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

of the powers of the Imperial Parliament, but merely concurrent. And whenever an Irish and an Imperial statute conflict, the rule of construction will be in favour of the latter.

      The Powers of the Irish Parliament

       Table of Contents

      The Irish Parliament is given a general power to make laws for “the peace, order, and good government” of Ireland. The words are those usually employed in the grant of legislative power in colonial constitutions, and they have been interpreted as authorising “the utmost discretion of enactment for the attainment of the objects appointed to them.”21 No considerations of policy or equity or repugnancy to the common law would avail to challenge an Irish statute on the ground that it was ultra vires. Within the limits assigned to it the Irish Parliament will have authority [pg 016] as plenary and as ample as the Imperial Parliament itself possesses or can bestow, and it may, if it so pleases, delegate this authority.22 The Irish legislature will, however, have no power to legislate extra-territorially.23 It could not, for example, pass a law to punish the Irish subjects of the Crown for offences committed outside Ireland.

      Now, these powers are undeniably large—larger, indeed, than is usually the case even in Federal systems where the unenumerated or “residuary” powers are left to the State. It is conceivable that they might be exercised to the prejudice of the Imperial Government and of the union of the two kingdoms, and there is nothing in these clauses of the Act to prevent them being so exercised. Treating it as a statute on the ordinary principles of the interpretation of statutes, the Judicial Committee would have no option but to regard as valid any legislation of the Irish Parliament that did not come within the exempted powers. With policy they are not and would not be concerned. But then it must be remembered that there is the possibility of the exercise of the veto of the Imperial Government in cases where legislation, though intra vires, is inequitable, inexpedient, or contrary to Imperial interests. This executive veto is really a juristic fact of great importance—it has always been present to their lordships'24 mind as a reason for refusing to apply to the interpretation of the Federal constitutions of Canada and Australia the restrictive principles of the Supreme [pg 017] Court, as laid down in Marshall's famous doctrine of “implied restraints.”25 When no such veto is in the hands of the Central Government, it becomes necessary to restrict, either in the text of the constitution, or in judicial interpretation of it, with considerable precision, the powers of the local legislatures. This is why a true Federal system always involves a very large amount of litigation. But litigation is a thing to be avoided, if possible. It encourages political parties to carry test cases into the courts.

      Constitutional Restrictions.26

       Table of Contents

      The problem of protecting the rights and privileges of minorities in Ireland by constitutional restrictions is the most delicate that ever perplexed the mind of the jurist. It is one which puts the Irish problem in a category by itself. In no other Constitution in the Empire—with the exception of a single clause in the British North America Act—is any attempt made to fetter the discretion of Parliaments by the imposition of juristic limitations upon their legislative capacity. To say a Parliament shall not legislate except upon certain subjects is one thing, to attempt to define how it shall legislate upon those very subjects is quite another. The latter is as difficult as the former is simple. To adopt a pedestrian illustration, it is easy enough to forbid motorists to drive along certain roads, but to forbid them to drive “recklessly” along any road is another matter. “Recklessly” at once raises [pg 018] questions of standards of negligence and actionable rights. How are we going to distinguish “just” from “unjust” legislation, taxes which discriminate from taxes which do not, “rights” of the subject which a Parliament may disregard from those which it must respect? There has never been any doubt that a colonial legislature may deal with the common law rights of the subject as it pleases, may abolish trial by jury, suspend the writ of habeas corpus, pass bills of attainder, enact ex post facto legislation, take private property without compensation, and indemnify the Executive against actions for breaches of the law—if any doubt ever existed it was set at rest by the Colonial Laws Validity Act. But in the case of Ireland it was thought necessary—owing, doubtless, largely to the fears excited in the minds of Englishmen by the Protestant minority in Ulster and the commercial interests in both countries—to insert in the earlier Home Rule Bills an elaborate series of restrictions upon the exercise of even those legislative powers which the Irish Parliament might admittedly possess. For a parallel to these restrictions one would have to go back to the Constitution of the United States and the philosophy of “natural rights.” A more difficult problem it is impossible to conceive, because a Constitution of this kind runs counter to the whole tradition of Parliamentary sovereignty in this country and the colonies. Anyone who takes the trouble to study the decisions of the Privy Council when colonial legislation has been impugned on the ground of its infringing the common law rights of the subject or “natural justice”27 will discover that constitutional limitations of this kind upon the powers of colonial Legislatures are not recognised by our judges. In the [pg 019] absence of express words in the colonial Constitutions, such restraints do not exist. “The only thing,” as Lord Halsbury grimly remarked on one occasion, for the subject whose actionable rights are taken away by a Colonial Act of Indemnity “to do is to submit.”

      The earlier Home Rule Bills were characterised by a most elaborate code of rights which the Irish Legislature might not infringe. Its main provisions might be classified as having three objects in view: (1) The protection of the subject in life, liberty, and property; (2) the prevention of legislation discriminating against any part of the United Kingdom, and (3) the preservation of the existing rights and privileges of the Protestant community in Ireland. In one form or another almost all these principles are to be found embodied in the Constitution of the United States, and in the case of the first of them a clause of the famous 14th Amendment was actually incorporated, with some slight alterations, in Sub-section 8 of Section 4 of the Bill of 1893, according to which the powers of the Irish Legislature should not extend to the making of any law

      “whereby any person may be deprived of life, liberty, or property without due process of law in accordance with settled principles and precedents or may be denied the equal protection of the laws or whereby private property may be taken without just compensation.”

      These impressive words bristled with legal controversy. Did they, for example, secure to the subject the preservation of the right to trial by jury? In the States of America it has been authoritatively laid down28 that, in the absence of further defining words in the State constitutions, they do not. Such procedure is indeed safeguarded in the Federal Courts, but only in consequence of express words. In the case of the States, [pg 020] Cooley, a great authority, says that “whatever the State establishes will be due process of law,” and Story regarded the words by themselves as simply securing a judicial hearing—that is to say, as they stand they merely secure the separation of legislative and judicial functions and prevent the State Legislature from passing laws which are in effect judicial decrees.

      What the words would really have secured to the subject in Ireland was very doubtful. The object of the draughtsman appears to have been to secure to the subject in Ireland all the protection of the law, including trial by jury, which he would have enjoyed at the date of the passing of the Bill, understanding by law both common law and statute law. If the Imperial Parliament had, subsequent to the date of the Act itself, passed legislation limiting trial by jury or other common law rights, this would, presumably, have provided the Irish Parliament with a new “settled principle and precedent,” enabling it to go further. In other words, the clause might have operated to secure a certain standardization of legislation as between the two countries.

      The Argument Against Restrictions.

       Table of Contents

      But it seems