(II) The Tendency Towards Legislative Disintegration. A Review Of The

Statute Book. BY H. DE R. WALKER

The Act of Union between Great Britain and Ireland was the end of a

definite epoch of political concentration. England, Scotland, and Ireland

had at last been brought under a single Parliament, with equal and

complete legislative authority over the whole of the three Kingdoms. But

Union was not accompanied by uniformity, especially in the case of

Ireland. Ireland, when joined in a legislative union with Great Britain,

was in fact left in possession of separate Administrative, Financial and

Judicial institutions. With the separate judicial system I am not further

concerned, but at a time when the grant of extended self-government to

Ireland is under consideration, I contend that it is of great utility to

observe how far Irish Administration and Irish Finance are actually

distinct and separate at the present time. Moreover, whatever may have

been the intention of the statesmen of the period of the Union, it has

also been found to be necessary, owing to the diversity of the

institutions, to pass in the Parliament of the United Kingdom, a large

number of statutes solely applicable to Ireland. I do not assume that what

is now separate should in every case be transferred to the new Irish

Authority, nor that what is now done in common should not be so

transferred; but I do contend that the existing differentiation should

largely guide us in connection with the forthcoming proposals. On the

other side, our opponents might of course urge that, as we have already

got separate laws and separate administration for Ireland, we obtain under

existing arrangements all the diversity that is required, and that we have

herein an argument against Home Rule rather than in its favour.

We must, therefore, carry the matter a step further. We may say that the

separate laws and separate administration, while not conclusive as to the

need for Home Rule, will be found to provide a basis for its inception if

it can be shown on other grounds to be desirable; but, as it is not my

intention to enter upon the general merits or demerits of Home Rule, I

pass on to submit the practical consideration that the separate laws and

the separate administration for Ireland, as worked in connection with a

single Parliament, not only work badly in themselves, but are prejudicial

to the orderly development of Parliamentary government. This is my case,

and if I can prove it, we should either do away with these separate

arrangements or cease to work them in connection with a single Parliament.

But it will be easy to prove further that the separate arrangements cannot

now be consolidated. There is a continuous tendency to accentuate them in

accordance with the requirements of the situation. We shall, therefore, be

driven to the conclusion that we must have recourse to a separate

Parliament for Ireland in order to be able to work these separate

arrangements in a satisfactory manner.

In order to substantiate these contentions, I shall discuss the existing

position as regards Irish Legislation, at the same time giving some

attention to Finance and Administration in their legislative aspects. The

uniformity in Anglo-Irish Finances which has been developed during the

nineteenth century is still qualified by a certain differentiation.

Separate departments of administration involve separate estimates of

expenditure; and separate laws may involve separate grants of money.

The authors of the Act of Union did not attempt to establish uniformity

between Great Britain and Ireland in the matter of either administration

or finance, but they followed the precedent of the Union between England

and Scotland in the concentration of all legislative powers in a single

body, the Parliament of the United Kingdom of Great Britain and Ireland.

But Union did not necessarily mean uniformity, and the united Parliament

found itself at once compelled to pass separate and different Acts for the

several portions of the United Kingdom.

In this branch of our subject it will be convenient not to confine our

attention to the separate Irish laws, but, since many laws are also passed

separately for England and for Scotland, to take a wider view and consider

how far Parliament legislates in common for the whole of the United

Kingdom, and how far separately for one or more of its component parts.

And it follows therefrom that any conclusions that we may form as to the

delegation of legislative powers are likely to apply in kind if not in

degree to England and Scotland as to Ireland. In the administrative

sphere, of course, the position is by no means the same as between the

three countries. Scotland has at present no important central department

at Edinburgh other than its Local Government Board.

It was largely owing to the maintenance under the Union of the separate

administration in Ireland, combined with the retention during the first

sixteen years of the separate exchequers, that Parliament was obliged to

legislate separately for the different portions of the United Kingdom.

These were the years of the Napoleonic wars, when very heavy taxation was

imposed; and, not only was a separate Act passed, according to the custom

of the time, for each article that was to be taxed, but this taxation was,

on account of the separate exchequers, imposed by separate Acts for Great

Britain and for Ireland. In these circumstances it is not surprising to

find that the most numerous Statutes of the first twenty years of the

century were those whose application was confined to Great Britain or to

Ireland, and that they considerably exceeded in number those which applied

to the whole of the United Kingdom or to England alone. After the

amalgamation of the exchequers in 1817, the annual average of Statutes

applying to Great Britain dropped at once from thirty-five to seven, and

gradually decreased still further, since most of the financial measures

were passed thenceforward for the whole of the United Kingdom alike. But

Ireland, in spite of the financial amalgamation, continued to call for a

large amount of separate legislation, and the annual average of Statutes

applying solely to Ireland dropped no more than from thirty-one in the

decade 1811-20, to nineteen in the following decade, at which point it

remained fairly constant during the greatest part of the nineteenth

century. Throughout this period, the average annual number of what I call

“United Kingdom” Statutes ranged between forty-nine in the decade 1861-70,

and thirty-two in 1881-90, and of Statutes that applied solely to England

between fifty-eight in 1881-90, and twenty-three in 1801-10. It should be

added that the numbers are those of the Public Acts alone, and they would

be much higher, particularly in the later years, if the Local and Private

Acts were included in the enumeration. But the public Statutes are

obviously alone relevant in any enquiry as to the extent to which the

Union of the Parliaments has led to legislative uniformity, and it is very

significant that, even upon these public matters, Parliament has been

unable at any time since the Act of Union, to avoid the necessity for a

large amount of separate legislation for Ireland.

The figures up to 1890 are taken from Mr. T. A. Spalding’s “Federation and

Empire,” which contains many interesting particulars, and I have worked

out the figures for the two succeeding decades, but not exactly on the

same basis. Mr. Spalding includes the Provisional Order Confirmation Acts

which were not distinguished from other Public Acts until the middle of

last century, but I omit them as not partaking of the character of general

legislation, and the number of separate Acts given for England, Scotland

and Ireland is considerably reduced by this omission.

In my first table, which gives the total, not the annual average, I divide

the Public General Acts into two wide categories: those, which I term

“United Kingdom” Statutes, that apply to the Dominions, the Colonies, or

India, as well as those which apply to the United Kingdom as a whole; and

those, which I term “State” Statutes, that apply to England, Scotland or

Ireland alone, to any two of these three countries, or, in a very few

cases, only to the Channel Islands or the Isle of Man.

Public General Acts, 1891-1910.

United State. Total.

Kingdom.

1891-1900 295 336 631

1901-1910 252 206 458

Total 547 542 1,089

It will be noticed that there is a curious approximation between the

numbers in the two columns, and nearly half the legislative output of

Parliament thus takes a form which is at any rate contrary to the spirit

of the Act of Union. Excluding financial measures during the few years

when the exchequers of Great Britain and Ireland continued to be separate,

it would have been anticipated that the legislation under the Union would

be uniform, or at least tend to uniformity, and it is very significant

that, after more than a hundred years, so much separate legislation should

still be required for the several portions of the United Kingdom. But I

will postpone any further comments on this situation until I have shown

how the “State” Acts are divided up as between the three countries and

what are the principal subjects with which they deal.

From my classification of the “State” Acts according to countries, I have

omitted the twenty-one Acts which apply solely to the Channel Islands and

the Isle of Man, one Scottish and Irish Act, and one Welsh Act; and, as to

Wales, I may take the opportunity to say that I do not prejudge its claim

to separate treatment in any measure of Home Rule all round, but that I

shall not specifically mention Wales in this paper, partly in order to

avoid the repeated enumeration of the four countries in the place of

England, Scotland and Ireland, partly because the claim of the

Principality, so far as it may be based on laws and administration that

are distinct from those of England, is exceedingly weak. Education,

however, is already separately administered, separate Insurance

Commissioners have been appointed for Wales, and an important Welsh

Intermediate Education Act was passed in 1889, just before the period that

is covered by the following table.

“State” ACTS, 1891-1910.

England. Scotland. Ireland. Great England Total.

Britain. and

Ireland.

1891-1900 140 74 72 17 21 324

1901-1910 78 37 57 14 9 195

Total 218 111 129 31 30 519

The above table shows, so far as mere numbers are concerned, how far the

pressure upon the Parliament of the United Kingdom would be removed if it

were relieved of the responsibility for English, Scottish and Irish

legislation, respectively; and, in view of the relative population of the

three countries, we cannot be surprised at the conclusion to be drawn from

the figures that the main cause of the legislative congestion lies in the

fact that the laws relating exclusively to England and those applying to

the United Kingdom as a whole, have to be passed by one and the same

Parliament. We should, then, seek for some form of delegation which would

remove English and Scottish, as well as Irish legislation, from the

purview of the existing Parliament; but, in the meanwhile, the figures

show that the removal of the Irish business would relieve matters

appreciably, and it is probable, without counting the Home Rule Bills,

which should not be regarded as exclusively Irish measures, that the Irish

legislative proposals take more of the time of the House of Commons than

would be represented by the proportion which they bear to the total

legislative output.

I now pass to the subject-matter of the Acts of Parliament; and I again

turn to Mr. Spalding’s book. He has made a most interesting analysis of

the statutes up to the year 1890, from which it appears that Parliament

had been unable to legislate by Acts applying over the whole of the United

Kingdom whenever it had had to deal with the administration of justice and

the laws relating to any of the following subjects: the tenure and

occupation of land; the holding, transfer, and devolution of property

(including land); the Church; the poor; local government, rural and urban;

roads, railways, and canals; and education.(160) These are the subjects,

that is to say, on which Parliament had been obliged to pass separate laws

for the different parts of the United Kingdom, and the study of this

centrifugal tendency seemed to me so important that I have continued (on

the next page) the analysis for the following twenty years.

The first impression derived from this table is that the division between

the subjects on which the legislation covers the whole of the United

Kingdom, and those on which it has a narrower application, is much the

same as during the earlier period. Parliament continues to legislate

separately for the “States” in the matters in which it has been its

practice so to do, and this in itself is a very significant consideration

in view of the strong contrary inducement resulting from the growing

congestion of Parliamentary business. Thus, taking the last three headings

on the list, we see that in regard to Education, the Poor, and the Church,

all the legislation during the twenty years was of a “State” character,

while the very numerous Acts relating to Local Administration were in

almost every instance equally limited in their application. When we pass

to Law and Justice, and to Land and Agriculture, we find that the “State”

predominance is not quite so marked, but even so, there were three times

as many “State” as “United Kingdom” laws, and we conclude that, though the

pressure of Parliamentary business is against it, “State” legislation

continues to hold the field over a wide and varied range of legislative

activity.

Public General Acts.—United Kingdom.(161)

Date. 1891-5 1896-1900 1901-5 1906-10 Total

Imperial. 24 12 13 15 64

Army and 15 25 18 14 72

Navy.

Conditions 10 9 5 10 34

of

Employment.

Benefit. 6 5 2 5 18

Finance. 37 30 29 28 124

General 40 21 20 31 112

Administration.

Trade and 6 12 9 18 45

Commerce.

Traffic. 4 1 3 8

Law and 16 4 5 14 39

Justice.

Land and 7 4 1 8 20

Agriculture

Local 3 4 1 3 11

Administration

Education

Poor Law

Church

Total 168 127 106 146 547

States (England, Scotland And Ireland, Separately, And Combinations Of Any

Two Of Them).

Date. 1891-5 1896-1900 1901-5 1906-10 Total

Imperial.

Army and

Navy.

Conditions

of

Employment.

Benefit.

Finance. 3 10 4 17

General 7 10 8 7 32

Administration.

Trade and 9 6 9 12 36

Commerce.

Traffic. 4 4 8

Law and 40 43 9 31 123

Justice.

Land and 23 11 7 22 63

Agriculture.

Local 49 55 23 34 161

Administration.

Education. 9 10 11 10 40

Poor Law. 4 15 4 2 25

Church. 3 10 2 1 16

Total. 151 174 77 119 521

At the other end of the scale are the subjects on which Parliament is

always able to legislate for the whole of the United Kingdom by a single

Statute. The Imperial Laws are those which are promoted by the Foreign,

Colonial, and India Offices, and concern our relations with Foreign Powers

or with some portion of the British Empire. The Army and Navy laws include

not only the Naval and Military Works Acts, but any Acts dealing with the

Territorial and Reserve Forces. The next two classes may be bracketed

together as Labour Laws, but are distinct according as they relate to the

conditions of employment of the workers, for instance, in shops, coal

mines, or factories, or to the benefits which accrue to them through

Workmen’s Compensation, Friendly and other Societies, and Old-Age

Pensions. In both these cases, also, all the laws apply to the whole of

the United Kingdom as do the great majority of the laws in the next two

headings of Finance and General Administration. The “State” Acts under

Finance are those by which Parliament has made grants towards the local

expenditure upon education and towards the relief of the land from local

burdens, and has done so separately for the three countries; and the

“State” Acts of General Administration deal with the Central Departments

which are maintained separately for England, Scotland, and Ireland. The

heading of traffic is of dwindling importance, and the enumeration ends

with trade and commerce where the “United Kingdom” laws have a slight

numerical superiority.

I have confined myself here to a few summary remarks upon the different

legislative headings as I have discussed the matter in greater detail

elsewhere;(162) nor do I wish to enlarge upon the conclusions that might

be drawn from the figures. The South African War is evidently responsible

for the greater number of Military Acts in 1896-1900; and the slowing down

of the Parliamentary machine during Mr. Balfour’s Administration is

reflected in the smallness of the total legislative output in 1901-5.

Moreover, since the Unionists were in power throughout 1901-5, and the

Liberals throughout 1906-10, there is scope for a direct comparison of the

records of the two Governments, but such considerations have no bearing

upon our present purpose.

On the contrary, I hope that the opponents as well as the supporters of

Home Rule would agree that, since Home Rule involves a division of

legislative powers between the Parliament of the United Kingdom and the

Irish Parliament, it is not only pertinent, but necessary, that we should

make ourselves acquainted with the lines upon which Parliament has, in

practice, divided up its legislative business. For, while the point should

not be pressed too far, I would suggest that the separate Irish laws, and,

for that matter, the separate English and Scottish laws, constitute a kind

of internal devolution, which is all the more significant because

Parliament has not been actuated by any preconceived purpose; and that the

subjects which are now dealt with by “State” laws are, for that very

reason, those of which Parliament should naturally be relieved under any

scheme of Home Rule. Similarly, it might be claimed that Parliament should

retain those powers which it is now able to exercise in common for the

whole of the United Kingdom; but the position is not the same in the two

cases. In its anxiety to economise time, Parliament does not hesitate to

render its measures applicable to the whole of the United Kingdom by

appending to them clauses which regulate separately the application of the

provisions to Scotland and Ireland; and where these “application clauses,”

as they are called, are long and complicated, it is probable that separate

measures for the different parts of the United Kingdom could be adjusted

more closely to the local requirements. On the other hand, we may be sure

that Parliament would not have passed, for instance, separate Local

Government Acts for England, Scotland and Ireland, each of which took up

much of its time, unless it had been obliged to do so; and we may assume,

whenever such separate Acts are passed, that Parliament had some strong

reason for its action, though, of course, I do not imply that Parliament

has legislated also for England and Scotland on every subject on which it

has passed an Act that related exclusively to Ireland.

But it may be said that, while I have sufficiently described these

separate laws, I have not explained why they are passed, nor have I given

any reason why they must be continued. The separate laws are passed

because England, Scotland and Ireland have in many respects distinct and

different institutions. In Ireland, for instance, neither the position of

the Church, nor the organisation of the police or of the Courts of

Justice, nor the law in regard to the tenure of land, nor the system of

education or of local government in general, is the same as in England or

in Scotland; while Ireland is also subject to an exceptional code of

criminal law. And the institutions of England and Scotland differ also

very widely from one another. “After a long period of intimate union

between England and Scotland,” said Lord Lothian, in 1887, in a speech in

the House of Lords upon the proposed enlargement of the powers of the

Secretary for Scotland, “people are apt to forget how entirely distinctive

and different the administration of Scotland is from that of England.

There is almost no point of resemblance. There are different forms of

religion and different social forms affecting almost every portion of

Scotland. There is a different code of education—an entirely different

code of education—and different systems of agriculture. There are also

different systems affecting the law of lunacy and parochial laws, and

almost every other department.”(163) And these differences between the

three countries, which are the direct cause of the distinctive laws, must

surely be regarded as permanent, seeing that they have persisted since the

respective Acts of Union. Neither Scotland nor Ireland would willingly

surrender its separate judicial and ecclesiastical institutions or its

separate machinery of administration. Indeed, the prevailing tendency

favours increased differentiation, and it has the support of Unionists as

well as of Liberals. The Unionists have recently created new Irish

Departments in Dublin, such as the Department of Agriculture and Technical

Instruction, and when the Liberals had re-established the office of

Secretary for Scotland after a lapse of nearly a century and a half, the

Unionists proceeded to add considerably to its powers.

We may thus take it as axiomatic that, in the absence of Imperial

Federation, or of a proposal such as Home Rule whereby Parliament can be

relieved of some of its legislative duties, it must continue to occupy

itself with five different categories of laws: Imperial laws, affecting

the British Dominions beyond the seas; laws applying to the whole of the

United Kingdom; and laws which relate exclusively to England, to Scotland

and to Ireland. Moreover, while each legislative sphere has its parallel

sphere of administration, the sole and supreme authority, except so far as

the Dominions look after their own affairs, is centred, as with the

legislative power, in a single body, the Government of the United Kingdom,

which holds an absolutely unique position in the extent and variety of its

responsibilities. In both these functions, then, we may have serious

doubts as to how the system works, but I am unable to give any direct

evidence in regard to the Executive. Though it is inherently improbable

that a small group of men should be able adequately to supervise so varied

a collection of interests, the subject is obviously one in which it is

almost impossible to obtain precise information. The Cabinet of 1880-5 was

not altogether happy in its multiplex activities, and complaints were rife

of the neglect of home affairs during the South African War. Speaking

generally, indeed, the Unionists, according to their adversaries,

subordinate domestic to Imperial interests, while the critics of the

Liberals would say that the Liberals reverse the process. And there we may

leave the question, while agreeing, I hope, that Home Rule, or preferably

Home Rule all round, would be beneficial so far as it would relieve the

pressure upon a Cabinet that can scarcely fail to be overworked. And if

there is any doubt as to the Cabinet there can be no doubt that Parliament

is overworked to a very grievous extent. Irrespective of the strain upon

individual numbers, it is admittedly unequal to the efficient discharge of

its manifold functions. It cannot do all that it should do, and much of

what it does do, it does without proper discussion. As to the first of

these shortcomings, I am glad to be able to quote from an article in the

_Round Table_(164) for December, 1911, in which, after a detailed

comparison of the time that is available to the House of Commons with the

demands that are made upon it, the conclusion is reached that “the

legislative requirements of the country are too great for the available

Parliamentary time.” And, as to the absence of proper discussion, the

reader may be referred to the remarks on every occasion when the use of

the guillotine closure is proposed, while the final inadequacy of the

House of Commons is implicit in the recent admission of the Prime

Minister, when proposing the guillotine motion upon the National Insurance

Bill, that, without a resort to this method of procedure, the House cannot

carry out the duties which it is required by the country and the interests

of the Empire to discharge. Moreover, it should be borne in mind that, in

trying to get all this diverse work out of a single Parliament,

Governments have not only grievously restricted its legislative powers,

but have also reduced the opportunities for discussion on administration

and finance which are at least equally important functions of any supreme

Parliamentary authority.

But the agitation in connection with the National Insurance Act will keep

public attention sufficiently focussed upon the manner in which Parliament

does its legislative work, and I pass from the amount of the work to the

consequences arising from its variety. As the Cabinet must supervise both

domestic and Imperial affairs, and Parliament must deal separately with

these two branches of legislation, so the electorate should not overlook

either the Imperial or domestic views of those who seek its suffrages. But

an elector may be faced by the difficulty that he likes the Imperial views

of one candidate and the domestic views of the other, while the same man

must represent him in both of these aspects in the House of Commons. In

1900 the Liberal supporter of the South African War was confronted with

this dilemma in an acute form; and, in view of subsequent disputations, it

may be taken to have been unfortunate that the party which won the

elections of 1900, almost entirely on Imperial considerations, should

thereby have been placed also in charge of our domestic concerns. And

there was a similar confusion of issues in 1906, when, because a man was a

tariff reformer or a free-trader, it did not necessarily follow that, in

the former event, he was for, or, in the latter, against, the Conservative

policy in regard to the liquor trade or religious instruction in the

elementary schools. No small advantage, therefore, would accrue from Home

Rule all round in the fact that separate categories of issues would be

placed separately before the constituencies.

And the electoral confusion is reproduced in the House of Commons; for

there can be no doubt that the Liberals suffered under this disability in

the Parliament of 1900, and the Conservatives in that of 1906. But, in the

case of the Member, the connection with so many diverse interests has also

other objectionable consequences. Supposing he sits for an English

constituency, his responsibility extends to Scottish and Irish laws and

administration, as to which he will know little or nothing, while his

constituents will usually be indifferent as to what he may do.

Illustrating this matter from my own experience as an English county

Member, I may say, regarding my votes upon the Scottish Small Landholders

and Valuation Bills, and the Irish Evicted Tenants and Land Bills, that

not one of these subjects brought me any letter from a constituent, or was

the occasion of any reference whatever in the course of any of my

political meetings. And, since there is no reason to suppose that other

English constituencies would feel or act differently, all these votes of

English Members are in reality irresponsible, and they are to be condemned

upon the principles of representative Government. For, in spite of the

observance of its outward forms, its true spirit is absent wherever there

is a failure of the healthy interplay of influences between a Member and

his constituents; and here again, Home Rule all round could alone relieve

the situation. Through the establishment of separate Parliaments in

England, Scotland and Ireland, a Member’s work in each of these bodies

would be confined, as regards public affairs, to matters by which his

constituents were or might be affected and in which there was the normal

and proper relation between the electors and those whom they had elected.

Moreover, there is a further evil effect arising from the inevitable

indifference of constituents to much of the legislation which does not

apply to the country in which they live. In view of the divergence of

interests and diversity of classes represented in every Parliament, there

is probably no legislature in which there is not a tendency to

“log-rolling,” by which I mean arrangements among Members to support

measures about which they do not care in return for help with measures in

which they are particularly concerned. This temptation will be greater

when the Parliament is not only overworked, as is the case here, but the

struggle is intensified by the rivalry between English, Scottish, and

Irish claims upon its attention. In the resultant situation, indeed,

arrangements of a “log-rolling” character are likely to be made even upon

the wider issues, and the fact should not be overlooked that they are

rendered more easy because so many laws are passed separately for England,

Scotland, and Ireland. In theory, of course, as Professor Dicey claims, it

is the duty of a Member, whencesoever returned, to consult for the

interests of the whole nation, and not to safeguard the interests of

particular localities or countries; but in practice he cannot do it. The

subjects for legislation are so complicated that he cannot make himself

acquainted with them as they affect each of the three countries, and the

pressure upon Parliament is so tremendous that he is almost bound to try

to get for his own country a fair share of such time as is available. It

is, therefore, wiser to bow to the inevitable, and enable the English,

Scottish, or Irish Member, as the case may be, to look after his own

concerns in his own Parliament, untroubled by the presence of others who

do not understand his business and will not be called to account by their

constituents for what they may do, while leaving the control of all common

affairs, as at present, to the Parliament of the United Kingdom.

There are, however, valid reasons why Ireland has a pre-eminent claim to

priority of treatment. Ireland has been much less successful than England

or Scotland in securing that Parliamentary action should be in accordance

with the wishes of the majority of its Members in the House of Commons.

Where the representatives of three countries together constitute a

legislative body, it is probable that each of these countries will at some

time or other be under the sway of a majority different from that which

would be formed if its own representatives alone decided upon its

composition; but it is clear that this fate is less likely to overtake the

country which has a great numerical preponderance in the legislature in

question. Thus, taking the period since 1885, England, holding 465 of the

670 seats in the House of Commons, was only in this position from 1892-5,

for at the two elections in 1910 there was almost a tie in the return of

226 Ministerialists and 239 supporters of the Opposition. And this great

preponderance of one of the countries adds to the likelihood that the

others may have the majority of their own representatives in a minority of

the whole representation. I have not been discussing the separate case of

Wales, and so I will only say that, of the 30 Welsh Members, on no

occasion in the twenty-seven years have the Unionists been able to muster

more than 8; and Scotland has scarcely responded more closely to the swing

of the pendulum in England. Though the Unionists were in power for fifteen

out of the twenty-seven years, they had a majority in Scotland, and that a

very small one, only in the Parliament of 1900. But Scotland on the whole

does not come off badly, since it is not the practice of the Members from

the other countries to vote down the Scottish representatives. Where

Scotland does suffer is in their inability, owing to their numerical

weakness, to secure a fair share of attention for Scottish domestic

concerns. A law on Scottish Education, for instance, though it got into

the Queen’s Speech for 1900, was not enacted until 1908, and the Scottish

Members never have more than one day in the Session for the discussion of

all the Scottish Estimates. When we pass to Ireland, it is difficult to

make any similar comparison, for, though the Nationalists sit permanently

in opposition in the House of Commons, it does not follow that they should

be classed as being opposed to the Liberals as well as to the Unionists.

If we regard them as opposed to both of the principal parties, then, when

the Liberals have been in power, every Irish Member with one single

exception must be reckoned to have been among their opponents. But, if we

prefer to base our calculations upon the sort of informal understanding

which has existed during most of the time between the Liberals and the

Nationalists, we must confine our attention, from the present point of

view, to the years of Unionist Government, and we find that, of the 103

Irish representatives, the number of Irish Unionists during those periods

has never exceeded 23 and has been as low as 19. Thus, putting the various

figures which have been quoted into percentages, it becomes evident that

England has had to live under a Liberal Government when the Unionists (in

1892-5) had 58 per cent. of the total English representation; Scotland has

had to live under a Unionist Government when the Liberals (in 1886-92) had

60 per cent. of the total Scottish representation; whereas Ireland has had

to live under a Unionist Government when the Nationalists had as much as

81 per cent. of the total Irish representation. And it must be borne in

mind that, while England and Scotland are only rarely governed in

opposition to the wishes of the majority of their representatives, Ireland

has continued to be preponderantly Nationalist irrespective of party

fluctuations in Great Britain.

In these circumstances, Ireland, whether in its Nationalist or its

Unionist constituencies, never expresses any other opinion than for or

against Home Rule. We regret the confusion at all elections in the United

Kingdom between Imperial and domestic issues, but at least we get an idea

of the views of the electorate in Great Britain on some big Imperial

question, or as between Free Trade and Protection. In Ireland we get

nothing of the kind; it is impossible to say, for instance, whether

Ireland is in favour of Tariff Reform or not; and the votes of the great

majority of its representatives in the House of Commons are usually given,

not with reference to the views of their constituents on the question

under discussion, but solely in relation to the attainment of Home Rule.

Now, this attitude of the Nationalists is evidently adopted because Irish

domestic concerns are decided in the House of Commons by men who are not

Irish representatives; and it may be remarked that Scotsmen, and even, to

some extent, Englishmen, are also liable to have their wishes on purely

domestic affairs over-ridden by the representatives of the other

countries, but that they do not, on that account, subordinate everything

else to the effort to release themselves from this anomaly.

But, apart from the consideration, as we have seen above, that the Irish

have been the principal sufferers, the Irish electorate are entitled, if

this is a free country, to choose the issue which shall be put forward,

and we should sympathise with them when they ask to be allowed to manage

their domestic affairs without interference, in accordance with the

principles of representative government. It is immaterial how far the

Irish Nationalists have actually been able to get their own way in the

House of Commons, for their efforts have usually been in vain until after

a lawless agitation in Ireland, which, as a means of securing redress for

grievances, is as demoralising to the legislator as to the elector. And

when the law for which the Irish have asked has been passed without any

such outside pressure, it is evident that the votes of the majority of the

Irish representatives would have been useless unless sufficient English

and Scottish Members had been willing to fall in with their wishes. Every

Irish Nationalist knows, therefore, that a majority of the Irish

representatives is by itself utterly unable to carry a purely Irish

measure through the House of Commons, however often it may have been

advocated, and however large may have been the Irish majorities in its

favour; and representative government cannot fail to be brought into

disrepute in Ireland, on account of its futility under existing

conditions. Moreover, if representative institutions are to work well,

there should be, so far as is possible, in every constituency supporters

and opponents of the Government on the current questions of the day, for

it is only by constant discussion and interaction that we can secure a

sound relation between Parliament and the country. But nothing of the kind

takes place in Ireland. Through their dissociation from the division into

parties that prevails in Great Britain, the bulk of the Irish people are

not informed as to the views on topics other than Home Rule of the

Liberals, Unionists, or Labour men. In the greater part of Ireland, the

Nationalist candidate is returned unopposed or is opposed only by another

Nationalist; and when this is so, the party in power, whether it be

Unionist or Liberal, is usually without any machinery by which its case is

put before the electorate. Elsewhere, in Ireland, the Unionists have their

organisation against Home Rule, and so far the Liberals are even in a

worse position, for, though they have had the supreme control of affairs

for the last six years, there are not half a dozen constituencies in

Ireland where they have any means by which they can learn the views of the

people or explain the policy of the Government. And yet Ireland, like the

rest of the United Kingdom, is supposed to live under representative

institutions! No doubt I may be reminded that the Nationalist Members are

in touch with local opinion in Ireland, and that they are the informal

allies of the Liberals; but the Nationalist attitude is concerned with

little else but Home Rule, and it is just because, in existing

circumstances, the Irish do not declare themselves, or perhaps even form

an opinion, on ordinary political issues, that our representative system

has broken down so much more severely in Ireland than in England or in

Scotland.

And thus I conclude my survey of the practical working of the Act of

Union. I have shown that the domestic affairs of the three countries are,

in continuance of what was done before the Union of the Parliaments, or as

the result of subsequent developments, ordered in many respects separately

for England, Scotland, and Ireland, and that there is no question in any

quarter of the elimination of these separate arrangements. But they have

led, as has been further demonstrated, to many difficulties in connection

with our system of Parliamentary government, and it is only by the

sub-division of the responsibilities between two or more Parliaments that

such difficulties can satisfactorily be overcome. We have, therefore,

valid grounds for the advocacy of Home Rule, apart from the particular

claims of Ireland, though they, of course, serve to strengthen the

argument; and, in considering what form the proposals should take, we

cannot do better than study carefully how far England, Scotland, and

Ireland are now governed in common and how far each of the three countries

is governed separately. For the subjects in which there is now separate

treatment are those which would be transferred under Home Rule with the

smallest breach of continuity, or rather, in the natural course of our

constitutional evolution.

(III) Colonial Forms Of Home Rule. BY SIR ALFRED MOND, BART., M.P.

One of the most important elements in the problem of Home Rule must be the

relation between the spheres of legislation to be retained by the existing

Parliament, and those to be allocated to the subordinate Irish

Legislature. Such demarcation will be applied later to the other local

Parliaments which may be created for England, Scotland and Wales. The

creation of subordinate legislatures, together with the retention of a

central Parliament, must necessarily lead to the study of federal systems

already in existence in the Empire, and of the mutual relations of similar

bodies within such federations. It is true that a certain influential

school of political thought is rather disposed to compare the position of

the future Irish Parliament to that of the Dominion Parliaments in their

relations with the Parliament at Westminster. The effort, however, to draw

an analogy between Ireland in her relations with Great Britain, and the

relations existing between the three Dominions and the United Kingdom is

most misleading. The difference between those dominions and Ireland is

indeed far more striking than the similarity, whether they are compared

either from the point of view of area, of present and future population,

or of geographical position. The narrowness of the strip of sea that

separates Ireland from Great Britain places it from a military and naval

standpoint in a very different position to that of Canada, Australia, or

South Africa. Whereas the great distance at which these Dominions are

situated imposes upon them the necessity of creating their own defensive

forces, a separate Irish Navy or Army would have no _raison d’etre_.

Again, not only the distance but the different environment and climate of

these Dominions, and, particularly in the cases of Canada and South

Africa, their greater non-British population, naturally promote the

development of a sense of national entity and therefore of a desire for a

greater measure of national independence than is felt or demanded by

Ireland, in spite of her strong national sentiment. Supposing for

argument’s sake, that the whole of the Canadian, Australian, and South

African Dominions formed geographically with Great Britain one continuous

territory such as the United States of America, it is clear that there

would have been no call for granting the various Dominions the almost

sovereign powers which they now enjoy. What would most probably arise in

such a hypothetical case would be a single federal complex, comprising a

central authority or parliament and a large number of state legislatures.

As a matter of fact the form of government of these various Dominions and

their relations to the Mother Country are largely a geographical accident.

It is impossible to conceive a system of “Home Rule all round” in which

England, Scotland, Wales and Ireland would have the same positions and

powers as Canada, Australia and South Africa, and would maintain the same

relations towards each other as all three Dominions now occupy towards the

United Kingdom. Nor could such an idea be entertained by any one framing a

constitution, intended to be the commencement of the federalisation, first

of the United Kingdom and afterwards in due time of the British Empire,

when circumstances and the growth of public opinion render it possible to

secure the representation of the Dominions in an expanded Imperial

Parliament.

In a truly federal system such as those of Canada and Australia, the

citizens who elect representatives direct to the Federal Parliament to

deal with the broader issues and interests of the Commonwealth, are

naturally fully represented. If the Irish Legislature is to be precluded

from dealing with Imperial matters, it is obviously only just that the

Irish people, as citizens of the Empire, should send a proportionate

number of representatives to the Imperial Parliament to express their

views on Imperial subjects, and, under a perfect federal system, the

expression of their views would be confined to Imperial subjects. This

would consequently necessitate the continued presence of a certain number

of Irish members at Westminster. In view of the fact that the “in and out”

system, which caused so much criticism of Mr. Gladstone’s Bill, has been

in force for over forty years in the Hungarian Parliament at Budapest, in

which the Croatian representatives are only entitled to vote on matters

affecting the whole Kingdom, while precluded from voting on those

affecting Hungary alone, it is evident that the practical inconvenience

cannot be anything like so great as has been imagined. But whatever

inconvenience might result to the Government from the presence of Irish

representatives in such circumstances, it certainly cannot be allowed to

outweigh the injustice of leaving such a large section of the British

electorate, as is the Irish people, unrepresented in a chamber which deals

with matters that may very seriously affect their interests. Mr. Asquith’s

hint at the possibility of such a change in the Standing Orders of the

House of Commons as will distribute legislative business between English

and Scotch Standing Committees, suggests a method of combining the

retention of the Irish members at Westminster, with their exclusion from

participation in other than Imperial matters.

Of course in framing a new constitution to meet at once the legitimate

national aspirations of the Irish people and the requirements of the

Imperial power, we cannot pedantically follow any existing model or

precedent, or drive any analogy too far. It is not intended, by drawing

attention to the fact that the local rather than the Dominion Legislatures

constitute the better models, in any way to impair the prestige of the

future Irish Parliament, or to lessen the readiness to meet all reasonable

demands of the Irish party and people, or to withhold powers necessary to

make self-government a success. But it is essential to bear in mind that

the primary condition of permanent success is a measure that will work

with the least possible friction on both sides while satisfying legitimate

Irish demands.

With these points in view, it is therefore proposed to examine shortly the

constitutions of the three dominions already referred to, with the object

of showing what are the powers reserved by them for the Federal

Governments and what are those attributed to the different States

comprised in the federations, in order to deduce from them some parallel

applicable to the case of Ireland—of course, as already indicated, with

such modifications as may be rendered necessary by special circumstances.

It will be well to begin with the Canadian Constitution as the oldest,

dealing afterwards with the Constitutions of the Australian Commonwealth

(1900) and of the South African Union (1909).

The British North America Act, 1867, expressly sets forth the classes of

subjects which can be dealt with by the Federal Parliament “for greater

certainty, but not so as to restrict the generality of the foregoing terms

of this section,” that is to say, the liberty given to the Central

Parliament “to make laws for the peace, order and good government of

Canada, in relation to all matters not coming within the classes of

subjects by this Act assigned exclusively to the legislatures of the

provinces.” Thus, in Canada, the “residuary” or unspecified classes of

subjects are reserved for the Central or Federal Parliament.

Section 92 provides that in each province the legislature may exclusively

make laws on the following subjects:

The amendment of the Constitution of the Province, except as

regards the office of Lieutenant-Governor;

Direct taxation within the province for provincial purposes;

The borrowing of money on the sole credit of the province;

The establishment and tenure of provincial offices, and the

appointment and payment of provincial officers;

The management and sale of the public lands;

The establishment, maintenance and management of prisons,

hospitals, asylums, charities, in and for the province;

Municipal institutions in the province;

Shop, saloon, tavern, auctioneer, and other licences, for

provincial, local or municipal purposes.

Local works and undertakings, excepting:—

“(_a_) Lines of steam or other ships, railways, canals,

telegraphs, and other works and undertakings connecting the

province with any other or others of the provinces, or extending

beyond the limits of the province.

“(_b_) Lines of steam ships between the province and any British

or foreign country.

“(_c_) Such works as, although wholly situate within the province,

are before or after their execution declared by the Parliament of

Canada to be for the general advantage of Canada or for the

advantage of two or more of the provinces.”

The incorporation of companies with provincial objects; marriage

and property and civil rights in the province;

The administration of justice in the province, civil and criminal

jurisdiction, together with the imposition of punishment by fine,

penalty, or imprisonment, and generally all matters of a merely

local or private nature.

Subsequent paragraphs provide that the provincial legislatures may

exclusively make laws in relation to education, provide for uniformity of

laws in certain provinces, and also deal with agriculture and immigration,

with the proviso, however, that such laws shall have effect only so long

and as far as they are not repugnant to any Act of the Canadian

Parliament.

In the case of the Australian Commonwealth, it is the powers of the

Central Parliament that are strictly defined and restricted, contrary to

the course followed in the Canadian Constitution. As an indication of the

powers left to the State Parliaments it may be well to specify the powers

of the Central Parliament as set forth in the Constitution Act, Paragraphs

51 and 52:

Trade and commerce with other countries, and among the States;

taxation; bounties; borrowing money; postal, telegraphic,

telephonic, and other like services; naval and military defence;

lighthouses, &c.; astronomical and meteorological observations;

quarantine, fisheries, census and statistics; currency, coinage

and legal tender; banking, other than State banking; insurance;

weights and measures; bills of exchange and promissory notes;

bankruptcy and insolvency; copyright, patents and trade marks;

naturalisation and aliens; foreign corporations, and trading or

financial corporations within the Commonwealth; marriage and

divorce; invalid and old-age pensions; the service and execution

throughout the Commonwealth of the civil and criminal process, and

the judgments of the courts of the States; the recognition

throughout the Commonwealth of the laws and judicial proceedings

of the States; immigration and emigration; the influx of

criminals; external affairs; control of railways for naval and

military transport; the acquisition, with the consent of a State,

of railways of the State; railway construction and extension;

conciliation and arbitration in industrial disputes extending

beyond the limits of any State; etc.

Paragraph 107 provides that every power of the Parliament of a Colony

shall, unless exclusively vested in the Parliament of the Commonwealth, or

withdrawn from the Parliament of the State, continue as before. Paragraph

109 stipulates, however, that when a State law is inconsistent with the

law of the Commonwealth, the latter shall prevail, and the former shall,

to the extent of the inconsistency, be invalid.

Certain powers specifically granted to the State Parliaments are set forth

in the following paragraphs, which are of sufficient interest to be cited

textually:

“112. After uniform duties of customs have been imposed, a State

may levy on imports or exports, or on goods passing into or out of

the State, such charges as may be necessary for executing the

inspection laws of the State; but the net produce of all charges

so levied shall be for the use of the Commonwealth; and any such

inspection laws may be annulled by the Parliament of the

Commonwealth.

“113. All fermented, distilled, or other intoxicating liquids

passing into any State or remaining therein for use, consumption,

sale, or storage, shall be subject to the laws of the State as if

such liquids had been produced in the State.

“114. A State shall not, without the consent of the Parliament of

the Commonwealth, raise or maintain any naval or military force,

or impose any tax on property of any kind belonging to the

Commonwealth, nor shall the Commonwealth impose any tax on

property of any kind belonging to a State.

“115. A State shall not coin money, nor make anything but gold and

silver coin a legal tender in payment of debts.

“117. A subject of the Queen, resident in any State, shall not be

subject in any other State to any disability or discrimination

which would not be equally applicable to him if he were a subject

of the Queen resident in such other State.

“118. Full faith and credit shall be given, throughout the

Commonwealth to the laws, the Public Acts and records, and the

judicial proceedings of every State.

“120. Every State shall make provision for the detention in its

prisons of persons accused or convicted of offences against the

laws of the Commonwealth, and for the punishment of persons

convicted of such offences, and the Parliament of the Commonwealth

may make laws to give effect to this provision.”

In South Africa where, owing to local circumstances, a purely federal

system was held to be inappropriate, the powers granted to the subordinate

provincial legislatures are much more restricted than in Australia and

Canada. In the “South Africa Act, 1909,” Paragraph 59 simply provides that

the (Central) “Parliament shall have full power to make laws for the

peace, order, and good government of the union,” a formula similar to

those used in the Canadian and Australian Constitutions as also in the

Gladstonian Home Rule Bills. On the other hand, several paragraphs in

Section 5 dealing with the provinces almost recall the centralising

tendencies of France, such as for instance, the provision that the

Governor-General in Council is to appoint the administrator, or Chief

Executive Officer, of the province, in whose name all executive acts

relating to provincial affairs shall be done—an official who presents a

certain resemblance to the French Prefect.

The powers reserved to the Executive Committee of the Provincial Council,

presided over by the Administrator, comprise:

Taxation within the province;

The borrowing of money on its sole credit;

Education, other than higher education;

Agriculture;

Hospitals, charitable, municipal and other local institutions;

Local works and undertakings within the province, other than

railways and harbours and bridges connecting two provinces;

The imposition of fines, penalties, or imprisonment for enforcing

provincial laws and generally all matters which, in the opinion of

the Governor-General in Council, are of a merely local or private

nature in the province.

Taking the Canadian Constitution as the most workable model, let us

consider in the light of that instrument what powers it would be

reasonable to hand over to an Irish Legislature. There are two ways of

proceeding in framing any such Constitution. One is to grant general

powers with specific limitations, the course followed by Mr. Gladstone in

his two Home Rule Bills. The second is to specify the powers to be given

to the subordinate Legislature, outside of which it cannot act. Good

reasons may be advanced for both methods; but in view of the difficulty of

accurately foreseeing all the needs and necessities to be provided for by

a new legislative body and the great risk of overlooking important

matters, the inclusion of which later on might encounter very serious

obstacles, the method of giving general powers with exceptions and

restrictions specified in the Act seems the more workmanlike of the two.

If the latter course be adopted, following the precedent created in the

Bills of 1886 and 1893, the new Legislature will acquire general powers to

make the necessary laws for the peace, order and good government of

Ireland. The powers thus granted in general terms will of course be very

extensive, comprising, as they must, the liberty of raising taxes,

borrowing money, and dealing with education, public worship, property and

civil rights, land, factory and company laws, the administration of

justice, licensing, etc., etc.

In connection with taxation the important question arises whether the

power should be granted to any unit of a federal state to impose Customs

Duties. In the models we have referred to no local legislature is entitled

to deal with Customs or Tariffs. Indeed all three Constitutions expressly

provide that there shall be free trade within the limits of the

federation. It is inconceivable that a British Parliament should ever

grant, or that the Irish representatives should ever ask for, powers which

would enable Ireland to set up a radically different fiscal system to that

adopted by the rest of the United Kingdom. Thus the precedents established

by the Constitutions of the different Dominions would undoubtedly have to

be followed. There is a further question to consider, namely, how and to

what extent it will be possible to reconcile any conflict that may arise

between the powers exercised by the central and local legislatures in

collecting taxes. For instance is the income tax to be retained as a

purely Imperial tax, or is the Irish Parliament to have power to levy,

either in substitution for it or in addition to it, an income tax of its

own? The same question arises with regard to excise duties. As no income

tax is imposed in any of the three self-governing Dominions referred to,

their constitutions throw no light on this point. Nor does the

Constitution of the German Empire, as there the income tax is a state and

not an Imperial tax. A solution of this problem might be possible on two

lines. One by allowing the Irish Government to impose its own income tax,

paying a fixed contingent to the British Treasury. The second method would

be to allow the Irish Parliament to make additions to the British tax, in

the way that German municipalities are allowed to make additions to the

State income tax. Something of this kind seems contemplated under the

Government Bill.

In the Dominions licenses for the sale of alcoholic liquors, excise

duties, and land taxes are all imposed by the States. They might also be

very well made State, that is to say Irish, taxes in Ireland. The future

financial relations between Ireland and Great Britain, however, are dealt

with in another chapter.

In considering what subjects would naturally be withdrawn from the

jurisdiction of the future Irish Legislature, as of other subsequent

British local legislatures, it will be well to see which of these

exclusions are common to the Canadian and Australian Constitutions. These

are: trade and commerce, indirect taxation, borrowing money, postal,

telegraphic, and telephonic services, naval and military defence,

lighthouses, etc., quarantine, fisheries, census and statistics, currency,

coinage and legal tender, banking, other than State banking, weights and

measures, bills of exchange and promissory notes, bankruptcy and

insolvency, copyrights patents and trade marks, naturalization and aliens,

marriage and divorce. There are also a few differences in the matter of

exclusions between the two Dominions. For instance, Canada’s list of

reservations for the Central Parliament begins with “The Public Debt and

Property,” for which there is no exactly corresponding heading in the

Australian Constitution. This Canadian list also includes navigation and

shipping, savings banks, the criminal law and penitentiaries. On the other

hand the subjects reserved for the Central Parliament in Australia,

comprise, _inter alia_, bounties, insurance, other than State insurance,

trading or financial corporations, invalid and old-age pensions,

immigration and emigration, “external affairs,” control of railways for

military and naval transport purposes, railway construction and extension,

industrial conciliation and arbitration, etc.

The essential exclusions from the jurisdiction of State Legislatures are,

of course, national defence, treaty making powers, laws affecting foreign

trade and shipping, lighthouses, coinage and legal tender, trade marks,

patents and copyrights to which might very well be added factory

legislation, company legislation and the laws affecting negotiable

instruments. It would seem a pity to break up the legislation on subjects

that are less of local than of general interest, thus adding to their

legal difficulties by diversity of legislation. As regards factory laws

the question of the position under international conventions of an Irish

Legislature demands specially careful consideration. There are, at

present, two international conventions relating to factory laws, namely,

those concerning the prohibition of white phosphorus in match

manufacturing, and night work by women in industrial occupations. It is

likely that they will shortly be followed by others regulating the hours

of work of women and young persons and prohibiting night work by boys

under eighteen. It is desirable that the advantages of such conventions

should be retained for the Irish industrial worker.

The justification of most of the exclusions just enumerated is

sufficiently obvious and their enforcement in most of the Dominion

Constitutions show that by common consent they have been accepted as

reasonable, as for instance those dealing with national defence,

treaty-making, peace and war, and the rights and privileges of the Crown.

There remains, perhaps the most important point of all, namely the control

or power of restriction to be exercised by the Imperial Parliament over

the legislation of the new Irish Legislature by means of a veto. The

Canadian Constitution confers upon the Dominion Government the same powers

of disallowance of Acts of the provincial legislatures as belonged to the

Imperial Government prior to 1867. According to Sir John Bourinot

(“Parliamentary Procedure”), the Minister of Justice in 1868, laid down

certain principles of procedure which have been generally followed up to

the present time. On receipt of the Acts passed in any province they are

immediately referred to the Minister of Justice who reports upon them. If

the Minister considers an Act free from objection and his report is

approved by the Governor-General in Council, such approval is forthwith

communicated to the Provincial Government. The Minister of Justice makes

separate reports on those Acts which he may consider: (1) as being

altogether illegal or unconstitutional; (2) as illegal or unconstitutional

in part; (3) as, in case of concurrent legislation, clashing with the

legislation of the general Parliament; (4) as affecting the interests of

the Dominion generally. It has also been the practice (adds Sir John

Bourinot) in the case of measures only partially defective, not to

disallow the Act in the first instance, but, if the general interest

permits such a course, to give the local government an opportunity of

considering the objections to such legislation and of remedying the

defects thereof. In his book “How Canada is Governed,” Sir John Bourinot

makes some pertinent remarks upon the method of dealing with such cases:

“The Governor in Council can within one year from its receipt

disallow an Act of a provincial legislature, and consequently

prevent it becoming law.... As a rule it is the wiser policy to

obtain an opinion from the Courts in all cases of doubt ... rather

than use a political power which is regarded with suspicion by the

provinces. The law allows such reference to the Supreme Court in

Canada.”

In Australia, where the powers of the States were established long before

the Commonwealth came into existence, there is no direct power of veto,

but in 1903 and subsequently, Acts were passed by the Commonwealth

Parliament giving the High Court jurisdiction in matters arising under the

Constitution or involving its interpretation. Thus, in the words of Mr. W.

Harrison Moore, Dean of the Faculty of Law in the University of Melbourne,

in his “Constitution of the Commonwealth of Australia,” “the Commonwealth

Government and the State Governments are in their relations independent

and not hierarchical. There is no such general supervision of the State in

the exercise of the powers belonging to it as is enjoyed by the Dominion

Government over the Provinces of Canada.... The observance by the

Commonwealth Government and the States of the limits set to their powers

is secured by the action of the courts whose judicial duties may involve

the determination of the validity of the authority under which acts are

done, whether that authority is the Crown, a subordinate legislature, or

any whatsoever save the Imperial Parliament.”

If the Canadian example be followed the Imperial Parliament will retain

powers of control of such a far reaching character over Irish legislation,

as ought to dispel the fears of timid souls who are reluctant to entrust

the Irish people with the task of working out their own destiny. The

Canadian veto has not been a dead letter, but has exercised its

restraining influence, both actively and passively, over the Provincial

Legislatures, which have naturally been averse to allowing matters to come

to a crisis necessitating its use. Further, to follow precedent, the

interpretation of the powers to be granted by the new Irish Constitution

should rest in the last resort in an appeal to the Privy Council.

With both these safeguards inserted in the Home Rule Bill much of the

objection commonly felt against the creation of an Irish Parliament, an

objection largely due to loose thinking, should disappear. It may be

argued that both in Canada and Australia disputes do occasionally occur

between the State Legislatures and the Central Parliaments as to their

respective rights. That is one of the inevitable disadvantages of a

federal regime, but, as a very distinguished Canadian statesman once said

to the writer, the counterbalancing advantages of a de-centralized system

far outweigh all such drawbacks. No student of current politics can be

blind to the fundamental fact that the amalgamating of the Parliaments of

Scotland, Ireland and England into one legislature, without at the same

time unifying the legislation of those countries, has produced a state of

congestion and overwork which cannot be permanently tolerated. In existing

circumstances neither matters affecting the whole Empire nor local

legislative needs can secure a sufficient expenditure either of energy or

time to do them justice. By partially reversing the process of unification

through a devolution of powers to local legislatures we should be

following a precedent that has proved successful in other parts of the

Empire and in foreign countries while at the same time putting our action

into harmony with the true process of evolution.

XVI.—Contemporary Ireland And The Religious Question

(I) A Catholic View. BY MONSIGNOR O’RIORDAN

It is as characteristic of those who have fallen in fortune to talk of

their wealth as it is of the consumptive to talk of their health. It is

natural. If they were conscious of having the reality they would not feel

the need of convincing others that they had it. For a like reason those

speak most of virtues and gifts who have them least. One rightly suspects

the spirit of those who keep insisting that all are intolerant who think

and act on other principles and in other ways than theirs. The word

tolerance has met the fate of other words which denote excellent things;

it has come to be misused. “Tolerance,” like “religion,” “liberty,” etc.,

has become a shibboleth, and like these it has been run to death.

When we speak of tolerance we necessarily refer to evil of some sort. In

the matter of truth or untruth we are said to tolerate what is untrue, or

what we think to be untrue. In the matter of right or wrong, we are said

to tolerate what is wrong, or what we think to be wrong. If one says that

he is tolerant of that in another which he himself believes to be true or

right, he speaks as one who does not understand what he says. It is the

same as saying that he is tolerant of his own convictions; in fact, that

he tolerates himself. One is said to be tolerant of that in another which

he thinks to be erroneous or wrong. Now, every principle which a man holds

is a law to him. He may be mistaken; his principles may be false; but

whilst he holds them as his principles he cannot under pain of

inconsistency disown them in word or deed. No man has proprietary rights

in principles. One has no right to compromise them. One may not barter

them away, may not make them the basis of a policy of give and take. To do

so would be to treat them not as principles but as mere opinions.

Principles are things to stand on, not things to play with as with pawns

on a chessboard. He who, whilst he professes some principle of belief or

conduct in religious or civil life, is ready to agree with his neighbour

in the opposite shows little regard for truth and little sense of duty. He

who for the sake of some convenience is prepared to play with his

principles has practically no principles at all. Such is one who professes

universal toleration, although no person would be more pained at being

thought an unprincipled man. It is a logical necessity for everyone to be

intolerant of principles opposed to his own. In matters of mere _opinion_

one may be, and ought to be, tolerant of the opinions of others, since in

face of those opinions he cannot claim an objective certainty for his own.

Let us illustrate this. A rationalist who denies the existence of any

higher than natural causes cannot admit any event to be miraculous. He may

ascribe it to some hypothetical natural cause, or he may have no cause to

assign; but he cannot on principle assign a supernatural cause, for the

simple reason that he ignores anything above the natural forces which come

within the sphere of experience. Thus the rationalist who claims tolerance

as his characteristic virtue is intolerant of any doctrine which supposes

the supernatural. He must be so, or he lets the ground go from under his

feet. Again, the Protestant on his principle of private judgment must be

intolerant of any doctrine which supposes an infallible authority on earth

claiming a divine commission to teach us the meaning of divinely Revealed

Truths. A Catholic who believes in a Church of divine institution, one,

visible, infallible, cannot be tolerant of a doctrine which makes

different Churches belong by equal right to Christianity, each whilst

conflicting with the others claiming Christ for its Founder. For the same

reason a Catholic cannot be tolerant of a theory which holds all religions

to be equally useful; that is, equally useless. He cannot be tolerant of

any theory which involves a denial of Catholic doctrine, since he

acknowledges an infallible authority as the source of the Catholic

doctrine which he holds. I am now and here neither asserting nor denying

any theory or any doctrine, Catholic or non-Catholic. I am only setting

forth the inconsistency implied in the toleration of principles opposed to

one’s own, whatever those principles be. Is it then irreclaimable

prejudice, or indifference to the obligation of principle, that makes some

persons throw up their arms and raise a cry of horror when they hear that

some Catholic has been excommunicated for having denied or questioned some

Article of Catholic faith? What is taken as a matter of course and of

common justice in every society and in every club in the country, namely

that one who is false to his society and unfaithful to its rules deserves

expulsion, is stigmatised as intolerance and moral tyranny in the Catholic

Church. There are certain rules in every association which a member may

not break under pain of expulsion. But a man may say what he likes, write

what he likes, do as he likes; may deny every doctrine, despise every

principle, and may nevertheless have, according to some, a right to remain

a member of the Catholic Church out of which only Romish intolerance would

drive him.

Everyone then, whatever be his religious, philosophical, political, or

social principles, must be intolerant of principles which are opposed to

his own. Tolerance, however, claims a place in matters of opinion. But

must not one think another’s opinions false if they are opposed to his

own? Certainly; but, being only opinions, one has no right to claim a

monopoly of certainty for one’s own as against those of others. Opinions

have no claim to the privilege of principles. And what is true in theory

of opinions holds in practice in matters of principle. One cannot, it is

true, be tolerant of principles opposed to his own; but others must not

suffer at his hands because they own principles which are not his.

Everyone must have credit for honesty, since one cannot fathom the depths

of another’s conscience. The Catholic Church, not to speak of its

individual members, disowns such a pretension as that; _Ecclesia non

judicat de internis_ is a maxim in Catholic theology. Thus, Catholic

teaching, whilst it binds Catholics to be intolerant of principles and

doctrines which it condemns, obliges them also to be tolerant of those who

hold those principles and doctrines for the sake of the sincerity which it

presumes in those who hold them. If we compare this tolerance, imposed as

a duty by Catholic teaching, with the unlimited tolerance professed by

some who assert the autonomy of individual reason, we shall find a

contrast between, for instance, the noble tolerance of St. Francis de

Sales and the bigotry of Voltaire. They were fellow countrymen. Each had

great natural gifts, mental acquirements, and uncommon literary power. St.

Francis lived a century before Voltaire, and, therefore, nearer to what

would now be called those traditions of bigotry from which Voltaire helped

so much to set us free. Yet the latter let his pen splutter on all who

dared to differ from him; the former in all his controversies dressed his

arguments with honey instead of vinegar. That charity which disposes one

to see good faith and honesty of purpose in persons in spite of their

errors, is the only true source whence the spirit of toleration must flow

into civil society. Toleration coming from any other source can give no

guarantee of permanence; for it begins with expediency, and ends with it.

But the toleration which separates a man’s sincerity from his possible

errors, and which in civil life ignores the latter for the sake of the

former, is founded on principle, and is above expediency or the changing

combination of human affairs.

The sincerity of a man who professes tolerance of principles which he

believes to be false is to be suspected; he should be taken as one who is

practically indifferent to truth or error. One can rely on the fidelity of

him who professes tolerance of others, in spite of some personal views of

theirs which he abhors, because of the sincerity with which, as he

presumes, they entertain those views. But if they should so obtrude those

views into public life as to affect the rights of him who repudiates them,

it becomes another matter. That would be an aggression on the civil rights

of others; and no person should let himself be made a victim in the name

of toleration.

Now, it is a significant fact that Catholic Maryland, before American

Independence came, was the one State in America in which no person had to

suffer civil disabilities for conscience sake. Members of Protestant sects

who had to fly from the intolerance of more powerful Protestant sects in

New England States always found toleration and a home there. Bancroft, the

Protestant historian of the United States, writes of Maryland:

“Its history is the history of benevolence, gratitude, and

toleration. The Catholics who were oppressed by the laws of

England were sure to find a peaceful asylum in the quiet harbours

of the Chesapeake, and there, too, Protestants were sheltered from

Protestant intolerance.”

It is an equally significant fact that later on the non-Catholics of

Maryland, in the day of their power, placed grievous disabilities on the

children of those Catholics who had given their exiled fathers a refuge in

their hour of need.

I will now consider how far those principles which I have set forth have

found application in Ireland. I know no country where tolerance and

intolerance are more talked of than there. It is sometimes good to talk

tolerance, but it is always better to practise it. The word is not heard

so much from Irish Catholics. Their relation to it is that they are

constantly engaged in defending themselves from charges of intolerance

poured out upon them from the vantage ground of ascendency. I doubt

whether it is worth while to assure our accusers that those charges are

not deserved. Those who call us intolerant in spite of our conduct will

discard our assurance in spite of our word. He who is in the habit of

calling his neighbour intolerant is not likely to trust him as truthful.

There are in every race and class individuals of an intolerant spirit. It

has always been so, and will always be so. Those exceptions will remain in

spite of the highest principles of a religion, a race, or a class. The

spirit of intolerance will be found in individuals within a class, as well

as between classes; and in actual life society subdivides itself down to

the units. Religion has been for the past few centuries the great cleavage

line along which the spirit of intolerance is supposed to play in the

distribution of privileges and power in civil life in Ireland. How are we

to determine on which side tolerance and intolerance lie? Not certainly by

witnesses on either side giving testimony in their own favour. We had

better let facts speak then; or, if we accept the evidence of persons, we

should hear what they have to say only of those of the other side.

The Synod of Kilkenny met in May, 1642. It was held by the Catholic

Bishops of Ireland in connection with the Kilkenny Confederation. That

Confederation was National and Catholic; part of its purpose was to

support King Charles against those who sought to dethrone him. He did not

personally deserve much sympathy from the Irish Catholics; nevertheless,

who were the Loyalists then? Ireland was in a state of war, and the rebels

were not the Catholics. Now the 18th Decree of the Synod of Kilkenny is as

follows:

“Wee ordaine and decree that all and every such as from the

beginning of this present warre have invaded the possessions or

goods, as well moveable as unmoveable, spirituall or temporal, of

any Catholic whether Irish or English, _or also of any Irish

Protestant_ being not adversaries of this cause, and doe detaine

any such goods, shall be excommunicated, as by this present Decree

wee doe excommunicate them, if admonished they do not amend, &c.”

That Decree speaks for itself; it protects Protestants equally with

Catholics. The “Lawes and Orders of Warre,” issued by Castlehaven the

following year, and the conduct of the Confederates throughout, show the

same spirit of toleration which is expressed in the Decree of the Bishops.

Another test of tolerance came with the restored power of Irish Catholics

half a century later. How did they use their opportunity? Lecky knew it as

well as anyone of his time; he was moreover out of sympathy with the

religious and national ideals of the Irish Catholics. Now Lecky, referring

to deeds of violence which took place in Ireland, writes (“History of

Ireland in the Eighteenth Century,” Vol. I., pp. 408, 409):

“Whoever will examine these episodes with impartiality may easily

convince himself that their connection with religion has, in most

cases, been superficial. Religious cries have been sometimes

raised, religious enthusiasm has been often appealed to in the

agony of the struggle; but the real causes have been conflicts of

races and classes, the struggle of a nationality against

annihilation, the invasion of property in land, or the pressure of

extreme poverty. Amongst the Catholics, at least, religious

intolerance has not been a prevailing vice, and those who have

studied closely the history and character of the Irish people can

hardly fail to be struck with the deep respect for sincere

religion in every form which they have commonly evinced.... In

spite of the fearful calamities that followed the Reformation, it

is a memorable fact that not a single Protestant suffered for his

religion in Ireland during all the period of the Marian

persecution in England. The treatment of Bedell during the

outbreak of 1641, and the Act establishing liberty of conscience

passed by the Irish Parliament of 1689 in the full flush of the

brief Catholic ascendency under James II., exhibit very remarkably

this aspect of the Irish character.”

Referring to that Catholic Parliament of Ireland, he says (Vol. I., p.

117):

“The members of the House of Commons were almost all new men,

completely inexperienced in public business, and animated by the

resentment of bitter wrongs. Many of them were sons of some of the

3,000 proprietors who, without trial and without compensation, had

been deprived by the Act of Settlement of the estates of their

ancestors. To all of them the confiscations of Ulster, the fraud

of Strafford, the long train of calamities were recent and vivid

events. Old men were still living who might have remembered them

all, and there was probably scarcely a man in the Irish Parliament

of 1689 who had not been deeply injured by them in his fortunes or

his family. It will hardly appear surprising to candid men that a

Parliament so constituted, and called together amidst the

excitement of a civil war, should have displayed much violence,

much disregard for vested interests. Its measures, indeed, were

not all criminal. By one Act, which was far in advance of the age,

it established perfect religious liberty in Ireland, &c.”

From that time till our own the Catholics of Ireland have had little

opportunity of showing whether they were tolerant or otherwise. During the

long and dreary meantime the problem before them was not what sort of

civil life they should live, but whether or how they could manage to live

at all.

So late as 1759, Lord Chancellor Bowes, in giving judgment in a famous

trial in Dublin, declared that “The law did not suppose a papist to exist

in Ireland.” I have no desire to recall the story of how toleration fared

in Ireland down to recent times. It is not necessary, and it is a

disagreeable recollection. He would be very bold or very credulous who

would think of doubting or denying what that history has been. I take up

“Thom’s Almanac” of half a century ago, and I find that so late as that

time the public offices were occupied almost exclusively by non-Catholics,

from the Lord-Lieutenancy down to the Clerkship of Petty Sessions; and I

think that it was so down to the office of the rural process-server. How

did it come to pass that Catholics were kept outside, and that

non-Catholics got within? Surely not that Catholics willingly yielded all

public positions to their neighbours! The arrangement was therefore made

by the other side. And what was the reason of that monopoly? Surely not

that no Catholic was capable of any civil position except that of paying

rates and taxes to the Crown and rent to the landlord. The exclusion was

clearly the political penalty which Catholicism had to pay for its

principles; the monopoly was the political premium which was awarded to

those of the other side.

The Catholics of Ireland have been gradually working their way towards

civil equality. But every step has been disputed. Every claim for civil

equality made by those who formed the vast majority of the population and

who bore the burden of civil duties was met with a charge of intolerance,

and with a protest against intruding religion into the affairs of civil

life. That is to say, those who had already secured for themselves

political and social privileges through religious exclusiveness raised the

cry of religious exclusiveness against the vast majority of the population

for claiming their just share of civil rights as they bore their share of

civil duties. Catholics had either to remain resigned to their condition,

or to protest against their faith being made a bar between them and civil

justice. In doing so they have not sought to intrude religion into purely

civil affairs; they rather have sought to extrude religious intolerance

which, having taken up its abode, slammed the door in their face. Thus

when Catholics claimed their civil rights it was called religious

exclusiveness; when their neighbours were privileged by religious

exclusiveness it was called civil rights.

(II) Catholic Tolerance in Practice.

Just a century ago Wm. Parnell, an Irish Protestant who knew Irish

Catholics and their history well, wrote that “The Irish Roman Catholics

are the only sect that ever resumed power without exercising vengeance.”

Let us see if he was a true prophet as well as a true historian. When he

wrote his “Historical Apology of the Irish Catholics” they were helpless,

and almost hopeless. During the past eighty years they have been gradually

regaining instalments of their civil rights. Their numerical strength

could, in nearly every corner of the country, use those rights which they

already have as an instrument wherewith to avenge the past. Have they, in

fact, used their power thus?

For the sake of saving space I pass over Government and other such

nominations. A better test of tolerance and intolerance is to be found in

the statistics of public appointments to responsible positions which are

elective. We get in that way a better key to the popular feeling.

Now, in recent centuries, and till 1842, Dublin was not allowed to have a

Catholic Lord Mayor. It elected O’Connell at its first opportunity. And

were the Protestant citizens ostracized henceforth? Since then it has had

23 Protestant Mayors and 38 Protestant Sheriffs. At present, its City

Marshal, its City Surveyor and his assistant, Superintendent Electrical

Engineer and four assistants, Drainage Engineer and two assistants,

Superintendent Medical Officer of Health, Veterinary Inspector, Collector

of Market Dues, and several other important offices are entrusted to

non-Catholics. And the Catholics form the vast majority of the population.

In Belfast, the non-Catholics are about twice the number of the Catholics.

The Corporation has never had a Catholic Mayor. Until a few years ago,

when the City wards were re-distributed by order of Parliament, there was

no Catholic Member of the Corporation. There are about 440 salaried

officials, of whom about 10 are Catholics; and that these hold no office

of importance may be seen at once in the fact that their combined salaries

do not amount to more than £800 a year; whilst the Corporation pays in

salaries about £70,000 a year. The anomaly is felt; and the apology made

for it is that the Catholics hold offices quite in proportion to the rates

they pay. It is implied that the Catholics are poor and pay little rates.

The apology is not more creditable than the anomaly it is made to explain.

It appears to be the custom in Belfast for the landlords to pay rates for

the houses rented from them; the tenants thus pay rates in their rents.

That practice nullifies the apology.

I pass now to the Counties. Co. Cork has a population of 403,000; of which

365,000 are Catholics, and 38,000 are non-Catholics. Of the salaried

officials in the County, 151 are Catholics and 40 are non-Catholics.

Co. Tipperary has a population of 160,500; of which 151,000 are Catholics,

and 9,500 are non-Catholics. There are 60 salaried officials, of whom 43

are Catholics and 17 are non-Catholics.

Co. Kerry has a population of 165,000; of which 160,000 are Catholics, and

5,000 are non-Catholics. There are 112 salaried officials, of whom 93 are

Catholics and 19 are non-Catholics.

Co. Clare has a population of 112,000; of which 110,000 are Catholics, and

2,000 are Protestants. There are 68 salaried officials, of whom 62 are

Catholics and 6 are Protestants.

So much for the South; let us pass to the North.

Co. Antrim has a population of 196,000; of which 40,000 are Catholics and

156,000 are non-Catholics. There are 65 salaried officials, of whom 5 are

Catholics, and 60 are non-Catholics.

Co. Armagh has a population of 124,000; of which 56,000 are Catholics, and

68,000 are non-Catholics. There are 50 salaried officials, of whom 3 are

Catholics and 47 are non-Catholics.

Co. Tyrone has a population of 150,000; of which 82,000 are Catholics, and

68,000 are non-Catholics. There are 52 salaried officials, of whom 5 are

Catholics, and 47 are non-Catholics.

Co. Fermanagh has a population of 65,000; of which 36,000 are Catholics

and 29,000 are non-Catholics. There are 75 salaried officials, of whom 17

are Catholics and 58 are non-Catholics. It will be observed also that in

those counties supposed to be Protestant, the Catholic population of

Tyrone, Armagh, and Fermanagh is 174,000, whilst the Protestant population

is only 165,000. In Co. Antrim only, the Protestants are in a vast

majority. And in Ballymoney, Antrim, Portrush, and some other towns of

that county, there is not 1 Catholic in any elective body. On the other

hand, I find that in Clonmel, Co. Tipperary, where the Protestants are to

the Catholics in the proportion of 1:9 of the population, they are in the

proportion of 1:4 in the Borough Council. In Kinsale, Co. Cork, where the

Protestants bear an extremely small proportion to the Catholics, they are

as 1:4 in the Borough Council.

Nine years ago, through much trouble and correspondence, I made an inquiry

into the provision made in Irish workhouses for the religious interests of

their Protestant paupers. I made an analysis of the results, some of which

I quote here from the 18th Chapter of “Catholicity and Progress in

Ireland” (pp. 346-350).

“In 1882 there were 163 workhouses in Ireland; but some have

disappeared, or have been amalgamated since then. At present there

are 48 of these in which there is _usually no Protestant_ inmate.

The Protestant Minister—

In 7 of these receives no salary.

In 1, a salary of £4 a year for attending to nobody.

In 5, £5, ditto

In 2, £6

In 17, £10

In 2, £12

In 4, £15

In 5, £20

In 4, £25

In 1, £30

There are 25 workhouses with only _one_ Protestant pauper in each, and the

Protestant chaplains receive in each £21 a year on an average. There are

12 workhouses with only _two_ Protestant paupers in each on an average:

there is a Protestant chaplain for each; they receive on an average £21 a

year. There are 12 workhouses with only _three_ Protestant paupers in each

on an average. Each has a Protestant chaplain: they receive on an average

£30 a year. There are 5 workhouses with only _four_ Protestant paupers in

each on an average: their Protestant chaplains receive an average salary

of £20 a year. There are 5 workhouses with only _five_ Protestant paupers

in each on an average: their Protestant chaplains receive an average

salary of £33 a year. There are 7 workhouses with only _six_ Protestant

paupers in each on an average: their Protestant chaplains receive salaries

of £25 a year on an average. There is 1 workhouse with _seven_ Protestant

paupers on an average: the Protestant chaplain receives £30 a year. There

are 2 workhouses with _eight_ Protestant paupers in each on an average: in

1 of these the Protestant chaplain gets £25 a year, in the other £30. In

all those workhouses I have named there are 194 Protestant paupers on an

average; and the Protestant chaplains receive a combined salary of £2,000

a year for attending them. Now nearly all the Guardians of those

workhouses are Catholics; those who pay the poor rates are nearly all

Catholics.

I do not write these facts in complaint: rather with pride. I give them as

evidence of the sort of religious “intolerance” which is practised by

Irish Catholics on those few Protestant paupers; who indeed are so few

that their having to be in a workhouse at all is not creditable to the

wealthy Protestants of Ireland. The money spent in the vain attempt to

proselytize a certain degraded remnant of the Catholic poor, if spent on

those few Protestant paupers, would make workhouse life unnecessary for

them.

(III) The Papal Decrees.

A great noise has been made about the _Ne temere_ Decree, and the recent

_Motu proprio_. They have been used to illustrate a phase of Catholic

“intolerance” which is supposed to constitute a constant danger to

society. I hope to make plain that those who have raised the cry have been

shouting into space, and that, moreover, they have been throwing stones

out of glass houses. Those laws have been made for Catholics only;

Catholics only are bound by them; therefore only they have a right to

protest if there be any cause of complaint. Or are we to understand that

Catholics are not free to have their own religious rules and usages

without the approval of outsiders? It will be answered: Certainly, but

this _Ne temere_ Decree might affect Protestants also. How? Well, it

ordains that unless Catholics get married before an authorised priest the

marriage is null; they are not married. Hence, if a Catholic and a

Protestant attempt to get married before a parson or a registrar, as the

law of the land allows, there is no marriage in the eyes of the Catholic

Church, and the Catholic party is bound in conscience to disown it. That

is what has been said; but it is not correct. What the Catholic party

would be bound in conscience to do in such a case is to set things right

by making it a valid marriage. But what if the parties will not comply

with the _Ne temere_ law? Then they go their own way, and the Catholic

Church has no more to say to them. But if the Catholic party, getting

conscience-stricken, should determine to disown it as a marriage, will not

the Protestant party be the sole sufferer? Not at all; because the

Protestant party can appeal to the law of the land for conjugal rights,

since in the eyes of the law the marriage is valid; and an attempt by the

Catholic party to contract marriage with anyone else would be punished as

bigamy. On the other hand, if the Protestant party should for any reason

determine to disown it as a marriage, the Catholic party cannot in

conscience appeal to the law of the land for conjugal rights; because

according to the Catholic conscience there are no conjugal rights, since

there is no marriage. It should be observed that, also in the case of two

Catholics, there is no marriage if they attempt to get married before any

other priest than the authorized priest. The _Ne temere_ Decree was meant

for Catholics only. It was not at all meant for Protestants, and it can

only affect a Protestant through a Catholic. Now, the Catholic Church does

not wish a Protestant to marry a Catholic. Quite otherwise. In fact,

Catholics are forbidden to marry Protestants without a special permission,

which is not given without good cause assigned. But if any Protestants

should desire to marry Catholics, they know the conditions they have to

fulfil. If they object to those conditions they are quite free to seek

some other partner less tied by religious conditions than a Catholic is.

If a Protestant say, “I like this Catholic, but I don’t like these

conditions,” the Catholic reply is simple and straight: “If you want the

Catholic you must take the conditions too; it is intolerant conceit for

you to expect that the Catholic Church should shape its discipline to make

it fit in with some possible affections which might some time or other

possess you.”

The result of all the noise made about this _Ne temere_ Decree has been

just what those who have made the noise little thought of, and least of

all desired; namely, it has left them without a shadow of excuse, or even

the semblance of a grievance. Their cry has become their nemesis. It has

so promulgated the Decree that they, no more than Catholics, can plead

ignorance of it, or of the consequence of not observing it. Hence what

they in future do in regard to it, they will do with their eyes open; and

if they count the cost they have only themselves to blame.

But if these remarks I have made help to silence the _Ne temere_ cry,

another like grievance is not far to seek. It is remarkable that, whilst

there are several Catholic marriage laws the import of which is exactly

the same as that of the _Ne temere_ Decree, we never hear a word said

about them. Here is one: A Protestant has a sister-in-law who is a

Catholic. His wife dies. His Catholic sister-in-law marries him without

the necessary dispensation. That marriage is null in the eyes of the

Catholic Church. But it is valid before the law of the land since the

Deceased Wife’s Sister’s Marriage Act was passed. That Protestant and his

deceased wife’s Catholic sister are precisely in the same predicament in

which a Protestant and a Catholic are who attempt marriage in defiance of

the _Ne temere_ Decree. There are other similar instances amongst the

Catholic marriage laws. There have been for centuries. The _Ne temere_

Decree itself is but a slightly modified form of one three centuries old.

Thus, if the _Ne temere_ cry is serious, the party who raised it have been

standing at the mouth of a volcano for generations, and have escaped

unhurt. Why then have those other Catholic marriage laws been left in

place, whilst the _Ne temere_ Decree has raised a storm? The only

difference one can see is that the _Ne temere_ Decree happened to appear

on the eve of some parliamentary elections, and the consciences of some

scrupulous persons were suddenly awakened to the danger it brought.

_Tu quoque_ is not a logical reply; but at the tail of an argument it does

not come amiss. Well, then, in England the law recognises no other

marriages than those contracted before the parson or the registrar. Let a

Protestant and a Catholic therefore get married before a priest, without

the presence or knowledge of the parson or the registrar, it is a valid

marriage in the eyes of the Catholic Church and binds the conscience of

the Catholic party; but it is no marriage in the eyes of the law. So far

the case is the exact converse of the _Ne temere_ Decree. But it goes

farther; for it holds not only in the case of a Protestant and Catholic

but also in the case of two Catholics. The law of the land will not

recognise a marriage contracted by two Catholics in their own church and

before their own priest, unless the registrar or the parson be present. On

the contrary, the _Ne temere_ Decree does not in any sense touch the case

of two Protestants. Now, Catholics think, and justly so, that a priest is

quite as qualified a witness for the marriage of Catholics as the parson

is for the marriage of Protestants, or as the registrar is for the

marriage of either. The Catholics have in this a real grievance; and they

feel it; yet their consciences have not been so wounded nor their hearts

so broken as to think of exhibiting them bleeding before their country

upon election hustings. Political consciences show strange phenomena.

What is decreed by the _Motu proprio_ has been in force since the

Constitution _Apostolicae Sedis_ was published in 1869. Yet during those

forty-two years nobody seems to have been hurt by it; and nobody seems to

have been concerned except Catholics till lately. The _Motu proprio_

obliges Catholics, under threat of excommunication not to bring

ecclesiastics before lay tribunals without the permission of their bishop.

It binds ecclesiastics equally with lay Catholics. It does not, and

cannot, touch non-Catholics in any sense; a very plain proof of which is

that it threatens with excommunication those to whom it applies. That

censure of excommunication should convince anyone that the _Motu proprio_

cannot possibly apply to non-Catholics. They are not within the Church;

and how could those be put outside it who have not been within it? It

applies to Catholics only, whether lay or cleric. But not to all

Catholics. The Holy Office issued a Decree in 1870 in which it declared

that “the excommunication does not affect subordinates, even though they

be judges.” A Catholic functionary acting in his official capacity does

not come under the Decree. It will at once then be seen how unfair are the

following words spoken by Mr. Campbell, who represents the Dublin

University in Parliament. Speaking at a meeting in Dublin on January 4th,

1912, he said of two Irish Catholic Judges: “They might be called upon any

day in the exercise of their duty to their Sovereign to put the law in

force against a Catholic priest. If they did so, _ipso facto_ they

incurred excommunication.” He thus explained the meaning of the _Motu

proprio_ for his audience, in face of the following words which he also

read for his audience. The excommunication is against “those who compel,

whether directly or indirectly, lay judges to summon ecclesiastical

persons before lay tribunals.” Thus the excommunication is against _those

who compel_ the judges; so that Mr. Campbell’s interpretation implies that

_the judges_ are one and the same with _those who compel them_. Catholics,

then, and Catholics only (clerics as well as lay) are forbidden to bring

ecclesiastics before lay tribunals, without the permission of their

bishop; which permission, the Holy Office decrees, “the bishop shall never

refuse, in case he fails to reconcile the parties.” If a Catholic (lay or

ecclesiastic) thinks that an ecclesiastic, for instance, owes him a debt,

and the ecclesiastic denies it and refuses to pay, the Catholic (priest or

layman) who makes the claim is bound by the _Motu proprio_ to have

recourse to the bishop first, in order to have the matter arranged

amicably. If the bishop fails to settle it, he is not left free to give or

refuse his consent to have the case brought before the Civil Court. The

Holy Office decrees that “he shall never refuse.” Even in those times and

countries when and where Ecclesiastical Courts existed to try the civil

cases of clerics, the purpose of the _Privilegium Fori_ was not to grant

ecclesiastics any immunity from the civil law of their country, but to

provide that in their civil cases they should be tried by an

Ecclesiastical Court. The privilege was not as to the law of the land, but

as to the court that was to try them according to that law.

What the _Motu proprio_ orders is just what Catholic instinct moves every

Catholic worthy of the name to do. In Ireland and everywhere, Catholics,

and many Protestants also, if they think they have a cause of complaint

against a priest, for debt or otherwise, make known their case first to

his bishop. If the bishop fails to compose the question, then they bring

the case before the lay tribunals; permission to do which, as the Holy

Office lays down, the bishop “shall never refuse.”

I have explained the meaning and scope of this _Motu proprio_ as though it

applied to Ireland. But according to the evidence of Cardinal Cullen, the

highest authority on Canon Law who has lived in these countries for a

century, the Caput _Cogentes_ of the _Apostolicae Sedis_ does not hold in

Ireland; and that being so, the _Motu proprio_ does not apply to Ireland,

for it is a confirmation of the Caput _Cogentes_.

What this awful _Motu proprio_ orders, then, is just what fraternal

charity, a sense of the fitness of things, even common sense, would

suggest. So befitting does the procedure ordered by the _Motu proprio_

appear to a writer in the January number of _The Review of Reviews_ that

he says, “it might very well be extended to all Christian men, whether lay

or clerical”; and he suggests that the civil authorities in England would

do wisely to take a leaf out of the book of Pius X.

As a matter of fact, something parallel to it exists in every society.

There is not an association of any kind in England, Ireland, or elsewhere,

which has not some rules which bind its members under pain of expulsion.

In Chapter VII. of his “Middle Ages,” Hallam writes:

“The spiritual Courts in England, whose jurisdiction is so

multifarious, and in general so little of a religious nature, had,

till lately, no means of compelling an appearance much less of

enforcing a sentence, but by excommunication.”

He writes in a note:

“By a recent Statute, the 33 Geo. III., c. 127, the writ, _de

excommunicato capiendo_, as a process in contempt was abolished in

England, but retained in Ireland.”

Both in England and in Ireland there are, of course, rules for expulsion,

or excommunication, in every union, society, and club in the country. But

a rule more like the _Motu proprio_ than any that I know of, is in the

constitutions of the Dublin University which Mr. Campbell represents in

Parliament. According to Letters Patent 13 Charles I.:

“All domestic differences shall be examined, and if possible

decided within the College.... He who brings another into Court,

without the consent of the Provost and the majority of the Senior

Fellows, shall be expelled from the College.”

It is in every particular like the _Motu proprio_ of which Mr. Campbell

spoke, in a Catholic city and country, as “an arrogant and insolent

decree” which “aims a deadly blow at the sanctity and security of

property.” I do not believe that he was conscious of the offensiveness of

his words. But such has been the fruit and habit of Protestant privilege

in Ireland. Some, even men of position and education like Mr. Campbell,

remain as if unconscious that the “old order changes.” They fail to fit

themselves into the change which a century has made; and “If in the green

wood they do these things, what shall be done in the dry?” Catholics,

whilst they have their own thoughts about the constitutions and rules of

other Religious Bodies than theirs, do not meddle with or question them.

The _Ne temere_ Decree and the _Motu proprio_ are, as I have explained,

for the discipline of us Catholics exclusively. We do not seek for them

the approval of outsiders. But we cannot help thinking that the diatribes

to which we have been subjected in connection with those two Pontifical

Acts have been inspired rather by political and social jealousy than by a

spirit of toleration or love of fair play. I hope that most non-Catholics

who read what I have written will be disposed to agree with me.

(IV) Some Protestant Views.

(1) A Church Of Ireland View. BY CANON COURTENAY MOORE, M.A.

It is under a deep sense of both privilege and responsibility that I

contribute this article—of privilege because I feel very sensibly the

honour done me in asking me to write it—and of responsibility because of

the service it may or may not prove to be. A word about myself may be

pardoned and may not be inappropriate.