Art. 2.—The people of the canton are sovereign. Sovereignty, which is the sum of all political powers, resides in the whole body of citizens.Art. 3.—It results from this that the people themselves exercise the legislative powers, and every law is submitted to their sanction. This sanction is the right of the people to refuse to recognise any law submitted to them, and to prevent its execution in virtue of their sovereign power.
Art. 2.—The people of the canton are sovereign. Sovereignty, which is the sum of all political powers, resides in the whole body of citizens.
Art. 3.—It results from this that the people themselves exercise the legislative powers, and every law is submitted to their sanction. This sanction is the right of the people to refuse to recognise any law submitted to them, and to prevent its execution in virtue of their sovereign power.
From St. Gall it spread to each of the other twenty-two cantons, and to the legislation reserved to the Federal Assembly. Everywhere it is either compulsory for every law to be submitted to the people by Referendum, or for laws to be submitted when a given number of electors, within a limited period of time, have demanded that the Referendum be exercised, some of the cantons having adopted it in one form and some in another, the Confederation adopting it in the optional rather than in the obligatory form. Then, after the Referendum, followed the Initiative with quick pace, by which the people asserted the right, not merely that laws may be submitted to them for their approval or rejection, but that a given number of electors (in writing) may demand that the Legislature proceed without delay to legislate on any matter that they judge to be of sufficient importance.
At first sight measures such as these appear to be revolutionary and drastic. In practice they have proved to be conservative. The mere existence of the Referendum has proved to be a check on legislation that might otherwise have been carried by parliamentary manœuvring for votes. The people, in actual fact, have proved to be both purer and more conservative than their representatives; and the tendency towards economy in the expenditure of public moneys has, in the main, been not the least benefit it has conferred. People are little inclined to study bills debated in the national assembly when they realise that they are powerless to change or check the measures it may pass. The power to throw out their representatives at the next general election is only a limited form of freedom, and it is illusory in face of the fact that those representatives are generally chosen by powerful political organisations which take care to select pliant and obedient tools. Only at times of great crisis does the wish of the people become vocal; and even then it is more usually neglected than not. But with the Referendum in their hands (especially with the Initiative added to it) the will of the people is always present. The people can hasten legislation where it movesslowly. They can retard it where it presses too fast ahead. They themselves can make the pace. And the effect on themselves is that, with this added responsibility, they take a quick interest in their own concerns. In the first place they break up the power of political organisations; and in the second place they themselves become alert and educated citizens, responsible and intelligent guiders of their own destinies.
Nor are these the imaginings of theory. They are the practical outcome in every country or state where the Referendum and Initiative have been adopted. They have especially been the result in Switzerland, where, by means of the Initiative, the people have insisted on measures being passed that no political party would have dared to undertake. For there are many questions that cut clean across all parties, which dare not offend a majority or a minority, and where therefore the unity of the party comes before the interest of the nation. But minorities from all parties may join, and in Switzerland have joined, together to press for their adoption, with the consequence that the National Assembly has had no alternative but to frame legislation to deal with them. And when such legislation has come before the people by the Referendum, the people have in many cases adopted them.
The presence, therefore, in our Constitution of both the Referendum and the Initiative is therefore a sign that the people of Ireland are to be rulers in their own house—not merely as against foreign control, but as against the dominance of political parties. It means more. It means that responsibility is now definitely reposed in them. There are provisions which, in the present draft of the Constitution, could with advantage be changed. For to require, in Article 43, that a petition from the people of not less than “one-twentieth of the voters then on the register” is necessary (in the alternative of a vote of three-fifths of the Senate), before a measure may be put to the Referendum, is to impose an almost impracticable, and certainly an extremely difficult, task. It reveals a fear ofthe exercise of the Referendum that experience in other countries does not justify. With the wide franchise allowed in the Constitution, the tendency will be to play into the hands of political parties, and one of the purposes of the Referendum is to destroy the power of political parties. Yet a slight change here may easily be made. And the essential fact is that the people of Ireland, having asserted the fact of their sovereignty, and defined its qualities, proceed to exercise its functions by holding over the Oireachtas the two instruments of the Referendum and the Initiative.
How will those functions be exercised? It is impossible to say, except that there is no education like the education of responsibility.
I have likened a Constitution to a pyramid, the base of which is the People, and the apex the Executive Authority. In all pyramids, it is the apex that first catches the eye, not the base; yet it is from the base upward that democratic constitutions are built. Usually it happens in most countries that the Executive masters the Law-making body, and that the Law-making body in turn masters the People. It is therefore necessary to remember, and to emphasise, that the true order is the other way about, the People being the master of the Law-making body, and the Law-making body the master of the Executive. In the degree in which that true order is asserted, and observed, the health of the State is preserved. In the degree in which it is neglected, or frustrated, there is suspicion, irritation, discontent. And as it is always the Executive which tends naturally, where it does not intrigue deliberately, to upset that order, by gathering all power into its hands, obviously the provisions respecting the formation and maintenance of Executive Power are the most critical part of every Constitution.
It was a wise man, and an experienced, who said that it did not matter to him who had the making of laws, so long as he had the administration of them. “For forms of government let fools contest,” said the poet; “That which is best administered is best.” And as the administration of a State is reposed in the care of the Executive Power, for the most part beyond the sight of theLaw-making Assembly of the people, it is essential that the Constitution should provide that the Executive should at all times, and with the utmost flexibility, lie in the control of the Legislature. Otherwise, whatever safeguards may be provided that laws carry the consent of the people, the people will in the end find themselves baffled, unable to track into the thicket of secret decisions the will that they have elsewhere endeavoured plainly to express.
It is therefore the plain duty of every Constitution to keep the Executive simple and flexible, responsive always to the will of the Legislature, as the Legislature should always be responsive to the will of the people. Crises will arise in the history of every nation when the powers of the Executive require to be strengthened; and at such times those powers will be readily conceded. But it is the Legislature and the people which must decide; and the Constitution must leave them free to do so. It is no part of the duty of a Constitution to provide for a time of crisis, and to make that provision fixed and rigid for all later times, when circumstances will have completely changed.
All that it is the absolute duty of a Constitution to do is to state how the Executive shall be formed, and to define its responsibility to the Legislature. The rest may be left to the practice of the future. Certainly to indulge in experiments in a Constitution respecting so vital a part of it as the Executive (experiments unlike anything yet attempted in any Constitution in the world) is an extremely hazardous proceeding. Nor are such experiments necessary in a Constitution, since they may be tried in the course of ordinary legislation, and surrendered if they prove impracticable. It is one thing to experiment—which a Constitution should allow. It is another thing to be pledged to one’s experiments for ever—which is what a Constitutional provision is intended to mean.
The experimental nature of the provisions for the Executive in the present draft of the Constitution is manifest.They are unlike anything in any Constitution. They are quite unlike the provisions in the Swiss Constitution, from which the inspiration is supposed to be derived. Switzerland is aConfederation, consisting of twenty-two sovereign cantons, where only limited powers are conferred on the federal authorities. The twenty-two sovereign cantons differ widely in religion, language, habits and traditions. They are jealous of the federal authorities, and jealous of one another, and therefore insist that the Federal Council (which acts as the Executive), as well as the Federal Assembly, shall be representative directly of the languages, religions and traditions of different parts of the country. Certain of the larger towns and cantons, indeed, claim prescriptive rights to the appointment of members of the Federal Council. This Council, therefore, is appointed for the whole term of the Assembly by the two chambers of the Assembly sitting together, and are chosen by the two chambers, as the Constitution says, “from among all Swiss citizens eligible to the National Council.” The members of the Council may speak, and propose motions, in both chambers, but they may not vote in either, for they form a separate institution outside the Assembly.
It is well to see what are the provisions for the Executive Power under the Swiss Constitution in order to note how widely the Executive in our draft differs from them. Good or bad, our draft stands or falls by itself, and cannot depend from the Swiss example, from which it differs both in itself and in the circumstance which it is designed to meet. The intention may be of the noblest; but intentions are only prophecies; and the Fundamental Law of a Constitution is scarcely the place to commit a whole people to a prophecy. The intention is to overcome party government, and is conceived at a time when parties are divided along lines that do not represent the economic issues that ordinarily influence the course of legislation. For parties, in so far as parties represent true economic issues, are a natural and inevitable medium for conducting the governmentof a country. Where parties do not represent such issues, but are held together by unnatural organisations, they do, it is true, obscure the orderly government of a country. The remedy is to be found, not in an enforced and arbitrary creation of an Executive, but in the right election of the Legislature, of which the Executive must be a reflection if the Legislature is to work harmoniously with it, and keep a constant control over it. To attempt by arbitrary provisions to create an Executive that does not accurately and at all times reflect the Legislature (on whatever party lines that Legislature be composed) is automatically to remove that Executive from the continuous control of the Legislature. And it is surely the essential business of a Constitution to insist that that control be emphasised, not diminished. Otherwise, whatever be the intention, the Executive will become irresponsible, government will fall into the hands of rulers who can only with difficulty be removed, and constant friction will ensue.
Such is the broader line of argument. In detail the Executive provisions of the present draft seem even less defensible. For authority is reposed in an Executive Council formed of two parts. Of twelve Ministers, it is stated, four must be members of the Chamber and eight must not be members—or, if they were members before, they cannot continue to be members, and must resign. It is true that on the motion of the President of the Council these four (who are members of the Chamber) may be increased to seven; but the draft makes it perfectly clear that according to the normal procedure under the Constitution the proportions are to be four and eight; and it is on the normal, not on the exceptional, procedure that attention must therefore necessarily be laid.
Eight out of twelve Ministers, therefore, are not permitted by the draft to be, or to remain, members of the Legislature. If they were members before their appointment as Ministers, they must resign. Consequently, within a few days of a General Election, bye-elections become necessary in respect of so many Ministers as were elected asdeputies—although other Ministers who are elected as deputies may continue to remain both as Ministers and as deputies. The General Election, however, was held under the Constitution on the principles of Proportional Representation. But bye-elections, in such a case, cannot be held according to Proportional Representation. They become a party tussle between two or more candidates. The first effect of this arrangement, therefore, is to increase the number of elections, with their confusion and unrest, to create party contests in their strongest form, and to undo the proportional representation of the nation in the Legislature. Someone of an entirely different party might be returned in such a bye-election from the person who resigned on appointment as Minister; and the representation of minorities be directly injured as a consequence.
That would be the immediate result. The next to follow would be that the nation would find itself faced with the danger of an Executive within an Executive. For the eight external Ministers are to be appointed for the whole life of that Chamber. They are to be nominated by a Committee itself specially elected for that purpose. They cannot be removed during the life of that Chamber unless the Committee finds that they have been guilty of malfeasance, incompetence or disobedience to the will of the Chamber—definite sins of omission which are not always easily susceptible of proof. This is of itself sufficient to remove them from constant control by the Chamber. But the four internal Ministers are, for some reason, to be appointed in quite a different manner, and they hold office by quite a different tenure. They are to be appointed on the nomination of the President of the Council. They can at any time be removed by an ordinary vote of the Chamber. They must therefore study the Chamber, and devise their policies to suit its will, for they are subject to its constant control.
The whole twelve, it is true, are said to form one single Executive Council. But what are the chances of this?Is it not only too clear that the four internal Ministers, since they can be removed by an ordinary vote (which the eight cannot), will frequently, and in most larger matters, meet and act separately together in coming to their decisions? Will not necessity drive them to this? But this would mean at once, not one Executive Council, but two—one within the other. This is acknowledged to be a dangerous practice. We know what happened in England when during the European war a similar practice was adopted, and how soon it became necessary to change it. And is it not equally clear that they will, and must, use the majority that keeps them in power to make the eight external Ministers subservient to their will, if their policies cross, without calling them into council? For the policies of all Ministers cross, and inter-cross, and should do so if there is to be a harmonious and healthy administration, especially in questions and policies of finance.
Ultimately the temptation will always be present to these four internal Ministers to get subservient persons nominated to the positions to be held by the eight external Ministers. They themselves will have come to power by a majority of the Chamber. Of that majority they will be the acknowledged leaders; and it would be strange if they did not use that majority to find eight external Ministers to their liking. But where this happened (as happen it certainly would, in the ordinary human probabilities of the situation) a very remarkable result would come to pass, unlike anything in the history of representative government. This is, that the Four would in practice dictate the Executive policy of the Eight, but they would not be answerable to the Chamber for the administrative conduct of those eight departments. They would require what must be done, but they would not themselves be responsible for the manner in which it was done, or whether it were done at all. For the Eight would have been nominated for the life of the Chamber by a special Committee, they would not be members of the Chamber, theywould not be susceptible to a vote of lack of confidence, but could only be removed when the Committee which nominated them had found them guilty of some public misconduct in their administration.
The first result of this amazing separation of executive and administrative responsibility would be that the Chamber, looking from one to the other in the attempt to fix the ultimate responsibility, would find itself with only the vain shadow of control. For the Eight would in theory be responsible to it, but in practice—certainly on all major matters of policy—would be directed by the Four. Yet the Four could not be held responsible for the doings of the Eight. And the second result would be that the Eight would be little more than Civil Servants. Yet they would not be Civil Servants. They would neither be Ministers nor Civil Servants, having neither one kind of responsibility nor the other.
The baffling consequence would be that the Chamber would not only lose control over the Eight, but, because of the same division between executive and administrative responsibility, would lose control over the whole Executive (including the Four) in respect of functions ascribed to the Eight. It is in the details of administrative practice that the control of the Legislature is usually most important; and it is in just these details that, by the division of the Council into two kinds of Ministers, with different methods of appointment and removal and different sorts of tenure, that the Chamber will under these provisions have lost its control. It is true that it would have the remedy of putting out the Four; but few Chambers, having appointed the head or heads of a Government, desire to throw them out except on some fundamental, paramount issue. The remedy might be worse than the evil; and thus, by its reluctance to take so drastic a step, and by the division of responsibility, it would lose its continuous control over the Executive which is the very breath of legislative freedom.
It is unnecessary to point, further, to the danger ofnominating a large part of an Executive under these circumstances through a Committee. It is notorious that Committees are, or can be made, more easily accessible to intrigue than larger assemblies. The Chamber itself should be its own Committee for the selection of Ministers, on the recommendation of the President of the Council, with whom they would have to work. This provision still further removes the Executive from the control of the Chamber. And so the order of responsibility is inverted, which the plan of the Constitution elsewhere so constantly emphasises. For the People may at all times, by the Referendum and the Initiative, control the Legislature. But the Legislature cannot, under these provisions, at all times and so simply control the Executive. And so control fails just at the point where authority tends most to arrogate power to itself.
Incidentally, also, the Legislature loses what generally has proved its greatest source of strength. For the best informed critics of any Chamber are those who once were Ministers, who appreciate the responsibility of Ministers, and who temper their words as members with their knowledge and experience. But, under these provisions, a member who is appointed as one of the external Ministers ceases to be a Member. If he therefore finds it incumbent on him to resign, because of disagreement with his colleagues of the Executive (Inner or Outer), he ceases to be both a Minister and a Member, and his service and knowledge are lost to the Chamber—not to speak of the loss of detailed information on the cause of the particular issue of his resignation, on which the Chamber may wish enlightenment. Indeed, such a provision as this seems peculiarly arbitrary and meaningless.
There is, indeed, much virtue in the liberty of the Chamber to appoint as Ministers persons who may be specially qualified, but who may not be members. In the jostle at the hustings to enter a Chamber of but two hundred members it is unlikely that the best ability would always succeed, if it were so much as willing to share thefray. A Legislature should therefore not be hampered in the choice of its Executive by restricting that choice to two hundred persons. If persons, not members of the Chamber, were appointed as Ministers, clearly they could not vote; but they could be present, could speak, and could propose motions on behalf of the Executive of which they were members. But the whole Executive should share an equal responsibility, and be subject at all times to the continuous control of the Legislature, of which they are the servants, not the masters.
The three organic parts of every Constitution are the Legislature, for the making and enacting of laws, the Executive, for the execution and administration of laws, and the Judicature, for the interpretation and enforcement of laws. These three comprise the powers of Government which a people bestow on certain organisations which they create for that purpose, in the sovereign act of conferring a Constitution on themselves. The authority which such organisations shall henceforward exercise in Ireland derive, under the Constitution, from the people of Ireland; and from no right or power, pretended or real, existing elsewhere.
The first of these three organic parts, obviously, is the Legislature, since laws cannot be executed or interpreted until they first exist. The second, equally obviously, is the Executive, since laws, having come into existence, must first be put into execution before they can be liable to interpretation, or before they can be said to require enforcement. But when a Legislature and an Executive have been brought into existence, as necessary organisations for a people’s government of themselves, a Judicial organisation at once becomes necessary. For no law can so be made as of itself to fit each particular case. Laws, by their nature, are of general meaning, and must be interpreted to the particular instance where its construction is questioned. And there is (unhappily) no law that is not sometimes altogether challenged, and set at defiance, whentherefore the law made by the people at large must be enforced on the individual, and its defiance punished.
Unfortunately few people regard their Judicature with the same pride of possession with which they (sometimes) regard the Legislature, and even the Executive. Even when folk disapprove of their law-makers and their ministers, they disapprove because they conceive they have acted mistakenly on their behalf, whereas they conceive of judges as having acted from a malignancy inborn in them or in the system, with the kind of disapproval reserved for those who are created and are destined to act against their behalf. That is—in most countries, and especially in Ireland—a legacy from evil days, when judges were not the people’s judges, but whips sent forth through the land by some person who claimed to be sovereign. With the reversal of sovereignty, however, the judges become the people’s judges; the courts are the people’s courts, where the laws of their own making are interpreted; the judicial system is the people’s system; and it is for the people to insist that this attitude is observed, not only by them, but by those who interpret the laws and administer justice. For, under the Constitution, no judge sits in any court in the land save by an authority bestowed on him by the people, in the Constitution which they confer on themselves. And it is for the people to remember that fact; for only by that memory will it be recognised in the courts themselves—and, indeed, only thus will it deserve to be recognised there.
It is not, however, necessary that the details of the judicial system should be worked out in the Constitution. It is not, indeed, desirable that they should be (a consideration worthy of attention, not alone here, but in connection with the provisions for the Executive also), for such details belong to later legislation. All that is required in the Constitution is the general outline of the Judiciary, and a statement of its organic relation to the other parts of the powers of government created under it. How that outline will be completed, and the details of the organic relation made good, must be dealt with in a subsequentJudiciary Act, preceded probably by a Judiciary Commission established to review the whole of the present system and to report to Government on the changes required. In the meantime the present system will continue, subject to the principles and plan of the Constitution, which is the law fundamental to the later Act, and therefore at once of effect in respect of its general principles and plan.
According to that plan the entire system of courts and titles that derive from ancient feudal practice is abolished. A new and simple system comes into existence, comprising a number of courts, civil or criminal, of original instance and a Court of Final Appeal. The Court of Final Appeal is to be known as the Supreme Court, and the chief of the courts of first instance as the High Court. In these courts all cases are entered, and the Civil Authority of the Nation is made paramount in all circumstances. “The jurisdiction of Courts Martial,” says Article 69, “shall not be extended to or exercised over the civil population save in time of war, and for acts committed in time of war, and in accordance with the regulations to be preserved by law. Such jurisdiction shall not be exercised in any area in which the civil courts are open or capable of being held, and no person shall be removed from one area to another for the purpose of creating such jurisdiction.” Moreover, soldiers themselves are relieved from Courts Martial, unless they are on active service, except for purely military offences. For Article 70 reads: “A member of the armed forces of the Irish Free State not on active service shall not be tried by any Court Martial for an offence cognisable by the Civil Courts.”
It may be asked, however, how safeguards such as these, together with the qualities of sovereignty declared in the Constitution to be the Fundamental Rights of the people, shall be protected. For it is a temptation to all governments to find an easy way out of difficulties by riding roughshod over rights and safeguards, however earnestly they may be declared. There is only one answer. In themaking of constitutions there can be only one answer. It is that the Judiciary is the People’s Judiciary, and the third part of the organic whole of Government which the people create. Article 64, therefore, reads that “the judicial power of the High Court”—with appeal to the Supreme Court—“shall extend to the question of the validity of any law having regard to the provisions of the Constitution.” The Judiciary is the interpreter of laws. It is therefore the interpreter of the Fundamental Law. And it is therefore the interpreter of the Fundamental Law and the protector of the Fundamental Law, as against all other laws of the Legislature that may violate it, not to say arbitrary acts of the Executive that may neglect it.
It must be so. There is no other way to protect the guarantee of fundamental rights written carefully in a people’s constitution. Without some such provision a Constitution might be written in water, and its guarantees set aside by any powerful executive, or any executive not instantly answerable to the people’s will. A provision of this kind is, therefore, a necessary democratic safeguard. It is true that in the United States the judicial review of the Supreme Court over legislative and executive acts has led to unfortunate decisions and much acrimonious discussion. The evils of an institution are always apparent, and no institution but has its evils. The evils that would have come into existence had that institution not been there, however, are not apparent. They are the incalculable part of the bargain; and, being incalculable, are inevitably neglected in argument. Yet they may prove to be the overwhelming factor of the argument. So it is in this case. It would be blindness to neglect it. The mere existence of the Judicial Review in the United States has unquestionably prevented many an arbitrary act of the Executive in defiance of the rights ensured by the Constitution; and if the Supreme Court has, as it undoubtedly has, abused its power of interpretation, the remedy is, not to sweep away that Judicial Review, and so to jeopardise the provisions of theConstitution, but to amend the Constitution in plainer terms, or to amend the Supreme Court. For it is plain that without Judicial Protection of the Fundamental Law (as the Judiciary is required to protect, interpret and enforce the ordinary law) its clearest provisions could be neglected at pleasure.
I may take only one instance. Article 9 of the Constitution protects the right of free expression of opinion, the right of free assembly, and the right of forming associations not opposed to public morality. Now it hardly needs to be said that no Government likes the expression of opinions hostile to itself. And no Government likes associations formed to bring its hour to an end. Under the Constitution theminoritiesof the day have the honest chance of becoming themajoritiesof the morrow in a peaceable manner. But what would be the worth of this honest chance before a powerful Government unless these protections, these rights of a sovereign people, were placed in the care of the third institution of the Constitution, the institution entrusted with the interpretation and enforcement of laws?
It is true that the Judiciary may abuse its power (since power is nearly always abused) by interpreting social reform, let us say, to be “opposed to public morality.” But in this connection, it is right to remember, first, that judgment is not reserved only to one Court, but to two Courts—to the High Court, with appeal to the Supreme Court. And it is right to remember, next, that the people have always in their possession the instruments of the Initiative and the Referendum, by which they may require either the Fundamental Law or later laws to be amended to meet their need. There are, therefore, considerable safeguards in the Constitution against abuse. Yet, even so, because one-fourth of a fundamental right may be jeopardised by an abuse of the Judicial Power, that is no reason why four-fourths should be surrendered to the abuse of the Executive Power.
Therefore the Judiciary is placed in care of the provisionsof the Constitution, not to imperil but to protect them. The rights conferred in the Constitution are the People’s rights. The Constitution is the People’s Constitution. The Judiciary is the People’s Judiciary. It is for the people, by alert and active citizenship, to make them so in every real sense.
In the section dealing with the Judiciary one provision lends itself at once to criticism. It is hostile, on the face of it, to the entire spirit of the Constitution. It has everywhere created bitterness and irritation among the other co-equal members of the Commonwealth of Nations, which Ireland has now joined. If the purpose of life, therefore, is to learn from experience as one may reasonably believe, in spite of an apparently united conviction to the contrary, a new State at the outset of its career would be well advised not to create trouble for the future, and others would be well advised to honour that quite reasonable wish. And yet in this provision there lies hid a principle of very great meaning, if it could be extracted, separated from its feudal lumber, and wrought upon creatively.
I refer to the provision at the end of Article 65. The article itself reads:
“The Supreme Court of the Irish Free State shall, with such exceptions (not including cases which involve questions as to the validity of any law) and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court. The decision of the Supreme Court shall in all cases be final and conclusive, and shall not be reviewed or capable of being reviewed by any other Court, Tribunal or Authority whatsoever.”
“The Supreme Court of the Irish Free State shall, with such exceptions (not including cases which involve questions as to the validity of any law) and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court. The decision of the Supreme Court shall in all cases be final and conclusive, and shall not be reviewed or capable of being reviewed by any other Court, Tribunal or Authority whatsoever.”
To which, in the present draft, the following apparently contradictory words are now added:
“Provided that nothing in this Constitution shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty in Council or the right of His Majesty to grant such leave.”
“Provided that nothing in this Constitution shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty in Council or the right of His Majesty to grant such leave.”
According to this article as it now stands the Supreme Court of the Irish Free State is the highest court of appeal for all citizens of that State; but if any citizen, or any corporation, desires to affront the sense of those amongst whom he, or it, lives, he or it may carry a case elsewhere, outside the country altogether. This is known as the right of appeal to the Judicial Committee of the Privy Council. The right is rooted in the principle of Crown prerogative—a prerogative which has been removed in the highest questions of life and death, but which apparently exists in smaller matters, although there too it has been described by no less an authority than Professor Berriedale Keith as “in process of obsolescence,” so far as the other members of the Commonwealth are concerned.
Apart from the theory of the matter, however (a theory vested in an outworn feudalism), what is its effect in practice? That practice can be investigated on its merits, without the least prejudice; and it will be found that it has not produced justice, and that it has proved fruitful of increasing irritation and anger.
In the first place, such a right of appeal out of the country defeats the ends of justice by placing a premium on wealth. It has so proved among the other members of the Commonwealth. It is obvious that it must be so. For it requires a large purse to carry a case out of the country, once it has been well handled in at least two courts at home. Therefore the experience in Canada, Australia and S. Africa is that only strong corporations take advantage of such a right of appeal, because onlystrong corporations possess the moneys, and only strong corporations can afford to defy local feeling, since local feeling cannot react easily against anything so powerful while so intangible as a corporation.
In the second place, it defeats the ends of justice because it is an appeal to a court where the local circumstances are not familiar, and where it may even happen (as it will certainly happen in the case of Ireland) that the very axioms of the law may not be rightly apprehended. For a central court of appeal of this kind supposes uniform circumstances and uniform law. Now the circumstances manifestly are not uniform. Yet neither is the law likely to be uniform. The example of S. Africa may be taken. In S. Africa the law in force is Roman-Dutch law, not the English Common Law. It has therefore proved that the Judicial Committee has been required to handle an instrument with which it is unfamiliar. The same will apply in Ireland, where it has already proved, notoriously, that the principles of the law known familiarly as “Brehon law” have worked in opposition to the black-letter precedents of English law.
In addition to this, however, it is to be remembered that the lawyers composing the Judicial Committee are obviously unfamiliar with the principles underlying the structure of our Constitution, since they are quite unlike the principles with which they themselves have to deal. One need not argue which are the better. It is enough that they are unlike. A mechanic cannot be supposed to deliver impartial justice between two farmers in a matter of farming economy. The famous case of the Loch Neagh fisheries is enough to prove that only those who are familiar, not only with Irish circumstances, but with Irish history, can expect to deliver justice in Irish matters.
Moreover, there is a further consideration, which the plain facts of the case require should be firmly stated—and which the experience of other nations of the Commonwealth emphasises. It is that under the chief of the two heads under which such appeals to the Judicial Committeewould fall the very intention to do impartial and indifferent justice could not presumed in advance. For all such appeals involve two classes of cases. The first deals with appeals from interpretation of the ordinary law. The second deals with appeals from interpretations of the Fundamental Law of the Constitution. Now appeals from an interpretation of the ordinary law heard in some country where the principles of that law are unfamiliar would, as has been indicated, involve injustices enough; but they would concern only the individual or some corporate enterprise. The injustice would exist; but it would be limited; and lawyers of another country might be supposed to wish to search for justice, even if the trading enterprise had its seat in their own nation and the individual were Irish. But a Constitution is the very charter of a nation’s freedom.
Cases concerning an interpretation of the Constitution are vital to a whole people, and, as between two nations, vital to international safety and polity. And such cases could, under the circumstances, only arise between two nations, Ireland, whose the Constitution is, and England, whose the Constitution is not, and where parties might arise to power who would intrigue to impeach that Constitution. Moreover, in England it is frequently the practice to recruit the higher offices of the Judiciary, not from men of acknowledged skill in the achievement of equity, but rather from men who have snatched a casual eminence in the heat of party strife, men of political passions and political prejudices, who have come to the front by the very profession of partisanship. It is such men who will form for the most part the lawyers of the Judicial Committee. Even if the road to that Committee were of the straightest and purest legal character, no reasonable person would expect it to deliver impartial judgment on the Fundamental Law of another nation, especially if an adjustment of the liberties of two nations were concerned, one of those nations being, more than conceivably, their own. But since the road is, admittedly, neither of the straightestnor of the purest, the expectation of impartial and indifferent justice would be a fool’s dream. And where a Court exists from which a people presumes injustice in advance, the wells of security and good order are at once poisoned.
Yet, even supposing that these questions of justice are neglected, how is the system likely to work? How has it, in fact, worked elsewhere? Assume that a case has been decided in a certain way by the Supreme Court in Ireland. It is carried to the Judicial Committee, which decides in favour of the opposite party. How is such a decision of the Judicial Committee to be put into effect? Such cases have occurred in Australia; and the Australian High Court has refused to recognise the decisions of the Judicial Committee, or to give them effect. Special legislation therefore at once became necessary; but the obvious fact which emerged was that the Judicial Committee had no machinery to put decisions into effect which were contrary to local feeling. Of the last of these cases the Australian Premier said at the “‘Imperial Conference,’ 1917,” that the “decision was one which must have caused great embarrassment and confusion if it were not for the fortunate fact that the reasons for the JudicialCommittee’sdecision are stated in such a way that no Court and no Council in Australia has yet been able to find out what they were.”
It is little wonder that Mr. Hughes in the same speech should have said that “Australia’s experience of the Privy Council in constitutional cases has been, to say the least of it, unfortunate.” He also read an extract from a resolution of the Final Court of Appeal of New Zealand, which declared of the Judicial Committee that “by its imputations in the present case, by the ignorance it has shown in this and in other cases of our history, of our legislation, and of our practice, and by its long delayed judgments, it has displayed every characteristic of an alien tribunal.”
The spokesmen for the other States present were equally emphatic. “I think,” said Sir Robert Borden for Canada, “we have had just about enough Appeal Courts, and Ithink the tendency in our country will be to restrict appeals to the Privy Council rather than to increase them.” “There is,” said Mr. Rowell for the same State, “a growing opinion that our own Courts should be the final authority.” “You know what our opinion is in S. Africa,” said Mr. Burton. “In our Constitution we have abolished the right of appeal to the Privy Council as a right. There is no such right with us at all, but the Constitution merely says that any right residing in the King in Council to grant special leave to appeal shall not be interfered with.”
These utterances, and the entire course of history on this matter, reveal an irritation which has grown with experience. The mechanism is merely a mechanism, and it has not worked well. It has injured harmony, and it manifestly has not brought justice. Even assuming that the Irish courts should agree that the decision in any individual case appealed from should stand, it could equally well argue that that decision could not be held to govern other cases; and the effect of such a decision would be to make the appeal nugatory in law.
Besides all of which, the right to allow such appeals to the Judicial Committee is based, ultimately, on the acknowledgment of the supremacy of British legislation; and the plain intention of our Constitution is that this supremacy is not acknowledged, each party to the Treaty being a co-equal member of a larger Community. Not only, therefore, are the practical reasons against such a right of appeal, but there is no substance in the Constitution to make such a right allowable.
There is, indeed, nothing that can be said in favour of such a provision, from the point of view either of justice, of law, of equity or of harmony. If it be destined to remain, it is to be hoped that it will remain a dead letter. Otherwise it will lead to boundless friction and ill-will, internal and external.
Yet there is an excellent principle embedded in this provision. It is very deeply, and perhaps almost inextricably,embedded; but it is there. For if a number of nations are to join together as co-equal members of a Community, plainly there should be some common Court to which all can appeal with equal confidence. Ireland and England, for instance, have made a Treaty. Either side may violate that Treaty. Who is to judge between them? Is the appeal to be to the arbitrament of strength? If so, what of the co-equality of the Community? It becomes an idle phrase, however separate one may claim to be from the other.
The case may be carried even further. A case exists for such a Court, not only in respect of their interdependent relations, but not less in respect of their internal relations. It may even happen that the citizen of a State, or a combination of citizens, may have a plain case to be carried to such a Court as against their State, if a Court of sufficient impartiality could be established. States are not always immaculate of justice, particularly to minorities.
Can such a Court be found? I believe it can. An exposition of the present draft of our Constitution is not the place to give the details of such an alternative. It is sufficient to say that there is such an alternative, for which provision could therefore be made in substitution of the present provision, against which the requirements of justice and the entire experience of the Commonwealth rises in evidence.
It is the duty of a Constitution, not merely to provide for the present, but to leave itself lissom and flexible for the development of the future. If those developments can in any way be foreseen, it is its duty further, to indicate them by allowing specifically for them, without of necessity pledging the future to them. How far these indications may profitably be carried is a question not so easy to answer. Times differ. Constitutions made at a time of fixed social and political ideas, are necessarily fixed in their provisions. Constitutions made at a time, such as the present, when social and political ideas are rapidly shifting and changing must needs indicate the likelihood of change in certain directions; and make allowance for such changes. It is therefore striking to notice that in nearly every Constitution made during and since the Great War such indications are scattered freely. And from that fact alone the historian of the future could tell with assurance that these were years of rapidly changing conceptions.
We in Ireland cannot but have a share in these changes. Fortunately for us, heirs of an ancient tradition, in looking forward we look backward, and in looking backward we look forward. We may, and often do, use phrases identical with those used by other nations; but in many cases it will be found by the thoughtful student that what to them is often social theory, to us is a slumbering historicmemory. Very frequently this will be found to be the case.
An indication of this kind, that looks both forward and backward, is to be found in Article 44 of our Constitution. This article has aroused considerable interest. It reads:—