Part 1 (2/2)

Her place and power in the Community will prove to be of no mean degree, and of no small meaning for the nations outside that Community, as well for the peoples and nations within it, if she rally her strength around her and prove worthy of her destiny. When she shall have conferred a Const.i.tution upon herself, within the limits of her contractual obligation in the Treaty, she will not have foresworn her heritage (unless she elect to do so); she will not have diminished her strength (unless she choose to dissipate it); but she will be able by a persistent purpose, of which she has already given her pledges, to contribute in the future as she contributed in the past, with a security that has not been allowed her for many centuries, to the benefit of nations. And it is to this end I dedicate this little book.

The Irish Const.i.tution

I.

WHAT IS A CONSt.i.tUTION?

During the early days of the second French Republic a customer entered a bookseller's and asked: ”Have you a copy of the French Const.i.tution?” ”We do not,” the bookseller politely replied, ”deal in periodical literature.”

Now, to any student of history such a story is a sure indication of the time of which it is told. He need not inquire to know that the time was one of revolution, change, and unsettlement. He also knows the mind of the people of that time, for insecure conditions beget a nervous, restless fear. And these things are significant. They reveal a quality of const.i.tution-making that is not always, or easily, remembered. For whatever changes may proceed in legislation--however many and rapid they be--as long as the Const.i.tution, written or unwritten, remains intact, the State at least is stable and its foundations are secure.

Plainly, therefore, nothing should be written into a Const.i.tution that is of a temporary, experimental, or questionable nature, or which should fall to the lot of ordinary law-making and the changing convenience of practice. A Const.i.tution is that which is permanent, as far as anything in this world may be permanent. Even to amend it, or add to it, requires in all countries (except England, where the Const.i.tution has not taken a written form) a procedure quite different from that of ordinary legislation. To change it, or recast it, requires a revolution. Such a revolution may not be accompanied by bloodshedding, or it may, but it is certainly accompanied by insecurity and unsettlement.

It should, therefore, be the business of const.i.tution-makers to prescribe only what to them is fundamental and irrefutable; to lay down the secure foundations of their State; and to leave all other matters to the experience of the nation, without seeking to shackle that experience by provisions that time may not commend. Otherwise, a convulsion may be necessary to get done what ordinary legislation could have accomplished without affecting the stability of the State.

This, then, is the first definition of a Const.i.tution, that it contains the Fundamental Law of a State, and only the Fundamental Law. In England there is no such thing as a Fundamental Law. It is claimed by English const.i.tutional lawyers that this is because Parliament is sovereign; but the historical truth is that in England Parliament exercises a sovereignty in fact which the King is supposed to exercise in theory; and any attempt to make the theory square with the fact by the writing of a Fundamental Law would lead, perhaps, to a surprising situation.

Yet in England certain fundamental rights are recognised, with which Parliament would not lightly tamper; and these amount in effect to a Fundamental Law, holding a higher rank than ordinary laws. In practically all other countries such rights are set forth in a doc.u.ment, different from all other legal doc.u.ments, inasmuch as unless these other doc.u.ments observe the conditions required in the first, and do not conflict with its provisions, they are null and void. In both sets of doc.u.ments the laws of the realm are to be found; but the two sets of laws are of different sorts. One is fundamental and permanent; the other is by contrast casual and changeable.

This, then, is the second definition of a Const.i.tution, not only that it contains the fundamental law of a State, but that it prescribes the manner in which all other laws must be made, and put limits and restrictions on all other law-making. In the American phrase, it is a ”Frame of Government.”

In English the words Const.i.tution and Legislation do not carry on their face the relation of one to the other, and the distinction between them.

In Irish the case is different. In Irish the word for Legislation is _Reacht_, and the word for Const.i.tution is _Bunreacht_--fixed and foundation legislation. But even the distinction so simply carried on the face of these words does not complete the relation of one to the other.

For that relation is precise; and consists in the fact that all laws comprising the _Reacht_ must be built upon the foundation of the _Bunreacht_, and must be contained within the fixed limits of the _Bunreacht_. The moment they attempt to build elsewhere, or go outside those limits, that moment they cease to be binding on any citizen; and all citizens may claim the protection of the courts of law against them.

From this follows the third definition of a Const.i.tution, which is that it contains the highest and completest sovereign act of a nation. A nation may confer a Const.i.tution on itself, and that Const.i.tution may contain no declaration that the people are sovereign; but the fact that the nation did so make their own Const.i.tution is itself a declaration of sovereignty.

Declarations of sovereignty in the body of a Const.i.tution may be very wise; and they are always pleasant; but they are not necessary.

Similarly, a nation may make a Const.i.tution for itself, and in that Const.i.tution confer the chief executive authority on a person to be known as a king; and that person may be known in name as a sovereign; but the fact that he derives his power from the Const.i.tution is evidence that, not he, but the people, are sovereign. His is only a sovereign name; theirs is the sovereign reality.

Such Const.i.tutions were made in 1814 by Norway, in 1830 by Belgium, and only last year by ”Jugo-Slavia.” In the last case the kingly line already existed before the Const.i.tution was framed, and an oath was prescribed in it, according to which the King swore ”to maintain the Const.i.tution intact.” In the first two cases the kingly lines were not chosen until the Const.i.tutions had been framed, when the chosen dynasties stepped into the places appointed for them, and carried out the functions defined for them.

In each case, however, the authority of the king sprang, not from the divine right of kings, but from the divine right of the people, as set forth in the sovereign act of giving themselves a Const.i.tution.

How different the power of kings such as these from the power of the French monarch who in the 18th century declared, ”L'Etat, c'est moi”--”I am the State.” He was right. He was sovereign. Sovereignty had to reside somewhere; and until the people arose and declared that it resided in them, and expressed that declaration in a formal Const.i.tution, it continued to reside in the ruler who claimed it.

When, however, in 1787, the thirteen American States ”ordained and established a Const.i.tution” for their Union, then in the modern world the people came by their own. France quickly followed the example, but as a result of the wars which followed the world was thrown back into reaction.

Throughout the 19th century, however, the statement of democratic sovereignty as a fundamental law of the State found expression in Const.i.tution after Const.i.tution; with the result that now, in modern practice, the existence of a Const.i.tution is practically identical with a statement of national sovereignty.

There has. .h.i.therto been one chief exception; and that exception is of striking interest at the present time. For within the British Empire the theory has been that there is only one sovereign a.s.sembly, the Parliament at Westminster. It is true that the Const.i.tutions of Canada, Australia and South Africa were each drawn up by Const.i.tuent Conventions in the countries themselves; but by the prevalent theory none of these peoples were competent to confer these Const.i.tutions upon themselves. They were not, that is to say, sovereign; and before the Const.i.tutions they devised therefore could come of effect they had to be pa.s.sed as Imperial Acts by the Parliament at Westminster.

Yet that also has now changed. Ireland has wrought the change; and the deep influence of that change cannot be foretold. For the Dail elected to pa.s.s the Const.i.tution will act, not as a Const.i.tuent Convention, but as a Const.i.tuent a.s.sembly. It will not only devise the Const.i.tution, with the present Const.i.tution before it as a Bill for discussion, but, having devised it, will prescribe it; and thus, through their elected representatives, the people of Ireland will have conferred it on themselves as their Fundamental Law.

That is a sovereign act; and that act will differ in no degree from a similar act by any other sovereign people. From this, however, one last consideration follows; and, though it is simple, it is not usually remembered. For if the pa.s.sing of a Const.i.tution is an act of full sovereignty, and if that Const.i.tution, being a Fundamental Law, restricts and limits all future law-making, then the a.s.semblies to come which will pa.s.s those future laws will not be sovereign.

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