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

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СКАЧАТЬ Majesty to determine11 what prerogatives shall be delegated after the Act has come into force. As regards the legislative power, it will remain with the Imperial Government to give it effect by granting or withholding the King's assent to Irish legislation,12 and the Imperial Parliament may, at any time, exercise its supremacy to the prejudice of such legislation, even after it has found its way on to the Irish statute-book. As regards the judiciary, there will, of course, be no dual judiciary: Irish Courts will interpret and enforce Imperial as well as Irish statutes, but both in the one case and in the other their judgments will be subject to appeal to an Imperial Court—the Judicial Committee of the Privy Council. In other words, the Imperial power will be supreme in the executive, the legislative, and the judicial sphere.

      Now in Federalism in the true sense—and I regard the constitution of the United States as the archetype—there is no such subordination. The authority of the constituent states and of the Federal nation are distinct and independent of one another. The Governor of the State is appointed not by the Federal authority, but by the State itself, whose servant he is. There [pg 009] is no “Crown” to serve as a common denominator of State and Federal Executives.13 The one is not subordinate to the other, but is co-ordinate with it. The legislation of the State is subject to no external veto by the President. Nor is it subject to a legislative veto. In all matters not expressly conceded to the Federal Legislature, the State Legislatures remain as supreme after the enactment of the Federal Constitution as they were before it. In the legislative, as in the executive, sphere, the two authorities are co-ordinate. So with the judiciary. The decisions of the State Courts, in so far as they deal with State matters, and do not involve the interpretation of the Federal Constitution, are final and subject to no appeal to the Supreme Court at Washington. Conversely, Federal Circuit Courts exist independently of the State Courts to decide cases arising under Federal statutes or involving the interpretation of the Federal Constitution, and their judgments are enforced not by the State Executive but by the Federal Executive, which has its own marshals for the purpose. Nor can an act done by a Federal official, in obedience to a Federal statute, be punished by the State Court, even though it appear to involve a breach of a law of the State.14

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      It is this dual allegiance that constitutes the inherent weakness of all Federal systems. Arguments based upon it have been urged against the grant of self-government to Ireland. Even those who admit that Federal analogies have no application so far as the relations of the Imperial and Irish legislatures are concerned, and who concede that the Irish Parliament will be as subordinate as a State Parliament in a Federal system is co-ordinate—none the less insist that in the relation of the two executives there is a real and perilous dualism. Many opponents allege, and no doubt, believe, that, with an Irish Parliament sitting at Dublin, the King's Writ will not run, the decisions of the Judicial Committee will not be enforced. Imperial statutes will not be obeyed, and Imperial taxes will not be collected. If there were a real delimitation of Courts and Executives, Imperial and Irish, under the new system, such a danger, though remote, would be conceivable. But no such sharp distinction is to be found in the Bill. In political unions, the central Government may act upon its subjects in a particular state directly through its own agencies—its own Courts, its own Executive officers, and its own police—this is the true Federal type; or it may act indirectly through the agency of the State authorities. Conversely, the State Governments may act directly through their own agencies—this again is the Federal principle, or they may act indirectly through Imperial agencies. Now wherever this indirect action is employed in both its forms the distinction between the two authorities is confused, the Federal principle undergoes a qualification which, by depriving it of half its symmetry, deprives it of all its weakness. Just this reciprocal relationship is established between the Imperial Government and the Irish Government.

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      Imperial officials will be at the service of the Irish Government, and Irish officials at the service of the Imperial Government. For example, in the collection of taxes imposed by the Irish Parliament, the Irish Government will depend upon Imperial revenue officers to assess and collect them. The Imperial Government, on the other hand, will depend upon Irish Courts and Irish sheriffs to enforce their collection. Irish sheriffs will, in turn, depend upon an Imperial constabulary to assist them in levying execution. I shall return to some of these points in greater detail when I come to deal with the relations between the Executive and the Judiciary, and the maintenance of law and order. It is sufficient for me to remark here that the Irish Nationalist who wishes to defy the Imperial Government, and the Irish Unionist who wishes to defy the Irish Government, will each be hard put to define what he is pleased to regard as the limits of political obligation. He will find it difficult to distinguish where the authority of the Irish Government ends and that of the Imperial Government begins.

      The Supremacy of the Imperial Parliament.

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      In the new Bill the supremacy of the Imperial Parliament is secured by express words. The words are not necessary. No Parliament can bind its successors, and what one Parliament has done another Parliament may undo. Even when one Parliament has been at pains, by declaring its legislation “perpetual” or “unalterable” to bind posterity—as in the case of certain clauses in the Irish and Scotch Acts of Union—its injunctions have been disregarded by its successors with no more formality than is necessary in the case of any other legislation. An Act setting up a new Constitution is no more irrevocable than an Act authorising the [pg 012] imposition of the income tax. If, therefore, the Imperial Parliament chooses to grant a Constitution to Ireland, there is nothing to prevent its revoking or amending that grant, even (we submit) though it should have been at pains to enact that the Constitution could only be surrendered or altered by the consent of the Legislature which that Constitution created. Some doubts did, indeed, arise as to this point in the case of the Home Rule Bill of 1886, which not only excluded the Irish members from Westminster, but made provision for the amendment of the new Constitution by stipulating that such amendment should be made, if at all, by the joint authority of the Irish and English Parliaments. Whether this would have had the effect of preventing the “Imperial” Parliament from amending such a Home Rule Act without calling in the assistance of the Irish Parliament was much discussed at the time.15 Obviously, the question does not now arise, as the Irish members are to continue to sit at Westminster.16

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      It is therefore open to the Imperial Parliament at any time to repeal or amend the Government of Ireland Bill after it has become law. On the other hand, the Irish Parliament will have no power, except in so far as such power is conceded by the Act itself, to alter its provisions. This is stated in the Bill itself,17 but the statement is superfluous. It follows from the doctrine of the supremacy of the Imperial Parliament that statutes of that Parliament can only be repealed by the Parliament itself. No constitution granted to a British Colony, however large the grant of self-government it contains, can be altered by that colony unless the power to alter it is expressly conceded. Such a power, when the Constitution itself does not prescribe some particular method of constitutional amendment, has indeed been granted in general terms by Section 5 of the Colonial Laws Validity Act, but this Act could not apply to Ireland, which is outside the legal definition of a colony contained in the Interpretation Act of 1889. The only powers of constitutional amendment which the Irish Legislature will possess are those expressly conceded in Clause 9, which enables it after three years from the passing of the Act to deal with the franchise and with re-distribution.

      The Irish Parliament will, of course, have power to [pg 014] repeal any existing Acts of the Imperial Parliament in so far as they relate to Ireland, and do not deal with matters exempted from its authority. It would be impossible for it to legislate for the peace, order, and good government of Ireland if it had not this power, and the power is implied in the general grant. But if the Imperial Parliament chooses to continue to legislate for Ireland, even in matters in regard to which the Irish Parliament has been empowered СКАЧАТЬ