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.