“The Law of Constitution,” Sixth Edition, p. 162, where
Professor Dicey makes a rather unhappy attempt to force the
Dominion Constitution into the category of Federalism.
The opinion of Laband (“Staatsrecht,” I., passim) as to its
being found in the totality of allied Governments represented by
the Bundesrath is probably nearest the truth.
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.
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.
It cannot be contended with any show of reason that the grant
of a constitution 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).
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 Constitution. See infra, and cf.
Bank of Toronto v. Lambe, 12 App. Cas., 575.
Difficulties arise when, as in the case of the Australian
Commonwealth, an attempt is made to reconcile the principles of
the American Constitution with those of the English Constitution.
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.
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 constituencies. 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
entitled. 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 constitution 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.”
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 Constitution diverges from the true Federal
type.
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.
I am concerned here only with the justification for the omission
of constitutional 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.
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.
Mr. Justice O. W. Holmes, of the Supreme Court of the United
States, writes to me on the subject of constitutional 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 constitutional rights may
be measured in feet. In other words, constitutional restrictions
cannot be carried to extremes, but end in a penumbra.”
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.
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
Constitution itself, and therefore left it to the court to decide principles
of constitutional law which are unwritten. Cf. Harvard Law
Review XIX. 547.
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.
The mere fact that the Crown had given its consent to an Irish
Act would not make that Act intra vires if it exceeded the powers
of the Irish Legislature. It might subsequently be declared ultra
vires by a Court at any time.
I am not at all sure that this provision was necessary. The Crown
already has the power under 3 & 4 Will. IV. cap 41, sec. 4 to refer
to the Judicial Committee any such matters whatsoever as it may
think fit. The Canadian Government has a similar power conferred
on it by the Supreme Court Act, 1875, extended by 54 & 55 Vict.,
enabling the Governor-General in Council to refer to the Supreme
Court certain specified matters, particularly questions touching the
validity of provincial or Dominion legislation. The decision of the
court operates as a declaratory judgment, on which an appeal may
be taken to the Judicial Committee. For example of its exercise
cf. the Manitoba Schools Case. See Sir Frederick Pollock's remarks
in Chapter III.
The English judges, even when favourable to the claims of
the early Irish Parliament, insisted on this limitation. Cf. the Case
of the Merchants of Waterford; Year Book, Ric. III., fol. 12.
The law as to treason is not necessarily the same in the
Colonies. Cf. Riel v. The Queen, 10 App. Cas. 675, and also R. v.
Marais, L.T. Rep. LXXXV., p. 363.
There can, I think, be no doubt as to the necessity. I know
but one opinion, and not a very authoritative one, to the contrary,
namely that of a Chief Justice of the Colony of Victoria. See
Musgrove v. Toy V.L. Rep. XIV. 349, and supra.
Even, however, if there had not been such an express grant of
the executive power in the Act, the Irish Parliament might, I think,
have assumed it by legislation. A colonial Legislature can, subject,
of course, to the veto of the Crown, confer on the Colonial Government
the prerogatives in so far as they are necessary to the domestic
government of the colony. Cf. Lefroy, “Legislative Power in
Canada,” p. 180.
His office is not the creation of statute except in so far as it
was necessary to place his salary on the Estimates. His office has,
however, frequently received statutory recognition in connection
with the creation of new Departments. Cf. the Irish Local Government
Board Act (1872), Section 3.
I have examined with some care the theory of Second Chambers
in my articles in The Nineteenth Century, for November, 1910, and
June, 1911. I may also refer the reader to my book on “The
House of Lords and the Constitution,” and particularly to the
Lord Chancellor's preface to the same. Foreign examples are dealt
with in the reprint of the author's lectures on “The Place of a Second
Chamber in the Constitution” (1911).
There is this much to be said for nomination, that it does fulfil
the condition laid down by Alexander Hamilton and by Story as the
first canon of the bi-cameral theory—namely, that the basis of the
two chambers should be radically different. See Story's Commentaries
(ed. Bigelow) Vol. I., Section 690. This is not so easy to
secure by election in modern times when there is suspicion of any
other than a democratic franchise.
I refer the reader for detailed treatment of the subjects of Irish
Appeals, Constitutional Limitations, and Police and Judiciary, to the
chapters by Sir Frederick Pollock, Sir John Macdonell and Serjeant
Molony. I have not thought it necessary to touch on the
financial provisions of the Bill, as they are exhaustively treated by
Lord Welby in Chapter V.
Statutory changes in the common law (it would be more correct
to call it “the civil law”) of Scotland are rarely made by Parliament
except on the initiative, or with the consent, of Scottish members.
There is a remarkable clause in the Act of Union between
England and Scotland (6 Anne, Cap II., Art. xviii.) providing that
“no alteration may be made in the (Scotch) laws which concern
private right except for evident utility of the subjects within Scotland.”
The law relating to matrimonial causes in Ireland is governed
by the Matrimonial Causes and Marriage Law (Ireland) Amendment
Act of 1870, and is practically the same as the English Law
before the Matrimonial Causes Act of 1857.
Power to make such re-arrangements or transfers by Order
in Council is given by Sections XL. and XLIV. of the Government
of Ireland Bill.—Editorial Note.
“Money for loans in Ireland shall cease to be advanced either
by the Public Works Loans Commissioners or out of the Local Loans
Fund” (Clause XIV. (3)).—Editorial Note.
The clause in question which set up a Court to be known as
the Exchequer Division with a quasi-federal jurisdiction has not
been repeated. SeeChapter I. of this work.—Editorial Note.
Clauses II. and V. provide for the reservation of the Constabulary
for a period of six years from the appointed day, at the end
of which the force is to be transferred to the Irish Government.
The Dublin Metropolitan Police is transferable at once.—Editorial
Note.
Provision is made by Clause IV. of the Bill for the appointment
of heads of Departments who shall be known as “Ministers.”SeeChapter I. of this work.—Editorial Note.
A similar provision appears in the new Bill, but the character
of the Executive Committee is much more explicitly defined. See
Clause IV.; also Chapter I. of this work.—Editorial Note.
Webb v. Outrim (1907) A.C. 81. The appeal which before the
Constitution Act of 1900 lay direct to the Crown in Council from
the Supreme Courts of the several Australian Colonies is not
abolished.
3 and 4 Will. IV. c. 41, s. 4. Under this section the question
whether the Royal assent should be given to a Bill of the Irish
Parliament could certainly be referred to the Judicial Committee,
but it seems doubtful whether an Act already passed could be so
dealt with, as the matter would then be beyond the competence of
an Order in Council.
The Syllabus of March 8th, 1861 (Proposition 57) condemned
the proposition that “any other religion than the Roman Catholic
may be established by the State.”
To illustrate this, I quote first from a Roman Catholic writer
of distinction: “Religious liberty may be introduced when it is
required for the common good, to prevent greater evils, or when
it has been a necessity” (Hergenröther, Vol. II., p. 364). “Where
modern States exist with freedom of conscience and several religious
denominations with equal rights, it is impossible further to carry
out the principles of the Church. In these days the Church is
confined to the purely ecclesiastical domain, and her whole endeavours
must be directed to preserve her necessary freedom, or
if she does not possess it, to win it back” (Hergenröther, Vol. I.,
p. 65). The next quotation is from a modern Protestant historian
“The Pope would like to have freedom of conscience in Sweden
and Russia; but he does not wish for it on principle, but only
as a means which may be used by Providence to propagate the
truth in those countries. Pius IX. and Mgr. Pie were agreed that
only in countries where the Catholics are in a minority might religious
freedom be wished for by Catholics” (Nielsen “History of the
Papacy in the Nineteenth Century,” Vol. II., p. 263). See also
Ueber die Entwickelung des Katolischen Kirchenrechts im 19. Jahrhundert,
Von Dr. Fritz Fleiner.
Mr. Gladstone (“Church and State,” p. 185) enumerates eight
principles adopted by modern Governments with regard to the
support of religion and the treatment of its varieties. He subsequently
reduces them to four; the first in which heresy and schism
were visited with civil penalty pro salute animæ for the cure of the
individual. The second in which they were similarly visited, but
chiefly in the view of preventing the infection of society within
which limits they had appeared. The third in which disqualifications
of a civil kind are imposed instead of penalties. The fourth
is that in which all forms of religion claim from Government a precisely
equal regard, as respects either civil privileges or positive
assistance (pp. 187, 188). Zeller (“Staat und Kirche,” p. 6) reduces
the principles to three; substantial identity of Church and State;
complete separation; partial separation and identity.
Keith: “Responsible Government in the Dominions,” Vol. III.,
1423n. In Gignac's “Compendium Juris Canonici ad Usum Cleri
Canadensis” (1901) is a statement of the large rights which the
Catholic Church has acquired in Canada in virtue of treaties.
“There is at present no general marriage law for the Dominion,
and it is disputed whether the Dominion Parliament has power to
pass such an Act. Each province has legislated with respect to
this subject. The Government of the Dominion have just referred
to the Supreme Court (March 11th) a stated case regarding the
respective jurisdictions of the Dominion and provinces in regard
to a marriage law. The Quebec provinces argued that there is
no power on the part of the Dominion Parliament to submit such
a case to the Supreme Court. The point stands over until May 7th.”
(The Globe, Toronto, March 12th.)
It is only right that the rest of the letter should be quoted:
“But it is, in my opinion, much to be regretted that by the promulgation
of the decree, and even more by the language which appears
to be sometimes used to secure obedience to it, the Roman Catholic
Church should introduce confusion into domestic life and give rise
to unnecessary and disquieting doubts as to the legal validity of
marriages already contracted, or as to the lawful status of persons
who may hereafter marry.”
It is perhaps hardly necessary to remind the reader that Lord
Welby was a member of the Royal Commission on the Financial
Relations between England and Ireland which reported in 1896.—Editorial
Note.
It is not clear from the Bill or the explanatory paper, whether
the Irish Postal Revenue will be paid into the British Exchequer
in the first instance, or retained in the Irish Exchequer. I presume
the former.
The Constabulary charge is fixed at first at £1,337,000. If in
the six years of Imperial control the cost rises to (say) £1,500,000-£1,500,000
will be the sum transferred; but the Bill does not say
what is to happen if the cost were to fall to (say) £1,300,000. Explanation
is needed as to the effect of the proviso that regard is to
be had to the prospect of any increase or decrease expected to arise
from causes not being matters of administration.
Taking Census of 1911 as a basis, see Civil Service Estimates
1912-1913, Class III. pp. 111 and 119, Reports of H.M. Inspectors
of Constabulary for England and Wales, 1910, p. 135.
Part I. of this Chapter incorporates the statement on the
Land Question prepared by the Right Hon. W. F. Bailey, Estates
Commissioner for the Commission on Congestion in Ireland, presided
over by the Earl of Dudley. It has been brought up-to-date, but
otherwise it is almost word for word as the learned Commissioner
wrote it.
A considerable portion of this chapter appeared in the form of an
article in The Contemporary Review in the year 1887, but it has been
rewritten by Lord Fitzmaurice for the purposes of this work. We
have to thank the Editor of the The Contemporary Review for his kind
permission to make use of the original text—Editorial Note.
“Grattan's Speeches,” Vol. III., 355, 409; January 15th,
February 22nd, 1800. “Fox's Correspondence,” i., 426; “Life
of Lord Shelburne,” iii., 149; “Parliamentary History,” xxx., 957
(Speech of General Fitzpatrick).
Much interesting light has been thrown on the history of the
struggle in 1782-1783 between Grattan and Flood, by the publication
of the Diary and Correspondence of Lord Charlemont, in the
Reports of the Historical MSS. Commission, Twelfth Report, Appendix
Part X., 1891. The abstract doctrine of the legislative supremacy
of the British Parliament, and not only the practical application
of that doctrine, was strenuously disputed by many of the
leaders of Colonial Opinion in America as well as in Ireland
at the commencement of the XVIIIth century, as a reference
to the literature of the Stamp Act and the Declaratory Act of 1766
will show. The doctrine itself was one of the consequences of the
Revolution of 1688, which true to the general principle of exalting
the importance of the British Parliament, abolished on the one
hand the right of the Crown to tax the Colonies by virtue of its
prerogative, and on the other asserted a right in the British Parliament
to legislate and tax in the “settled” Colonies of the Crown
concurrently with the local representative assemblies, and, if necessary,
over their heads. The same class of arguments were used
both by Colonial and by Irish statesmen against the claims of the
British Parliament to interfere as between them and the Crown;
but the Irish case was always the stronger of the two, because her
advocates were able to start from the admitted right and position
of Ireland as a kingdom, with a Crown of her own. To the claims
of the British Parliament, the Whig statesmen, recognising their
danger in practice, tried to set constitutional limitations, and hence
grew up the distinction, on which the elder Pitt relied, between
the right of Great Britain to impose by law internal taxation within
the Colonies for the purposes of revenue, and her right to levy external
taxation for the regulation of Colonial trade. This distinction, however,
from a legal point of view, Lord Mansfield showed, would not
bear examination, and he laid down the law to be, that the Parliament
of Great Britain had an absolute legislative supremacy over
her Colonies—and by implication over Ireland—in all cases whatever,
whether for internal or external objects; whether to impose
a tax, or to regulate trade; whether to levy money, or to make
general enactments; and this doctrine it was which was recorded
in the Declaratory Act of George III. of 1766, relating to the Colonies,
the counterpart of the Declaratory Act of George I., relating to
Ireland. (See Bancroft, Vol. III., Ch. xix., The Absolute Power
of Parliament; “Life of Lord Shelburne,” Vol. I., Ch. iv., p. 253.)
“In Ireland,” said Lord Normanby, “the landlord has the
monopoly of the means of existence, and has a power of enforcing
his bargains which does not exist anywhere—the power of starvation.”
A debate took place in the House of Lords on the subject
on February 17th, 1905. The correspondence between Mr. G.
Wyndham and Sir A. MacDonnell on the latter's appointment
appears as an appendix in “The Outlook in Ireland” (John
Murray. 1912.)