SECTION III.--THE EXECUTIVE.

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THE IRISH CONSTITUTION

[Illustration: THE CONSTITUTION COMMITTEE IN SESSION.

_From left to right_:--R. J. P. MORTISHED (_Secretary_), JOHN O'BYRNE,

B.L.; C. J. FRANCE, DARRELL FIGGIS (_Acting Chairman_), E. M. STEPHENS,

B.L. (_Secretary_); P. A. O'TOOLE, B.L. (_Secretary_); JAMES MACNEILL,

HUGH KENNEDY, K.C.; JAMES MURNAHAN, B.L.; JAMES DOUGLAS. (PROF. ALFRED

O'RAHILLY and KEVIN O'SHIEL, B.L. were absent from the Session).]

THE

IRISH CONSTITUTION

EXPLAINED

BY

DARRELL FIGGIS

MELLIFONT PRESS, LTD.

KILDARE HOUSE,

WESTMORELAND STREET, DUBLIN

I INSCRIBE THIS BOOK

TO MY FRIEND

ARTHUR GRIFFITH

CONTENTS

PAGE

INTRODUCTION 5

EXPLANATION 15

DRAFT CONSTITUTION 63

ARTICLES OF AGREEMENT FOR A TREATY BETWEEN GREAT BRITAIN AND IRELAND 96

Introduction

IRELAND AND A COMMUNITY OF NATIONS.

The articles that are now gathered together in this little book were first

published in the _Irish Independent_ at the invitation of its Editor. They

were not written for publication in book-form; and they naturally suffer,

in their present form, from the conditions that were first imposed on

them, conditions proper to their original setting. With the exception of

two of them, they were written rather in a spirit of exposition than in a

spirit of analysis and criticism; and this intention was only departed

from because it seemed that the two matters so dealt with departed, with

differing degrees of flagrancy, from the original purpose of the

Constitution, which was to make the mechanism of Government malleable at

every stage to the will of the people of Ireland.

Whether one believes ardently in the faith that the will of a people

should under all circumstances prevail, and that the forms of Government

should at all times be submissive to that will, is indifferent. That is a

question for the individual, with which I do not presume to interfere. One

need only believe with l'Abbe Coignard that "a people is not susceptible

to more than one form of government at the same period," to believe,

further, that if one asserts the derivation of all power and authority

from the popular will, if that will be once fairly and honestly

ascertained, it then follows that the will of the people is sufficient to

itself, and that all forms of government must be made malleable to it. On

that supposition, all frustrations and obstructions of, and impediments

to, the constant exercise of that will must of necessity be cogs in the

machinery of government; and for that reason in two articles I turned from

exposition to criticism.

Apart from these two matters, I held to the essentials of exposition,

without turning aside to criticism of details; and I based that exposition

on the original plan and structure, which are preserved in the present

draft, of the Constitution. It is right that the Fundamental Law of a

State should be fully discussed and debated before it be enacted; and when

that debate occurs criticism will find details enough to fasten upon. But

at the present moment it is the essential plan that matters--not the

feudal trumperies with which it is adorned, like stage jewels stuck upon a

comely and decent garment, marring its simple truth, but not otherwise

injuring its effectiveness for its purpose. And it was because it seemed

to me that these two matters departed from the spirit of this essential

plan, by placing important parts of the Judiciary and the Executive beyond

the ready control of the people or the people's representatives, that I

dealt with them as I did. Apart from them I kept away from criticism.

Similarly I did not deal with certain matters anterior to the

Constitution, in the light of which the Constitution can alone be

understood. They lay out of sight of these articles, though they were

essential to them, since they brought the Constitution, in its present

form, into being. Chief among these is the historical fact that Ireland

has, by Treaty, confirmed by the act of her Legislature, consented to

enter a Community of Nations known at the moment as the British

Commonwealth of Nations. We may disagree with this act; but it is an

international fact; and without it the Constitution would not be what it

now is. This factor in the result is therefore worth brief attention, by

way of introduction to the present publication of these articles.

To anyone familiar with the constitutions of the nations that now comprise

the Commonwealth of Nations the present Constitution will speak in an

unaccustomed language. It is unlike any of them. It has clearly been

planned as the result of a distinct and separate conception. The causes of

the difference are, however, not very difficult to discover, and once seen

are plain to understand. They constitute what may prove to be an

international factor of the very first importance.

These causes fall under, broadly, two heads. The first is that Ireland is

not what these other nations were when their Constitutions were first

framed. Nor is Ireland, indeed, what they are now. Canada, for example,

and Australia, are English Colonies, first established by white men in a

coloured population. The greater part of these white men draw their

traditions and inspiration, their habits of thought and habits of public

conduct, from the rootstock of the English nation. They look to England as

their mother-country. But Ireland is an ancient nation and a

mother-country in her own right. She has herself peopled the earth with

her children. Her empire is as far-flung as England's. And if it is not

based on military might, but linked by ties of memory, pride and love, it

has not therefore proved itself any the less powerful internationally at

times of crisis and danger for the mother at home.

Moreover, it was she who, when in the eighth and ninth centuries Europe

fell into decay after the barbarian inroads, re-established and rebuilt

European civilisation, sending her scholars with her books into every part

of the continent of ruin. It was her missionaries, indeed, who first

brought Christianity to England, and her scholars who taught the first

English poet his letters. Before the name of England was heard, the name

of Ireland was known and respected. She possessed an intricate, if

uncompleted national polity when the neighbouring island was peopled by

distinct and scattered populations of conquerors. By virtue of these

ancient dignities she was accorded international rank long after England

had risen to nationhood, and when invasion had brought her national polity

to ruin and silenced the voice of poet and scholar.

These are not matters merely of the past. If they were, they could be

dismissed to the antiquity in which they would lie. But they live in the

consciousness of a nation to-day; and therefore to-day they are a factor,

to neglect which would be to neglect a prime element without which neither

the present nor the future may be understood. Only the sentimentalist

waves out of sight considerations that are unpleasant to him. The realist

faces every element of being, conscious or unconscious; for he knows that

only out of the sum of all those elements can life proceed, or creation

begin.

For these ancient dignities have passed into the consciousness of every

sort of Irishmen. It was, for example, Molyneux who, in his _Case of

Ireland Stated_ at the end of the 17th century, first among modern Irish

writers based an argument upon them. Molyneux was an English colonist. In

the wars of Tirconnell and Patrick Sarsfield he had fled to England,

returning only when Ginkel the Dutchman had won the field for his master,

now monarch of England. He regarded the ancient nation with aversion. Yet

when the English Parliament harassed what he proudly conceived to be the

ancient liberty of Ireland, he stated the case of that nation, stated it

as his case, in a public document of historic moment; and the English

Parliament caused his book to be burned by the public hangman.

The sorest part of his book was his reference to the Council of Constance

of 1416. This Council may rightly claim to be the first of modern

international congresses. At it a certain question of precedence had

arisen between France and England, which was referred to the Court of

Heralds. In the judgment which was given it was stated as an international

ruling that Europe was first constituted from four nations. These nations,

in the order of their precedence, were Rome, Byzantium, Ireland and Spain.

And Molyneux, the English colonist, proudly referred to this ruling, and

based a great part of his case upon it.

The breed of Molyneux is alive to-day. Political differences have divided

it from the ancient race which furnished its arguments. But the pride is

the same; the sense of possession is essentially the same, obscured though

it may have been by the causes of difference; and when a new alignment of

political parties has blent the two points of view into one outlook, and

made the whole consciousness to merge in one, the living factor of ancient

nationhood will arise with a new strength.

That strength will prove a factor for the future. The cause of it is

registered in the present draft Constitution; and it is the first of the

two causes that make it unlike those of the other nations with which

Ireland is now confederate and co-equal. The second cause is curiously

like, and yet curiously unlike, to the first. It is also derived from the

fact of nationhood, but from the achievement of nationhood at the other

end of history.

For the other nations of the Commonwealth are themselves not now what they

were when their constitutions were first framed. They were then but

colonies, on whom their mother-country was pleased to bestow

constitutions--and if the pleasure was not always the most noticeable part

of the bestowal, the legal smile did not diminish the fact of the gift. In

their constitutions, therefore, the apron-strings are very much in

evidence. It is clear from them that the mother did not propose to let the

children wander far from her control, even though she permitted them to

walk with their own feet. Not only in the actual provisions of these

constitutions, but in their very conception and plan, drawn exactly

according to English methods and from English experience, it is evident

that a state of perpetual tutelage was imagined for the peoples to whom

they were given.

That has now changed. The colonies have come to be nations, very jealous

of their nationhood. They have grown with experience, have moved onward

with time, and it would go hard with anyone who attempted to remind them

of what, nevertheless, their constitutions are a continual reminder. The

consequence is that the provisions of these constitutions cannot be

enforced since they do not square with experience. They encumber the

documents which contain them as so much dead timber. They are sometimes

carelessly, and more often dishonestly, described as legal fictions. But

they are not legal fictions. They are dead letters--dead timber which a

wise woodman would soon hew away. Life and experience have outgrown them;

and this growth finds expression--if, unfortunately, not the full

expression that might at one time have seemed possible--in the present

draft Constitution. For under her Treaty with England Ireland agreed to

take equal rank in the Community of Nations with the other members of it.

Specifically she accepted the "law, practice and constitutional usage" of

Canada; and that constitutional usage implies, not the dead timber of the

Canadian Constitution, but the living tissue of her constitutional

experience.

These two causes, then, have joined together to produce the draft of the

Irish Constitution. From them was created the original plan of the

Constitution, according to which Ireland takes her place, not only

generally among all nations in virtue of her ancient right, but specially

in a certain confederacy of nations in virtue of a Treaty of Peace, signed

between her plenipotentiaries and England's plenipotentiaries, and

approved by both legislatures. To the most casual glance, it is indeed a

most modern and forward-looking document; yet it draws from so ancient a

fountain-head. And the conjunction of these two may prove of searching

value, if rightly used, to Ireland's influence in the world--provided that

there be peace at home, without which a nation is nought. That influence

may not be of the same kind as one had hoped before the Treaty of Peace

was signed. But even if it be not of the same kind, its measure need not

be less. It cannot be so immediate; and that is loss; but it may with

wisdom and firmness prove ultimately to be more extensive. Whatever the

means, the end remains the same; and that end is the contribution in the

comity of nations of the fruits of personality--without which neither men

nor nations can plead a justification for life.

For when a nation such as Ireland joins a confederacy so composed, she by

the mere fact of her addition transfigures the whole. This is not a

fanciful figure of speech. It is a literal description of what has already

occurred. In the case of no other nation of the Community, for example,

has its advent been signalled by an International Treaty. That, in itself,

is a transfiguration of the whole. Similarly, other nations of the

Community had protested the co-equality of each and all; but the

protestation had remained a protestation until it was formally declared

for each and all by the claim made by and recognised for Ireland.

So it has proved in the very case of this Constitution. The full height of

nationhood is the recognition of sovereignty; and the completest act of

sovereignty of which a nation may be capable is to confer its Constitution

on itself. With the exception of Great Britain, none of the other members

of the Community were, when their constitutions were enacted, capable of

this. Each of them received its Constitution as bestowed, not by the Act

of its own Legislature, but by the Act of a suzerain Legislature. And that

shortness of national stature remained until it was removed by the

addition of Ireland to the Community. For Ireland will receive her

Constitution by the Act of her own Constituent Assembly, not by the Act of

any suzerain Legislature. Whether the Constitution be or be not adopted by

any other assembly neither gives nor detracts from the national authority

it will possess. If it be so adopted, it will be adopted, not as giving it

authority, but as the completing Act of ratifying the Treaty. That is to

say, it will be adopted by the Parliament of Great Britain as concluding

the interest of that Parliament in the international bargain of the

Treaty; and it will be passed and prescribed by the Irish Assembly as

giving it full force and effect in Ireland. And that is a full sovereign

act. But, since all the members of the Community are declared to be

co-equal, the advent of Ireland, therefore, has given the recognition of

sovereignty to them all, and raised each to the full height of nationhood.

The consequences of this are at the moment difficult to foresee fully; but

they are consequences that the addition of Ireland to the Community has

created, though in the fullness of time they were ready for her advent. It

is certain that they will reach far and strike deep, not only within the

Community, but towards other nations, not members of the Community.

Already as between the six full members of the Community the thought of

Empire belongs to the past; and the word and feudal trappings will follow

the thought. Indeed, though the foolish trappings remain, in the text of

both the Treaty and the Constitution the word has already begun to be

supplanted by the word Community. And though it be true that words are

only words, it is equally true that words are the parasites of thought,

and cling to the mind long after their original uses are forgotten. To

cause the relinquishment of an ancient word is itself a liberal

accomplishment of no mean sort, as psychologists know; and none can say

where new conceptions will not lead when once the barrier of words has

been broken down.

These are, however, considerations for the future; and the future is only

for those who are worthy of it--and not always even for such. Already a

considerable change has been wrought; and that change is registered with

all its faults in the present draft Constitution. The nation that caused

the change is the same nation still, in spite of sad scattering of its

national strength. It is still an ancient nation: not a colony: never a

colony: deeply conscious of its historic heirlooms and prescriptive

dignities. Ireland is still a mother-country, fully resolved to employ her

empire of memory and love for the purposes which she and it judge worthy.

Her place and power in the Community will prove to be of no mean degree,

and of no small meaning for the nations outside that Community, as well

for the peoples and nations within it, if she rally her strength around

her and prove worthy of her destiny. When she shall have conferred a

Constitution upon herself, within the limits of her contractual obligation

in the Treaty, she will not have foresworn her heritage (unless she elect

to do so); she will not have diminished her strength (unless she choose to

dissipate it); but she will be able by a persistent purpose, of which she

has already given her pledges, to contribute in the future as she

contributed in the past, with a security that has not been allowed her for

many centuries, to the benefit of nations. And it is to this end I

dedicate this little book.

The Irish Constitution

I.

WHAT IS A CONSTITUTION?

During the early days of the second French Republic a customer entered a

bookseller's and asked: "Have you a copy of the French Constitution?" "We

do not," the bookseller politely replied, "deal in periodical literature."

Now, to any student of history such a story is a sure indication of the

time of which it is told. He need not inquire to know that the time was

one of revolution, change, and unsettlement. He also knows the mind of the

people of that time, for insecure conditions beget a nervous, restless

fear. And these things are significant. They reveal a quality of

constitution-making that is not always, or easily, remembered. For

whatever changes may proceed in legislation--however many and rapid they

be--as long as the Constitution, written or unwritten, remains intact, the

State at least is stable and its foundations are secure.

Plainly, therefore, nothing should be written into a Constitution that is

of a temporary, experimental, or questionable nature, or which should fall

to the lot of ordinary law-making and the changing convenience of

practice. A Constitution is that which is permanent, as far as anything in

this world may be permanent. Even to amend it, or add to it, requires in

all countries (except England, where the Constitution has not taken a

written form) a procedure quite different from that of ordinary

legislation. To change it, or recast it, requires a revolution. Such a

revolution may not be accompanied by bloodshedding, or it may, but it is

certainly accompanied by insecurity and unsettlement.

It should, therefore, be the business of constitution-makers to prescribe

only what to them is fundamental and irrefutable; to lay down the secure

foundations of their State; and to leave all other matters to the

experience of the nation, without seeking to shackle that experience by

provisions that time may not commend. Otherwise, a convulsion may be

necessary to get done what ordinary legislation could have accomplished

without affecting the stability of the State.

This, then, is the first definition of a Constitution, that it contains

the Fundamental Law of a State, and only the Fundamental Law. In England

there is no such thing as a Fundamental Law. It is claimed by English

constitutional lawyers that this is because Parliament is sovereign; but

the historical truth is that in England Parliament exercises a sovereignty

in fact which the King is supposed to exercise in theory; and any attempt

to make the theory square with the fact by the writing of a Fundamental

Law would lead, perhaps, to a surprising situation.

Yet in England certain fundamental rights are recognised, with which

Parliament would not lightly tamper; and these amount in effect to a

Fundamental Law, holding a higher rank than ordinary laws. In practically

all other countries such rights are set forth in a document, different

from all other legal documents, inasmuch as unless these other documents

observe the conditions required in the first, and do not conflict with its

provisions, they are null and void. In both sets of documents the laws of

the realm are to be found; but the two sets of laws are of different

sorts. One is fundamental and permanent; the other is by contrast casual

and changeable.

This, then, is the second definition of a Constitution, not only that it

contains the fundamental law of a State, but that it prescribes the manner

in which all other laws must be made, and put limits and restrictions on

all other law-making. In the American phrase, it is a "Frame of

Government."

In English the words Constitution and Legislation do not carry on their

face the relation of one to the other, and the distinction between them.

In Irish the case is different. In Irish the word for Legislation is

_Reacht_, and the word for Constitution is _Bunreacht_--fixed and

foundation legislation. But even the distinction so simply carried on the

face of these words does not complete the relation of one to the other.

For that relation is precise; and consists in the fact that all laws

comprising the _Reacht_ must be built upon the foundation of the

_Bunreacht_, and must be contained within the fixed limits of the

_Bunreacht_. The moment they attempt to build elsewhere, or go outside

those limits, that moment they cease to be binding on any citizen; and all

citizens may claim the protection of the courts of law against them.

From this follows the third definition of a Constitution, which is that it

contains the highest and completest sovereign act of a nation. A nation

may confer a Constitution on itself, and that Constitution may contain no

declaration that the people are sovereign; but the fact that the nation

did so make their own Constitution is itself a declaration of sovereignty.

Declarations of sovereignty in the body of a Constitution may be very

wise; and they are always pleasant; but they are not necessary.

Similarly, a nation may make a Constitution for itself, and in that

Constitution confer the chief executive authority on a person to be known

as a king; and that person may be known in name as a sovereign; but the

fact that he derives his power from the Constitution is evidence that, not

he, but the people, are sovereign. His is only a sovereign name; theirs is

the sovereign reality.

Such Constitutions were made in 1814 by Norway, in 1830 by Belgium, and

only last year by "Jugo-Slavia." In the last case the kingly line already

existed before the Constitution was framed, and an oath was prescribed in

it, according to which the King swore "to maintain the Constitution

intact." In the first two cases the kingly lines were not chosen until the

Constitutions had been framed, when the chosen dynasties stepped into the

places appointed for them, and carried out the functions defined for them.

In each case, however, the authority of the king sprang, not from the

divine right of kings, but from the divine right of the people, as set

forth in the sovereign act of giving themselves a Constitution.

How different the power of kings such as these from the power of the

French monarch who in the 18th century declared, "L'Etat, c'est moi"--"I

am the State." He was right. He was sovereign. Sovereignty had to reside

somewhere; and until the people arose and declared that it resided in

them, and expressed that declaration in a formal Constitution, it

continued to reside in the ruler who claimed it.

When, however, in 1787, the thirteen American States "ordained and

established a Constitution" for their Union, then in the modern world the

people came by their own. France quickly followed the example, but as a

result of the wars which followed the world was thrown back into reaction.

Throughout the 19th century, however, the statement of democratic

sovereignty as a fundamental law of the State found expression in

Constitution after Constitution; with the result that now, in modern

practice, the existence of a Constitution is practically identical with a

statement of national sovereignty.

There has hitherto been one chief exception; and that exception is of

striking interest at the present time. For within the British Empire the

theory has been that there is only one sovereign assembly, the Parliament

at Westminster. It is true that the Constitutions of Canada, Australia and

South Africa were each drawn up by Constituent Conventions in the

countries themselves; but by the prevalent theory none of these peoples

were competent to confer these Constitutions upon themselves. They were

not, that is to say, sovereign; and before the Constitutions they devised

therefore could come of effect they had to be passed as Imperial Acts by

the Parliament at Westminster.

Yet that also has now changed. Ireland has wrought the change; and the

deep influence of that change cannot be foretold. For the Dail elected to

pass the Constitution will act, not as a Constituent Convention, but as a

Constituent Assembly. It will not only devise the Constitution, with the

present Constitution before it as a Bill for discussion, but, having

devised it, will prescribe it; and thus, through their elected

representatives, the people of Ireland will have conferred it on

themselves as their Fundamental Law.

That is a sovereign act; and that act will differ in no degree from a

similar act by any other sovereign people. From this, however, one last

consideration follows; and, though it is simple, it is not usually

remembered. For if the passing of a Constitution is an act of full

sovereignty, and if that Constitution, being a Fundamental Law, restricts

and limits all future law-making, then the assemblies to come which will

pass those future laws will not be sovereign.

They will not be able to do what they will, and they will not be able to

act as they will, for they must obey the requirements and act within the

limits of the Constitution, as prescribed by the first Assembly, which

alone was of full sovereignty. For this reason every nation has gone to

great care to choose persons of special competence for the body which is

to act as a Constituent Assembly--the body, indeed, which is to act as the

first, and, so long as that Constitution shall remain, the last Sovereign

Assembly of the nation. The act of prescribing a Constitution being the

highest act that a nation can make, care has always been taken to make it

the fullest and the freest. For, once done, it cannot be undone, except at

great trouble, and perhaps as the result of great convulsion.

II.

THE PLAN OF THE CONSTITUTION.

To draw up a plan is almost inevitably to express a philosophy. In shaping

the sequence and proportion of the parts which are to comprise the whole,

the trick of the mind will out; and it is in that trick of the mind that,

ultimately, all philosophies are contained. Perhaps there are few who,

after consideration, would deny this in all the ordinary (greater or

lesser) concerns of life; but many will think it strange in a matter so

dry as the drafting of a Constitution. Yet even in the drafting of a

Constitution it will be found equally true.

A Constitution may be likened to a pyramid, the apex of which is the

Executive Authority, and the base the People. The first question that

therefore at once arises is, where shall one begin first with this

pyramid? But before this question can be answered, another must first be

met; and it is, whether the base is hung from the apex, or whether the

apex rests on the base? What relation has the Executive Authority (whether

kingly, presidential or consular) to the People, and the People to the

Executive Authority; and which, names and titles apart, is ultimately the

Sovereign? These are ripe questions; and only in the making of the plan

can they be answered.

I have already shewn that the writing of a Constitution is itself evidence

that the people are sovereign, even though no statement to that effect is

included in the writing. But when one comes to look in the Constitutions

of the world it is curious to note the persistence with which that truth

is overlooked. The Canadian Constitution, for example, having provided for

the Union of Provinces by which the Federation was created, begins at once

with the statement that "the Executive Government and authority of and

over Canada is hereby declared to continue and be vested in the Queen."

Nothing has been said about a Legislature--nothing about the people of

Canada. The Constitution begins at once with an Executive Authority which

nothing has brought into being, and which therefore exists of its own

right, original and indefeasible, all things else in the Constitution

depending from it. The pyramid is hung from heaven, for the philosophy of

the plan is to be found in the mediaeval myth of the Divine Right of

Kings.

The Constitution of Canada consequently proceeds downwards from that apex

to the Legislature; and in that Legislature, according to the philosophy,

the Senate comes before the Commons. "There shall," it says, "be one

Parliament for Canada, consisting of the Queen, an Upper House, styled the

Senate, and the House of Commons." As for the base, it is found nowhere at

all. The interest is exhausted before it is reached; and the People are

not mentioned.

I have taken the Canadian Constitution because it is specially mentioned

in the present draft of the Constitution of _Saorstat Eireann_; but the

same supposition is found in many other constitutions, such as those of

Denmark, Sweden, South Africa. In them are to be found the relics of the

mediaeval theory of government, of a divine authority conferred on a

family, which therefore ruled of its own right; and of its own grace

summoned the subjects of that authority for counsel and advice. Therefore

in these constitutions it is assumed that the sovereignty is above and the

subjection below--even though no one to-day supposes that the practical

facts are what they assume them to be.

In the Irish Constitution, as in most modern constitutions, this order is

inverted. The sovereignty is below, and the subjection is above. Never

once throughout the Irish Constitution (either in its original or its

present form) are the people once considered as subjects, but always as

sovereign citizens. The pyramid is based on the broad earth, in the divine

right of the people; and a beginning is therefore made with the base,

proceeding upward to the apex. The plan in fact is reversed because the

philosophy is different.

The Constitution of _Saorstat Eireann_ begins with the people, and with a

statement of the sovereignty of the people. "All powers of Government," it

says in Article 2, "and all authority, legislative, executive and

judicial, are derived from the people and the same shall be exercised in

_Saorstat Eireann_ through the organisations established by or under, and

in accord with, this Constitution." In this Constitution, therefore, the

people of Ireland establish their own right, original and indefeasible,

and all things and persons and institutions named or created by or under

it depend from them. That is in the present, as it was in the original,

draft. Whatever institution or organisation is established to act on their

behalf, acts under an authority conferred by them; and in accord with the

specific bestowal of that authority; and not otherwise. Whatever person or

power is named, is named to act on their behalf; acts under the same

authority; in accord with the specific bestowal of that authority; and not

otherwise. The people confer of their own right; and what they may confer

they may withdraw. If the authority they confer be abused or transgressed,

it ceases thereupon to have any sanction or reverence, and possesses no

binding effect. That is to say, in the terms of my figure, the apex of the

pyramid rests on the base, is hung from no mythical divine right of kings,

and has no support outside the people of Ireland.

The people, consequently, are citizens of a free state, not the subjects

of authority. It is necessary, therefore, at once to state who are the

citizens of this state, and what constitutes their citizenship. This the

next article proceeds to define. In this article the whole question of

future citizenship is referred to legislation. It properly belongs to

legislation, since it includes a number of complex matters and details

quite unsuited to a Constitution. Yet there must be an original

citizenship, otherwise the service of the state could not begin. Article

3, therefore, states what constitutes the original citizenship of Saorstat

Eireann; and leaves all matters "governing the future acquisition and

termination of citizenship" to be "determined by law," making it a

constitutional provision, however, that "men and women have equal rights

as citizens." And Article 4 provides that the official language of that

citizenship shall be the Irish language.

From these original citizens, and from whomever shall be admitted to

citizenship in the future, all the authority of the State derives under

the Constitution. They are the base of the pyramid, and it is they who in

the Constitution (according to the plan on which it is framed) confer on

certain persons and organisations definite powers of Government in

Ireland. But the authority which can confer, can also withhold; and from

the powers which they grant, certain matters are withheld. For there are

matters which comprise the fundamental rights of their sovereignty, with

which no Government created by them can interfere. If the Government had

existed, or had claimed to have existed, of its own original right, it

could, being itself sovereign, have acted as it pleased; and in past times

it did so. But since Government under the Constitution exists only by

reason of an authority conferred by a sovereign people, these Fundamental

Rights of their sovereignty are kept apart; and no authority--legislative,

executive or judicial--and no power of Government is conceded the right to

touch them.

Therefore in the first section of the Constitution, where the original

authority of the people is stated, certain matters are withheld. They are

described as _Fundamental Rights_. The liberty of the Person, the

Inviolability of the Dwelling, Freedom of Conscience and the Free Practice

and Profession of Religion, the Free Expression of Opinion, Free

Assembly, Free Association, Free Elementary Education, and the

Inalienability of Natural Resources, are each dealt with in successive

articles as forming the essentials of these rights. Before any powers are

conferred, before any organisations or institutions of Government are

created, these matters are put to one side and reserved. They belong to

the people. None shall interfere with them. The people are sovereign, and

they so decide.

Such is the plan, for such is the philosophy. The first section of the

Constitution, therefore, includes what may be described as the base of the

pyramid, resting on the soil of Ireland and established in the right of

the People of Ireland. From that base the pyramid is built up toward the

Executive Authority, in section by section, giving the logical order in

which power is derived. Each section is based on that which precedes it;

for the order is the same as in the original draft, and therefore the plan

is preserved.

III.

THE MAKING OF LAWS.

All powers of Government may derive from the people, but the people cannot

of themselves govern themselves. In simple small communities the people

may gather together and frame the manner of their government from meeting

to meeting (and only then when ancient custom has given them the practice

and expectation of such assemblies); but among nations for a people to

discipline and rule themselves it is necessary that they bestow recognised

and definite powers of government on representatives of their choice. Such

representatives, to be sure, have a habit of conceiving that they are

rulers of their own right. Cases have even been known where they have

endeavoured to obstruct the right of the people to depose them. But the

truth is that such representatives are merely a convenience. They are a

people's instruments, and no more. Without them the achievement of a

common agreement, and the formulation of laws based on that common

agreement, would prove so cumbersome as to be impossible. A people must

therefore tolerate them with good humour; and keep them under proper

control. And when such representatives have been chosen, they together

form an organised body for the making of laws, and for the supervision and

control of the execution of such laws.

Obviously, then, once a Constitution has stated the sovereign source of

all authority, and defined the fundamental rights of that sovereignty, it

is essential that it should prescribe the manner in which laws shall be

made for the peace, order and good government of the whole people. The

second section of the Constitution, therefore, deals with the _Legislative

Provisions_ of the State. The most important of these, manifestly, is the

creation of an organisation of representatives; but, owing to the tendency

of representatives to arrogate powers to themselves, of late years the

peoples of many States have insisted on a direct voice in the checking,

and even in the making, of laws. This direct voice has been exerted by

means of two instruments known generally as the Referendum and the

Initiative. Wherever these prevail, the Assembly of Representatives is

given only a limited power in the making of laws, the sovereign authority

reserving to itself a constant and continuous control over its action. And

in our Constitution both these instruments are given a place. For it is a

sound rule that the people are generally better than their

representatives--wiser of counsel, more disinterested of judgment--and it

is therefore provided in the Constitution that there shall be an Assembly

of Representatives, but that the people may require of that Assembly that

laws be referred to them for final decision, or that laws be made to suit

their desire.

The most important part of these legislative provisions, however, is the

setting up of a National Assembly, or Synod, to be known as the

Oireachtas. This is to be formed of two Houses, Dail Eireann and Seanad

Eireann. There are many powerful arguments against the two-chamber system.

In the end they all resolve themselves into a question of ultimate

responsibility. In a simple illustration, if there be one thimble and one

pea, it is easy enough to know where the pea is. But directly a second

thimble is brought up beside the first, the difficulty of placing the pea

becomes at once a problem. On the other hand, the arguments in favour of a

second-chamber system also resolve themselves into a question of

responsibility. For if there is only one chamber, without a second to

check it and act together with it, there is, it is argued, a greater

likelihood of its acting in an irresponsible manner, and of its running

into hasty, ill-advised legislation. Its members, having acquired the

habit of concerted action, may moreover strike a bargain behind the

people's back, even while preserving all the forms of opposition and

discussion. With the two instruments of the Referendum and the Initiative

in operation this danger is less likely, provided that the people be

sufficiently alert. Yet it exists. In most countries, therefore, two

chambers are the rule; and in our Constitution it is provided that there

shall be two chambers, care being taken to fix responsibility ultimately

in the first in case of doubt or delay.

Given two chambers, the difficulty is the creation of the Second Chamber.

The First Chamber causes little difficulty, and is mainly a matter, not

for the Constitution, but for an Electoral Law. The Second Chamber is a

matter for the Constitution. Indeed, the question and creation of a Second

Chamber, and the formation of the Executive Power, are the two foremost

problems for the making of every Constitution. The first difficulty is to

find for the Second Chamber a sufficient constituency, and the second

difficulty is to find for it a proper function; and both these problems

are essentially matters for the Constitution of a State. To answer both of

them satisfactorily is the difficulty; and an examination of the

constitutions of other countries reveals that in few cases have they been

answered even to general satisfaction.

As for the constituency, it is clear that this cannot be the same as for

the first chamber, otherwise the two Houses are simply repetitions. That

is one consideration to be remembered. There is another. For from earliest

times mankind has desired to call into its special councils those who have

distinguished themselves in the conduct of its affairs. Folk may disagree

with such persons, but they defer to them and hear them. What may be

called the Senatorial Person is a recognised factor in the history of all

nations. In the push and jostle of entry to the First House--where special

and local interests are represented--such a Senatorial Person is most

likely to be thrust aside, even if he or she be inclined to mingle in the

fray. He is consequently lost to the councils of the nation. How shall a

place be found for him or for her; and when the place is found, what shall

be the measure of his or her counsel?

Other nations have answered these problems in divers ways. None has

answered them as they are answered in the Constitution of _Saorstat

Eireann_. For it is clear that if there is to be a Second Chamber, the

right place for such a Senatorial Person is in that Second Chamber, since

only thus is it possible to avoid making one chamber a mere copy of the

other. In some countries, therefore, the Second Chamber is composed of

persons on whom a title has been conferred--and on their children who

succeed to that title. In other countries the Second Chamber is created by

nomination--with at least the ostensible wish that only Senatorial Persons

will be appointed. Both these methods have led to corruption. Both,

moreover, have led to one fatal fault. For Second Chambers are mainly of

value at times when the First Chamber is likely to rush to a mistake; and

at such times no people are inclined to give careful heed to the counsel

of persons whom they have not themselves chosen to give that counsel. They

may be exactly such persons as they themselves would have chosen; but the

fact that they did not choose them, the fact that they came there by the

accident of birth, or the power of money, robs them of authority just when

their authority is most required.

For this reason, the people's own choice of Senators is necessary to their

efficiency and authority. In countries formed out of a Confederation this

difficulty is evaded by the creation of the Senate from the Federated

States, while creating the First Chamber directly from the whole people.

But where there are no Federated States the people's direct bestowal of

authority cannot be evaded if friction and loss of strength are to be

avoided. Thus one returns to the original problem, which is, how the

people shall choose a Senate which will not be a copy of the Chamber of

Deputies, and how the Senatorial Person will find his way to the councils

of the nation, bringing with him an unanswerable authority.

Our Constitution meets this by making the whole country one constituency

for the election of the Senate. The Deputies are elected from localities

where they are known, and the special interests of which they are

qualified to represent. Over those interests the major interest of the

whole nation stands guard. It would be possible for persons to enter the

Chamber of Deputies who are not known outside their own localities, but

who are qualified to represent those localities. But by making the entire

country one constituency for the election of the Senate, no merely local

interest will have power to secure election. And thus it will be possible

to find a place for the Senatorial Person from, as the Constitution reads,

"citizens who have done honour to the nation by reason of useful public

service, or who, because of special qualifications or attainments,

represent important aspects of the nation's life." These persons are to be

elected by Proportional Representation; and in order that the business of

election shall not prove too cumbersome it is appointed that one-fourth of

the Senate shall retire every three years, and that before each election a

list shall be prepared by both Houses consisting of at least three times

as many persons as there are vacancies to be filled.

Such form the two Houses of the Oireachtas. Their relation to one another

is carefully defined. The Seanad is created as an advisory and delaying

body, and the ultimate responsibility is given to the Dail. But endowed,

as it is, with so strong an authority, vested in it by the entire nation

voting as a whole, it is unlikely that its criticisms and advice can be

neglected. For such criticisms will be furnished in the course of debates

that will be read by the whole people; and behind them there will always

be the possibility of appeal to the whole nation by Referendum, which the

Senate can compel by a three-fifths vote. The Senate and the people,

therefore, are placed in a watchful alliance over the acts and

proceedings of the Dail. Indeed, it is not unlikely that in the future the

Senate and the people (by Referendum) will often be found in practical

alliance against any attempt of the Dail to arrogate power to itself. The

Senate has the power to make it so--a power of greater worth to it, and to

the nation, than any constitutional right arbitrarily to obstruct

legislation or to make legislation abortive.

IV.

THE PEOPLE AS LAW-MAKERS.

More is spoken of the two instruments of the Referendum and the Initiative

(particularly the former) than is known about them; for in the countries

where they have been adopted, folk use them and do not talk about them,

and where they have not been adopted folk talk about them with ardour or

with fear but without knowledge. Briefly they may be described as a

retention by the sovereign people of sovereign authority over the making

of laws.

The case is not without an historical parallel. In earlier times in other

states the sovereign was the king, who said, "L'Etat, c'est moi." He was

therefore the law-maker, by supreme right. He might summon the estates of

his realm--Lords and Commons--to advise and counsel him; and he might,

normally, allow their acts without his interference; but, being sovereign,

he reserved the right to cause those acts to be referred to him for the

final act of his will; and he at all times reserved the right to send a

message to them instructing them to make laws on matters that seemed to

him to require attention. This he did, being the sovereign. His parliament

was the legislature of the State, but he preserved the Referendum and the

Initiative, and held them as his sovereign authority over the authority

deputed to the legislature.

When, however, sovereignty passed to the people, they assumed the

attributes and the functions of that sovereignty. Where once the king's

person and the king's dwelling, for example, had been declared to be

inviolable, now (as in our Constitution) the people's persons and the

people's dwellings are declared to be inviolable. And where once the king

reserved the right to veto and to initiate legislation, so now (as again

in our Constitution) the people reserve the right to veto and to initiate

legislation. And this is the plain and simple meaning of the two

instruments of the Referendum and the Initiative. Their effect is to shift

sovereignty from the parliament to the people, where the revolutions of

the 17th and 18th centuries shifted sovereignty from the king to the

parliament.

It frequently happens that theories (for whatever they may be worth) are

carried to their logical ends by practical people and not by

theorists--for theory generally lags in the rear of practice. So it

happened in this case. For it was the soberly practical and conservative

people of Switzerland who in modern times first devised the Referendum,

and then the Initiative. Since then they have been adopted in many

countries, chief of which are Belgium, Australia, and many of the American

States; and they appear in most of the constitutions recently adopted in

Europe. But it is in Switzerland that they can most usefully be studied,

for there they have a solid experience of ninety years continuous practice

behind them.

The Referendum came first; and in its modern form was first adopted in the

Constitution of the canton of St. Gall in 1831, the second and third

articles of which read:

Art. 2.--The people of the canton are sovereign. Sovereignty, which

is the sum of all political powers, resides in the whole body of

citizens.

Art. 3.--It results from this that the people themselves exercise the

legislative powers, and every law is submitted to their sanction.

This sanction is the right of the people to refuse to recognise any

law submitted to them, and to prevent its execution in virtue of

their sovereign power.

From St. Gall it spread to each of the other twenty-two cantons, and to

the legislation reserved to the Federal Assembly. Everywhere it is either

compulsory for every law to be submitted to the people by Referendum, or

for laws to be submitted when a given number of electors, within a limited

period of time, have demanded that the Referendum be exercised, some of

the cantons having adopted it in one form and some in another, the

Confederation adopting it in the optional rather than in the obligatory

form. Then, after the Referendum, followed the Initiative with quick pace,

by which the people asserted the right, not merely that laws may be

submitted to them for their approval or rejection, but that a given number

of electors (in writing) may demand that the Legislature proceed without

delay to legislate on any matter that they judge to be of sufficient

importance.

At first sight measures such as these appear to be revolutionary and

drastic. In practice they have proved to be conservative. The mere

existence of the Referendum has proved to be a check on legislation that

might otherwise have been carried by parliamentary manoeuvring for

votes. The people, in actual fact, have proved to be both purer and more

conservative than their representatives; and the tendency towards economy

in the expenditure of public moneys has, in the main, been not the least

benefit it has conferred. People are little inclined to study bills

debated in the national assembly when they realise that they are powerless

to change or check the measures it may pass. The power to throw out their

representatives at the next general election is only a limited form of

freedom, and it is illusory in face of the fact that those representatives

are generally chosen by powerful political organisations which take care

to select pliant and obedient tools. Only at times of great crisis does

the wish of the people become vocal; and even then it is more usually

neglected than not. But with the Referendum in their hands (especially

with the Initiative added to it) the will of the people is always present.

The people can hasten legislation where it moves slowly. They can retard

it where it presses too fast ahead. They themselves can make the pace. And

the effect on themselves is that, with this added responsibility, they

take a quick interest in their own concerns. In the first place they break

up the power of political organisations; and in the second place they

themselves become alert and educated citizens, responsible and intelligent

guiders of their own destinies.

Nor are these the imaginings of theory. They are the practical outcome in

every country or state where the Referendum and Initiative have been

adopted. They have especially been the result in Switzerland, where, by

means of the Initiative, the people have insisted on measures being passed

that no political party would have dared to undertake. For there are many

questions that cut clean across all parties, which dare not offend a

majority or a minority, and where therefore the unity of the party comes

before the interest of the nation. But minorities from all parties may

join, and in Switzerland have joined, together to press for their

adoption, with the consequence that the National Assembly has had no

alternative but to frame legislation to deal with them. And when such

legislation has come before the people by the Referendum, the people have

in many cases adopted them.

The presence, therefore, in our Constitution of both the Referendum and

the Initiative is therefore a sign that the people of Ireland are to be

rulers in their own house--not merely as against foreign control, but as

against the dominance of political parties. It means more. It means that

responsibility is now definitely reposed in them. There are provisions

which, in the present draft of the Constitution, could with advantage be

changed. For to require, in Article 43, that a petition from the people of

not less than "one-twentieth of the voters then on the register" is

necessary (in the alternative of a vote of three-fifths of the Senate),

before a measure may be put to the Referendum, is to impose an almost

impracticable, and certainly an extremely difficult, task. It reveals a

fear of the exercise of the Referendum that experience in other countries

does not justify. With the wide franchise allowed in the Constitution, the

tendency will be to play into the hands of political parties, and one of

the purposes of the Referendum is to destroy the power of political

parties. Yet a slight change here may easily be made. And the essential

fact is that the people of Ireland, having asserted the fact of their

sovereignty, and defined its qualities, proceed to exercise its functions

by holding over the Oireachtas the two instruments of the Referendum and

the Initiative.

How will those functions be exercised? It is impossible to say, except

that there is no education like the education of responsibility.

V.

THE EXECUTIVE POWER.

I have likened a Constitution to a pyramid, the base of which is the

People, and the apex the Executive Authority. In all pyramids, it is the

apex that first catches the eye, not the base; yet it is from the base

upward that democratic constitutions are built. Usually it happens in most

countries that the Executive masters the Law-making body, and that the

Law-making body in turn masters the People. It is therefore necessary to

remember, and to emphasise, that the true order is the other way about,

the People being the master of the Law-making body, and the Law-making

body the master of the Executive. In the degree in which that true order

is asserted, and observed, the health of the State is preserved. In the

degree in which it is neglected, or frustrated, there is suspicion,

irritation, discontent. And as it is always the Executive which tends

naturally, where it does not intrigue deliberately, to upset that order,

by gathering all power into its hands, obviously the provisions respecting

the formation and maintenance of Executive Power are the most critical

part of every Constitution.

It was a wise man, and an experienced, who said that it did not matter to

him who had the making of laws, so long as he had the administration of

them. "For forms of government let fools contest," said the poet; "That

which is best administered is best." And as the administration of a State

is reposed in the care of the Executive Power, for the most part beyond

the sight of the Law-making Assembly of the people, it is essential that

the Constitution should provide that the Executive should at all times,

and with the utmost flexibility, lie in the control of the Legislature.

Otherwise, whatever safeguards may be provided that laws carry the consent

of the people, the people will in the end find themselves baffled, unable

to track into the thicket of secret decisions the will that they have

elsewhere endeavoured plainly to express.

It is therefore the plain duty of every Constitution to keep the Executive

simple and flexible, responsive always to the will of the Legislature, as

the Legislature should always be responsive to the will of the people.

Crises will arise in the history of every nation when the powers of the

Executive require to be strengthened; and at such times those powers will

be readily conceded. But it is the Legislature and the people which must

decide; and the Constitution must leave them free to do so. It is no part

of the duty of a Constitution to provide for a time of crisis, and to make

that provision fixed and rigid for all later times, when circumstances

will have completely changed.

All that it is the absolute duty of a Constitution to do is to state how

the Executive shall be formed, and to define its responsibility to the

Legislature. The rest may be left to the practice of the future. Certainly

to indulge in experiments in a Constitution respecting so vital a part of

it as the Executive (experiments unlike anything yet attempted in any

Constitution in the world) is an extremely hazardous proceeding. Nor are

such experiments necessary in a Constitution, since they may be tried in

the course of ordinary legislation, and surrendered if they prove

impracticable. It is one thing to experiment--which a Constitution should

allow. It is another thing to be pledged to one's experiments for

ever--which is what a Constitutional provision is intended to mean.

The experimental nature of the provisions for the Executive in the present

draft of the Constitution is manifest. They are unlike anything in any

Constitution. They are quite unlike the provisions in the Swiss

Constitution, from which the inspiration is supposed to be derived.

Switzerland is a Confederation, consisting of twenty-two sovereign

cantons, where only limited powers are conferred on the federal

authorities. The twenty-two sovereign cantons differ widely in religion,

language, habits and traditions. They are jealous of the federal

authorities, and jealous of one another, and therefore insist that the

Federal Council (which acts as the Executive), as well as the Federal

Assembly, shall be representative directly of the languages, religions and

traditions of different parts of the country. Certain of the larger towns

and cantons, indeed, claim prescriptive rights to the appointment of

members of the Federal Council. This Council, therefore, is appointed for

the whole term of the Assembly by the two chambers of the Assembly sitting

together, and are chosen by the two chambers, as the Constitution says,

"from among all Swiss citizens eligible to the National Council." The

members of the Council may speak, and propose motions, in both chambers,

but they may not vote in either, for they form a separate institution

outside the Assembly.

It is well to see what are the provisions for the Executive Power under

the Swiss Constitution in order to note how widely the Executive in our

draft differs from them. Good or bad, our draft stands or falls by itself,

and cannot depend from the Swiss example, from which it differs both in

itself and in the circumstance which it is designed to meet. The intention

may be of the noblest; but intentions are only prophecies; and the

Fundamental Law of a Constitution is scarcely the place to commit a whole

people to a prophecy. The intention is to overcome party government, and

is conceived at a time when parties are divided along lines that do not

represent the economic issues that ordinarily influence the course of

legislation. For parties, in so far as parties represent true economic

issues, are a natural and inevitable medium for conducting the government

of a country. Where parties do not represent such issues, but are held

together by unnatural organisations, they do, it is true, obscure the

orderly government of a country. The remedy is to be found, not in an

enforced and arbitrary creation of an Executive, but in the right election

of the Legislature, of which the Executive must be a reflection if the

Legislature is to work harmoniously with it, and keep a constant control

over it. To attempt by arbitrary provisions to create an Executive that

does not accurately and at all times reflect the Legislature (on whatever

party lines that Legislature be composed) is automatically to remove that

Executive from the continuous control of the Legislature. And it is surely

the essential business of a Constitution to insist that that control be

emphasised, not diminished. Otherwise, whatever be the intention, the

Executive will become irresponsible, government will fall into the hands

of rulers who can only with difficulty be removed, and constant friction

will ensue.

Such is the broader line of argument. In detail the Executive provisions

of the present draft seem even less defensible. For authority is reposed

in an Executive Council formed of two parts. Of twelve Ministers, it is

stated, four must be members of the Chamber and eight must not be

members--or, if they were members before, they cannot continue to be

members, and must resign. It is true that on the motion of the President

of the Council these four (who are members of the Chamber) may be

increased to seven; but the draft makes it perfectly clear that according

to the normal procedure under the Constitution the proportions are to be

four and eight; and it is on the normal, not on the exceptional, procedure

that attention must therefore necessarily be laid.

Eight out of twelve Ministers, therefore, are not permitted by the draft

to be, or to remain, members of the Legislature. If they were members

before their appointment as Ministers, they must resign. Consequently,

within a few days of a General Election, bye-elections become necessary in

respect of so many Ministers as were elected as deputies--although other

Ministers who are elected as deputies may continue to remain both as

Ministers and as deputies. The General Election, however, was held under

the Constitution on the principles of Proportional Representation. But

bye-elections, in such a case, cannot be held according to Proportional

Representation. They become a party tussle between two or more candidates.

The first effect of this arrangement, therefore, is to increase the number

of elections, with their confusion and unrest, to create party contests in

their strongest form, and to undo the proportional representation of the

nation in the Legislature. Someone of an entirely different party might be

returned in such a bye-election from the person who resigned on

appointment as Minister; and the representation of minorities be directly

injured as a consequence.

That would be the immediate result. The next to follow would be that the

nation would find itself faced with the danger of an Executive within an

Executive. For the eight external Ministers are to be appointed for the

whole life of that Chamber. They are to be nominated by a Committee itself

specially elected for that purpose. They cannot be removed during the life

of that Chamber unless the Committee finds that they have been guilty of

malfeasance, incompetence or disobedience to the will of the

Chamber--definite sins of omission which are not always easily susceptible

of proof. This is of itself sufficient to remove them from constant

control by the Chamber. But the four internal Ministers are, for some

reason, to be appointed in quite a different manner, and they hold office

by quite a different tenure. They are to be appointed on the nomination of

the President of the Council. They can at any time be removed by an

ordinary vote of the Chamber. They must therefore study the Chamber, and

devise their policies to suit its will, for they are subject to its

constant control.

The whole twelve, it is true, are said to form one single Executive

Council. But what are the chances of this? Is it not only too clear that

the four internal Ministers, since they can be removed by an ordinary vote

(which the eight cannot), will frequently, and in most larger matters,

meet and act separately together in coming to their decisions? Will not

necessity drive them to this? But this would mean at once, not one

Executive Council, but two--one within the other. This is acknowledged to

be a dangerous practice. We know what happened in England when during the

European war a similar practice was adopted, and how soon it became

necessary to change it. And is it not equally clear that they will, and

must, use the majority that keeps them in power to make the eight external

Ministers subservient to their will, if their policies cross, without

calling them into council? For the policies of all Ministers cross, and

inter-cross, and should do so if there is to be a harmonious and healthy

administration, especially in questions and policies of finance.

Ultimately the temptation will always be present to these four internal

Ministers to get subservient persons nominated to the positions to be held

by the eight external Ministers. They themselves will have come to power

by a majority of the Chamber. Of that majority they will be the

acknowledged leaders; and it would be strange if they did not use that

majority to find eight external Ministers to their liking. But where this

happened (as happen it certainly would, in the ordinary human

probabilities of the situation) a very remarkable result would come to

pass, unlike anything in the history of representative government. This

is, that the Four would in practice dictate the Executive policy of the

Eight, but they would not be answerable to the Chamber for the

administrative conduct of those eight departments. They would require what

must be done, but they would not themselves be responsible for the manner

in which it was done, or whether it were done at all. For the Eight would

have been nominated for the life of the Chamber by a special Committee,

they would not be members of the Chamber, they would not be susceptible

to a vote of lack of confidence, but could only be removed when the

Committee which nominated them had found them guilty of some public

misconduct in their administration.

The first result of this amazing separation of executive and

administrative responsibility would be that the Chamber, looking from one

to the other in the attempt to fix the ultimate responsibility, would find

itself with only the vain shadow of control. For the Eight would in theory

be responsible to it, but in practice--certainly on all major matters of

policy--would be directed by the Four. Yet the Four could not be held

responsible for the doings of the Eight. And the second result would be

that the Eight would be little more than Civil Servants. Yet they would

not be Civil Servants. They would neither be Ministers nor Civil Servants,

having neither one kind of responsibility nor the other.

The baffling consequence would be that the Chamber would not only lose

control over the Eight, but, because of the same division between

executive and administrative responsibility, would lose control over the

whole Executive (including the Four) in respect of functions ascribed to

the Eight. It is in the details of administrative practice that the

control of the Legislature is usually most important; and it is in just

these details that, by the division of the Council into two kinds of

Ministers, with different methods of appointment and removal and different

sorts of tenure, that the Chamber will under these provisions have lost

its control. It is true that it would have the remedy of putting out the

Four; but few Chambers, having appointed the head or heads of a

Government, desire to throw them out except on some fundamental, paramount

issue. The remedy might be worse than the evil; and thus, by its

reluctance to take so drastic a step, and by the division of

responsibility, it would lose its continuous control over the Executive

which is the very breath of legislative freedom.

It is unnecessary to point, further, to the danger of nominating a large

part of an Executive under these circumstances through a Committee. It is

notorious that Committees are, or can be made, more easily accessible to

intrigue than larger assemblies. The Chamber itself should be its own

Committee for the selection of Ministers, on the recommendation of the

President of the Council, with whom they would have to work. This

provision still further removes the Executive from the control of the

Chamber. And so the order of responsibility is inverted, which the plan of

the Constitution elsewhere so constantly emphasises. For the People may at

all times, by the Referendum and the Initiative, control the Legislature.

But the Legislature cannot, under these provisions, at all times and so

simply control the Executive. And so control fails just at the point where

authority tends most to arrogate power to itself.

Incidentally, also, the Legislature loses what generally has proved its

greatest source of strength. For the best informed critics of any Chamber

are those who once were Ministers, who appreciate the responsibility of

Ministers, and who temper their words as members with their knowledge and

experience. But, under these provisions, a member who is appointed as one

of the external Ministers ceases to be a Member. If he therefore finds it

incumbent on him to resign, because of disagreement with his colleagues of

the Executive (Inner or Outer), he ceases to be both a Minister and a

Member, and his service and knowledge are lost to the Chamber--not to

speak of the loss of detailed information on the cause of the particular

issue of his resignation, on which the Chamber may wish enlightenment.

Indeed, such a provision as this seems peculiarly arbitrary and

meaningless.

There is, indeed, much virtue in the liberty of the Chamber to appoint as

Ministers persons who may be specially qualified, but who may not be

members. In the jostle at the hustings to enter a Chamber of but two

hundred members it is unlikely that the best ability would always succeed,

if it were so much as willing to share the fray. A Legislature should

therefore not be hampered in the choice of its Executive by restricting

that choice to two hundred persons. If persons, not members of the

Chamber, were appointed as Ministers, clearly they could not vote; but

they could be present, could speak, and could propose motions on behalf of

the Executive of which they were members. But the whole Executive should

share an equal responsibility, and be subject at all times to the

continuous control of the Legislature, of which they are the servants, not

the masters.

VI.

THE JUDICIARY.

The three organic parts of every Constitution are the Legislature, for the

making and enacting of laws, the Executive, for the execution and

administration of laws, and the Judicature, for the interpretation and

enforcement of laws. These three comprise the powers of Government which a

people bestow on certain organisations which they create for that purpose,

in the sovereign act of conferring a Constitution on themselves. The

authority which such organisations shall henceforward exercise in Ireland

derive, under the Constitution, from the people of Ireland; and from no

right or power, pretended or real, existing elsewhere.

The first of these three organic parts, obviously, is the Legislature,

since laws cannot be executed or interpreted until they first exist. The

second, equally obviously, is the Executive, since laws, having come into

existence, must first be put into execution before they can be liable to

interpretation, or before they can be said to require enforcement. But

when a Legislature and an Executive have been brought into existence, as

necessary organisations for a people's government of themselves, a

Judicial organisation at once becomes necessary. For no law can so be made

as of itself to fit each particular case. Laws, by their nature, are of

general meaning, and must be interpreted to the particular instance where

its construction is questioned. And there is (unhappily) no law that is

not sometimes altogether challenged, and set at defiance, when therefore

the law made by the people at large must be enforced on the individual,

and its defiance punished.

Unfortunately few people regard their Judicature with the same pride of

possession with which they (sometimes) regard the Legislature, and even

the Executive. Even when folk disapprove of their law-makers and their

ministers, they disapprove because they conceive they have acted

mistakenly on their behalf, whereas they conceive of judges as having

acted from a malignancy inborn in them or in the system, with the kind of

disapproval reserved for those who are created and are destined to act

against their behalf. That is--in most countries, and especially in

Ireland--a legacy from evil days, when judges were not the people's

judges, but whips sent forth through the land by some person who claimed

to be sovereign. With the reversal of sovereignty, however, the judges

become the people's judges; the courts are the people's courts, where the

laws of their own making are interpreted; the judicial system is the

people's system; and it is for the people to insist that this attitude is

observed, not only by them, but by those who interpret the laws and

administer justice. For, under the Constitution, no judge sits in any

court in the land save by an authority bestowed on him by the people, in

the Constitution which they confer on themselves. And it is for the people

to remember that fact; for only by that memory will it be recognised in

the courts themselves--and, indeed, only thus will it deserve to be

recognised there.

It is not, however, necessary that the details of the judicial system

should be worked out in the Constitution. It is not, indeed, desirable

that they should be (a consideration worthy of attention, not alone here,

but in connection with the provisions for the Executive also), for such

details belong to later legislation. All that is required in the

Constitution is the general outline of the Judiciary, and a statement of

its organic relation to the other parts of the powers of government

created under it. How that outline will be completed, and the details of

the organic relation made good, must be dealt with in a subsequent

Judiciary Act, preceded probably by a Judiciary Commission established to

review the whole of the present system and to report to Government on the

changes required. In the meantime the present system will continue,

subject to the principles and plan of the Constitution, which is the law

fundamental to the later Act, and therefore at once of effect in respect

of its general principles and plan.

According to that plan the entire system of courts and titles that derive

from ancient feudal practice is abolished. A new and simple system comes

into existence, comprising a number of courts, civil or criminal, of

original instance and a Court of Final Appeal. The Court of Final Appeal

is to be known as the Supreme Court, and the chief of the courts of first

instance as the High Court. In these courts all cases are entered, and the

Civil Authority of the Nation is made paramount in all circumstances. "The

jurisdiction of Courts Martial," says Article 69, "shall not be extended

to or exercised over the civil population save in time of war, and for

acts committed in time of war, and in accordance with the regulations to

be preserved by law. Such jurisdiction shall not be exercised in any area

in which the civil courts are open or capable of being held, and no person

shall be removed from one area to another for the purpose of creating such

jurisdiction." Moreover, soldiers themselves are relieved from Courts

Martial, unless they are on active service, except for purely military

offences. For Article 70 reads: "A member of the armed forces of the Irish

Free State not on active service shall not be tried by any Court Martial

for an offence cognisable by the Civil Courts."

It may be asked, however, how safeguards such as these, together with the

qualities of sovereignty declared in the Constitution to be the

Fundamental Rights of the people, shall be protected. For it is a

temptation to all governments to find an easy way out of difficulties by

riding roughshod over rights and safeguards, however earnestly they may be

declared. There is only one answer. In the making of constitutions there

can be only one answer. It is that the Judiciary is the People's

Judiciary, and the third part of the organic whole of Government which the

people create. Article 64, therefore, reads that "the judicial power of

the High Court"--with appeal to the Supreme Court--"shall extend to the

question of the validity of any law having regard to the provisions of the

Constitution." The Judiciary is the interpreter of laws. It is therefore

the interpreter of the Fundamental Law. And it is therefore the

interpreter of the Fundamental Law and the protector of the Fundamental

Law, as against all other laws of the Legislature that may violate it, not

to say arbitrary acts of the Executive that may neglect it.

It must be so. There is no other way to protect the guarantee of

fundamental rights written carefully in a people's constitution. Without

some such provision a Constitution might be written in water, and its

guarantees set aside by any powerful executive, or any executive not

instantly answerable to the people's will. A provision of this kind is,

therefore, a necessary democratic safeguard. It is true that in the United

States the judicial review of the Supreme Court over legislative and

executive acts has led to unfortunate decisions and much acrimonious

discussion. The evils of an institution are always apparent, and no

institution but has its evils. The evils that would have come into

existence had that institution not been there, however, are not apparent.

They are the incalculable part of the bargain; and, being incalculable,

are inevitably neglected in argument. Yet they may prove to be the

overwhelming factor of the argument. So it is in this case. It would be

blindness to neglect it. The mere existence of the Judicial Review in the

United States has unquestionably prevented many an arbitrary act of the

Executive in defiance of the rights ensured by the Constitution; and if

the Supreme Court has, as it undoubtedly has, abused its power of

interpretation, the remedy is, not to sweep away that Judicial Review, and

so to jeopardise the provisions of the Constitution, but to amend the

Constitution in plainer terms, or to amend the Supreme Court. For it is

plain that without Judicial Protection of the Fundamental Law (as the

Judiciary is required to protect, interpret and enforce the ordinary law)

its clearest provisions could be neglected at pleasure.

I may take only one instance. Article 9 of the Constitution protects the

right of free expression of opinion, the right of free assembly, and the

right of forming associations not opposed to public morality. Now it

hardly needs to be said that no Government likes the expression of

opinions hostile to itself. And no Government likes associations formed to

bring its hour to an end. Under the Constitution the minorities of the day

have the honest chance of becoming the majorities of the morrow in a

peaceable manner. But what would be the worth of this honest chance before

a powerful Government unless these protections, these rights of a

sovereign people, were placed in the care of the third institution of the

Constitution, the institution entrusted with the interpretation and

enforcement of laws?

It is true that the Judiciary may abuse its power (since power is nearly

always abused) by interpreting social reform, let us say, to be "opposed

to public morality." But in this connection, it is right to remember,

first, that judgment is not reserved only to one Court, but to two

Courts--to the High Court, with appeal to the Supreme Court. And it is

right to remember, next, that the people have always in their possession

the instruments of the Initiative and the Referendum, by which they may

require either the Fundamental Law or later laws to be amended to meet

their need. There are, therefore, considerable safeguards in the

Constitution against abuse. Yet, even so, because one-fourth of a

fundamental right may be jeopardised by an abuse of the Judicial Power,

that is no reason why four-fourths should be surrendered to the abuse of

the Executive Power.

Therefore the Judiciary is placed in care of the provisions of the

Constitution, not to imperil but to protect them. The rights conferred in

the Constitution are the People's rights. The Constitution is the People's

Constitution. The Judiciary is the People's Judiciary. It is for the

people, by alert and active citizenship, to make them so in every real

sense.

VII.

THE QUESTION OF APPEALS.

In the section dealing with the Judiciary one provision lends itself at

once to criticism. It is hostile, on the face of it, to the entire spirit

of the Constitution. It has everywhere created bitterness and irritation

among the other co-equal members of the Commonwealth of Nations, which

Ireland has now joined. If the purpose of life, therefore, is to learn

from experience as one may reasonably believe, in spite of an apparently

united conviction to the contrary, a new State at the outset of its career

would be well advised not to create trouble for the future, and others

would be well advised to honour that quite reasonable wish. And yet in

this provision there lies hid a principle of very great meaning, if it

could be extracted, separated from its feudal lumber, and wrought upon

creatively.

I refer to the provision at the end of Article 65. The article itself

reads:

"The Supreme Court of the Irish Free State shall, with such

exceptions (not including cases which involve questions as to the

validity of any law) and subject to such regulations as may be

prescribed by law, have appellate jurisdiction from all decisions of

the High Court. The decision of the Supreme Court shall in all cases

be final and conclusive, and shall not be reviewed or capable of

being reviewed by any other Court, Tribunal or Authority whatsoever."

To which, in the present draft, the following apparently contradictory

words are now added:

"Provided that nothing in this Constitution shall impair the right of

any person to petition His Majesty for special leave to appeal from

the Supreme Court to His Majesty in Council or the right of His

Majesty to grant such leave."

According to this article as it now stands the Supreme Court of the Irish

Free State is the highest court of appeal for all citizens of that State;

but if any citizen, or any corporation, desires to affront the sense of

those amongst whom he, or it, lives, he or it may carry a case elsewhere,

outside the country altogether. This is known as the right of appeal to

the Judicial Committee of the Privy Council. The right is rooted in the

principle of Crown prerogative--a prerogative which has been removed in

the highest questions of life and death, but which apparently exists in

smaller matters, although there too it has been described by no less an

authority than Professor Berriedale Keith as "in process of obsolescence,"

so far as the other members of the Commonwealth are concerned.

Apart from the theory of the matter, however (a theory vested in an

outworn feudalism), what is its effect in practice? That practice can be

investigated on its merits, without the least prejudice; and it will be

found that it has not produced justice, and that it has proved fruitful of

increasing irritation and anger.

In the first place, such a right of appeal out of the country defeats the

ends of justice by placing a premium on wealth. It has so proved among the

other members of the Commonwealth. It is obvious that it must be so. For

it requires a large purse to carry a case out of the country, once it has

been well handled in at least two courts at home. Therefore the experience

in Canada, Australia and S. Africa is that only strong corporations take

advantage of such a right of appeal, because only strong corporations

possess the moneys, and only strong corporations can afford to defy local

feeling, since local feeling cannot react easily against anything so

powerful while so intangible as a corporation.

In the second place, it defeats the ends of justice because it is an

appeal to a court where the local circumstances are not familiar, and

where it may even happen (as it will certainly happen in the case of

Ireland) that the very axioms of the law may not be rightly apprehended.

For a central court of appeal of this kind supposes uniform circumstances

and uniform law. Now the circumstances manifestly are not uniform. Yet

neither is the law likely to be uniform. The example of S. Africa may be

taken. In S. Africa the law in force is Roman-Dutch law, not the English

Common Law. It has therefore proved that the Judicial Committee has been

required to handle an instrument with which it is unfamiliar. The same

will apply in Ireland, where it has already proved, notoriously, that the

principles of the law known familiarly as "Brehon law" have worked in

opposition to the black-letter precedents of English law.

In addition to this, however, it is to be remembered that the lawyers

composing the Judicial Committee are obviously unfamiliar with the

principles underlying the structure of our Constitution, since they are

quite unlike the principles with which they themselves have to deal. One

need not argue which are the better. It is enough that they are unlike. A

mechanic cannot be supposed to deliver impartial justice between two

farmers in a matter of farming economy. The famous case of the Loch Neagh

fisheries is enough to prove that only those who are familiar, not only

with Irish circumstances, but with Irish history, can expect to deliver

justice in Irish matters.

Moreover, there is a further consideration, which the plain facts of the

case require should be firmly stated--and which the experience of other

nations of the Commonwealth emphasises. It is that under the chief of the

two heads under which such appeals to the Judicial Committee would fall

the very intention to do impartial and indifferent justice could not

presumed in advance. For all such appeals involve two classes of cases.

The first deals with appeals from interpretation of the ordinary law. The

second deals with appeals from interpretations of the Fundamental Law of

the Constitution. Now appeals from an interpretation of the ordinary law

heard in some country where the principles of that law are unfamiliar

would, as has been indicated, involve injustices enough; but they would

concern only the individual or some corporate enterprise. The injustice

would exist; but it would be limited; and lawyers of another country might

be supposed to wish to search for justice, even if the trading enterprise

had its seat in their own nation and the individual were Irish. But a

Constitution is the very charter of a nation's freedom.

Cases concerning an interpretation of the Constitution are vital to a

whole people, and, as between two nations, vital to international safety

and polity. And such cases could, under the circumstances, only arise

between two nations, Ireland, whose the Constitution is, and England,

whose the Constitution is not, and where parties might arise to power who

would intrigue to impeach that Constitution. Moreover, in England it is

frequently the practice to recruit the higher offices of the Judiciary,

not from men of acknowledged skill in the achievement of equity, but

rather from men who have snatched a casual eminence in the heat of party

strife, men of political passions and political prejudices, who have come

to the front by the very profession of partisanship. It is such men who

will form for the most part the lawyers of the Judicial Committee. Even if

the road to that Committee were of the straightest and purest legal

character, no reasonable person would expect it to deliver impartial

judgment on the Fundamental Law of another nation, especially if an

adjustment of the liberties of two nations were concerned, one of those

nations being, more than conceivably, their own. But since the road is,

admittedly, neither of the straightest nor of the purest, the expectation

of impartial and indifferent justice would be a fool's dream. And where a

Court exists from which a people presumes injustice in advance, the wells

of security and good order are at once poisoned.

Yet, even supposing that these questions of justice are neglected, how is

the system likely to work? How has it, in fact, worked elsewhere? Assume

that a case has been decided in a certain way by the Supreme Court in

Ireland. It is carried to the Judicial Committee, which decides in favour

of the opposite party. How is such a decision of the Judicial Committee to

be put into effect? Such cases have occurred in Australia; and the

Australian High Court has refused to recognise the decisions of the

Judicial Committee, or to give them effect. Special legislation therefore

at once became necessary; but the obvious fact which emerged was that the

Judicial Committee had no machinery to put decisions into effect which

were contrary to local feeling. Of the last of these cases the Australian

Premier said at the "'Imperial Conference,' 1917," that the "decision was

one which must have caused great embarrassment and confusion if it were

not for the fortunate fact that the reasons for the Judicial Committee's

decision are stated in such a way that no Court and no Council in

Australia has yet been able to find out what they were."

It is little wonder that Mr. Hughes in the same speech should have said

that "Australia's experience of the Privy Council in constitutional cases

has been, to say the least of it, unfortunate." He also read an extract

from a resolution of the Final Court of Appeal of New Zealand, which

declared of the Judicial Committee that "by its imputations in the present

case, by the ignorance it has shown in this and in other cases of our

history, of our legislation, and of our practice, and by its long delayed

judgments, it has displayed every characteristic of an alien tribunal."

The spokesmen for the other States present were equally emphatic. "I

think," said Sir Robert Borden for Canada, "we have had just about enough

Appeal Courts, and I think the tendency in our country will be to

restrict appeals to the Privy Council rather than to increase them."

"There is," said Mr. Rowell for the same State, "a growing opinion that

our own Courts should be the final authority." "You know what our opinion

is in S. Africa," said Mr. Burton. "In our Constitution we have abolished

the right of appeal to the Privy Council as a right. There is no such

right with us at all, but the Constitution merely says that any right

residing in the King in Council to grant special leave to appeal shall not

be interfered with."

These utterances, and the entire course of history on this matter, reveal

an irritation which has grown with experience. The mechanism is merely a

mechanism, and it has not worked well. It has injured harmony, and it

manifestly has not brought justice. Even assuming that the Irish courts

should agree that the decision in any individual case appealed from should

stand, it could equally well argue that that decision could not be held to

govern other cases; and the effect of such a decision would be to make the

appeal nugatory in law.

Besides all of which, the right to allow such appeals to the Judicial

Committee is based, ultimately, on the acknowledgment of the supremacy of

British legislation; and the plain intention of our Constitution is that

this supremacy is not acknowledged, each party to the Treaty being a

co-equal member of a larger Community. Not only, therefore, are the

practical reasons against such a right of appeal, but there is no

substance in the Constitution to make such a right allowable.

There is, indeed, nothing that can be said in favour of such a provision,

from the point of view either of justice, of law, of equity or of harmony.

If it be destined to remain, it is to be hoped that it will remain a dead

letter. Otherwise it will lead to boundless friction and ill-will,

internal and external.

Yet there is an excellent principle embedded in this provision. It is very

deeply, and perhaps almost inextricably, embedded; but it is there. For

if a number of nations are to join together as co-equal members of a

Community, plainly there should be some common Court to which all can

appeal with equal confidence. Ireland and England, for instance, have made

a Treaty. Either side may violate that Treaty. Who is to judge between

them? Is the appeal to be to the arbitrament of strength? If so, what of

the co-equality of the Community? It becomes an idle phrase, however

separate one may claim to be from the other.

The case may be carried even further. A case exists for such a Court, not

only in respect of their interdependent relations, but not less in respect

of their internal relations. It may even happen that the citizen of a

State, or a combination of citizens, may have a plain case to be carried

to such a Court as against their State, if a Court of sufficient

impartiality could be established. States are not always immaculate of

justice, particularly to minorities.

Can such a Court be found? I believe it can. An exposition of the present

draft of our Constitution is not the place to give the details of such an

alternative. It is sufficient to say that there is such an alternative,

for which provision could therefore be made in substitution of the present

provision, against which the requirements of justice and the entire

experience of the Commonwealth rises in evidence.

VIII.

FUNCTIONAL COUNCILS.

It is the duty of a Constitution, not merely to provide for the present,

but to leave itself lissom and flexible for the development of the future.

If those developments can in any way be foreseen, it is its duty further,

to indicate them by allowing specifically for them, without of necessity

pledging the future to them. How far these indications may profitably be

carried is a question not so easy to answer. Times differ. Constitutions

made at a time of fixed social and political ideas, are necessarily fixed

in their provisions. Constitutions made at a time, such as the present,

when social and political ideas are rapidly shifting and changing must

needs indicate the likelihood of change in certain directions; and make

allowance for such changes. It is therefore striking to notice that in

nearly every Constitution made during and since the Great War such

indications are scattered freely. And from that fact alone the historian

of the future could tell with assurance that these were years of rapidly

changing conceptions.

We in Ireland cannot but have a share in these changes. Fortunately for

us, heirs of an ancient tradition, in looking forward we look backward,

and in looking backward we look forward. We may, and often do, use phrases

identical with those used by other nations; but in many cases it will be

found by the thoughtful student that what to them is often social theory,

to us is a slumbering historic memory. Very frequently this will be found

to be the case.

An indication of this kind, that looks both forward and backward, is to be

found in Article 44 of our Constitution. This article has aroused

considerable interest. It reads:--

"The Oireachtas may provide for the establishment of Functional or

Vocational Councils representing branches of the social and economic

life of the Nation. A law establishing any such Council shall

determine its powers, rights and duties, and its relation to the

government of the Irish Free State."

As a matter of curious interest it happens that the German Constitution

contains an article very similar to this; but the conception had been in

development in Ireland for some years. It had, indeed (as I endeavoured to

shew in a little book on _The Gaelic State_, published in 1917), been a

slumbering memory of the Irish Nation during the centuries when the

characteristic political conceptions of the people were frustrate and

idle, as they may now be put into practical development. It had been

worked out in practical detail for one of our largest and most important

industries in the Report on Sea Fisheries of the _Commission of Inquiry_,

published in 1921. And it had actually, though imperfectly, been in

operation for another great industry since 1896 in the Council of

Agriculture.

What, then, are these Functional (or Vocational or Occupational) Councils

for which provision is made, and on what political or social conception do

they rest? One need not travel outside the present draft Constitution to

discover the need for them. For in this Constitution, as in most

constitutions, the people are, outside this one Article, considered in

only two of the three relations that go to make up their lives, and which

therefore constitute the complete life of the Nation. All the persons of

the State are considered either as individuals or as citizens. But these

two descriptions do not exhaust their lives. In addition to being

individuals and citizens they are also workers in some craft, industry,

trade or profession. Indeed, it is seldom they have time to be

individuals, and it is seldom they are reminded that they are citizens.

For good or for ill, these are only occasional parts of their lives. But

they are never permitted to forget the parts they are required to play in

the social and economic life of the Nation.

The Constitution establishes their rights as individuals putting these

rights beyond the reach of interference either of those who make or those

who execute the law. It also establishes their rights as citizens,

certifies the manner of their action as citizens, and derives all

authority in the State from those rights and actions. But these are only

the lesser, however supremely important, parts of our lives. The greater

part of our days is, for each of us, packed with the thoughts are cares of

our functional lives. We are more frequently, in the intake and output of

our lives, blacksmiths or architects, or whatever else, than we are

individuals or citizens. Have we not rights and duties there too, both for

ourselves and to the Nation; and should not the Constitution make

provision for this, the larger part of our lives, as well as for the

lesser parts? Can provision be said to have been completely made either

for our own lives or for the interplay that constitutes the life of the

Nation if this aspect be neglected?

We are faced at once with a difficulty. Seeing that we have the experience

of it, it is easy to perceive how we can be represented in the State as

citizens. How can we be represented in the State in respect of our

functions? To answer this question one may turn to an instance that lives

before us, an example from elder days when such an order of society was

familiar. For in old Ireland (as in other nations) guilds were a

recognised form of the industrial life of the nation. They were also,

though not known by that name, a recognised form of the professional life

of the Nation. And as a relic of those times we have to-day what is in

effect a guild of Lawyers. The lawyers of Ireland, for example, are

organised as a whole, with a Council representative of the profession as a

whole. That Council, representative of all who practice as lawyers, is a

responsible body, not only to the lawyers who are represented in it, but

to and in the State on behalf of the legal profession. It is responsible

for the honour and good conduct of lawyers. It is responsible for the

economic maintenance of its constituents. No lawyer is allowed to practice

except by consent of the Legal Council--that is to say, except by the

consent of all other lawyers. The legal profession as a whole--in the

legal sense, as a Person--protects its own honour, protects the individual

lawyer, protects the public interest (in theory, at least), and requires a

guarantee of efficiency and rectitude from every lawyer before he is

allowed to practice his profession.

So it was in ancient Ireland. At that time, when the Assembly of the

Nation met, the lawyers, or 'brehons,' met in a Council of their own. The

administrative heads of each unit of local government met in a Council of

their own. The Recorders, or _Seanchaidhe_, of the local petty states, met

in a Council of their own. And each Council was responsible for the

administration of its own concerns. Each Council drew up its own

regulations, for the conduct of it own duties in the State, and for the

protection of its own 'functional' rights. Each Council, in the modern

legal phrase, was a responsible 'Person,' and was by the State, as it

existed at that time, entrusted with the conduct and administration of its

own affairs, subject to the general execution of the public interest.

It lay with the Assembly of the Nation to co-ordinate the whole in the

public interest. Whether this was or was not done effectively in olden

times is indifferent to the present problem of Functional Councils in the

modern State, with its better organisation and more perfect national

sense. The problem of organisation is very real, but it does not affect

the necessity of functional representation and functional responsibility

in the State. It is, for example, absurd that persons unfamiliar with

architectural problems, however highly placed in the nation they may be,

should be entrusted with architectural decisions that require special

training and knowledge. It is equally absurd that a person unfamiliar with

the needs of the Fishing Industry should, because for political reasons he

should happen to be chosen as Minister of Fisheries, make proposals and be

responsible for decisions that affect the present livelihood of fishermen

and the successful future of the Fishing Industry. These matters must be

reposed in the care of representative Functional (Occupational or

Vocational) Councils, that should be required to render account, on the

one hand, to the Function which they represent, and, on the other hand, to

the State on behalf of that Function.

When such an organisation of the social and economic life of the Nation

has been achieved, then, and only then, will it be possible to say that

all parts of the life of the Nation have been brought within the reach and

authority of the Constitution. It may be objected that these matters lie

in the future. That is true. The Constitution allows for them, and by

allowing for them indicates that they should be, and probably will be, the

natural development of the future of the Irish Nation.

Draft Constitution of the Irish Free State

PRELIMINARY.

These presents shall be construed with reference to the Articles of

Agreement for a Treaty between Great Britain and Ireland set forth in the

Schedule hereto annexed (hereinafter referred to as "the Scheduled

Treaty") which are hereby given the force of law, and if any provision of

this Constitution or of any amendment thereof or of any law made

thereunder is in any respect repugnant to any of the provisions of the

Scheduled Treaty, it shall, to the extent only of such repugnancy be

absolutely void and inoperative and the Parliament and the Executive

Council of the Irish Free State shall respectively pass such further

legislation and do all such other things as may be necessary to implement

the Scheduled Treaty.

SECTION I.--FUNDAMENTAL RIGHTS.

ARTICLE 1.

The Irish Free State/Saorstat Eireann is a co-equal member of the

Community of Nations forming the British Commonwealth of Nations.

ARTICLE 2.

All powers of government and all authority legislative, executive, and

judicial, are derived from the people and the same shall be exercised in

the Irish Free State/Saorstat Eireann through the organisations

established by or under, and in accord with, this Constitution.

ARTICLE 3.

Every person domiciled in the Irish Free State/Saorstat Eireann at the

time of the coming into operation of this Constitution who was born in

Ireland or either of whose parents was born in Ireland or who has been so

domiciled in the area of the jurisdiction of the Irish Free State/Saorstat

Eireann for not less than seven years is a citizen of the Irish Free

State/Saorstat Eireann and shall within the limits of the Irish Free

State/Saorstat Eireann enjoy the privileges and be subject to the

obligations of such citizenship, provided that any such person being a

citizen of another State may elect not to accept the citizenship hereby

conferred; and the conditions governing the future acquisition and

termination of citizenship in the Irish Free State/Saorstat Eireann shall

be determined by law. Men and women have equal rights as citizens.

ARTICLE 4.

The National language of the Irish Free State/Saorstat Eireann is the

Irish language, but the English language shall be equally recognised as an

official language. Nothing in this Article shall prevent special

provisions being made by the Parliament/Oireachtas for districts or areas

in which only one language is in use.

ARTICLE 5.

No title of honour in respect of any services rendered in or in relation

to the Irish Free State/Saorstat Eireann may be conferred on any citizen

of the Irish Free State/Saorstat Eireann except with the approval or upon

the advice of the Executive Council of the State.

ARTICLE 6.

The liberty of the person is inviolable, and no person shall be deprived

of his liberty except in accordance with law. Upon complaint made by or on

behalf of any person that he is being unlawfully detained, the High

Court/Ard Chuirt and any and every judge thereof shall forthwith enquire

into the same and may make an order requiring the person in whose custody

such person shall be detained to produce the body of the person so

detained before such Court or Judge without delay and to certify in

writing as to the cause of the detention and such Court or Judge shall

thereupon order the release of such person unless satisfied that he is

being detained in accordance with the law.

ARTICLE 7.

The dwelling of each citizen is inviolable and shall not be forcibly

entered except in accordance with law.

ARTICLE 8.

Freedom of conscience and the free profession and practice of religion are

inviolable rights of every citizen, and no law may be made either directly

or indirectly to endow any religion, or prohibit or restrict the free

exercise thereof or give any preference, or impose any disability on

account of religious belief or religious status, or affect prejudicially

the right of any child to attend a school receiving public money without

attending the religious instruction at the school, or make any

discrimination as respects State aid between schools under the management

of different religious denominations, or divert from any religious

denomination or any educational institution any of its property except for

the purpose of roads, railways, lighting, water or drainage works or other

works of public utility, and on payment of compensation.

ARTICLE 9.

The right of free expression of opinion as well as the right to assemble

peaceably and without arms, and to form associations or unions is

guaranteed for purposes not opposed to public morality. Laws regulating

the manner in which the right of forming associations and the right of

free assembly may be exercised shall contain no political, religious or

class distinction.

ARTICLE 10.

All citizens of the Irish Free State/Saorstat Eireann have the right to

free elementary education.

ARTICLE 11.

The rights of the State in and to natural resources, the use of which is

of national importance, shall not be alienated. Their exploitation by

private individuals or associations shall be permitted only under State

supervision and in accordance with conditions and regulations approved by

legislation.

SECTION II.--LEGISLATIVE PROVISIONS.

A.--THE LEGISLATURE.

ARTICLE 12.

A Legislature is hereby created to be known as Parliament/Oireachtas of

the Irish Free State/Saorstat Eireann. It shall consist of the King and

two Houses: the Chamber of Deputies/Dail Eireann and the Senate/Seanad

Eireann. The power of making laws for the peace, order and good government

of the Irish Free State/Saorstat Eireann is vested in the

Parliament/Oireachtas.

ARTICLE 13.

The Parliament/Oireachtas shall sit in or near the city of Dublin or in

such other place as from time to time it may determine.

ARTICLE 14.

All citizens of the Irish Free State/Saorstat Eireann without distinction

of sex who have reached the age of twenty-one years and who comply with

the provisions of the prevailing electoral laws, shall have the right to

vote for members of the Chamber of Deputies/Dail Eireann, and to take part

in the Referendum or Initiative. All citizens of the Irish Free

State/Saorstat Eireann without distinction of sex who have reached the age

of thirty years and who comply with the provisions of the prevailing

electoral laws, shall have the right to vote for members of the

Senate/Seanad Eireann. No voter may exercise more than one vote and the

voting shall be by secret ballot. The mode and place of exercising this

right shall be determined by law.

ARTICLE 15.

Every citizen who has reached the age of twenty-one years and who is not

placed under disability or incapacity by the Constitution or by law shall

be eligible to become a member of the Chamber of Deputies/Dail Eireann.

ARTICLE 16.

No person may be at the same time a member both of the Chamber/Dail

Eireann and of the Senate/Seanad Eireann.

ARTICLE 17.

The oath to be taken by Members of Parliament/Oireachtas shall be in the

following form:--

I ........................ do solemnly swear true faith and

allegiance to the Constitution of the Irish Free State as by law

established, and that I will be faithful to H.M. King George V., his

heirs and successors by law in virtue of the common citizenship of

Ireland with Great Britain and her adherence to and membership of the

group of nations forming the British Commonwealth of Nations.

Such oath shall be taken and subscribed by every member of the

Parliament/Oireachtas before taking his seat therein before the

Representative of the Crown or some person authorised by him.

ARTICLE 18.

Every member of the Parliament/Oireachtas shall, except in case of

treason, felony, or breach of the peace, be privileged from arrest in

going to and returning from, and while within the precincts of either

House, and shall not be amenable to any action or proceeding at law in

respect of any utterance in either House.

ARTICLE 19.

All reports and publications of the Parliament/Oireachtas or of either

House thereof shall be privileged and utterances made in either House

wherever published shall be privileged.

ARTICLE 20.

Each House shall make its own rules and Standing Orders, with power to

attach penalties for their infringement and shall have power to ensure

freedom of debate, to protect its official documents and the private

papers of its members, and to protect itself and its members against any

person or persons interfering with, molesting or attempting to corrupt its

members in the exercise of their duties.

ARTICLE 21.

Each House shall elect its own Chairman and Deputy Chairman and shall

prescribe their powers, duties, and terms of office.

ARTICLE 22.

All matters in each House shall, save as otherwise provided by this

Constitution, be determined by a majority of the votes of the members

present other than the Chairman or presiding member, who shall have and

exercise a casting vote in the case of an equality of votes. The number of

members necessary to constitute a meeting of either House for the exercise

of its powers shall be determined by its Standing Orders.

ARTICLE 23.

The Parliament/Oireachtas shall make provision for the payment of its

members and may in addition provide them with free travelling facilities

in any part of Ireland.

ARTICLE 24.

The Parliament/Oireachtas shall hold at least one session each year. The

Parliament/Oireachtas shall be summoned and dissolved by the

Representative of the Crown in the name of the King and subject as

aforesaid the Chamber/Dail Eireann shall fix the date of re-assembly of

the Parliament/Oireachtas and the date of the conclusion of the session of

each House provided that the sessions of the Senate/Seanad Eireann shall

not be concluded without its own consent.

ARTICLE 25.

Sittings of each House of the Parliament/Oireachtas shall be public. In

cases of special emergency either House may hold a private sitting with

the assent of two-thirds of the members present.

SECTION II.--LEGISLATIVE PROVISIONS.

B.--THE CHAMBER OF DEPUTIES/DAIL EIREANN.

ARTICLE 26.

The Chamber/Dail Eireann shall be composed of members who represent

constituencies determined by law. The number of members shall be fixed

from time to time by the Parliament/Oireachtas, but the total number of

members of the Chamber/Dail Eireann shall not be fixed at less than one

member for each thirty thousand of the population, or at more than one

member for each twenty thousand of the population: Provided that the

proportion between the number of members to be elected at any time for

each constituency and the population of each constituency, as ascertained

at the last preceding census, shall, so far as possible, be identical

throughout the country. The members shall be elected upon principles of

Proportional Representation. The Parliament/Oireachtas shall revise the

constituencies at least once in every ten years, with due regard to

changes in distribution of the population, but any alterations in the

constituencies shall not take effect during the life of the Chamber/Dail

Eireann sitting when such revision is made.

ARTICLE 27.

At a General Election for the Chamber/Dail Eireann the polls shall be held

on the same day throughout the country, and that day shall be a day not

later than thirty days after the date of the dissolution and shall be

proclaimed a public holiday. The Chamber/Dail Eireann shall meet within

one month of such day, and shall unless earlier dissolved continue for

four years from the date of its first meeting, and not longer. The

Chamber/Dail Eireann may not at any time be dissolved except on the advice

of the Executive Council.

ARTICLE 28.

In case of death, resignation or disqualification of a member of the

Chamber/Dail Eireann, the vacancy shall be filled by election in manner to

be determined by law.

SECTION II.--LEGISLATIVE PROVISIONS.

C.--THE SENATE/SEANAD EIREANN.

ARTICLE 29.

The Senate/Seanad Eireann shall be composed of citizens who have done

honour to the Nation by reason of useful public service or who, because of

special qualifications or attainments, represent important aspects of the

Nation's life.

ARTICLE 30.

Every University in the Irish Free State/Saorstat Eireann shall be

entitled to elect two representatives to the Senate/Seanad Eireann. The

number of Senators, exclusive of the University members, shall be

fifty-six. A citizen to be eligible for membership of the Senate/Seanad

must be a person eligible to become a member of the Chamber/Dail Eireann,

and must have reached the age of thirty-five years. Subject to any

provision for the constitution of the first Senate/Seanad the term of

office of a member of the Senate/Seanad shall be twelve years.

ARTICLE 31.

One-fourth of the members of the Senate/Seanad Eireann exclusive of the

University members shall be elected every three years from a panel

constituted as hereinafter mentioned at an election at which the Irish

Free State/Saorstat Eireann shall form one electoral area and the

elections shall be held on principles of Proportional Representation. One

member shall be elected by each University entitled to representation in

the Senate/Seanad every six years.

ARTICLE 32.

Before each election of members of the Senate/Seanad Eireann (other than

University members) a panel shall be formed consisting of:--

(a) Three times as many qualified persons as there are members to be

elected of whom two-thirds shall be nominated by the Chamber/Dail

Eireann voting according to principles of Proportional Representation

and one-third shall be nominated by the Senate/Seanad Eireann voting

according to principles of Proportional Representation; and

(b) Such persons who have at any time been members of the

Senate/Seanad (including members about to retire) as signify by

notice in writing addressed to the President of the Executive Council

their desire to be included in the panel.

The method of proposal and selection for nomination shall be decided by

the Chamber/Dail and Senate/Seanad respectively, with special reference to

the necessity for arranging for the representation of important interests

and institutions in the country; Provided that each proposal shall be in

writing and shall state the qualifications of the person proposed. As soon

as the panel has been formed a list of the names of the members of the

panel arranged in alphabetical order with their qualifications shall be

published.

ARTICLE 33.

In the case of the death, resignation or disqualification of a member of

the Senate/Seanad Eireann (other than a University member) his place shall

be filled by a vote of the Senate/Seanad. Any Senator so chosen shall

retire from office at the conclusion of the three years period then

running and the vacancy or vacancies thus created shall be additional to

the places to be filled under Article 31. The term of office of the

members chosen at the election after the first fourteen elected shall

conclude at the end of the period or periods at which the Senator or

Senators by whose death or withdrawal the vacancy or vacancies was or were

originally created would be due to retire; Provided that the fifteenth

member shall be deemed to have filled the vacancy first created in order

of time and so on.

In case of the death, resignation or disqualification of a University

member of the Senate/Seanad, the University by which he was elected shall

elect a person to fill his place, and the member so elected shall hold

office so long as the member in whose place he was elected would have held

office.

SECTION II.--LEGISLATIVE PROVISIONS.

D.--LEGISLATION.

ARTICLE 34.

The Chamber/Dail Eireann shall in relation to the subject matter of money

bills as hereinafter defined have legislative authority exclusive of the

Senate/Seanad Eireann.

A money Bill means a Bill which contains only provisions dealing with all

or any of the following subjects, namely, the imposition, repeal,

remission, alteration or regulation of taxation; the imposition for the

payment of debt or other financial purposes of charges on public moneys or

the variation or repeal of any such charges; supply; the appropriation,

receipt, custody, issue or audit of accounts of public money; the raising

or guarantee of any loan or the repayment thereof; subordinate matters

incidental to those subjects or any of them. In this definition the

expressions "taxation," "public money" and "loan" respectively do not

include any taxation, money or loan raised by local authorities or bodies

for local purposes.

The Chairman of the Chamber/Dail shall certify any bill which in his

opinion is a money bill to be a money bill, but, if within three days

after a Bill has been passed by the Chamber/Dail, two-fifths of the

members of either House by notice in writing addressed to the Chairman of

the House of which they are members so require, the question whether the

Bill is or is not a money bill shall be referred to a Committee of

Privileges consisting of three members elected by each House with a

Chairman who shall be the senior judge of the Supreme Court able and

willing to act and who, in the case of an equality of votes, but not

otherwise, shall be entitled to vote. The decision of the Committee on the

question shall be final and conclusive.

ARTICLE 35.

The Chamber/Dail Eireann shall as soon as possible after the commencement

of each financial year consider the Budget of receipts and expenditure of

the Irish Free State/Saorstat Eireann for that year, and, save in so far

as may be provided by specific enactment in each case, the legislation

required to give effect to the Budget of each year shall be enacted within

that year.

ARTICLE 36.

Money shall not be appropriated by vote, resolution or law, unless the

purpose of the appropriation has in the same session been recommended by a

message from the Representative of the Crown acting on the advice of the

Executive Council.

ARTICLE 37.

Every Bill initiated in and passed by the Chamber/Dail Eireann shall be

sent to the Senate/Seanad Eireann and may, unless it be a Money Bill, be

amended in the Senate/Seanad Eireann and the Chamber/Dail Eireann shall

consider any such amendment; but a Bill passed by the Chamber/Dail Eireann

and considered by the Senate/Seanad Eireann shall, not later than two

hundred and seventy days after it shall have been first sent to the

Senate/Seanad, or such longer period as may be agreed upon by the two

Houses, be deemed to be passed by both Houses in its form as last passed

by the Chamber/Dail; Provided that any Money Bill shall be sent to the

Senate/Seanad for its recommendations and at a period not longer than

fourteen days after it shall have been sent to the Senate/Seanad, it shall

be returned to the Chamber/Dail which may pass it, accepting or rejecting

all or any of the recommendations of the Senate/Seanad, and as so passed

shall be deemed to have been passed by both Houses. When a Bill other than

a Money Bill has been sent to the Senate/Seanad a Joint Sitting of the

Members of both Houses may on a resolution passed by the Senate/Seanad be

convened for the purpose of debating, but not of voting upon, the

proposals of the Bill or any amendment of the same.

ARTICLE 38.

A Bill may be initiated in the Senate/Seanad Eireann and if passed by the

Senate/Seanad shall be introduced into the Chamber/Dail Eireann. If

amended by the Chamber/Dail the Bill shall be considered as a Bill

initiated in the Chamber/Dail. If rejected by the Chamber/Dail it shall

not be introduced again in the same session, but the Chamber/Dail may

reconsider it on its own motion.

ARTICLE 39.

A Bill passed by either House and accepted by the other House shall be

deemed to be passed by both Houses.

ARTICLE 40.

So soon as any Bill shall have been passed or deemed to have been passed

by both Houses, the Executive Council shall present the same to the

Representative of the Crown for the signification by him, in the King's

name, of the King's assent, and such representative may withhold the

King's assent or reserve the Bill for the signification of the King's

pleasure; Provided that the Representative of the Crown shall in the

withholding of such assent to or reservation of any Bill, act in

accordance with the law, practice, and constitutional usage governing the

like withholding of assent or reservation in the Dominion of Canada.

A Bill reserved for the signification of the King's Pleasure shall not

have any force unless and until within one year from the day on which it

was presented to the Representative of the Crown for the King's Assent,

the Representative of the Crown signifies by speech or message to each of

the Houses of the Parliament/Oireachtas, or by proclamation, that it has

received the Assent of the King in Council.

An entry of every such speech, message or proclamation shall be made in

the Journal of each House and a duplicate thereof duly attested shall be

delivered to the proper officer to be kept among the Records of the Irish

Free State/Saorstat Eireann.

ARTICLE 41.

As soon as may be after any law has received the King's assent, the clerk,

or such officer as the Chamber may appoint for the purpose, shall cause

two fair copies of such law to be made, one being in the Irish language

and the other in the English language (one of which copies shall be signed

by the Representative of the Crown to be enrolled for record in the office

of such officer of the Supreme Court as the Chamber/Dail Eireann may

determine) and such copies shall be conclusive evidence as to the

provisions of every such law, and in case of conflict between the two

copies so deposited, that signed by the Representative of the Crown shall

prevail.

ARTICLE 42.

The Parliament/Oireachtas shall have no power to declare acts to be

infringements of the law which were not so at the date of their

commission.

ARTICLE 43.

The Parliament/Oireachtas may create subordinate legislatures, but it

shall not confer thereon any powers in respect of the Navy, Army or Air

Force, alienage or naturalisation, coinage, legal tender, trade marks,

designs, merchandise marks, copyright, patent rights, weights and

measures, submarine cables, wireless telegraphy, post office, railways,

aerial navigation, customs and excise.

ARTICLE 44.

The Parliament/Oireachtas may provide for the establishment of Functional

or Vocational Councils representing branches of the social and economic

life of the Nation. A law establishing any such Council shall determine

its powers, rights and duties, and its relation to the government of the

Irish Free State/Saorstat Eireann.

ARTICLE 45.

The Parliament/Oireachtas has the exclusive right to regulate the raising

and maintaining of such armed forces as are mentioned in the Scheduled

Treaty in the territory of the Irish Free State/Saorstat and every such

force shall be subject to the control of the Parliament/Oireachtas.

SECTION II.--LEGISLATIVE PROVISIONS.

E.--REFERENDUM AND INITIATIVE.

ARTICLE 46.

Any Bill passed or deemed to have been passed by both Houses may be

suspended for a period of ninety days on the written demand of two-fifths

of the members of the Chamber/Dail Eireann or of a majority of the

members of the Senate/Seanad Eireann presented to the President of the

Executive Council not later than seven days from the day on which such

Bill shall have been so passed or deemed to have been so passed. Such a

Bill shall be submitted by Referendum to the decision of the people if

demanded before the expiration of the ninety days either by a resolution

of the Senate/Seanad Eireann assented to by three-fifths of the members of

the Senate/Seanad Eireann, or by a petition signed by not less than

one-twentieth of the voters then on the register of voters, and the

decision of the people on such referendum shall be conclusive. These

provisions shall not apply to Money Bills or to such Bills as shall be

declared by both Houses to be necessary for the immediate preservation of

the public peace, health or safety.

ARTICLE 47.

The Parliament/Oireachtas may provide for the initiation by the people of

proposals for laws or constitutional amendments. Should the

Parliament/Oireachtas fail to make such provision within two years, it

shall on the petition of not less than one hundred thousand voters on the

register, of whom not more than twenty thousand shall be voters in any one

constituency, either make such provisions or submit the question to the

people for decision in accordance with the ordinary regulations governing

the Referendum. Any legislation passed by the Parliament/Oireachtas

providing for such initiation by the people shall provide (1) that such

proposals may be initiated on a petition of fifty thousand voters on the

register, (2) that if the Parliament/Oireachtas rejects a proposal so

initiated it shall be submitted to the people for decision in accordance

with the ordinary regulations governing the Referendum; and (3) that if

the Parliament/Oireachtas enacts a proposal so initiated, such enactment

shall be subject to the provisions respecting ordinary legislation or

amendments of the Constitution as the case may be.

ARTICLE 48.

Save in the case of actual invasion, the Irish Free State/Saorstat Eireann

shall not be committed to active participation in any war without the

assent of the Parliament/Oireachtas.

ARTICLE 49.

Amendments of this Constitution within the terms of the Scheduled Treaty

may be made by the Parliament/Oireachtas but every such amendment must be

submitted to a Referendum of the people and shall not be passed unless a

majority of the voters on the register record their votes and either a

majority of the voters on the register or two-thirds of the votes recorded

are in favour of the amendment.

SECTION III.--THE EXECUTIVE.

A.--EXECUTIVE COUNCIL/AIREACHT.

ARTICLE 50.

The Executive Authority of the Irish Free State/Saorstat Eireann is

hereby declared to be vested in the King, and shall be exercisable, in

accordance with the law, practice and constitutional usage governing the

exercise of the executive authority in the case of the Dominion of Canada,

by the Representative of the Crown. There shall be a Council to aid and

advise in the government of the Irish Free State/Saorstat Eireann to be

styled the Executive Council/Aireacht. The Executive Council shall be

responsible to the Chamber/Dail Eireann, and shall consist of not more

than twelve Ministers/Airi appointed by the Representative of the Crown,

of whom four Ministers shall be Members of the Chamber/Dail Eireann and a

number not exceeding eight, chosen from all citizens eligible for election

to the Chamber/Dail Eireann, who shall not be members of

Parliament/Oireachtas during their term of Office, and who, if at the time

of their appointment they are members of Parliament/Oireachtas, shall by

virtue of such appointment vacate their seats; Provided that the

Chamber/Dail Eireann may from time to time on the motion of the President

of the Executive Council determine that a particular Minister or Ministers

not exceeding three, may be members of Parliament/Oireachtas in addition

to the four members of the Chamber/Dail Eireann above mentioned.

ARTICLE 51.

The Ministers who are required to be members of the Chamber/Dail Eireann

shall include the President of the Executive Council/Uachtaran and the

Vice-President of the Executive Council/Tanaist.

The President of the Executive Council shall be the chief of the Executive

Council and shall be appointed on the nomination of the Chamber/Dail, and

the Vice-President of the Executive Council and the other Ministers who

are members of Parliament/Oireachtas shall be appointed on the nomination

of the President of the Executive Council; and he and the Ministers

nominated by him shall retire from office should he fail to be supported

by a majority in the Chamber/Dail, but the President of the Executive

Council and such Ministers shall continue to carry on their duties until

their successors are appointed.

ARTICLE 52.

Ministers who are not members of the Parliament/Oireachtas shall be

nominated by a Committee of members of the Chamber/Dail Eireann chosen by

a method to be determined by the Chamber/Dail so as to be impartially

representative of the Chamber/Dail. Such Ministers shall be chosen with

due regard to their suitability for office and should as far as possible

be generally representative of the Irish Free State/Saorstat Eireann as a

whole rather than of groups or of parties. Should a nomination not be

acceptable to the Chamber/Dail, the Committee shall continue to propose

names until one is found acceptable.

ARTICLE 53.

Each Minister not a member of the Parliament/Oireachtas shall be the

responsible head of the Executive Department or Departments as head of

which he has been appointed as aforesaid; Provided that should

arrangements for Functional or Vocational Councils be made by the

Parliament/Oireachtas these Ministers or any of them may, should the

Parliament/Oireachtas so decide, be members of and be nominated on the

advice of such Councils. The term of office of any such Minister shall be

the term of the Chamber/Dail Eireann existing at the time of his

appointment or such other period as may be fixed by law, but he shall

continue in office until his successor shall have been appointed: and no

such Minister shall be removed from Office during his term unless the

proposal to remove him has been previously submitted to a Committee chosen

by a method to be determined by the Chamber/Dail so as to be impartially

representative of the Chamber/Dail and then only if the Committee shall

have reported that such Minister has been guilty of malfeasance in office

or has not been performing his duties in a competent and satisfactory

manner, or has failed to carry out the lawfully-expressed will of

Parliament/Oireachtas.

ARTICLE 54.

The Ministers who are members of the Parliament/Oireachtas shall alone be

responsible for all matters relating to external affairs whether policy,

negotiations, or executive acts. Subject to the foregoing provisions, the

Executive Council shall meet and act as a collective authority: Provided,

however, that each Minister shall be individually responsible to the

Chamber/Dail Eireann for the administration of the Department or

Departments of which he is head.

ARTICLE 55.

Ministers who are not members of the Chamber/Dail Eireann shall by virtue

of their office possess all the rights and privileges of a member of the

Chamber/Dail except the right to vote, and shall, if not members of the

Parliament/Oireachtas, comply with the provisions of Article 17 as if they

were members of the Chamber/Dail, and may be required by the Chamber/Dail

to attend and answer questions.

ARTICLE 56.

Should the President of the Executive Council die, resign or be

permanently incapacitated, the Vice-President of the Executive Council

shall act in his place until a President of the Executive Council shall be

elected. The Vice-President of the Executive Council shall also act in the

place of the President of the Executive Council during his temporary

absence.

ARTICLE 57.

The members of the Executive Council shall receive such remuneration as

may from time to time be prescribed by law, but the remuneration of any

Minister shall not be diminished during his term of office.

ARTICLE 58.

The Representative of the Crown, who shall be styled the Governor-General

of the Irish Free State, shall be appointed in like manner as the

Governor-General of Canada and in accordance with the practice observed in

the making of such appointments. The salary of the Governor-General of the

Irish Free State shall be of the like amount as that now payable to the

Governor-General of the Commonwealth of Australia and shall be charged on

the public funds of the Irish Free State/Saorstat Eireann and suitable

provision shall be made out of those funds for the maintenance of his

official residence and establishment.

ARTICLE 59.

The Executive Council shall prepare the Budget of receipts and expenditure

of the Irish Free State/Saorstat Eireann for each financial year and shall

present it to the Chamber/Dail Eireann before the close of the previous

financial year.

SECTION III.--THE EXECUTIVE.

B.--FINANCIAL CONTROL.

ARTICLE 60.

All revenues of the Irish Free State/Saorstat Eireann from whatever source

arising, shall, subject to such exception as may be provided by law, form

one fund, and shall be appropriated for the purposes of the Irish Free

State/Saorstat Eireann in the manner and subject to the charges and

liabilities imposed by law.

ARTICLE 61.

The Chamber/Dail Eireann shall appoint a Comptroller and Auditor-General

to act on behalf of the Irish Free State/Saorstat Eireann. He shall

control all disbursements and shall audit all accounts of moneys

administered by or under the authority of the Parliament/Oireachtas and

shall report to the Chamber/Dail at stated periods to be determined by

law.

ARTICLE 62.

The Comptroller and Auditor-General shall not be removed except for stated

misbehaviour or incapacity on resolutions passed by the Chamber/Dail

Eireann and the Senate/Seanad Eireann. Subject to this provision the terms

and conditions of his tenure of office shall be fixed by law. He shall not

be a member of the Parliament/Oireachtas nor shall he hold any other

office or position of emolument.