A Leap in the Dark Part 6

[61] 'I am not suggesting for a moment that we are going to set up in Ireland two independent and separate Executives. I think the granting of Home Rule in any intelligible sense would be entirely incomplete if it were not supplemented by the granting of executive power, and in my judgment the Executive in Ireland is intended to be and must be dependent upon and responsible to the Irish Legislature in Irish affairs. But that does not in the least prevent the retention in the Crown of the executive government of the United Kingdom, as it provided in this Bill such executive authority as is necessary for the execution of the Imperial laws' (sic). Mr. Asquith, April 14, 1893, _Times Parliamentary Debates_, p. 440. Compare _Hansard_, vol. xi. same date, p. 348.

[62] Bill, clause 30.

[63] This is technically expressed in the Bill by the provision that 'the two forces [viz. the Royal Irish Constabulary and the Dublin Metropolitan Police] shall, while they continue, be subject to the control of the Lord Lieutenant as representing Her Majesty.' As to the military or naval forces of the Crown, the Bill contains no provision, but it cannot, it is submitted, be doubted that they will remain subject to the Imperial Government, and, except with the sanction of the Imperial Government, will not be subject to the control of the Irish Executive.

[64] See Bill, clauses 1-5, and as to the Restrictions on its legislative power, see pp. 80-110, _post_.

[65] See two excellent articles in the _Spectator_ of February 25 and March 4, 1893.

[66] Of course all these statements are to be taken subject to the Restrictions placed on the powers of the Irish Legislature by Bill, clauses 3, 4, pp. 197, 198 _post_.

[67] These Restrictions, or safeguards, deprive Ireland of powers in fact possessed by the Legislature of any self-governing colony, and I believe by the Isle of Man or Jersey. [Compare the Home Rule Bill 1893, clause 3, sub-clause (3) (p. 197, _post_,) as it appears in the original Bill, with the same clause as amended by the House of Commons and sent up to the House of Lords. The original clause forbids the Irish Parliament to make any law in respect (_inter alia_) of 'naval or military forces or the defence of the realm.' The clause as amended by the House of Commons forbids the Irish Parliament to make any law in respect of '(3.) Navy, Army, Militia, Volunteers, and any other military forces, or the defence of the realm, or forts, or permanent military camps, magazines, a.r.s.enals, dockyards, and other needful buildings, or any places purchased for the erection thereof.'

In 1893, Unionists and Gladstonians alike were determined that on no pretence whatever should an Irish Parliament be allowed to raise an Irish army, even of volunteers. The very name of 'volunteers,' and the history of 1780-82, explain and justify their prudence.

[68] Clause 4, sub-clause (1) to (4).

[69] For the details of the Restrictions contained in clauses 3 and 4 the reader should study carefully the terms of the Bill itself. See Bill, in Appendix.

[70] In more than one case it is pretty clear that the Restrictions are in themselves ineffective. Take these instances:--

1. The Restrictions do not really prevent the drilling of an armed force. The Act which makes drilling illegal is a statute of 1819, 60 Geo. III. 1 Geo. IV. c. 1. This Act applies to Ireland and cannot (it is submitted) be repealed by the Irish Parliament. But this statute of 1819 might easily be evaded, for by sec. 1 meetings for training and drilling may be allowed by any two Justices of the Peace. The Irish Executive might, and probably would, appoint plenty of justices who were willing to allow training and drilling.

The men thus trained and drilled could not, I conceive, technically be made a volunteer force, but they might, for all that, be a very dangerous armed body.

2. It is not certain what is the real effect of the provisions whereby no 'person may be deprived of life, liberty or property without due process of law.' Does it, for example, preserve a right to trial by jury? I doubt whether it does. American judgments on the same words in United States Const.i.tution, Amendments, art. 14, would of course have no legal authority in the United Kingdom, and there is a special reason why they often could not be followed. No process would (it is submitted) be considered in an Irish or British Court as not a 'due' process, for which a parallel could be found in the legislation of the Imperial Parliament. But the Prevention of Crime (Ireland) Act, 1882, sec. 1, to instance no other enactment, took away the right to trial by jury in cases of trial for treason, murder, etc.

3. Private property might still in fact be taken without just compensation. The Privy Council would not apparently have to consider whether in any given case property was taken without just compensation, but whether a particular law was a law whereby it might be taken without just compensation. Suppose, for example, Sir James Mathew and the commissioners who sat with him were const.i.tuted by an Irish Act a Court for determining what compensation should be given for the taking of certain property for public use, and the Act itself provided that just compensation must be given. It is very doubtful how far the Privy Council could treat the Act as invalid, or could in any way enter upon the question whether just compensation had been given. Yet it is plain that such a Court might give very far from just compensation, say to Lord Clanricarde.

[71] Const.i.tution, art. i sect. 10.

[72] See Mr. J. Morley, April 18, 1893, _Times Parl. Deb._, p. 500.

[73] See Bill, clause 5, sub-clause (3). The language of this clause disposes of the contention put forward by at least one Gladstonian candidate at the last general election [_i.e._ of 1892], that the veto must of necessity be exercised under the control of the British Cabinet; an arrangement too futile for an ardent Gladstonian to contemplate as possible is therefore actually enacted in the Government of Ireland Bill.

[74] It is to be presumed that the Crown, or in effect the British Cabinet, does not in the case of Ireland retain the power of 'disallowance' under which the Crown occasionally annuls colonial Acts which have received the a.s.sent of a colonial Governor. The power to disallow an Irish Act which, though not unconst.i.tutional, has worked injustice, might be of advantage. But in truth the parliamentary methods for enforcing the Restrictions or safeguards are utterly unreal; they do not repay examination; whether there be two sham modes of enforcement, or one, must be to a sensible man a matter of indifference. As to the disallowance of Acts see Rules and Regulations published for the use of the Colonial Office, chap. iii.; Legislative Councils and a.s.semblies, Rules 48-54; British North America Act, 1868, sections 55-57; _England's Case against Home Rule_ (3rd ed.), p. 33. [Compare Dicey, _Law of Const.i.tution_ (7th ed.), pp. 111-114.]

[75] The appeal to the English Privy Council, both under clauses 19, _22_, and 23 of the Bill, appears to be in each case an appeal to the Judicial Committee of the Privy Council. [The particular provisions contained in the Home Rule Bill, 1893, as to an appeal to the Privy Council, etc., are now of little direct importance, but they are worth study as showing the extreme difficulty of providing any satisfactory body for acting as a Court called upon to decide the numerous const.i.tutional questions, as to the legislative power of an Irish Parliament, which must be raised under any Home Rule Act whatever.]

[76] See Bill, clause 23.

[77] See Tocqueville, _Democratie en Amerique_, i. chap. viii. pp.

231-250; Bryce, _American Commonwealth_, ii. (1st ed.) p. 45; _ibid._ i.

ch. 23.

[78] Compare _England's Case against Home Rule_ (3rd ed.), pp. 257, 258.

[79] Compare Bill, clauses 19, 22, pp. 206, 209, _post._

[80] Bill, clause 19, sub-clause(4).

[81] Clause 19, sub-clause (5). The whole of the provisions as to the Exchequer Judges are extremely obscure. The jurisdiction and the powers of the Court, should it ever be formed, will need to be defined by a special Act of Parliament. There are special laws regulating the action of the Federal Judiciary both in the United States and in Switzerland.

As the matter at present stands the jurisdiction of the Exchequer Judges and of the Privy Council as a Court of Appeal from them may apparently be thus described.

It extends to all legal proceedings in Ireland which

(i) are inst.i.tuted at the instance of or against the Treasury or Commissioners of Customs, or any of their officers, or

(ii) relate to the election of members to serve in [the Imperial]

Parliament, or

(iii) touch any matter not within the powers of the Irish Legislature, or

(iv) touch any matter affected by a law which the Irish Legislature have not power to repeal or alter.

It is possible that sub-clause (4) gives the Exchequer Judges a much wider jurisdiction than is intended by the authors of the Home Rule Bill, and the strictures which have been made on this sub-clause deserve attention. My purpose, however, is not to criticise the details of the Home Rule Bill or to suggest amendments thereto. Its fundamental principle is, in the eyes of every Unionist, unsound, and the Bill itself therefore unamendable. My object is simply to describe and criticise the general const.i.tutional provisions of the Bill and to show their bearing and effect.

[82] Compare _England's Case_ (3rd ed.), pp. 258, 259.

[83] See _England's Case_ (3rd ed.), pp. 214-218.

[84] See Home Rule Bill, clause 3, sub-clause (7) (p. 198, _post_), and compare same clause slightly amended, in Bill, as sent up to the House of Lords, sub-clause (8).

[85] These strictures on the financial arrangements which were to exist between England and Ireland apply directly to the Home Rule Bill as introduced into the House of Commons, but they are less applicable to the Bill as amended, more or less in favour of Ireland, before the Bill was sent up to the House of Lords. Compare clause 10 of the original Bill with clause 11 of the Bill as amended and brought up to the House of Lords.

[86] Bill, clauses 14, 15, and 16. [Compare with these clauses of the original Bill clauses 13, 14, 15, and 16 of the Bill as amended before being sent to the House of Lords.]

[87] See Fiske, _Critical Period of American History_, chs. iii. and iv.

[88] See, _e.g._, letter of Mr. Clancy, M.P., on the Financial Clauses of the Home Rule Bill, _Manchester Guardian_, April 4, 1893.

[89] Bill, clause 15.

[90] See pp. 72 and 82, _ante_.

[91] See pp. 79, 80, _ante_.

[92] _Souvenirs de Alexis de Tocqueville_, p. 63.

[93] The reader should note the history of the insurrection in Ticino during 1891. It is quite clear that the Liberals of Ticino who had distinctly broken the law were more or less comforted or protected by the Liberal party in the Swiss Federal a.s.sembly. Compare Hilty, _Separatabdruck aus dem Politischen Jahrbuch der Schweizerischen Eidgenossenschaft_ (_Jahrgang_ 1891).

[94] See p. 103, _ante_. [The force of this ill.u.s.tration has been increased by every Land Act pa.s.sed since 1893. 'The Imperial Exchequer [_i.e._ in effect Great Britain] has made a free grant of 17,000,000 towards furthering land purchase; moreover to that end it has expressed its willingness to pledge its credit to the amount of 183,000,000 of which over 35,000,000 has already been raised. The Imperial Exchequer looks to the Irish tenant purchaser for the interest and sinking fund on that loan.'--Cambray, _Irish Affairs_, p. 214.]

CHAPTER III