A mere enumeration or analysis of the contents of the Irish Government
Bill, 1886, and the Land (Ireland) Bill, 1886, would convey scarcely any
intelligible idea to the mind of an ordinary reader. It is, therefore,
proposed in the following pages, before entering on the details of each
Bill, to give a summary of the reasons which led to its introduction,
and of the principles on which it is founded. To begin with the Irish
Government Bill--
The object of the Irish Government Bill is to confer on the Irish people
the largest measure of self-government consistent with the absolute
supremacy of the Crown and Imperial Parliament and the entire unity of
the Empire. To carry into effect this object it was essential to create
a separate though subordinate legislature; thus occasion was given to
opponents to apply the name of Separatists to the supporters of the
Bill--a term true in so far only as it denoted the intention to create a
separate legislature, but false and calumnious when used in the sense in
which it was intended to be understood--of imputing to the promoters of
the Bill the intention to disunite or in any way to disintegrate the
Empire. Indeed, the very object of the measure was, by relaxing a little
the legal bonds of union, to draw closer the actual ties between England
and Ireland, in fact, to do as we have done in our Colonies, by
decentralizing the subordinate functions of government to strengthen the
central supremacy of natural affection and Imperial unity. The example
of the effects of giving complete self-government to our Colonies would
seem not unfavourable to trying the same experiment in Ireland. Some
forty years ago, Canada, New Zealand, and the various colonies of
Australia were discontented and uneasy at the control exercised by the
Government of England over their local affairs. What did England do? She
gave to each of those communities the fullest power of local government
consistent with the unity of the Empire. The result was that the real
union was established in the same degree as the apparent tie of control
over local affairs was loosened. Are there any reasons to suppose that
the condition of Ireland is such as to render the example of the
Colonies applicable? Let us look a little at the past history of that
country. Up to 1760 Ireland was governed practically as a conquered
country. The result was that in 1782, in order to save Imperial unity,
we altogether relaxed the local tie and made Ireland legislatively
independent. The Empire was thus saved, but difficulties naturally arose
between two independent legislatures. The true remedy would have been to
have imposed on Grattan's Parliament the conditions imposed by the Irish
Government Bill on the statutory Parliament created by that Bill; the
course actually taken was that, instead of leaving the Irish with their
local government, and arranging for the due supremacy of England, the
Irish Legislature was destroyed under the guise of Union, and Irish
representatives were transferred to an assembly in which they had little
weight, and in which they found no sympathy. The result was that from
the date of the Union to the present day Ireland has been constantly
working for the reinstatement of its National Legislature, and has been
governed by a continuous system of extraordinary legislature called
coercion; the fact being that between 1800, the date of the Act of
Union, and 1832, the date of the great Reform Act, there were only
eleven years free from coercion, while in the fifty-three years since
that period there have been only two years entirely free from special
repressive legislation. So much, therefore, is clear, that Irish
discontent at not being allowed to manage their own affairs has
gradually increased instead of diminishing. The conclusion then would
seem irresistible, that if coercion has failed, the only practical mode
of governing Ireland satisfactorily is to give the people power to
manage their local affairs. Coming, then, to the principle of the Bill,
the first step is to reconcile local government with Imperial supremacy,
in other words, to divide Imperial from local powers; for if this
division be accurately made, and the former class of powers be reserved
to the British Crown and British Parliament, while the latter only are
intrusted to the Irish Parliament, it becomes a contradiction in terms
to say that Imperial unity is dissolved by reserving to the Imperial
authority all its powers, or that Home Rule is a sundering of the
Imperial tie when that tie is preserved inviolable. Imperial powers,
then, are the prerogatives of the Crown with respect to peace and war,
and making treaties with foreign nations; in short, the power of
regulating the relations of the Empire towards foreign nations. These
are the _jura summi imperii_, the very insignia of supremacy; the
attributes of sovereign authority in every form of government, be it
despotism, limited monarchy, or republic; the only difference is that in
a system of government under one supreme head, they are vested in that
head alone, in a federal government, as in America or Switzerland, they
reside in the composite body forming the federal supreme authority.
Various subsidiary powers necessarily attend the above supreme powers;
for example, the power of maintaining armies and navies, of commanding
the militia, and other incidental powers. Closely connected with the
power of making peace and war is the power of regulating commerce with
foreign nations. Next in importance to the reservations necessary to
constitute the Empire a Unity with regard to foreign nations, are the
powers required to prevent disputes and to facilitate intercourse
between the various parts of the Empire. These are the coinage of money
and other regulations relating to currency, to copyright or other
exclusive rights to the use or profit of any works or inventions. The
above subjects must be altogether excluded from the powers of the
subordinate legislature; it ceases to be subordinate as soon as it is
invested with these Imperial, or quasi-Imperial, powers.
Assuming, however, the division between Imperial and local powers to be
accurately determined, how is the subordinate legislative body to be
kept within its due limits? The answer is very plain,--an Imperial court
must be established to decide in the last resort whether the subordinate
legislature has or has not infringed Imperial rights. Such a court has
been in action in the United States of America ever since their union,
and no serious conflict has arisen in carrying its decisions into
effect, and the Privy Council, acting as the Supreme Court in respect to
Colonial appeals, has been accepted by all the self-governing colonies
as a just and impartial expositor of the meaning of their several
constitutions.
Next in importance to the right division of Imperial and local powers is
a correct understanding of the relation borne by the executive of an
autonomous country to the mother country. In every part of the British
Empire which enjoys home rule the legislature consists of the Queen and
the two local legislative bodies. The administrative power resides in
the Queen alone. The Queen has the appointment of all the officers of
the government; money bills can be introduced into the legislature only
with the consent of the Queen. The initiative power of taxation then is
vested in the Queen, the executive head, in practice represented by the
Governor. But such a power of initiation is of course useless unless the
legislative body is willing to support the executive, and grants it the
necessary funds for carrying on the government. What, then, is the
contrivance by which the governmental machine is prevented from being
stopped by a difference between the executive and legislative
authorities? It is the same in the mother country, and in every British
home-rule country, with this difference only--that beyond the limits of
the mother country the Queen is represented by a governor to whom are
delegated such a measure of powers as is necessary for the supreme head
of a local self-governing community. The contrivance is this in the
mother country:--the Queen acts upon the advice of a cabinet council; in
home-rule dependencies the Governor acts on the advice of a local
council. If this cabinet council in the mother country, or local council
in a dependency, ceases to command a majority in the popular legislative
body, it resigns, and the Governor is obliged to select a council which,
by commanding such a majority, can obtain the supplies necessary to
carry on the government. The consequence then is, that in a home-rule
community, if a serious difficulty arises between the legislative and
executive authority, the head of the executive, the governor, refers the
ultimate decision of the question to the general body of electors by
dissolving the popular legislative body. It has been urged in the
discussion on the Irish Government Bill that the powers of the executive
in relation to the legislative body ought to be expressed in the Bill
itself; but it is clear to anybody acquainted with the rudiments of
legislation that the details of such a system (in other words, the mode
in which a governor ought to act under the endless variety of
circumstances which may occur in governing a dependency) never have been
and never can be expressed in an Act of Parliament. But how little
difficulty this absence of definition has caused may be judged from the
fact that neither in England nor in any of her home-rule dependencies
has any vital collision arisen between the executive and legislative
authorities, and that all the home-rule colonies have managed to
surmount the obstacles which the opponents of Home Rule argued would be
fatal to their existence. The main principles have now been stated on
which the Irish Government Bill is framed, and it remains to give a
summary of the provisions of the Bill, the objects and bearing of which
will be readily understood from the foregoing observations. The first
clause provides that--
"On and after the appointed day there shall be established in Ireland a
Legislature consisting of Her Majesty the Queen and an Irish legislative
body."
This is the first step in all English constitutional systems, to vest
the power of legislation in the Queen and the legislative body. Such a
legislature might have had conferred on it the independent powers vested
in Grattan's Parliament: but the second clause at once puts an end to
any doubt as to the subordination of the Irish legislative body; for
while on the one hand it confers full powers of local self-government,
by declaring that the Legislature may make any laws for the peace,
order, and good government of Ireland, it subjects that power to
numerous exceptions and restrictions. The exceptions are contained in
the third clause, and the restrictions in the fourth. The exceptions are
as follows:--
"The Legislature of Ireland shall not make laws relating to the
following matters or any of them:--
"(1.) The status or dignity of the Crown, or the succession to the
Crown, or a Regency;
"(2.) The making of peace or war;
"(3.) The army, navy, militia, volunteers, or other military or naval
forces, or the defence of the realm;
"(4.) Treaties and other relations with foreign States, or the
relations between the various parts of Her Majesty's dominions;
"(5.) Dignities or titles of honour;
"(6.) Prize or booty of war;
"(7.) Offences against the law of nations; or offences committed in
violation of any treaty made, or hereafter to be made, between Her
Majesty and any foreign State; or offences committed on the high seas;
"(8.) Treason, alienage, or naturalization;
"(9.) Trade, navigation, or quarantine;
"(10.) The postal and telegraph service, except as hereafter in this Act
mentioned with respect to the transmission of letters and telegrams in
Ireland;
"(11.) Beacons, lighthouses, or sea-marks;
"(12.) The coinage; the value of foreign money; legal tender; or weights
and measures; or
"(13.) Copyright, patent rights, or other exclusive rights to the use or
profits of any works or inventions."
Of these exceptions the first four preserve the imperial rights which
have been insisted on above, and maintain the position of Ireland as an
integral portion of that Empire of which Great Britain is the head. The
remaining exceptions are either subsidiary to the first four, or relate,
as is the case with exceptions 10 to 13, to matters on which it is
desirable that uniformity should exist throughout the whole Empire. The
restrictions in clause 4 are:--
"The Irish Legislature shall not make any law--
"(1.) Respecting the establishment or endowment of religion, or
prohibiting the free exercise thereof; or
"(2.) Imposing any disability, or conferring any privilege, on account
of religious belief; or
"(3.) Abrogating or derogating from the right to establish or maintain
any place of denominational education or any denominational institution
or charity; or
"(4.) Prejudicially affecting the right of any child to attend a school
receiving public money without attending the religious instruction at
that school; or
"(5.) Impairing, without either the leave of Her Majesty in Council
first obtained on an address presented by the legislative body of
Ireland, or the consent of the corporation interested, the rights,
property, or privileges of any existing corporation incorporated by
royal charter or local and general Act of Parliament; or
"(6.) Imposing or relating to duties of customs and duties of excise, as
defined by this Act, or either of such duties, or affecting any Act
relating to such duties or either of them; or
"(7.) Affecting this Act, except in so far as it is declared to be
alterable by the Irish Legislature."
These restrictions differ from the exceptions, inasmuch as they do not
prevent the Legislature of Ireland from dealing with the subjects to
which they refer, but merely impose on it an obligation not to handle
the specified matters in a manner detrimental to the interests of
certain classes of Her Majesty's subjects. For example, restrictions 1
to 4 are practically concerned in securing religious freedom;
restriction 5 protects existing charters; restriction 6 is necessary, as
will be seen hereinafter, to carrying into effect the financial scheme
of the bill; restriction 7 is a consequence of the very framework of the
Bill: it provides for the stability of the Irish constitution, by
declaring that the Irish Legislature is not competent to alter the
constitutional act to which it owes its existence, except on those
points on which it is expressly permitted to make alterations.
Clause 5 is an exposition, so to speak, of the consequence which would
seem to flow from the fact of the Queen being a constitutional part of
the Legislature. It states that the royal prerogatives with respect to
the summoning, prorogation, and dissolution of the Irish legislative
body are to be the same as the royal prerogatives in relation to the
Imperial Parliament. The next clause (6) is comparatively immaterial;
it merely provides that the duration of the Irish legislative body is to
be quinquennial. As it deals with a matter of detail, it perhaps would
have more aptly found a place in a subsequent part of the Bill. Clause 7
passes from the legislative to the executive authority; it declares:--
(1.) The executive government of Ireland shall continue vested in Her
Majesty, and shall be carried on by the Lord Lieutenant on behalf of Her
Majesty with the aid of such officers and such council as to Her Majesty
may from time to time seem fit.
(2.) Subject to any instructions which may from time to time be given by
Her Majesty, the Lord Lieutenant shall give or withhold the assent of
Her Majesty to bills passed by the Irish legislative body, and shall
exercise the prerogatives of Her Majesty in respect of the summoning,
proroguing, and dissolving of the Irish legislative body, and any
prerogatives the exercise of which may be delegated to him by Her
Majesty.
Bearing in mind what has been said in the preliminary observations in
respect of the relation between the executive and the legislative
authority, it will be at once understood how much this clause implies,
according to constitutional maxims, of the dependence on the one hand of
the Irish executive in respect of imperial matters, and of its
independence in respect of local matters. The clause is practically
co-ordinate and correlative with the clause conferring complete local
powers on the Irish Legislature, while it preserves all imperial powers
to the Imperial Legislature. The governor is an imperial officer, and
will be bound to watch over imperial interests with a jealous scrutiny,
and to veto any bill which may be injurious to those interests. On the
other hand, as respects all local matters, he will act on and be guided
by the advice of the Irish executive council. The system is, as has been
shown above, self-acting. The governor, for local purposes, must have a
council which is in harmony with the legislative body. If a council,
supported by the legislative body and the governor do not agree, the
governor must give way unless he can, by dismissing his council and
dissolving the legislative body, obtain both a council and a legislative
body which will support his views. As respects imperial questions, the
case is different; here the last word rests with the mother country, and
in the last resort a determination of the executive council, backed by
the legislative body, to resist imperial rights, must be deemed an act
of rebellion on the part of the Irish people, and be dealt with
accordingly.
The above clauses contain the pith and marrow of the whole scheme. The
exact constitution of the legislative body, and the orders into which it
should be divided, the exclusion or non-exclusion of the Irish members
from the Imperial Parliament, indeed, the whole of the provisions found
in the remainder of this Bill, are matters which might be altered
without destroying, or even violently disarranging, the Home-rule scheme
as above described.
Clauses 9, 10, and 11 provide for the constitution of the legislative
body; it differs materially from the colonial legislative bodies, and
from the Legislature of the United States. For the purpose of
deliberation it consists of one House only; for the purpose of voting on
all questions (except interlocutory applications and questions of
order), it is divided into two classes, called in the Bill "Orders,"
each of which votes separately, with the result that a question on which
the two orders disagree is deemed to be decided in the negative. The
object of this arrangement is to diminish the chances of collision
between the two branches of the Legislature, which have given rise to so
much difficulty both in England and the colonies. Each order will have
ample opportunity of learning the strength and hearing the arguments of
the other order. They will therefore, each of them, proceed to a
division with a full sense of the responsibility attaching to their
action. A further safeguard is provided against a final conflict between
the first and second orders. If the first order negative a proposition,
that negative is in force only for a period of three years, unless a
dissolution takes place sooner, in which case it is terminated at once;
the lost bill or clause may then be submitted to the whole House, and if
decided in the affirmative, and assented to by the Queen, becomes law.
The first order of the Irish legislative body comprises 103 members. It
is intended to consist ultimately wholly of elective members; but for
the next immediate period of thirty years the rights of the Irish
representative peers are, as will be seen, scrupulously reserved. The
plan is this: of the 103 members composing the first order, seventy-five
are elective, and twenty-eight peerage members. The qualification of the
elective members is an annual income of £200, or the possession of a
capital sum of £4000 free from all charges. The elections are to be
conducted in the electoral districts set out in the schedule to the
Bill. The electors must possess land or tenements within the district of
the annual value of £25. The twenty-eight peerage members consist of the
existing twenty-eight representative peers, and any vacancies in their
body during the next thirty years are to be filled up in the manner at
present in use respecting the election of Irish representative peers.
The Irish representative peers cease to sit in the English Parliament;
but a member of that body is not required to sit in the Irish Parliament
without his assent, and the place of any existing peer refusing to sit
in the Irish Parliament will be filled up as in the case of an ordinary
vacancy. The elective members of the first order sit for ten years;
every five years one half their number will retire. The members of the
first order do not vacate their seats on a dissolution of the
legislative body. At the expiration of thirty years, that is to say,
upon the exhaustion of all the existing Irish representative peers, the
whole of the upper order will consist of elective members. The second
order consists of 204 members, that is to say, of the 103 existing Irish
members (who are transferred to the Irish Parliament), and of 101
additional members to be elected by the county districts and the
represented towns, in the same manner as that in which the present 101
members for counties and towns are elected--each constituency returning
two instead of one member. If an existing member does not assent to his
transfer, his seat is vacated.
A power is given to the Legislature of Ireland to enable the Royal
University of Ireland to return two members.
The provisions with respect to this second order fall within the class
of enactments which are alterable by the Irish Legislature. After the
first dissolution of parliament the Irish Legislature may deal with the
second order in any manner they think fit, with the important
restrictions:--(1) That in the distribution of members they must have
due regard to population; (2) that they must not increase or diminish
the number of members.
The transfer to the Irish legislative body of the Irish representative
peers, and of the Irish members, involves their exclusion under ordinary
circumstances from the Imperial Parliament, with this great exception,
that whenever an alteration is proposed to be made in the fundamental
provisions of the Irish Government Bill, a mode of procedure is devised
for recalling both orders of the Irish legislative body to the Imperial
Parliament for the purpose of obtaining their consent to such alteration
(clause 39).
Further, it is right to state here that Mr. Gladstone in his speech on
the second reading of the Bill proposed to provide, "that when any
proposal for taxation was made affecting the condition of Ireland, Irish
members should have an opportunity of appearing in the House to take a
share in the transaction of that business."
Questions arising as to whether the Irish Parliament has or not
exceeded its constitutional powers may be determined by the ordinary
courts of law in the first instance; the ultimate appeal lies to the
Judicial Committee of the Privy Council. An additional safeguard is
provided by declaring that before a provision in a Bill becomes law, the
Lord Lieutenant may take the opinion of the Judicial Committee of the
Privy Council as to its legality, and further, that without subjecting
private litigants to the expense of trying the constitutionality of an
Act, the Lord Lieutenant may, of his own motion, move the judicial
committee to determine the question. With a view to secure absolute
impartiality in the committee, Ireland will be represented on that body
by persons who are or have been Irish judges (clause 25).
The question of finance forms a separate portion of the Bill, the
provisions of which are contained in clauses twelve to twenty, while the
machinery for carrying those enactments into effect will be found in
Part III. of the Land Bill. The first point to be determined was the
amount to be contributed by Ireland to imperial expenses. Under the Act
of Union it was intended that Ireland should pay 2/17ths, or in the
proportion of 1 to 7-1/2 of the total expenditure of the United Kingdom.
This amount being found exorbitant, it was gradually reduced, until at
the present moment it amounts to something under the proportion of 1 to
11-1/2. The bill fixes the proportion at 1/15th, or 1 to 14, this sum
being arrived at by a comparison between the amount of the income-tax,
death-duties, and valuation of property in Great Britain, and the amount
of the same particulars in Ireland. The amount to be contributed by
Ireland to the imperial expenditure being thus ascertained, the more
difficult part of the problem remained to provide the fund out of which
the contribution should be payable, and the mode in which its payment
should be secured. The plan which commended itself to the framers of the
Bill, as combining the advantage of insuring the fiscal unity of Great
Britain and Ireland, with absolute security to the British exchequer,
was to continue the customs and excise duties under imperial control,
and to pay them into the hands of an imperial officer. This plan is
carried into effect by the conjoint operation of the clauses of the
Irish Government Bill and the Irish Land Bill above referred to. The
customs and excise duties are directed to be levied as heretofore in
pursuance of the enactments of the Imperial Parliament, and are excepted
from the control of the Irish Legislature, which may, with that
exception, impose any taxes in Ireland it may think expedient. The
imperial officer who is appointed under the Land Bill bears the title of
Receiver-General, and into his hands not only the imperial taxes (the
customs and excise duties), but also all local taxes imposed by the
Irish Parliament are in the first instance paid. (See Clauses 25-27 of
the Land Bill.) The Receiver-General having thus in his hands all
imperial and local funds levied in Ireland, his duty is to satisfy all
imperial claims before paying over any moneys to the Irish Exchequer.
Further, an Imperial Court of Exchequer is established in Ireland to
watch over the interests of the Receiver-General, and all revenue cases
are to be tried, and all defaults punished in that court. Any neglect of
the local authorities to carry into effect the decrees of the Imperial
Court will amount to treason, and it will be the duty of the Imperial
Government to deal with it accordingly.
Supposing the Bill to have passed, the account of the Exchequer in
Ireland would have stood thus:--