BY LORD THRING

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:--

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