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

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 obtain any alteration in the scheme save as it may be required by the regularly expressed will of Ireland as a whole. This should be an understanding outside and above all party divisions, British or Irish; and it is equally necessary whether or not a certain number of Irish members continue to sit at Westminster.

      We now turn to the possible conflicts of legislation under a federal constitution. It will be convenient to use the more expressive and generally understood word “State” for the autonomous components of the federation. The Canadian term “Province” is prior in time within the Empire; but it might be misleading to readers unacquainted with Canadian affairs, as tending to suggest merely administrative functions like those of a County Council: a body which has many important duties and some delegated legislative authority, but cannot reasonably be called autonomous. A federal constitution must assign some legislative powers exclusively to the federal legislature, and it may reserve or assign others exclusively to the State legislatures. It may also leave a region in which [pg 086] the States have power to legislate, but subject to a concurrent and superior power in the federal authority. This is actually the case in Canada. Hence questions may arise of a more complicated kind than those which are open under unitary Home Rule; they may nevertheless be instructive in simpler cases. The Judicial Committee has deliberately abstained from laying down any general system of interpretation or any presumption in favour of extending or limiting the powers of either Federal or State legislation. It is prepared to take some pains to reconcile apparently conflicting enactments, but beyond that no precise method can be formulated. The Court must deal with the problem of each case on its own merits. “The true nature and character of the legislation in the particular instance under discussion must always be determined in order to ascertain the class of subject to which it really belongs.”79 Again: “In performing this difficult duty, it will be a wise course for those on whom it is thrown to decide each case which arises as best they can, without entering more largely upon an interpretation of the statute than is necessary for the decision of the particular question in hand.”80 It would seem obvious without argument that the courts of Canada, Australia, or in the future, Ireland, cannot be bound in any case to give effect to two conflicting enactments of the local and the central legislative bodies at once, notwithstanding that some of the language used by the Judicial Committee a few years ago, on an appeal from the Supreme Court of Victoria, suggests that there is no authority anywhere, short [pg 087] of an Act of the Imperial Parliament, capable of resolving such a contradiction.81

      The question remains what should be the ultimate court of appeal for questions of this kind arising under an Irish Home Rule Act. According to our general forensic habit and tradition, it would be the court to which appeals are taken in the ordinary course from the Court of Appeal in Ireland, namely the House of Lords. It appears however to have been decided that this duty will be more appropriate to the Judicial Committee of the Privy Council. Now it is high time, for quite independent reasons, that these two courts of last resort, which are composed in practice of the same, or very nearly the same members, should be merged in a single tribunal of final appeal for the whole of the British Empire. In the meanwhile the only material difference is that when noble and learned persons are sitting as the House of Lords they can and do express their individual opinions in the form of speeches addressed to the House itself, and when they sit as “their Lordships” of the Privy Council, or “this Board,” only one opinion is given as the Judicial Committee's advice to His Majesty. For my part I rather think that the suppression of dissenting opinions does not work well in cases of constitutional interpretation. Some decisions of the Judicial Committee within pretty recent memory have been hardly intelligible; one is tempted to conjecture that not all of the reasons for them commanded unanimous assent, and the reasons to which the whole or the greater part of their Lordships could agree were not the best that [pg 088] any of them could have given. Separate and dissenting opinions are freely given in the Supreme Court of the United States, which has dealt with the most delicate constitutional questions ever since its work began. If I were an Irishman I think I should prefer the House of Lords to the Judicial Committee. But, as above said, it is hoped that before very long they will cease to be distinct tribunals. Moreover there is a practical reason, which shall now be mentioned, for making the Judicial Committee the final Court of Appeal in this behalf.

      It appears from the published text of the Bill [cl. 29, sub.-cl. 1] that the Lord-Lieutenant or a Secretary of State—in ordinary political language either the Irish Government or the Home Government—may refer a question whether any provision of an Irish Act or Bill is constitutional to be heard and determined by the Judicial Committee of the Privy Council. That Committee is to decide who are the proper parties to argue the case. There does not seem to be any reason to apprehend that the parties interested would make difficulties on the score of expense; they would be either public authorities or representative associations. This provision is really not a novelty but a special declaration, and perhaps an enlargement, of the very wide power given by the Act which established the Judicial Committee in 1833,82 and empowered the King “to refer to the said Judicial Committee for hearing or consideration any such other [pg 089] matters whatsoever as His Majesty shall think fit”: a power more than once exercised in our own time.83 It is quite easy, however, for even learned persons who are not familiar with the practice of the Privy Council to overlook the existence of this enactment, and therefore the insertion of an express clause in the Home Rule Bill is judicious. Probably no one will seriously propose to deprive the Crown, as regards Ireland, of a power which it already has throughout the British Empire. But it is a matter from which party politics ought to be rigorously excluded. It should be understood that the power will not be exercised without a considered opinion of the law officers, in Ireland or here, that there is a substantial and arguable question.

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IV.—Constitutional Limitations Upon The Powers Of The Irish Legislation. By Sir John Macdonell, C.B., LL.D.

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