sums were spent in promoting agriculture and manufactures, and in grants for public works, and the country’s finance was restored to order. During the years of peace, 1782 to 1793, Ireland contributed on the average £584,000 to military—that is to the common expenses of the Empire. The military expenditure of Great Britain in the peace years, 1786 to 1792, averaged £5,142,000. Ireland was then a most important factor in the State, for the population was to that of England in the proportion of nearly one to two.

Pitt desired to establish reciprocity between the two countries and at the same time to obtain from Ireland a contribution on a fixed principle for the Navy, wise proposals worthy of the Minister; but the two Parliaments could not agree. That of England bowed to the pernicious claims of ascendancy and to the supposed interests of the commercial classes. Pitt was defeated. The French Revolution and a war lasting nearly twenty-two years followed, and in the midst of the war broke out the Rebellion of 1798. If the charge of the Irish debt at the outbreak of the war and the average civil expenditure of Ireland between 1793 and the Union is deducted from the average income of Ireland, the surplus constituted Ireland’s real contribution to the common expenditure and it averaged about £900,000 a year. The year 1800 marks a great change of policy. Pitt put an end to the independent Parliament of Ireland and passed the Act of Union, bad in itself, and worse by the means which made it law. It sought to make the two countries one for all purposes of revenue, and that object was kept steadily in view.

From 1800 to 1817 the United Parliament imposed taxes on both England and Ireland, but the Irish Treasury collected the Irish Revenue, defrayed the local expenditure of Ireland as sanctioned by the United Parliament and remitted the surplus in aid of the war expenditure. The greater part of the burthen fell upon Great Britain, but Ireland’s share drained greatly her resources. Her revenue which had produced £1,837,000 in 1793, reached £7,305,000 in 1817, an increase of 300 per cent., while her contributions during the years of war to the common expenditure calculated on the principle adopted in the preceding paragraph amounted to about £3,000,000. During the same period Great Britain contributed to the war out of revenue about £43,000,000 on the annual average.

In 1817 the Irish Treasury was abolished, the exchequers of the two countries were united, the British and Irish Revenues were paid alike into the one exchequer. The Irish local expenditure was defrayed from that exchequer under the check of the English Treasury, and the United Parliament imposed and repealed Irish taxes. From 1817 for many years Ireland fared badly. Her representatives in Parliament served her ill. Tories, Whigs, and independent members failed alike in making England understand Irish needs, and the British Parliament neglected Irish interests. The years between 1817 and 1842 mark the first period of Irish financial history dating from the war. It was a period of stagnation. Both countries required time to recover from the calamity incident to war; but the recovery would have been more rapid, even under heavy taxation, had not progress been retarded by the unwise legislation of protection, which fettered enterprise and restricted commerce. This evil, however, injured Great Britain more than Ireland. In 1824 the separate Customs Departments of the two countries were abolished. The trade between Great Britain and Ireland was treated as coasting, and from that time no official record has been kept of goods exported from and imported into both countries.

In 1817 the taxes levied in England were similar to, but not identical with, those levied in Great Britain. Ireland was exempt from many taxes levied here, and in some cases, such as spirits, she paid a lower rate of duty. A period of profound peace enabled the government to remit taxation; but those remissions were chiefly made in deference to British interests, and in making them Irish interests were little considered. The truth of this statement is illustrated by the Revenue Returns. The estimated “_true_”(100) Revenue of Great Britain fell from £51,500,000 in 1820 to £46,250,000 in 1840, although population, and with it consumption, had increased. The “_true_” Revenue of Ireland in the same period rose from £5,250,000 to £5,500,000. But it must be added that many of the taxes remitted were taxes _not levied in Ireland_. In respect to them Great Britain had to a certain extent a claim to prior consideration.

The second period of financial history extended from 1842 to 1869, a period of rapid recovery and of great prosperity in Great Britain, but not so in Ireland. Famine fell upon her in 1846, and thinned her population, followed by emigration, which showed how poverty pressed upon the poor, while the Fenian movement of 1866 showed how widespread was the spirit of unrest. A highly cultivated Liberal statesman was Lord-Lieutenant during several years of the period. An interesting diary which he kept leaves the impression that the leading statesmen of the day were not reading the signs of the times, or gauging the gravity of a growing movement. This was hardly the period to choose for increasing the taxation of Ireland, nevertheless in 1853 Mr. Gladstone extended the Income-tax to Ireland, counterbalancing it in part by the remission of loans granted to Ireland during the famine—a very insufficient compensation. But the Income-tax did not touch the poor, and as I have pointed out there was no reason why the wealthy and comparatively well-to-do classes in Ireland should not contribute to the public expenditure like their brethren in Great Britain. This plea, however, does not extend to the spirit duties which during 1853 Mr. Gladstone and Mr. Disraeli raised to the level of the spirit duties in Great Britain. That tax undoubtedly was paid in great measure by the poorer classes.

In one direction there was improvement. In 1842 Sir Robert Peel acceded to power, and inaugurated at once the policy of liberating trade which has conferred such benefits on Great Britain, and in a minor degree on Ireland. The era of prosperity which followed the adoption of the Free Trade policy increased greatly the consuming power of the people, and enabled Mr. Gladstone to largely reduce duties on the principal articles of food consumed by the poorer classes. For example, he and his successors reduced the tea duties from 2s. 2d. to 6d. and abolished the sugar duties. This was undoubtedly the true method of remedying the evil which underlies the plea that identical taxation wronged Ireland. I have shown that that evil was caused not by identical taxation, but by heavy taxes on food, which oppressed alike the poor of Ireland, and the more numerous poor of Great Britain. The policy adopted met the local grievance, by modifying if not removing the general grievance, and this remedy of the general grievance was only rendered possible by the growing prosperity of Great Britain. The poor of Ireland had therefore their full share of the benefit caused by the prosperity of Great Britain. The historian must give full weight to this consideration when he criticises the increase of the Irish spirit duty. There can be little doubt as to the verdict of history, if the choice lies between cheap whisky and dear food on the one side, and cheap food and dear whisky on the other. Between 1860 and 1900 the Customs and Excise duties which were reduced exceeded the like duties increased by some £22,000,000 a year, and Ireland had her share in the reduction.

In 1864 a Committee of the House of Commons inquired into the taxation of Ireland, but it led to no useful result. In other directions the monotony of neglect continued. The Government and Parliament paid little or no attention to Irish needs. Ireland was the Cinderella of the three kingdoms, and fared accordingly.

The third period ranged from 1869 to 1896. It might be termed the Home Rule period, for it includes the two Home Rule Bills of Mr. Gladstone, but it includes also other great measures relating to Ireland. Indeed, during the whole period of seventeen years Ireland engrossed, to a great degree, the attention of Parliament. The change was very remarkable. Up to 1869 England was indifferent to, or bored by, Ireland. She was stupid. She did not trouble herself to learn Irish wants, and she could not understand the spirit of Irish nationality. The Devon Commission, a Conservative Commission, appointed by a Conservative Minister, Sir Robert Peel, reported that 2,500,000 people in Ireland were on the verge of starvation, and gave warning of the evils, the perils, inherent in the Irish land system. England took no notice of either warning. The famine answered the first in cruel fashion. The second was pigeon-holed. Wise in her own Home administration, wise of late years in her Colonial administration, she knew no remedy for Ireland but force, and force is no remedy. She accepted, almost as matters of ordinary administration, Coercion Acts which marked with a black stigma most years of the century, unable to see that that fact alone was a disgrace to her statesmen, her Parliament, and her people.

Early in the Home Rule days I heard a great English statesman say: “The first duty of a Government is to bring the people into agreement with the law; till it does that it fails in its first duty, and England has hitherto failed to bring Ireland into agreement with the law”—a truth well and forcibly expressed.

In 1869 a man of great power and eloquence, wide views, and firm resolve became Prime Minister. He realised the habitual injustice of England to Ireland, and he saw the perils impending. By his strength of will he forced an unwilling country and an indifferent Parliament to devote its serious attention to Irish questions. He disestablished the Church. He was defeated on Irish education, but he laid the foundation of a land settlement by conferring on the tenants, in spite of strenuous opposition from the Tories, the rights of fair rents, fixity of tenure, and free sale, and his measures were marked by an earnest desire to deal liberally with Ireland to the utmost extent consistent with equity to the British tax-payer. Finally, when Ireland sent to Westminster more than four-fifths of her representatives pledged to Home Rule, he accepted this expression of the national will, and became a convert to the principle of Home Rule. I deal later in detail with his two Home Rule Bills of 1886 and 1893, which were defeated, and I need only here deal with finance of the third period, apart from the provision of the Home Rule Bills.

Before Mr. Gladstone was converted to Home Rule, Home Rule finance attracted little attention. That eminent statistician, Sir Robert Giffen, made, indeed, in 1885, a singular suggestion to the _Statist_ newspaper, viz., that the Irish landlords should be bought out at the cost of the Imperial Exchequer, and that the rent charge, which would then be payable by the purchasing tenant, should be given to an Irish authority, in lieu of payments from the Exchequer, for the internal administration of Ireland.

Again, Sir Robert wrote an article in the _Nineteenth Century Review_, March, 1886, a few weeks before the introduction of the first Home Rule Bill, to show how unimportant, from a financial point of view, Ireland had become to us, and to suggest the expediency of devising some form of Government under which the special needs and circumstances of that country would receive more and better attention than they did under the existing arrangements. His figures might be, in some instances, doubtful, perhaps even incorrect, but it can hardly be denied that he made good his point. Sir Robert was, we see, greatly in advance, not only of the ordinary Briton, but of financial experts generally, both as regards the land question and also that of the Government of Ireland.

Perhaps the most able thinker and writer on economic questions in the second half of the nineteenth century was the late Mr. Bagehot, and, in proof of the general indifference to Irish questions in England, it is notable that his collected works, ranging over a wide field in politics and literature, contain no paper on the government or condition of Ireland. Yet he had witnessed O’Connell, the famine, the depopulation of Ireland, the Committee on Irish Taxation, and the Fenian outbreak in 1866.

In 1890 Mr. Goschen, as Chancellor of the Exchequer, in the Conservative Government, moved for a Committee of the House of Commons to consider the financial relations of England, Scotland, and Ireland. The Committee was instructed to inquire into the equity of their financial relations in regard to the resources and population of the three kingdoms. It had hitherto been much discussed whether Ireland could be regarded as a separate financial entity from the rest of the kingdom. The Irish Taxation Committee of 1864, of which Sir Stafford Northcote and Mr. Lowe were prominent members, had refused to admit the principle of such separate entity, and that had been generally the Conservative contention. But, in the reference to the Committee of 1890, the Conservative Government accepted the principle. The Home Rule Bills of 1886 and 1893 were, of course, based upon it. Thus, 1890 marks an important advance in the discussion, and thenceforward, by consent of both parties, the separate “entity” was established.

After the rejection of the second Home Rule Bill the Liberal Government appointed a Royal Commission to inquire into the financial relations of the two countries and their relative taxable capacity. The Report of this Commission deserves attention, because it was exhaustive in its inquiries, because the information it laid before the public has since that time been generally used in discussion, and because many of the recommendations made were far-reaching and suggestive. There was, as might be expected, great difference of opinion. The Conservative members and the Nationalist members made their several Reports. Attention, however, may be directed to one of the Reports, because it received the concurrence of the Nationalist members and of three English members—one of whom was a very high, if not the highest, financial authority in the City of London, the two others retired Civil Servants who had been at the head of two great Departments of the State. Their conclusions were as follows:

“(1) That Great Britain and Ireland must, for the purpose of this inquiry, be considered as separate entities.

“(2) That the Act of Union imposed upon Ireland a burthen which, as events showed, she was unable to bear.

“(3) That the increase of taxation laid upon Ireland between 1853 and 1860 was not justified by the then existing circumstances.

“(4) That identity of rates of taxation does not necessarily involve equality of burthen.

“(5) That whilst the actual tax revenue of Ireland is about one-eleventh of that of Great Britain, the relative taxable capacity of Ireland is very much smaller, and is not estimated by any of us as exceeding one-twentieth.”

The three English members above mentioned presented a separate Report, recording at length their views on the questions referred to the Commission. I call attention to it, because reference is frequently made to it in the Report of Sir Henry Primrose’s Committee, recently appointed to advise the Government upon the new Home Rule Bill.

They pointed out that the whole taxation of Ireland increased from £2,900,000 in 1820, to over £6,600,000 in 1893, and that by far the larger part of this increase was derived from taxes on articles of consumption which fell most heavily on the poor; that the increase resulted only temporarily in an increase in the contribution to common expenditure which rose from £3,691,000 in 1820 to £5,396,000 in 1860, to fall to £1,966,000 in 1893, for the greater part of the increase had been absorbed in increase of Irish civil expenditure. This local expenditure amounted in Ireland to 19s. 7d. per head, while in Great Britain it only amounted to 11s. 9d. If the cost of administering Ireland had been reduced to the like cost in Great Britain, a saving of nearly £2,000,000 would have been realised.

They thought that the expenditure in Ireland was conducted on a scale totally unsuitable to that country, that the industrial taxation, borne in Ireland mainly by the consumers of dutiable articles, was heavier than the masses of the Irish people ought to bear, that Irish taxation ought not to exceed one twentieth part of taxation of the United Kingdom, but they doubted whether Great Britain would consent to alter her whole system of taxation to meet the evil to Ireland. They objected totally to seeking a remedy in increased grants and doles, and they suggested that Ireland should levy her own taxes and provide for her own expenditure.

Lastly, in answer to the objection that Ireland might impose new Customs duties, they held that to be unlikely, since Ireland rather than Great Britain would suffer by such a policy, because the market of Great Britain is of greater importance to Ireland than that of Ireland to Great Britain.

The Royal Commission reported in 1896. The question of the financial relations remained then in practical abeyance till 1907. In that year the Government of Sir H. Campbell-Bannerman proposed to establish an Irish Council under the Lord-Lieutenant entrusted with the control and direction of certain administrative Departments. A sum was to be charged on the Consolidated Fund to enable the Council to meet the expenditure of the transferred Departments. This sum was fixed for the first five years at £4,164,000. This was simply a measure to decentralise administration, and to admit Irishmen to a share in Irish administration. It did not, however, obtain support in Ireland, and in consequence it was not pressed.

We come now to the last stages in the story of Irish finance. The Government of Mr. Asquith decided to introduce the Third Home Rule Bill in the session of 1912, and in 1911 they appointed a Departmental Committee under Sir Henry Primrose to advise them. The able report of that Committee has been laid before Parliament, and it brings our information on the financial relations up to the latest date:

They state the “true” Irish Revenue in 1895-6 to have been £8,034,000.

They estimate “true” Revenue 1910-11 at 10,300,000.

Increase £2,266,000.

The “true” local expenditure in Ireland, 1895-6, £5,938,000.

The “true” local expenditure 1910-11, 11,344,000.

£5,406,000.

Thus whereas Ireland in 1895-6 made a contribution of £2,066,000 to Imperial Expenditure, in 1910-11, not only did she make no contribution to Imperial Expenditure, but the British taxpayer was called on to contribute more than £1,000,000 towards Irish local expenditure. But Irish local expenditure is increasing under the heads of old-age pensions, land purchase, and expenses of the Government which will be established in Ireland under Home Rule. The Committee in consequence estimate:

The Irish local expenditure in 1913-14 at £12,400,000.

The Irish Revenue at 10,350,000.

Deficit £2,050,000.

for which provision must be made in the forthcoming measure.

In order to meet the existing deficit, the Committee suggest that the British Exchequer should take over liability for all old-age pensions which had been actually granted at the date when the Home Rule Bill comes into operation. They estimate that liability at £3,000,000 a year, gradually, of course, diminishing. If necessary, the liability in whole or part of the Irish Constabulary Pensions (£400,000) might also be transferred to the British Exchequer. They advise that the obligation of Ireland to contribute to the Imperial expenditure should be affirmed, but that a settlement of the amount of the contribution should remain in abeyance; and lastly, that the guarantee of the Imperial Exchequer in respect of the Land Stock should remain, but that means should be taken to secure regular payment of the sum due from Ireland to the National Debt Commissioners.

I shall contrast later the recommendations of the Committee with the actual provisions of the Home Rule Bill.

I will now compare the finance of the three Home Rule Bills which have been submitted to Parliament, those of 1886, 1893 and 1912.

THE BILL OF 1886

Mr. Gladstone made it an essential condition of his plan that there should be an equitable distribution of Imperial charges and that Ireland should pay her fair proportion to the common expenses of the Empire. In 1885 that contribution was represented by the surplus of Irish Revenue remaining after deduction of the expenditure in Ireland on Irish services. He calculated in 1886 that the surplus above described provided a contribution by Ireland to Imperial expenditure equivalent to £2 where Great Britain contributed £23. This proportion contrasts with Mr. Pitt’s arrangement in 1800 that Ireland should pay £2 where Great Britain paid £15. Mr. Gladstone proposed in future that where Great Britain paid £28, Ireland should pay £2, a concession of moment to Ireland, and he supported it on the following ground: he measured the taxable capacity of the two countries by (1) the Income-tax returns (2) the death duty returns, and (3) the valuation of property. Income-tax gave a proportion of £38 to £2, but he held Income-tax an imperfect test, because it was paid in Ireland on a lower valuation than in Great Britain and because many Irishmen receive dividends on securities which pay Income-tax in England. He thought that £34 to £2 would be nearer the true proportion. He held the death duties to be a better test and they showed a proportion of £26 to £2, while the valuation, lower in Ireland than in Great Britain, gave a proportion of £24 to £2. Arguing from these premises, he held that his proposed contribution of £2 to £28 was an equitable and even a generous arrangement, justified by the necessity of starting the Irish Legislative body with a balance to its credit.

A table is given showing how the contribution was appropriated.

The amount to be contributed by Ireland to Imperial expenditure being thus ascertained, the more difficult part of the problem remained, viz., how to provide the fund out of which the contribution would be payable and how to secure its payment. The plan which commended itself to him as insuring the fiscal unity of the three kingdoms, and giving absolute security to the British Exchequer, left the imposition and collection of Customs and Excise duties with the Imperial Government, and under Imperial control. This plan was to be carried into effect in the following manner. The Customs and Excise were to be levied under Acts of the Imperial Parliament, and were not to be subject to the control of the Irish Legislature. The Irish Legislature with that exception could impose taxes on Ireland. Under the Land Purchase Bill, which was to be introduced concurrently with the Home Rule Bill, a Receiver-General was to be appointed, into whose hands the Customs and Excise Duties and other taxes were to be paid, including taxes imposed by the Irish Parliament. The Imperial Receiver-General, having thus in hand all Imperial and local taxes levied in Ireland, would in the first instance pay out of them the Imperial charges. Apart from the Imperial charges there were other charges, strictly Irish, such as Judges’ salaries, pensions, the salaries of existing civil servants, for the security of which the Bill provided. The Bill bound the Irish Parliament to impose taxes sufficient to meet such charges, and ordered them to be paid by the Receiver-General. The Receiver-General was to keep an Imperial and an Irish account. The Irish charges would of course be paid from the latter account. He was to carry the Customs and Excise Duties in the first instance to the Imperial account, and the local taxes to the Irish account, transferring to the Irish account the surplus of Custom and Excise, after payment of the Imperial contribution. He was subsequently to pay the balance remaining on the Irish account to the Irish Exchequer.

An Imperial Court of Exchequer was established in Ireland to watch over the observance of the Act, and all Revenue acts were to be tried and defaults punished in that Court. The Bill further enabled the Irish Parliament to take over the Irish Post Office, if it should so desire, though it was Mr. Gladstone’s opinion that it would be for the convenience of both countries if the Post Office were to remain under the control of the Postmaster-General.

The Imperial contribution payable by Ireland was not to be increased for thirty years, though it might be reduced if the Imperial charge for Army, Navy and Imperial Civil expenditure for any year should be less than fifteen times the contribution paid by Ireland. In that case one-fifteenth of the diminution could be deducted from the Imperial contribution.

Existing Civil Servants were retained in their offices at existing salaries. If the Irish Government were to desire their retirement, they would be retired on pensions. On the other hand, if at the end of two years the officers themselves desired to retire, they could do so, receiving pensions on the usual abolition of office scale.

Supposing the Home Rule Bill to have become law the account of Irish finance would have stood thus:

RECEIPTS.

Imperial taxes: Customs £1,880,000 Excise £4,300,000 Total £6,180,000

Local taxes: Stamps £600,000 Income-tax 6d. £550,000 Total £1,150,000

Non-tax revenue: Post Office £1,020,000

Total: £8,350,000

EXPENDITURE. Contributions to Imperial expenditure on basis of one-fifteenth of Imperial expenditure: Debt charges £1,466,000 Army and Navy £1,666,000 Civil charges £110,000 Total £3,242,000

Sinking Fund on one-fifteenth of capital of debt £360,000 Constabulary(101) £1,000,000 Local Irish Civil charges £2,510,000 Collection of revenue: Imperial taxes £170,000 Local taxes £60,000 Non-tax revenue £604,000 Total £834,000 Surplus £404,000 Total £8,350,000

When it is said that in 1885-1886 Ireland was paying to Imperial expenditure in the proportion of £2 to £23, that proportion was calculated on the whole gross Imperial expenditure, whereas Mr. Gladstone calculated the proportion of £2 to £28 on a military expenditure materially cut down, for he excluded from it charges which ought strictly to be called war charges, a modification very favourable to Ireland and reducing considerably her true contribution.

He made another concession of great importance. He proposed to credit Ireland with the entire receipts levied in Ireland, but that was not a true test of the amount of taxation paid by Ireland. There are goods which pay duty in Great Britain, but which are consumed in Ireland, so conversely there are goods which pay duty in Ireland but are consumed in Great Britain. For instance, spirits, porter, and tobacco are largely exported duty paid from Ireland and are consumed in Great Britain, and Mr. Gladstone calculated that the excess of duties so paid in Ireland on goods consumed in Great Britain amounted to no less a sum than, £1,400,000 a year. That is of course British Revenue, and in striking a true account between the two countries it should be credited to Great Britain, not to Ireland. The Home Rule Bill, however, gave it to Ireland, a direct grant of £1,400,000(102) from Great Britain to Ireland, and if that amount be subtracted from the contribution of £2 to £28, it leaves the proportion £2 to £52 instead of £2 to £23.

If we strike a balance between the contributions to be paid by Ireland to Great Britain under the Home Rule Bill, and the grants to be paid to Ireland, we shall arrive at the following result:

Contribution from Ireland to Great Britain £3,602,000 Grants from Great Britain to Ireland: Duties paid in Ireland on goods consumed in Great Britain £1,400,000 Grant toward the Constabulary £500,000 Total: £1,900,000

Net contribution from Ireland to Imperial purposes (or nearly in the proportion of 2 to 60) £1,702,000

If the Imperial contribution _actually_ paid by Ireland in 1885 be equated on like principle, the proportion stated above at 2 to 23 will be similarly reduced.

The Bill was defeated in the House of Commons, and therefore its provisions did not undergo the test of scrutiny in Committee.

The provisions of this Bill illustrate the difficulties which attend the financial severance of the Irish from the British Government. High authorities thought at the time that Mr. Gladstone, in 1886, should have proceeded in the first instance by way of Resolutions establishing the principles upon which the Bill would be subsequently founded, and there is much to be said for that view. The main principles of the measure would have been established in the first instance after free and full discussion, and the details would have been adapted later to the principles then laid down. Mr. Gladstone himself, in his reply upon the Second Reading (June 7th, 1886,) indicated a course somewhat similar in its result. He said:

“If an interval is granted us, and the circumstances of the present session require the withdrawal of the Bill, and it is to be re-introduced with amendment at an early date in the autumn, it is our duty to amend the Bill with every real amendment and improvement, and with whatever is calculated to make it more effective and more acceptable for the attainment of its end.”

It must be remembered that there had been no sufficient time for the collection of the data on which an effective measure could be founded, and the collection of those data was a task of great difficulty, for the Departments did not possess them. The Government came into power in February, and the Bill was introduced on April 6th; thus there was no real opportunity for testing the value of the data collected in that short interval, or for gauging beforehand objections both to the principles and details of the scheme adopted, and experience proved that some of the objections were valid, though probably not insurmountable.

The scheme was based on two principles which would be especially liable to criticism:

(1) For thirty years Ireland was to contribute to Imperial charges as they then existed a fixed annual sum.

(2) The Customs and Excise duties as _collected_ in Ireland (_i.e._, not the “true” revenue) were to be credited to the Irish Government.

The first of these principles would have been closely scrutinised in Committee, but probably in the main it could have held its ground. In the first place, it reduced considerably the Imperial contribution, consisting hitherto of the balance of revenue after payment of Irish charges. As Mr. Gladstone pointed out, the amount of military expenditure, on which the proportion of 2 to 28 was calculated, was considerably reduced, and Great Britain had to pay the difference, and so far the change was favourable to Ireland. In the second place, Irish expenditure was increasing, and under the existing system the balance of Irish revenue, constituting the Irish Imperial contribution, was, as the sequel lamentably proved, diminishing, and, a result not foreseen at the time, the wasteful and unsound finance which financial partnership entailed upon Ireland ere long extinguished it. The grant of autonomy was an effective check on this continued waste, otherwise the contribution of a fixed quota would soon have reduced the Irish Government to insolvency.

The grant to Ireland of the _collected_ not the _true_ duties of Customs and Excise was open to grave objection. It presented her with the duties levied in Ireland on articles consumed in Great Britain, but if at any time the habits of the people, such as decrease in drinking, reduced this practical gift—estimated at £1,400,000, or if changes in law or practice transferred the payment of these duties from Ireland to Great Britain, the financial equilibrium of the scheme would be destroyed. This was a real danger as under the bonding system the British trader could, if he pleased, pay these duties in Great Britain.

The decision that Ireland was not to be represented at Westminster led to a clumsy device for giving Ireland a voice in the Imperial Parliament when Irish interests were involved. This would be the resource if a war contribution had to be obtained.

The scheme of 1886 can only, therefore, be regarded as a draft to be tested and modified in discussion and to form the basis of a revised and amended scheme.

THE BILL OF 1893

Mr. Gladstone introduced the second Home Rule Bill in February, 1893. In the discussion he pointed out how incredibly wasteful the method of governing Ireland was; the Irish Civil Government grants, which had averaged from 1833 to 1837 £762,000, had risen between 1888 and 1892 to £4,042,000, and the cost of local government in Ireland was twice as much per head as the like cost in England.

Under the scheme of 1886 Irish representatives were not to sit in the Imperial Parliament, but the Government found that under existing financial arrangements there must be financial connection, unless Parliament was prepared to face a different system of trade laws between the two countries, and provision must be made for that connection. Mr. Gladstone, therefore, reversed the decision of the Government in 1886. He proposed to retain Irish representatives at Westminster, reduced in number to 80. They were not to vote on purely British questions, but in his opinion it would be difficult to make that distinction as far as the mass of business was concerned. The Irish representatives would not vote on any tax which was not to be levied in Ireland or on any grant of money for other than Imperial purposes as scheduled in the Bill. By this means Ireland would have a voice, if emergency, such as war, rendered fresh taxation necessary.

In the interval between 1886 and 1893 knowledge had been gained to some extent as to what constituted the “true” revenue of Ireland, and the Inland Revenue thought it possible to levy in Great Britain the Excise duties collected in Ireland on articles consumed in Great Britain and _vice versa_. These Excise duties represented the greater part of the sum of £1,400,000, previously described as the difference between duties, so to speak, belonging to Ireland and duties collected in Ireland, a difference estimated in 1893 at £1,800,000. If Ireland retained that difference, as contemplated by the scheme of 1886, it was equivalent to a grant from Great Britain to Ireland. On the other hand the Customs were not able to make the separation thought possible by the Excise.

With these facts before him Mr. Gladstone made an entire change in the financial scheme. As in 1886, he held that Ireland must make a proper contribution to Imperial expenditure, but he abandoned the principle, adopted in 1886, of obtaining that contribution by a quota of one-fifteenth of Imperial expenditure, that is a contribution of £2 by Ireland to £28 by Great Britain. He retained instead the whole of the Customs revenue collected in Ireland as the Irish contribution. He proposed that Great Britain should pay any excess of the charge of constabulary over £1,000,000, out of the contribution, the balance representing Ireland’s share of Imperial expenditure. He justified the change on the ground that as the management of trade was reserved to the Imperial Government, the management of the Customs so closely connected with trade should be Imperial also. The Customs were expected to produce a net revenue of £2,370,000. He estimated it as equivalent to about 4 per cent. of Imperial expenditure whereas the actual contribution was about 12 per cent. The contribution would, of course, vary as the net Customs revenue rose or fell. On the other hand the Irish Government were to take all the rest of the “true” revenue of Ireland and to defray out of it all local Irish expenditure, including a fixed sum of £1,000,000 towards the cost of the constabulary and Dublin police, which were temporarily to remain Imperial services. Customs and Excise duties were to be regulated and collected by the Imperial authority which was also to fix postal rates; but all other taxes were to be imposed by the Irish Legislature.

The interests of existing judges, and existing civil servants, and of her constabulary, which remained under the control of the Viceroy, were secured. The constabulary would be gradually replaced by a force under the control of the Irish authority. Two Exchequer Judges would be appointed to guard observance of the Act, and appeals lay to the Privy Council which would try on the motion of the Viceroy, or of the Secretary of State, any question as to invalidity of an Irish Act. These arrangements might after fifteen years be subject to revision in pursuance of an address to Her Majesty from the House of Commons or the Irish Legislative Assembly.

The receipts and expenditure of the Irish Government under this scheme would have stood as follows:

RECEIPTS. (1) Excise true revenue exclusive of licences £3,220,000 (2) Local taxes: Stamps, Income-tax, Excise licenses £1,495,000 (3) Postal revenue £740,000 (4) Other non-tax revenue £205,000 Total £5,660,000

EXPENDITURE. (1) Civil Government charges, except Constabulary £3,210,000 (2) Collection of Inland revenue £160,000 (3) Postal service £790,000 (4) Contribution to Irish Constabulary £1,000,000 Total £5,160,000 Surplus £500,000

The Bill passed the House of Commons, but the financial clauses were greatly recast in Committee. The changes originated in the fact that the Inland revenue had overestimated the “true” revenue of Excise by a very considerable sum, and the error would have reduced to an insignificant sum the free starting balance for the Irish Government provided in the original scheme. Mr. Gladstone decided in consequence not to keep the Customs revenue as Ireland’s contribution to Imperial expenditure, but to let that revenue fall into the common stock of Irish revenue and to take out of that common stock one third of the “true” Irish revenue. This third was to cover Ireland’s contribution to Imperial expenditure together with one third of the cost of the Irish constabulary and Dublin police. Ireland was to meet all her local charges out of the remaining Irish revenue. The Imperial Government was to retain for six years the imposition and collection of all taxes; the Irish Government having only supplementary powers of taxation. At the end of six years the Irish contribution was to be revised, and Ireland would be empowered to impose taxes other than Customs and Excise, and she would collect taxes, the Customs alone being retained by the Imperial authorities. The “true” revenue derived from the Customs and Excise was to be ascertained by a Joint Committee of the Treasury and the Irish Government. The financial result of these changes is shown in the following figures:

(1) Customs: Revenue collected in Ireland £2,136,000 _Add_ estimated allowance for duties paid in Great Britain on articles consumed in Ireland £266,000 Total estimated Irish revenue £2,402,000; Amount Payable to Irish Exchequer Two-Thirds £1,601,000 (2) Excise: (_a_) Spirits. Revenue collected in Ireland £4,112,000 _Deduct_ duties ascertained to be paid in Ireland on spirits consumed in Great Britain £1,872,000 Total £2,240,000 (_b_) Beer. Revenue collected in Ireland £811,000 _Deduct_ estimated allowance for duties paid in Ireland on beer consumed in Great Britain £187,000 Total £624,000 (_c_) Licence duties collected in Ireland £194,000 Total estimated £3,058,000; payable to Exchequer £2,039,000 (3) Stamp duties collected in Ireland £707,000 estimated, £471,000 payable (4) Income-tax collected in Ireland £552,000 estimated, £368,000 payable (5) Crown Lands amount estimated to be due to £65,000 estimated, £43,000 payable Total £6,784,000 estimated, £4,522,000 payable (6) Miscellaneous Irish Revenue £138,000 estimated, £138,000 payable Totals £6,922,000 estimated, £4,660,000 payable

Irish Expenditure, 1892-3. (1) Civil Government charges (exclusive of Constabulary and salary of Lord-Lieutenant, but inclusive of local charges met out of local taxation account) £3,123,000 (2) Constabulary charges (£1,459,000) two-thirds of £973,000 (3) Estimated deficit on postal account £52,000 Total £4,148,000 Surplus £512,000 Total £4,660,000

The schemes of 1893 again illustrate the difficulties inherent in a severance of the two Exchequers. The revise left more points open for difference between the two Governments, and it had the serious defect of revision after the short interval of six years.

The original scheme was far preferable. The retention of the Customs as the Imperial contribution reduced opportunity for conflicts of opinion to a minimum, and the interval of fifteen years before revision left ample time for the new Irish Government to put its house in order. I venture to think it would have been wise to make good the error in estimating the “true” revenue of Ireland (which invalidated the scheme) by an Imperial Grant, at all events for a time. Under the scheme the Imperial Government provided £500,000 for the constabulary. If it had granted £300,000 or £400,000 more, the net Imperial contribution derived from the Customs would have been reduced to say £1,400,000, not a large sacrifice for the end in view—reconciliation with Ireland.

The Bill as amended passed the House of Commons but was thrown out in the Lords. This Parliament refused to accept Mr. Gladstone’s proposals to give Ireland Home Rule, and nineteen years elapsed before a third Home Rule Bill was submitted to Parliament.

In the three schemes of 1886 and 1893 the Imperial contribution was very similar, perhaps somewhat larger in 1893. In all three schemes, also, the net gain to the British Exchequer was reduced by the grant from that Exchequer of £500,000 to the cost of the Irish Constabulary.

The difficulty of devising a financial scheme fairly simple and workable, which was experienced in 1886 and 1893, has been disappointing, but not discouraging. It was inevitable but it can be surmounted.

THE BILL OF 1912

In 1911, Mr. Asquith pledged the Government to take up again in the ensuing session the question of Home Rule. In 1910 the Conservative Party, at least a considerable part of it, in presence of a probable dissolution on the Parliament Bill, showed, as in 1885, a disposition to coquette with Home Rule, but the movement came to nothing, and the Party settled into determined opposition to the Home Rule policy, submitting themselves to the lead of the Ulster extremists, who preached sedition in no measured terms. In other respects, the prospects of Home Rule are fairly favourable. England, apart from Scotland, Wales, and Ireland, still returns a majority opposed to Home Rule, but public opinion does not show any signs of vigorous or violent opposition as in 1886. The Liberals, the Irish, and the Labour Party are united in its favour. The passing of the Land Acts is rapidly removing the agrarian evil, and the landlords have not the same cause for anxiety as formerly. The grant of Local Government is working well, and in spite of much poverty the condition of the people is improving. Lastly, the passing of the Parliament Act has made it possible, in spite of opposition in the Lords, to pass a Home Rule Act within the limits of the present Parliament.

On April 11th, the Prime Minister introduced the Government Bill. He regarded it as the first step in a comprehensive policy of devolution. It retains permanently at Westminster 42 Irish Members, so that Ireland will have a voice, not only on questions in the Imperial Parliament which concern Ireland, but on questions of Imperial interest, such as war and peace. The Bill of 1886 reserved to the Imperial Parliament certain questions. The Bill of 1893 also made necessary reservations, though its tendency was towards more complete autonomy; but in the interval between 1893 and 1912 great changes have taken place, and the Imperial Government finds itself hampered by new liabilities. The Old-Age Pension Act, the Land Purchase Act of 1903, the National Insurance Act, and Labour Exchanges have added very greatly to Irish expenditure. On the other hand, the contribution to Imperial expenditure, unluckily for the British taxpayer, has disappeared. The problem is, therefore, a new one, and the Government solves it, at all events for the present, by keeping in its own hands a large number of Services, as will be seen hereafter.

In 1885-6 Ireland contributed a surplus of considerably more than £2,000,000 to Imperial expenditure; in 1895-6, £2,000,000.(103) The Government estimates the true revenue of Ireland in 1912-13 at £10,839,000; and the expenditure on Irish services at £12,354,000. Therefore the new Irish Government will start with a deficit of £1,515,000. That deficit is now charged on the British taxpayer. It results from British management of Irish finance, for, on the one hand, Irish revenue is limited by the relatively limited means of Irish taxpayers; on the other hand, England has regulated Irish expenditure on the lavish scale of her own expenditure.

The Government lays down certain principles on which Home Rule finance will be based:

(1) Ireland must manage her own finance and must have powers of taxation consistent with leaving to the Imperial Government a field of taxation sufficiently wide for Imperial needs.

(2) The Budgets of the two countries must not hamper each other.

(3) Ireland must bear the cost of any increase arising hereafter on Irish services, but she must benefit by economies in those services.

(4) She must have power to reduce taxation if her economies permit it.

The scheme which will give effect to these principles may be described as follows.

In the first place the Imperial Government retains in its own hands the imposition and collection of all Irish taxes, the Post Office duties alone excepted, which will be transferred to the Irish Government. _Normal_ increase in Irish Revenue will not be applied to Irish services. It will reduce the deficit. The Irish Government, however, will have supplementary powers of taxation.

An Irish Exchequer and an Irish Consolidated Fund will be created, and an Irish Auditor-General appointed. Further, a joint Exchequer Board, consisting of Treasury and Irish officers, will adjust the accounts between the two Exchequers, based upon what it declares to be the actual cost of Irish services when the Act comes into operation. If the Irish Government, using its supplementary powers of taxation, increases or reduces taxes, the Exchequer Board will vary accordingly the sum to be paid by the British to the Irish Exchequer on account of Irish expenditure, and it will determine the effect of any other changes taking place in the relations between the two Exchequers. Lastly, if and when normal increase of Irish revenue puts an end, during a period of three years, to the existing deficit, the Exchequer Board will make a report to that effect, and the financial arrangement between the two countries will then be reconsidered in order to secure a fair contribution from Ireland to Imperial expenditure.

The Government, as I have stated, estimates the revenue of 1912-13 at £10,839,000. That sum represents the whole “true” revenue of Ireland, viz., taxes and miscellaneous, £9,485,000; Post Office Revenue, £1,354,000. The Imperial Government adds to this revenue of £10,839,000 a free gift of £500,000 at the cost of the British taxpayer, in order to give the Irish Government a fair start. The total Irish income in the year 1912-13 will therefore be £11,339,000.

On the other side of the account, the Imperial Government retains in its own hand various Irish Services, termed in the Bill “_Reserved Services_,” described later. It transfers from the British to the Irish Exchequer the sum allotted to Irish Expenditure (outside the Reserved Services), estimated in 1912-13 at £5,462,000, the cost of the Postal Service £1,600,000,(104) and £500,000, the free gift mentioned above, making a total transfer of £7,562,000.

If in the future the sum of £5,462,000 allotted to Irish Expenditure and the free gift of £500,000 are exceeded, the Irish Legislature must provide the necessary ways and means.

The transfer of £7,562,000 from the British to the Irish Exchequer leaves a balance on the British Exchequer on the Irish Account of £3,777,000(105) free to that extent to meet the charge of the Reserved Services.

These Reserved Services are:

(1) Old-age Pensions £2,664,000 (2) National Insurance Labour Exchange £191,500 (3) Land Purchase £761,000 (4) Constabulary £1,377,500 (5) Collection of Revenue £298,000 Total £5,292,000

Therefore the excess of Irish Expenditure in 1912-13 over Irish Revenue as provided results in a deficit of £1,515,000 payable by the British taxpayer, and if the free gift of £500,000 by the British taxpayer included in the provided revenue be added, the total charge on the British taxpayer in 1912-13 on account of Irish Expenditure is £2,015,000.

This annual gift of £500,000 is after three years to diminish yearly by £50,000, until a minimum of £200,000 is reached, which will eventually represent the gift of Great Britain to Ireland, until prosperity or good management enables Ireland to pay her own way, and at the last to make a contribution to Imperial Expenditure.

The Government estimates a normal growth in Irish Revenue of £200,000 a year, which, to the extent it is realised, will reduce the deficit payable by the British taxpayer.

The Imperial guarantee on Irish Land Stock is to continue in full force.

EFFECT OF FUTURE MODIFICATION

If the Imperial Parliament increases or reduces taxation, the change will not affect the Irish Budget, for the transferred sum will remain unaltered.

The Irish Parliament will have power to reduce taxes levied in Ireland. It will also have power to impose taxes. It may add at will to Excise duties, and if so the Customs duties on beer or spirits must vary with the Excise duties. It may levy new duties which do not interfere with the Imperial system of taxation—for instance, a house duty, or establishment licences. It may add to Income-tax or death duties, and also to Customs duties (other than beer and spirits) provided that the addition does not exceed 10 per cent. of their yield. This 10 per cent. resembles the “centimes additionels” which are levied in foreign countries on direct taxes, and are applicable there to local expenditure. But the Irish Parliament must not trench on Imperial taxes. This increase or reduction of Irish duties will not affect the British Exchequer, but it will increase or diminish the “sum transferred” to the Irish Exchequer.

The Irish Parliament will not have power to tax articles not subject to Imperial taxes for the time being. If in the exercise of its power it differentiates Customs or Excise duties in the two countries, there will be a differential duty on such goods passing from one to the other.

Public Works Loans granted before the passing of the Home Rule Act will remain under the management of the Imperial Government. Future loans will be managed by the Irish Government.

The Irish Parliament will have power to raise loans on the security of the “transferred” revenue, sufficient provision being made for interest and sinking fund. If the Irish Government desires it, the Exchequer Board above-mentioned, may issue an Irish Loan, deducting the charge from the sum “transferred” to Ireland.

Such are the provisions of the Bill. It cannot be denied that they appear complicated, but they will be found less so in practice. The machinery of financial administration in a great State is necessarily complicated, and a radical change in that machinery involves a multitude of changes in detail for which the reforming Act must provide. Root and branch opponents of Home Rule naturally criticise those provisions, and exaggerate with _Ulster_ vehemence the administrative difficulties which attend radical change, but the advocates of great measures, while recognising difficulties can take juster views of their extent, and they know that they can be surmounted.

In the first place an expert body (the Exchequer Board) will interpret the financial provisions of the Act. It will consist of two members appointed by the Treasury and two by the Irish Government, and a chairman appointed by the Crown. Their decision is to be final. On these questions there is therefore no power reserved to the Imperial Government, which might cause friction. The Chairman should probably be a man of judicial rank. Possibly a case might arise in which a revision of the Board’s decision would be needed. So far this important section of the machinery is not complicated. In the next place the Imperial Government remains responsible and liable for all the “reserved” services. Here again there is no complication. _Thirdly_, the Customs and Excise Clauses appear complicated, but they are for the most part machinery clauses, common to Revenue Acts. _Fourthly_, the Free Trade Clause offends of course the Unionist-Protectionist party, but its merits need not be discussed here. I venture to doubt where Ireland is likely to set up a Protectionist policy against Great Britain. Our market is too important to her. If such a policy were established, history tells us that British Protectionists will not consult Irish interests. Lastly a certain, but not a great, inconvenience will attend the taking of an official record of goods passing between the two countries essential to determining the true revenue of Ireland.

Thus the apparent complications of the Bill dwindle greatly on examination. The Bill of 1912 is no doubt much less simple than that of 1893 as introduced by Mr. Gladstone, but that Bill was not, however, so simple as it appeared. It was based on the principle of autonomy, but it retained great powers in Imperial hands. In fact it gave autonomy as far as autonomy was practicable. Circumstances have changed much since 1893, and the problem is now in some respects easier. The pivot and crux of Mr. Gladstone’s scheme, the Imperial contribution, has, for the time, disappeared.

Sir Henry Primrose’s Committee adopted unanimously and unhesitatingly the principle of simplicity. They recommend that the power of imposing and levying all taxation in Ireland, subject to reservations on questions of trade and of foreign relations should rest with the Irish Government. They urge that that policy accords with the general policy of Home Rule, as removing causes of friction, as avoiding need for revision of the arrangement (excepting a future question as to an Imperial contribution), it terminates the extravagance inherent in the partnership, and makes the responsibility of the Irish Government for Irish administration complete.

The Committee examine the objections to the grant of complete power of taxation, viz., that (1) it would break up the fixed unity of the realm; (2) that it would impair facilities of trade between the two countries; (3) and that it is at variance with the principle of a Customs Union, said to be a feature common to federations.

On the first point the Committee reply:

(1) That in their view the Irish Government should have power to impose Customs duties only for the purpose of raising revenue, and that the Imperial Government should reserve questions of tariff, and foreign relations. Thus fiscal unity on important points would be maintained. For sixty years from the Union separate machinery existed for the collection of different rates of duty in the two countries. If Union could dispense with fiscal unity, _a fortíorí_ can any less close form of association do so.

(2) The Committee do not attach importance to the second objection. The Custom House does not seriously trammel the convenience of traders between this country and the Continent, and it was found endurable when the variance between England and Ireland was more formidable than now.

(3) On the third objection the Committee argue that a Customs Union is indispensable, when the boundaries of federated states form a ring fence. It is not indispensable when, in a case like that of England and Ireland, the two countries are separated by sea.

These reserves diminish, of course, the severe simplicity of the scheme, and the Committee’s answers to objections admit some inconvenience to trade, but a great change like that of Home Rule must have some drawbacks, and in the opinion of Home Rulers, the end to be gained far more than compensates for slight inconveniences which attend its execution. It is certain, moreover, that, whatever may be the measure adopted, it will be necessary to take means for ascertaining the “true” Revenue of Ireland, and to that extent there must be some slight interference with trade.

I agree with the Committee in their preference for the simplicity of complete autonomy.

Sir Henry Primrose and his colleagues agree to a great extent with a Minority Report of the Financial Relations Committee (1896), signed by Lord Farrer, Mr. Bertram Currie and myself. The advantages of complete autonomy are obvious, and I cannot avoid a regret that it has not been possible to adopt it. I note, however, that the greatest Irish authority on Irish Government, Lord Macdonnell, though in favour of Home Rule, is entirely opposed to the grant of fixed autonomy to Ireland.

We must not misunderstand the relations of the Committee to the Government. They were not appointed to draw a Home Rule Bill. They were to ascertain and consider the fiscal relations between Ireland and other parts of the United Kingdom as they exist to-day, paying special regard to the changes which have taken place in revenue and expenditure since 1896, the date of the Report of the Royal Commission; to distinguish between Irish Local Expenditure and Imperial Expenditure in Ireland; and to consider, in the event of Home Rule being established, how the revenue required to meet the necessary expenditure should be provided. The function of the Committee was, therefore, purely financial. They had to collect financial information, a necessary preliminary to a consideration of the Bill, and to advise as to the method of providing the revenue required. They had no mission to examine the political conditions which must be satisfied by a Bill designed to effect a Constitutional Revolution. That was the function of the Cabinet. The Committee, limiting itself to its instructions, recommended the method of raising revenue which they thought wisest, independently of any but financial considerations. The Government consider the question from a wider point of view. Their measure must be founded on policy as well as finance. They do not adopt the Committee’s recommendations. They decide to retain for a time, more or less indefinite, a closer relation between the two financial systems. Much as I should like greater simplicity, a study of their measure leads me to the conclusion that its provisions are, in the main, wise. Let us then consider how far the provisions of the actual Bill satisfy the conditions needed to insure the success of Home Rule.

In the first instance, and for an uncertain number of years, the Imperial Government keeps a tight hand upon the Irish Government. It reserves large powers enabling it to reject, postpone, or test the validity of Irish Bills. It regulates and levies all taxes, and fixes postal rates. It secures the interests of various classes of public servants, and retains temporarily the police under its own control. It fixes Irish Local Expenditure at a certain sum, and it issues that sum yearly to the Irish Government together with a free gift of £500,000 a year for three years, falling gradually to a permanent gift of £200,000. _Normal_ increase of Irish Revenue is appropriated to reduce the deficit to be borne by the British Exchequer. If, therefore, the Irish Government increases its own expenditure beyond the fixed sum allotted to it, it must find the revenue required, and for that purpose powers of taxation are given to it.

The nursing hand of the mother is, in fact, present at every point of the Bill, but it must be remembered that a hostile step-mother may, at any time, replace the kindly mother.

There is no escape from the conclusion that these reservations restrict the autonomous power of the Irish Government. On the other hand, the whole spirit of the Bill marks the greater part of them as temporary. The Bill, in fact, confers autonomy by gradual steps, and holds out prospects that eventually the relations between the two countries will be simple and workable. At the outset, and for some time onward, the Irish Government, freed from liability for the costly “reserved” services which the “partnership” has bestowed or inflicted on Ireland, will occupy itself with the organisation of its own home administration. It starts with no previous experience of administration, and it is clearly desirable that it should proceed by steps, gathering experience as it goes. Its field of work at first should not be too wide, and six years is not too long a period for it to reform and reconstitute its administrative organisation. This is its first duty, and it undertakes it under favourable conditions.

In six years the constabulary will be transferred automatically from the charge of the Imperial Government to that of the Irish Government with the sum allotted to its support.(106) That sum will be increased by any saving which accrues to the British Exchequer from the transfer, and in determining that sum regard is to be had to the _prospect_ of any increase or decrease in the cost of the service, expected to arise from causes not being matters of administration.

In the next place, the Irish Parliament may, at any time, on twelve months’ notice assume the legislative and executive control of three reserved services, viz., Old-age Pensions, National Insurance, and Labour Exchanges. If they are taken over, the sum transferred with them will be determined on the same principle as in the case of the constabulary. Autonomy, therefore, in regard to these services is granted to the Irish Government, and they will only be retained under the control of the Imperial Government, if, and so long as the Irish Government desires it.

The Postmaster-General said in his speech on the introduction of the Bill that the old-age pension charge is now practically at its maximum, gradually diminishing, and the Primrose Committee (paragraph 54), estimate the charge at the time when the Bill becomes law at £3,000,000. The question then arises what will be the amount transferred, if the Irish Government, seeing its way to more economical administration, were to give at once the twelve months’ notice and take over the service at the end of a year. It would not, I presume, be £2,664,000 the charge at which the Treasury in its “outline of financial provision” (paper 6154), estimated it in 1912-13, but £3,000,000, modified to some extent by the prospect of reduction.

The cost of National Insurance and Labour Exchanges is estimated by the Treasury in 1912-13 at £191,500, increasing by £300,000 in ten or fifteen years. If the Irish Government were in like manner to take them over, the amount transferred would, I presume, be £190,000 with a sum added representing the prospect of increase.

In the event then of those services being taken over by the Irish Government, they would considerably exceed their charges as estimated by the Treasury for 1912-13, and the excess would entail a corresponding increase of charge on the British taxpayer, to be counterbalanced gradually by the normal increase of Irish revenue, which the Postmaster-General estimates, with due reserve, at £200,000 a year, and by the gradual reduction (£50,000 a year) of the free gift of the British taxpayer from £500,000 to £200,000.

It must be remembered that these increased charges on the British taxpayer are not the result of Home Rule, they are an inheritance from the “partnership.”

When these services are transferred from the Imperial to the Irish Government, the Imperial Government will only retain control over the land purchase charges and the regulation and collection of taxes. The former will apparently remain permanently with the Imperial Government, involving an estimated increase of charge on the British taxpayers of £450,000 a year (Treasury Paper 6154). With regard to the latter, it is clearly desirable that at the outset the Imperial Government should be responsible for levying and collecting taxes. If difficulties on that subject should arise in parts of Ireland, the Imperial Government will settle them with an authority which the new Irish Government cannot possess. Clause 26, however, holds out a possibility hereafter of extended autonomy to Ireland. If for three years the revenue of Ireland exceeds the expenditure on Irish services by the Imperial and Irish Governments, the Parliament of the United Kingdom will revise the financial provisions of the Home Rule Act, with a view to securing a proper contribution from Irish revenues to Imperial expenditure, and extending the powers of the Irish Government _with respect to the __ imposition and collection of taxes_, and if extension were then granted in a liberal spirit, there would be little left to desire.

CONCLUSION

I have thus traced the gradual progress towards autonomy contemplated by the Act. It justifies the conclusion that the Government favours autonomy, but seeks to achieve that end gradually and tentatively. With the path thus marked out, it lies with the nation to pursue steadily and resolvedly the great end of reconciliation with Ireland.

It is impossible to consider Home Rule in its financial aspect, without casting a look backward and comparing the result which would have followed the grant of Home Rule in 1886 with the result which has followed its refusal. In the former case Ireland would have been reconciled long ago. She would have been mistress in her own house, and it would have been her interest as well as her policy so to conduct her administration as to insure the success of her autonomy. She would have had full opportunity for reorganising her establishments on a reasonable scale, substituting for an expensive military police an ordinary police, with a saving, as Mr. Gladstone once pointed out, of £900,000 a year. She would have been able to maintain the reasonable contribution to Imperial expenditure which it is her duty as an integral part of the United Kingdom to provide. It would have been worth the while of Great Britain to make a great sacrifice at the outset to attain this solution of the Irish problem, and long before now the solution would have been complete.

The Conservative Party refused Home Rule. They have held power during sixteen out of the twenty-five years elapsed in the interval, and they have had full opportunity to try their alternative policy. That policy has not indeed been the twenty years of “resolute Government,” a euphemism for coercion, advocated by Lord Salisbury. They have tried a policy of bribes and doles, with the result that the Imperial contribution of over £2,000,000 made in 1885 has been dissipated, and that Irish local expenditure alone shows now a deficit of £1,500,000 and a steadily increasing deficit. In short, a total burthen of between £3,500,000 and £4,000,000 has been inflicted on the British taxpayer. The Leader of the Conservatives has now announced with splendid audacity that if the “partnership” continues, if the Conservatives are allowed still to mis-rule Ireland, and to maintain the baleful spirit of ascendancy, they will endeavour to develop in every possible way the resources of Ireland. That is to say, the policy of bribes and doles is to continue at the expense of the British taxpayer. Let the British taxpayer note that, and let him note also that the Conservative Party will find the ways and means for these bribes and doles not by taxes on the wealthy, but by taxes on the food of the people. Ireland will accept the doles; but she will not be satisfied. She will still clamour at our gates for Home Rule, as she has clamoured since 1886, and she will get Home Rule, but the burthen on the British taxpayer will be then how much greater than now?

Appendix

This Report of the Primrose Committee, the Treasury outline of financial provisions, and the speech of the Postmaster-General on the introduction of the Bill offer some vague estimates, perhaps more properly guesses, of Irish finance, one of which, Old-age Pensions, extends to twenty years. It may be interesting to throw these figures together, not (God forbid) as an estimate, but as illustrating opinion prevalent among the experts engaged in the preparation of the Bill.

Income: Estimate for the year 1912-1913 10,839,000 _Add_ free gift of £500,000 to be reduced in nine years to 200,000 The Postmaster-General’s Estimate of £200,000 normal yearly increase of revenue in twenty years 4,000,000 Income in twenty years (round figures) 15,000,000

Expenditure: Sum transferred to Ireland 1912-1913 5,462,000 Post Office, 1912-1913 1,600,000 Old-age pensions (Treasury Paper) 2,800,000 Land purchase (£761,000 in 1912-1913 increased by £450,000) 1,211,000 Insurance £191,500 in 1912-1913 increased by £300,000 491,500 (Say) 11,564,500-11,600,000

Balance available for Constabulary, collection of Revenue, Imperial contribution and Irish services.

It must be recollected that the Irish Government has to provide for increase of Irish services beyond £5,462,000 by taxation.

VI.—The Judiciary, The Police, And The Maintenance Of Law And Order. BY THOMAS F. MOLONY, K.C., HIS MAJESTY’S SECOND SERJEANT-AT-LAW, CROWN COUNSEL FOR DUBLIN.

(1) _The Judiciary_

The Supreme Court of Judicature in Ireland is at present constituted as follows: The Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, the Lord Chief Baron of the Exchequer, two Lords Justices of Appeal, two Judges of the Chancery Division and six Puisne Judges of the King’s Bench Division. On the occurrence of the next vacancy in the office of Lord Chief Baron the office is to be abolished and a Puisne Judge appointed instead. Since the year 1897, six judgeships have been abolished in Ireland, and a large saving thereby effected. The duties formerly discharged by the Probate and Matrimonial Judge, the Admiralty Judge and the two Bankruptcy Judges have been transferred to the King’s Bench Division and the number of the Puisne Judges of the King’s Bench Division has been reduced by two.(107) With every desire for economy it is believed that the Supreme Court Bench cannot be further reduced without interfering with the efficiency of the public service. The Lord Chancellor of Ireland is appointed by having the Great Seal delivered to him by the Crown, and all the other Judges are appointed by His Majesty by Letters Patent. There are also in Ireland five Recorders and sixteen County Court Judges, who are appointed by the Lord-Lieutenant. The County Court Judges in Ireland are also Chairmen of the Quarter Sessions of their respective counties. No Judge of the Supreme Court or of the County Court can be removed from his office except upon the address of both Houses of Parliament. Under the Home Rule Bill the position of existing judges is to remain unchanged, and future judges are to be appointed by the Irish Executive, and can only be removed by a joint address of both Houses of the Irish Parliament which gives them the same independence that the existing Judges now enjoy. Under the Bill of 1893, the Imperial Executive was to have the appointment of Judges for six years after the passing of the Act, but there seems to be no justification for the suspensory period and it has been wisely dropped from the present measure. The Irish Executive will not be “irresponsible and inexperienced” as Mr. J. H. Campbell says in “Against Home Rule—The Case for the Union” (page 54), but will be composed of men who for many years have served in the Imperial Parliament, and are well qualified from their ability and experience to at once take up the reins of Government.

(2) _The Police_

There are two distinct police forces in Ireland. The Dublin Metropolitan force(108) has jurisdiction over the Dublin Metropolitan District, which includes the whole of the City of Dublin and portion of the County. It consists of 2 Commissioners, 7 Superintendents, 25 Inspectors, 187 Sergeants and 1,060 Constables, and costs £154,181 per annum.(109) Portion of the cost is met by a police tax of 8d. in the £ on the rateable value of the district, but a substantial balance—in the present year amounting to £96,466—is borne by the Treasury. The Royal Irish Constabulary(110) has jurisdiction over the rest of Ireland, including Belfast. It consists of 1 Inspector-General, 1 Deputy Inspector-General, 3 Assistant Inspectors-General, 37 County Inspectors, 195 District Inspectors, 235 Head Constables, 2,068 Sergeants and 8,182 Constables. It costs £1,413,069 per annum, the whole of which is borne by the Treasury.(111) There is a fundamental difference between the two forces. The Dublin force has been founded on the model of the London Metropolitan Police, and is essentially a civilian force. It is admirably trained in police duties, and has always discharged its duty to the satisfaction of the citizens. The Royal Irish Constabulary is drilled and trained in the use of the revolver, rifle, and sword in the same manner as are the armed forces of the Crown, and is in every essential a military organization. There is a reserve force always kept at the Depôt in the Phœnix Park which at a moment’s notice is available for service in any part of Ireland. The Bill proposes that the control of the Dublin Metropolitan Police be transferred immediately to the Irish Executive, but that the Royal Irish Constabulary shall remain under Imperial control for six years. An Irish Executive which could not control the police force of its own metropolis would be in a ridiculous position, and no believer in self-government can object to the immediate transfer of the Dublin force to the Irish Executive, and indeed, many think that the same course ought to be adopted with regard to the Royal Irish Constabulary. It has for a long period, been a constant source of complaint that the numbers of the Royal Irish Constabulary, and its consequent cost, are entirely out of proportion to the wants of the country. It was created in a time of agrarian disturbance which has long since passed away, and now that Ireland has been for many years far more free from serious crime than either England or Scotland, it is absurd that in Ireland it should cost 6s. 8d. per head of the population for police, while an equally efficient force can be provided, in England for 3s. 4d. per head, and in Scotland for 2s. 5d. per head. In Ireland there is one policeman for every 365 inhabitants, while in England and Wales there is only one for every 727 inhabitants.(112)

(3) _Law and Order_

The maintenance of law and order is the first duty of a Government, and if it could be proved that the proposed measure of Home Rule for Ireland would lead to crime and disorder, the cause would lose many of its more prominent adherents. To those, however, who are interested in the administration of the law—and particularly the criminal law—it is obvious that Home Rule will have the effect of still further diminishing crime, and will also enable considerable saving to be effected in the sums now spent on law charges and criminal prosecutions. At the present time, and indeed for many years past, Ireland has been practically crimeless. The Judges at the Spring Assizes, 1912, were unanimous in describing all the counties in Ireland, except two, as peaceable and orderly, and free from serious crime. In two counties—Fermanagh and Carlow—there were no cases whatever for trial, and it was only in Galway and Clare that dissatisfaction was expressed with the present state of affairs, and even in those counties the affected districts comprised a very limited area. The following table taken from the report of the General Prisons Board for Ireland for 1910, shows how the Government have been able to close prisons in consequence of the diminution of crime and reduction in the number of prisoners:

“The number of prisons and bridewells,” says the report, “under the control of the General Prisons Board on the 1st April, 1878—the date when the local prisons and bridewells were transferred to the Board—and now is as follows:—

1878. 1910. 4 Convict 1 Convict Prisons. Prison. 38 Local 1 Joint Convict Prisons. and Local Prison. 95 Bridewells. 15 Local Prisons. 6 Bridewells.”

The Unionist Associations of Ireland have recently published a handbook called “The Home Rule ‘Nutshell’ Examined by an Irish Unionist” in which it is stated (p. 69) “The only crime that is complained of in Ireland is the organized crime due to the inspired agitation of the United Irish League. Without that Ireland would be _comparatively crimeless_.” No proof has ever been given that the United Irish League has taken any part in the organization of crime, and beyond all doubt in many instances it has been instrumental in preventing it. It cannot, of course, be denied that in certain parts of the country instances of boycotting and cattle driving occur, but such occurrences will certainly not increase, and are more likely to cease altogether when Ireland is governed by an Irish Executive chosen by the people, and responsible to the people for the good government of the country. The Unionist complaint is, not so much that an Irish Executive will not be able to enforce the law, but that it will be unwilling to do so in certain cases, and will exercise a dispensing power as to whether the decrees of the Courts shall or shall not, in particular cases, be enforced.(113) If it were within the power of the Executive to prevent the police or military from being called upon to protect the civil officers of the law in the discharge of their duties, it would, no doubt, be possible to paralyze the administration of justice, but it is well settled that a sheriff, or anybody charged with the execution of a writ of a competent Court, has the right to require the assistance of constables, and indeed of any of the liege subjects of the Crown, and that the Executive has no power to prevent such assistance being given. This was laid down by the Common Law Judges in England in the well-known case of “_Miller_ v. _Knox_”(114) and still more emphatically by the Lord Chief Baron (Palles) of the Exchequer in Ireland in the case of the Woodford prisoners at the Connaught Winter Assizes of 1886.(115) The Lord Chief Baron said:

“I desire it to be thoroughly understood that the execution of the decrees of the judiciary in this country does not depend—as it does not, I believe, in any civilised country—upon the will of the Executive who, for the moment, may happen to be in office. Into the execution of our writ we cannot allow any question of party politics to enter. If the law be wrong, let the law be altered by the Legislature, and the judges will, at the moment, carry out the law as altered. They cannot look beyond the law. They cannot, in the administration of that law, contemplate alterations at a future time. Their sworn duty is to give to him who asks it that which he is entitled to by law. It is not competent to them, or to any other person, to go behind the law and to ask whether, in his own opinion, or in the opinion of others, the law is just or unjust. With them the only consideration must be that is the law. They are bound to pronounce the law. From that pronouncement there is an appeal to the highest court in the realm. But when judgment is once given—the judgment of a court of law, acting within the scope of its jurisdiction—it is not competent to anyone in this kingdom, I care not how high he may be, to say that a writ regularly issued on foot of that judgment shall not be executed, or to prevent those who by law are bound to aid in its execution from giving that aid and assistance which the Constitution requires.”

In 1893 the County Inspector of the Royal Irish Constabulary in County Kerry, by the direction of the Executive, refused the assistance of the Constabulary to the Sheriff of the County, when he desired to execute certain writs of the superior Courts in the night time. The Sheriff thereupon applied to the Queen’s Bench Division for an attachment against the County Inspector, and the Court unanimously made the order.(116) The Lord Chief Justice (Lord O’Brien) in giving judgment said (p. 238):

“I wish to point out that, according to the opinion of all the judges who were called in to advise the House of Lords in the case of _Miller_ v. _Knox_,(117) refusal, unjustified by the occasion, as, in my opinion, the refusal in the present case was, to protect the sheriff in the execution of his duty, when protection is sought by him, in the honest exercise of his discretion, to enable him to discharge his duty in the execution of civil process, is punishable, by indictment, by criminal information, and, as was established in _Miller_ v. _Knox_ by the summary process of this court. The official, be he Under Secretary or Chief Secretary (I do not, of course, refer to his Excellency the Lord-Lieutenant), who directed Mr. Waters not to comply with the sheriff’s demand for protection, has rendered himself amenable to the criminal law, is liable to be tried by indictment, to have a criminal information exhibited in this court against him, or to be attached by the summary process of this court.”

There can be no doubt, therefore, that the Irish Executive will be bound to give assistance and protection to sheriffs or other lawful officers executing any legal process of a competent Court, and if such assistance is not given the Courts will be able to assert their supremacy in the various ways pointed out by the Lord Chief Justice.

A great deal of capital has recently been made in the Unionist Press on account of the promulgation of the _Motu Proprio_ “_Quantavis Diligentia_.” It has been asserted that this decree applies to Ireland and will necessarily embarrass catholic officials in the discharge of their public duty. The Roman Catholic Archbishop of Dublin has, however, fully explained the meaning of the decree, and has shown that it does not apply to any country where there has prevailed against it, as there has long prevailed against it in Ireland, a custom invested with the conditions required by the Canon Law.(118) He further says (p. 36):

“The excommunication of the clause _Cogentes_, is not decreed against all who oblige lay judges to compel the attendance of ecclesiastics in their courts. It is decreed against those who do this in violation of the Canon Law. There must first, then, be a canonical offence. It is to that offence that the clause _Cogentes_ attaches the penalty of excommunication. But, there being no canonical offence in the discharge of their duty by our Catholic Judges, and Catholic Law Officers of the Crown, our Catholic Police Magistrates and Catholic Policemen, and our laity in general—who were so ludicrously paraded before the public a few weeks ago as the unhappy victims of the _Motu Proprio_—there is in their case no offence to which an ecclesiastical penalty can be attached, and so, no ecclesiastical penalty is incurred.”

Nothing is to be feared in Ireland from the _Motu Proprio_ “_Quantavis Diligentia_,” and there is really no necessity for the restrictions contained in Section 3 of the Bill, although no person will object to their insertion as a matter of precaution. The Unionists profess to be alarmed at the prospects of Ireland under Home Rule; but when their fears are analyzed they are seen to be illusory, and when their arguments are considered they are found to amount to a single assertion that a great measure of reform is not to be passed, and the will of the people is not to prevail, because a small minority is irrevocably opposed to any measure which will give to the Irish people power to manage their own affairs.

When Unionists complain of an occasional case of boycotting or cattle-driving—and it is almost all they have to complain of now—they should read Lord Durham’s report on Canada in 1838, and they will see how favourably Ireland, even in its darkest hour, contrasts with the Canada of that day. Lord Durham adopted the courageous policy of trusting the people, and his policy brought peace, prosperity and contentment to that country. Mr. Asquith’s great measure is an embodiment of the same policy, and will be attended with the same results, and indeed the situation could not be better summed up than it was by Mr. John Redmond in the House of Commons three years ago.(119)

“As it happened in Canada, so it will happen in Ireland—when you throw responsibility on the shoulders of the people, and not till then. Then respect for law will arise in Ireland; then confidence in the administration of justice will arise; and when that day comes, I am perfectly convinced that Ireland will become the most peaceable and most law-abiding, as she is to-day the most crimeless, part of your Empire.”

VII.—The Present Position Of The Irish Land Question. BY JONATHAN PIM, K.C.

INTRODUCTORY

The following chapter contains an account of the change which has been wrought by legislation in the position of the Irish tenant farmer and labourer during the last forty years. The change is large—the benefit and improvement equally great. The task is, however, not much more than half completed. The holdings purchased, or agreed to be purchased, by tenants under the Purchase Acts amount to about 378,000. There remain to be purchased about 227,000. The Congested Districts Board have done good work in the congested districts, but what has been done has hardly gone beyond the experimental stage. The experiments have, to a large extent, succeeded, but their very success enlarges the vista of work to be done in the future. The work of the District Councils in providing better dwellings for agricultural labourers is perhaps more nearly completed. Nevertheless, much still remains to be done.

Under the second section of the proposed Bill “to amend the provision for the Government of Ireland,” the “general subject matter of the Acts relating to Land Purchase in Ireland” is reserved. This would seem to include the Land Purchase work of the Congested Districts Board, but it is doubtful if it would include any part of the Labourers’ Acts. Taken in conjunction with the whole scheme of the Bill, and especially with its financial provisions, the wisdom of this reservation is evident. That work which has gone so far and has been so beneficial in its operation should be stopped, or even hampered, in its development, would be an injury which, even the undoubted benefits a Home Government will bring with it would scarcely out-weigh. No doubt Ireland, if thrown altogether on her own resources, could, after a few years’ time, continue the work of land purchase and could finally complete it, but the interregnum would be most mischievous. All those who had not purchased would be dissatisfied, and the Irish Government would be subjected to a pressure which they would find it hard to resist. The danger would be two-fold. On the one hand the Government might attempt to raise money at an excessive rate of interest and would thereby embarrass themselves financially; on the other hand an attempt might be made to force the Government to pass a “Compulsory Purchase Act” and to fix the price of purchase at a much lower figure than could be obtained under a system of free agreement. The Imperial Government itself runs no risk in reserving Land Purchase; on the contrary, it will run less risk under Home Rule than it does now. At the present moment, there is due to the Treasury a sum of about £71,000,000, money advanced for the purchase of land. The amount of the annual instalments payable on this sum is about £2,226,785, and on the 31st of March, 1912, there was due for arrears the sum of £44,156.(120) The purchase annuitants have up to the present discharged their obligations in a most faithful and honest manner. There is not the slightest reason to think that they will act differently in the future, but if, as some political prophets seem to consider possible, they do, in the future, strike against the payment of the instalments they themselves will be the principal sufferers, for under the proposed Bill the Treasury may, out of the sum to be transferred to the Irish Government, before making the transfer, deduct each year the amount then due on account of purchase annuities. This, if it happened to any large extent, would render fresh taxation necessary—a contingency which would certainly not be desired by the Irish Government. The proposed Bill does not contain any specific provision giving power to the Irish administration, in the case of local repudiation, to make the counties in which repudiation had taken place repay to the Irish Treasury such sums as they had been forced to pay to the Imperial Treasury. If such a provision were inserted, it would make the position of the Treasury extremely secure.

When Mr. Gladstone introduced his first Home Rule Bill in 1886, the land war was at its height. The country was, on the one hand, full of intense and unreasoning bitterness and resentment, and, on the other hand, of unreasoning terror of the consequences of the change of administration. There are many persons, to-day convinced believers in the policy of Home Rule, who do not regret that the Bill of 1886 failed to pass. Things were not very much better in 1893, although, owing to the Land Act of 1881, the land war was slowly losing its fierceness. Since then a slow, but no less deep and far-reaching, change has passed over the tenant farmers of Ireland. The bitterness and discontent which rightly possessed them during the whole of the last century have at last given way to more kindly and contented feelings. This is due in a great measure to the large remedial measures passed first by Mr. Gladstone’s Government of 1880 to 1895, and afterwards by the Conservative Administration between 1896 and 1905; but it is perhaps even more due to the feeling which has slowly grown up among the agricultural population that, at last, they are being listened to, and that their wants are being attended to, imperfectly, no doubt, but still with sympathy and with a desire to do what can be done to meet them. Whatever dangers may attend the granting of Home Rule now, they will not be the dangers which terrified and controlled public opinion in 1886 and 1893. Almost all the confusion, trouble, and crime of last century was due to the vicious absurdity of the Irish land code and to the miserable condition of the Irish tenant farmers produced thereby. That is now changed and Ireland has become a quiet and comparatively crimeless country. The danger which many foresee under a Home Government is of a different kind. It is rather that the overwhelming peasant vote may render the administration unduly parsimonious and so unwilling to place any additional burden on the owners of land that a kind of political stagnation may arise therefrom. Ireland cannot, of course, be kept permanently out of the great movements of European thought, but, for the moment, it may be safely alleged that in no part of Europe is property safer.