BY THE RIGHT HON. J.H. CAMPBELL, K.C., M.P.

The various forecasts, inspired and uninspired, of the new Home Rule

Bill which have been given to us, have shed little light upon the future

of the Irish Judiciary and Police. The two previous Bills contemplated

the handing over of the control of the whole administration of justice

in Ireland to the Irish Executive after an interval, in the first case

of two years, and in the later Bill, of six years. We may assume that,

whatever period of grace may be allowed to us under the coming measure,

it will propose to vest this control in the Irish Government within six

years. The interposition of any interval at all will probably be

regarded by Ministers as a concession to Unionist fears and as one of

the "safeguards" in which the minority will be urged to place its trust.

It must be realised at once that, so far from this interval making the

transition from British justice to Irish intrigue easier and more safe,

it may have precisely the contrary effect. Once the Irish police are

convinced that they are about to be delivered into the hands of the

secret organisations who have been the most successful and relentless

enemies of public order in Ireland, a paralysis must fall upon the

force. During the closing years of the transition, at all events, the

Royal Irish Constabulary will be given nominal responsibility for the

peace of the country without any opportunity effectually to preserve it.

It would be fairer and better to cast upon puppet nominees of the

Ancient Order of Hibernians and the Irish Republican Brotherhood the

responsibility and odium of controlling the passions that they have

helped to raise. The present judges would of course continue to do

their duty without fear or favour, but it is impossible that the

sentence passed upon them and the system of law and government for which

they stand could leave their authority unimpaired. We have recently seen

in England how easy it may be to stir up popular clamour against judges

who administer the law without regard to the prejudices of any political

party. Directly the Irish Courts sought to translate the paper

safeguards of the Home Rule Bill into practical effect, they would be

faced by the violent hostility of an ignorant and excitable assembly

stimulated by an irresponsible and inexperienced executive. The result

would be recriminations and friction which must deplorably injure and

lower the reputation and prestige of both the Executive and the

Judiciary.

The first thing necessary for securing public and private liberty in a

country like Ireland, where party feeling runs high and internal

disputes have a bitterness from which more fortunate countries are free,

is a strong independent and impartial administration of the law. This

can only be secured by freeing the Courts from any kind of interference

or control on the part of the Executive, and by ensuring that the whole

armed forces of the Executive should be at the disposal of the Courts

for executing and enforcing their decrees. Let us only assume a case to

arise after the statutory period had elapsed, such as is now of frequent

occurrence in the Irish Courts. The Land Judge, for instance, or the

Judge of the Court of Bankruptcy, finds it necessary to order the arrest

of the chairman and secretary of a local branch of the United Irish

League for interfering by gross intimidation with a sale under the order

of his Court. The case excites a good deal of local feeling and the

arrests can only be effected by the employment of a large force of armed

police. The question is raised on a motion for adjournment in the Irish

House of Commons. The majority of the members owe their seats to the

intervention of the United Irish League, many of them--perhaps

most--have themselves been in similar conflicts with the Court. The

result is that Ministers have to choose between a refusal of the police

and expulsion from office. Once the Government could decide which

decrees of the Judiciary it would enforce and which it would not, the

technical immovability of the Judges would be irrelevant, since the real

control of justice would be vested, not in the courts but in the

executive Ministers in Dublin Castle. The very existence of the

limitations and safeguards foreshadowed in the coming Home Rule Bill

would naturally tempt the Irish Government to adopt a policy which would

reduce to a minimum the effective power of these restraints upon the

popular will. The most obvious way of attaining this result would be to

keep the police, and with them the judicature, in a position of greater

dependence upon the Executive than is consistent with the supremacy of

law and the safety of private rights and individual freedom.

We must remember that the men who would have the control of the new

Irish Government would be those who have spent the greater part of their

lives in violent conflict with the attempts of the Irish Courts to

secure respect for the elementary rights of property and of personal

freedom in Ireland. Power which has been won by the open violation of

every principle of English law, is not likely either to assert the

authority it has lived by defying to maintaining the independence of the

courts and institutions which have been its deadliest opponents. The

corruption of judicial authority and prestige in Ireland will be

accomplished by entrenching the Executive behind large and shadowy

discretionary powers, and also by manipulating the personnel and

jurisdiction of the judges and magistracy throughout the country. The

most deplorable movement in modern Nationalism is the attempt to

introduce into Irish politics the worst methods of American political

corruption. There have recently sprung into prominence in Ireland two

societies which are in some respects the most sinister, the most

immoral, and the most destructive of those which have corrupted and

infected public life in the country. These two--the Ancient Order of

Hibernians and the Irish Republican Brotherhood--have in common the

secrecy of their operations and the destructiveness of their aims. Their

influence is marked not only by despotic and tyrannical government, but,

what may be even more mischievous from the point of view of the

community, by the deliberate persecution and suppression of all

independent thought. Those who have watched the proceedings of the

Dublin Corporation have felt the increasing strength of an influence

proceeding from Belfast--an influence which is threatening to control

the whole course of Nationalist politics in Dublin and the south. The

forces of influence, combination, and intimidation which forced the

Budget on a reluctant Ireland and routed the Roman Catholic Hierarchy

over the Insurance Bill will not be disbanded under Home Rule. On the

contrary, they are now being exercised so as to enable the Board of Erin

to absorb the older organisations and to place in the hands of its

leaders--or rather in those of a single man--the nomination of most, if

not all, the representatives of the Nationalist party in Ireland. Mr.

Joseph Devlin, who seeks to build this vast power, is a politician of

American ideals and sympathies, and under the guidance of his

organisation politics in Ireland would be shaped after the model of

Tammany Hall rather than that of St. Stephen's. The party which appoints

the municipal officers of Dublin in secret caucus, meeting for reasons

which are never avowed and after debates which are never published, is

only waiting to extend its operations. Even now it is notorious that the

magistrates' bench in Ireland is regularly and systematically "packed"

whenever licensing or agrarian cases are under discussion. The

scandalous inaction of the present Irish Executive in reference to

cattle driving and other forms of organised intimidation, the failure to

enforce the law and the absolute immunity which the present Chief

Secretary has persistently allowed to Nationalist Members of Parliament

and paid organisers in incitement to outrage and intimidation, have

paralysed the administration of justice and disheartened and disgusted

the Judiciary, the Magistrates, and the Police. But under Home Rule the

measure of protection which is still afforded by a strong and

independent Bench would be removed. The Resident Magistrate would be as

much under the heel of the caucus as the local justice; the Recorder's

Bench and even the High Court would be constantly subjected to

influences of a mischievous and incalculable kind. Whatever may be said

against the present occupants of the Judicial Bench, their integrity and

fairness have never been seriously questioned. Since the days when the

Irish judges issued a writ of _habeas corpus_ for the release of Wolfe

Tone, while the Irish Rebellion was actually in progress, they have

consistently held an even balance between the two parties. Their

learning, their impartiality and their wit have rightly made Irish

judges respected throughout the world. Their reputation and their

services alike demand that they shall not be set aside wantonly or

without consideration. But there is no doubt that Home Rule must mean

the end of the Irish Bench as we have seen it in history. The men who

have been proud to represent the British Crown would resent with

indignation the idea that they should become the tools of the Hibernian

caucus. They realise that the judges who oppose the lawless will of

popular ministers will have to face obloquy and perhaps direct attack in

the Irish Parliament. Even if the concurrence of both Houses in the

Irish Parliament were made necessary for the removal of judges, it would

not adequately safeguard their independence. The lower House would be

composed of the men whom Nationalist constituencies already return to

Parliament--excitable, fierce partisans, always ready to subordinate

private convictions to the exigencies of party discipline. Nor would

there be in Ireland under Home Rule any power or influence, either of

property or station, sufficiently strong to furnish a constituency which

would return a senate representing interests, opinions, or desires

substantially distinct from those of the more powerful House elected

upon the wider suffrage.

The situation has been strongly complicated by the promulgation of the

_Motu Proprio_ decree, and the refusal of the authorities of the Roman

Catholic Church to say definitely whether it applies to Ireland or not.

We may assume that, if Archbishop Walsh could have given a categorical

denial to the statement that the decree must operate in Ireland under

Home Rule, he would have done so. The decree _Motu Proprio_ forbids any

Roman Catholic to bring his priest or bishop into court under pain of

excommunication. The Roman Catholic Church has made many similar efforts

during history to oust the jurisdiction of the ordinary courts, and each

attempt has had to be sharply and sternly resisted by the civil

authorities of Roman Catholic countries. We need not discuss how much

there may be said from a theological standpoint for the decree; we are

only concerned to show that it raises pretensions which no State can

possibly permit to be recognised. There have been too many attempts,

successful and unsuccessful, to oust the jurisdiction of the King's

Courts in Ireland, for this new attempt to be viewed with equanimity.

The United Irish League has set up courts which try men for imaginary

offences committed during the exercise of their ordinary civil rights,

and pass illegal sentences and inflict illegal punishments. Under the

reign of Liberal Governments the writ of these courts runs where the

King's writ cannot run, and the law of the League has been allowed in

great measure to supersede the law of the land. We have also an

increasing force in Irish Nationalism which seeks to paralyse the

government of Ireland by means of the general or sympathetic strike.

This organisation seeks to establish courts in Ireland in opposition to

the ordinary law courts, and to enforce their decrees by means of

illegal intimidation and outrage. The people of Ireland have therefore

been familiarised with the idea of courts competing in authority with

those of the King's Government. Supposing under Home Rule the Judiciary

proved less pliable than was expected or desired, the development of

such competing authorities would be facilitated by a complaisant

Cabinet in Dublin. But of all attempts to over-ride the authority of law

this conspiracy to exempt ecclesiastical persons from its scope is the

most insidious and dangerous. The existence of a class of men answerable

for their actions, not to any domestic tribunal, but to a foreign

ecclesiastical court, cannot now be tolerated by any self-respecting

Government. Yet it is not easy to see how an Irish Cabinet could refuse

to make, by executive if not by legislative action, what is now the law

of the Church eventually the law of Ireland. Against this danger no

safeguards can be devised. If the Administration refuses to put the law

into effective operation against a certain class of offender or abuses

the prerogative of mercy in his favour, there is no power in the

constitution to coerce it. A few years ago we saw in Ireland the

extraordinary spectacle of persons being prosecuted for cattle-driving

and similar offences, while those who openly incited them to crime

escaped with impunity. We saw judges from the Bench complaining in vain

that the real offenders were not brought before them, and criticising

openly the negligence and partiality of the Crown. If the Nationalists,

whose influence then paralysed the aims of the Government, ever get

supreme control of the Executive, we are certain to see these abuses

revived on a still more shocking scale. The operation of the new decree

places the Roman Catholic minister or law officer who is called upon to

administer justice under the terms of his oath in a position of cruel

embarrassment. As a law officer it might be his duty to order the

prosecution of some clerical offender; as a Roman Catholic compliance

with his duty to the State must entail the awful consequences of

excommunication. It needs no elaboration to show that what may be a

grave embarrassment under the rule of impartial British Ministers, must

under a local Irish Government develop into a danger to the State. A

case recently tried at the Waterford Assizes establishes a precedent

which may prove most mischievous. Recent illustrations in Ireland of the

working of the _Temere_ decree have secured for it a sort of

quasi-legality and provided a great argument to those devout Churchmen

who, under Home Rule, would naturally desire to carry the process a

further step.

We have proceeded on the assumption that the Irish Parliament

would--formally, at least--confine itself within the limits prescribed

by the law of its creation. But it is necessary at least to contemplate

the possibility that it would prove less complaisant. The safeguards and

limitations inserted in any Act of the kind must of necessity be couched

in general terms. The constitutional history of the United States and

other countries is full of cases showing how difficult it is to define

in practice where the border line between _intra_ and _ultra vires_

comes. It is the custom of all Governments, if there is any possible

room for debate as to their competence to take any particular line of

action, to give themselves the fullest benefit of the doubt, and the

Irish Government is unlikely to prove any exception to the rule. When

the Judicature and all the forces of Executive Government, except the

direct command of troops, is in their hands, the laws passed by the

Irish Parliament could be put in force in Ireland. The British

Government could not intervene except by acts which would amount to open

war between the two countries. We must remember that this enforcement of

Irish laws by Irish police in spite of the decisions of a "foreign"

Government at Westminster is openly advocated and contemplated by the

large and active section of the Nationalists who have adopted as their

watchword the motto "Ourselves alone" (_Sinn Fein_). Nothing could be

more futile than the idea that the judgments of the Judicial Committee

of the Privy Council would ever be accepted as final by the Nationalist

majority, or that the royal assent could ever be withheld from an Act

constitutionally passed by the Irish Legislature, without precipitating

a crisis. The result of applying the veto of the House of Lords in

England to the measures of Liberal Ministers was the agitation for

removing the veto. The Nationalists took part in that agitation and have

learned its lesson. Directly the British Government asserts its

technical right of veto, a similar agitation to get rid of all

obnoxious restraints would arise in Ireland.

If anything could increase the danger of friction, it would be the

scheme favoured by Mr. Erskine Childers and other Liberals of submitting

constitutional questions to the decision of the British Privy Council

reinforced by Irish judges. Either these judges would concur in verdicts

given against the pretensions of the Irish Parliament or they would not.

If they did concur, there would be a fierce outcry against the right of

judges appointed under the Union Government to nullify Acts of the Irish

Legislature. But if they did not concur, the patriotic indignation with

which a decision over the heads of the Irish representatives would be

received is easy to foresee. It would be a matter of the greatest

difficulty to enforce any such decision when the Irish Government,

supported by an agitation in the country, refused to be bound by it. The

situation thus created has no parallel in the case of the colonies. In

Canada or Australia, where the legislative power is divided between

federal and provincial Parliaments, a decision that the one legislature

is incompetent affirms the competence of the other. Both legislatures

have on the spot proper means of enforcing, by judicial and executive

authority, decisions which are within their powers. The case of Ireland

is fundamentally different. There can be no half-way house between

keeping Ireland a partner in all our legislative and judicial

activities, or giving to her with a separate Executive uncontrolled and

unchecked rights of internal sovereignty.

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