Part 25 (1/2)

The Irish Legislature will be given power, according to the historic phrase, ”to make laws for the peace, order, and good government of Ireland,” subject to restrictions afterwards named. That the laws should be only ”in respect of matters exclusively relating to Ireland or some part thereof” goes without saying, and need not be copied from the Bill of 1893 (Clause 2). Nor need the superfluous proviso in the same clause be reproduced, a.s.serting the ”supreme power and authority of the Parliament of the United Kingdom.” The supreme power becomes none the more supreme for such a.s.sertions. Clause 2 of the Bill of 1886 is simple and decisive:

”2. With the exceptions of and subject to the restrictions in this Act mentioned, it shall be lawful for (Her) Majesty (the Queen), by and with the advice of the Irish Legislative Body, to make laws for the peace, order, and good government of Ireland, and by any such law to alter and repeal any law in Ireland.”

With the restrictions on the powers of the Legislature I dealt fully enough in Chapter X.,[172] and I need only summarize my conclusions:

1. _Reservations of Imperial Authority._--The Irish Legislature should _not_ have power to make laws upon--

{The Crown or a Regency.

{Making of War or Peace.

{Prize and Booty of War.

{Army or Navy.

{Foreign Relations and Treaties (excepting Commercial Treaties).

{Conduct as Neutrals.

{t.i.tles and Dignities.

{Extradition.

{Treason.

Coinage.

Naturalization and Alienage.

Reservation of the nine subjects included in the bracket is implied, without enactment, in all colonial Const.i.tutions, but in the Irish Bill it is no doubt necessary that all reserved powers should be formally specified.

All powers not specifically reserved will belong to the Irish Legislature, subject to those restrictions, const.i.tutional or statutory, which in matters like Trade and Navigation, Copyright, Patents, etc., bind the whole Empire.

Section 32 of the Bill of 1893, borrowed from the Colonial Laws Validity Act, will no doubt be applied.

2. _Minority Safeguards_.--This point, too, I dealt with in Chapter X.[173] Let the Nationalist Members come forward and frankly accept any prohibitory clauses which the fears of the minority may suggest, provided that they do not impair the ordinary legislative power which every efficient Legislature must enjoy. Almost every conceivable safeguard for the protection of religion, denominational education, and civil rights was inserted in the Bill of 1893, including even some of the ”slavery” Amendments to the United States Const.i.tution. The list may require revision--(_a_) in view of the recent establishment of the National University, and the disappearances of all apprehension about the status of Trinity College, Dublin; (_b_) in regard to an extraordinarily wide Sub-clause (No. 9) about interference with Corporations; (_c_) in regard to the words, ”in accordance with settled principles and precedents,” which appeared in Sub-clause (No. 8) (Legislature to make no law ”Whereby any person may be deprived of life, liberty, or property without due process of law[174] _in accordance with settled principles and precedents_,” etc.). A debate on this question may be found in Hansard, May 30, 1893. The words italicized were added in Committee on the motion of Mr. Gerald Balfour, though the Attorney-General declared that they gave no additional strength to the phrase ”due process of law,” while they certainly appear calculated to provoke litigation. Sir Henry James appeared to think that they made the suspension of the Habeas Corpus Act _ultra vires._ If that is their effect, there is no reason why they should be inserted. Even a Canadian Province, whose powers are more limited than those of the subordinate States in any other Federation, has ”exclusive” powers within its own borders over ”property and civil rights,”[175] and can, beyond any doubt, suspend the Habeas Corpus Act, if it pleases.

The same superfluous words appeared in Sub-clause (No. 9) about Corporations.

THE IRISH LEGISLATURE.[176]

As I urged in Chapter X., this is a subject in which large powers of const.i.tutional revision--much larger than those contained in either of the Home Rule Bills--should be given to the Irish Legislature itself, corresponding to the powers given by statute to the self-governing Colonies, and to the powers always held by the const.i.tuent States of a Federation. In the Bill itself it would be wisest to follow beaten tracks as far as possible, and not to embark on experiments. Present conditions are, unhappily, very unfavourable for the elaboration of any scheme ideally fit for Ireland.

_A Bi-Cameral Legislature._--Working on this principle, we must affirm that Ireland's position, without representation in the Imperial Parliament, would certainly make a Second Chamber requisite. Three of the Provinces within the Federation of Canada (Manitoba, British Columbia, and Ontario) prefer to do without Second Chambers--so do most of the Swiss Cantons--but all the Federal Legislatures of the world are bi-cameral, and all the unitary Const.i.tutions of self-governing Colonies have been, or are, bi-cameral.

_The Upper Chamber._--One simple course would be to const.i.tute the Upper Chamber of a limited number of Irish Peers, chosen by the whole of their number, as they are chosen at present for representation in the House of Lords. Historical and practical considerations render this course out of the question, though some people would be fairly sanguine about the success of such a body in commanding confidence, on the indispensable condition that all representation at Westminster were to cease. It has been members.h.i.+p, before the Union of an ascendency Parliament, and after the Union of an absentee Parliament, which has kept the bulk of the Irish peerage in violent hostility to the bulk of the Irish people.

Those Peers who seek and obtain a career in an Irish popular Legislature--to both branches of which they will, of course, be eligible--will be able to do valuable service to their country. The same applies to all landlords. Now that land reform is converting Ireland itself into a nation of small landholders, who, in most countries, are very Conservative in tendency, the ancient cleavage is likely to disappear. Indeed, an ideal Second Chamber ought perhaps to give special weight to urban and industrial interests, while aiming, not at an obstructive, but at a revising body of steady, moderate, highly-educated business men.

We have to choose one of two alternatives: a nominated or an elective chamber. The choice is difficult, for second chambers all over the world may be said to be on their trial. On the other hand, nothing vital depends upon the choice, for experience proves that countries can flourish equally under every imaginable variety of second chamber, provided that means exist for enabling popular wishes, in the long-run, to prevail. The European and American examples are of little use to us, and the widely varied types within the Empire admit of no sure inferences. Allowance must be made for the effect of the Referendum wherever it exists (as in Australia and Switzerland), as a force tending to weaken both Chambers, but especially the Upper Chamber of a Legislature. It does, indeed, seem to be generally admitted, even by Canadians, that the nominated Senate of the Dominion of Canada, which is added to on strict party principles by successive Governments, is not a success, and it was so regarded by the Australian Colonies when they entered upon Federation, and set up an elective Senate. The South African statesmen, who had to reckon with racial divisions similar to those in Ireland, compromised with a Senate partly nominated, partly elected, but made the whole arrangement revisable in ten years.[177]