Appendix74
Government of Ireland Bill
Arrangement of Clauses
Part I
Legislative Authority
Clause.
1. Establishment of Irish Legislature.
2. Powers of Irish Legislature.
3. Exceptions from powers of Irish Legislature.
4. Restrictions on powers of Irish Legislature.
5. Prerogatives of Her Majesty as to Irish Legislative Body.
6. Duration of the Irish Legislative Body.
Executive Authority
7. Constitution of the Executive Authority.
8. Use of Crown lands by Irish Government.
Constitution of Legislative Body
9. Constitution of Irish Legislative Body.
10. First order.
11. Second order.
Finance
12. Taxes and separate Consolidated Fund.
13. Annual contributions from Ireland to Consolidated Fund of United Kingdom.
14. Collection and application of customs and excise duties in Ireland.
15. Charges on Irish Consolidated Fund.
16. Irish Church Fund.
17. Public loans.
18. Additional aid in case of war.
19. Money bills and votes.
20. Exchequer divisions and revenue actions.
Police
21. Police.
Part II
Supplemental Provisions
Powers of Her Majesty
22. Powers over certain lands reserved to Her Majesty.
Legislative Body
23. Veto by first order of Legislative Body, how over-ruled.
24. Cesser of power of Ireland to return members to Parliament.
Decision of Constitutional Questions
25. Constitutional questions to be submitted to Judicial Committee.
Lord-Lieutenant
26. Office of Lord-Lieutenant.
Judges and Civil Servants
27. Judges to be removable only on address.
28. Provision as to judges and other persons having salaries charged on the Consolidated Fund.
29. As to persons holding civil service appointments.
30. Provision for existing pensions and superannuation allowances.
Transitory Provisions
31. Transitory provisions in Schedule.
Miscellaneous
32. Post Office and savings banks.
33. Audit.
34. Application of parliamentary law.
35. Regulations for carrying Act into effect.
36. Saving of powers of House of Lords.
37. Saving of Rights of Parliament.
38. Continuance of existing laws, courts, officers, &c.
39. Mode of alteration of Act.
40. Definitions.
41. Short title of Act.
Schedules.
A Bill to Amend the Provision for the Future Government of Ireland
A.D. 1886
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
Part I
Legislative Authority
Establishment of Irish Legislature.
1. 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.
Powers of Irish Legislature.
2. With the exceptions and subject to the restrictions in this Act mentioned, it shall be lawful for Her Majesty the Queen, by and with the advice of the Irish Legislative Body, to make laws for the peace, order, and good government of Ireland, and by any such law to alter and repeal any law in Ireland.
Exceptions from powers of Irish Legislature.
3. 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.
Any law made in contravention of this section shall be void.
Restrictions on powers of Irish Legislature.
4. 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.
Prerogatives of Her Majesty as to Irish Legislative Body.
5. Her Majesty the Queen shall have the same prerogatives with respect to summoning, proroguing, and dissolving the Irish Legislative Body as Her Majesty has with respect to summoning, proroguing, and dissolving the Imperial Parliament.
Duration of the Irish Legislative Body.
6. The Irish Legislative Body whenever summoned may have continuance for five years and no longer, to be reckoned from the day on which any such Legislative Body is appointed to meet.
Executive Authority
Constitution of the Executive Authority.
7.—(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.
Use of Crown lands by Irish Government.
8. Her Majesty may, by Order in Council, from time to time place under the control of the Irish Government, for the purposes of that Government, any such lands and buildings in Ireland as may be vested in or held in trust for Her Majesty.
Constitution of Legislative Body
Constitution of Irish Legislative Body.
9.—(1.) The Irish Legislative Body shall consist of a first and second order.
(2.) The two orders shall deliberate together, and shall vote together, except that, if any question arises in relation to legislation or to the Standing Orders or Rules of Procedure or to any other matter in that behalf in this Act specified, and such question is to be determined by vote, each order shall, if a majority of the members present of either order demand a separate vote, give their votes in like manner as if they were separate Legislative Bodies; and if the result of the voting of the two orders does not agree the question shall be resolved in the negative.
First order.
10.—(1.) The first order of the Irish Legislative Body shall consist of one hundred and three members, of whom seventy-five shall be elective members and twenty-eight peerage members.
(2.) Each elective member shall at the date of his election and during his period of membership be bonâ fide possessed of property which—
(a.) if realty, or partly realty and partly personalty, yields two hundred pounds a year or upwards, free of all charges; or
(b.) if personalty yields the same income, or is of the capital value of four thousand pounds or upwards, free of all charges.
(2.) For the purpose of electing the elective members of the first order of the Legislative Body, Ireland shall be divided into the electoral districts specified in the First Schedule to this Act, and each such district shall return the number of members in that behalf specified in that Schedule.
(3.) The elective members shall be elected by the registered electors of each electoral district, and for that purpose a register of electors shall be made annually.
(4.) An elector in each electoral district shall be qualified as follows, that is to say, he shall be of full age, and not subject to any legal incapacity, and shall have been during the twelve months next preceding the twentieth day of July in any year the owner or occupier of some land or tenement within the district of a net annual value of twenty-five pounds or upwards.
(5.) The term of office of an elective member shall be ten years.
(6.) In every fifth year thirty-seven or thirty-eight of the elective members, as the case requires, shall retire from office, and their places shall be filled by election; the members to retire shall be those who have been members for the longest time without re-election.
(7.) The offices of the peerage members shall be filled as follows; that is to say,—
(a.) Each of the Irish peers who on the appointed day is one of the twenty-eight Irish representative peers, shall, on giving his written assent to the Lord-Lieutenant, become a peerage member of the first order of the Irish Legislative Body; and if at any time within thirty years after the appointed day any such peer vacates his office by death or resignation, the vacancy shall be filled by the election to that office by the Irish peers of one of their number in manner heretofore in use respecting the election of Irish representative peers, subject to adaptation as provided by this Act, and if the vacancy is not so filled within the proper time it shall be filled by the election of an elective member.
(b.) If any of the twenty-eight peers aforesaid does not within one month after the appointed day give such assent to be a peerage member of the first order, the vacancy so created shall be filled up as if he had assented and vacated his office by resignation.
(8.) A peerage member shall be entitled to hold office during his life, or until the expiration of thirty years from the appointed day, whichever period is the shortest. At the expiration of such thirty years the offices of all the peerage members shall be vacated as if they were dead, and their places shall be filled by elective members qualified and elected in manner provided by this Act with respect to elective members of the first order, and such elective members may be distributed by the Irish Legislature among the electoral districts, so, however, that care shall be taken to give additional members to the most populous places.
(9.) The offices of members of the first order shall not be vacated by the dissolution of the Legislative Body.
(10.) The provisions in the Second Schedule to this Act relating to members of the first order of the Legislative Body shall be of the same force as if they were enacted in the body of this Act.
Second order.
11.—(1.) Subject as in this section hereafter mentioned, the second order of the Legislative body shall consist of two hundred and four members.
(2.) The members of the second order shall be chosen by the existing constituencies of Ireland, two by each constituency, with the exception of the city of Cork, which shall be divided into two divisions in manner set forth in the Third Schedule to this Act, and two members shall be chosen by each of such divisions.
(3.) Any person who, on the appointed day, is a member representing an existing Irish constituency in the House of Commons shall, on giving his written assent to the Lord-Lieutenant, become a member of the second order of the Irish Legislative Body as if he had been elected by the constituency which he was representing in the House of Commons. Each of the members for the city of Cork, on the said day, may elect for which of the divisions of that city he wishes to be deemed to have been elected.
(4.) If any member does not give such written assent within one month after the appointed day, his place shall be filled by election in the same manner and at the same time as if he had assented and vacated his office by death.
(5.) If the same person is elected to both orders, he shall, within seven days after the meeting of the Legislative Body, or if the Body is sitting at the time of the election, within seven days after the election, elect in which order he will serve, and his membership of the other order shall be void and be filled by a fresh election.
(6.) Notwithstanding anything in this Act, it shall be lawful for the Legislature of Ireland at any time to pass an Act enabling the Royal University of Ireland to return not more than two members to the second order of the Irish Legislative Body in addition to the number of members above mentioned.
(7.) Notwithstanding anything in this Act, it shall be lawful for the Irish Legislature, after the first dissolution of the Legislative Body which occurs, to alter the constitution or election of the second order of that body, due regard being had in the distribution of members to the population of the constituencies; provided that no alteration shall be made in the number of such order.
Finance
Taxes and separate Consolidated Fund.
12.—(1.) For the purpose of providing for the public service of Ireland the Irish Legislature may impose taxes, other than duties of customs or excise as defined by this Act, which duties shall continue to be imposed and levied by and under the direction of the Imperial Parliament only.
(2.) On and after the appointed day there shall be an Irish Consolidated Fund separate from the Consolidated Fund of the United Kingdom.
(3.) All taxes imposed by the Legislature of Ireland and all other public revenues under the control of the Government of Ireland shall, subject to any provisions touching the disposal thereof contained in any Act passed in the present session respecting the sale and purchase of land in Ireland, be paid into the Irish Consolidated Fund, and be appropriated to the public service of Ireland according to law.
Annual contributions from Ireland to Consolidated Fund of United Kingdom.
13.—(1.) Subject to the provisions for the reduction or cesser thereof in this section mentioned, there shall be made on the part of Ireland to the Consolidated Fund of the United Kingdom the following annual contributions in every financial year; that is to say,—
(a.) The sum of one million four hundred and sixty-six, thousand pounds on account of the interest on and management of the Irish share of the National Debt:
(b.) The sum of one million six hundred and sixty-six thousand pounds on account of the expenditure on the army and navy of the United Kingdom:
(c.) The sum of one hundred and ten thousand pounds on account of the Imperial civil expenditure of the United Kingdom:
(d.) The sum of one million pounds on account of the Royal Irish Constabulary and the Dublin Metropolitan Police.
(2.) During the period of thirty years from this section taking; effect the said annual contributions shall not be increased, but may be reduced or cease as hereinafter mentioned. After the expiration of the said thirty years the said contributions shall, save as otherwise provided by this section, continue until altered in manner provided with respect to the alteration of this Act.
(3.) The Irish share of the National Debt shall be reckoned at forty-eight million pounds Bank annuities, and there shall be paid in every financial year on behalf of Ireland to the Commissioners for the Reduction of the National Debt an annual sum of three hundred and sixty thousand pounds, and the permanent annual charge for the National Debt on the Consolidated Fund of the United Kingdom shall be reduced by that amount, and the said annual sum shall be applied by the said Commissioners as a sinking fund for the redemption of the National Debt, and the Irish share of the National Debt shall be reduced by the amount of the National Debt so redeemed, and the said annual contribution on account of the interest on and management of the Irish share of the National Debt shall from time to time be reduced by a sum equal to the interest upon the amount of the National Debt from time to time so redeemed, but that last-mentioned sum shall be paid annually to the Commissioners for the Reduction of the National Debt in addition to the above-mentioned annual sinking fund, and shall be so paid and be applied as if it were part of that sinking fund.
(4.) As soon as an amount of the National Debt equal to the said Irish share thereof has been redeemed under the provisions of this section, the said annual contribution on account of the interest on and management of the Irish share of the National Debt, and the said annual sum for a sinking fund shall cease.
(5.) If it appears to Her Majesty that the expenditure in respect of the army and navy of the United Kingdom, or in respect of Imperial civil expenditure of the United Kingdom, for any financial year has been less than fifteen times the amount of the contributions above-named on account of the same matter, a sum equal to one fifteenth part of the diminution shall be deducted from the current annual contribution for the same matter.
(6.) The sum paid from time to time by the Commissioners of Her Majesty’s Woods, Forests, and Land Revenues to the Consolidated Fund of the United Kingdom on account of the hereditary revenues of the Crown in Ireland shall be credited to the Irish Government, and go in reduction of the said annual contribution payable on account of the Imperial civil expenditure of the United Kingdom, but shall not be taken into account in calculating whether such diminution as above mentioned has or has not taken place in such expenditure.
(7.) If it appears to Her Majesty that the expenditure in respect of the Royal Irish Constabulary and the Dublin Metropolitan Police for any financial year has been less than the contribution above named on account of such constabulary and police, the current contribution shall be diminished by the amount of such difference.
(8.) This section shall take effect from and after the thirty-first day of March, one thousand eight hundred and eighty-seven.
Collection and application of customs and excise duties in Ireland.
14.—(1.) On and after such day as the Treasury may direct all moneys from time to time collected in Ireland on account of the duties of customs or the duties of excise as defined by this Act shall, under such regulations as the Treasury from time to time make, be carried to a separate account (in this Act referred to as the customs and excise account) and applied in the payment of the following sums in priority as mentioned in this section; that is to say,—
First, of such sum as is from time to time directed by the Treasury in respect of the costs, charges, and expenses of and incident to the collection and management of the said duties in Ireland not exceeding four per cent. of the amount collected there;
Secondly, of the annual contributions required by this Act to be made to the Consolidated Fund of the United Kingdom;
Thirdly, of the annual sums required by this Act to be paid to the Commissioners for the Reduction of the National Debt;
Fourthly, of all sums by this Act declared to be payable out of the moneys carried to the customs and excise account;
Fifthly, of all sums due to the Consolidated Fund of the United Kingdom for interest or sinking fund, in respect of any loans made by the issue of bank annuities or otherwise to the Government of Ireland under any Act passed in the present session relating to the purchase and sale of land in Ireland, so far as such sums are not defrayed out of the moneys received under such Act;
(2.) So much of the moneys carried to a separate account under this section as the Treasury consider are not, and are not likely to be, required to meet the above-mentioned payments, shall from time to time be paid over and applied as part of the public revenues under the control of the Irish Government.
Charges on Irish Consolidated Fund.
15.—(1.) There shall be charged on the Irish Consolidated Fund in priority as mentioned in this section:—
First, such portion of the sums directed by this Act to be paid out of the moneys carried to the customs and excise account in priority to any payment for the public revenues of Ireland, as those moneys are insufficient to pay;
Secondly, all sums due in respect of any debt incurred by the Government of Ireland, whether for interest, management, or sinking fund;
Thirdly, all sums which at the passing of this Act are charged on the Consolidated Fund of the United Kingdom in respect of Irish services other than the salary of the Lord-Lieutenant;
Fourthly, the salaries of all judges of the Supreme Court of Judicature or other superior court in Ireland, or of any county or other like court, who are appointed after the passing of this Act, and the pensions of such judges;
Fifthly, any other sums charged by this Act on the Irish Consolidated Fund.
(2.) It shall be the duty of the Legislature of Ireland to impose all such taxes, duties, or imposts as will raise a sufficient revenue to meet all sums charged for the time being on the Irish Consolidated Fund.
Irish Church Fund.
16.—(1.) Until all charges which are payable out of the Church property in Ireland, and are guaranteed by the Treasury, have been fully paid, the Irish Land Commission shall continue as heretofore to exist, with such Commissioners and officers receiving such salaries as the Treasury may from time to time appoint, and to administer the Church property and apply the income and other moneys receivable therefrom; and so much of the salaries of such Commissioners and officers and expenses of the office as is not paid out of the Church property shall be paid out of moneys carried to the customs and excise account under this Act, and if those moneys are insufficient, out of the Consolidated Fund of Ireland, and if not so paid, shall be paid out of moneys provided by Parliament.
Provided as follows:—
(a.) All charges on the Church property for which a guarantee has been given by the Treasury before the passing of this Act shall, so far as they are not paid out of such property, be paid out of the moneys carried to the Customs and Excise account under this Act, and if such moneys are insufficient, the Consolidated Fund of Ireland, without prejudice nevertheless to the guarantee of the Treasury;
(b.) All charges on the Church property, for which no guarantee has been given by the Treasury before the passing of this Act shall be charged on the Consolidated Fund of Ireland, but shall not be guaranteed by the Treasury nor charged on the Consolidated Fund of the United Kingdom.
(2.) Subject to any existing charges on the Church property, such property shall belong to the Irish Government and any portion of the annual revenue thereof which the Treasury, on the application of the Irish Government, certify at the end of any financial year not to be required for meeting charges, shall be paid over and applied as part of the public revenues under the control of the Irish Government.
(3.) As soon as all charges on the Church property guaranteed by the Treasury have been paid, such property may be managed and administered, and subject to existing charges thereon disposed of, and the income or proceeds thereof applied, in such manner as the Irish Legislature may from time to time direct.
32 & 33 Vict. c. 42, 44 & 45 Vict. c. 71.
(4.) “Church property” in this section means all property accruing under the Irish Church Act, 1869, and transferred to the Irish Land Commission by the Irish Church Act Amendment Act, 1881.
Public loans.
17.—(1.) All sums due for principal or interest to the Public Works Loan Commissioners or to the Commissioners of Public Works in Ireland in respect of existing loans advanced on any security in Ireland shall on and after the appointed day be due to the Government of Ireland instead of the said Commissioners, and such body of persons as the Government of Ireland may appoint for the purpose shall have all the powers of the said Commissioners or their secretary for enforcing payment of such sums, and all securities for such sums given to such Commissioners or their secretary shall have effect as if the said body were therein substituted for those Commissioners or their secretary.
(2.) For the repayment of the said loans to the Consolidated Fund of the United Kingdom, the Irish Government shall pay annually into that fund by half-yearly payments on the first day of January and the first day of July, or on such other days as may be agreed on, such instalments of the principal of the said loans as will discharge all the loans within thirty years from the appointed day, and shall also pay interest half-yearly on so much of the said principal as from time to time remains unpaid at the rate of three per cent. per annum, and such instalments of principal and interest shall be paid out of the moneys carried to the customs and excise account under this Act, and if those are insufficient, out of the Consolidated Fund of Ireland.
Additional aid in case of war.
18. If Her Majesty declares that a state of war exists and is pleased to signify such declaration to the Irish Legislative Body by speech or message, it shall be lawful for the Irish Legislature to appropriate a further sum out of the Consolidated Fund of Ireland in aid of the army or navy, or other measures which Her Majesty may take for the prosecution of the war and defence of the realm, and to provide and raise money for that purpose; and all moneys so provided and raised, whether by loan, taxation, or otherwise, shall be paid into the Consolidated Fund of the United Kingdom.
Money bills and votes.
19.—(1.) It shall not be lawful for the Irish Legislative Body to adopt or pass any vote, resolution, address, or Bill for the raising or appropriation for any purpose of any part of the public revenue of Ireland, or of any tax, duty, or impost, except in pursuance of a recommendation from Her Majesty signified through the Lord-Lieutenant in the session in which such vote, resolution, address, or Bill is proposed.
(2.) Notwithstanding that the Irish Legislature is prohibited by this Act from making laws relating to certain subjects, that Legislature may, with the assent of Her Majesty in Council first obtained, appropriate any part of the Irish public revenue, or any tax, duty, or impost imposed by such Legislature, for the purpose of, or in connection with, such subjects.
Exchequer Division and revenue actions.
20.—(1.) On and after the appointed day, the Exchequer Division of the High Court of Justice shall continue to be a Court of Exchequer for revenue purposes under this Act, and whenever any vacancy occurs in the office of any judge of such Exchequer Division, his successor shall be appointed by Her Majesty on the joint recommendation of the Lord-Lieutenant of Ireland and the Lord High Chancellor of Great Britain.
(2.) The judges of such Exchequer Division appointed after the passing of this Act shall be removable only by Her Majesty on address from the two Houses of the Imperial Parliament, and shall receive the same salaries and pensions as those payable at the passing of this Act to the existing judges of such division, unless with the assent of Her Majesty in Council first obtained, the Irish Legislature alters such salaries or pensions, and such salaries and pensions shall be paid out of the moneys carried to the customs and excise account in pursuance of this Act, and if the same are insufficient shall be paid out of the Irish Consolidated Fund, and if not so paid shall be paid out of the Consolidated Fund of the United Kingdom.
(3.) An alteration of any rules relating to the procedure in such legal proceedings as are mentioned in this section shall not be made except with the approval of the Lord High Chancellor of Great Britain, and the sittings of the Exchequer division and the judges thereof shall be regulated with the like approval.
(4.) All legal proceedings instituted in Ireland by or against the Commissioners or any officers of customs or excise, or the Treasury, shall, if so required by any party to such proceedings, be heard and determined before the judges of such Exchequer division, or some or one of them, and any appeal from the decision in any such legal proceeding, if by a judge, shall lie to the said division, and if by the Exchequer division, shall lie to the House of Lords, and not to any other tribunal; and if it is made to appear to such judges, or any of them, that any decree or judgment in any such proceeding as aforesaid, has not been duly enforced by the sheriff or other officer whose duty it is to enforce the same, such judges or judge shall appoint some officer to enforce such judgment or decree; and it shall be the duty of such officer to take proper steps to enforce the same, and for that purpose such officer and all persons employed by him shall be entitled to the same immunities, powers, and privileges as are by law conferred on a sheriff and his officers.
(5.) All sums recovered in respect of duties of Customs and Excise, or under any Act relating thereto, or by an officer of Customs or Excise, shall, notwithstanding anything in any other Act, be paid to the Treasury, and carried to the Customs and Excise account under this Act.
Police
21. The following regulations shall be made with respect to Police, police in Ireland;
(a.) The Dublin Metropolitan Police shall continue and be subject as heretofore to the control of the Lord-Lieutenant as representing Her Majesty for a period of two years from the passing of this Act, and thereafter until any alteration is made by Act of the Legislature of Ireland, but such Act shall provide for the proper saving of all then existing interests, whether as regards pay, pensions, superannuation allowances, or otherwise.
(b.) The Royal Irish Constabulary shall, while that force subsists, continue and be subject as heretofore to the control of the Lord-Lieutenant as representing Her Majesty.
(c.) The Irish Legislature may provide for the establishment and maintenance of a police force in counties and boroughs in Ireland under the control of local authorities, and arrangements may be made between the Treasury and the Irish Government for the establishment and maintenance of police reserves.
Part II
Supplemental Provisions
Powers of Her Majesty
Power over certain lands reserved to Her Majesty.
22. On and after the appointed day there shall be reserved to Her Majesty—
(1.) The power of erecting forts, magazines, arsenals, dockyards, and other buildings for military or naval purposes;
(2.) The power of taking waste land, and, on making due compensation, any other land, for the purpose of erecting such forts, magazines, arsenals, dockyards, or other buildings as aforesaid, and for any other military or naval purpose, or the defence of the realm.
Legislative Body
Veto by first order of Legislative Body, how over-ruled.
23. If a Bill or any provision of a Bill is lost by disagreement between the two orders of the Legislative Body, and after a period ending with a dissolution of the Legislative Body, or the period of three years, whichever period is longest, such Bill, or a Bill containing the said provision, is again considered by the Legislative Body, and such Bill or provision is adopted by the second order and negatived by the first order, the same shall be submitted to the whole Legislative Body, both orders of which shall vote together on the Bill or provision, and the same shall be adopted or rejected according to the decision of the majority of the members so voting together.
Cesser of power of Ireland to return members to Parliament.
24. On and after the appointed day Ireland shall cease, except in the event hereafter in this Act mentioned, to return representative peers to the House of Lords or members to the House of Commons, and the persons who on the said day are such representative peers and members shall cease as such to be members of the House of Lords and House of Commons respectively.
Decision of Constitutional Questions
Constitutional questions to be submitted to Judicial Committee.
25. Questions arising as to the powers conferred on the Legislature of Ireland under this Act shall be determined as follows:—
(a.) If any such question arises on any Bill passed by the Legislative Body, the Lord-Lieutenant may refer such question to Her Majesty in Council;
(b.) If, in the course of any action or other legal proceeding, such question arises on any Act of the Irish Legislature, any party to such action or other legal proceeding may, subject to the rules in this section mentioned, appeal from a decision on such question to Her Majesty in Council;
(c.) If any such question arises otherwise than as aforesaid on any Act of the Irish Legislature, the Lord-Lieutenant or one of Her Majesty’s principal Secretaries of State may refer such question to Her Majesty in Council;
(d.) Any question referred or appeal brought under this section to Her Majesty in Council shall be referred for the consideration of the Judicial Committee of the Privy Council;
(e.) The decision of Her Majesty in Council on any question referred or appeal brought under this section shall be final, and a Bill which may be so decided to be, or contain a provision, in excess of the powers of the Irish Legislature shall not be assented to by the Lord-Lieutenant; and a provision of any Act which is so decided to be in excess of the powers of the Irish Legislature shall be void;
(f.) There shall be added to the Judicial Committee when sitting for the purpose of considering questions under this section, such members of Her Majesty’s Privy Council, being or having been Irish judges, as to Her Majesty may seem, meet.
(g.) Her Majesty may, by Order in Council from time to time, make rules as to the cases and mode in which and the conditions under which, in pursuance of this section, questions may be referred and appeals brought to Her Majesty in Council, and as to the consideration thereof by the Judicial Committee of the Privy Council, and any rules so made shall be of the same force as if they were enacted in this Act.
(h.) An appeal shall not lie to the House of Lords in respect of any question in respect of which an appeal can be had to Her Majesty in Council in pursuance of this section.
Lord-Lieutenant
Office of Lord-Lieutenant.
26.—(1.) Notwithstanding anything to the contrary contained in any Act of Parliament, every subject of Her Majesty shall be eligible to hold and enjoy the office of Lord-Lieutenant of Ireland, without reference to his religious belief.
(2.) The salary of the Lord-Lieutenant shall continue to be charged on the Consolidated Fund of the United Kingdom, and the expenses of his household and establishment shall continue to be defrayed out of moneys to be provided by Parliament.
(3.) All existing powers vested by Act of Parliament or otherwise in the Chief Secretary for Ireland may, if no such officer is appointed, be exercised by the Lord-Lieutenant until other provision is made by Act of the Irish Legislature.
(4.) The Legislature of Ireland shall not pass any Act relating to the office or functions of the Lord-Lieutenant of Ireland.
Judges and Civil Servants
Judges to be removable only on address.
27. A Judge of the Supreme Court of Judicature or other superior court of Ireland, or of any county court or other court with a like jurisdiction in Ireland, appointed after the passing of this Act, shall not be removed from his office except in pursuance of an address to Her Majesty from both orders of the Legislative Body voting separately, nor shall his salary be diminished or right to pension altered during his continuance in office.
Provisions as to judges and other persons having salaries charged on the Consolidated Fund.
28.—(1.) All persons who at the passing of this Act are judges of the Supreme Court of Judicature or county court judges, or hold any other judicial position in Ireland, shall, if they are removable at present on address to Her Majesty of both Houses of Parliament, continue to be removable only upon such address from both Houses of the Imperial Parliament, and if removable in any other manner shall continue to be removable in like manner as heretofore; and such persons, and also all persons at the passing of this Act in the permanent civil service of the Crown in Ireland whose salaries are charged on the Consolidated Fund of the United Kingdom, shall continue to hold office and to be entitled to the same salaries, pensions, and superannuation allowances as heretofore, and to be liable to perform the same or analogous duties as heretofore; and the salaries of such persons shall be paid out of the moneys carried to the customs and excise account under this Act, or if these moneys are insufficient, out of the Irish Consolidated Fund, and if the same are not so paid, shall continue charged on the Consolidated Fund of the United Kingdom.
(2.) If any of these said persons retires from office with the approbation of Her Majesty before he has completed the period of service entitling him to a pension, it shall be lawful for Her Majesty, if she thinks fit, to grant to that person such pension, not exceeding the pension to which he would have been entitled if he had completed the said period of service, as to Her Majesty seems meet.
As to persons holding civil service appointments.
29.—(1.) All persons not above provided for and at the passing of this Act serving in Ireland in the permanent civil service of the Crown shall continue to hold their offices and receive the same salaries, and to be entitled to the same gratuities and superannuation allowances as heretofore, and shall be liable to perform the same duties as heretofore or duties of similar rank, but any of such persons shall be entitled at the expiration of two years after the passing of this Act to retire from office, and at any time if required by the Irish Government shall retire from office, and on any such retirement shall be entitled to receive such payment as the Treasury may award to him in accordance with the provisions contained in the Fourth Schedule to this Act.
(2.) The amount of such payment shall be paid to him out of the moneys carried to the customs and excise account under this Act, or, if those moneys are insufficient, out of the Irish Consolidated Fund, and so far as the same are not so paid shall be paid out of moneys provided by Parliament.
34 & 35 Vict. c. 36.
(3.) The Pensions Commutation Act, 1871, shall apply to all persons who, having retired from office, are entitled to any annual payment under this section in like manner as if they had retired in consequence of the abolition of their offices.
(4.) This section shall not apply to persons who are retained in the service of the Imperial Government.
Provision for existing pensions and superannuation allowances.
30. Where before the passing of this Act any pension or superannuation allowance has been granted to any person on account of service as a judge of the Supreme Court of Judicature of Ireland or of any court consolidated into that court, or as a county court judge, or in any other judicial position, or on account of service in the permanent civil service of the Crown in Ireland otherwise than in some office, the holder of which is, after the passing of this Act, retained in the service of the Imperial Government, such pension or allowance, whether payable out of the Consolidated Fund or out of moneys provided by Parliament, shall continue to be paid to such person, and shall be so paid out of the moneys carried to the customs and excise account under this Act, or, if such moneys are insufficient, out of the Irish Consolidated Fund, and so far as the same is not so paid, shall be paid as heretofore out of the Consolidated Fund of the United Kingdom or moneys provided by Parliament.
Transitory Provisions
Transitory provisions in schedule.
31. The provisions contained in the Fifth Schedule to this Act relating to the mode in which arrangements are to be made for setting in motion the Irish Legislative Body and Government and for the transfer to the Irish Government of the powers and duties to be transferred to them under this Act, or for otherwise bringing this Act into operation, shall be of the same effect as if they were enacted in the body of this Act.
Miscellaneous
Post Office and savings banks.
32. Whenever an Act of the Legislature of Ireland has provided for carrying on the postal and telegraphic service with respect to the transmission of letters and telegrams in Ireland, and the post-office and other savings banks in Ireland, and for protecting the officers then in such service, and the existing depositors in such post-office savings banks, the Treasury shall make arrangements for the transfer of the said service and banks, in accordance with the said Act, and shall give public notice of the transfer, and shall pay all depositors in such post office savings bank who request payment within six months after the date fixed for such transfer, and after the expiration of such six months the said depositors shall cease to have any claim against the Postmaster-General or the Consolidated Fund of the United Kingdom, but shall have the like claim against the Consolidated Fund of Ireland, and the Treasury shall cause to be transferred in accordance with the said Act the securities representing the sums due to the said depositors in post office savings banks and the securities held for other savings banks.
Audit.
33. Save as otherwise provided by the Irish Legislature,—
(a.) The existing law relating to the Exchequer and the Consolidated Fund of the United Kingdom shall apply to the Irish Exchequer and Consolidated Fund, and an officer shall from time to time be appointed by the Lord-Lieutenant to fill the office of the Comptroller General of the receipt and issue of Her Majesty’s Exchequer and Auditor-General of public accounts so far as respects Ireland; and
29 & 30 Vict. c. 39.
(b.) The accounts of the Irish Consolidated Fund shall be audited as appropriation accounts in manner provided by the Exchequer and Audit Departments Act, 1866, by or under the direction of the holder of such office.
Application of parliamentary law.
34.—(1.) The privileges, immunities, and powers to be held, enjoyed, and exercised by the Irish Legislative Body, and the members thereof, shall be such as are from time to time defined by Act of the Irish Legislature, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the House of Commons, and by the members thereof.
(2.) Subject as in this Act mentioned, all existing laws and customs relating to the members of the House of Commons and their election, including the enactments respecting the questioning of elections, corrupt and illegal practices, and registration of electors, shall, so far as applicable, extend to elective members of the first order and to members of the second order of the Irish Legislative Body.
Provided that—
(a.) The law relating to the offices of profit enumerated in Schedule H. to the Representation of the People Act, 1867, shall apply to such offices of profit in the government of Ireland not exceeding ten, as the Legislature of Ireland may from time to time direct;
(b.) After the first dissolution of the Legislative Body, the Legislature of Ireland may, subject to the restrictions in this Act mentioned, alter the laws and customs in this section mentioned.
Regulations for carrying Act into effect.
35.—(1.) The Lord-Lieutenant of Ireland may make regulations for the following purposes:—
(a.) The summoning of the Legislative Body and the election of a Speaker, and such adaptation to the proceedings of the Legislative Body of the procedure of the House of Commons as appears to him expedient for facilitating the conduct of business by that body on their first meeting;
(b.) The adaptation of any law relating to the election of representative peers;
(c.) The adaptation of any laws and customs relating to the House of Commons or the members thereof to the elective members of the first order and to members of the second order of the Legislative Body; and
(d.) The mode of signifying their assent or election under this Act by representative peers or Irish members of the House of Commons as regards becoming members of the Irish Legislative Body in pursuance of this Act.
(2.) Any regulations so made shall, in so far as they concern the procedure of the Legislative Body, be subject to alteration by Standing Orders of that Body, and so far as they concern other matters, be subject to alteration by the Legislature of Ireland, but shall, until alteration, have the same effect as if they were inserted in this Act.
Saving of powers of House of Lords.
36. Save as is in this Act provided with respect to matters to be decided by Her Majesty in Council, nothing in this Act shall affect the appellate jurisdiction of the House of Lords in respect of actions and suits in Ireland, or the jurisdiction of the House of Lords to determine the claims to Irish peerages.
Saving of rights of Parliament.
37. Save as herein expressly provided all matters in relation to which it is not competent for the Irish Legislative Body to make or repeal laws shall remain and be within the exclusive authority of the Imperial Parliament, whose power and authority in relation thereto, save as aforesaid, shall in nowise be diminished or restrained by anything herein contained.75
Continuance of existing laws, courts, officers, &c.
38.—(1.) Except as otherwise provided by this Act, all existing laws in force in Ireland, and all existing courts of civil and criminal jurisdiction, and all existing legal commissions, powers, and authorities, and all existing officers, judicial, administrative, and ministerial and all existing taxes, licence, and other duties, fees, and other receipts in Ireland shall continue as if this Act had not been passed; subject, nevertheless, to be repealed, abolished, or altered in manner and to the extent provided by this Act; provided that, subject to the provisions of this Act, such taxes, duties, fees, and other receipts shall, after the appointed day, form part of the public revenues of Ireland.
(2.) The Commissioners of Inland Revenue and the Commissioners of Customs, and the officers of such Commissioners respectively, shall have the same powers in relation to any articles subject to any duty of excise or customs, manufactured, imported, kept for sale, or sold, and any premises where the same may be, and to any machinery, apparatus, vessels, utensils, or conveyance used in connexion therewith, or the removal thereof, and in relation to the person manufacturing, importing, keeping for sale, selling, or having the custody or possession of the same as they would have had if this Act had not been passed.
Mode of alteration of Act.
39.—(1.) On and after the appointed day this Act shall not, except such provisions thereof as are declared to be alterable by the Legislature of Ireland, be altered except—
(a.) by Act of the Imperial Parliament and with the consent of the Irish Legislative Body testified by an address to Her Majesty, or
(b.) by an Act of the Imperial Parliament, for the passing of which there shall be summoned to the House of Lords the peerage members of the first order of the Irish Legislative Body, and if there are no such members then twenty-eight Irish representative peers elected by the Irish peers in manner heretofore in use, subject to adaptation as provided by this Act; and there shall be summoned to the House of Commons such one of the members of each constituency, or in the case of a constituency returning four members such two of those members, as the Legislative Body of Ireland may select, and such peers and members shall respectively be deemed, for the purpose of passing any such Act, to be members of the said Houses of Parliament respectively.
(2.) For the purposes of this section it shall be lawful for Her Majesty by Order in Council to make such provisions for summoning the said peers of Ireland to the House of Lords and the said members from Ireland to the House of Commons as to Her Majesty may seem necessary or proper, and any provisions contained in such Order in Council shall have the same effect as if they had been enacted by Parliament.
Definitions.
40. In this Act—
The expression “the appointed day” shall mean such day after the thirty-first day of March in the year one thousand eight hundred and eighty-seven as may be determined by order of Her Majesty in Council.
The expression “Lord-Lieutenant” includes the lords justices or any other chief governor or governors of Ireland for the time being.
The expression “Her Majesty the Queen,” or “Her Majesty” or “the Queen,” includes the heirs and successors of Her Majesty the Queen.
The expression “Treasury,” means the Commissioners of Her Majesty’s Treasury.
The expression “Treaty” includes any convention or arrangement.
The expression “existing” means existing at the passing of this Act.
The expression “existing constituency” means any county or borough, or division of a county or borough, or a University returning at the passing of this Act a member or members to serve in Parliament.
The expression “duties of excise” does not include a duty received in respect of any license whether for the sale of intoxicating liquors or otherwise.
The expression “financial year” means the twelve months ending on the thirty-first day of March.
Short title of Act.
41. This Act may be cited for all purposes as the Irish Government Act, 1886.
First Schedule
First Order of the Irish Legislative Body
| Electoral Districts. | Number of Members. | Rotation. |
Second Schedule
Provisions Relating to the First Order of the Irish Legislative Body
Third Schedule
BOUNDARIES OF DIVISIONS OF THE CITY OF CORK FOR THE PURPOSE OF RETURNING MEMBERS TO THE SECOND ORDER OF THE LEGISLATIVE BODY.
Fourth Schedule
Provisions as to Superannuation Allowances of Persons in the Permanent Civil Service
Fifth Schedule
Transitory Provisions
Footnotes
These are—
i. Home Rule as Federalism.
ii. Home Rule as Colonial Independence.
iii. Home Rule as the Restoration of Grattan’s Constitution.
iv. Home Rule under the Government of Ireland Bill, or, to use a convenient name, under the Gladstonian constitution. Chap. vii.
2 See Dicey, Law of the Constitution (2nd ed.), p. 80.
3 De Beaumont’s opinions on this point are perfectly clear: they represent the judgment of an extremely able thinker, who approaches the problems presented by Irish society with an impartiality which from the nature of things is unattainable by any Englishman or Irishman. His utterances will moreover command the more respect from the consideration that De Beaumont, belonging as he did to the school of his intimate friend De Tocqueville, was inclined rather to overrate than to underrate the virtues of self-government; whilst as a Frenchman he possessed a knowledge which cannot fall to any Englishman of the benefits conferred upon the people by a good administration of the French type. The following extracts from a chapter too long for complete citation, which is written to show that Ireland needs a centralised government, deserve the most careful attention. The whole chapter, and indeed the whole work to which it belongs, ought at the present moment to be familiar to every English Liberal:—
“Pour détruire le pouvoir politique de l’aristocratie, il faudrait lui ôter l’application quotidienne des lois, comme on l’a privée précédemment àdu pouvoir de les faire. Il faudrait, par conséquent, modifier profondément le système administratif et judiciaire qui repose sur l’institution des juges de paix et sur l’organisation des grands jurys, tels qu’ils sont constitués aujourd’hui. Et d’abord, pour exécuter cette réforme, il faudrait centraliser le pouvoir.
“Plus on considère l’état de l’Irlande, et plus il semble qu’à tout prendre un gouvernement central fortement constitué serait, du moins pour quelque temps, le meilleur que puisse avoir ce pays. Une aristocratie existe, qu’on veut réformer. Mais à qui remettre le pouvoir qu’on va retirer de ses mains? Aux classes moyennes?—Elles ne font que de naître en Irlande. L’avenir leur appartient; mats ne compromettront-elles pas cet avenir, si la charge de mener la société est confiée dès aujourd’hui à leurs mains inhabiles et à leurs ardentes passions?
“Telle est aujourd’hui en Irlande la situation des partis, que l’on ne peut obtenir quelque justice des pouvoirs politiques, si on les laisse à l’aristocratie protestante, et que l’on ne saurait guere en espérer davantage, si on les donne aussitôt à la classe moyenne catholique qui s’élève.
“Ce qu’il faudrait à l’Irlande, ce serait une administration supérieure aux partis, à l’ombre de laquelle les classes moyennes pussent grandir, se développer et s’instruire, pendant que l’aristocratie perdrait son pouvoir.
“Il n’entre, du reste, ni dans mon désir, ni dans mon plan, d’expliquer la forme et le mécanisme de la centralisation qui conviendrait à l’Irlande, et dont je me borne à reconnaître en principe l’utilité passagère pour ce pays; je ne hasarderai, sur ce sujet, qu’une seule idée pratique.
“C’est que, pour organiser en Irlande un gouvernement central puissant, il faudrait de plus en plus resserrer le lien d’union qui attache l’Irlande à l’Angleterre, rapprocher le plus possible Dublin de Londres, et faire de l’Irlande un comté anglais.
“On ne conteste point que l’Irlande ait besoin d’un gouvernement spécial; et s’il y a nécessité de la soumettre à un régime législatif autre que celui de l’Angleterre, il faut bien aussi des agents particuliers pour appliquer des règles différentes d’administration. Mais, ceci étant admis, l’on ne voit pas ce qui aujourd’hui empêcherait de placer le siége du gouvernement irlandais dans la première ville de l’empire britannique.
“La réforme de la vice-royauté et l’abolition des administrations locales d’Irlande ne sont, sans doute, que des changements de forme. Mais ce sont des moyens pratiques indispensables pour exécuter les réformes politiques dont ce pays a besoin. Il faut que, pendant la période de transition où se trouve l’Irlande, ceux qui la gouvernent soient placés absolument en dehors d’elle, de ses moeurs, de ses passions; il faut que son gouvernement cesse complétement d’être irlandais; il faut qu’il soit entièrement, non pas anglais, mais remis à des Anglais.”—2 De Beaumont, l’Irlande, Sociale, Politique et Religieuse, pp. 124-129
4 For the constitution of Austria-Hungary see Ulbrich’s Oesterreich-Ungarn in Marquardsen’s Handbuch des Oeffentlichen Rechts; Francis Deák, with preface by M.E. Grant Duff; Home Rule in Austria-Hungary, by David King, in the Nineteenth Century, January 1886, p. 35.
5 Ulbrich, pp. 15, 76, 77.
6 See Marquardsen, 28-30.
7 This is, in my judgment, true even of such federations as the United States or the Swiss confederacy.
8 Froude’s ‘English in Ireland,’ vol. 3, pp. 581, 582.
9 See especially on this subject 1 De Beaumont, ‘L’Irlande,’ Partie Historique, pp. 15-207.
10 “On ne saurait considérer attentivement l’Irlande, étudier son histoire et ses révolutions, observer ses moeurs et analyser ses lois, sans reconnaître que ses malheurs, auxquels ont concouru tant d’accidents funestes, ont eu et ont encore de nos jours, pour cause principale, une cause première, radicale, permanente; et qui domine toutes les autres; cette cause, c’est une mauvaise aristocratie.” 1 De Beaumont, ‘L’Irlande,’ deuxième partie, p. 228. The only objection which may be fairly taken to De Beaumont’s language, though not to his essential meaning, is, that the words he uses occasionally suggest the idea that he attributes some special vice of nature, so to speak, to the landed classes in Ireland, whilst there is, of course, no reason to suppose that the original Norman invaders of Ireland were a whit worse than the Normans they left behind them in England, or that the Cromwellian settlers did not possess the virtues which distinguished Puritan soldiers. What De Beaumont really means is that the aristocracy, or landed gentry, have been from first to last placed in a false position, which has led to their exhibiting the vices, with few of the virtues, of aristocratic government.
11 Compare 1 De Beaumont, ‘L’Irlande Sociale,’ &c., pp. 253-256.
12 See Dicey, ‘Law of the Constitution’ (Second Edition), pp. 181-210; and compare 1 De Beaumont, ‘L’Irlande Sociale,’ &c., pp. 253-299.
13 Cromwell’s reputation as a statesman suffers even more than that of most great men from the indiscriminating eulogy of admirers. The merit of his Irish policy was not his severity to Catholics, but his equity to Protestants. If he did not acknowledge the equality of man, he at any rate acknowledged what English statesmanship before and after his time refused to admit—the equality of Englishmen, at least when Protestants. His policy handed down to us a legacy of justifiable hatred on the part of Irish Catholics. But it is the fault not of the Protector, but of his successors, that his policy did not ensure to England the loyalty of every Protestant in Ireland.
14 The penal laws against the Catholics in England were as severe as those in Ireland. Their practical effect and working was however very different in the two countries. See 1 Lecky,’History of England,’ pp. 268-310.
15 See Walpole, ‘Short History of the Kingdom of Ireland,’ p. 176.
16 See a speech of Lord Clare made in defence of the Bill for Establishing the Union with England, and republished by the Irish Loyal and Patriotic Union.
17 1 De Beaumont, ‘L’Irlande Sociale,’ p. 251. It is of primary consequence that Englishmen should realise the undoubted fact, that agrarian conspiracies and agrarian outrages, such as those which baffle the English Government in Ireland, are known to foreign countries. For centuries the question of tenant-right, in a form very like that in which it arises in Ireland, has been known in the parts of France near Saint-Quentin under the name of the droit de marché. In France, as in Ireland, tenants have claimed a right unknown to the law, and have enforced the right by outrage, by boycotting, by murder. The Dépointeur is the land grabber, and is treated by French peasants precisely as the Irish land grabber is treated by Irish peasants. See Calonne, ‘La Vie Agricole, sous l’Ancien Régime,’ pp. 66-69. Precisely the same phenomena have appeared in parts of Belgium, where for centuries there has been, in respect of land, the conflict to which we are accustomed in Ireland, between the law of the Courts and the law of the people. “From the commencement of the year 1836 to the end of 1842 there had been” [in consequence of this conflict] “forty-three acts of incendiarism, eleven assassinations, and seven agrarian outrages entailing capital punishment,” all within a limited part of Belgium. See Parliamentary Reports on Tenure of Land in Countries of Europe, 1869, p. 118-123. In Belgium decisive measures of punishment at last put an end to agrarian outrages. What should be specially noted is that in France and Belgium crimes in character exactly resembling the agrarian outrages which take place in Ireland had, it is admitted, no connection whatever with national, or even it would seem with general political feeling.
18 See 1 De Beaumont, ‘L’Irlande Sociale,’ &c., p. 251.
19 2 De Beaumont, ‘L’Irlande Sociale, Politique et Religeuse.’ Septième édition, pp. 135 and 137.
20 A Home Ruler may in this matter take up one position which is consistent. He may say that England can allow to be carried out through the agency of an Irish Parliament a policy which no English Parliament could itself adopt. To put the matter plainly, an English Parliament which cannot for very shame rob Irish landlords of their property may, it is suggested, create an Irish Parliament with authority to rob them. This position is consistent, but it is disgraceful. To ascribe it to a fair opponent would be gross controversial unfairness.
21 A reader who wishes to see the American view put in its best and strongest form should read Mr. E.L. Godkin’s article on “American Home Rule,” Nineteenth Century, June, 1886, p. 793. I entirely disagree with the general conclusion to which the article is intended to lead, but I am anxious to acknowledge the importance of the information and the arguments which it contains.
22 See pp. 87-89, ante.
23 See ‘American Home Rule,’ Nineteenth Century, June, 1886, pp. 793, 803, 804.
24 Nineteenth Century, June, 1886, p. 801.
25 Contrast the Coercion Acts of 1881 and 1882 respectively. For list of Coercion Acts see “Federal Union with Ireland,” by R.B. O’Brian, Nineteenth Century, No. 107, p. 35.
26 In England the Courts can change the venue for the trial of a criminal. In Scotland the Lord Advocate can always (I am told) bring any case he chooses to trial before the High Court of Justiciary in Edinburgh, and the same thing could be done by the Court on the application of the prisoner. In Scotland, again, any Sheriff or Chief Magistrate of a Burgh could prohibit a meeting, however lawful, which he thought likely to endanger the peace. The provisions of the last Irish Coercion Act, Prevention of Crime (Ireland) Act, 1882, 45 & 46 Vict. c. 25, s. 16, giving power to a magistrate where an offence had been committed to summon and examine witnesses, even though no person is charged with the offence, formed, I believe, part of the draft criminal code for England.
27 See for an admirable statement of this argument, “Alternative Policies in Ireland,” in the Nineteenth Century for February, 1886.
28 See ‘Economic Value of Ireland to Great Britain,’ by Robert Giffen, The Nineteenth Century, March, 1886, p. 229.
29 Compare Mr. Gladstone’s speech of 8th April, 1886, ‘The Times Parliamentary Debates,’ pp. 130, 131; and Mr. Gladstone’s speech of 13th April, ibid., pp. 255, 256.
30 Compare ibid., pp. 130, 132.
31 Compare the following expressions in Mr. Gladstone’s speeches:—“The essential conditions of any plan that Parliament can be asked or could be expected to entertain are, in my opinion, these:—The unity of the Empire must not be placed in jeopardy; the safety and welfare of the whole—if there is an unfortunate conflict, which I do not believe—the welfare and security of the whole must be preferred to the security and advantage of the part. The political equality of the three countries must be maintained. They stand by statute on a footing of absolute equality, and that footing ought not to be altered or brought into question. There should be what I will at present term an equitable distribution of Imperial burdens. Next I introduce a provision which may seem to be exceptional, but which in the peculiar circumstances of Ireland, whose history unhappily has been one long chain of internal controversies as well as of difficulties external, is necessary in order that there may be reasonable safeguards for the minority. I am asked why there should be safeguards for the minority.
“I have spoken now of the essential conditions of a good plan for Ireland, and I add only this—that in order to be a good plan it must be a plan promising to be a real settlement of Ireland. (Speech of Mr. Gladstone, 8th April, 1886, ‘The Times Parliamentary Debates,’ pp. 130, 131.)
“I laid down, I say, five essential conditions, from which it appeared to me we could under no circumstances depart. These were the essential conditions under which in our opinion the granting of a domestic Legislature to Ireland would be justifiable and wise—first, that it must be consistent with Imperial unity; secondly, that it must be founded upon the political equality of the three nations; thirdly, that there must be an equitable distribution of Imperial burdens; fourthly, that there should be safeguards for the minority; and, fifthly, that it should be in the nature of a settlement, and not of a mere provocation to the revival of fresh demands, which, according to the right hon. gentleman, exceeded all reasonable expectation and calculation.” (Speech of Mr. Gladstone, 13th April, 1886, ‘The Times Parliamentary Debates,’ p. 256.) Let it be observed that when Mr. Gladstone speaks of the unity of the Empire he means the sovereignty of Parliament, for in the same speech from which these extracts are taken he says, “The unity of the Empire rests upon the supremacy of Parliament and on considerations much higher than considerations merely fiscal.” (‘The Times Parliamentary Debates,’ p. 132.)
32 Dicey, ‘Law of the Constitution,’ lecture iv. Parliamentary Sovereignty and Federalism.
33 A singular instance of the attempt to dissolve a country into States deserves notice. In 1852 a constitution was devised for New Zealand, under which the country was to be governed by a central legislature and subordinate provincial governments and councils. This artificial federation was of short duration; the provincial governments were in 1875 abolished by an Act of the General Assembly.—Todd, ‘Parliamentary Government,’ pp. 320-322.
34 See Dicey, ‘Law of the Constitution,’ 2nd ed., pp. 35-79.
35 Contemporary Review, vol. xii., p. 908.
36 Contemporary Review, vol. xli., p. 921.
37 ‘Mr. Gladstone’s Irish Constitution,’ Contemporary Review, May, 1886, p. 616.
38 ‘Arguments for and against Home Rule,’ by the Rev. Malcolm MacColl, M.A., p. 71.
39 ‘The Irish Question,’ by the Right Hon. W.E. Gladstone, pp. 36, 37.
40 ‘American Home Rule,’ by E.L. Godkin, Nineteenth Century, June, 1886, pp. 793, 802.
41 See Todd, ‘Parliamentary Government in the British Colonies,’ pp. 274-303, and especially p. 281, as to the position of the colonial troops in Victoria.
42 See Tarring, ‘Chapters on the Law relating to the Colonies,’ pp. 79-85.
43 See Dicey, ‘Law of the Constitution,’ pp. 105, 106.
The somewhat complicated principles which govern what is popularly called the right of veto on Bills passed by Colonial Legislatures, are thus stated in the ‘Rules and Regulations’ published for the use of the Colonial Office, Chapter III., Legislative Councils and Assemblies, Rules 48-55:—
“48. In every Colony the Governor has authority either to give or to withhold his assent to laws passed by the other branches or members of the Legislature, and until that assent is given no such law is valid or binding.
“49. Laws are in some cases passed with suspending clauses; that is, although assented to by the Governor they do not come into operation or take effect in the Colony until they shall have been specially confirmed by Her Majesty, and in other cases Parliament has for the same purpose empowered the Governor to reserve Laws for the Crown’s assent, instead of himself assenting or refusing his assent to them.
“50. Every Law which has received the Governor’s assent (unless it contains a suspending clause) comes into operation immediately or at the time specified in the Law itself. But the Crown retains power to disallow the Law; and if such power be exercised at any time afterwards, the Law ceases to have operation from the date at which such disallowance is published in the Colony.
“51. In Colonies having Representative Assemblies the disallowance of any Law, or the Crown’s assent to a reserved Bill, is signified by Order in Council. The confirmation of an Act passed with a suspending clause is not signified by Order in Council unless this mode of confirmation is required by the terms of the suspending clause itself, or by some special provision in the constitution of the Colony.
“52. In Crown Colonies the allowance or disallowance of any Law is generally signified by despatch.
“53. In some cases a period is limited, after the expiration of which Local Enactments, though not actually disallowed, cease to have the authority of Law in the Colony, unless before the lapse of that time Her Majesty’s confirmation of them shall have been signified there; but the general rule is otherwise.
“54. In Colonies possessing Representative Assemblies, Laws purport to be made by the Queen or by the Governor on Her Majesty’s behalf or sometimes by the Governor alone, omitting any express reference to Her Majesty, with the advice and consent of the Council and Assembly. They are almost invariably designated as Acts. In Colonies not having such Assemblies, Laws are designated as Ordinances, and purport to be made by the Governor with the advice and consent of the Legislative Council (or in British Guiana of the Court of Policy).
“55. In West Indian Islands or African Settlements which form part of any general Government, every Bill or Draft Ordinance must be submitted to the Governor-in-Chief before it receives the assent of the Lieutenant-Governor or Administrator. If the Governor-in-Chief shall consider any amendment indispensable, he may either require that amendment to be made before the Law is brought into operation, or he may authorize the officer administering to assent to the Bill or Draft on the express engagement of the Legislature to give effect to the Governor-in-Chief’s recommendation by a supplementary Enactment.”
The effect of these Regulations may be best understood by taking the following supposed case as an example of their operation.
The Houses of the Victorian Parliament pass a Bill legalising the marriage of a widower with his deceased wife’s sister.
i. The Governor refuses his assent. The Bill is lost and never becomes law.
ii. The Governor assents to the Bill on the 1st of January. It thereupon becomes an Act, and law in Victoria.
iii. The Crown disallows the Act on the 1st of April. The disallowance is published in Victoria on the 1st of May. From the 1st of May the Act ceases to be law in any part of the British Dominions, but marriages made under it between the 1st of January and the 1st of May are valid.
iv. The Crown allows the Bill. It thereupon becomes an Act which continues in force in Victoria until it be repealed either by the British Parliament or by the Victorian Parliament.
v. The Bill contains a clause that it shall not come into force unless and until allowed by the Crown within two years of its passing. It is not so allowed, it never comes into force, or in other words never becomes law.
The point to be noted is that the Crown, or in reality the Colonial Office, has and often exercises the power of placing a veto upon any Colonial law whatever.
44 Compare ‘Victorian Parliamentary Paper,’ 1883, 2 S., No. 22, and the Times of September 27, October 2, 5, 10, 12, 15 and 18, 1883.
45 See Todd, ‘Parliamentary Government in the Colonies,’ p. 283.
46 Todd, p. 283.
47 See, e.g., a letter by Mr. Lecky in the Times of January 13, 1886.
48 See pp. 221, 222, post.
49 See a letter in the Spectator of January 2, 1886, on ‘Home Rule or Separation,’ by Mr. J. Cotter Morison.
50 See p. 197, ante.
51 The Times, May 5, 1886.
52 Under the political arrangements connecting the two countries, it was practically impossible that the two crowns could by legal means be separated without the assent of the English Parliament. George III. was necessarily a member both of the English and of the Irish Parliaments; and it is inconceivable that as King of Ireland he should have assented to a bill passed by the Irish Houses of Parliament which was strenuously opposed by the English Houses of Parliament. The madness of the King raised a case not provided for by the Constitution, and the accidental difference of opinion between the English and Irish Houses of Parliament, as to the Regency, has been treated as possessing more importance than from a constitutional point of view belonged to it.
53 See Appendix for the Government of Ireland Bill. It is there printed in extenso. The clauses which mainly concern the points discussed in the following pages are printed in italics. Readers who wish to understand my comments on the Gladstonian Constitution, should study the Bill itself. I am anxious to call attention to its words, because I am quite aware that on more than one point the interpretation put by me upon its provisions will be disputed by supporters of Mr. Gladstone’s policy. My interpretation is, I believe, sound, but it would be unfair not to give my readers the opportunity of judging for themselves as to its soundness.
54 Criticism of particular provisions was made the easier by the fact that hesitations of statesmanship betrayed themselves throughout the Bill in blunders of draughtsmanship. The very heading of the Bill is a misdescription, and involves confusion of ideas. The expressions “status of the Crown,” “Executive Government,” “Imperial Parliament,” are from a legal point of view open to severe criticism; and the substitution of the name “Irish legislature” or “Legislature of Ireland” for the plain intelligible term Irish Parliament, involves something like political cowardice. For errors of this kind, though in one sense errors of draughtsmanship, official draughtsmen are, it must in fairness be remembered, no more responsible than is an amanuensis for the erasures and blots which mar a letter written or re-written to suit the contradictory views of a writer who does not quite know his own meaning and is not anxious to put his meaning into plain words. (See for some excellent criticisms on the Government of Ireland Bill two letters in the St. James’s Gazette of 20th and 22nd April, 1880 signed II.)
55 My statement that the Government of Ireland Bill repeals the main provisions of the Act of Union is made, not because I anticipate that the Bill if passed would lead to a repeal of the Union, but because it is my opinion that the Bill if passed would, as a matter of law, repeal the provisions of that Act, under which the United Kingdom is represented in one and the same Parliament to be styled the Parliament of Great Britain and Ireland. The effect of the Bill would be in very general terms that Ireland would be represented in a Parliament which contained no English or Scotch representatives, and Great Britain would be represented in a Parliament which contained no Irish representatives. Occasionally and for one definite purpose, and no other, namely for the purpose of modifying the terms of the Gladstonian Constitution, a Parliament might be convened which contained representatives from England, Scotland, and Ireland. By what name any one of these assemblies might be called is a matter of indifference; but that either the British Parliament which contained no Irish representatives, or the Irish Parliament which contained no English or Scotch representatives, or the exceptional and only occasionally convoked body whose one function is to modify a single Act of Parliament, could be considered by any lawyer the “one and the same Parliament” in which the United Kingdom is now represented, is in my judgment all but incredible. If, however, the term “repeal” causes offence or misunderstanding, let us substitute the word “modify,” which, however, I believe to be less accurate. The lay reader ought to be reminded that “Statutes may be repealed either by express words contained in later Acts of Parliament, or by implication,” and that “a repeal by implication is effected when the provisions of a later enactment are so inconsistent with, or repugnant to, the provisions of an earlier enactment that the two cannot stand together” (Wilberforce, ‘Statute Law,’ p. 310). My contention is that the Government of Ireland Bill would on becoming law be so inconsistent with portions of 39 & 40 Geo. III. cap. 67, as to amount to a repeal thereof. (For a statement of an opposite opinion, see Mr. Gladstone’s pamphlet on the Irish Question pp. 38, 39.)
56 The Government of Ireland Bill, clause 7.
57 See the Government of Ireland Bill, clauses 1, 9.
58 See the Government of Ireland Bill, clause 7.
59 Ibid., clause 25.
60 Ibid., clause 7.
61 As to the disallowance of Colonial bills, see pp. 202-5, ante.
62 See the Government of Ireland Bill, clause 25, sub-clause (a), (b) and (c).
63 Government of Ireland Bill, clause 24.
64 Government of Ireland Bill, clauses 37, 39. On the whole question as to the mode in which the Gladstonian Constitution, or in other words the Government of Ireland Bill, is intended to be altered, readers are specially referred to the terms of the Bill itself. The whole matter is involved in so much controversy that one can hardly make any statement about it which an opponent will not question. The parts of the Bill to be studied are clauses 37 and 39.
65 See Government of Ireland Bill, clause 39.
66 I am quite aware that the account I have given of the proposed Gladstonian Constitution is likely not to be accepted as correct by some of the supporters of the Government of Ireland Bill. That measure by designating both what I have termed the British Parliament and the Imperial Parliament by the one name Imperial Parliament, conceals in my judgment the extent of the alteration which the Bill contemplates. For the sake of clearness of thought I must request my readers to distinguish carefully four different bodies:—
1. The Parliament of the United Kingdom of Great Britain and Ireland. This is the actually existing Parliament constituted by the Act of Union with Ireland.
2. The British Parliament; that is, the Parliament of the United Kingdom with the Irish representatives removed from it. This body is called under the Government of Ireland Bill the Imperial Parliament. It is a distinctly different body from the Parliament of the United Kingdom. Whether it does or does not inherit the legal powers of the Parliament of the United Kingdom is a separate question afterwards to be considered. All that I now insist upon is that it is a different body.
3. The Irish Parliament, a body admittedly constituted or to be constituted under the Government of Ireland Bill, and therein called the Irish Legislature.
4. The Imperial Parliament, a body in effect consisting of the British Parliament with the addition of the Irish representatives, or in other words of the British Parliament combined with the Irish Parliament. This body is convoked, as I have pointed out, only for the special purpose of altering the Gladstonian Constitution. It is termed in the Government of Ireland Bill the Imperial Parliament.
What I am most anxious my readers should note is that the bodies 2 and 4 are each termed in the Bill the Imperial Parliament, and thereby not only confused together, but as far as possible each identified with the existing Parliament of the United Kingdom, with which neither really corresponds. The British Parliament differs from the Parliament of the United Kingdom certainly in constitution, if not also in authority.
The so-called Imperial Parliament nearly corresponds with the Parliament of the United Kingdom in constitution, but differs from it in function and authority.
67 In reference to the legal effect of the Government of Ireland Bill on the sovereignty of Parliament, see on the one side the speeches of Sir Henry James of 13th May, 1886, ‘The Times Parliamentary Debates,’ p. 468; of Mr. Finlay, 21st May, 1886, ‘The Times Parliamentary Debates,’ p. 614; and an article by Sir William Anson on the Government of Ireland Bill and the Sovereignty of Parliament in the Law Quarterly Review for October, 1886. See on the other side Mr. Gladstone’s speeches in Parliament of 8th April, 1886, ‘The Times Parliamentary Debates,’ p. 125; of 13th April, 1886, ibid. 255; of 10th May, 1886, ibid. 404; and of 7th June, 1886, ibid. p. 861; of Mr. Parnell of 7th June, ibid. p. 847; and ‘The Government of Ireland Bill,’ being a speech delivered by Mr. James Bryce, M.P., on 17th May, 1886, and published as a pamphlet. My disagreement with Mr. Bryce’s conclusions makes me anxious to express my great admiration for his speech, which is by far the best statement I have read of the view undoubtedly held by Mr. Gladstone and his followers, that the Bill did not affect the sovereignty of Parliament. The reader should notice that the question throughout between the late Government and its opponents was as to the effect of the Bill on the sovereignty of what I have called the “British Parliament,” i.e. the body, by whatever name it be called, which consists of the representatives of England and Scotland only, and does not include representatives of Ireland.
68 As to the sovereignty of Parliament, see Dicey, ‘Law of the Constitution,’ pp. 35-79.
69 Government of Ireland Bill, clause 39.
70 I do not, of course, deny for a moment that an Act could be so drawn as to give Ireland an Irish Parliament, to remove the Irish members from the Parliament of the United Kingdom, and at the same time to reserve to the residue of the United Parliament, or Rump, the full sovereignty now possessed by the Parliament of the United Kingdom. What I do insist upon is, that it is open to question whether the Government of Ireland Bill was so drawn as to achieve these results. Nor is the question unimportant. The fundamental ambiguity of the Bill obviously arose from the fact that its authors, whilst wishing to promise in appearance to Ireland that the new Irish constitution should not be changed by a body in which Ireland had no representatives, also wished to soothe the apprehensions of England by tacitly reserving to the British Parliament the power of altering or repealing the Irish constitution without recalling the representatives of Ireland. The consequence is that the Bill proclaims in so many words that its provisions shall be altered in one way only, but by implication, as its authors suppose, provides that its provisions may be altered in another and quite different way. If this is the intended effect of the Bill it ought to have been made patent on its face. In constitutional matters, as indeed in all the serious concerns of life, ambiguity and uncertainty of expression is the source both of misunderstanding and of danger.
The question of the sovereignty of the British Parliament might, it should be noted, arise in another and more perplexing form, which received, unless I am mistaken, no attention during the debates on the Irish Government Bill. Admit for the sake of argument that the British Parliament can legislate for Ireland; is it equally certain that the Imperial Parliament (i.e. the British Parliament with the addition of Irish representatives) cannot claim to legislate for England or for the whole British Empire? No doubt the Gladstonian Constitution proposes that the Imperial Parliament should be convened only for a limited definite purpose; but is it certain that the Imperial Parliament, which would in its constituent parts be in effect the reunited Parliament of the United Kingdom, might not when convened claim to reassume sovereign power? The addition of a hundred Irish members might turn a minority in the British Parliament into a majority in the Imperial Parliament; can we feel sure that the English minority in the British Parliament would resist the temptation to exalt the authority of a body in which they would be supreme? The enquiry sounds to Englishmen a strange one; but the annals of foreign constitutions suggest that an assembly which, though convoked for a particular purpose, is able from any point of view to consider itself sovereign is with difficulty restrained from asserting supreme power. From this side the Gladstonian Constitution might prove a menace to the supremacy of the British Parliament.
71 Butler’s Sermons; vii., p. 136, ed. 1726.
72 See Chapters V., VI., & VII., ante.
73 Burke’s Works, vol. vii., pp. 84, 85.
74 The clauses printed in italics are the clauses of the Bill which are specially referred to in the foregoing pages.
[75] This clause is printed as I am informed that it ought to have been originally printed in the Bill.