Handbook of Home Rule: Being Articles on the Irish Question — The Irish Government Bill and the Irish Land Bill by Lord Thring, pt 1

BY LORD THRING

A mere enumeration or analysis of the contents of the Irish Government Bill, 1886, and the Land (Ireland) Bill, 1886, would convey scarcely any intelligible idea to the mind of an ordinary reader.

It is, therefore, proposed in the following pages, before entering on the details of each Bill, to give a summary of the reasons which led to its introduction, and of the principles on which it is founded.

To begin with the Irish Government Bill-- The object of the Irish Government Bill is to confer on the Irish people the largest measure of self-government consistent with the absolute supremacy of the Crown and Imperial Parliament and the entire unity of the Empire.

To carry into effect this object it was essential to create a separate though subordinate legislature; thus occasion was given to opponents to apply the name of Separatists to the supporters of the Bill--a term true in so far only as it denoted the intention to create a separate legislature, but false and calumnious when used in the sense in which it was intended to be understood--of imputing to the promoters of the Bill the intention to disunite or in any way to disintegrate the Empire.

Indeed, the very object of the measure was, by relaxing a little the legal bonds of union, to draw closer the actual ties between England and Ireland, in fact, to do as we have done in our Colonies, by decentralizing the subordinate functions of government to strengthen the central supremacy of natural affection and Imperial unity.

The example of the effects of giving complete self-government to our Colonies would seem not unfavourable to trying the same experiment in Ireland.

Some forty years ago, Canada, New Zealand, and the various colonies of Australia were discontented and uneasy at the control exercised by the Government of England over their local affairs.

What did England do?

She gave to each of those communities the fullest power of local government consistent with the unity of the Empire.

The result was that the real union was established in the same degree as the apparent tie of control over local affairs was loosened.

Are there any reasons to suppose that the condition of Ireland is such as to render the example of the Colonies applicable?

Let us look a little at the past history of that country.

Up to 1760 Ireland was governed practically as a conquered country.

The result was that in 1782, in order to save Imperial unity, we altogether relaxed the local tie and made Ireland legislatively independent.

The Empire was thus saved, but difficulties naturally arose between two independent legislatures.

The true remedy would have been to have imposed on Grattan's Parliament the conditions imposed by the Irish Government Bill on the statutory Parliament created by that Bill; the course actually taken was that, instead of leaving the Irish with their local government, and arranging for the due supremacy of England, the Irish Legislature was destroyed under the guise of Union, and Irish representatives were transferred to an assembly in which they had little weight, and in which they found no sympathy.

The result was that from the date of the Union to the present day Ireland has been constantly working for the reinstatement of its National Legislature, and has been governed by a continuous system of extraordinary legislature called coercion; the fact being that between 1800, the date of the Act of Union, and 1832, the date of the great Reform Act, there were only eleven years free from coercion, while in the fifty-three years since that period there have been only two years entirely free from special repressive legislation.

So much, therefore, is clear, that Irish discontent at not being allowed to manage their own affairs has gradually increased instead of diminishing.

The conclusion then would seem irresistible, that if coercion has failed, the only practical mode of governing Ireland satisfactorily is to give the people power to manage their local affairs.

Coming, then, to the principle of the Bill, the first step is to reconcile local government with Imperial supremacy, in other words, to divide Imperial from local powers; for if this division be accurately made, and the former class of powers be reserved to the British Crown and British Parliament, while the latter only are intrusted to the Irish Parliament, it becomes a contradiction in terms to say that Imperial unity is dissolved by reserving to the Imperial authority all its powers, or that Home Rule is a sundering of the Imperial tie when that tie is preserved inviolable.

Imperial powers, then, are the prerogatives of the Crown with respect to peace and war, and making treaties with foreign nations; in short, the power of regulating the relations of the Empire towards foreign nations.

These are the _jura summi imperii_, the very insignia of supremacy; the attributes of sovereign authority in every form of government, be it despotism, limited monarchy, or republic; the only difference is that in a system of government under one supreme head, they are vested in that head alone, in a federal government, as in America or Switzerland, they reside in the composite body forming the federal supreme authority.

Various subsidiary powers necessarily attend the above supreme powers;

for example, the power of maintaining armies and navies, of commanding the militia, and other incidental powers.

Closely connected with the power of making peace and war is the power of regulating commerce with foreign nations.

Next in importance to the reservations necessary to constitute the Empire a Unity with regard to foreign nations, are the powers required to prevent disputes and to facilitate intercourse between the various parts of the Empire.

These are the coinage of money and other regulations relating to currency, to copyright or other exclusive rights to the use or profit of any works or inventions.

The above subjects must be altogether excluded from the powers of the subordinate legislature; it ceases to be subordinate as soon as it is invested with these Imperial, or quasi-Imperial, powers.

Assuming, however, the division between Imperial and local powers to be accurately determined, how is the subordinate legislative body to be kept within its due limits?

The answer is very plain,--an Imperial court must be established to decide in the last resort whether the subordinate legislature has or has not infringed Imperial rights.

Such a court has been in action in the United States of America ever since their union, and no serious conflict has arisen in carrying its decisions into effect, and the Privy Council, acting as the Supreme Court in respect to Colonial appeals, has been accepted by all the self-governing colonies as a just and impartial expositor of the meaning of their several constitutions.

Next in importance to the right division of Imperial and local powers is a correct understanding of the relation borne by the executive of an autonomous country to the mother country.

In every part of the British Empire which enjoys home rule the legislature consists of the Queen and the two local legislative bodies.

The administrative power resides in the Queen alone.

The Queen has the appointment of all the officers of the government; money bills can be introduced into the legislature only with the consent of the Queen.

The initiative power of taxation then is vested in the Queen, the executive head, in practice represented by the Governor.

But such a power of initiation is of course useless unless the legislative body is willing to support the executive, and grants it the necessary funds for carrying on the government.

What, then, is the contrivance by which the governmental machine is prevented from being stopped by a difference between the executive and legislative authorities?

It is the same in the mother country, and in every British home-rule country, with this difference only--that beyond the limits of the mother country the Queen is represented by a governor to whom are delegated such a measure of powers as is necessary for the supreme head of a local self-governing community.

The contrivance is this in the mother country:--the Queen acts upon the advice of a cabinet council; in home-rule dependencies the Governor acts on the advice of a local council.

If this cabinet council in the mother country, or local council in a dependency, ceases to command a majority in the popular legislative body, it resigns, and the Governor is obliged to select a council which, by commanding such a majority, can obtain the supplies necessary to carry on the government.

The consequence then is, that in a home-rule community, if a serious difficulty arises between the legislative and executive authority, the head of the executive, the governor, refers the ultimate decision of the question to the general body of electors by dissolving the popular legislative body.

It has been urged in the discussion on the Irish Government Bill that the powers of the executive in relation to the legislative body ought to be expressed in the Bill itself; but it is clear to anybody acquainted with the rudiments of legislation that the details of such a system (in other words, the mode in which a governor ought to act under the endless variety of circumstances which may occur in governing a dependency) never have been and never can be expressed in an Act of Parliament.

But how little difficulty this absence of definition has caused may be judged from the fact that neither in England nor in any of her home-rule dependencies has any vital collision arisen between the executive and legislative authorities, and that all the home-rule colonies have managed to surmount the obstacles which the opponents of Home Rule argued would be fatal to their existence.

The main principles have now been stated on which the Irish Government Bill is framed, and it remains to give a summary of the provisions of the Bill, the objects and bearing of which will be readily understood from the foregoing observations.

The first clause provides that-- "On and after the appointed day there shall be established in Ireland a Legislature consisting of Her Majesty the Queen and an Irish legislative body."

This is the first step in all English constitutional systems, to vest the power of legislation in the Queen and the legislative body.

Such a legislature might have had conferred on it the independent powers vested in Grattan's Parliament: but the second clause at once puts an end to any doubt as to the subordination of the Irish legislative body; for while on the one hand it confers full powers of local self-government, by declaring that the Legislature may make any laws for the peace, order, and good government of Ireland, it subjects that power to numerous exceptions and restrictions.

The exceptions are contained in the third clause, and the restrictions in the fourth.

The exceptions are as follows:-- "The Legislature of Ireland shall not make laws relating to the following matters or any of them:-- "(1. ) The status or dignity of the Crown, or the succession to the Crown, or a Regency;

"(2. ) The making of peace or war;

"(3. ) The army, navy, militia, volunteers, or other military or naval forces, or the defence of the realm;

"(4. ) Treaties and other relations with foreign States, or the relations between the various parts of Her Majesty's dominions;

"(5. ) Dignities or titles of honour;

"(6. ) Prize or booty of war;

"(7. ) Offences against the law of nations; or offences committed in violation of any treaty made, or hereafter to be made, between Her Majesty and any foreign State; or offences committed on the high seas;

"(8. ) Treason, alienage, or naturalization;

"(9. ) Trade, navigation, or quarantine;

"(10. ) The postal and telegraph service, except as hereafter in this Act mentioned with respect to the transmission of letters and telegrams in Ireland;

"(11. ) Beacons, lighthouses, or sea-marks;

"(12. ) The coinage; the value of foreign money; legal tender; or weights and measures; or "(13. ) Copyright, patent rights, or other exclusive rights to the use or profits of any works or inventions."

Of these exceptions the first four preserve the imperial rights which have been insisted on above, and maintain the position of Ireland as an integral portion of that Empire of which Great Britain is the head.

The remaining exceptions are either subsidiary to the first four, or relate, as is the case with exceptions 10 to 13, to matters on which it is desirable that uniformity should exist throughout the whole Empire.

The restrictions in clause 4 are:-- "The Irish Legislature shall not make any law-- "(1. ) Respecting the establishment or endowment of religion, or prohibiting the free exercise thereof; or "(2. ) Imposing any disability, or conferring any privilege, on account of religious belief; or "(3. ) Abrogating or derogating from the right to establish or maintain any place of denominational education or any denominational institution or charity; or "(4. ) Prejudicially affecting the right of any child to attend a school receiving public money without attending the religious instruction at that school; or "(5. ) Impairing, without either the leave of Her Majesty in Council first obtained on an address presented by the legislative body of Ireland, or the consent of the corporation interested, the rights, property, or privileges of any existing corporation incorporated by royal charter or local and general Act of Parliament; or "(6. ) Imposing or relating to duties of customs and duties of excise, as defined by this Act, or either of such duties, or affecting any Act relating to such duties or either of them; or "(7. ) Affecting this Act, except in so far as it is declared to be alterable by the Irish Legislature."

These restrictions differ from the exceptions, inasmuch as they do not prevent the Legislature of Ireland from dealing with the subjects to which they refer, but merely impose on it an obligation not to handle the specified matters in a manner detrimental to the interests of certain classes of Her Majesty's subjects.

For example, restrictions 1 to 4 are practically concerned in securing religious freedom;

restriction 5 protects existing charters; restriction 6 is necessary, as will be seen hereinafter, to carrying into effect the financial scheme of the bill; restriction 7 is a consequence of the very framework of the Bill: it provides for the stability of the Irish constitution, by declaring that the Irish Legislature is not competent to alter the constitutional act to which it owes its existence, except on those points on which it is expressly permitted to make alterations.

Clause 5 is an exposition, so to speak, of the consequence which would seem to flow from the fact of the Queen being a constitutional part of the Legislature.

It states that the royal prerogatives with respect to the summoning, prorogation, and dissolution of the Irish legislative body are to be the same as the royal prerogatives in relation to the Imperial Parliament.

The next clause (6) is comparatively immaterial;

it merely provides that the duration of the Irish legislative body is to be quinquennial.

As it deals with a matter of detail, it perhaps would have more aptly found a place in a subsequent part of the Bill.

Clause 7 passes from the legislative to the executive authority; it declares:-- (1. ) The executive government of Ireland shall continue vested in Her Majesty, and shall be carried on by the Lord Lieutenant on behalf of Her Majesty with the aid of such officers and such council as to Her Majesty may from time to time seem fit.

(2. ) Subject to any instructions which may from time to time be given by Her Majesty, the Lord Lieutenant shall give or withhold the assent of Her Majesty to bills passed by the Irish legislative body, and shall exercise the prerogatives of Her Majesty in respect of the summoning, proroguing, and dissolving of the Irish legislative body, and any prerogatives the exercise of which may be delegated to him by Her Majesty.

Bearing in mind what has been said in the preliminary observations in respect of the relation between the executive and the legislative authority, it will be at once understood how much this clause implies, according to constitutional maxims, of the dependence on the one hand of the Irish executive in respect of imperial matters, and of its independence in respect of local matters.

The clause is practically co-ordinate and correlative with the clause conferring complete local powers on the Irish Legislature, while it preserves all imperial powers to the Imperial Legislature.

The governor is an imperial officer, and will be bound to watch over imperial interests with a jealous scrutiny, and to veto any bill which may be injurious to those interests.

On the other hand, as respects all local matters, he will act on and be guided by the advice of the Irish executive council.

The system is, as has been shown above, self-acting.

The governor, for local purposes, must have a council which is in harmony with the legislative body.

If a council, supported by the legislative body and the governor do not agree, the governor must give way unless he can, by dismissing his council and dissolving the legislative body, obtain both a council and a legislative body which will support his views.

As respects imperial questions, the case is different; here the last word rests with the mother country, and in the last resort a determination of the executive council, backed by the legislative body, to resist imperial rights, must be deemed an act of rebellion on the part of the Irish people, and be dealt with accordingly.

The above clauses contain the pith and marrow of the whole scheme.

The exact constitution of the legislative body, and the orders into which it should be divided, the exclusion or non-exclusion of the Irish members from the Imperial Parliament, indeed, the whole of the provisions found in the remainder of this Bill, are matters which might be altered without destroying, or even violently disarranging, the Home-rule scheme as above described.

Clauses 9, 10, and 11 provide for the constitution of the legislative body; it differs materially from the colonial legislative bodies, and from the Legislature of the United States.

For the purpose of deliberation it consists of one House only; for the purpose of voting on all questions (except interlocutory applications and questions of order), it is divided into two classes, called in the Bill "Orders," each of which votes separately, with the result that a question on which the two orders disagree is deemed to be decided in the negative.

The object of this arrangement is to diminish the chances of collision between the two branches of the Legislature, which have given rise to so much difficulty both in England and the colonies.

Each order will have ample opportunity of learning the strength and hearing the arguments of the other order.

They will therefore, each of them, proceed to a division with a full sense of the responsibility attaching to their action.

A further safeguard is provided against a final conflict between the first and second orders.

If the first order negative a proposition, that negative is in force only for a period of three years, unless a dissolution takes place sooner, in which case it is terminated at once;

the lost bill or clause may then be submitted to the whole House, and if decided in the affirmative, and assented to by the Queen, becomes law.

The first order of the Irish legislative body comprises 103 members.

It is intended to consist ultimately wholly of elective members; but for the next immediate period of thirty years the rights of the Irish representative peers are, as will be seen, scrupulously reserved.

The plan is this: of the 103 members composing the first order, seventy-five are elective, and twenty-eight peerage members.

The qualification of the elective members is an annual income of £200, or the possession of a capital sum of £4000 free from all charges.

The elections are to be conducted in the electoral districts set out in the schedule to the Bill.

The electors must possess land or tenements within the district of the annual value of £25. The twenty-eight peerage members consist of the existing twenty-eight representative peers, and any vacancies in their body during the next thirty years are to be filled up in the manner at present in use respecting the election of Irish representative peers.

The Irish representative peers cease to sit in the English Parliament;

but a member of that body is not required to sit in the Irish Parliament without his assent, and the place of any existing peer refusing to sit in the Irish Parliament will be filled up as in the case of an ordinary vacancy.

The elective members of the first order sit for ten years;

every five years one half their number will retire.

The members of the first order do not vacate their seats on a dissolution of the legislative body.

At the expiration of thirty years, that is to say, upon the exhaustion of all the existing Irish representative peers, the whole of the upper order will consist of elective members.

The second order consists of 204 members, that is to say, of the 103 existing Irish members (who are transferred to the Irish Parliament), and of 101 additional members to be elected by the county districts and the represented towns, in the same manner as that in which the present 101 members for counties and towns are elected--each constituency returning two instead of one member.

If an existing member does not assent to his transfer, his seat is vacated.

A power is given to the Legislature of Ireland to enable the Royal University of Ireland to return two members.

The provisions with respect to this second order fall within the class of enactments which are alterable by the Irish Legislature.

After the first dissolution of parliament the Irish Legislature may deal with the second order in any manner they think fit, with the important restrictions:--(1) That in the distribution of members they must have due regard to population; (2) that they must not increase or diminish the number of members.

The transfer to the Irish legislative body of the Irish representative peers, and of the Irish members, involves their exclusion under ordinary circumstances from the Imperial Parliament, with this great exception, that whenever an alteration is proposed to be made in the fundamental provisions of the Irish Government Bill, a mode of procedure is devised for recalling both orders of the Irish legislative body to the Imperial Parliament for the purpose of obtaining their consent to such alteration (clause 39).

Further, it is right to state here that Mr. Gladstone in his speech on the second reading of the Bill proposed to provide, "that when any proposal for taxation was made affecting the condition of Ireland, Irish members should have an opportunity of appearing in the House to take a share in the transaction of that business."

Questions arising as to whether the Irish Parliament has or not exceeded its constitutional powers may be determined by the ordinary courts of law in the first instance; the ultimate appeal lies to the Judicial Committee of the Privy Council.

An additional safeguard is provided by declaring that before a provision in a Bill becomes law, the Lord Lieutenant may take the opinion of the Judicial Committee of the Privy Council as to its legality, and further, that without subjecting private litigants to the expense of trying the constitutionality of an Act, the Lord Lieutenant may, of his own motion, move the judicial committee to determine the question.

With a view to secure absolute impartiality in the committee, Ireland will be represented on that body by persons who are or have been Irish judges (clause 25).