Board and the power which it at present exercises of purchasing land under
the Land Purchase Acts. It is imperatively necessary, if this Board is to
be retained in its existing or in any modified shape, that its work of
relieving congestion and improving the condition of the peasantry of the
West should be brought under the supervision and control of the Irish
Legislature. But if the land purchase operations of the Land Commission
are to be excluded or reserved from control by the Irish Legislature, it
is very difficult to defend the subjection to such control of the land
purchase functions of the Congested Districts Board. How can the British
Treasury be reasonably asked to become responsible for prices fixed by an
Irish body over which it will have no control whatever? Such a situation
would be utterly anomalous.
The anomaly can be avoided (as suggested in my Minute appended to the
Report of the Royal Commission on Congestion, 1908) by relieving the
Congested Districts Board of its functions as a purchasing authority and
having purchases of land made for it, on its requisition, by the Land
Commission.
Having thus indicated my opinion as to the departments or sections of
departments to be temporarily reserved from the control of the Irish
Parliament, I come to the question of how that control should be exercised
over the departments remaining on the list. In this connexion I invite
reference to Clauses 20-22 of the Irish Council Bill. That Bill (Clause
19) contemplated the appointment of committees of council, with paid
chairmen, to administer the departments into which public business was to
be distributed under the Bill. It was my own expectation, had the Council
Bill become law, that the chairmen of these Committees of Council would in
course of time have become ministers for the departments concerned; but,
in the beginning and until experience had been gained, it seemed desirable
to give the embryonic ministers the help, and to impose on them the
restraint, of colleagues. Whether the future Irish Legislature will see
prudence or wisdom in this course, one can only conjecture; but one may
trust that it may. In the following observations, however, and without
meaning to imply any preference for “Ministers” over “Chairmen of
Committees,” I shall employ the word “Minister.”(73)
The first Department on my list is the Treasury. Here the new Irish
Administration must break entirely fresh ground and build from the
foundation. An Irish Exchequer must be created, a system of Treasury
Regulations and accounts must be evolved; an Irish Consolidated Fund must
be established; and a Bank must be selected with which the Irish
Government will bank. (Much pressure will, I anticipate, be brought to
bear on the Irish Ministry to distribute its favours in this connexion;
but, it would, I submit, be highly inconvenient to keep accounts with
separate banks). At present the Chief Secretary’s office in Dublin Castle
has a financial section, but the new Government will derive no inspiration
from its procedure. It will be better to look for precedents in Whitehall.
They will show a Treasury Board composed of members of the Government but
with the responsibility resting on one called the Chancellor of the
Exchequer who is answerable to Parliament for the country’s finances and,
subject to the decision of the Cabinet, possesses complete control over
them (excepting the Army and Navy Estimates). It will, I suggest, be wise
for the Irish Legislature to follow this precedent, and place the Irish
Treasury in charge of a Body of Commissioners (being Members of the
Parliament) with a Treasurer or Chancellor of the Exchequer, specially
responsible to it.
The governing principle, from the parliamentary point of view, of our
financial system, is that no expenditure can be proposed to Parliament
except by a Minister of the Crown.(74) I trust that the principle will be
reproduced in the Irish Parliament, and rigidly enforced. In no other way
can an adequate safeguard be provided against irresponsible and hasty
proposals for spending public money.
The Imperial Treasury at present, exercises financial control over every
department and branch of the public service (over the Army and Navy
estimates I believe the control is less effective than in other
directions). This is a wholesome practice, and it should be copied by the
Irish Legislature with one qualification. At present, the financial
control of the Treasury is occasionally accompanied by a degree of
administrative interference which I venture to think is sometimes
injurious to the public interests. The Treasury is deficient in
administrative knowledge; and for this reason its interference has not
infrequently led to inefficiency. Some administrative restraint is, of
course, inseparable from financial control; but when money is sanctioned
for a particular purpose, the administrative officers on the spot can
regulate detailed expenditure better than gentlemen at a distance.
The new Parliament should certainly provide a Public Accounts’ Committee;
and a Comptroller and Auditor-General, as under the Exchequer and Audit
Act of 1866; and I suggest for consideration, that the Departments should
be competent to challenge, before the Public Accounts’ Committee, any
over-interference on the part of the Treasury in administrative details.
While I should be glad to see in Ireland the most effective check upon
wasteful expenditure, I deprecate the exercise of a meticulous
interference in administrative details.
The secretariat arrangements to be made in connection with the Department
of Law and Justice, will depend on the extent of “temporary reservation”
to be effected. If there is to be the larger reservation, during the
transition period which I have suggested above, nothing need now be done.
Matters will continue, during that period, on their present footing. If
there is to be only partial reservation, the portion of the existing
office staff in Dublin Castle which deals with the unreserved sections can
be detached for employment under the Minister, who in this case would
doubtless also hold another portfolio. When the Department is brought
fully under Irish control, there will be found in Dublin Castle gentlemen
specially competent to give effect to the policy of the Legislature in
this Department of Irish Government.
But, whether the Judicial Department is brought sooner or later under
Irish control, an early opportunity should be taken of reviewing the
entire judicial organization with the view of pruning away redundancies
and placing it on a more economical basis. Few will be found to deny that
the existing staff of County Court Judges and legal officials of various
grades is excessive; and no one, with knowledge, will maintain that a
Supreme Court of 14 Judges, costing with their subordinate officers
£181,209 a year, is not too costly for a country with a population of 4-¼
millions. In the House of Commons Return (Cd. 210 of July, 1911), the
number of civil servants of all grades in the Supreme and Appellate Courts
of England (with their 39 judges) is shown as 461, while in the Supreme
and Appellate Courts of Ireland (with their 14 judges) it is shown as 257!
The administration of Education is at present distributed between three
Boards and the Irish Government and the circumstances call for drastic
reorganization. The Boards of National and Intermediate Education should
be abolished, and a Department of Education created under the control of a
Minister responsible to the Irish Legislature. Such a Minister would find
ready to his hand an official staff (working under the direction of a very
competent “Commissioner of Education”) which will not at the outset
require any large increase.
In the Irish Council Bill a Committee of Council for Education was
proposed, which provided for the admission of gentlemen not being members
of the Irish Council; the object being to conciliate public feeling which
is notoriously sensitive upon this matter, and to secure special
opportunities for representatives of the various religious creeds of
making their views felt. I believe that the liberality of that provision
was very inadequately understood in 1907; but in the altered conditions of
the present time, I do not repeat the proposal. The Irish Parliament,
under the coming Bill, will be a stronger representation of the popular
will than the Irish Council would have been, at all events, at the outset.
This change of administrative control, direction, and responsibility in
respect of Education will, I trust, have a powerful effect in improving
secular instruction, which is at present notoriously inefficient; but it
need not (apart from any declaration of policy by the Irish Legislature),
involve any change in the religious aspect of the teaching. Teaching in
Irish primary schools of all creeds is in practice denominational (though
not so in theory). My hope is that it will remain so. What the change will
involve is the control of the Department over the appointment, the
promotion, the removal, the qualifications, and the conditions of service
of every person employed in Irish schools. That is as it should be.
The “Endowed Schools” are conducted under schemes which have, I believe,
been settled by the Judicial Tribunals, and I do not suggest any
interference with such schemes, but the efficiency of the secular teaching
in those schools should be subject to the supervision of the Department of
Education.
I come next to the Local Government Board, which consists at present of an
_ex-officio_ President (the Chief Secretary) and three members, one of the
three being Vice-President and the real head of the Board. The appointment
of a Minister, being a member of the Irish Legislature, in place of the
_ex-officio_ President who never sits on the Board, will convert this
Board into a Department with a responsible Minister in charge. One member
of the Board (not the medical member) may be dispensed with, and the
Executive Establishment calls for revision. This Board comes into contact
with the people in many intimate relations of their lives and on its
successful administration will largely depend the popularity of the new
Administration.
The next Department is the Board of Public Works and Buildings, which at
present is a Treasury Department independent of Irish control. For the
“Chairman” should be substituted a Minister responsible to the Legislative
Assembly. At present there are three members, but one of these may, I
think, be dispensed with at once. I look to this Department to confer
benefits, long delayed, on the country; I would, especially, instance,
drainage. Ireland stands in need of nothing more than a system of arterial
drainage carried out on a large scale.
At present the Commissioners of Public Works in Ireland make recoverable
loans on behalf of the Treasury for land improvement and such like
purposes. In the scheme indicated above, the making of these loans would
come within the functions of the Finance Department. But the Department of
Works would naturally be the Treasury’s Agents advising on the necessity
for such loans and supervising the expenditure of them, when borrowed for
large betterment undertakings.
The next Department is the Department of Agriculture and Technical
Instruction. In the scheme outlined above Technical Instruction has been
brought under the Education Department, while the Congested Districts
Board has been brought under the supervision of the Department of
Agriculture. The Act under which the Department of Agriculture at present
works provides for two Bodies, to assist and advise the Vice-President,
(who, as in the case of the Local Government Board, is the working head of
the department)—a Board having a veto on expenditure, and a Council which
gives general advice on policy. Both the Board and the Council were
devised to supply that popular element in which the system of Irish
Government is at present lacking. Under the new dispensation this popular
element will be amply supplied. Both Bodies will therefore be unnecessary;
their continuance would conduce to embarrassment and friction with the
all-controlling Legislature. Both the Council and the Board should be
abolished. The President and Vice-President should also disappear, and in
their place should emerge a responsible Minister in charge of the
Department. This Department seems to be, after the Judicial Department,
the most expensively organised in Ireland. It is true that it comprises
some branches which have elsewhere an independent _status_: but
notwithstanding this, I am convinced that a revision of its numerous and
costly establishments is needed in the interests of economy and
efficiency.
I have already suggested that the Congested Districts Board should be
relieved of the duty of purchasing land, the Land Commission being
required to make these purchases on requisition from the Congested
Districts Board. I would add (in accordance with the principle suggested
by paragraph 100 of the Report of the Royal Commission on Congestion in
Ireland, (1908)) that the creation of an Irish Legislature destroys the
justification for this Board. The work can be better done by an Executive
Agency working under the control of a Committee of Parliament. But if a
Board is retained it should not be the large Board we have now. A small
Board of five will be more conducive to efficiency and far more amenable
to the control of the Legislature. That control I venture to add will be
most beneficially exercised in bringing about the abandonment of the
Congested District Board’s present policy of spoon-feeding the congested
villages of the West; and of dealing with them not, to any extent, on
eleemosynary principles, but exclusively on those of self-help. The
Board’s methods of relieving congestion should be assimilated to the
practice of the Land Commission on dealing with congested areas, if men
now living are to see the end of the Board’s activities.
In connexion with Registration, I think it is desirable to bring all kinds
of registration under the control of one Minister, but the work is mostly
of a routine character and a single Minister will doubtless find himself
able to direct this and also the last Department remaining on my list.
This Department—for General Purposes—brings together the remaining Boards
and Offices dealing with official work in Ireland; and under it may in
future be brought any official business of a temporary character, not of
sufficient importance to be dealt with by a separate Office, but yet of
such importance that a vote is taken for it in Committee of Supply.
I have placed “Fisheries” in this Department because that important
industry requires more attention than it has hitherto received, or than it
can receive from the Department of Agriculture. It will also be observed
that I have placed in this Department the subject of Thrift and Credit
Societies and Co-operative Banks: thus dissociating them from the
Department of Agriculture, which deals with them at present but with which
they have no necessary connexion. They have been made far too much the
battle-ground of contending parties. Some supervision by the Government
over these co-operative agencies may perhaps be necessary, but they will
flourish most when interference by the Government is least felt.
It remains to refer to the position and functions of the Lord-Lieutenant
under the new dispensation (it is, of course, to be presumed that no
religious disqualification will any longer attach to the office). On the
assumption that the Executive power will continue vested in the King, all
executive acts of the Irish Government must issue by authority of the
Lord-Lieutenant through whom will also be communicated the assent to, or
the withholding of assent from, Acts of the Irish Legislature. The Bill of
1893 (Clause 5 (2)) provided for:
“An Executive Committee of the Privy Council in Ireland to aid and
advise in the government of Ireland being of such members and
comprising persons holding such offices under the Crown as His
Majesty, or if so authorised, the Lord-Lieutenant, may think fit,
save as may be otherwise directed by Irish Act.”(75)
It will be desirable that such a Committee of the Irish Privy Council
should be created to assist the Lord-Lieutenant. But while the majority of
the Committee should always be composed of Ministers, it would, I think,
conciliate the minority, and otherwise make for efficiency, if some
members on the Privy Council Committee, were taken from outside the
Government. If the Committee were composed of ten members, seven might be
Ministers, and three members might be taken from outside the Government:
the decision of the Council would be that of the majority.
Of course, I am conscious of the fact, that this arrangement may be
objected to on the ground that it would expose the plans of the
Government, in particular cases, to gentlemen who might not be of the
Party in Office. But Privy Councillors are bound by oath to secrecy; and I
think the danger of a dishonourable betrayal of trust is incommensurate
with the advantages which this representation of outside feeling on the
Committee, would bring. Moreover, the Lord-Lieutenant would be free not to
summon any particular Privy Councillor to a session of the Committee, if
the Prime Minister objected to his presence. The proceedings of the Privy
Council would be secret, and no Minutes of dissent would be recorded.
I take it that under the coming Bill, the Lord-Lieutenant will have no
power to initiate action otherwise than by suggestion to the Ministers
concerned, who, may, or may not, act on the suggestion. Ordinarily, the
Lord-Lieutenant in Council will accept the Minister’s advice: but when he
differs, and persists in differing, he would be bound in the last resort
to refer the matter to the British Cabinet. _Ex-concessis_, all
proceedings of the Irish Legislature or Government will be subject to the
ultimate control of the Imperial Parliament.
It will be necessary to provide for the representation of the Irish
Government in the Imperial Parliament (a different thing from the
representation of Ireland, which, if the solidarity of the United Kingdom
is to be preserved, must be maintained, though, as I have already said, in
a proportion “which should be sensibly less than the proportion existing
between British Members and their electorates”). Some Member of the
Imperial Parliament must answer for that Government; and the question
arises whether the Member should be an Irish Member, designated by the
Irish Government, as its representative, or a British Minister. In view of
the fact that the Acts of the Irish Government will be subject to the
control of the Imperial Parliament, and must, therefore, come regularly
under the cognizance of the British Ministry, I suggest that the duty
should be discharged by the British Home Secretary, pending the time when
the establishment of the Federal System (Home Rule all round) will call
for a more far-reaching Parliamentary adjustment.
If the Land Commission (Group VII.) be excluded from Irish control, the
number of Ministers in charge of departments would be seven, reducible to
six by giving the portfolios of Groups VIII. and IX. to the same Minister,
and to five if a separate Minister for Law and Justice be not at once
appointed. With the Prime Minister, who might have charge of a department,
or, as in Canada, might be President of the Privy Council, a Cabinet of
seven or six as a minimum number would be composed; and this would seem to
be an adequate number, at all events to begin with.
The general result of the preceding suggestions should be that
responsibility for every agency engaged in the administration of public
business in Ireland will attach to a particular Minister, responsible to
the Irish Parliament; that interest in Irish public business will be
enormously stimulated in Ireland, and that a salutary public control will
be effectively exercised. In particular, it may be expected that public
money will be husbanded, and when expended, will be spent to the best
advantage.
It is not possible within the limits of a paper like this, to enumerate
the provisions of law, peculiar to Ireland which the organic changes
indicated in the preceding paragraphs may necessitate. An enquiry into
that matter (as into the redundancy of Judicial, Executive and Secretariat
establishments) will no doubt be undertaken by the Irish Government on a
suitable opportunity. But it is probably correct to say that changes of
substantive law will not be so much required as changes of practice,
whereby the administration of the law may be brought more into harmony,
than it is at present, with popular sentiment.
It is always to be remembered that the scheme of Home Rule or Devolution
which is advocated in this paper, does not contemplate the creation of a
body of law for Ireland, different from that prevailing in Great Britain.
In all matters of _status_, property and personal rights, the laws of the
two countries will, I presume, remain identical; and no legislation of a
restrictive, sectional, or sectarian character will be permissible in the
one country, which is not permitted in the other. It is also to be
presumed that the decrees of English Courts will be as enforceable by
Irish Courts and Authorities as they are now, and _vice versa_; and that,
in fact, the Judicial and Executive Organisations will be as available,
under the new order of things, for carrying on His Majesty’s Government in
both countries, as they are now.
If this be understood, most of the doubts and fears, and forebodings of
evil to come from this extension of Irish Local Government, will, I
predict, be soon dissipated.
III.—The Judicial Committee And The Interpretation Of The New
Constitution. BY SIR FREDERICK POLLOCK
“In this [the United States] and all other countries where there is a
written constitution designating the powers and duties of the legislative,
as well as of the other departments of the government, an act of the
legislature may be void as being against the constitution.” So James Kent
wrote in his Commentaries when the foundation of American independence was
still within living memory, and an observer in search of constitutional
autonomy under the British flag beyond the British Islands would have been
driven to find his best example in Barbados. Kent continues: “The judicial
department is the proper power in the government to determine whether a
statute be or be not constitutional”; for the interpretation of the
constitution which is the supreme law of the land is as much a judicial
act as the interpretation of an ordinary written law. This is the view
most natural to minds trained in English legal and political tradition. It
was established in the United States by a decision of the Supreme Court at
Washington early in the nineteenth century, and, though not previously
free from controversy, has been received ever since; and it has been
accepted by British publicists and lawyers as applicable to the decision
of causes involving constitutional questions throughout the British
Empire. As Chief Justice Marshall said:
“If two laws conflict with each other, the courts must decide on
the operation of each. If the courts are to regard the
constitution, and the constitution is superior to any ordinary act
of the Legislature, the constitution, and not such ordinary act,
must govern the case to which they both apply.”(76)
The principle, so far as I know, has never been disputed by any English
authority, but occasions for its application did not often arise before
our own time. In strictness of law the King in Parliament has supreme
legislative power, as with or without Parliament he has supreme executive
power, in every part of his dominions. But in fact very large powers of
government have been granted in various ways and at various times, and in
the cases which now concern us are coupled with an effectual
understanding, though of a political rather than legal nature, that they
shall not be recalled. It may be observed that a grant of this kind is
quite possible without representative institutions. Extensive powers of
government and jurisdiction, including the highest “regalities” which
could be granted to a subject, were conferred on individuals by several of
the early colonial charters. William Penn’s charter is perhaps the best
known of these, and is a striking example. This, however, is remote from
the present purpose, as is the still wider subject of the political and
semi-political authorities granted by charter to the East India Company
and other trading companies. We have now to attend only to the creation of
autonomous powers by statutes of the Imperial Parliament.
The accustomed form in such creations is to confer in express words power
to make laws for the peace, order (sometimes “welfare”), and good
government of the territory in question. Within the limits prescribed in
its constitution, legislative power so created is full and perfect. The
Judicial Committee of the Privy Council has repeatedly laid down—not for
one Dominion only, but alike for British India, Ontario and New South
Wales—that it must not be likened to the merely vicarious authority of a
delegate or agent, and is not to be restrained by the rules applicable to
agency. So far as it extends, it is a plenary power analogous to that of
the Imperial Parliament itself and not to a ministerial authority which
cannot be delegated; and this applies to the federated units in a federal
system no less than to central or unitary legislature.(77) It is,
therefore, not quite accurate, though useful in the first introduction of
novices to the subject, to liken the enactments of any such local
legislature to the by-laws made under statutory authority by a railway
company or a town council. Such bodies can make the regulations they are
empowered to make, but cannot delegate the framing of any regulation, or
the decision of questions arising under it, to the traffic manager or the
town clerk. But a local legislature, within the limits of subject-matter
originally fixed, can do all that its creator the Parliament of the United
Kingdom could have done. The working safeguard against legislation which,
by improvidence or oversight, would conflict with Imperial requirements,
is the refusal of royal assent by the local Governor on the advice of his
Ministers, or, in the last resort, by the Home Government. Some of the
earlier Acts establishing self-government, following the common form of
the old colonial charter, provided that local legislation should not be
repugnant to the laws of England. This might have been held to forbid such
revolutionary changes as abolishing the publicity of Courts of Justice or
depriving prisoners of the right to trial by jury. In our own time the
question has been raised whether the sacred number of twelve jurymen could
be reduced by Order in Council in a criminal court established under the
Foreign Jurisdiction Acts in an Asiatic country.(78) But in 1865 it was
expressly declared by the Colonial Laws Validity Act that the enactments
of colonial legislatures should not be called in question for repugnancy
to the law of England in any other sense than repugnancy to some Act of
the Imperial Parliament or an order made under its authority.
These matters are only preliminary to the questions that arise under
federal constitutions, but they are necessary to be understood if we are
to avoid confusion. In the case of a federated Dominion within the British
Empire the federal constitution is itself an Act of the Imperial
Parliament, and therefore all exercise of legislative power in the
Dominion, whether by the central legislature or by that of any constituent
State or Province, must be consistent with its provisions, or otherwise it
will clearly be invalid to the extent of the repugnancy or excess. Every
such constitution has to assign the bounds of central and local
legislation; in the case of Canada, for example, the field of action open
to the Dominion Parliament at Ottawa and the legislatures of the several
Provinces. In strict legal theory the Confederation Act of Canada or the
Commonwealth Act of Australia can be amended at Westminster like any other
Act of Parliament; but, as in fact these constituent Acts were framed by
Canadian and Australian statesmen, so it is well understood that the Home
Parliament will not touch them except at the request of Canada or
Australia. With such request, there have been amendments and legislative
interpretations of the Canadian Constitution. If any Act of Parliament
might be called unconstitutional, uninvited intermeddling with the
constitution of a self-governing colony would be so. We may pause here to
draw one immediate consequence. Whenever Home Rule is enacted and
established for Ireland, Parliament must harden its heart against all
endeavours, from whatever quarter they may proceed, to obtain any
alteration in the scheme save as it may be required by the regularly
expressed will of Ireland as a whole. This should be an understanding
outside and above all party divisions, British or Irish; and it is equally
necessary whether or not a certain number of Irish members continue to sit
at Westminster.
We now turn to the possible conflicts of legislation under a federal
constitution. It will be convenient to use the more expressive and
generally understood word “State” for the autonomous components of the
federation. The Canadian term “Province” is prior in time within the
Empire; but it might be misleading to readers unacquainted with Canadian
affairs, as tending to suggest merely administrative functions like those
of a County Council: a body which has many important duties and some
delegated legislative authority, but cannot reasonably be called
autonomous. A federal constitution must assign some legislative powers
exclusively to the federal legislature, and it may reserve or assign
others exclusively to the State legislatures. It may also leave a region
in which the States have power to legislate, but subject to a concurrent
and superior power in the federal authority. This is actually the case in
Canada. Hence questions may arise of a more complicated kind than those
which are open under unitary Home Rule; they may nevertheless be
instructive in simpler cases. The Judicial Committee has deliberately
abstained from laying down any general system of interpretation or any
presumption in favour of extending or limiting the powers of either
Federal or State legislation. It is prepared to take some pains to
reconcile apparently conflicting enactments, but beyond that no precise
method can be formulated. The Court must deal with the problem of each
case on its own merits. “The true nature and character of the legislation
in the particular instance under discussion must always be determined in
order to ascertain the class of subject to which it really belongs.”(79)
Again: “In performing this difficult duty, it will be a wise course for
those on whom it is thrown to decide each case which arises as best they
can, without entering more largely upon an interpretation of the statute
than is necessary for the decision of the particular question in
hand.”(80) It would seem obvious without argument that the courts of
Canada, Australia, or in the future, Ireland, cannot be bound in any case
to give effect to two conflicting enactments of the local and the central
legislative bodies at once, notwithstanding that some of the language used
by the Judicial Committee a few years ago, on an appeal from the Supreme
Court of Victoria, suggests that there is no authority anywhere, short of
an Act of the Imperial Parliament, capable of resolving such a
contradiction.(81)
The question remains what should be the ultimate court of appeal for
questions of this kind arising under an Irish Home Rule Act. According to
our general forensic habit and tradition, it would be the court to which
appeals are taken in the ordinary course from the Court of Appeal in
Ireland, namely the House of Lords. It appears however to have been
decided that this duty will be more appropriate to the Judicial Committee
of the Privy Council. Now it is high time, for quite independent reasons,
that these two courts of last resort, which are composed in practice of
the same, or very nearly the same members, should be merged in a single
tribunal of final appeal for the whole of the British Empire. In the
meanwhile the only material difference is that when noble and learned
persons are sitting as the House of Lords they can and do express their
individual opinions in the form of speeches addressed to the House itself,
and when they sit as “their Lordships” of the Privy Council, or “this
Board,” only one opinion is given as the Judicial Committee’s advice to
His Majesty. For my part I rather think that the suppression of dissenting
opinions does not work well in cases of constitutional interpretation.
Some decisions of the Judicial Committee within pretty recent memory have
been hardly intelligible; one is tempted to conjecture that not all of the
reasons for them commanded unanimous assent, and the reasons to which the
whole or the greater part of their Lordships could agree were not the best
that any of them could have given. Separate and dissenting opinions are
freely given in the Supreme Court of the United States, which has dealt
with the most delicate constitutional questions ever since its work began.
If I were an Irishman I think I should prefer the House of Lords to the
Judicial Committee. But, as above said, it is hoped that before very long
they will cease to be distinct tribunals. Moreover there is a practical
reason, which shall now be mentioned, for making the Judicial Committee
the final Court of Appeal in this behalf.
It appears from the published text of the Bill [cl. 29, sub.-cl. 1] that
the Lord-Lieutenant or a Secretary of State—in ordinary political language
either the Irish Government or the Home Government—may refer a question
whether any provision of an Irish Act or Bill is constitutional to be
heard and determined by the Judicial Committee of the Privy Council. That
Committee is to decide who are the proper parties to argue the case. There
does not seem to be any reason to apprehend that the parties interested
would make difficulties on the score of expense; they would be either
public authorities or representative associations. This provision is
really not a novelty but a special declaration, and perhaps an
enlargement, of the very wide power given by the Act which established the
Judicial Committee in 1833,(82) and empowered the King “to refer to the
said Judicial Committee for hearing or consideration any such other
matters whatsoever as His Majesty shall think fit”: a power more than once
exercised in our own time.(83) It is quite easy, however, for even learned
persons who are not familiar with the practice of the Privy Council to
overlook the existence of this enactment, and therefore the insertion of
an express clause in the Home Rule Bill is judicious. Probably no one will
seriously propose to deprive the Crown, as regards Ireland, of a power
which it already has throughout the British Empire. But it is a matter
from which party politics ought to be rigorously excluded. It should be
understood that the power will not be exercised without a considered
opinion of the law officers, in Ireland or here, that there is a
substantial and arguable question.
IV.—Constitutional Limitations Upon The Powers Of The Irish Legislation.
BY SIR JOHN MACDONELL, C.B., LL.D.
Securities For Religious Freedom
It may be of interest before dealing with the safeguards for religious
liberty in Ireland to describe those adopted in other countries. This
survey, made in no controversial spirit, may help to give a proper sense
of perspective and proportion. A brief comparative study of the legal
safeguards for religious liberty may not perhaps help much to inspire the
spirit of charity and toleration, which are its best supports. But we know
our own position better when we know that of others. It is some gain also
to find that others have had the same problems as ours, and have solved
them with more or less success. Certain fears are much abated when it is
recognised that it is proposed to make in Ireland an experiment of a kind
which has been satisfactorily carried out elsewhere. Political justice has
been found, in the countries to which I refer, compatible with religious
freedom. Why not in Ireland?
Constitutional Limitations
I. PROGRESS OF RELIGIOUS LIBERTY
In most States to-day religious liberty exists with some qualifications—it
is one of the most characteristic features of modern legislation. All
religious denominations are tolerated; some may be favoured; all are free
so long as they do not come into conflict with generally accepted
principles of morality. In most States there is a further advance; we find
a tendency, more and more accentuated, towards religious equality; more
and more is it the policy of States to place all religious denominations
upon the same footing. This principle is not carried out completely in all
or indeed in most States. Certain churches are in a special sense State
Churches. In some countries, the churches of large parts of the population
are treated as “recognised churches,” to their advantage and to the
exclusion, it may be, of others. In Austria, for example, there are six
recognised churches and religious societies; and a similar system exists
in Hungary.
I do not attempt to analyse the many causes of these movements. The fact
at all events is that, whether as the result of the attrition, everywhere
going on, of dogmatic creeds, or of the growth of the spirit of tolerance,
or of indifference, or the rediscovery of charity as a fundamental
principle of Christianity, or because toleration is the line of least
resistance, or because it best accords with democracy, almost everywhere
in modern times in Europe and America religious equality seems to be the
condition towards which States are moving. It is worthy of notice that
complete freedom is demanded by many sincere adherents of churches who are
impatient of State control, and who believe that spiritual life thrives
best in an atmosphere of freedom. It is the creed, I am inclined to think,
of an ever increasing number that the existence of a free Church in a free
State is to the welfare of both.
Even where the principle is questioned, practice tends to conform thereto.
Reluctantly and grudgingly conceded as a favour, religious toleration
becomes part of the habitual attitude of mind at first of the more
enlightened and then of ordinary men. The principle of religious liberty
or equality is still disputed by the Church of Rome.(84) The doctrines of
Gregory VII. and Innocent III. are still asserted as of old. The syllabus
of Pius IX. condemns the principle of equality as enshrining an error not
less pernicious because common; it is the vain attempt to equalise creeds
incomparable with each other and radically different; such liberty is no
better than liberty to err. That is the position taken up in the Papal
Syllabus. But in modern times all churches, the Roman Catholic not
excepted, have yielded, often insensibly and reluctantly, to the pressure
of facts. The ideal condition may be domination of the church; the
practical problem in adverse circumstances is how to make the best
compromise. Vatican decrees notwithstanding, the powers which issue them
cannot, and do not, press their claims as they once did. Immutable in
doctrine, they are found to be adaptive in practice. Churches which
retract nothing alter their practice; they do not escape the influence of
the age and the country, Ireland not excepted, in which they work.
Everywhere the tendency is towards religious equality; I find abundant
evidence of it even in the policy of the Church of Rome. Many books have
been written describing the recent increase of the pretensions of Papal
absolutism. There exists, so far as I am aware, no complete history of the
policy pursued by the Church of Rome in countries in which it cannot give
full effect to its doctrines respecting the true connection between Church
and State. Such a history would reveal the existence and exercise of a
singularly adaptive power; the growth of a policy suitable for and
acceptable in non-Catholic countries and under democratic rule. In the
wonderfully rich system of the Canon law are devices suitable for all
circumstances. The Church may promulgate a decree in one country and not
in another; the Tridentine decrees at the close of some four centuries are
not yet made universally obligatory. It may for centuries leave it
uncertain whether a bull specially assertive of the power of the Church,
is in force in a particular country. The doctrine of the Canon law as to
the efficacy of customs, and particularly local customs, permits of
variations in accordance with the necessities of time and place. _Semper
eadem_, but elastic and always opportunist—such is the character of the
actual policy of the Church;(85) and there is no reason to think that it
will be otherwise in Ireland under popular government.
The Roman Catholic Church has lately shown itself accommodating in Germany
in regard to the marriage law. When Dr. Hogan of Maynooth College writes
of “the peaceful character and disposition of the church and her
reluctance to cause any disturbance of the social affairs of States or
communities, even where the vast majority of the people are hostile to her
religious claims”; when he adds “if it can be shown that a new law (the
_Ne temere_ decree) inflicts any serious grievance on Protestants in this
country, we are satisfied that due consideration will be given to any
representations which may be made in this matter,” he is borne out by the
recent policy of his Church, even if one cannot admit the accuracy of his
further statement: “Such has always been the policy and practice of the
Church in this matter.”—(_See_ _Irish Ecclesiastical Record_, February,
1911). The system never breaks, but it bends—bends to the exigencies of
new situations, and particularly of democratic institutions, such as will
exist in Ireland under Home Rule.
II. SECURITIES FOR RELIGIOUS LIBERTY
How to obtain and still more how to secure such liberty or equality is a
problem in every modern State. The actual solutions, though many, fall
into a few groups(86); I enumerate the chief. There are countries with
State Churches in which have gradually been made concessions to other
denominations. England is the typical example. Religious equality (so far
as it exists) is the result of a long series of measures; the successive
removal of disabilities of Dissenters and Roman Catholics; of measures
relating to the tenure of public offices, and as to marriage, or oaths. No
one Act states any governing principle. After the fashion of English
legislation there has been movement from point to point, though, on the
whole, always, or with few relapses, in modern times, in one direction.
The securities for equality are found in a long series of individual
statutes. Such, also, may be said to have been the history of religious
equality in Hungary; as in so many countries there has been a gradual
abandonment of the old maxim _cujus regio, ejus religio_.
I am concerned with the safeguards for equality within a State, and so I
need say little or nothing of the Gallican system, which was intended to
secure liberty against foreign intrusion. It was the liberty claimed by a
church, which refused toleration to other denominations; the protests of a
national Church part of Catholicism against the intrusion of the Papacy;
it was the assertion of claims, which, to quote Saint Simon, “_blessent
douloureusement la Cour de Rome_”; assertions of the doctrine that the
French kings were in secular matters independent of the Pope, and that the
Pope’s spiritual authority was limited by the laws of the church. In some
countries, churches have secured a large measure of religious liberty or
autonomy by means of Concordats with the civil Power. The typical case is
that of the Catholic Church in France, where such a system may be said to
have existed from the Concordat of Bologna, concluded between Francis I.
and Leo X. in 1516, until recent times, with the exception of a short
break at the Revolution; they may be said to have established an offensive
and defensive alliance between Church and State.
I come to systems and devices chiefly used in modern times to secure
religious liberty or equality. They are to be found in particular in
countries possessing written constitutions. Either they lay down with more
or less clearness principles of religious equality, or, dealing
specifically with some pressing danger or difficulty, they provide a
safeguard as to it. The first striking example of this kind of restriction
is to be found in America. Dread of the existence of an established Church
and of its ultimate effects upon republican institutions was shared by the
framers of the United States Constitution and most of the framers of the
States Constitutions. The provision which Jefferson caused to be inserted
in the Virginia Bill of Rights and the article in the Massachusetts
Declaration of Rights have been copied with variations by the States.
Speaking generally, they provide for equality of treatment of religious
denominations (Stimson, “Federal and State Constitutions,” p. 137). In the
Constitution of the United States there is only one Article on the subject
(Amendment, Article 1). “Congress shall make no law respecting the
establishment(87) of religion or prohibiting the free exercise thereof.”
In the United States true equality exists; all denominations are treated
alike; the modern tendency towards equality has triumphed as the result
partly of national habits and partly of constitutional restrictions.
I may here cite one or two examples of modern Constitutions which have
laid down principles designed to secure religious equality.(88) Naturally
Switzerland, with its population nearly equally divided into Catholics and
Protestants, has been obliged to deal with this question, and so far as I
am aware, it has done so with success. The principles of religious
equality are embodied in the amended Constitution of 1874. I quote the
chief provisions, because they are on the whole the most complete set of
existing safeguards which I have found.
“_Article_ 49.—La liberté de conscience et de croyance est
inviolable. Nul ne peut être constraint de faire partie d’une
association religieuse, de suivre un enseignement religieux,
d’accomplir un acte religieux, ni encourir des peines, de quelque
nature quelles soient, pour cause d’opinion religieuse.
“L’exercice des droits civils ou politiques ne peut être restreint
par des prescriptions ou des conditions de nature ecclésiastique
ou religieuse, quelles qu’elles soient.
“Nul ne peut, pour cause d’opinion religieuse, s’affranchir de
l’accomplissement d’un devoir civique.
“Nul n’est tenu de payer des impôts dont le produit est
spécialement affecté aux frais proprement dits du culte d’un
communauté religieuse à laquelle il n’appartient pas. L’exécution
ultérieure de ce principe reste réservée à la legislation
fédérale.
“_Article_ 50.—Le libre exercice des cultes est garanti dans les
limites compatibles avec l’ordre public et les bonnes mœurs.
“_Article_ 54.—Le droit de mariage est placé sous la protection de
la conféderation.
“Aucun empêchement au mariage ne peut être fondé sur des motifs
confessionels.”
While declaring the principle of liberty of conscience, the Swiss Federal
Constitution permits the cantons to give a privileged position to certain
religious denominations; they may give them subsidies; they may invest
them with certain prerogatives denied to other bodies less favoured. For
example, in Fribourg, the Catholic and the Protestants are put on a
footing of equality. Owing to the powers possessed by the separate cantons
religious equality is not so complete as at first sight might seem. No
serious difficulty appears to have been experienced in giving effect to
the above provisions(89) which are not so complete as those found in the
Home Rule Bill.
III. SAFEGUARDS IN COLONIES
I come to legislation which may seem of a kind more helpful and
instructive than that of Continental countries. In the British Colonies
there is no connection between the State and Church. The sole important
exception is in Canada, where “the church can compel by law the payment of
dues by Roman Catholics, and thus obtains great privilege from, while
independent of, the State.”(90)
In framing the Constitution for the Canadian Dominions the religious
question chiefly considered related to education; it was deemed necessary
to guard against legislation which might impair existing rights. It was
with an eye to the possibility of injustice being done to the
denominational schools that special provisions were inserted in the North
American Act accordingly (30 & 31 Vic., c. 3, 1867, Section 93):
“In and for each province the Legislative may exclusively make
laws in relation to education, subject and according to the
following provisions:
“(1) Nothing in any such Act shall prejudicially affect any right
or privilege with respect to denominational schools which any
class of persons have by law in the province at the union;
“(2) All the powers, privileges and duties at the union law
conferred and imposed in Upper Canada on the separate schools and
school trustees of the Queen’s Roman Catholic subjects shall be
and the same are hereby extended to the dissentient schools of the
Queen’s Protestant and Roman Catholic subjects in Quebec;
“(3) Where in any province a system of separate or dissentient
schools exists by law at the union, or is thereafter established
by the Legislature of the province, an appeal shall lie to the
Governor-General in Council from any Act or decision of any
provincial authority affecting any right or privilege of the
Protestant or Roman Catholic minority of the Queen’s subjects in
relation to education;
“(4) In case any such provincial law as from time to time seems to
the Governor-General in Council requisite for the due execution of
this section is not made, or in case any decision of the
Governor-General in Council on any appeal under this section is
not duly executed by the proper provincial authority in that
behalf, then and in every such case, and as far only as the
circumstances of each case require, the Parliament of Canada may
make remedial laws for the due execution of the provisions of this
section, and of any decision of the Governor-General in Council
under this section.”(91)
Lately there have arisen religious difficulties to which this section has
no application. By the Confederation Act (Section 91) the Dominion
Parliament has exclusive jurisdiction as to marriage and divorce;
jurisdiction which would appear to relate to capacity as to marriage. By
Section 92 in each province the legislature may exclusively make laws as
to “the solemnisation of marriage in the province,” which would appear to
extend to all matters affecting the form and ceremony; a division of
powers certain to produce sooner or later conflicts. Recently the _Ne
temere_ decree was promulgated in Canada. The effect upon Roman Catholics
has been considered in what is known as the Hebert case, the chief facts
of which were these: Eugene Hebert and Emma Clouatre, both Roman
Catholics, were married by a Protestant clergyman. The marriage was
declared null and void by Archbishop Bruchesi. His decision was confirmed
by Judge Laurendeau. But on appeal it was reversed by Judge Charbonneau,
who held that any officer qualified by the State to marry persons could
marry persons of any religious faith; that the _Ne temere_ decree had no
legal validity and was binding only upon the consciences of Roman
Catholics.
To quote a report of Judge Charbonneau’s judgment:
“I do not think that the Roman congregation ever intended the _Ne
temere_ Decree to have a civil effect. It applies to Roman
Catholics only. As for the Archbishop’s nullification, it has the
same legal effect, but not more than the decree upon which it is
based. It simply declares that no Catholic marriage ceremony was
performed.”—(_Globe_, Toronto, February 23rd, 1912.)
So far as I know, there has been no appeal to the Judicial Committee, and
I take it that Judge Charbonneau’s decision is binding in Canada.(92)
In the Constitution of the Australian Dominion is a provision similar to
that quoted above from the Constitution of the United States. (Section
116):
“The Commonwealth shall not make any law for establishing any
religion, or for imposing any religious observance, or for
prohibiting the free exercise of any religion, and no religious
test shall be required as a qualification for any office or public
trust under the constitution.”
This enactment, so far as I am aware, has not been the subject of
interpretation. Religious equality in Australia has virtually no history.
IV. SAFEGUARDS FOR IRELAND
I come to the position of things in Ireland. It may be well at the outset
to make clear two points. The first is the present legal status of the
Roman Catholic Church in that country. It is the same as that of any other
voluntary association; its position theoretically no better and no worse.
It possesses autonomy; it enjoys freedom as to doctrine and worship; its
constitution is not interfered with; it regulates clerical education; it
nominates its bishops; it administers its property in its own way.
It may thus enjoy immense power, especially if there be no true national
system of primary education; it may well be doubted whether it possesses
as much power in any other country as in Ireland. But like other voluntary
religious associations the Catholic Church is not wholly withdrawn from
the supervision and control of the Law Courts. A series of decisions of
our highest courts with reference to Churches in Ireland and Scotland, and
the colonies, have laid down certain principles equally applicable to the
Roman Catholic Church and to all other religious bodies; in particular,
these principles: that the State can exercise control over all religious
bodies possessing property when it is proved to be contravening its rules
to the injury of members. In the case of societies resting upon a
consensual basis, Courts of Justice are bound when due complaint is made
that a member of the society has been injured as to his rights in any
matter of a mixed spiritual and temporal character, to inquire into the
laws or rules of the Society.(93) Further the authority of a Church cannot
be legally used for purposes inimical to the State or contrary to any
statute. It may make rules for its own members; it cannot enforce them
against others; they are invalid against them if contrary to the terms of
any statute. It may, for example, declare that it will not regard a
marriage with a deceased wife’s sister as valid; it may refuse to
recognise as members those who so marry. But such rules will not legally
invalidate a union which a statute has legalised. Probably this has not
always been fully borne in mind by those who have denounced the
promulgation of the decree _Ne temere_ in Ireland. Resolutions have been
passed against it here and in Ireland. Many Nonconformist bodies have
protested against the promulgation of the decree in British Dominions. The
decree is, I think, objectionable for several reasons, and not least
because it discourages mixed marriages, an effect which seems to me
deplorable, for nothing is better calculated to put an end to
uncharitableness and hatred than the frequency of such unions. But while
such a decree may do harm, it will have no direct effect except as between
the members of the Catholic Church _in foro conscientiæ_. The Irish
marriage law, which with a few exceptions is the same as the English, is
binding on all Catholics and Protestants. Lord Llandaff who speaks at once
as a lawyer and as a Catholic, puts this point clearly:
“The invalidity was that of the sacramental and not of the legal
marriage, and what the Church said to one of her subjects in such
circumstances was: ‘You are married; you are a husband; but you
may not receive the sacrament, and therefore you are in a state of
sin, and in that sense your marriage in void, according to your
conscience, though not according to the law.’ ”(94)
A movement of retrogression the promulgation of the decree may have been;
but every religious body must be free to lay down rules as to its
membership. To quote the letter of the Archbishop of Canterbury of
November 8th, 1911, on this subject: “Any branch of the Church of Christ
must clearly have the power of defining the conditions of membership.”(95)
It is but fair to remember that the decree _Ne temere_ is part of a
settled policy. The Church of Rome has often shown its disapproval of
mixed marriages which Benedict XIV. declared “abominable.”(96) It is but
fair also to take note of the plea that this decree is the latest attempt
to secure uniformity in regard to marriage law; attempts which have been
pursued since the _Tametsi_ decrees of the Council of Trent. Before the
reform in the marriage law then effected there was much confusion and
looseness. All that was required for a valid marriage was that the
contracting parties should express to each other their mutual consent by
words _de præsenti_; a state of things which favoured fraud and led to
uncertainty. The Tridentine change must appear to most lawyers to have
been a great reform; marriage was to be solemnised in the presence of the
parish priest of one of the parties and of two witnesses. But this
ecclesiastical law is not even now in force in several countries. It was
promulgated in most Catholic countries; it was never promulgated in purely
Protestant countries, or in all countries with a mixed population. It
applied to marriages between two Catholics but not necessarily to mixed or
to Protestant marriages. It might be in force in one part of a country and
not in another. Thus the _Tametsi_ decree was in force in the greater part
of the province of Armagh since the time of Elizabeth. Not until 1827 was
it promulgated in the province of Dublin. Now we are told that it was to
secure still further uniformity that the decree _Ne temere_ was published.
It requires all persons baptized in the Catholic Church, and those who
have been converted to it from heresy or schism, to marry in the presence
of the parish priest or ordinary of the place in which the marriage is to
be celebrated, otherwise the Church will regard it as null. If neither of
the contracting parties is a Catholic the Church recognises the marriage
as valid wherever it is celebrated.(97) How far other motives may have
operated I cannot say; it is only fair to bear in mind that the decree is
defended as a fresh effort to introduce certainty and definiteness as to a
fundamental institution.
I may here refer to the fears expressed as to the effects of the decree,
_Motu Proprio, Quantavis Diligentia_ of October 9th, 1911; a decree which,
it is said, might conceivably place every sincere Roman Catholic in
antagonism with his duties to the State. The principle of that decree
seems to me highly objectionable; it is an impossible attempt to revive
the past; a form of the greatest of all heresies, disbelief in spiritual
forces unsupported by privilege. But here, too, it is well to understand
the case made by defenders of that decree, and before deploring its
effects in Ireland to be certain that, in the view of the Catholic Church,
it is in force there. When the Church was all powerful, there existed a
_privilegium fori_ according to which no layman could bring a cleric
before a lay tribunal; a privilege based upon the words of St. Paul to the
Corinthians who resorted to the Pagan Courts. By various Concordats the
Papacy had agreed to abrogate this right wholly or partly. In some
countries the privilege had become extinct. In October 1869, was issued
the bull of Pius IX., _Apostolicæ Sedis Moderationi convenit_ which
appeared to revive the _privilegium fori_. This, however, is denied by
Roman Catholic theologians; according to them where no such Concordat
exists, a custom has grown up that breaches of ecclesiastical immunity are
to be overlooked; in any case it operates only as to canonical
offences.(98) Whether that interpretation is correct or not, I need not
enquire. But obviously such a rule has no legal efficacy; and it would be
a strong measure to deny the Church the right to give to its adherents
such monitions—for its commands are no more—as it thinks fit.
V. FUTURE SAFEGUARDS
In the Home Rule Bills of 1886 and 1893 were elaborate provisions designed
to secure equality of treatment. Thus the Irish Legislature was prohibited
from making any law.
Respecting the establishment or endowment of religion, or
prohibiting the free exercise thereof; imposing any disability or
conferring any privilege on account of religious belief;
abrogating or derogating from the right to establish any place of
denominational education or any denominational institution or
charity; prejudicially affecting the right of any child to attend
a school receiving public money without attending the religious
instruction at that school; or impairing without either the leave
of Her Majesty in Council first obtained on an address presented
by the legislative body of Ireland, or the consent of the
Corporation interested, the rights, property or privileges of any
existing corporation, incorporated by Royal Charter or local or
general Act of Parliament.
(Summary of Clause 4 in Bills of 1886 and 1893.)
Two comments may be made upon these provisions. They were so minute as to
be at once a source of frequent irritation and certain to give rise to
frequent conflicts with the Irish Legislature and as to be calculated to
encourage litigation. Further, they did not specifically deal with the
subject of marriage, an omission which, in view of the decree _Ne temere_,
seems objectionable. They are replaced by a general clause to the
following effect:
“In the exercise of their power to make laws under this Act the
Irish Parliament shall not make a law so as either directly or
indirectly to establish or endow any religion, or prohibit the
free exercise thereof, or give a preference, privilege or
advantage, or impose any disability or disadvantage, on account of
religious belief or religious or ecclesiastical status, or make
any religious belief or religious ceremony a condition of the
validity of any marriage.”
How far these provisions will be eluded probably no one can say with
certainty. It is difficult enough to ascertain the present situation in
Ireland without attempting to predict with confidence the future.
Statements diametrically opposite are vouched for by persons of equal
experience and opportunity of knowledge. “Facts” in that country are so
elusive. What is true in the south is fiction in the north, and _vice
versa_. It may be admitted that machinery designed to protect minorities
counts for less than the spirit actuating those who work it. The greatest
security no doubt for religious liberty would be the presence of a general
spirit of mutual forbearance; militant bigotry could not permanently exist
alongside the prevalence of the spirit of charity; and Ulster, as well as
other parts of Ireland, might make its contribution thereto. Some new
forces there are working for toleration, I believe that they are
increasing. Among them are these: the action of democratic institutions in
which persons of all creeds take part; the prosperity of the country
bringing in its train to all parts of the country new ideas and hopes and
interests; the performance by Catholics and Protestants of common civic
duties; the constant stream, strongly charged with secular elements,
flowing between Ireland and the United States; the silent influence of
literature and newspapers permeated by a spirit which no priesthood can
exorcise; the frequency of mixed marriages as proved by the action of the
Catholic Church against them; the existence of urgent political and social
questions as to which men are not divided according to their religious
beliefs. These are so many manifestations of the modern spirit, from the
operation of which Ireland no more than any other part of the western
world can escape. They may prove stronger than legal safeguards.
I shall not attempt to measure the relative strength of these influences,
but I should be inclined to rate highest the ultimate effect of democracy,
and of a Parliament in which must be a Protestant minority powerful by
their talents, their wealth and their energy. Democracy has everywhere its
own problems, as engrossing for it as any in which the Church is
interested. It will solve them in its own way, which may not be always the
Church’s. “Nothing,” says Mr. Bryce with reference to America, “excites
more general disapproval than any attempt by an ecclesiastical
organisation to interfere in politics.” Under democratic institutions
there may be the same results in Ireland. The remodelling of primary
education will probably be one of the first struggles in which an Irish
Parliament will be engaged. The fight will be in the open, which is a
clear gain. The Church may for a time succeed in retaining its present
hold over the schools. It is quite as likely that it will lose ground, and
that the first Irish Minister of Education will be the first to incur
ecclesiastical censure. There is much evidence of the growth of a
widespread toleration extending it may be hoped, to the northeast corner
of Ulster:
“Since the Local Government Act of 1898,” writes Mr. Annan Bryce,
“it has not been found that the priest interferes unless in the
rare cases where there is a question of personal morality, and
then not always with success.”
The opinions of three Lord-Lieutenants upon this point cannot be ignored.
Lord Aberdeen:
“After years of continuous residence in Ireland, watching affairs
and meeting people of every class and creed, I am profoundly
impressed with the baselessness of alarm about the consequences of
Home Rule.
“On Home Rule for Ireland, I repeat and emphasise the opinion of
my former telegrams, especially regarding apprehension of
religious intolerance.”
The late Lord Spencer:
“I have had some experience of Ireland, and yet I do not know any
specific instance where there has been the exercise of religious
intolerance on the part of the Roman Catholics against their
Protestant countrymen.”
The Marquis of Crewe:
“In 1886 and 1893 the animosity between classes, largely agrarian
in its origin, was far stronger than at present, and the line of
cleavage roughly followed that of religious difference. But even
in those days, as I well remember, it was evident that the
possibilities of intolerance in a self-governed Ireland were
deliberately and grossly exaggerated, with a party motive. Now,
when the various classes know each other better, and there is less
occasion for friction, the attempt to excite religious discord
will utterly fail, as I firmly believe.”
The safeguards provided by the measure deal specifically with the subjects
as to which fears of religious inequality exist: establishment and
endowment, education and marriage; as compared with them, the provisions
in the Canadian and Australian Acts are very imperfect. They guard, in
explicit terms, against the dangers to religious liberty and equality in a
way in which probably no other Constitution does.
A necessary supplement to any Legislature with limited jurisdiction is a
Court of Appeal. Under the proposed constitution, the Irish Courts will be
free to determine the constitutional character of any measures passed by
the Irish Parliament; and from their decisions an appeal will lie to the
Judicial Committee of the Privy Council, which will decide questions
similar to those determined by it with reference to the Canadian and
Australian constitutions, and by the Supreme Court of the United States
reviewing the constitutional character of State legislation. It may be
surmised that the Court will be faithful to the principles which it has
laid down in dealing with the powers of the Parliaments of the Dominions.
It has not hesitated to interfere in Canada with ecclesiastical sentences
or censure which it believed invalid (see _e.g._, _Brown_ v. _Curé de
Montreal_). It will, we may assume, do likewise in Ireland.
To conclude: He who believes in political freedom will believe also that
religious oppression cannot long co-exist with it. Never, so far as I
know, has ecclesiastical tyranny been enduring under democratic
institutions; and I see no reason why the result should be different in
the new Ireland which the Land Acts and the Local Government Act have
created. Full and free political life is the best, perhaps the only,
solvent of intolerance.
V.—Financial Relations(99) BY LORD WELBY
“The Channel forbids Union, the Ocean forbids separation. I demand
the continued severance of the Parliament with a view to the
continued everlasting unity of the Empire.”
Terse words in which a great statesman summed up the relation of Ireland
to England. The Home Rule Bill will give the sanction of law to Grattan’s
aphorism. It bids Ireland manage her own affairs, freeing her in her own
house from official bondage to an unsympathetic consort. If the Act of
Enfranchisement is drawn in a trustful and large spirit, it will, we may
feel assured, end the feud of centuries, and create unity where the Act of
Union has created enmity.
The policy of Home Rule is wise in itself, and worthy the statesmanship of
a nation always bold in the hour of need, and, as experience of its
working is gained, it will commend itself more and more to the commonsense
of a practical people, but the immediate success of the first Home Rule
Act will depend greatly on the skill and wisdom with which the details of
a complicated measure are devised, facing fairly the financial evils
consequent on Tory obstinacy, and avoiding, in reasonable degree, offence
to popular prejudice and existing interests.
The provisions which will adjust the financial relations between the two
nations are not among the least difficult of those details, and Parliament
must solve the puzzling problem without delay. It must begin by
temporarily giving local government in Ireland a fair start at the cost of
the British tax-payer.
Let us, in the first place, clear the ground from some doubtful arguments
which, used as premises, will probably lead the unwary to false
conclusions. A plea is often put forward that England is a rich country
and Ireland a poor country, and it is argued that identical taxation
therefore wrongs Ireland. But England is not a rich country, in the broad
sense. It is a country in which there is vast accumulation of wealth, but
in which, also, there is a great mass of poverty—poverty probably
exceeding the poverty of Ireland, and, therefore, identical taxation if it
wrongs the poor of Ireland, wrongs still more the poor of England. Critics
arguing from this false premise contend that the extension of the
Income-tax to Ireland was a wrong, that is to say, the wealthy man living
in Ireland, where living is relatively cheap, ought not to contribute to
the national expenditure on the same principle as the wealthy man living
in England, where living is relatively dear; or, to put the argument in
another form, it is sound finance to take Income-tax from a man in
England, struggling on a few hundreds a year. It is unsound finance to
take Income-tax from, say, the profits earned in Ireland by the Guinness
firm. Nationalists, misled by the plea of Ireland’s poverty, have relied
on this argument, and Conservatives also have used it chiefly to discredit
Mr. Gladstone, who extended the Income-tax to Ireland; but the argument is
false in itself, and cannot be made the basis of sound financial
legislation. As a matter of fact, taxes on articles of general
consumption, on the necessaries of life, fall heavily on the poor, and the
argument of over-taxation applies in great degree to the poor in the great
towns of England, and to the poor in Ireland. If, then, the poor of
Ireland are to be relieved, the poor of England must be relieved also, and
identical taxation would still be the result. The statesman must find a
truer gauge by which to measure the relative capacity of the two countries
to bear taxation.
Again, during the long discussion on financial relations, much time has
been wasted in criticising that provision of the Act of Union, which fixed
the respective contributions of Great Britain and Ireland to the common
purposes of the Empire at the proportion of fifteen and two. That
proportion, in fact, was not exacted, and it may be put aside as
theoretical.
A summary of recent financial history in Ireland will enable the reader to
understand the circumstances in which Parliament takes up the problem of
Home Rule. Towards the close of the eighteenth century the condition of
Ireland was bad. England, selfish to the last degree in her commercial
policy, treated Ireland as little better than a conquered country, and
ruined her commercially and industrially by restrictions on her trade.
Protestants and Catholics joined in patriotic resistance, and wrung at
last freedom of trade in 1779, and an independent Parliament in 1782.
Thenceforward for a time the financial administration of Ireland was
regulated in accord with Irish interest. The country prospered financially
under the new order. Large sums were spent in promoting agriculture and
manufactures, and in grants for public works, and the country’s finance
was restored to order. During the years of peace, 1782 to 1793, Ireland
contributed on the average £584,000 to military—that is to the common
expenses of the Empire. The military expenditure of Great Britain in the
peace years, 1786 to 1792, averaged £5,142,000. Ireland was then a most
important factor in the State, for the population was to that of England
in the proportion of nearly one to two.
Pitt desired to establish reciprocity between the two countries and at the
same time to obtain from Ireland a contribution on a fixed principle for
the Navy, wise proposals worthy of the Minister; but the two Parliaments
could not agree. That of England bowed to the pernicious claims of
ascendancy and to the supposed interests of the commercial classes. Pitt
was defeated. The French Revolution and a war lasting nearly twenty-two
years followed, and in the midst of the war broke out the Rebellion of
1798. If the charge of the Irish debt at the outbreak of the war and the
average civil expenditure of Ireland between 1793 and the Union is
deducted from the average income of Ireland, the surplus constituted
Ireland’s real contribution to the common expenditure and it averaged
about £900,000 a year. The year 1800 marks a great change of policy. Pitt
put an end to the independent Parliament of Ireland and passed the Act of
Union, bad in itself, and worse by the means which made it law. It sought
to make the two countries one for all purposes of revenue, and that object
was kept steadily in view.
From 1800 to 1817 the United Parliament imposed taxes on both England and
Ireland, but the Irish Treasury collected the Irish Revenue, defrayed the
local expenditure of Ireland as sanctioned by the United Parliament and
remitted the surplus in aid of the war expenditure. The greater part of
the burthen fell upon Great Britain, but Ireland’s share drained greatly
her resources. Her revenue which had produced £1,837,000 in 1793, reached
£7,305,000 in 1817, an increase of 300 per cent., while her contributions
during the years of war to the common expenditure calculated on the
principle adopted in the preceding paragraph amounted to about £3,000,000.
During the same period Great Britain contributed to the war out of revenue
about £43,000,000 on the annual average.
In 1817 the Irish Treasury was abolished, the exchequers of the two
countries were united, the British and Irish Revenues were paid alike into
the one exchequer. The Irish local expenditure was defrayed from that
exchequer under the check of the English Treasury, and the United
Parliament imposed and repealed Irish taxes. From 1817 for many years
Ireland fared badly. Her representatives in Parliament served her ill.
Tories, Whigs, and independent members failed alike in making England
understand Irish needs, and the British Parliament neglected Irish
interests. The years between 1817 and 1842 mark the first period of Irish
financial history dating from the war. It was a period of stagnation. Both
countries required time to recover from the calamity incident to war; but
the recovery would have been more rapid, even under heavy taxation, had
not progress been retarded by the unwise legislation of protection, which
fettered enterprise and restricted commerce. This evil, however, injured
Great Britain more than Ireland. In 1824 the separate Customs Departments
of the two countries were abolished. The trade between Great Britain and
Ireland was treated as coasting, and from that time no official record has
been kept of goods exported from and imported into both countries.
In 1817 the taxes levied in England were similar to, but not identical
with, those levied in Great Britain. Ireland was exempt from many taxes
levied here, and in some cases, such as spirits, she paid a lower rate of
duty. A period of profound peace enabled the government to remit taxation;
but those remissions were chiefly made in deference to British interests,
and in making them Irish interests were little considered. The truth of
this statement is illustrated by the Revenue Returns. The estimated
“_true_”(100) Revenue of Great Britain fell from £51,500,000 in 1820 to
£46,250,000 in 1840, although population, and with it consumption, had
increased. The “_true_” Revenue of Ireland in the same period rose from
£5,250,000 to £5,500,000. But it must be added that many of the taxes
remitted were taxes _not levied in Ireland_. In respect to them Great
Britain had to a certain extent a claim to prior consideration.
The second period of financial history extended from 1842 to 1869, a
period of rapid recovery and of great prosperity in Great Britain, but not
so in Ireland. Famine fell upon her in 1846, and thinned her population,
followed by emigration, which showed how poverty pressed upon the poor,
while the Fenian movement of 1866 showed how widespread was the spirit of
unrest. A highly cultivated Liberal statesman was Lord-Lieutenant during
several years of the period. An interesting diary which he kept leaves the
impression that the leading statesmen of the day were not reading the
signs of the times, or gauging the gravity of a growing movement. This was
hardly the period to choose for increasing the taxation of Ireland,
nevertheless in 1853 Mr. Gladstone extended the Income-tax to Ireland,
counterbalancing it in part by the remission of loans granted to Ireland
during the famine—a very insufficient compensation. But the Income-tax did
not touch the poor, and as I have pointed out there was no reason why the
wealthy and comparatively well-to-do classes in Ireland should not
contribute to the public expenditure like their brethren in Great Britain.
This plea, however, does not extend to the spirit duties which during 1853
Mr. Gladstone and Mr. Disraeli raised to the level of the spirit duties in
Great Britain. That tax undoubtedly was paid in great measure by the
poorer classes.
In one direction there was improvement. In 1842 Sir Robert Peel acceded to
power, and inaugurated at once the policy of liberating trade which has
conferred such benefits on Great Britain, and in a minor degree on
Ireland. The era of prosperity which followed the adoption of the Free
Trade policy increased greatly the consuming power of the people, and
enabled Mr. Gladstone to largely reduce duties on the principal articles
of food consumed by the poorer classes. For example, he and his successors
reduced the tea duties from 2s. 2d. to 6d. and abolished the sugar duties.
This was undoubtedly the true method of remedying the evil which underlies
the plea that identical taxation wronged Ireland. I have shown that that
evil was caused not by identical taxation, but by heavy taxes on food,
which oppressed alike the poor of Ireland, and the more numerous poor of
Great Britain. The policy adopted met the local grievance, by modifying if
not removing the general grievance, and this remedy of the general
grievance was only rendered possible by the growing prosperity of Great
Britain. The poor of Ireland had therefore their full share of the benefit
caused by the prosperity of Great Britain. The historian must give full
weight to this consideration when he criticises the increase of the Irish
spirit duty. There can be little doubt as to the verdict of history, if
the choice lies between cheap whisky and dear food on the one side, and
cheap food and dear whisky on the other. Between 1860 and 1900 the Customs
and Excise duties which were reduced exceeded the like duties increased by
some £22,000,000 a year, and Ireland had her share in the reduction.
In 1864 a Committee of the House of Commons inquired into the taxation of
Ireland, but it led to no useful result. In other directions the monotony
of neglect continued. The Government and Parliament paid little or no
attention to Irish needs. Ireland was the Cinderella of the three
kingdoms, and fared accordingly.
The third period ranged from 1869 to 1896. It might be termed the Home
Rule period, for it includes the two Home Rule Bills of Mr. Gladstone, but
it includes also other great measures relating to Ireland. Indeed, during
the whole period of seventeen years Ireland engrossed, to a great degree,
the attention of Parliament. The change was very remarkable. Up to 1869
England was indifferent to, or bored by, Ireland. She was stupid. She did
not trouble herself to learn Irish wants, and she could not understand the
spirit of Irish nationality. The Devon Commission, a Conservative
Commission, appointed by a Conservative Minister, Sir Robert Peel,
reported that 2,500,000 people in Ireland were on the verge of starvation,
and gave warning of the evils, the perils, inherent in the Irish land
system. England took no notice of either warning. The famine answered the
first in cruel fashion. The second was pigeon-holed. Wise in her own Home
administration, wise of late years in her Colonial administration, she
knew no remedy for Ireland but force, and force is no remedy. She
accepted, almost as matters of ordinary administration, Coercion Acts
which marked with a black stigma most years of the century, unable to see
that that fact alone was a disgrace to her statesmen, her Parliament, and
her people.
Early in the Home Rule days I heard a great English statesman say: “The
first duty of a Government is to bring the people into agreement with the
law; till it does that it fails in its first duty, and England has
hitherto failed to bring Ireland into agreement with the law”—a truth well
and forcibly expressed.
In 1869 a man of great power and eloquence, wide views, and firm resolve
became Prime Minister. He realised the habitual injustice of England to
Ireland, and he saw the perils impending. By his strength of will he
forced an unwilling country and an indifferent Parliament to devote its
serious attention to Irish questions. He disestablished the Church. He was
defeated on Irish education, but he laid the foundation of a land
settlement by conferring on the tenants, in spite of strenuous opposition
from the Tories, the rights of fair rents, fixity of tenure, and free
sale, and his measures were marked by an earnest desire to deal liberally
with Ireland to the utmost extent consistent with equity to the British
tax-payer. Finally, when Ireland sent to Westminster more than four-fifths
of her representatives pledged to Home Rule, he accepted this expression
of the national will, and became a convert to the principle of Home Rule.
I deal later in detail with his two Home Rule Bills of 1886 and 1893,
which were defeated, and I need only here deal with finance of the third
period, apart from the provision of the Home Rule Bills.
Before Mr. Gladstone was converted to Home Rule, Home Rule finance
attracted little attention. That eminent statistician, Sir Robert Giffen,
made, indeed, in 1885, a singular suggestion to the _Statist_ newspaper,
viz., that the Irish landlords should be bought out at the cost of the
Imperial Exchequer, and that the rent charge, which would then be payable
by the purchasing tenant, should be given to an Irish authority, in lieu
of payments from the Exchequer, for the internal administration of
Ireland.
Again, Sir Robert wrote an article in the _Nineteenth Century Review_,
March, 1886, a few weeks before the introduction of the first Home Rule
Bill, to show how unimportant, from a financial point of view, Ireland had
become to us, and to suggest the expediency of devising some form of
Government under which the special needs and circumstances of that country
would receive more and better attention than they did under the existing
arrangements. His figures might be, in some instances, doubtful, perhaps
even incorrect, but it can hardly be denied that he made good his point.
Sir Robert was, we see, greatly in advance, not only of the ordinary
Briton, but of financial experts generally, both as regards the land
question and also that of the Government of Ireland.
Perhaps the most able thinker and writer on economic questions in the
second half of the nineteenth century was the late Mr. Bagehot, and, in
proof of the general indifference to Irish questions in England, it is
notable that his collected works, ranging over a wide field in politics
and literature, contain no paper on the government or condition of
Ireland. Yet he had witnessed O’Connell, the famine, the depopulation of
Ireland, the Committee on Irish Taxation, and the Fenian outbreak in 1866.
In 1890 Mr. Goschen, as Chancellor of the Exchequer, in the Conservative
Government, moved for a Committee of the House of Commons to consider the
financial relations of England, Scotland, and Ireland. The Committee was
instructed to inquire into the equity of their financial relations in
regard to the resources and population of the three kingdoms. It had
hitherto been much discussed whether Ireland could be regarded as a
separate financial entity from the rest of the kingdom. The Irish Taxation
Committee of 1864, of which Sir Stafford Northcote and Mr. Lowe were
prominent members, had refused to admit the principle of such separate
entity, and that had been generally the Conservative contention. But, in
the reference to the Committee of 1890, the Conservative Government
accepted the principle. The Home Rule Bills of 1886 and 1893 were, of
course, based upon it. Thus, 1890 marks an important advance in the
discussion, and thenceforward, by consent of both parties, the separate
“entity” was established.
After the rejection of the second Home Rule Bill the Liberal Government
appointed a Royal Commission to inquire into the financial relations of
the two countries and their relative taxable capacity. The Report of this
Commission deserves attention, because it was exhaustive in its inquiries,
because the information it laid before the public has since that time been
generally used in discussion, and because many of the recommendations made
were far-reaching and suggestive. There was, as might be expected, great
difference of opinion. The Conservative members and the Nationalist
members made their several Reports. Attention, however, may be directed to
one of the Reports, because it received the concurrence of the Nationalist
members and of three English members—one of whom was a very high, if not
the highest, financial authority in the City of London, the two others
retired Civil Servants who had been at the head of two great Departments
of the State. Their conclusions were as follows:
“(1) That Great Britain and Ireland must, for the purpose of this
inquiry, be considered as separate entities.
“(2) That the Act of Union imposed upon Ireland a burthen which,
as events showed, she was unable to bear.
“(3) That the increase of taxation laid upon Ireland between 1853
and 1860 was not justified by the then existing circumstances.
“(4) That identity of rates of taxation does not necessarily
involve equality of burthen.
“(5) That whilst the actual tax revenue of Ireland is about
one-eleventh of that of Great Britain, the relative taxable
capacity of Ireland is very much smaller, and is not estimated by
any of us as exceeding one-twentieth.”
The three English members above mentioned presented a separate Report,
recording at length their views on the questions referred to the
Commission. I call attention to it, because reference is frequently made
to it in the Report of Sir Henry Primrose’s Committee, recently appointed
to advise the Government upon the new Home Rule Bill.
They pointed out that the whole taxation of Ireland increased from
£2,900,000 in 1820, to over £6,600,000 in 1893, and that by far the larger
part of this increase was derived from taxes on articles of consumption
which fell most heavily on the poor; that the increase resulted only
temporarily in an increase in the contribution to common expenditure which
rose from £3,691,000 in 1820 to £5,396,000 in 1860, to fall to £1,966,000
in 1893, for the greater part of the increase had been absorbed in
increase of Irish civil expenditure. This local expenditure amounted in
Ireland to 19s. 7d. per head, while in Great Britain it only amounted to
11s. 9d. If the cost of administering Ireland had been reduced to the like
cost in Great Britain, a saving of nearly £2,000,000 would have been
realised.
They thought that the expenditure in Ireland was conducted on a scale
totally unsuitable to that country, that the industrial taxation, borne in
Ireland mainly by the consumers of dutiable articles, was heavier than the
masses of the Irish people ought to bear, that Irish taxation ought not to
exceed one twentieth part of taxation of the United Kingdom, but they
doubted whether Great Britain would consent to alter her whole system of
taxation to meet the evil to Ireland. They objected totally to seeking a
remedy in increased grants and doles, and they suggested that Ireland
should levy her own taxes and provide for her own expenditure.
Lastly, in answer to the objection that Ireland might impose new Customs
duties, they held that to be unlikely, since Ireland rather than Great
Britain would suffer by such a policy, because the market of Great Britain
is of greater importance to Ireland than that of Ireland to Great Britain.
The Royal Commission reported in 1896. The question of the financial
relations remained then in practical abeyance till 1907. In that year the
Government of Sir H. Campbell-Bannerman proposed to establish an Irish
Council under the Lord-Lieutenant entrusted with the control and direction
of certain administrative Departments. A sum was to be charged on the
Consolidated Fund to enable the Council to meet the expenditure of the
transferred Departments. This sum was fixed for the first five years at
£4,164,000. This was simply a measure to decentralise administration, and
to admit Irishmen to a share in Irish administration. It did not, however,
obtain support in Ireland, and in consequence it was not pressed.
We come now to the last stages in the story of Irish finance. The
Government of Mr. Asquith decided to introduce the Third Home Rule Bill in
the session of 1912, and in 1911 they appointed a Departmental Committee
under Sir Henry Primrose to advise them. The able report of that Committee
has been laid before Parliament, and it brings our information on the
financial relations up to the latest date:
They state the “true” Irish Revenue in 1895-6 to have been £8,034,000.
They estimate “true” Revenue 1910-11 at 10,300,000.
Increase £2,266,000.
The “true” local expenditure in Ireland, 1895-6, £5,938,000.
The “true” local expenditure 1910-11, 11,344,000.
£5,406,000.
Thus whereas Ireland in 1895-6 made a contribution of £2,066,000 to
Imperial Expenditure, in 1910-11, not only did she make no contribution to
Imperial Expenditure, but the British taxpayer was called on to contribute
more than £1,000,000 towards Irish local expenditure. But Irish local
expenditure is increasing under the heads of old-age pensions, land
purchase, and expenses of the Government which will be established in
Ireland under Home Rule. The Committee in consequence estimate:
The Irish local expenditure in 1913-14 at £12,400,000.
The Irish Revenue at 10,350,000.
Deficit £2,050,000.
for which provision must be made in the forthcoming measure.
In order to meet the existing deficit, the Committee suggest that the
British Exchequer should take over liability for all old-age pensions
which had been actually granted at the date when the Home Rule Bill comes
into operation. They estimate that liability at £3,000,000 a year,
gradually, of course, diminishing. If necessary, the liability in whole or
part of the Irish Constabulary Pensions (£400,000) might also be
transferred to the British Exchequer. They advise that the obligation of
Ireland to contribute to the Imperial expenditure should be affirmed, but
that a settlement of the amount of the contribution should remain in
abeyance; and lastly, that the guarantee of the Imperial Exchequer in
respect of the Land Stock should remain, but that means should be taken to
secure regular payment of the sum due from Ireland to the National Debt
Commissioners.
I shall contrast later the recommendations of the Committee with the
actual provisions of the Home Rule Bill.
I will now compare the finance of the three Home Rule Bills which have
been submitted to Parliament, those of 1886, 1893 and 1912.
THE BILL OF 1886
Mr. Gladstone made it an essential condition of his plan that there should
be an equitable distribution of Imperial charges and that Ireland should
pay her fair proportion to the common expenses of the Empire. In 1885 that
contribution was represented by the surplus of Irish Revenue remaining
after deduction of the expenditure in Ireland on Irish services. He
calculated in 1886 that the surplus above described provided a
contribution by Ireland to Imperial expenditure equivalent to £2 where
Great Britain contributed £23. This proportion contrasts with Mr. Pitt’s
arrangement in 1800 that Ireland should pay £2 where Great Britain paid
£15. Mr. Gladstone proposed in future that where Great Britain paid £28,
Ireland should pay £2, a concession of moment to Ireland, and he supported
it on the following ground: he measured the taxable capacity of the two
countries by (1) the Income-tax returns (2) the death duty returns, and
(3) the valuation of property. Income-tax gave a proportion of £38 to £2,
but he held Income-tax an imperfect test, because it was paid in Ireland
on a lower valuation than in Great Britain and because many Irishmen
receive dividends on securities which pay Income-tax in England. He
thought that £34 to £2 would be nearer the true proportion. He held the
death duties to be a better test and they showed a proportion of £26 to
£2, while the valuation, lower in Ireland than in Great Britain, gave a
proportion of £24 to £2. Arguing from these premises, he held that his
proposed contribution of £2 to £28 was an equitable and even a generous
arrangement, justified by the necessity of starting the Irish Legislative
body with a balance to its credit.
A table is given showing how the contribution was appropriated.
The amount to be contributed by Ireland to Imperial expenditure being thus
ascertained, the more difficult part of the problem remained, viz., how to
provide the fund out of which the contribution would be payable and how to
secure its payment. The plan which commended itself to him as insuring the
fiscal unity of the three kingdoms, and giving absolute security to the
British Exchequer, left the imposition and collection of Customs and
Excise duties with the Imperial Government, and under Imperial control.
This plan was to be carried into effect in the following manner. The
Customs and Excise were to be levied under Acts of the Imperial
Parliament, and were not to be subject to the control of the Irish
Legislature. The Irish Legislature with that exception could impose taxes
on Ireland. Under the Land Purchase Bill, which was to be introduced
concurrently with the Home Rule Bill, a Receiver-General was to be
appointed, into whose hands the Customs and Excise Duties and other taxes
were to be paid, including taxes imposed by the Irish Parliament. The
Imperial Receiver-General, having thus in hand all Imperial and local
taxes levied in Ireland, would in the first instance pay out of them the
Imperial charges. Apart from the Imperial charges there were other
charges, strictly Irish, such as Judges’ salaries, pensions, the salaries
of existing civil servants, for the security of which the Bill provided.
The Bill bound the Irish Parliament to impose taxes sufficient to meet
such charges, and ordered them to be paid by the Receiver-General. The
Receiver-General was to keep an Imperial and an Irish account. The Irish
charges would of course be paid from the latter account. He was to carry
the Customs and Excise Duties in the first instance to the Imperial
account, and the local taxes to the Irish account, transferring to the
Irish account the surplus of Custom and Excise, after payment of the
Imperial contribution. He was subsequently to pay the balance remaining on
the Irish account to the Irish Exchequer.
An Imperial Court of Exchequer was established in Ireland to watch over
the observance of the Act, and all Revenue acts were to be tried and
defaults punished in that Court. The Bill further enabled the Irish
Parliament to take over the Irish Post Office, if it should so desire,
though it was Mr. Gladstone’s opinion that it would be for the convenience
of both countries if the Post Office were to remain under the control of
the Postmaster-General.
The Imperial contribution payable by Ireland was not to be increased for
thirty years, though it might be reduced if the Imperial charge for Army,
Navy and Imperial Civil expenditure for any year should be less than
fifteen times the contribution paid by Ireland. In that case one-fifteenth
of the diminution could be deducted from the Imperial contribution.
Existing Civil Servants were retained in their offices at existing
salaries. If the Irish Government were to desire their retirement, they
would be retired on pensions. On the other hand, if at the end of two
years the officers themselves desired to retire, they could do so,
receiving pensions on the usual abolition of office scale.
Supposing the Home Rule Bill to have become law the account of Irish
finance would have stood thus:
RECEIPTS.
Imperial taxes:
Customs £1,880,000
Excise £4,300,000
Total £6,180,000
Local taxes:
Stamps £600,000
Income-tax 6d. £550,000
Total £1,150,000
Non-tax revenue:
Post Office £1,020,000
Total: £8,350,000
EXPENDITURE.
Contributions to Imperial expenditure on basis of one-fifteenth of
Imperial expenditure:
Debt charges £1,466,000
Army and Navy £1,666,000
Civil charges £110,000
Total £3,242,000
Sinking Fund on one-fifteenth of capital of debt £360,000
Constabulary(101) £1,000,000
Local Irish Civil charges £2,510,000
Collection of revenue:
Imperial taxes £170,000
Local taxes £60,000
Non-tax revenue £604,000
Total £834,000
Surplus £404,000
Total £8,350,000
When it is said that in 1885-1886 Ireland was paying to Imperial
expenditure in the proportion of £2 to £23, that proportion was calculated
on the whole gross Imperial expenditure, whereas Mr. Gladstone calculated
the proportion of £2 to £28 on a military expenditure materially cut down,
for he excluded from it charges which ought strictly to be called war
charges, a modification very favourable to Ireland and reducing
considerably her true contribution.
He made another concession of great importance. He proposed to credit
Ireland with the entire receipts levied in Ireland, but that was not a
true test of the amount of taxation paid by Ireland. There are goods which
pay duty in Great Britain, but which are consumed in Ireland, so
conversely there are goods which pay duty in Ireland but are consumed in
Great Britain. For instance, spirits, porter, and tobacco are largely
exported duty paid from Ireland and are consumed in Great Britain, and Mr.
Gladstone calculated that the excess of duties so paid in Ireland on goods
consumed in Great Britain amounted to no less a sum than, £1,400,000 a
year. That is of course British Revenue, and in striking a true account
between the two countries it should be credited to Great Britain, not to
Ireland. The Home Rule Bill, however, gave it to Ireland, a direct grant
of £1,400,000(102) from Great Britain to Ireland, and if that amount be
subtracted from the contribution of £2 to £28, it leaves the proportion £2
to £52 instead of £2 to £23.
If we strike a balance between the contributions to be paid by Ireland to
Great Britain under the Home Rule Bill, and the grants to be paid to
Ireland, we shall arrive at the following result:
Contribution from Ireland to Great Britain £3,602,000
Grants from Great Britain to Ireland:
Duties paid in Ireland on goods consumed in Great Britain
£1,400,000
Grant toward the Constabulary £500,000
Total: £1,900,000
Net contribution from Ireland to Imperial purposes (or nearly in the
proportion of 2 to 60) £1,702,000
If the Imperial contribution _actually_ paid by Ireland in 1885 be equated
on like principle, the proportion stated above at 2 to 23 will be
similarly reduced.
The Bill was defeated in the House of Commons, and therefore its
provisions did not undergo the test of scrutiny in Committee.
The provisions of this Bill illustrate the difficulties which attend the
financial severance of the Irish from the British Government. High
authorities thought at the time that Mr. Gladstone, in 1886, should have
proceeded in the first instance by way of Resolutions establishing the
principles upon which the Bill would be subsequently founded, and there is
much to be said for that view. The main principles of the measure would
have been established in the first instance after free and full
discussion, and the details would have been adapted later to the
principles then laid down. Mr. Gladstone himself, in his reply upon the
Second Reading (June 7th, 1886,) indicated a course somewhat similar in
its result. He said:
“If an interval is granted us, and the circumstances of the
present session require the withdrawal of the Bill, and it is to
be re-introduced with amendment at an early date in the autumn, it
is our duty to amend the Bill with every real amendment and
improvement, and with whatever is calculated to make it more
effective and more acceptable for the attainment of its end.”
It must be remembered that there had been no sufficient time for the
collection of the data on which an effective measure could be founded, and
the collection of those data was a task of great difficulty, for the
Departments did not possess them. The Government came into power in
February, and the Bill was introduced on April 6th; thus there was no real
opportunity for testing the value of the data collected in that short
interval, or for gauging beforehand objections both to the principles and
details of the scheme adopted, and experience proved that some of the
objections were valid, though probably not insurmountable.
The scheme was based on two principles which would be especially liable to
criticism:
(1) For thirty years Ireland was to contribute to Imperial charges as they
then existed a fixed annual sum.
(2) The Customs and Excise duties as _collected_ in Ireland (_i.e._, not
the “true” revenue) were to be credited to the Irish Government.
The first of these principles would have been closely scrutinised in
Committee, but probably in the main it could have held its ground. In the
first place, it reduced considerably the Imperial contribution, consisting
hitherto of the balance of revenue after payment of Irish charges. As Mr.
Gladstone pointed out, the amount of military expenditure, on which the
proportion of 2 to 28 was calculated, was considerably reduced, and Great
Britain had to pay the difference, and so far the change was favourable to
Ireland. In the second place, Irish expenditure was increasing, and under
the existing system the balance of Irish revenue, constituting the Irish
Imperial contribution, was, as the sequel lamentably proved, diminishing,
and, a result not foreseen at the time, the wasteful and unsound finance
which financial partnership entailed upon Ireland ere long extinguished
it. The grant of autonomy was an effective check on this continued waste,
otherwise the contribution of a fixed quota would soon have reduced the
Irish Government to insolvency.
The grant to Ireland of the _collected_ not the _true_ duties of Customs
and Excise was open to grave objection. It presented her with the duties
levied in Ireland on articles consumed in Great Britain, but if at any
time the habits of the people, such as decrease in drinking, reduced this
practical gift—estimated at £1,400,000, or if changes in law or practice
transferred the payment of these duties from Ireland to Great Britain, the
financial equilibrium of the scheme would be destroyed. This was a real
danger as under the bonding system the British trader could, if he
pleased, pay these duties in Great Britain.
The decision that Ireland was not to be represented at Westminster led to
a clumsy device for giving Ireland a voice in the Imperial Parliament when
Irish interests were involved. This would be the resource if a war
contribution had to be obtained.
The scheme of 1886 can only, therefore, be regarded as a draft to be
tested and modified in discussion and to form the basis of a revised and
amended scheme.
THE BILL OF 1893