The New Irish Constitution: An Exposition and Some Arguments. Various

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      It is not possible within the limits of a paper like this, to enumerate the provisions of law, peculiar to Ireland which the organic changes indicated in the preceding paragraphs may necessitate. An enquiry into that matter (as into the redundancy of Judicial, Executive and Secretariat establishments) will no doubt be undertaken by the Irish Government on a suitable opportunity. But it is probably correct to say that changes of substantive law will not be so much required as changes of practice, whereby the administration of the law may be brought more into harmony, than it is at present, with popular sentiment.

      It is always to be remembered that the scheme of Home Rule or Devolution which is advocated in this paper, does not contemplate the creation of a body of law for Ireland, different from that prevailing in Great Britain. In all matters of status, property and personal rights, the laws of the two countries will, I presume, remain identical; and no legislation of a restrictive, sectional, or sectarian character will be permissible in the one country, which is not permitted in the other. It is also to be presumed that the decrees of English Courts will be as enforceable by Irish Courts and Authorities as they are now, and vice versa; and that, in fact, the Judicial and Executive Organisations will be as available, under the new order of things, for carrying on His Majesty's Government in both countries, as they are now.

      If this be understood, most of the doubts and fears, and forebodings of evil to come from this extension of Irish Local Government, will, I predict, be soon dissipated.

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III.—The Judicial Committee And The Interpretation Of The New Constitution. By Sir Frederick Pollock

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      “In this [the United States] and all other countries where there is a written constitution designating the powers and duties of the legislative, as well as of the other departments of the government, an act of the legislature may be void as being against the constitution.” So James Kent wrote in his Commentaries when the foundation of American independence was still within living memory, and an observer in search of constitutional autonomy under the British flag beyond the British Islands would have been driven to find his best example in Barbados. Kent continues: “The judicial department is the proper power in the government to determine whether a statute be or be not constitutional”; for the interpretation of the constitution which is the supreme law of the land is as much a judicial act as the interpretation of an ordinary written law. This is the view most natural to minds trained in English legal and political tradition. It was established in the United States by a decision of the Supreme Court at Washington early in the nineteenth century, and, though not previously free from controversy, has been received ever since; [pg 082] and it has been accepted by British publicists and lawyers as applicable to the decision of causes involving constitutional questions throughout the British Empire. As Chief Justice Marshall said:

      “If two laws conflict with each other, the courts must decide on the operation of each. If the courts are to regard the constitution, and the constitution is superior to any ordinary act of the Legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.”76

      The principle, so far as I know, has never been disputed by any English authority, but occasions for its application did not often arise before our own time. In strictness of law the King in Parliament has supreme legislative power, as with or without Parliament he has supreme executive power, in every part of his dominions. But in fact very large powers of government have been granted in various ways and at various times, and in the cases which now concern us are coupled with an effectual understanding, though of a political rather than legal nature, that they shall not be recalled. It may be observed that a grant of this kind is quite possible without representative institutions. Extensive powers of government and jurisdiction, including the highest “regalities” which could be granted to a subject, were conferred on individuals by several of the early colonial charters. William Penn's charter is perhaps the best known of these, and is a striking example. This, however, is remote from the present purpose, as is the still wider subject of the political and semi-political authorities granted by charter to the East India Company and other trading companies. We have now to attend only to the creation of autonomous powers by statutes of the Imperial Parliament.

      The accustomed form in such creations is to confer [pg 083] in express words power to make laws for the peace, order (sometimes “welfare”), and good government of the territory in question. Within the limits prescribed in its constitution, legislative power so created is full and perfect. The Judicial Committee of the Privy Council has repeatedly laid down—not for one Dominion only, but alike for British India, Ontario and New South Wales—that it must not be likened to the merely vicarious authority of a delegate or agent, and is not to be restrained by the rules applicable to agency. So far as it extends, it is a plenary power analogous to that of the Imperial Parliament itself and not to a ministerial authority which cannot be delegated; and this applies to the federated units in a federal system no less than to central or unitary legislature.77 It is, therefore, not quite accurate, though useful in the first introduction of novices to the subject, to liken the enactments of any such local legislature to the by-laws made under statutory authority by a railway company or a town council. Such bodies can make the regulations they are empowered to make, but cannot delegate the framing of any regulation, or the decision of questions arising under it, to the traffic manager or the town clerk. But a local legislature, within the limits of subject-matter originally fixed, can do all that its creator the Parliament of the United Kingdom could have done. The working safeguard against legislation which, by improvidence or oversight, would conflict with Imperial requirements, is the refusal of royal assent by the local Governor on the advice of his Ministers, or, in the last resort, by the Home Government. Some of the earlier Acts establishing [pg 084] self-government, following the common form of the old colonial charter, provided that local legislation should not be repugnant to the laws of England. This might have been held to forbid such revolutionary changes as abolishing the publicity of Courts of Justice or depriving prisoners of the right to trial by jury. In our own time the question has been raised whether the sacred number of twelve jurymen could be reduced by Order in Council in a criminal court established under the Foreign Jurisdiction Acts in an Asiatic country.78 But in 1865 it was expressly declared by the Colonial Laws Validity Act that the enactments of colonial legislatures should not be called in question for repugnancy to the law of England in any other sense than repugnancy to some Act of the Imperial Parliament or an order made under its authority.

      These matters are only preliminary to the questions that arise under federal constitutions, but they are necessary to be understood if we are to avoid confusion. In the case of a federated Dominion within the British Empire the federal constitution is itself an Act of the Imperial Parliament, and therefore all exercise of legislative power in the Dominion, whether by the central legislature or by that of any constituent State or Province, must be consistent with its provisions, or otherwise it will clearly be invalid to the extent of the repugnancy or excess. Every such constitution has to assign the bounds of central and local legislation; in the case of Canada, for example, the field of action open to the Dominion Parliament at Ottawa and the legislatures of the several Provinces. In strict legal theory the Confederation Act of Canada or the Commonwealth Act of Australia can be amended at Westminster [pg 085] like any other Act of Parliament; but, as in fact these constituent Acts were framed by Canadian and Australian statesmen, so it is well understood that the Home Parliament will not touch them except at the request of Canada or Australia. With such request, there have been amendments and legislative interpretations of the Canadian Constitution. If any Act of Parliament might be called unconstitutional, uninvited intermeddling with the constitution of a self-governing colony would be so. We may pause here to draw one immediate consequence. Whenever Home Rule is enacted and established for Ireland, Parliament must harden its heart against all endeavours, from whatever quarter they may proceed, to СКАЧАТЬ