The New Irish Constitution Part 32

When Protestant interests such as education, temperance, Sunday observance, marriage laws, and morals generally, are said to be in imminent danger, what is it that is meant exactly? On such subjects there are interests that are essential, and others that are matters of opinion: very important to those who think them right, but of no weight to others.

As to legislation on these questions, if Protestants imagine they have any claim or chance to impose their views in a National Parliament as they have been accustomed to do, or try to do, by aid of English votes at Westminster, the sooner they are disillusioned the better. But if they are satisfied to secure essential interests, such as thoroughness in education, increased sobriety by temperance reform, sanct.i.ty for marriage, and liberty for Sunday observance according to the conviction of each, what ground have they to fear that the influence of the Roman Catholic clergy will be cast on the side opposed to their aims? There is a very wonderful ignorance in the mind of the ordinary Protestant as to the att.i.tude of the Catholic clergy on moral and social questions. In temperance, for instance, no Church in Ireland can rival in extent or efficiency the work of the Capuchin Fathers, the Redemptorists, or the Pioneers, an organization formed by a Jesuit priest, and rivalling in thoroughness and success the "Catch-my-Pal" crusade of the Presbyterian Church. In education, too, of every grade the Roman Catholic Church advances with extraordinary zeal. True, there are Protestants who complain of the Roman Catholic opposition to "mixed education"-a palpably unfair complaint, whose underlying motive is a sectarian hope to weaken the hold of religion on the people. There has been nothing like unanimity among the Protestant Churches on the same subject. Each of them has tried its best to secure in the educational sphere its own denominational interests. It was the cry "Hands off Trinity" that killed Mr. Bryce's University Bill, which would have united the youth of Ireland in one grand university, in which Trinity might have been the proud leader of Irish University education. That legislation on education should be demanded on the lines of a mixed system is quite unreasonable, being a matter of very divided opinion; but as to the keen and successful compet.i.tion of the Roman Catholic schools and colleges with all the older inst.i.tutions in the country there is no question among those who know.

As to the moral interests of the community, it is a rather daring a.s.sumption that they will be imperilled under a distinctly Nationalist government. The reputation of the Irish race for pre-eminence in the domestic virtues is a well established fact, and no incidents of later years can cast even a pa.s.sing shadow on the fair fame of her sons and daughters. The standard of religious observance on such a matter as Sunday may be different from that of the Protestant Churches. In practice the latter have not much to boast; and experience gives no reason whatever to fear any interference with the freest pursuit of their religious convictions. The decree _Ne temere_ and cases of the undoubted miscarriage of justice arising from it have created much discussion and distrust as to the validity, under an Irish Parliament, of the marriage bond. The sanct.i.ty of that bond in the eyes of the Roman Catholic Church, to whom it is a Sacrament, cannot be doubted; and if the object of the decree is, as it appears to be, to prevent mixed marriages, it ought to win the approval of many Protestants who strongly condemn such alliances; but it is for the civil law and the Executive of any government to provide that marriages legally celebrated shall be upheld by all the power of the State. And Ireland, according to Mr. Asquith's Home Rule Bill, has no reason to dread any failure in that duty. As to the decree commonly known as _Motu proprio_, it never has been promulgated, or acted on, in Ireland or elsewhere in the British dominions. It was unearthed, after centuries of existence, by a party newspaper, and exploited for all it was worth, and a great deal more, to embitter anti-Catholic prejudices, and score a point in the Irish discussion.

As to Guarantees, opinion is much divided among Protestants. They are at best a temporary device to allay fear; and can never be a subst.i.tute for the real and honourable safeguards to be found in freedom and publicity of discussion, the spread of enlightenment and toleration, the growing spirit of Christian brotherhood and goodwill. The provisions in the Government Bill appear to be ample; but all paper guarantees are easily evaded, and it is on more permanent and spiritual a.s.surances Protestants must rely.

Seldom has Protestantism had a finer chance than she will have in Ireland under self-government, if only, inspired with the spirit of her Master and the love of her native liberty, she seeks not to grasp power, but to render service, if her idea of character be not the "old man" with his haunting memories of wrong done and suffered, but the "new man" of the Gospel, inspired by a fresh enthusiasm for the realisation of the Divine purpose in regenerated human society. No Protestant Church will perhaps ever be the Church of Ireland, as one powerful communion with a touch of the old arrogance claims to be; yet Protestantism may add something to the national piety and progress, nay, she may be another bulwark to the Christian faith in days of strain and stress, if she can exhibit to a naturally religious people a tangible proof of the possibility of uniting the Apostolic creed with the intellectual demands of modern progress, and in this way help to save the youth of Ireland from a desolating materialism. Thus Protestantism may yet be enabled to make some pious reparation for many an unholy deed done in her name to the most generous people under the sun.

FOOTNOTES

1 Professor Dicey in "A Leap in the Dark" (1911), p. 118. _Cf._ Mr.

Balfour in _The Times_, May 3rd, 1912.

2 "The Law of Const.i.tution," Sixth Edition, p. 162, where Professor Dicey makes a rather unhappy attempt to force the Dominion Const.i.tution into the category of Federalism.

3 The opinion of Laband ("Staatsrecht," I., _pa.s.sim_) as to its being found in the totality of allied Governments represented by the Bundesrath is probably nearest the truth.

4 Laband, "Die Entwickelung des Bundesraths," Jahrbuch des oeffentlichen Rechts, 1907, Vol. I., p. 18.

5 Maitland, _Domesday Book and Beyond_, p. 345.

6 It is difficult to understand what Professor Dicey means by saying "unity is increasing throughout the Empire." His argument seems like a play upon the words unity and union. In merchant shipping, copyright and other such matters, the whole tendency is towards differentiation.

7 There are innumerable cases, _e.g._ _Cruikshank's case_ and the _Slaughter House case_.

_ 8 Cf._ Mr. Balfour, _The Times_, May 3rd.

_ 9 Cf._ "Pacificus" in _The Times_, April 30th.

10 I refer, of course, to the decisions of the Supreme Court-decisions almost revolutionary in their character-in connection with the annexation of Hawaii, the Philippines and Porto Rico. See in particular _Downes_ v. _Bidwell_, 182 U.S., 244; also _Territory of Hawaii_ v. _Makichi_, 23 S.C. Rep., 787, and _Dorr_ v. _United States_, 195 U.S., 138.

11 It cannot be contended with any show of reason that the grant of a const.i.tution legally carries with it a grant of the Executive power such as to divest the Imperial Government of its authority. There is but a solitary opinion to the opposite effect-that of Higginbottom, C. J. of Victoria, in _Musgrove_ v. _Toy_ (Victorian Law Reports, XIV., 349).

12 The veto of the central Government on the local legislature is the most decisive departure from the Federal principle. The Judicial Committee have always regarded it, in the case of the British North America Act, as a conclusive reason for rejecting the application of the Federal doctrines of the U.S. Courts to the interpretation of the Canadian Const.i.tution. See _infra_, and _cf. Bank of Toronto_ v.

_Lambe_, 12 App. Cas., 575.

13 Difficulties arise when, as in the case of the Australian Commonwealth, an attempt is made to reconcile the principles of the American Const.i.tution with those of the English Const.i.tution. The State Governments in Australia, equally with the Federal Government, are carried on in the name of the Crown; what, then, becomes of the prerogative doctrine that the Crown is not bound by a taxing statute, when the Federal Executive attempts to levy Customs duties under a Federal statute upon the property of a State Government? The High Court found itself compelled to distinguish between several capacities of the Crown in a Federal system. See _A-G. of New South Wales_ v. _Collector of Customs_, 5 C.L.R., 818.

_ 14 In re Neagle_, 135 U.S. Rep., p. 1.

_ 15 Cf._ Sir William Anson, in the _Law Quarterly Review_, 1886.

16 There is, however, a provision in Clause XXVI. of the Bill Providing that, in the event of a revision of the financial arrangements being recommended by the Joint Exchequer Board, with a view to securing an Imperial contribution from Irish revenues, and "extending the powers of the Irish Parliament and the Irish Government with respect to the imposition and collection of taxes," there shall be summoned to the Imperial Parliament such number of members of the _Irish_ House of Commons as will raise the representation of Ireland in that Parliament from its reduced figure of forty-two to such a number (say seventy) as will represent Ireland's claim to representation on a population basis. That is to say, the Irish Parliament will send some twenty-eight of its members to reinforce the forty-two members who are directly elected to the Imperial Parliament by the const.i.tuencies. It is only proper that Ireland should not be required to contribute to Imperial purposes except with the consent of the full representation to which she is ent.i.tled. But the clause will require more careful definition: for example, the Irish Parliament ought to be required to choose these twenty-eight delegates in proportion to the representation of Irish parties in the Imperial Parliament, so as not to "pack" the delegation. It can hardly be denied that the provision makes a change in the const.i.tution of the Imperial Parliament itself, and a somewhat anomalous one. It ought to be carefully considered in Committee. So, also, ought the powers of the Joint Exchequer Board, whose decisions are to be "final and conclusive."

17 Clause XLI.

18 Clause XLI. (2).

19 The power of the Dominion Parliament to make laws for the peace, order, and good government of Canada has, however, been so interpreted as to permit of a large degree of concurrent legislation. See _Russell_ v. _The Queen_, 7 App. Cas. 829. The Dominion Government can also exercise a veto on provincial legislation when it runs counter to the "settled policy" of the Dominion. But in these respects the Canadian Const.i.tution diverges from the true Federal type.

_ 20 The King_ v. _Barger_, Commonwealth Law Reports, VI., p. 41.

_ 21 Riel_ v. _The Queen_, 10 App. Cas. 675.

22 Cf. _Reg._ v. _Burah_, 3 App. Cas. 889; _Hodge_ v. _The Queen_, 9 App. Cas. 117; _Powell_ v. _The Apollo Candle Company_, 10 App. Cas.

282.

23 The Imperial Parliament can, of course, legislate for any part of the world (_Cf._ _Earl Russell's_ Case, 1901, App. Cas. 446), but its power is limited in practice.

_ 24 Cf._ _Bank of Toronto_ v. _Lambe_, 12 App. Cas. 575.

25 In _McCulloch_ v. _Maryland_, 4 Wheaton 316.

26 I am concerned here only with the justification for the omission of const.i.tutional restrictions. The Bill, as compared with its predecessors, is conspicuous in this respect. Such restrictions as it actually contains are dealt with by Sir John Macdonell in Chapter IV.

27 Let me cite in ill.u.s.tration _Tilonko_ v. _The Attorney-General of Natal_, L.R. (1907), A.C. 93 and 461, and _Philips_ v. _Eyre_ (1869), Q.B.

_ 28 Walker_ v. _Sauvinet_, 92 U.S. 90.

_ 29 Cf._ Clause IV. (8) of the 1893 Bill.

30 Such legislation must affect alike all persons similarly situated, _cf._ _Yick Wo_ v. _Hopkins_, 118 U.S. 356.

_ 31 Cf._ on this subject the decision of the Judicial Committee in _Union Colliery Co. of British Columbia_ v. _Bryden_ (1899) A.C.

580.

32 "Towards a Social Policy" (1905).

33 For example, the statutory limitations of the doctrine of common employment which was based on the common law doctrine that the workman had freely contracted to undertake the risks of his employment.

34 Mr. Justice O. W. Holmes, of the Supreme Court of the United States, writes to me on the subject of const.i.tutional restrictions as follows: "The police power is a 'conciliatory phrase' to cover the fact that if the infringement is not very big it will be sustained.

The police power would warrant a State law limiting the height of buildings in a certain region to, say, 70 feet; but if you limited them to 5 feet you would have to fall back on Eminent Domain and pay for it-so that the beginning of const.i.tutional rights may be measured in feet. In other words, const.i.tutional restrictions cannot be carried to extremes, but end in a penumbra."

35 The best example of this liberalising interpretation of the police power is the famous _Slaughter House Case_ (16 Wall. 36). _Cf._ as to regulation of the liquor trade _Barbemeyer_ v. _Iowa_ (18 Wall.

129), and _Mayler_ v. _Kansas_ (123 U.S. 623). For a general review of cases bearing on the restrictive words of the Fourteenth Amendment and their qualification by the necessity of allowing State Legislatures the benefit of the police power, see the case of the Utah Miners Act, 18 Supreme Court Reporter 383.

_ 36 Cf._ the leading case of _Metropolitan Asylums Board_ v. _Hill_ and _cf._ _Partington_ v. _The Attorney-General_, L.R. 4 H.L. 122.

37 The decisions of the Supreme Court at Washington in the annexation cases are a remarkable example of this. Their decision in the case of _Dorr_ v. _United States_ that trial by jury did not extend to the Philippines, on the ground that it was not a right fundamental in its nature, set up a distinction which is not to be found in the Const.i.tution itself, and therefore left it to the court to decide principles of const.i.tutional law which are unwritten. _Cf. Harvard Law Review XIX._ 547.

38 As to the safeguard against legislation affecting the rights of religious minorities and to laws of marriage, see Sir John Macdonell's remarks in Chapter IV. _infra_.