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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..6833f05 --- /dev/null +++ b/.gitattributes @@ -0,0 +1,3 @@ +* text=auto +*.txt text +*.md text diff --git a/32612-8.txt b/32612-8.txt new file mode 100644 index 0000000..f2e0f82 --- /dev/null +++ b/32612-8.txt @@ -0,0 +1,3378 @@ +The Project Gutenberg EBook of The Irish Constitution, by Darrell Figgis + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Irish Constitution + Explained by Darrell Figgis + +Author: Darrell Figgis + +Release Date: May 30, 2010 [EBook #32612] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK THE IRISH CONSTITUTION *** + + + + +Produced by Brian Foley and the Online Distributed +Proofreading Team at https://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive/American Libraries.) + + + + + + + + + +THE IRISH CONSTITUTION + + + + +[Illustration: THE CONSTITUTION COMMITTEE IN SESSION. + +_From left to right_:--R. J. P. MORTISHED (_Secretary_), JOHN O'BYRNE, +B.L.; C. J. FRANCE, DARRELL FIGGIS (_Acting Chairman_), E. M. STEPHENS, +B.L. (_Secretary_); P. A. O'TOOLE, B.L. (_Secretary_); JAMES MACNEILL, +HUGH KENNEDY, K.C.; JAMES MURNAHAN, B.L.; JAMES DOUGLAS. (PROF. ALFRED +O'RAHILLY and KEVIN O'SHIEL, B.L. were absent from the Session).] + + + + + THE + IRISH CONSTITUTION + + + EXPLAINED + BY + DARRELL FIGGIS + + + MELLIFONT PRESS, LTD. + KILDARE HOUSE, + WESTMORELAND STREET, DUBLIN + + + + I INSCRIBE THIS BOOK + TO MY FRIEND + ARTHUR GRIFFITH + + + + +CONTENTS + + + PAGE + + INTRODUCTION 5 + + EXPLANATION 15 + + DRAFT CONSTITUTION 63 + + ARTICLES OF AGREEMENT FOR A TREATY BETWEEN GREAT BRITAIN AND IRELAND 96 + + + + +Introduction + +IRELAND AND A COMMUNITY OF NATIONS. + + +The articles that are now gathered together in this little book were first +published in the _Irish Independent_ at the invitation of its Editor. They +were not written for publication in book-form; and they naturally suffer, +in their present form, from the conditions that were first imposed on +them, conditions proper to their original setting. With the exception of +two of them, they were written rather in a spirit of exposition than in a +spirit of analysis and criticism; and this intention was only departed +from because it seemed that the two matters so dealt with departed, with +differing degrees of flagrancy, from the original purpose of the +Constitution, which was to make the mechanism of Government malleable at +every stage to the will of the people of Ireland. + +Whether one believes ardently in the faith that the will of a people +should under all circumstances prevail, and that the forms of Government +should at all times be submissive to that will, is indifferent. That is a +question for the individual, with which I do not presume to interfere. One +need only believe with l'Abbé Coignard that "a people is not susceptible +to more than one form of government at the same period," to believe, +further, that if one asserts the derivation of all power and authority +from the popular will, if that will be once fairly and honestly +ascertained, it then follows that the will of the people is sufficient to +itself, and that all forms of government must be made malleable to it. On +that supposition, all frustrations and obstructions of, and impediments +to, the constant exercise of that will must of necessity be cogs in the +machinery of government; and for that reason in two articles I turned from +exposition to criticism. + +Apart from these two matters, I held to the essentials of exposition, +without turning aside to criticism of details; and I based that exposition +on the original plan and structure, which are preserved in the present +draft, of the Constitution. It is right that the Fundamental Law of a +State should be fully discussed and debated before it be enacted; and when +that debate occurs criticism will find details enough to fasten upon. But +at the present moment it is the essential plan that matters--not the +feudal trumperies with which it is adorned, like stage jewels stuck upon a +comely and decent garment, marring its simple truth, but not otherwise +injuring its effectiveness for its purpose. And it was because it seemed +to me that these two matters departed from the spirit of this essential +plan, by placing important parts of the Judiciary and the Executive beyond +the ready control of the people or the people's representatives, that I +dealt with them as I did. Apart from them I kept away from criticism. + +Similarly I did not deal with certain matters anterior to the +Constitution, in the light of which the Constitution can alone be +understood. They lay out of sight of these articles, though they were +essential to them, since they brought the Constitution, in its present +form, into being. Chief among these is the historical fact that Ireland +has, by Treaty, confirmed by the act of her Legislature, consented to +enter a Community of Nations known at the moment as the British +Commonwealth of Nations. We may disagree with this act; but it is an +international fact; and without it the Constitution would not be what it +now is. This factor in the result is therefore worth brief attention, by +way of introduction to the present publication of these articles. + +To anyone familiar with the constitutions of the nations that now comprise +the Commonwealth of Nations the present Constitution will speak in an +unaccustomed language. It is unlike any of them. It has clearly been +planned as the result of a distinct and separate conception. The causes of +the difference are, however, not very difficult to discover, and once seen +are plain to understand. They constitute what may prove to be an +international factor of the very first importance. + +These causes fall under, broadly, two heads. The first is that Ireland is +not what these other nations were when their Constitutions were first +framed. Nor is Ireland, indeed, what they are now. Canada, for example, +and Australia, are English Colonies, first established by white men in a +coloured population. The greater part of these white men draw their +traditions and inspiration, their habits of thought and habits of public +conduct, from the rootstock of the English nation. They look to England as +their mother-country. But Ireland is an ancient nation and a +mother-country in her own right. She has herself peopled the earth with +her children. Her empire is as far-flung as England's. And if it is not +based on military might, but linked by ties of memory, pride and love, it +has not therefore proved itself any the less powerful internationally at +times of crisis and danger for the mother at home. + +Moreover, it was she who, when in the eighth and ninth centuries Europe +fell into decay after the barbarian inroads, re-established and rebuilt +European civilisation, sending her scholars with her books into every part +of the continent of ruin. It was her missionaries, indeed, who first +brought Christianity to England, and her scholars who taught the first +English poet his letters. Before the name of England was heard, the name +of Ireland was known and respected. She possessed an intricate, if +uncompleted national polity when the neighbouring island was peopled by +distinct and scattered populations of conquerors. By virtue of these +ancient dignities she was accorded international rank long after England +had risen to nationhood, and when invasion had brought her national polity +to ruin and silenced the voice of poet and scholar. + +These are not matters merely of the past. If they were, they could be +dismissed to the antiquity in which they would lie. But they live in the +consciousness of a nation to-day; and therefore to-day they are a factor, +to neglect which would be to neglect a prime element without which neither +the present nor the future may be understood. Only the sentimentalist +waves out of sight considerations that are unpleasant to him. The realist +faces every element of being, conscious or unconscious; for he knows that +only out of the sum of all those elements can life proceed, or creation +begin. + +For these ancient dignities have passed into the consciousness of every +sort of Irishmen. It was, for example, Molyneux who, in his _Case of +Ireland Stated_ at the end of the 17th century, first among modern Irish +writers based an argument upon them. Molyneux was an English colonist. In +the wars of Tirconnell and Patrick Sarsfield he had fled to England, +returning only when Ginkel the Dutchman had won the field for his master, +now monarch of England. He regarded the ancient nation with aversion. Yet +when the English Parliament harassed what he proudly conceived to be the +ancient liberty of Ireland, he stated the case of that nation, stated it +as his case, in a public document of historic moment; and the English +Parliament caused his book to be burned by the public hangman. + +The sorest part of his book was his reference to the Council of Constance +of 1416. This Council may rightly claim to be the first of modern +international congresses. At it a certain question of precedence had +arisen between France and England, which was referred to the Court of +Heralds. In the judgment which was given it was stated as an international +ruling that Europe was first constituted from four nations. These nations, +in the order of their precedence, were Rome, Byzantium, Ireland and Spain. +And Molyneux, the English colonist, proudly referred to this ruling, and +based a great part of his case upon it. + +The breed of Molyneux is alive to-day. Political differences have divided +it from the ancient race which furnished its arguments. But the pride is +the same; the sense of possession is essentially the same, obscured though +it may have been by the causes of difference; and when a new alignment of +political parties has blent the two points of view into one outlook, and +made the whole consciousness to merge in one, the living factor of ancient +nationhood will arise with a new strength. + +That strength will prove a factor for the future. The cause of it is +registered in the present draft Constitution; and it is the first of the +two causes that make it unlike those of the other nations with which +Ireland is now confederate and co-equal. The second cause is curiously +like, and yet curiously unlike, to the first. It is also derived from the +fact of nationhood, but from the achievement of nationhood at the other +end of history. + +For the other nations of the Commonwealth are themselves not now what they +were when their constitutions were first framed. They were then but +colonies, on whom their mother-country was pleased to bestow +constitutions--and if the pleasure was not always the most noticeable part +of the bestowal, the legal smile did not diminish the fact of the gift. In +their constitutions, therefore, the apron-strings are very much in +evidence. It is clear from them that the mother did not propose to let the +children wander far from her control, even though she permitted them to +walk with their own feet. Not only in the actual provisions of these +constitutions, but in their very conception and plan, drawn exactly +according to English methods and from English experience, it is evident +that a state of perpetual tutelage was imagined for the peoples to whom +they were given. + +That has now changed. The colonies have come to be nations, very jealous +of their nationhood. They have grown with experience, have moved onward +with time, and it would go hard with anyone who attempted to remind them +of what, nevertheless, their constitutions are a continual reminder. The +consequence is that the provisions of these constitutions cannot be +enforced since they do not square with experience. They encumber the +documents which contain them as so much dead timber. They are sometimes +carelessly, and more often dishonestly, described as legal fictions. But +they are not legal fictions. They are dead letters--dead timber which a +wise woodman would soon hew away. Life and experience have outgrown them; +and this growth finds expression--if, unfortunately, not the full +expression that might at one time have seemed possible--in the present +draft Constitution. For under her Treaty with England Ireland agreed to +take equal rank in the Community of Nations with the other members of it. +Specifically she accepted the "law, practice and constitutional usage" of +Canada; and that constitutional usage implies, not the dead timber of the +Canadian Constitution, but the living tissue of her constitutional +experience. + +These two causes, then, have joined together to produce the draft of the +Irish Constitution. From them was created the original plan of the +Constitution, according to which Ireland takes her place, not only +generally among all nations in virtue of her ancient right, but specially +in a certain confederacy of nations in virtue of a Treaty of Peace, signed +between her plenipotentiaries and England's plenipotentiaries, and +approved by both legislatures. To the most casual glance, it is indeed a +most modern and forward-looking document; yet it draws from so ancient a +fountain-head. And the conjunction of these two may prove of searching +value, if rightly used, to Ireland's influence in the world--provided that +there be peace at home, without which a nation is nought. That influence +may not be of the same kind as one had hoped before the Treaty of Peace +was signed. But even if it be not of the same kind, its measure need not +be less. It cannot be so immediate; and that is loss; but it may with +wisdom and firmness prove ultimately to be more extensive. Whatever the +means, the end remains the same; and that end is the contribution in the +comity of nations of the fruits of personality--without which neither men +nor nations can plead a justification for life. + +For when a nation such as Ireland joins a confederacy so composed, she by +the mere fact of her addition transfigures the whole. This is not a +fanciful figure of speech. It is a literal description of what has already +occurred. In the case of no other nation of the Community, for example, +has its advent been signalled by an International Treaty. That, in itself, +is a transfiguration of the whole. Similarly, other nations of the +Community had protested the co-equality of each and all; but the +protestation had remained a protestation until it was formally declared +for each and all by the claim made by and recognised for Ireland. + +So it has proved in the very case of this Constitution. The full height of +nationhood is the recognition of sovereignty; and the completest act of +sovereignty of which a nation may be capable is to confer its Constitution +on itself. With the exception of Great Britain, none of the other members +of the Community were, when their constitutions were enacted, capable of +this. Each of them received its Constitution as bestowed, not by the Act +of its own Legislature, but by the Act of a suzerain Legislature. And that +shortness of national stature remained until it was removed by the +addition of Ireland to the Community. For Ireland will receive her +Constitution by the Act of her own Constituent Assembly, not by the Act of +any suzerain Legislature. Whether the Constitution be or be not adopted by +any other assembly neither gives nor detracts from the national authority +it will possess. If it be so adopted, it will be adopted, not as giving it +authority, but as the completing Act of ratifying the Treaty. That is to +say, it will be adopted by the Parliament of Great Britain as concluding +the interest of that Parliament in the international bargain of the +Treaty; and it will be passed and prescribed by the Irish Assembly as +giving it full force and effect in Ireland. And that is a full sovereign +act. But, since all the members of the Community are declared to be +co-equal, the advent of Ireland, therefore, has given the recognition of +sovereignty to them all, and raised each to the full height of nationhood. + +The consequences of this are at the moment difficult to foresee fully; but +they are consequences that the addition of Ireland to the Community has +created, though in the fullness of time they were ready for her advent. It +is certain that they will reach far and strike deep, not only within the +Community, but towards other nations, not members of the Community. +Already as between the six full members of the Community the thought of +Empire belongs to the past; and the word and feudal trappings will follow +the thought. Indeed, though the foolish trappings remain, in the text of +both the Treaty and the Constitution the word has already begun to be +supplanted by the word Community. And though it be true that words are +only words, it is equally true that words are the parasites of thought, +and cling to the mind long after their original uses are forgotten. To +cause the relinquishment of an ancient word is itself a liberal +accomplishment of no mean sort, as psychologists know; and none can say +where new conceptions will not lead when once the barrier of words has +been broken down. + +These are, however, considerations for the future; and the future is only +for those who are worthy of it--and not always even for such. Already a +considerable change has been wrought; and that change is registered with +all its faults in the present draft Constitution. The nation that caused +the change is the same nation still, in spite of sad scattering of its +national strength. It is still an ancient nation: not a colony: never a +colony: deeply conscious of its historic heirlooms and prescriptive +dignities. Ireland is still a mother-country, fully resolved to employ her +empire of memory and love for the purposes which she and it judge worthy. +Her place and power in the Community will prove to be of no mean degree, +and of no small meaning for the nations outside that Community, as well +for the peoples and nations within it, if she rally her strength around +her and prove worthy of her destiny. When she shall have conferred a +Constitution upon herself, within the limits of her contractual obligation +in the Treaty, she will not have foresworn her heritage (unless she elect +to do so); she will not have diminished her strength (unless she choose to +dissipate it); but she will be able by a persistent purpose, of which she +has already given her pledges, to contribute in the future as she +contributed in the past, with a security that has not been allowed her for +many centuries, to the benefit of nations. And it is to this end I +dedicate this little book. + + + + +The Irish Constitution + + +I. + +WHAT IS A CONSTITUTION? + +During the early days of the second French Republic a customer entered a +bookseller's and asked: "Have you a copy of the French Constitution?" "We +do not," the bookseller politely replied, "deal in periodical literature." + +Now, to any student of history such a story is a sure indication of the +time of which it is told. He need not inquire to know that the time was +one of revolution, change, and unsettlement. He also knows the mind of the +people of that time, for insecure conditions beget a nervous, restless +fear. And these things are significant. They reveal a quality of +constitution-making that is not always, or easily, remembered. For +whatever changes may proceed in legislation--however many and rapid they +be--as long as the Constitution, written or unwritten, remains intact, the +State at least is stable and its foundations are secure. + +Plainly, therefore, nothing should be written into a Constitution that is +of a temporary, experimental, or questionable nature, or which should fall +to the lot of ordinary law-making and the changing convenience of +practice. A Constitution is that which is permanent, as far as anything in +this world may be permanent. Even to amend it, or add to it, requires in +all countries (except England, where the Constitution has not taken a +written form) a procedure quite different from that of ordinary +legislation. To change it, or recast it, requires a revolution. Such a +revolution may not be accompanied by bloodshedding, or it may, but it is +certainly accompanied by insecurity and unsettlement. + +It should, therefore, be the business of constitution-makers to prescribe +only what to them is fundamental and irrefutable; to lay down the secure +foundations of their State; and to leave all other matters to the +experience of the nation, without seeking to shackle that experience by +provisions that time may not commend. Otherwise, a convulsion may be +necessary to get done what ordinary legislation could have accomplished +without affecting the stability of the State. + +This, then, is the first definition of a Constitution, that it contains +the Fundamental Law of a State, and only the Fundamental Law. In England +there is no such thing as a Fundamental Law. It is claimed by English +constitutional lawyers that this is because Parliament is sovereign; but +the historical truth is that in England Parliament exercises a sovereignty +in fact which the King is supposed to exercise in theory; and any attempt +to make the theory square with the fact by the writing of a Fundamental +Law would lead, perhaps, to a surprising situation. + +Yet in England certain fundamental rights are recognised, with which +Parliament would not lightly tamper; and these amount in effect to a +Fundamental Law, holding a higher rank than ordinary laws. In practically +all other countries such rights are set forth in a document, different +from all other legal documents, inasmuch as unless these other documents +observe the conditions required in the first, and do not conflict with its +provisions, they are null and void. In both sets of documents the laws of +the realm are to be found; but the two sets of laws are of different +sorts. One is fundamental and permanent; the other is by contrast casual +and changeable. + +This, then, is the second definition of a Constitution, not only that it +contains the fundamental law of a State, but that it prescribes the manner +in which all other laws must be made, and put limits and restrictions on +all other law-making. In the American phrase, it is a "Frame of +Government." + +In English the words Constitution and Legislation do not carry on their +face the relation of one to the other, and the distinction between them. +In Irish the case is different. In Irish the word for Legislation is +_Reacht_, and the word for Constitution is _Bunreacht_--fixed and +foundation legislation. But even the distinction so simply carried on the +face of these words does not complete the relation of one to the other. +For that relation is precise; and consists in the fact that all laws +comprising the _Reacht_ must be built upon the foundation of the +_Bunreacht_, and must be contained within the fixed limits of the +_Bunreacht_. The moment they attempt to build elsewhere, or go outside +those limits, that moment they cease to be binding on any citizen; and all +citizens may claim the protection of the courts of law against them. + +From this follows the third definition of a Constitution, which is that it +contains the highest and completest sovereign act of a nation. A nation +may confer a Constitution on itself, and that Constitution may contain no +declaration that the people are sovereign; but the fact that the nation +did so make their own Constitution is itself a declaration of sovereignty. +Declarations of sovereignty in the body of a Constitution may be very +wise; and they are always pleasant; but they are not necessary. + +Similarly, a nation may make a Constitution for itself, and in that +Constitution confer the chief executive authority on a person to be known +as a king; and that person may be known in name as a sovereign; but the +fact that he derives his power from the Constitution is evidence that, not +he, but the people, are sovereign. His is only a sovereign name; theirs is +the sovereign reality. + +Such Constitutions were made in 1814 by Norway, in 1830 by Belgium, and +only last year by "Jugo-Slavia." In the last case the kingly line already +existed before the Constitution was framed, and an oath was prescribed in +it, according to which the King swore "to maintain the Constitution +intact." In the first two cases the kingly lines were not chosen until the +Constitutions had been framed, when the chosen dynasties stepped into the +places appointed for them, and carried out the functions defined for them. +In each case, however, the authority of the king sprang, not from the +divine right of kings, but from the divine right of the people, as set +forth in the sovereign act of giving themselves a Constitution. + +How different the power of kings such as these from the power of the +French monarch who in the 18th century declared, "L'Etat, c'est moi"--"I +am the State." He was right. He was sovereign. Sovereignty had to reside +somewhere; and until the people arose and declared that it resided in +them, and expressed that declaration in a formal Constitution, it +continued to reside in the ruler who claimed it. + +When, however, in 1787, the thirteen American States "ordained and +established a Constitution" for their Union, then in the modern world the +people came by their own. France quickly followed the example, but as a +result of the wars which followed the world was thrown back into reaction. +Throughout the 19th century, however, the statement of democratic +sovereignty as a fundamental law of the State found expression in +Constitution after Constitution; with the result that now, in modern +practice, the existence of a Constitution is practically identical with a +statement of national sovereignty. + +There has hitherto been one chief exception; and that exception is of +striking interest at the present time. For within the British Empire the +theory has been that there is only one sovereign assembly, the Parliament +at Westminster. It is true that the Constitutions of Canada, Australia and +South Africa were each drawn up by Constituent Conventions in the +countries themselves; but by the prevalent theory none of these peoples +were competent to confer these Constitutions upon themselves. They were +not, that is to say, sovereign; and before the Constitutions they devised +therefore could come of effect they had to be passed as Imperial Acts by +the Parliament at Westminster. + +Yet that also has now changed. Ireland has wrought the change; and the +deep influence of that change cannot be foretold. For the Dail elected to +pass the Constitution will act, not as a Constituent Convention, but as a +Constituent Assembly. It will not only devise the Constitution, with the +present Constitution before it as a Bill for discussion, but, having +devised it, will prescribe it; and thus, through their elected +representatives, the people of Ireland will have conferred it on +themselves as their Fundamental Law. + +That is a sovereign act; and that act will differ in no degree from a +similar act by any other sovereign people. From this, however, one last +consideration follows; and, though it is simple, it is not usually +remembered. For if the passing of a Constitution is an act of full +sovereignty, and if that Constitution, being a Fundamental Law, restricts +and limits all future law-making, then the assemblies to come which will +pass those future laws will not be sovereign. + +They will not be able to do what they will, and they will not be able to +act as they will, for they must obey the requirements and act within the +limits of the Constitution, as prescribed by the first Assembly, which +alone was of full sovereignty. For this reason every nation has gone to +great care to choose persons of special competence for the body which is +to act as a Constituent Assembly--the body, indeed, which is to act as the +first, and, so long as that Constitution shall remain, the last Sovereign +Assembly of the nation. The act of prescribing a Constitution being the +highest act that a nation can make, care has always been taken to make it +the fullest and the freest. For, once done, it cannot be undone, except at +great trouble, and perhaps as the result of great convulsion. + + +II. + +THE PLAN OF THE CONSTITUTION. + +To draw up a plan is almost inevitably to express a philosophy. In shaping +the sequence and proportion of the parts which are to comprise the whole, +the trick of the mind will out; and it is in that trick of the mind that, +ultimately, all philosophies are contained. Perhaps there are few who, +after consideration, would deny this in all the ordinary (greater or +lesser) concerns of life; but many will think it strange in a matter so +dry as the drafting of a Constitution. Yet even in the drafting of a +Constitution it will be found equally true. + +A Constitution may be likened to a pyramid, the apex of which is the +Executive Authority, and the base the People. The first question that +therefore at once arises is, where shall one begin first with this +pyramid? But before this question can be answered, another must first be +met; and it is, whether the base is hung from the apex, or whether the +apex rests on the base? What relation has the Executive Authority (whether +kingly, presidential or consular) to the People, and the People to the +Executive Authority; and which, names and titles apart, is ultimately the +Sovereign? These are ripe questions; and only in the making of the plan +can they be answered. + +I have already shewn that the writing of a Constitution is itself evidence +that the people are sovereign, even though no statement to that effect is +included in the writing. But when one comes to look in the Constitutions +of the world it is curious to note the persistence with which that truth +is overlooked. The Canadian Constitution, for example, having provided for +the Union of Provinces by which the Federation was created, begins at once +with the statement that "the Executive Government and authority of and +over Canada is hereby declared to continue and be vested in the Queen." +Nothing has been said about a Legislature--nothing about the people of +Canada. The Constitution begins at once with an Executive Authority which +nothing has brought into being, and which therefore exists of its own +right, original and indefeasible, all things else in the Constitution +depending from it. The pyramid is hung from heaven, for the philosophy of +the plan is to be found in the mediaeval myth of the Divine Right of +Kings. + +The Constitution of Canada consequently proceeds downwards from that apex +to the Legislature; and in that Legislature, according to the philosophy, +the Senate comes before the Commons. "There shall," it says, "be one +Parliament for Canada, consisting of the Queen, an Upper House, styled the +Senate, and the House of Commons." As for the base, it is found nowhere at +all. The interest is exhausted before it is reached; and the People are +not mentioned. + +I have taken the Canadian Constitution because it is specially mentioned +in the present draft of the Constitution of _Saorstat Eireann_; but the +same supposition is found in many other constitutions, such as those of +Denmark, Sweden, South Africa. In them are to be found the relics of the +mediaeval theory of government, of a divine authority conferred on a +family, which therefore ruled of its own right; and of its own grace +summoned the subjects of that authority for counsel and advice. Therefore +in these constitutions it is assumed that the sovereignty is above and the +subjection below--even though no one to-day supposes that the practical +facts are what they assume them to be. + +In the Irish Constitution, as in most modern constitutions, this order is +inverted. The sovereignty is below, and the subjection is above. Never +once throughout the Irish Constitution (either in its original or its +present form) are the people once considered as subjects, but always as +sovereign citizens. The pyramid is based on the broad earth, in the divine +right of the people; and a beginning is therefore made with the base, +proceeding upward to the apex. The plan in fact is reversed because the +philosophy is different. + +The Constitution of _Saorstat Eireann_ begins with the people, and with a +statement of the sovereignty of the people. "All powers of Government," it +says in Article 2, "and all authority, legislative, executive and +judicial, are derived from the people and the same shall be exercised in +_Saorstat Eireann_ through the organisations established by or under, and +in accord with, this Constitution." In this Constitution, therefore, the +people of Ireland establish their own right, original and indefeasible, +and all things and persons and institutions named or created by or under +it depend from them. That is in the present, as it was in the original, +draft. Whatever institution or organisation is established to act on their +behalf, acts under an authority conferred by them; and in accord with the +specific bestowal of that authority; and not otherwise. Whatever person or +power is named, is named to act on their behalf; acts under the same +authority; in accord with the specific bestowal of that authority; and not +otherwise. The people confer of their own right; and what they may confer +they may withdraw. If the authority they confer be abused or transgressed, +it ceases thereupon to have any sanction or reverence, and possesses no +binding effect. That is to say, in the terms of my figure, the apex of the +pyramid rests on the base, is hung from no mythical divine right of kings, +and has no support outside the people of Ireland. + +The people, consequently, are citizens of a free state, not the subjects +of authority. It is necessary, therefore, at once to state who are the +citizens of this state, and what constitutes their citizenship. This the +next article proceeds to define. In this article the whole question of +future citizenship is referred to legislation. It properly belongs to +legislation, since it includes a number of complex matters and details +quite unsuited to a Constitution. Yet there must be an original +citizenship, otherwise the service of the state could not begin. Article +3, therefore, states what constitutes the original citizenship of Saorstat +Eireann; and leaves all matters "governing the future acquisition and +termination of citizenship" to be "determined by law," making it a +constitutional provision, however, that "men and women have equal rights +as citizens." And Article 4 provides that the official language of that +citizenship shall be the Irish language. + +From these original citizens, and from whomever shall be admitted to +citizenship in the future, all the authority of the State derives under +the Constitution. They are the base of the pyramid, and it is they who in +the Constitution (according to the plan on which it is framed) confer on +certain persons and organisations definite powers of Government in +Ireland. But the authority which can confer, can also withhold; and from +the powers which they grant, certain matters are withheld. For there are +matters which comprise the fundamental rights of their sovereignty, with +which no Government created by them can interfere. If the Government had +existed, or had claimed to have existed, of its own original right, it +could, being itself sovereign, have acted as it pleased; and in past times +it did so. But since Government under the Constitution exists only by +reason of an authority conferred by a sovereign people, these Fundamental +Rights of their sovereignty are kept apart; and no authority--legislative, +executive or judicial--and no power of Government is conceded the right to +touch them. + +Therefore in the first section of the Constitution, where the original +authority of the people is stated, certain matters are withheld. They are +described as _Fundamental Rights_. The liberty of the Person, the +Inviolability of the Dwelling, Freedom of Conscience and the Free Practice +and Profession of Religion, the Free Expression of Opinion, Free +Assembly, Free Association, Free Elementary Education, and the +Inalienability of Natural Resources, are each dealt with in successive +articles as forming the essentials of these rights. Before any powers are +conferred, before any organisations or institutions of Government are +created, these matters are put to one side and reserved. They belong to +the people. None shall interfere with them. The people are sovereign, and +they so decide. + +Such is the plan, for such is the philosophy. The first section of the +Constitution, therefore, includes what may be described as the base of the +pyramid, resting on the soil of Ireland and established in the right of +the People of Ireland. From that base the pyramid is built up toward the +Executive Authority, in section by section, giving the logical order in +which power is derived. Each section is based on that which precedes it; +for the order is the same as in the original draft, and therefore the plan +is preserved. + + +III. + +THE MAKING OF LAWS. + +All powers of Government may derive from the people, but the people cannot +of themselves govern themselves. In simple small communities the people +may gather together and frame the manner of their government from meeting +to meeting (and only then when ancient custom has given them the practice +and expectation of such assemblies); but among nations for a people to +discipline and rule themselves it is necessary that they bestow recognised +and definite powers of government on representatives of their choice. Such +representatives, to be sure, have a habit of conceiving that they are +rulers of their own right. Cases have even been known where they have +endeavoured to obstruct the right of the people to depose them. But the +truth is that such representatives are merely a convenience. They are a +people's instruments, and no more. Without them the achievement of a +common agreement, and the formulation of laws based on that common +agreement, would prove so cumbersome as to be impossible. A people must +therefore tolerate them with good humour; and keep them under proper +control. And when such representatives have been chosen, they together +form an organised body for the making of laws, and for the supervision and +control of the execution of such laws. + +Obviously, then, once a Constitution has stated the sovereign source of +all authority, and defined the fundamental rights of that sovereignty, it +is essential that it should prescribe the manner in which laws shall be +made for the peace, order and good government of the whole people. The +second section of the Constitution, therefore, deals with the _Legislative +Provisions_ of the State. The most important of these, manifestly, is the +creation of an organisation of representatives; but, owing to the tendency +of representatives to arrogate powers to themselves, of late years the +peoples of many States have insisted on a direct voice in the checking, +and even in the making, of laws. This direct voice has been exerted by +means of two instruments known generally as the Referendum and the +Initiative. Wherever these prevail, the Assembly of Representatives is +given only a limited power in the making of laws, the sovereign authority +reserving to itself a constant and continuous control over its action. And +in our Constitution both these instruments are given a place. For it is a +sound rule that the people are generally better than their +representatives--wiser of counsel, more disinterested of judgment--and it +is therefore provided in the Constitution that there shall be an Assembly +of Representatives, but that the people may require of that Assembly that +laws be referred to them for final decision, or that laws be made to suit +their desire. + +The most important part of these legislative provisions, however, is the +setting up of a National Assembly, or Synod, to be known as the +Oireachtas. This is to be formed of two Houses, Dail Eireann and Seanad +Eireann. There are many powerful arguments against the two-chamber system. +In the end they all resolve themselves into a question of ultimate +responsibility. In a simple illustration, if there be one thimble and one +pea, it is easy enough to know where the pea is. But directly a second +thimble is brought up beside the first, the difficulty of placing the pea +becomes at once a problem. On the other hand, the arguments in favour of a +second-chamber system also resolve themselves into a question of +responsibility. For if there is only one chamber, without a second to +check it and act together with it, there is, it is argued, a greater +likelihood of its acting in an irresponsible manner, and of its running +into hasty, ill-advised legislation. Its members, having acquired the +habit of concerted action, may moreover strike a bargain behind the +people's back, even while preserving all the forms of opposition and +discussion. With the two instruments of the Referendum and the Initiative +in operation this danger is less likely, provided that the people be +sufficiently alert. Yet it exists. In most countries, therefore, two +chambers are the rule; and in our Constitution it is provided that there +shall be two chambers, care being taken to fix responsibility ultimately +in the first in case of doubt or delay. + +Given two chambers, the difficulty is the creation of the Second Chamber. +The First Chamber causes little difficulty, and is mainly a matter, not +for the Constitution, but for an Electoral Law. The Second Chamber is a +matter for the Constitution. Indeed, the question and creation of a Second +Chamber, and the formation of the Executive Power, are the two foremost +problems for the making of every Constitution. The first difficulty is to +find for the Second Chamber a sufficient constituency, and the second +difficulty is to find for it a proper function; and both these problems +are essentially matters for the Constitution of a State. To answer both of +them satisfactorily is the difficulty; and an examination of the +constitutions of other countries reveals that in few cases have they been +answered even to general satisfaction. + +As for the constituency, it is clear that this cannot be the same as for +the first chamber, otherwise the two Houses are simply repetitions. That +is one consideration to be remembered. There is another. For from earliest +times mankind has desired to call into its special councils those who have +distinguished themselves in the conduct of its affairs. Folk may disagree +with such persons, but they defer to them and hear them. What may be +called the Senatorial Person is a recognised factor in the history of all +nations. In the push and jostle of entry to the First House--where special +and local interests are represented--such a Senatorial Person is most +likely to be thrust aside, even if he or she be inclined to mingle in the +fray. He is consequently lost to the councils of the nation. How shall a +place be found for him or for her; and when the place is found, what shall +be the measure of his or her counsel? + +Other nations have answered these problems in divers ways. None has +answered them as they are answered in the Constitution of _Saorstat +Eireann_. For it is clear that if there is to be a Second Chamber, the +right place for such a Senatorial Person is in that Second Chamber, since +only thus is it possible to avoid making one chamber a mere copy of the +other. In some countries, therefore, the Second Chamber is composed of +persons on whom a title has been conferred--and on their children who +succeed to that title. In other countries the Second Chamber is created by +nomination--with at least the ostensible wish that only Senatorial Persons +will be appointed. Both these methods have led to corruption. Both, +moreover, have led to one fatal fault. For Second Chambers are mainly of +value at times when the First Chamber is likely to rush to a mistake; and +at such times no people are inclined to give careful heed to the counsel +of persons whom they have not themselves chosen to give that counsel. They +may be exactly such persons as they themselves would have chosen; but the +fact that they did not choose them, the fact that they came there by the +accident of birth, or the power of money, robs them of authority just when +their authority is most required. + +For this reason, the people's own choice of Senators is necessary to their +efficiency and authority. In countries formed out of a Confederation this +difficulty is evaded by the creation of the Senate from the Federated +States, while creating the First Chamber directly from the whole people. +But where there are no Federated States the people's direct bestowal of +authority cannot be evaded if friction and loss of strength are to be +avoided. Thus one returns to the original problem, which is, how the +people shall choose a Senate which will not be a copy of the Chamber of +Deputies, and how the Senatorial Person will find his way to the councils +of the nation, bringing with him an unanswerable authority. + +Our Constitution meets this by making the whole country one constituency +for the election of the Senate. The Deputies are elected from localities +where they are known, and the special interests of which they are +qualified to represent. Over those interests the major interest of the +whole nation stands guard. It would be possible for persons to enter the +Chamber of Deputies who are not known outside their own localities, but +who are qualified to represent those localities. But by making the entire +country one constituency for the election of the Senate, no merely local +interest will have power to secure election. And thus it will be possible +to find a place for the Senatorial Person from, as the Constitution reads, +"citizens who have done honour to the nation by reason of useful public +service, or who, because of special qualifications or attainments, +represent important aspects of the nation's life." These persons are to be +elected by Proportional Representation; and in order that the business of +election shall not prove too cumbersome it is appointed that one-fourth of +the Senate shall retire every three years, and that before each election a +list shall be prepared by both Houses consisting of at least three times +as many persons as there are vacancies to be filled. + +Such form the two Houses of the Oireachtas. Their relation to one another +is carefully defined. The Seanad is created as an advisory and delaying +body, and the ultimate responsibility is given to the Dail. But endowed, +as it is, with so strong an authority, vested in it by the entire nation +voting as a whole, it is unlikely that its criticisms and advice can be +neglected. For such criticisms will be furnished in the course of debates +that will be read by the whole people; and behind them there will always +be the possibility of appeal to the whole nation by Referendum, which the +Senate can compel by a three-fifths vote. The Senate and the people, +therefore, are placed in a watchful alliance over the acts and +proceedings of the Dail. Indeed, it is not unlikely that in the future the +Senate and the people (by Referendum) will often be found in practical +alliance against any attempt of the Dail to arrogate power to itself. The +Senate has the power to make it so--a power of greater worth to it, and to +the nation, than any constitutional right arbitrarily to obstruct +legislation or to make legislation abortive. + + +IV. + +THE PEOPLE AS LAW-MAKERS. + +More is spoken of the two instruments of the Referendum and the Initiative +(particularly the former) than is known about them; for in the countries +where they have been adopted, folk use them and do not talk about them, +and where they have not been adopted folk talk about them with ardour or +with fear but without knowledge. Briefly they may be described as a +retention by the sovereign people of sovereign authority over the making +of laws. + +The case is not without an historical parallel. In earlier times in other +states the sovereign was the king, who said, "L'Etat, c'est moi." He was +therefore the law-maker, by supreme right. He might summon the estates of +his realm--Lords and Commons--to advise and counsel him; and he might, +normally, allow their acts without his interference; but, being sovereign, +he reserved the right to cause those acts to be referred to him for the +final act of his will; and he at all times reserved the right to send a +message to them instructing them to make laws on matters that seemed to +him to require attention. This he did, being the sovereign. His parliament +was the legislature of the State, but he preserved the Referendum and the +Initiative, and held them as his sovereign authority over the authority +deputed to the legislature. + +When, however, sovereignty passed to the people, they assumed the +attributes and the functions of that sovereignty. Where once the king's +person and the king's dwelling, for example, had been declared to be +inviolable, now (as in our Constitution) the people's persons and the +people's dwellings are declared to be inviolable. And where once the king +reserved the right to veto and to initiate legislation, so now (as again +in our Constitution) the people reserve the right to veto and to initiate +legislation. And this is the plain and simple meaning of the two +instruments of the Referendum and the Initiative. Their effect is to shift +sovereignty from the parliament to the people, where the revolutions of +the 17th and 18th centuries shifted sovereignty from the king to the +parliament. + +It frequently happens that theories (for whatever they may be worth) are +carried to their logical ends by practical people and not by +theorists--for theory generally lags in the rear of practice. So it +happened in this case. For it was the soberly practical and conservative +people of Switzerland who in modern times first devised the Referendum, +and then the Initiative. Since then they have been adopted in many +countries, chief of which are Belgium, Australia, and many of the American +States; and they appear in most of the constitutions recently adopted in +Europe. But it is in Switzerland that they can most usefully be studied, +for there they have a solid experience of ninety years continuous practice +behind them. + +The Referendum came first; and in its modern form was first adopted in the +Constitution of the canton of St. Gall in 1831, the second and third +articles of which read: + + 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 manoeuvring 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 moves slowly. 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 of the 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. + + +V. + +THE EXECUTIVE POWER. + +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 the Law-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 a Confederation, 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 government +of 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 as deputies--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, they would 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 of nominating 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 the fray. 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. + + +VI. + +THE JUDICIARY. + +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, when therefore +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 subsequent +Judiciary 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 the making 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 the Constitution, 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 the minorities of the day +have the honest chance of becoming the majorities of 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 provisions of 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. + + +VII. + +THE QUESTION OF APPEALS. + +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." + +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." + +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 only strong 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 Committee would 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 straightest nor 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 Judicial Committee's +decision 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 I think 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. + + +VIII. + +FUNCTIONAL COUNCILS. + +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 historic memory. 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:-- + + "The Oireachtas may provide for the establishment of Functional or + Vocational Councils representing branches of the social and economic + life of the Nation. A law establishing any such Council shall + determine its powers, rights and duties, and its relation to the + government of the Irish Free State." + +As a matter of curious interest it happens that the German Constitution +contains an article very similar to this; but the conception had been in +development in Ireland for some years. It had, indeed (as I endeavoured to +shew in a little book on _The Gaelic State_, published in 1917), been a +slumbering memory of the Irish Nation during the centuries when the +characteristic political conceptions of the people were frustrate and +idle, as they may now be put into practical development. It had been +worked out in practical detail for one of our largest and most important +industries in the Report on Sea Fisheries of the _Commission of Inquiry_, +published in 1921. And it had actually, though imperfectly, been in +operation for another great industry since 1896 in the Council of +Agriculture. + +What, then, are these Functional (or Vocational or Occupational) Councils +for which provision is made, and on what political or social conception do +they rest? One need not travel outside the present draft Constitution to +discover the need for them. For in this Constitution, as in most +constitutions, the people are, outside this one Article, considered in +only two of the three relations that go to make up their lives, and which +therefore constitute the complete life of the Nation. All the persons of +the State are considered either as individuals or as citizens. But these +two descriptions do not exhaust their lives. In addition to being +individuals and citizens they are also workers in some craft, industry, +trade or profession. Indeed, it is seldom they have time to be +individuals, and it is seldom they are reminded that they are citizens. +For good or for ill, these are only occasional parts of their lives. But +they are never permitted to forget the parts they are required to play in +the social and economic life of the Nation. + +The Constitution establishes their rights as individuals putting these +rights beyond the reach of interference either of those who make or those +who execute the law. It also establishes their rights as citizens, +certifies the manner of their action as citizens, and derives all +authority in the State from those rights and actions. But these are only +the lesser, however supremely important, parts of our lives. The greater +part of our days is, for each of us, packed with the thoughts are cares of +our functional lives. We are more frequently, in the intake and output of +our lives, blacksmiths or architects, or whatever else, than we are +individuals or citizens. Have we not rights and duties there too, both for +ourselves and to the Nation; and should not the Constitution make +provision for this, the larger part of our lives, as well as for the +lesser parts? Can provision be said to have been completely made either +for our own lives or for the interplay that constitutes the life of the +Nation if this aspect be neglected? + +We are faced at once with a difficulty. Seeing that we have the experience +of it, it is easy to perceive how we can be represented in the State as +citizens. How can we be represented in the State in respect of our +functions? To answer this question one may turn to an instance that lives +before us, an example from elder days when such an order of society was +familiar. For in old Ireland (as in other nations) guilds were a +recognised form of the industrial life of the nation. They were also, +though not known by that name, a recognised form of the professional life +of the Nation. And as a relic of those times we have to-day what is in +effect a guild of Lawyers. The lawyers of Ireland, for example, are +organised as a whole, with a Council representative of the profession as a +whole. That Council, representative of all who practice as lawyers, is a +responsible body, not only to the lawyers who are represented in it, but +to and in the State on behalf of the legal profession. It is responsible +for the honour and good conduct of lawyers. It is responsible for the +economic maintenance of its constituents. No lawyer is allowed to practice +except by consent of the Legal Council--that is to say, except by the +consent of all other lawyers. The legal profession as a whole--in the +legal sense, as a Person--protects its own honour, protects the individual +lawyer, protects the public interest (in theory, at least), and requires a +guarantee of efficiency and rectitude from every lawyer before he is +allowed to practice his profession. + +So it was in ancient Ireland. At that time, when the Assembly of the +Nation met, the lawyers, or 'brehons,' met in a Council of their own. The +administrative heads of each unit of local government met in a Council of +their own. The Recorders, or _Seanchaidhe_, of the local petty states, met +in a Council of their own. And each Council was responsible for the +administration of its own concerns. Each Council drew up its own +regulations, for the conduct of it own duties in the State, and for the +protection of its own 'functional' rights. Each Council, in the modern +legal phrase, was a responsible 'Person,' and was by the State, as it +existed at that time, entrusted with the conduct and administration of its +own affairs, subject to the general execution of the public interest. + +It lay with the Assembly of the Nation to co-ordinate the whole in the +public interest. Whether this was or was not done effectively in olden +times is indifferent to the present problem of Functional Councils in the +modern State, with its better organisation and more perfect national +sense. The problem of organisation is very real, but it does not affect +the necessity of functional representation and functional responsibility +in the State. It is, for example, absurd that persons unfamiliar with +architectural problems, however highly placed in the nation they may be, +should be entrusted with architectural decisions that require special +training and knowledge. It is equally absurd that a person unfamiliar with +the needs of the Fishing Industry should, because for political reasons he +should happen to be chosen as Minister of Fisheries, make proposals and be +responsible for decisions that affect the present livelihood of fishermen +and the successful future of the Fishing Industry. These matters must be +reposed in the care of representative Functional (Occupational or +Vocational) Councils, that should be required to render account, on the +one hand, to the Function which they represent, and, on the other hand, to +the State on behalf of that Function. + +When such an organisation of the social and economic life of the Nation +has been achieved, then, and only then, will it be possible to say that +all parts of the life of the Nation have been brought within the reach and +authority of the Constitution. It may be objected that these matters lie +in the future. That is true. The Constitution allows for them, and by +allowing for them indicates that they should be, and probably will be, the +natural development of the future of the Irish Nation. + + + + +Draft Constitution of the Irish Free State + + +PRELIMINARY. + +These presents shall be construed with reference to the Articles of +Agreement for a Treaty between Great Britain and Ireland set forth in the +Schedule hereto annexed (hereinafter referred to as "the Scheduled +Treaty") which are hereby given the force of law, and if any provision of +this Constitution or of any amendment thereof or of any law made +thereunder is in any respect repugnant to any of the provisions of the +Scheduled Treaty, it shall, to the extent only of such repugnancy be +absolutely void and inoperative and the Parliament and the Executive +Council of the Irish Free State shall respectively pass such further +legislation and do all such other things as may be necessary to implement +the Scheduled Treaty. + + +SECTION I.--FUNDAMENTAL RIGHTS. + +ARTICLE 1. + +The Irish Free State/Saorstat Eireann is a co-equal member of the +Community of Nations forming the British Commonwealth of Nations. + +ARTICLE 2. + +All powers of government and all authority legislative, executive, and +judicial, are derived from the people and the same shall be exercised in +the Irish Free State/Saorstat Eireann through the organisations +established by or under, and in accord with, this Constitution. + +ARTICLE 3. + +Every person domiciled in the Irish Free State/Saorstat Eireann at the +time of the coming into operation of this Constitution who was born in +Ireland or either of whose parents was born in Ireland or who has been so +domiciled in the area of the jurisdiction of the Irish Free State/Saorstat +Eireann for not less than seven years is a citizen of the Irish Free +State/Saorstat Eireann and shall within the limits of the Irish Free +State/Saorstat Eireann enjoy the privileges and be subject to the +obligations of such citizenship, provided that any such person being a +citizen of another State may elect not to accept the citizenship hereby +conferred; and the conditions governing the future acquisition and +termination of citizenship in the Irish Free State/Saorstat Eireann shall +be determined by law. Men and women have equal rights as citizens. + +ARTICLE 4. + +The National language of the Irish Free State/Saorstat Eireann is the +Irish language, but the English language shall be equally recognised as an +official language. Nothing in this Article shall prevent special +provisions being made by the Parliament/Oireachtas for districts or areas +in which only one language is in use. + +ARTICLE 5. + +No title of honour in respect of any services rendered in or in relation +to the Irish Free State/Saorstat Eireann may be conferred on any citizen +of the Irish Free State/Saorstat Eireann except with the approval or upon +the advice of the Executive Council of the State. + +ARTICLE 6. + +The liberty of the person is inviolable, and no person shall be deprived +of his liberty except in accordance with law. Upon complaint made by or on +behalf of any person that he is being unlawfully detained, the High +Court/Ard Chuirt and any and every judge thereof shall forthwith enquire +into the same and may make an order requiring the person in whose custody +such person shall be detained to produce the body of the person so +detained before such Court or Judge without delay and to certify in +writing as to the cause of the detention and such Court or Judge shall +thereupon order the release of such person unless satisfied that he is +being detained in accordance with the law. + +ARTICLE 7. + +The dwelling of each citizen is inviolable and shall not be forcibly +entered except in accordance with law. + +ARTICLE 8. + +Freedom of conscience and the free profession and practice of religion are +inviolable rights of every citizen, and no law may be made either directly +or indirectly to endow any religion, or prohibit or restrict the free +exercise thereof or give any preference, or impose any disability on +account of religious belief or religious status, or affect prejudicially +the right of any child to attend a school receiving public money without +attending the religious instruction at the school, or make any +discrimination as respects State aid between schools under the management +of different religious denominations, or divert from any religious +denomination or any educational institution any of its property except for +the purpose of roads, railways, lighting, water or drainage works or other +works of public utility, and on payment of compensation. + +ARTICLE 9. + +The right of free expression of opinion as well as the right to assemble +peaceably and without arms, and to form associations or unions is +guaranteed for purposes not opposed to public morality. Laws regulating +the manner in which the right of forming associations and the right of +free assembly may be exercised shall contain no political, religious or +class distinction. + +ARTICLE 10. + +All citizens of the Irish Free State/Saorstat Eireann have the right to +free elementary education. + +ARTICLE 11. + +The rights of the State in and to natural resources, the use of which is +of national importance, shall not be alienated. Their exploitation by +private individuals or associations shall be permitted only under State +supervision and in accordance with conditions and regulations approved by +legislation. + + +SECTION II.--LEGISLATIVE PROVISIONS. + +A.--THE LEGISLATURE. + +ARTICLE 12. + +A Legislature is hereby created to be known as Parliament/Oireachtas of +the Irish Free State/Saorstat Eireann. It shall consist of the King and +two Houses: the Chamber of Deputies/Dail Eireann and the Senate/Seanad +Eireann. The power of making laws for the peace, order and good government +of the Irish Free State/Saorstat Eireann is vested in the +Parliament/Oireachtas. + +ARTICLE 13. + +The Parliament/Oireachtas shall sit in or near the city of Dublin or in +such other place as from time to time it may determine. + +ARTICLE 14. + +All citizens of the Irish Free State/Saorstat Eireann without distinction +of sex who have reached the age of twenty-one years and who comply with +the provisions of the prevailing electoral laws, shall have the right to +vote for members of the Chamber of Deputies/Dail Eireann, and to take part +in the Referendum or Initiative. All citizens of the Irish Free +State/Saorstat Eireann without distinction of sex who have reached the age +of thirty years and who comply with the provisions of the prevailing +electoral laws, shall have the right to vote for members of the +Senate/Seanad Eireann. No voter may exercise more than one vote and the +voting shall be by secret ballot. The mode and place of exercising this +right shall be determined by law. + +ARTICLE 15. + +Every citizen who has reached the age of twenty-one years and who is not +placed under disability or incapacity by the Constitution or by law shall +be eligible to become a member of the Chamber of Deputies/Dail Eireann. + +ARTICLE 16. + +No person may be at the same time a member both of the Chamber/Dail +Eireann and of the Senate/Seanad Eireann. + +ARTICLE 17. + +The oath to be taken by Members of Parliament/Oireachtas shall be in the +following form:-- + + I ........................ do solemnly swear true faith and + allegiance to the Constitution of the Irish Free State as by law + established, and that I will be faithful to H.M. King George V., his + heirs and successors by law in virtue of the common citizenship of + Ireland with Great Britain and her adherence to and membership of the + group of nations forming the British Commonwealth of Nations. + +Such oath shall be taken and subscribed by every member of the +Parliament/Oireachtas before taking his seat therein before the +Representative of the Crown or some person authorised by him. + +ARTICLE 18. + +Every member of the Parliament/Oireachtas shall, except in case of +treason, felony, or breach of the peace, be privileged from arrest in +going to and returning from, and while within the precincts of either +House, and shall not be amenable to any action or proceeding at law in +respect of any utterance in either House. + +ARTICLE 19. + +All reports and publications of the Parliament/Oireachtas or of either +House thereof shall be privileged and utterances made in either House +wherever published shall be privileged. + +ARTICLE 20. + +Each House shall make its own rules and Standing Orders, with power to +attach penalties for their infringement and shall have power to ensure +freedom of debate, to protect its official documents and the private +papers of its members, and to protect itself and its members against any +person or persons interfering with, molesting or attempting to corrupt its +members in the exercise of their duties. + +ARTICLE 21. + +Each House shall elect its own Chairman and Deputy Chairman and shall +prescribe their powers, duties, and terms of office. + +ARTICLE 22. + +All matters in each House shall, save as otherwise provided by this +Constitution, be determined by a majority of the votes of the members +present other than the Chairman or presiding member, who shall have and +exercise a casting vote in the case of an equality of votes. The number of +members necessary to constitute a meeting of either House for the exercise +of its powers shall be determined by its Standing Orders. + +ARTICLE 23. + +The Parliament/Oireachtas shall make provision for the payment of its +members and may in addition provide them with free travelling facilities +in any part of Ireland. + +ARTICLE 24. + +The Parliament/Oireachtas shall hold at least one session each year. The +Parliament/Oireachtas shall be summoned and dissolved by the +Representative of the Crown in the name of the King and subject as +aforesaid the Chamber/Dail Eireann shall fix the date of re-assembly of +the Parliament/Oireachtas and the date of the conclusion of the session of +each House provided that the sessions of the Senate/Seanad Eireann shall +not be concluded without its own consent. + +ARTICLE 25. + +Sittings of each House of the Parliament/Oireachtas shall be public. In +cases of special emergency either House may hold a private sitting with +the assent of two-thirds of the members present. + + +SECTION II.--LEGISLATIVE PROVISIONS. + +B.--THE CHAMBER OF DEPUTIES/DAIL EIREANN. + +ARTICLE 26. + +The Chamber/Dail Eireann shall be composed of members who represent +constituencies determined by law. The number of members shall be fixed +from time to time by the Parliament/Oireachtas, but the total number of +members of the Chamber/Dail Eireann shall not be fixed at less than one +member for each thirty thousand of the population, or at more than one +member for each twenty thousand of the population: Provided that the +proportion between the number of members to be elected at any time for +each constituency and the population of each constituency, as ascertained +at the last preceding census, shall, so far as possible, be identical +throughout the country. The members shall be elected upon principles of +Proportional Representation. The Parliament/Oireachtas shall revise the +constituencies at least once in every ten years, with due regard to +changes in distribution of the population, but any alterations in the +constituencies shall not take effect during the life of the Chamber/Dail +Eireann sitting when such revision is made. + +ARTICLE 27. + +At a General Election for the Chamber/Dail Eireann the polls shall be held +on the same day throughout the country, and that day shall be a day not +later than thirty days after the date of the dissolution and shall be +proclaimed a public holiday. The Chamber/Dail Eireann shall meet within +one month of such day, and shall unless earlier dissolved continue for +four years from the date of its first meeting, and not longer. The +Chamber/Dail Eireann may not at any time be dissolved except on the advice +of the Executive Council. + +ARTICLE 28. + +In case of death, resignation or disqualification of a member of the +Chamber/Dail Eireann, the vacancy shall be filled by election in manner to +be determined by law. + + +SECTION II.--LEGISLATIVE PROVISIONS. + +C.--THE SENATE/SEANAD EIREANN. + +ARTICLE 29. + +The Senate/Seanad Eireann shall be composed of citizens who have done +honour to the Nation by reason of useful public service or who, because of +special qualifications or attainments, represent important aspects of the +Nation's life. + +ARTICLE 30. + +Every University in the Irish Free State/Saorstat Eireann shall be +entitled to elect two representatives to the Senate/Seanad Eireann. The +number of Senators, exclusive of the University members, shall be +fifty-six. A citizen to be eligible for membership of the Senate/Seanad +must be a person eligible to become a member of the Chamber/Dail Eireann, +and must have reached the age of thirty-five years. Subject to any +provision for the constitution of the first Senate/Seanad the term of +office of a member of the Senate/Seanad shall be twelve years. + +ARTICLE 31. + +One-fourth of the members of the Senate/Seanad Eireann exclusive of the +University members shall be elected every three years from a panel +constituted as hereinafter mentioned at an election at which the Irish +Free State/Saorstat Eireann shall form one electoral area and the +elections shall be held on principles of Proportional Representation. One +member shall be elected by each University entitled to representation in +the Senate/Seanad every six years. + +ARTICLE 32. + +Before each election of members of the Senate/Seanad Eireann (other than +University members) a panel shall be formed consisting of:-- + + (a) Three times as many qualified persons as there are members to be + elected of whom two-thirds shall be nominated by the Chamber/Dail + Eireann voting according to principles of Proportional Representation + and one-third shall be nominated by the Senate/Seanad Eireann voting + according to principles of Proportional Representation; and + + (b) Such persons who have at any time been members of the + Senate/Seanad (including members about to retire) as signify by + notice in writing addressed to the President of the Executive Council + their desire to be included in the panel. + +The method of proposal and selection for nomination shall be decided by +the Chamber/Dail and Senate/Seanad respectively, with special reference to +the necessity for arranging for the representation of important interests +and institutions in the country; Provided that each proposal shall be in +writing and shall state the qualifications of the person proposed. As soon +as the panel has been formed a list of the names of the members of the +panel arranged in alphabetical order with their qualifications shall be +published. + +ARTICLE 33. + +In the case of the death, resignation or disqualification of a member of +the Senate/Seanad Eireann (other than a University member) his place shall +be filled by a vote of the Senate/Seanad. Any Senator so chosen shall +retire from office at the conclusion of the three years period then +running and the vacancy or vacancies thus created shall be additional to +the places to be filled under Article 31. The term of office of the +members chosen at the election after the first fourteen elected shall +conclude at the end of the period or periods at which the Senator or +Senators by whose death or withdrawal the vacancy or vacancies was or were +originally created would be due to retire; Provided that the fifteenth +member shall be deemed to have filled the vacancy first created in order +of time and so on. + +In case of the death, resignation or disqualification of a University +member of the Senate/Seanad, the University by which he was elected shall +elect a person to fill his place, and the member so elected shall hold +office so long as the member in whose place he was elected would have held +office. + + +SECTION II.--LEGISLATIVE PROVISIONS. + +D.--LEGISLATION. + +ARTICLE 34. + +The Chamber/Dail Eireann shall in relation to the subject matter of money +bills as hereinafter defined have legislative authority exclusive of the +Senate/Seanad Eireann. + +A money Bill means a Bill which contains only provisions dealing with all +or any of the following subjects, namely, the imposition, repeal, +remission, alteration or regulation of taxation; the imposition for the +payment of debt or other financial purposes of charges on public moneys or +the variation or repeal of any such charges; supply; the appropriation, +receipt, custody, issue or audit of accounts of public money; the raising +or guarantee of any loan or the repayment thereof; subordinate matters +incidental to those subjects or any of them. In this definition the +expressions "taxation," "public money" and "loan" respectively do not +include any taxation, money or loan raised by local authorities or bodies +for local purposes. + +The Chairman of the Chamber/Dail shall certify any bill which in his +opinion is a money bill to be a money bill, but, if within three days +after a Bill has been passed by the Chamber/Dail, two-fifths of the +members of either House by notice in writing addressed to the Chairman of +the House of which they are members so require, the question whether the +Bill is or is not a money bill shall be referred to a Committee of +Privileges consisting of three members elected by each House with a +Chairman who shall be the senior judge of the Supreme Court able and +willing to act and who, in the case of an equality of votes, but not +otherwise, shall be entitled to vote. The decision of the Committee on the +question shall be final and conclusive. + +ARTICLE 35. + +The Chamber/Dail Eireann shall as soon as possible after the commencement +of each financial year consider the Budget of receipts and expenditure of +the Irish Free State/Saorstat Eireann for that year, and, save in so far +as may be provided by specific enactment in each case, the legislation +required to give effect to the Budget of each year shall be enacted within +that year. + +ARTICLE 36. + +Money shall not be appropriated by vote, resolution or law, unless the +purpose of the appropriation has in the same session been recommended by a +message from the Representative of the Crown acting on the advice of the +Executive Council. + +ARTICLE 37. + +Every Bill initiated in and passed by the Chamber/Dail Eireann shall be +sent to the Senate/Seanad Eireann and may, unless it be a Money Bill, be +amended in the Senate/Seanad Eireann and the Chamber/Dail Eireann shall +consider any such amendment; but a Bill passed by the Chamber/Dail Eireann +and considered by the Senate/Seanad Eireann shall, not later than two +hundred and seventy days after it shall have been first sent to the +Senate/Seanad, or such longer period as may be agreed upon by the two +Houses, be deemed to be passed by both Houses in its form as last passed +by the Chamber/Dail; Provided that any Money Bill shall be sent to the +Senate/Seanad for its recommendations and at a period not longer than +fourteen days after it shall have been sent to the Senate/Seanad, it shall +be returned to the Chamber/Dail which may pass it, accepting or rejecting +all or any of the recommendations of the Senate/Seanad, and as so passed +shall be deemed to have been passed by both Houses. When a Bill other than +a Money Bill has been sent to the Senate/Seanad a Joint Sitting of the +Members of both Houses may on a resolution passed by the Senate/Seanad be +convened for the purpose of debating, but not of voting upon, the +proposals of the Bill or any amendment of the same. + +ARTICLE 38. + +A Bill may be initiated in the Senate/Seanad Eireann and if passed by the +Senate/Seanad shall be introduced into the Chamber/Dail Eireann. If +amended by the Chamber/Dail the Bill shall be considered as a Bill +initiated in the Chamber/Dail. If rejected by the Chamber/Dail it shall +not be introduced again in the same session, but the Chamber/Dail may +reconsider it on its own motion. + +ARTICLE 39. + +A Bill passed by either House and accepted by the other House shall be +deemed to be passed by both Houses. + +ARTICLE 40. + +So soon as any Bill shall have been passed or deemed to have been passed +by both Houses, the Executive Council shall present the same to the +Representative of the Crown for the signification by him, in the King's +name, of the King's assent, and such representative may withhold the +King's assent or reserve the Bill for the signification of the King's +pleasure; Provided that the Representative of the Crown shall in the +withholding of such assent to or reservation of any Bill, act in +accordance with the law, practice, and constitutional usage governing the +like withholding of assent or reservation in the Dominion of Canada. + +A Bill reserved for the signification of the King's Pleasure shall not +have any force unless and until within one year from the day on which it +was presented to the Representative of the Crown for the King's Assent, +the Representative of the Crown signifies by speech or message to each of +the Houses of the Parliament/Oireachtas, or by proclamation, that it has +received the Assent of the King in Council. + +An entry of every such speech, message or proclamation shall be made in +the Journal of each House and a duplicate thereof duly attested shall be +delivered to the proper officer to be kept among the Records of the Irish +Free State/Saorstat Eireann. + +ARTICLE 41. + +As soon as may be after any law has received the King's assent, the clerk, +or such officer as the Chamber may appoint for the purpose, shall cause +two fair copies of such law to be made, one being in the Irish language +and the other in the English language (one of which copies shall be signed +by the Representative of the Crown to be enrolled for record in the office +of such officer of the Supreme Court as the Chamber/Dail Eireann may +determine) and such copies shall be conclusive evidence as to the +provisions of every such law, and in case of conflict between the two +copies so deposited, that signed by the Representative of the Crown shall +prevail. + +ARTICLE 42. + +The Parliament/Oireachtas shall have no power to declare acts to be +infringements of the law which were not so at the date of their +commission. + +ARTICLE 43. + +The Parliament/Oireachtas may create subordinate legislatures, but it +shall not confer thereon any powers in respect of the Navy, Army or Air +Force, alienage or naturalisation, coinage, legal tender, trade marks, +designs, merchandise marks, copyright, patent rights, weights and +measures, submarine cables, wireless telegraphy, post office, railways, +aerial navigation, customs and excise. + +ARTICLE 44. + +The Parliament/Oireachtas may provide for the establishment of Functional +or Vocational Councils representing branches of the social and economic +life of the Nation. A law establishing any such Council shall determine +its powers, rights and duties, and its relation to the government of the +Irish Free State/Saorstat Eireann. + +ARTICLE 45. + +The Parliament/Oireachtas has the exclusive right to regulate the raising +and maintaining of such armed forces as are mentioned in the Scheduled +Treaty in the territory of the Irish Free State/Saorstat and every such +force shall be subject to the control of the Parliament/Oireachtas. + + +SECTION II.--LEGISLATIVE PROVISIONS. + +E.--REFERENDUM AND INITIATIVE. + +ARTICLE 46. + +Any Bill passed or deemed to have been passed by both Houses may be +suspended for a period of ninety days on the written demand of two-fifths +of the members of the Chamber/Dail Eireann or of a majority of the +members of the Senate/Seanad Eireann presented to the President of the +Executive Council not later than seven days from the day on which such +Bill shall have been so passed or deemed to have been so passed. Such a +Bill shall be submitted by Referendum to the decision of the people if +demanded before the expiration of the ninety days either by a resolution +of the Senate/Seanad Eireann assented to by three-fifths of the members of +the Senate/Seanad Eireann, or by a petition signed by not less than +one-twentieth of the voters then on the register of voters, and the +decision of the people on such referendum shall be conclusive. These +provisions shall not apply to Money Bills or to such Bills as shall be +declared by both Houses to be necessary for the immediate preservation of +the public peace, health or safety. + +ARTICLE 47. + +The Parliament/Oireachtas may provide for the initiation by the people of +proposals for laws or constitutional amendments. Should the +Parliament/Oireachtas fail to make such provision within two years, it +shall on the petition of not less than one hundred thousand voters on the +register, of whom not more than twenty thousand shall be voters in any one +constituency, either make such provisions or submit the question to the +people for decision in accordance with the ordinary regulations governing +the Referendum. Any legislation passed by the Parliament/Oireachtas +providing for such initiation by the people shall provide (1) that such +proposals may be initiated on a petition of fifty thousand voters on the +register, (2) that if the Parliament/Oireachtas rejects a proposal so +initiated it shall be submitted to the people for decision in accordance +with the ordinary regulations governing the Referendum; and (3) that if +the Parliament/Oireachtas enacts a proposal so initiated, such enactment +shall be subject to the provisions respecting ordinary legislation or +amendments of the Constitution as the case may be. + +ARTICLE 48. + +Save in the case of actual invasion, the Irish Free State/Saorstat Eireann +shall not be committed to active participation in any war without the +assent of the Parliament/Oireachtas. + +ARTICLE 49. + +Amendments of this Constitution within the terms of the Scheduled Treaty +may be made by the Parliament/Oireachtas but every such amendment must be +submitted to a Referendum of the people and shall not be passed unless a +majority of the voters on the register record their votes and either a +majority of the voters on the register or two-thirds of the votes recorded +are in favour of the amendment. + + +SECTION III.--THE EXECUTIVE. + +A.--EXECUTIVE COUNCIL/AIREACHT. + +ARTICLE 50. + +The Executive Authority of the Irish Free State/Saorstat Eireann is +hereby declared to be vested in the King, and shall be exercisable, in +accordance with the law, practice and constitutional usage governing the +exercise of the executive authority in the case of the Dominion of Canada, +by the Representative of the Crown. There shall be a Council to aid and +advise in the government of the Irish Free State/Saorstat Eireann to be +styled the Executive Council/Aireacht. The Executive Council shall be +responsible to the Chamber/Dail Eireann, and shall consist of not more +than twelve Ministers/Airi appointed by the Representative of the Crown, +of whom four Ministers shall be Members of the Chamber/Dail Eireann and a +number not exceeding eight, chosen from all citizens eligible for election +to the Chamber/Dail Eireann, who shall not be members of +Parliament/Oireachtas during their term of Office, and who, if at the time +of their appointment they are members of Parliament/Oireachtas, shall by +virtue of such appointment vacate their seats; Provided that the +Chamber/Dail Eireann may from time to time on the motion of the President +of the Executive Council determine that a particular Minister or Ministers +not exceeding three, may be members of Parliament/Oireachtas in addition +to the four members of the Chamber/Dail Eireann above mentioned. + +ARTICLE 51. + +The Ministers who are required to be members of the Chamber/Dail Eireann +shall include the President of the Executive Council/Uachtaran and the +Vice-President of the Executive Council/Tanaist. + +The President of the Executive Council shall be the chief of the Executive +Council and shall be appointed on the nomination of the Chamber/Dail, and +the Vice-President of the Executive Council and the other Ministers who +are members of Parliament/Oireachtas shall be appointed on the nomination +of the President of the Executive Council; and he and the Ministers +nominated by him shall retire from office should he fail to be supported +by a majority in the Chamber/Dail, but the President of the Executive +Council and such Ministers shall continue to carry on their duties until +their successors are appointed. + +ARTICLE 52. + +Ministers who are not members of the Parliament/Oireachtas shall be +nominated by a Committee of members of the Chamber/Dail Eireann chosen by +a method to be determined by the Chamber/Dail so as to be impartially +representative of the Chamber/Dail. Such Ministers shall be chosen with +due regard to their suitability for office and should as far as possible +be generally representative of the Irish Free State/Saorstat Eireann as a +whole rather than of groups or of parties. Should a nomination not be +acceptable to the Chamber/Dail, the Committee shall continue to propose +names until one is found acceptable. + +ARTICLE 53. + +Each Minister not a member of the Parliament/Oireachtas shall be the +responsible head of the Executive Department or Departments as head of +which he has been appointed as aforesaid; Provided that should +arrangements for Functional or Vocational Councils be made by the +Parliament/Oireachtas these Ministers or any of them may, should the +Parliament/Oireachtas so decide, be members of and be nominated on the +advice of such Councils. The term of office of any such Minister shall be +the term of the Chamber/Dail Eireann existing at the time of his +appointment or such other period as may be fixed by law, but he shall +continue in office until his successor shall have been appointed: and no +such Minister shall be removed from Office during his term unless the +proposal to remove him has been previously submitted to a Committee chosen +by a method to be determined by the Chamber/Dail so as to be impartially +representative of the Chamber/Dail and then only if the Committee shall +have reported that such Minister has been guilty of malfeasance in office +or has not been performing his duties in a competent and satisfactory +manner, or has failed to carry out the lawfully-expressed will of +Parliament/Oireachtas. + +ARTICLE 54. + +The Ministers who are members of the Parliament/Oireachtas shall alone be +responsible for all matters relating to external affairs whether policy, +negotiations, or executive acts. Subject to the foregoing provisions, the +Executive Council shall meet and act as a collective authority: Provided, +however, that each Minister shall be individually responsible to the +Chamber/Dail Eireann for the administration of the Department or +Departments of which he is head. + +ARTICLE 55. + +Ministers who are not members of the Chamber/Dail Eireann shall by virtue +of their office possess all the rights and privileges of a member of the +Chamber/Dail except the right to vote, and shall, if not members of the +Parliament/Oireachtas, comply with the provisions of Article 17 as if they +were members of the Chamber/Dail, and may be required by the Chamber/Dail +to attend and answer questions. + +ARTICLE 56. + +Should the President of the Executive Council die, resign or be +permanently incapacitated, the Vice-President of the Executive Council +shall act in his place until a President of the Executive Council shall be +elected. The Vice-President of the Executive Council shall also act in the +place of the President of the Executive Council during his temporary +absence. + +ARTICLE 57. + +The members of the Executive Council shall receive such remuneration as +may from time to time be prescribed by law, but the remuneration of any +Minister shall not be diminished during his term of office. + +ARTICLE 58. + +The Representative of the Crown, who shall be styled the Governor-General +of the Irish Free State, shall be appointed in like manner as the +Governor-General of Canada and in accordance with the practice observed in +the making of such appointments. The salary of the Governor-General of the +Irish Free State shall be of the like amount as that now payable to the +Governor-General of the Commonwealth of Australia and shall be charged on +the public funds of the Irish Free State/Saorstat Eireann and suitable +provision shall be made out of those funds for the maintenance of his +official residence and establishment. + +ARTICLE 59. + +The Executive Council shall prepare the Budget of receipts and expenditure +of the Irish Free State/Saorstat Eireann for each financial year and shall +present it to the Chamber/Dail Eireann before the close of the previous +financial year. + + +SECTION III.--THE EXECUTIVE. + +B.--FINANCIAL CONTROL. + +ARTICLE 60. + +All revenues of the Irish Free State/Saorstat Eireann from whatever source +arising, shall, subject to such exception as may be provided by law, form +one fund, and shall be appropriated for the purposes of the Irish Free +State/Saorstat Eireann in the manner and subject to the charges and +liabilities imposed by law. + +ARTICLE 61. + +The Chamber/Dail Eireann shall appoint a Comptroller and Auditor-General +to act on behalf of the Irish Free State/Saorstat Eireann. He shall +control all disbursements and shall audit all accounts of moneys +administered by or under the authority of the Parliament/Oireachtas and +shall report to the Chamber/Dail at stated periods to be determined by +law. + +ARTICLE 62. + +The Comptroller and Auditor-General shall not be removed except for stated +misbehaviour or incapacity on resolutions passed by the Chamber/Dail +Eireann and the Senate/Seanad Eireann. Subject to this provision the terms +and conditions of his tenure of office shall be fixed by law. He shall not +be a member of the Parliament/Oireachtas nor shall he hold any other +office or position of emolument. + + +SECTION IV.--THE JUDICIARY. + +ARTICLE 63. + +The judicial power of the Irish Free State/Saorstat Eireann shall be +exercised and justice administered in the public Courts established by +Parliament/Oireachtas by judges appointed in manner hereinafter provided. +These Courts shall comprise Courts of First Instance and a Court of Final +Appeal to be called the Supreme Court (Cuirt Uachtarach). The Courts of +First Instance shall include a High Court (Ard Chuirt), invested with full +original jurisdiction in and power to determine all matters and questions +whether of law or fact, civil or criminal, and also Courts of local and +limited jurisdiction with a right of appeal as determined by law. + +ARTICLE 64. + +The judicial power of the High Court shall extend to the question of the +validity of any law having regard to the provisions of the Constitution. +In all cases in which such matters shall come into question, the High +Court alone shall exercise original jurisdiction. + +ARTICLE 65. + +The Supreme Court of the Irish Free State/Saorstat Eireann 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. + +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. + +ARTICLE 66. + +The number of judges, the constitution and organisation of, and +distribution of business and jurisdiction among, the said Courts and +judges, and all matters of procedure shall be as prescribed by the laws +for the time being in force and the regulations made thereunder. + +ARTICLE 67. + +The judges of the Supreme Court and of the High Court and of all other +Courts established in pursuance of this Constitution shall be appointed by +the Representative of the Crown on the advice of the Executive Council. +The Judges of the Supreme Court and of the High Court shall not be removed +except for stated misbehaviour or incapacity, and then only by resolutions +passed by both the Chamber/Dail Eireann and the Senate/Seanad Eireann. The +age of retirement, the remuneration and the pension of such judges on +retirement and the declarations to be taken by them on appointment shall +be prescribed by law. Such remuneration may not be diminished during their +continuance in office. The terms of appointment of the judges of such +other courts as may be created shall be prescribed by law. + +ARTICLE 68. + +All judges shall be independent in the exercise of their functions, and +subject only to the Constitution and the law. A judge shall not be +eligible to sit in Parliament/Oireachtas, and shall not hold any other +office or position of emolument. + +ARTICLE 69. + +No one shall be tried save in due course of law and extraordinary courts +shall not be established. The jurisdiction of Courts Martial 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 prescribed 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. + +ARTICLE 70. + +A member of the armed forces of the Irish Free State/Saorstat Eireann not +on active service shall not be tried by any Court Martial for an offence +cognisable by the Civil Courts. + +ARTICLE 71. + +No person shall, save in case of summary jurisdiction prescribed by law +for minor offences, be tried without a jury on any criminal charge. + + +SECTION V.--TRANSITORY PROVISIONS. + +ARTICLE 72. + +Subject to this Constitution and to the extent to which they are not +inconsistent therewith, the laws in force in the Irish Free State/Saorstat +Eireann at the date of the coming into operation of this Constitution +shall continue to be of full force and effect until the same or any of +them shall have been repealed or amended by enactment of the +Parliament/Oireachtas. + +ARTICLE 73. + +Until Courts have been established for the Irish Free State/Saorstat +Eireann in accordance with this Constitution, the Supreme Court of +Judicature, County Courts, Courts of Quarter Sessions and Courts of +Summary Jurisdiction, as at present existing, shall for the time being +continue to exercise the same jurisdiction as heretofore, and any judge or +justice, being a member of any such Court, holding office at the time when +this Constitution comes into operation, shall for the time being continue +to be a member thereof and hold office by the like tenure and upon the +like terms as heretofore, unless, in the case of a judge of the said +Supreme Court or of a County Court, he signifies to the Representative of +the Crown his desire to resign. Any vacancies in any of the said Courts so +continued may be filled by appointment made in like manner as appointments +to judgeships in the Courts established under this Constitution. + +Provided that the provisions of Article 65 as to the decisions of the +Supreme Court established under this Constitution shall apply to decisions +of the Court of Appeal continued by this Article. + +ARTICLE 74. + +If any judge of the said Supreme Court of Judicature or of any of the said +County Courts resigns as aforesaid, or if any such judge, on the +establishment of Courts under this Constitution, is not with his consent +appointed to be a judge of any such Court, he shall, for the purpose of +Article 10 of the Scheduled Treaty, be treated as if he had retired in +consequence of the change of Government effected in pursuance of the said +Treaty, but the rights so conferred shall be without prejudice to any +rights or claims that he may have against the British Government. + +ARTICLE 75. + +Every existing Officer of the Provisional Government who has been +transferred to that Government from the British Government and every +existing Officer of the British Government, who, at the date of the coming +into operation of this Constitution, is engaged or employed in the +administration of public services which on that date become public +services of the Irish Free State/Saorstat Eireann (except those whose +services have been lent by the British Government to the Provisional +Government) shall on that date be transferred to and become an Officer of +the Irish Free State/Saorstat Eireann and shall hold office by a tenure +corresponding to his previous tenure, and shall be entitled to the benefit +of Article 10 of the Scheduled Treaty. + +ARTICLE 76. + +As respects departmental property, assets, rights, and liabilities, the +Government of the Irish Free State/Saorstat Eireann shall be regarded as +the successors of the Provisional Government, and, to the extent to which +functions of any department of the British Government become functions of +the Government of the Irish Free State/Saorstat Eireann, as the successors +of such department of the British Government. + +ARTICLE 77. + +After the date on which this Constitution comes into operation the House +of the Parliament elected in pursuance of the Irish Free State (Agreement) +Act, 1922 (being the constituent assembly for the settlement of this +Constitution), may, for a period not exceeding one year from that date, +but subject to compliance by the Members thereof with the provisions of +Article 17 of this Constitution, exercise all the powers and authorities +conferred on the Chamber/Dail Eireann by this Constitution, and the first +election for the Chamber/Dail Eireann under Articles 26 and 27 hereof +shall take place as soon as possible after the expiration of such period. + +ARTICLE 78. + +The first Senate/Seanad Eireann shall be constituted immediately after the +coming into operation of this Constitution in the manner following, that +is to say:-- + + (a) The first Senate/Seanad shall consist of two members elected by + each of the Universities in the Irish Free State/Saorstat Eireann and + fifty-six other members, of whom twenty-eight shall be elected and + twenty-eight shall be nominated. + + (b) The twenty-eight nominated members of the Senate/Seanad shall be + nominated by the President of the Executive Council who shall, in + making such nominations, have special regard to the providing of + representation for groups or parties not then adequately represented + in the Chamber/Dail. + + (c) The twenty-eight elected members of the Senate/Seanad shall be + elected by the Chamber/Dail Eireann voting on principles of + Proportional Representation. + + (d) Of the University members one member elected by each University, + to be elected by lot, shall hold office for six years, the remaining + University members shall hold office for the full period of twelve + years. + + (e) Of the twenty-eight nominated members, fourteen, to be selected + by lot, shall hold office for the full period of twelve years, the + remaining fourteen shall hold office for the period of six years. + + (f) Of the twenty-eight elected members the first fourteen elected + shall hold office for the period of nine years, the remaining + fourteen shall hold office for the period of three years. + + (g) At the termination of the period of office of any such members, + members shall be elected in their place in manner provided by Article + 31. + + (h) Casual vacancies shall be filled in manner provided by Article + 33. + + (i) For the purpose of the election of members for any University + under this Article, all persons whose names appear on the register + for the University in force at the date of the coming into operation + of this Constitution shall, notwithstanding anything in Article 14, + be entitled to vote. + +ARTICLE 79. + +The passing and adoption of this Constitution by the Constituent Assembly +and the British Parliament shall be announced as soon as may be, and not +later than the sixth day of December, Nineteen hundred and twenty-two, by +Proclamation of His Majesty and this Constitution shall come into +operation on the issue of such Proclamation. + + + + +SCHEDULE + +ARTICLES OF AGREEMENT FOR A TREATY BETWEEN GREAT BRITAIN AND IRELAND, +DATED THE SIXTH DAY OF DECEMBER, NINETEEN HUNDRED AND TWENTY-ONE. + +1. Ireland shall have the same constitutional status in the Community of +Nations known as the British Empire as the Dominion of Canada, the +Commonwealth of Australia, the Dominion of New Zealand, and the Union of +South Africa, with a Parliament having powers to make laws for the peace +order and good government of Ireland and an Executive responsible to that +Parliament, and shall be styled and known as the Irish Free State. + +2. Subject to the provisions hereinafter set out the position of the Irish +Free State in relation to the Imperial Parliament and Government and +otherwise shall be that of the Dominion of Canada, and the law, practice +and constitutional usage governing the relationship of the Crown or the +representative of the Crown and of the Imperial Parliament to the Dominion +of Canada shall govern their relationship to the Irish Free State. + +3. The representative of the Crown in Ireland shall be appointed in like +manner as the Governor-General of Canada, and in accordance with the +practice observed in the making of such appointments. + +4. The oath to be taken by Members of the Parliament of the Irish Free +State shall be in the following form:-- + + I ...... do solemnly swear true faith and allegiance to the + Constitution of the Irish Free State as by law established and that I + will be faithful to H.M. King George V., his heirs and successors by + law in virtue of the common citizenship of Ireland with Great Britain + and her adherence to and membership of the group of nations forming + the British Commonwealth of Nations. + +5. The Irish Free State shall assume liability for the service of the +Public Debt of the United Kingdom as existing at the date hereof and +towards the payment of war pensions as existing at that date in such +proportion as may be fair and equitable, having regard to any just claims +on the part of Ireland by way of set off or counterclaim, the amount of +such sums being determined in default of agreement by the arbitration of +one or more independent persons being citizens of the British Empire. + +6. Until an arrangement has been made between the British and Irish +Governments whereby the Irish Free State undertakes her own coastal +defence, the defence by sea of Great Britain and Ireland shall be +undertaken by His Majesty's Imperial Forces, but this shall not prevent +the construction or maintenance by the Government of the Irish Free State +of such vessels as are necessary for the protection of the Revenue or the +Fisheries. + +The foregoing provisions of this article shall be reviewed at a conference +of Representatives of the British and Irish Governments to be held at the +expiration of five years from the date hereof with a view to the +undertaking by Ireland of a share in her own coastal defence. + +7. The Government of the Irish Free State shall afford to His Majesty's +Imperial Forces:-- + + (_a_) In time of peace such harbour and other facilities as are + indicated in the Annex hereto, or such other facilities as may from + time to time be agreed between the British Government and the + Government of the Irish Free State; and + + (_b_) In time of war or of strained relations with a Foreign Power + such harbour and other facilities as the British Government may + require for the purposes of such defence as aforesaid. + +8. With a view to securing the observance of the principle of +international limitation of armaments, if the Government of the Irish Free +State establishes and maintains a military defence force, the +establishments thereof shall not exceed in size such proportion of the +military establishments maintained in Great Britain as that which the +population of Ireland bears to the population of Great Britain. + +9. The ports of Great Britain and the Irish Free State shall be freely +open to the ships of the other country on payment of the customary port +and other dues. + +10. The Government of the Irish Free State agrees to pay fair compensation +on terms not less favourable than those accorded by the Act of 1920 to +judges, officials, members of police forces, and other public servants who +are discharged by it or who retire in consequence of the change of +government effected in pursuance hereof. + +Provided that this agreement shall not apply to members of the Auxiliary +Police Force or to persons recruited in Great Britain for the Royal Irish +Constabulary during the two years next preceding the date hereof. The +British Government will assume responsibility for such compensation or +pensions as may be payable to any of these excepted persons. + +11. Until the expiration of one month from the passing of the Act of +Parliament for the ratification of this instrument, the powers of the +Parliament and the Government of the Irish Free State shall not be +exercisable as respects Northern Ireland, and the provisions of the +Government of Ireland Act, 1920, shall, so far as they relate to Northern +Ireland, remain of full force and effect, and no election shall be held +for the return of members to serve in the Parliament of the Irish Free +State for constituencies in Northern Ireland, unless a resolution is +passed by both Houses of the Parliament of Northern Ireland in favour of +the holding of such elections before the end of the said month. + +12. If before the expiration of the said month, an address is presented to +His Majesty by both Houses of the Parliament of Northern Ireland to that +effect, the powers of the Parliament and Government of the Irish Free +State shall no longer extend to Northern Ireland, and the provisions of +the Government of Ireland Act, 1920 (including those relating to the +Council of Ireland), shall so far as they relate to Northern Ireland, +continue to be of full force and effect, and this instrument shall have +effect subject to the necessary modifications. + +Provided that if such an address is so presented a Commission consisting +of three persons, one to be appointed by the Government of the Irish Free +State, one to be appointed by the Government of Northern Ireland and one +who shall be Chairman to be appointed by the British Government shall +determine in accordance with the wishes of the inhabitants, so far as may +be compatible with economic and geographic conditions the boundaries +between Northern Ireland and the rest of Ireland, and for the purposes of +the Government of Ireland Act, 1920, and of this instrument, the boundary +of Northern Ireland shall be such as may be determined by such Commission. + +13. For the purpose of the last foregoing Article, the powers of the +Parliament of Southern Ireland under the Government of Ireland Act, 1920, +to elect members of the Council of Ireland shall after the Parliament of +the Irish Free State is constituted be exercised by that Parliament. + +14. After the expiration of the said month, if no such address as is +mentioned in Article 12 hereof is presented, the Parliament and Government +of Northern Ireland shall continue to exercise as respects Northern +Ireland the powers conferred on them by the Government of Ireland Act, +1920, but the Parliament and Government of the Irish Free State shall in +Northern Ireland have in relation to matters in respect of which the +Parliament of Northern Ireland has not power to make laws under that Act +(including matters which under the said Act are within the jurisdiction of +the Council of Ireland) the same powers as in the rest of Ireland subject +to such other provisions as may be agreed in manner hereinafter appearing. + +15. At any time after the date hereof the Government of Northern Ireland +and the provisional Government of Southern Ireland hereinafter constituted +may meet for the purpose of discussing the provisions subject to which the +last foregoing Article is to operate in the event of no such address as is +therein mentioned being presented and those provisions may include:-- + + (_a_) Safeguards with regard to patronage in Northern Ireland. + + (_b_) Safeguards with regard to the collection of revenue in Northern + Ireland. + + (_c_) Safeguards with regard to import and export duties affecting + the trade or industry of Northern Ireland. + + (_d_) Safeguards for minorities in Northern Ireland. + + (_e_) The settlement of the financial relations between Northern + Ireland and the Irish Free State. + + (_f_) The establishment and powers of a local militia in Northern + Ireland and the relation of the Defence Forces of the Irish Free + State and of Northern Ireland respectively. + +and if at any such meeting provisions are agreed to, the same shall have +effect as if they were included amongst the provisions subject to which +the powers of the Parliament and Government of the Irish Free State are +to be exercisable in Northern Ireland under Article 14 hereof. + +16. Neither the Parliament of the Irish Free State nor the Parliament of +Northern Ireland shall make any law so as either directly or indirectly to +endow any religion or prohibit or restrict the free exercise thereof or +give any preference or impose any disability on account of religious +belief or religious status or affect prejudicially the right of any child +to attend a school receiving public money without attending the religious +instruction at the school or make any discrimination as respects State aid +between schools under the management of different religious denominations +or divert from any religious denomination or any educational institution +any of its property except for public utility purposes and on payment of +compensation. + +17. By way of provisional arrangement for the administration of Southern +Ireland during the interval which must elapse between the date hereof and +the constitution of a Parliament and Government of the Irish Free State in +accordance therewith, steps shall be taken forthwith for summoning a +meeting of members of Parliament elected for constituencies in Southern +Ireland since the passing of the Government of Ireland Act, 1920, and for +constituting a provisional Government, and the British Government shall +take the steps necessary to transfer to such provisional Government the +powers and machinery requisite for the discharge of its duties, provided +that every member of such provisional Government shall have signified in +writing his or her acceptance of this instrument. But this arrangement +shall not continue in force beyond the expiration of twelve months from +the date hereof. + +18. This instrument shall be submitted forthwith by His Majesty's +Government for the approval of Parliament and by the Irish signatories to +a meeting summoned for the purpose of the members elected to sit in the +House of Commons of Southern Ireland, and if approved shall be ratified by +the necessary legislation. + +(Signed) + + On behalf of the British Delegation, + D. LLOYD GEORGE. + AUSTEN CHAMBERLAIN. + BIRKENHEAD. + WINSTON S. CHURCHILL. + L. WORTHINGTON-EVANS. + HAMAR GREENWOOD. + GORDON HEWART. + + On behalf of the Irish Delegation, + ART O GRIOBHTHA. (ARTHUR GRIFFITH). + MICHAL O COILEAIN. + RIOBARD BARTUN. + E. S. O DUGAIN. + SEORSA GHABHAIN UI DHUBHTHAIGH. + + 6th December, 1921. + + +ANNEX. + +1. The following are the specific facilities required. + + DOCKYARD PORT AT BEREHAVEN. + + (_a_) Admiralty property and rights to be retained as at the date + hereof. Harbour defences to remain in charge of British care and + maintenance parties. + + QUEENSTOWN. + + (_b_) Harbour defences to remain in charge of British care and + maintenance parties. Certain mooring buoys to be retained for use of + His Majesty's ships. + + BELFAST LOUGH. + + (_c_) Harbour defences to remain in charge of British care and + maintenance parties. + + LOUGH SWILLY. + + (_d_) Harbour defences to remain in charge of British care and + maintenance parties. + + AVIATION. + + (_e_) Facilities in the neighbourhood of the above ports for coastal + defence by air. + + OIL FUEL STORAGE. + + (_f_) Haulbowline - {To be offered for sale to commercial + {companies under guarantee that + Rathmullen - {purchasers shall maintain a certain + {minimum stock for Admiralty purposes. + +2. A convention shall be made between the British Government and the +Government of the Irish Free State to give effect to the following +conditions:-- + + (_a_) That submarine cables shall not be landed or wireless stations + for communication with places outside Ireland be established except + by agreement with the British Government; that the existing cable + landing rights and wireless concessions shall not be withdrawn except + by agreement with the British Government; and that the British + Government shall be entitled to land additional submarine cables or + establish additional wireless stations for communication with places + outside Ireland: + + (_b_) That lighthouses, buoys, beacons, and any navigational marks or + navigational aids shall be maintained by the Government of the Irish + Free State as at the date hereof and shall not be removed or added to + except by agreement with the British Government: + + (_c_) The war signal stations shall be closed down and left in charge + of care and maintenance parties, the Government of the Irish Free + State being offered the option of taking them over and working them + for commercial purposes subject to Admiralty inspection and + guaranteeing the upkeep of existing telegraphic communication + therewith. + +3. A Convention shall be made between the same Governments for the +regulation of Civil Communication by Air. + + D. L. G. + A. C. + B. + W. S. C. + M. O. C. + + + + +Transcriber's Notes: + +Passages in italics are indicated by _underscore_. + +The following misprints have been corrected: + "moveover" corrected to "moreover" (page 28) + "Confederateion" corrected to "Confederation" (page 38) + "minorites" corrected to "minorities" (page 49) + "majorites" corrected to "majorities" (page 49) + "Commitee's" corrected to "Committee's" (page 55) + "Sarorstat" corrected to "Saorstat" (page 91) + + + + + + +End of Project Gutenberg's The Irish Constitution, by Darrell Figgis + +*** END OF THIS PROJECT GUTENBERG EBOOK THE IRISH CONSTITUTION *** + +***** This file should be named 32612-8.txt or 32612-8.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/3/2/6/1/32612/ + +Produced by Brian Foley and the Online Distributed +Proofreading Team at https://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive/American Libraries.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Irish Constitution + Explained by Darrell Figgis + +Author: Darrell Figgis + +Release Date: May 30, 2010 [EBook #32612] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK THE IRISH CONSTITUTION *** + + + + +Produced by Brian Foley and the Online Distributed +Proofreading Team at https://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive/American Libraries.) + + + + + + +</pre> + + + + + +<h1>THE IRISH CONSTITUTION</h1> + + +<p> </p><p> </p><p> </p> +<div class="figcenter"><img src="images/frontistmb.jpg" alt="" /><br /> +<a href="images/frontis.jpg"><small>Larger Image</small></a></div> +<p class="center">THE CONSTITUTION COMMITTEE IN SESSION.</p> + +<p class="note"><i>From left to right</i>:—<span class="smcap">R. J. P. Mortished</span> (<i>Secretary</i>), <span class="smcap">John O’Byrne</span>, +B.L.; <span class="smcap">C. J. France</span>, <span class="smcap">Darrell Figgis</span> (<i>Acting Chairman</i>), <span class="smcap">E. M. Stephens</span>, +B.L. (<i>Secretary</i>); <span class="smcap">P. A. O’Toole</span>, B.L. (<i>Secretary</i>); <span class="smcap">James MacNeill</span>, +<span class="smcap">Hugh Kennedy</span>, K.C.; <span class="smcap">James Murnahan</span>, B.L.; <span class="smcap">James Douglas</span>. (<span class="smcap">Prof. Alfred +O’Rahilly</span> and <span class="smcap">Kevin O’Shiel</span>, B.L. were absent from the Session).</p> + + +<p> </p><p> </p><p> </p> + +<h2>THE<br /> +IRISH CONSTITUTION</h2> +<p> </p> +<h3>EXPLAINED<br /> +BY<br /> +DARRELL FIGGIS</h3> +<p> </p><p> </p> +<div class="figcenter"><img src="images/pressmark.jpg" alt="" /></div> +<p> </p><p> </p> +<p class="center">MELLIFONT PRESS, LTD.<br /> +KILDARE HOUSE,<br /> +WESTMORELAND STREET, DUBLIN</p> +<p> </p><p> </p><p> </p> +<p class="center"><span class="smcaplc">I INSCRIBE THIS BOOK</span><br /> +<span class="smcaplc">TO MY FRIEND</span><br /> +ARTHUR GRIFFITH</p> + + + +<p> </p><p> </p><p> </p> +<hr style="width: 50%;" /> +<h2>CONTENTS</h2> + +<table border="0" cellpadding="0" cellspacing="5" summary="contents"> +<tr><td> </td><td><span class="spacer"> </span></td><td align="right"><span class="smcaplc">PAGE</span></td></tr> +<tr><td><span class="smcap">Introduction</span></td><td> </td><td align="right"><a href="#Page_5">5</a></td></tr> +<tr><td><span class="smcap">Explanation</span></td><td> </td><td align="right"><a href="#Page_15">15</a></td></tr> +<tr><td><span class="smcap">Draft Constitution</span></td><td> </td><td align="right"><a href="#Page_63">63</a></td></tr> +<tr><td><span class="smcap">Articles of Agreement for a Treaty Between</span><br /><span style="margin-left: 1em;"><span class="smcap">Great Britain and Ireland</span></span></td><td> </td><td align="right"><a href="#Page_96">96</a></td></tr></table> + + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_5" id="Page_5">[Pg 5]</a></span></p> +<h2>Introduction</h2> +<h3>IRELAND AND A COMMUNITY OF NATIONS.</h3> + +<p>The articles that are now gathered together in this little book were first +published in the <i>Irish Independent</i> at the invitation of its Editor. They +were not written for publication in book-form; and they naturally suffer, +in their present form, from the conditions that were first imposed on +them, conditions proper to their original setting. With the exception of +two of them, they were written rather in a spirit of exposition than in a +spirit of analysis and criticism; and this intention was only departed +from because it seemed that the two matters so dealt with departed, with +differing degrees of flagrancy, from the original purpose of the +Constitution, which was to make the mechanism of Government malleable at +every stage to the will of the people of Ireland.</p> + +<p>Whether one believes ardently in the faith that the will of a people +should under all circumstances prevail, and that the forms of Government +should at all times be submissive to that will, is indifferent. That is a +question for the individual, with which I do not presume to interfere. One +need only believe with l’Abbé Coignard that “a people is not susceptible +to more than one form of government at the same period,” to believe, +further, that if one asserts the derivation of all power and authority +from the popular will, if that will be once fairly and honestly +ascertained, it then follows that the will of the people is sufficient<span class="pagenum"><a name="Page_6" id="Page_6">[Pg 6]</a></span> to +itself, and that all forms of government must be made malleable to it. On +that supposition, all frustrations and obstructions of, and impediments +to, the constant exercise of that will must of necessity be cogs in the +machinery of government; and for that reason in two articles I turned from +exposition to criticism.</p> + +<p>Apart from these two matters, I held to the essentials of exposition, +without turning aside to criticism of details; and I based that exposition +on the original plan and structure, which are preserved in the present +draft, of the Constitution. It is right that the Fundamental Law of a +State should be fully discussed and debated before it be enacted; and when +that debate occurs criticism will find details enough to fasten upon. But +at the present moment it is the essential plan that matters—not the +feudal trumperies with which it is adorned, like stage jewels stuck upon a +comely and decent garment, marring its simple truth, but not otherwise +injuring its effectiveness for its purpose. And it was because it seemed +to me that these two matters departed from the spirit of this essential +plan, by placing important parts of the Judiciary and the Executive beyond +the ready control of the people or the people’s representatives, that I +dealt with them as I did. Apart from them I kept away from criticism.</p> + +<p>Similarly I did not deal with certain matters anterior to the +Constitution, in the light of which the Constitution can alone be +understood. They lay out of sight of these articles, though they were +essential to them, since they brought the Constitution, in its present +form, into being. Chief among these is the historical fact that Ireland +has, by Treaty, confirmed by the act of her Legislature, consented to +enter a Community of Nations known at the moment as the British +Commonwealth of Nations. We may disagree with this act; but it is an +international fact; and without it the Constitution would not be what it +now is. This factor in the result is therefore worth brief attention, by +way of introduction to the present publication of these articles.</p> + +<p><span class="pagenum"><a name="Page_7" id="Page_7">[Pg 7]</a></span>To anyone familiar with the constitutions of the nations that now comprise +the Commonwealth of Nations the present Constitution will speak in an +unaccustomed language. It is unlike any of them. It has clearly been +planned as the result of a distinct and separate conception. The causes of +the difference are, however, not very difficult to discover, and once seen +are plain to understand. They constitute what may prove to be an +international factor of the very first importance.</p> + +<p>These causes fall under, broadly, two heads. The first is that Ireland is +not what these other nations were when their Constitutions were first +framed. Nor is Ireland, indeed, what they are now. Canada, for example, +and Australia, are English Colonies, first established by white men in a +coloured population. The greater part of these white men draw their +traditions and inspiration, their habits of thought and habits of public +conduct, from the rootstock of the English nation. They look to England as +their mother-country. But Ireland is an ancient nation and a +mother-country in her own right. She has herself peopled the earth with +her children. Her empire is as far-flung as England’s. And if it is not +based on military might, but linked by ties of memory, pride and love, it +has not therefore proved itself any the less powerful internationally at +times of crisis and danger for the mother at home.</p> + +<p>Moreover, it was she who, when in the eighth and ninth centuries Europe +fell into decay after the barbarian inroads, re-established and rebuilt +European civilisation, sending her scholars with her books into every part +of the continent of ruin. It was her missionaries, indeed, who first +brought Christianity to England, and her scholars who taught the first +English poet his letters. Before the name of England was heard, the name +of Ireland was known and respected. She possessed an intricate, if +uncompleted national polity when the neighbouring island was peopled by +distinct and scattered populations of conquerors. By virtue of these +ancient dignities she was<span class="pagenum"><a name="Page_8" id="Page_8">[Pg 8]</a></span> accorded international rank long after England +had risen to nationhood, and when invasion had brought her national polity +to ruin and silenced the voice of poet and scholar.</p> + +<p>These are not matters merely of the past. If they were, they could be +dismissed to the antiquity in which they would lie. But they live in the +consciousness of a nation to-day; and therefore to-day they are a factor, +to neglect which would be to neglect a prime element without which neither +the present nor the future may be understood. Only the sentimentalist +waves out of sight considerations that are unpleasant to him. The realist +faces every element of being, conscious or unconscious; for he knows that +only out of the sum of all those elements can life proceed, or creation +begin.</p> + +<p>For these ancient dignities have passed into the consciousness of every +sort of Irishmen. It was, for example, Molyneux who, in his <i>Case of +Ireland Stated</i> at the end of the 17th century, first among modern Irish +writers based an argument upon them. Molyneux was an English colonist. In +the wars of Tirconnell and Patrick Sarsfield he had fled to England, +returning only when Ginkel the Dutchman had won the field for his master, +now monarch of England. He regarded the ancient nation with aversion. Yet +when the English Parliament harassed what he proudly conceived to be the +ancient liberty of Ireland, he stated the case of that nation, stated it +as his case, in a public document of historic moment; and the English +Parliament caused his book to be burned by the public hangman.</p> + +<p>The sorest part of his book was his reference to the Council of Constance +of 1416. This Council may rightly claim to be the first of modern +international congresses. At it a certain question of precedence had +arisen between France and England, which was referred to the Court of +Heralds. In the judgment which was given it was stated as an international +ruling that Europe was first constituted from four nations. These nations, +in the order of their precedence, were Rome, Byzantium, Ireland and Spain. +And<span class="pagenum"><a name="Page_9" id="Page_9">[Pg 9]</a></span> Molyneux, the English colonist, proudly referred to this ruling, and +based a great part of his case upon it.</p> + +<p>The breed of Molyneux is alive to-day. Political differences have divided +it from the ancient race which furnished its arguments. But the pride is +the same; the sense of possession is essentially the same, obscured though +it may have been by the causes of difference; and when a new alignment of +political parties has blent the two points of view into one outlook, and +made the whole consciousness to merge in one, the living factor of ancient +nationhood will arise with a new strength.</p> + +<p>That strength will prove a factor for the future. The cause of it is +registered in the present draft Constitution; and it is the first of the +two causes that make it unlike those of the other nations with which +Ireland is now confederate and co-equal. The second cause is curiously +like, and yet curiously unlike, to the first. It is also derived from the +fact of nationhood, but from the achievement of nationhood at the other +end of history.</p> + +<p>For the other nations of the Commonwealth are themselves not now what they +were when their constitutions were first framed. They were then but +colonies, on whom their mother-country was pleased to bestow +constitutions—and if the pleasure was not always the most noticeable part +of the bestowal, the legal smile did not diminish the fact of the gift. In +their constitutions, therefore, the apron-strings are very much in +evidence. It is clear from them that the mother did not propose to let the +children wander far from her control, even though she permitted them to +walk with their own feet. Not only in the actual provisions of these +constitutions, but in their very conception and plan, drawn exactly +according to English methods and from English experience, it is evident +that a state of perpetual tutelage was imagined for the peoples to whom +they were given.</p> + +<p>That has now changed. The colonies have come to be nations, very jealous +of their nationhood. They have grown with experience, have moved onward +with time, and<span class="pagenum"><a name="Page_10" id="Page_10">[Pg 10]</a></span> it would go hard with anyone who attempted to remind them +of what, nevertheless, their constitutions are a continual reminder. The +consequence is that the provisions of these constitutions cannot be +enforced since they do not square with experience. They encumber the +documents which contain them as so much dead timber. They are sometimes +carelessly, and more often dishonestly, described as legal fictions. But +they are not legal fictions. They are dead letters—dead timber which a +wise woodman would soon hew away. Life and experience have outgrown them; +and this growth finds expression—if, unfortunately, not the full +expression that might at one time have seemed possible—in the present +draft Constitution. For under her Treaty with England Ireland agreed to +take equal rank in the Community of Nations with the other members of it. +Specifically she accepted the “law, practice and constitutional usage” of +Canada; and that constitutional usage implies, not the dead timber of the +Canadian Constitution, but the living tissue of her constitutional +experience.</p> + +<p>These two causes, then, have joined together to produce the draft of the +Irish Constitution. From them was created the original plan of the +Constitution, according to which Ireland takes her place, not only +generally among all nations in virtue of her ancient right, but specially +in a certain confederacy of nations in virtue of a Treaty of Peace, signed +between her plenipotentiaries and England’s plenipotentiaries, and +approved by both legislatures. To the most casual glance, it is indeed a +most modern and forward-looking document; yet it draws from so ancient a +fountain-head. And the conjunction of these two may prove of searching +value, if rightly used, to Ireland’s influence in the world—provided that +there be peace at home, without which a nation is nought. That influence +may not be of the same kind as one had hoped before the Treaty of Peace +was signed. But even if it be not of the same kind, its measure need not +be less. It cannot be so immediate; and that is loss; but it may with +wisdom and firmness prove ultimately to be more extensive. Whatever<span class="pagenum"><a name="Page_11" id="Page_11">[Pg 11]</a></span> the +means, the end remains the same; and that end is the contribution in the +comity of nations of the fruits of personality—without which neither men +nor nations can plead a justification for life.</p> + +<p>For when a nation such as Ireland joins a confederacy so composed, she by +the mere fact of her addition transfigures the whole. This is not a +fanciful figure of speech. It is a literal description of what has already +occurred. In the case of no other nation of the Community, for example, +has its advent been signalled by an International Treaty. That, in itself, +is a transfiguration of the whole. Similarly, other nations of the +Community had protested the co-equality of each and all; but the +protestation had remained a protestation until it was formally declared +for each and all by the claim made by and recognised for Ireland.</p> + +<p>So it has proved in the very case of this Constitution. The full height of +nationhood is the recognition of sovereignty; and the completest act of +sovereignty of which a nation may be capable is to confer its Constitution +on itself. With the exception of Great Britain, none of the other members +of the Community were, when their constitutions were enacted, capable of +this. Each of them received its Constitution as bestowed, not by the Act +of its own Legislature, but by the Act of a suzerain Legislature. And that +shortness of national stature remained until it was removed by the +addition of Ireland to the Community. For Ireland will receive her +Constitution by the Act of her own Constituent Assembly, not by the Act of +any suzerain Legislature. Whether the Constitution be or be not adopted by +any other assembly neither gives nor detracts from the national authority +it will possess. If it be so adopted, it will be adopted, not as giving it +authority, but as the completing Act of ratifying the Treaty. That is to +say, it will be adopted by the Parliament of Great Britain as concluding +the interest of that Parliament in the international bargain of the +Treaty; and it will be passed and prescribed by the Irish Assembly as +giving it full force and effect in Ireland. And that is a full sovereign +act. But, since all<span class="pagenum"><a name="Page_12" id="Page_12">[Pg 12]</a></span> the members of the Community are declared to be +co-equal, the advent of Ireland, therefore, has given the recognition of +sovereignty to them all, and raised each to the full height of nationhood.</p> + +<p>The consequences of this are at the moment difficult to foresee fully; but +they are consequences that the addition of Ireland to the Community has +created, though in the fullness of time they were ready for her advent. It +is certain that they will reach far and strike deep, not only within the +Community, but towards other nations, not members of the Community. +Already as between the six full members of the Community the thought of +Empire belongs to the past; and the word and feudal trappings will follow +the thought. Indeed, though the foolish trappings remain, in the text of +both the Treaty and the Constitution the word has already begun to be +supplanted by the word Community. And though it be true that words are +only words, it is equally true that words are the parasites of thought, +and cling to the mind long after their original uses are forgotten. To +cause the relinquishment of an ancient word is itself a liberal +accomplishment of no mean sort, as psychologists know; and none can say +where new conceptions will not lead when once the barrier of words has +been broken down.</p> + +<p>These are, however, considerations for the future; and the future is only +for those who are worthy of it—and not always even for such. Already a +considerable change has been wrought; and that change is registered with +all its faults in the present draft Constitution. The nation that caused +the change is the same nation still, in spite of sad scattering of its +national strength. It is still an ancient nation: not a colony: never a +colony: deeply conscious of its historic heirlooms and prescriptive +dignities. Ireland is still a mother-country, fully resolved to employ her +empire of memory and love for the purposes which she and it judge worthy. +Her place and power in the Community will prove to be of no mean degree, +and of no small meaning for the nations outside that Community, as well +for the<span class="pagenum"><a name="Page_13" id="Page_13">[Pg 13]</a></span> peoples and nations within it, if she rally her strength around +her and prove worthy of her destiny. When she shall have conferred a +Constitution upon herself, within the limits of her contractual obligation +in the Treaty, she will not have foresworn her heritage (unless she elect +to do so); she will not have diminished her strength (unless she choose to +dissipate it); but she will be able by a persistent purpose, of which she +has already given her pledges, to contribute in the future as she +contributed in the past, with a security that has not been allowed her for +many centuries, to the benefit of nations. And it is to this end I +dedicate this little book.</p> + +<p><span class="pagenum"><a name="Page_14" id="Page_14">[Pg 14]</a></span></p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_15" id="Page_15">[Pg 15]</a></span></p> +<h2>The Irish Constitution</h2> +<p> </p> +<h3>I.</h3> +<h4>WHAT IS A CONSTITUTION?</h4> + +<p>During the early days of the second French Republic a customer entered a +bookseller’s and asked: “Have you a copy of the French Constitution?” “We +do not,” the bookseller politely replied, “deal in periodical literature.”</p> + +<p>Now, to any student of history such a story is a sure indication of the +time of which it is told. He need not inquire to know that the time was +one of revolution, change, and unsettlement. He also knows the mind of the +people of that time, for insecure conditions beget a nervous, restless +fear. And these things are significant. They reveal a quality of +constitution-making that is not always, or easily, remembered. For +whatever changes may proceed in legislation—however many and rapid they +be—as long as the Constitution, written or unwritten, remains intact, the +State at least is stable and its foundations are secure.</p> + +<p>Plainly, therefore, nothing should be written into a Constitution that is +of a temporary, experimental, or questionable nature, or which should fall +to the lot of ordinary law-making and the changing convenience of +practice. A Constitution is that which is permanent, as far as anything in +this world may be permanent. Even to amend it, or add to it, requires in +all countries (except England, where the Constitution has not taken a +written form) a procedure quite different from that of ordinary<span class="pagenum"><a name="Page_16" id="Page_16">[Pg 16]</a></span> +legislation. To change it, or recast it, requires a revolution. Such a +revolution may not be accompanied by bloodshedding, or it may, but it is +certainly accompanied by insecurity and unsettlement.</p> + +<p>It should, therefore, be the business of constitution-makers to prescribe +only what to them is fundamental and irrefutable; to lay down the secure +foundations of their State; and to leave all other matters to the +experience of the nation, without seeking to shackle that experience by +provisions that time may not commend. Otherwise, a convulsion may be +necessary to get done what ordinary legislation could have accomplished +without affecting the stability of the State.</p> + +<p>This, then, is the first definition of a Constitution, that it contains +the Fundamental Law of a State, and only the Fundamental Law. In England +there is no such thing as a Fundamental Law. It is claimed by English +constitutional lawyers that this is because Parliament is sovereign; but +the historical truth is that in England Parliament exercises a sovereignty +in fact which the King is supposed to exercise in theory; and any attempt +to make the theory square with the fact by the writing of a Fundamental +Law would lead, perhaps, to a surprising situation.</p> + +<p>Yet in England certain fundamental rights are recognised, with which +Parliament would not lightly tamper; and these amount in effect to a +Fundamental Law, holding a higher rank than ordinary laws. In practically +all other countries such rights are set forth in a document, different +from all other legal documents, inasmuch as unless these other documents +observe the conditions required in the first, and do not conflict with its +provisions, they are null and void. In both sets of documents the laws of +the realm are to be found; but the two sets of laws are of different +sorts. One is fundamental and permanent; the other is by contrast casual +and changeable.</p> + +<p>This, then, is the second definition of a Constitution, not only that it +contains the fundamental law of a State, but that it prescribes the manner +in which all other laws must<span class="pagenum"><a name="Page_17" id="Page_17">[Pg 17]</a></span> be made, and put limits and restrictions on +all other law-making. In the American phrase, it is a “Frame of +Government.”</p> + +<p>In English the words Constitution and Legislation do not carry on their +face the relation of one to the other, and the distinction between them. +In Irish the case is different. In Irish the word for Legislation is +<i>Reacht</i>, and the word for Constitution is <i>Bunreacht</i>—fixed and +foundation legislation. But even the distinction so simply carried on the +face of these words does not complete the relation of one to the other. +For that relation is precise; and consists in the fact that all laws +comprising the <i>Reacht</i> must be built upon the foundation of the +<i>Bunreacht</i>, and must be contained within the fixed limits of the +<i>Bunreacht</i>. The moment they attempt to build elsewhere, or go outside +those limits, that moment they cease to be binding on any citizen; and all +citizens may claim the protection of the courts of law against them.</p> + +<p>From this follows the third definition of a Constitution, which is that it +contains the highest and completest sovereign act of a nation. A nation +may confer a Constitution on itself, and that Constitution may contain no +declaration that the people are sovereign; but the fact that the nation +did so make their own Constitution is itself a declaration of sovereignty. +Declarations of sovereignty in the body of a Constitution may be very +wise; and they are always pleasant; but they are not necessary.</p> + +<p>Similarly, a nation may make a Constitution for itself, and in that +Constitution confer the chief executive authority on a person to be known +as a king; and that person may be known in name as a sovereign; but the +fact that he derives his power from the Constitution is evidence that, not +he, but the people, are sovereign. His is only a sovereign name; theirs is +the sovereign reality.</p> + +<p>Such Constitutions were made in 1814 by Norway, in 1830 by Belgium, and +only last year by “Jugo-Slavia.” In the last case the kingly line already +existed before the Constitution was framed, and an oath was prescribed in +it,<span class="pagenum"><a name="Page_18" id="Page_18">[Pg 18]</a></span> according to which the King swore “to maintain the Constitution +intact.” In the first two cases the kingly lines were not chosen until the +Constitutions had been framed, when the chosen dynasties stepped into the +places appointed for them, and carried out the functions defined for them. +In each case, however, the authority of the king sprang, not from the +divine right of kings, but from the divine right of the people, as set +forth in the sovereign act of giving themselves a Constitution.</p> + +<p>How different the power of kings such as these from the power of the +French monarch who in the 18th century declared, “L’Etat, c’est moi”—“I +am the State.” He was right. He was sovereign. Sovereignty had to reside +somewhere; and until the people arose and declared that it resided in +them, and expressed that declaration in a formal Constitution, it +continued to reside in the ruler who claimed it.</p> + +<p>When, however, in 1787, the thirteen American States “ordained and +established a Constitution” for their Union, then in the modern world the +people came by their own. France quickly followed the example, but as a +result of the wars which followed the world was thrown back into reaction. +Throughout the 19th century, however, the statement of democratic +sovereignty as a fundamental law of the State found expression in +Constitution after Constitution; with the result that now, in modern +practice, the existence of a Constitution is practically identical with a +statement of national sovereignty.</p> + +<p>There has hitherto been one chief exception; and that exception is of +striking interest at the present time. For within the British Empire the +theory has been that there is only one sovereign assembly, the Parliament +at Westminster. It is true that the Constitutions of Canada, Australia and +South Africa were each drawn up by Constituent Conventions in the +countries themselves; but by the prevalent theory none of these peoples +were competent to confer these Constitutions upon themselves. They were +not, that is to say, sovereign; and before the<span class="pagenum"><a name="Page_19" id="Page_19">[Pg 19]</a></span> Constitutions they devised +therefore could come of effect they had to be passed as Imperial Acts by +the Parliament at Westminster.</p> + +<p>Yet that also has now changed. Ireland has wrought the change; and the +deep influence of that change cannot be foretold. For the Dail elected to +pass the Constitution will act, not as a Constituent Convention, but as a +Constituent Assembly. It will not only devise the Constitution, with the +present Constitution before it as a Bill for discussion, but, having +devised it, will prescribe it; and thus, through their elected +representatives, the people of Ireland will have conferred it on +themselves as their Fundamental Law.</p> + +<p>That is a sovereign act; and that act will differ in no degree from a +similar act by any other sovereign people. From this, however, one last +consideration follows; and, though it is simple, it is not usually +remembered. For if the passing of a Constitution is an act of full +sovereignty, and if that Constitution, being a Fundamental Law, restricts +and limits all future law-making, then the assemblies to come which will +pass those future laws will not be sovereign.</p> + +<p>They will not be able to do what they will, and they will not be able to +act as they will, for they must obey the requirements and act within the +limits of the Constitution, as prescribed by the first Assembly, which +alone was of full sovereignty. For this reason every nation has gone to +great care to choose persons of special competence for the body which is +to act as a Constituent Assembly—the body, indeed, which is to act as the +first, and, so long as that Constitution shall remain, the last Sovereign +Assembly of the nation. The act of prescribing a Constitution being the +highest act that a nation can make, care has always been taken to make it +the fullest and the freest. For, once done, it cannot be undone, except at +great trouble, and perhaps as the result of great convulsion.</p> + +<p><span class="pagenum"><a name="Page_20" id="Page_20">[Pg 20]</a></span> </p> +<h3>II.</h3> +<h4>THE PLAN OF THE CONSTITUTION.</h4> + +<p>To draw up a plan is almost inevitably to express a philosophy. In shaping +the sequence and proportion of the parts which are to comprise the whole, +the trick of the mind will out; and it is in that trick of the mind that, +ultimately, all philosophies are contained. Perhaps there are few who, +after consideration, would deny this in all the ordinary (greater or +lesser) concerns of life; but many will think it strange in a matter so +dry as the drafting of a Constitution. Yet even in the drafting of a +Constitution it will be found equally true.</p> + +<p>A Constitution may be likened to a pyramid, the apex of which is the +Executive Authority, and the base the People. The first question that +therefore at once arises is, where shall one begin first with this +pyramid? But before this question can be answered, another must first be +met; and it is, whether the base is hung from the apex, or whether the +apex rests on the base? What relation has the Executive Authority (whether +kingly, presidential or consular) to the People, and the People to the +Executive Authority; and which, names and titles apart, is ultimately the +Sovereign? These are ripe questions; and only in the making of the plan +can they be answered.</p> + +<p>I have already shewn that the writing of a Constitution is itself evidence +that the people are sovereign, even though no statement to that effect is +included in the writing. But when one comes to look in the Constitutions +of the world it is curious to note the persistence with which that<span class="pagenum"><a name="Page_21" id="Page_21">[Pg 21]</a></span> truth +is overlooked. The Canadian Constitution, for example, having provided for +the Union of Provinces by which the Federation was created, begins at once +with the statement that “the Executive Government and authority of and +over Canada is hereby declared to continue and be vested in the Queen.” +Nothing has been said about a Legislature—nothing about the people of +Canada. The Constitution begins at once with an Executive Authority which +nothing has brought into being, and which therefore exists of its own +right, original and indefeasible, all things else in the Constitution +depending from it. The pyramid is hung from heaven, for the philosophy of +the plan is to be found in the mediaeval myth of the Divine Right of +Kings.</p> + +<p>The Constitution of Canada consequently proceeds downwards from that apex +to the Legislature; and in that Legislature, according to the philosophy, +the Senate comes before the Commons. “There shall,” it says, “be one +Parliament for Canada, consisting of the Queen, an Upper House, styled the +Senate, and the House of Commons.” As for the base, it is found nowhere at +all. The interest is exhausted before it is reached; and the People are +not mentioned.</p> + +<p>I have taken the Canadian Constitution because it is specially mentioned +in the present draft of the Constitution of <i>Saorstat Eireann</i>; but the +same supposition is found in many other constitutions, such as those of +Denmark, Sweden, South Africa. In them are to be found the relics of the +mediaeval theory of government, of a divine authority conferred on a +family, which therefore ruled of its own right; and of its own grace +summoned the subjects of that authority for counsel and advice. Therefore +in these constitutions it is assumed that the sovereignty is above and the +subjection below—even though no one to-day supposes that the practical +facts are what they assume them to be.</p> + +<p>In the Irish Constitution, as in most modern constitutions, this order is +inverted. The sovereignty<span class="pagenum"><a name="Page_22" id="Page_22">[Pg 22]</a></span> is below, and the subjection is above. Never +once throughout the Irish Constitution (either in its original or its +present form) are the people once considered as subjects, but always as +sovereign citizens. The pyramid is based on the broad earth, in the divine +right of the people; and a beginning is therefore made with the base, +proceeding upward to the apex. The plan in fact is reversed because the +philosophy is different.</p> + +<p>The Constitution of <i>Saorstat Eireann</i> begins with the people, and with a +statement of the sovereignty of the people. “All powers of Government,” it +says in Article 2, “and all authority, legislative, executive and +judicial, are derived from the people and the same shall be exercised in +<i>Saorstat Eireann</i> through the organisations established by or under, and +in accord with, this Constitution.” In this Constitution, therefore, the +people of Ireland establish their own right, original and indefeasible, +and all things and persons and institutions named or created by or under +it depend from them. That is in the present, as it was in the original, +draft. Whatever institution or organisation is established to act on their +behalf, acts under an authority conferred by them; and in accord with the +specific bestowal of that authority; and not otherwise. Whatever person or +power is named, is named to act on their behalf; acts under the same +authority; in accord with the specific bestowal of that authority; and not +otherwise. The people confer of their own right; and what they may confer +they may withdraw. If the authority they confer be abused or transgressed, +it ceases thereupon to have any sanction or reverence, and possesses no +binding effect. That is to say, in the terms of my figure, the apex of the +pyramid rests on the base, is hung from no mythical divine right of kings, +and has no support outside the people of Ireland.</p> + +<p>The people, consequently, are citizens of a free state, not the subjects +of authority. It is necessary, therefore, at once to state who are the +citizens of this state, and what constitutes their citizenship. This the +next article proceeds to define. In this article the whole question of<span class="pagenum"><a name="Page_23" id="Page_23">[Pg 23]</a></span> +future citizenship is referred to legislation. It properly belongs to +legislation, since it includes a number of complex matters and details +quite unsuited to a Constitution. Yet there must be an original +citizenship, otherwise the service of the state could not begin. Article +3, therefore, states what constitutes the original citizenship of Saorstat +Eireann; and leaves all matters “governing the future acquisition and +termination of citizenship” to be “determined by law,” making it a +constitutional provision, however, that “men and women have equal rights +as citizens.” And Article 4 provides that the official language of that +citizenship shall be the Irish language.</p> + +<p>From these original citizens, and from whomever shall be admitted to +citizenship in the future, all the authority of the State derives under +the Constitution. They are the base of the pyramid, and it is they who in +the Constitution (according to the plan on which it is framed) confer on +certain persons and organisations definite powers of Government in +Ireland. But the authority which can confer, can also withhold; and from +the powers which they grant, certain matters are withheld. For there are +matters which comprise the fundamental rights of their sovereignty, with +which no Government created by them can interfere. If the Government had +existed, or had claimed to have existed, of its own original right, it +could, being itself sovereign, have acted as it pleased; and in past times +it did so. But since Government under the Constitution exists only by +reason of an authority conferred by a sovereign people, these Fundamental +Rights of their sovereignty are kept apart; and no authority—legislative, +executive or judicial—and no power of Government is conceded the right to +touch them.</p> + +<p>Therefore in the first section of the Constitution, where the original +authority of the people is stated, certain matters are withheld. They are +described as <i>Fundamental Rights</i>. The liberty of the Person, the +Inviolability of the Dwelling, Freedom of Conscience and the Free Practice +and Profession of Religion, the Free Expression of Opinion, Free<span class="pagenum"><a name="Page_24" id="Page_24">[Pg 24]</a></span> +Assembly, Free Association, Free Elementary Education, and the +Inalienability of Natural Resources, are each dealt with in successive +articles as forming the essentials of these rights. Before any powers are +conferred, before any organisations or institutions of Government are +created, these matters are put to one side and reserved. They belong to +the people. None shall interfere with them. The people are sovereign, and +they so decide.</p> + +<p>Such is the plan, for such is the philosophy. The first section of the +Constitution, therefore, includes what may be described as the base of the +pyramid, resting on the soil of Ireland and established in the right of +the People of Ireland. From that base the pyramid is built up toward the +Executive Authority, in section by section, giving the logical order in +which power is derived. Each section is based on that which precedes it; +for the order is the same as in the original draft, and therefore the plan +is preserved.</p> + +<p><span class="pagenum"><a name="Page_25" id="Page_25">[Pg 25]</a></span> </p> +<h3>III.</h3> +<h4>THE MAKING OF LAWS.</h4> + +<p>All powers of Government may derive from the people, but the people cannot +of themselves govern themselves. In simple small communities the people +may gather together and frame the manner of their government from meeting +to meeting (and only then when ancient custom has given them the practice +and expectation of such assemblies); but among nations for a people to +discipline and rule themselves it is necessary that they bestow recognised +and definite powers of government on representatives of their choice. Such +representatives, to be sure, have a habit of conceiving that they are +rulers of their own right. Cases have even been known where they have +endeavoured to obstruct the right of the people to depose them. But the +truth is that such representatives are merely a convenience. They are a +people’s instruments, and no more. Without them the achievement of a +common agreement, and the formulation of laws based on that common +agreement, would prove so cumbersome as to be impossible. A people must +therefore tolerate them with good humour; and keep them under proper +control. And when such representatives have been chosen, they together +form an organised body for the making of laws, and for the supervision and +control of the execution of such laws.</p> + +<p>Obviously, then, once a Constitution has stated the sovereign source of +all authority, and defined the fundamental rights of that sovereignty, it +is essential that it should prescribe the manner in which laws shall be +made for the<span class="pagenum"><a name="Page_26" id="Page_26">[Pg 26]</a></span> peace, order and good government of the whole people. The +second section of the Constitution, therefore, deals with the <i>Legislative +Provisions</i> of the State. The most important of these, manifestly, is the +creation of an organisation of representatives; but, owing to the tendency +of representatives to arrogate powers to themselves, of late years the +peoples of many States have insisted on a direct voice in the checking, +and even in the making, of laws. This direct voice has been exerted by +means of two instruments known generally as the Referendum and the +Initiative. Wherever these prevail, the Assembly of Representatives is +given only a limited power in the making of laws, the sovereign authority +reserving to itself a constant and continuous control over its action. And +in our Constitution both these instruments are given a place. For it is a +sound rule that the people are generally better than their +representatives—wiser of counsel, more disinterested of judgment—and it +is therefore provided in the Constitution that there shall be an Assembly +of Representatives, but that the people may require of that Assembly that +laws be referred to them for final decision, or that laws be made to suit +their desire.</p> + +<p>The most important part of these legislative provisions, however, is the +setting up of a National Assembly, or Synod, to be known as the +Oireachtas. This is to be formed of two Houses, Dail Eireann and Seanad +Eireann. There are many powerful arguments against the two-chamber system. +In the end they all resolve themselves into a question of ultimate +responsibility. In a simple illustration, if there be one thimble and one +pea, it is easy enough to know where the pea is. But directly a second +thimble is brought up beside the first, the difficulty of placing the pea +becomes at once a problem. On the other hand, the arguments in favour of a +second-chamber system also resolve themselves into a question of +responsibility. For if there is only one chamber, without a second to +check it and act together with it, there is, it is argued, a greater +likelihood of its acting in an irresponsible manner,<span class="pagenum"><a name="Page_27" id="Page_27">[Pg 27]</a></span> and of its running +into hasty, ill-advised legislation. Its members, having acquired the +habit of concerted action, may moreover strike a bargain behind the +people’s back, even while preserving all the forms of opposition and +discussion. With the two instruments of the Referendum and the Initiative +in operation this danger is less likely, provided that the people be +sufficiently alert. Yet it exists. In most countries, therefore, two +chambers are the rule; and in our Constitution it is provided that there +shall be two chambers, care being taken to fix responsibility ultimately +in the first in case of doubt or delay.</p> + +<p>Given two chambers, the difficulty is the creation of the Second Chamber. +The First Chamber causes little difficulty, and is mainly a matter, not +for the Constitution, but for an Electoral Law. The Second Chamber is a +matter for the Constitution. Indeed, the question and creation of a Second +Chamber, and the formation of the Executive Power, are the two foremost +problems for the making of every Constitution. The first difficulty is to +find for the Second Chamber a sufficient constituency, and the second +difficulty is to find for it a proper function; and both these problems +are essentially matters for the Constitution of a State. To answer both of +them satisfactorily is the difficulty; and an examination of the +constitutions of other countries reveals that in few cases have they been +answered even to general satisfaction.</p> + +<p>As for the constituency, it is clear that this cannot be the same as for +the first chamber, otherwise the two Houses are simply repetitions. That +is one consideration to be remembered. There is another. For from earliest +times mankind has desired to call into its special councils those who have +distinguished themselves in the conduct of its affairs. Folk may disagree +with such persons, but they defer to them and hear them. What may be +called the Senatorial Person is a recognised factor in the history of all +nations. In the push and jostle of entry to the First House—where special +and local interests are represented—such a Senatorial Person is most +likely to be thrust aside,<span class="pagenum"><a name="Page_28" id="Page_28">[Pg 28]</a></span> even if he or she be inclined to mingle in the +fray. He is consequently lost to the councils of the nation. How shall a +place be found for him or for her; and when the place is found, what shall +be the measure of his or her counsel?</p> + +<p>Other nations have answered these problems in divers ways. None has +answered them as they are answered in the Constitution of <i>Saorstat +Eireann</i>. For it is clear that if there is to be a Second Chamber, the +right place for such a Senatorial Person is in that Second Chamber, since +only thus is it possible to avoid making one chamber a mere copy of the +other. In some countries, therefore, the Second Chamber is composed of +persons on whom a title has been conferred—and on their children who +succeed to that title. In other countries the Second Chamber is created by +nomination—with at least the ostensible wish that only Senatorial Persons +will be appointed. Both these methods have led to corruption. Both, +<ins class="correction" title="original: moveover">moreover</ins>, have led to one fatal fault. For Second Chambers are mainly of +value at times when the First Chamber is likely to rush to a mistake; and +at such times no people are inclined to give careful heed to the counsel +of persons whom they have not themselves chosen to give that counsel. They +may be exactly such persons as they themselves would have chosen; but the +fact that they did not choose them, the fact that they came there by the +accident of birth, or the power of money, robs them of authority just when +their authority is most required.</p> + +<p>For this reason, the people’s own choice of Senators is necessary to their +efficiency and authority. In countries formed out of a Confederation this +difficulty is evaded by the creation of the Senate from the Federated +States, while creating the First Chamber directly from the whole people. +But where there are no Federated States the people’s direct bestowal of +authority cannot be evaded if friction and loss of strength are to be +avoided. Thus one returns to the original problem, which is, how the +people shall choose a Senate which will not be a copy of the Chamber of +<span class="pagenum"><a name="Page_29" id="Page_29">[Pg 29]</a></span>Deputies, and how the Senatorial Person will find his way to the councils +of the nation, bringing with him an unanswerable authority.</p> + +<p>Our Constitution meets this by making the whole country one constituency +for the election of the Senate. The Deputies are elected from localities +where they are known, and the special interests of which they are +qualified to represent. Over those interests the major interest of the +whole nation stands guard. It would be possible for persons to enter the +Chamber of Deputies who are not known outside their own localities, but +who are qualified to represent those localities. But by making the entire +country one constituency for the election of the Senate, no merely local +interest will have power to secure election. And thus it will be possible +to find a place for the Senatorial Person from, as the Constitution reads, +“citizens who have done honour to the nation by reason of useful public +service, or who, because of special qualifications or attainments, +represent important aspects of the nation’s life.” These persons are to be +elected by Proportional Representation; and in order that the business of +election shall not prove too cumbersome it is appointed that one-fourth of +the Senate shall retire every three years, and that before each election a +list shall be prepared by both Houses consisting of at least three times +as many persons as there are vacancies to be filled.</p> + +<p>Such form the two Houses of the Oireachtas. Their relation to one another +is carefully defined. The Seanad is created as an advisory and delaying +body, and the ultimate responsibility is given to the Dail. But endowed, +as it is, with so strong an authority, vested in it by the entire nation +voting as a whole, it is unlikely that its criticisms and advice can be +neglected. For such criticisms will be furnished in the course of debates +that will be read by the whole people; and behind them there will always +be the possibility of appeal to the whole nation by Referendum, which the +Senate can compel by a three-fifths vote. The Senate and the people, +therefore, are placed in a<span class="pagenum"><a name="Page_30" id="Page_30">[Pg 30]</a></span> watchful alliance over the acts and +proceedings of the Dail. Indeed, it is not unlikely that in the future the +Senate and the people (by Referendum) will often be found in practical +alliance against any attempt of the Dail to arrogate power to itself. The +Senate has the power to make it so—a power of greater worth to it, and to +the nation, than any constitutional right arbitrarily to obstruct +legislation or to make legislation abortive.</p> + +<p><span class="pagenum"><a name="Page_31" id="Page_31">[Pg 31]</a></span> </p> +<h3>IV.</h3> +<h4>THE PEOPLE AS LAW-MAKERS.</h4> + +<p>More is spoken of the two instruments of the Referendum and the Initiative +(particularly the former) than is known about them; for in the countries +where they have been adopted, folk use them and do not talk about them, +and where they have not been adopted folk talk about them with ardour or +with fear but without knowledge. Briefly they may be described as a +retention by the sovereign people of sovereign authority over the making +of laws.</p> + +<p>The case is not without an historical parallel. In earlier times in other +states the sovereign was the king, who said, “L’Etat, c’est moi.” He was +therefore the law-maker, by supreme right. He might summon the estates of +his realm—Lords and Commons—to advise and counsel him; and he might, +normally, allow their acts without his interference; but, being sovereign, +he reserved the right to cause those acts to be referred to him for the +final act of his will; and he at all times reserved the right to send a +message to them instructing them to make laws on matters that seemed to +him to require attention. This he did, being the sovereign. His parliament +was the legislature of the State, but he preserved the Referendum and the +Initiative, and held them as his sovereign authority over the authority +deputed to the legislature.</p> + +<p>When, however, sovereignty passed to the people, they assumed the +attributes and the functions of that sovereignty. Where once the king’s +person and the king’s dwelling, for example, had been declared to be +inviolable,<span class="pagenum"><a name="Page_32" id="Page_32">[Pg 32]</a></span> now (as in our Constitution) the people’s persons and the +people’s dwellings are declared to be inviolable. And where once the king +reserved the right to veto and to initiate legislation, so now (as again +in our Constitution) the people reserve the right to veto and to initiate +legislation. And this is the plain and simple meaning of the two +instruments of the Referendum and the Initiative. Their effect is to shift +sovereignty from the parliament to the people, where the revolutions of +the 17th and 18th centuries shifted sovereignty from the king to the +parliament.</p> + +<p>It frequently happens that theories (for whatever they may be worth) are +carried to their logical ends by practical people and not by +theorists—for theory generally lags in the rear of practice. So it +happened in this case. For it was the soberly practical and conservative +people of Switzerland who in modern times first devised the Referendum, +and then the Initiative. Since then they have been adopted in many +countries, chief of which are Belgium, Australia, and many of the American +States; and they appear in most of the constitutions recently adopted in +Europe. But it is in Switzerland that they can most usefully be studied, +for there they have a solid experience of ninety years continuous practice +behind them.</p> + +<p>The Referendum came first; and in its modern form was first adopted in the +Constitution of the canton of St. Gall in 1831, the second and third +articles of which read:</p> + +<div class="blockquot"><p class="hang">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.</p> + +<p class="hang">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.</p></div> + +<p><span class="pagenum"><a name="Page_33" id="Page_33">[Pg 33]</a></span>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.</p> + +<p>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 moves<span class="pagenum"><a name="Page_34" id="Page_34">[Pg 34]</a></span> slowly. 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.</p> + +<p>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.</p> + +<p>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 of<span class="pagenum"><a name="Page_35" id="Page_35">[Pg 35]</a></span> the 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.</p> + +<p>How will those functions be exercised? It is impossible to say, except +that there is no education like the education of responsibility.</p> + +<p><span class="pagenum"><a name="Page_36" id="Page_36">[Pg 36]</a></span> </p> +<h3>V.</h3> +<h4>THE EXECUTIVE POWER.</h4> + +<p>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.</p> + +<p>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 the<span class="pagenum"><a name="Page_37" id="Page_37">[Pg 37]</a></span> Law-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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>The experimental nature of the provisions for the Executive in the present +draft of the Constitution is manifest.<span class="pagenum"><a name="Page_38" id="Page_38">[Pg 38]</a></span> 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 a <ins class="correction" title="original: Confederateion">Confederation</ins>, 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.</p> + +<p>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 government<span class="pagenum"><a name="Page_39" id="Page_39">[Pg 39]</a></span> +of 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.</p> + +<p>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.</p> + +<p>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 as<span class="pagenum"><a name="Page_40" id="Page_40">[Pg 40]</a></span> deputies—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.</p> + +<p>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.</p> + +<p>The whole twelve, it is true, are said to form one single Executive +Council. But what are the chances of this?<span class="pagenum"><a name="Page_41" id="Page_41">[Pg 41]</a></span> 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.</p> + +<p>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, they<span class="pagenum"><a name="Page_42" id="Page_42">[Pg 42]</a></span> would 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>It is unnecessary to point, further, to the danger of<span class="pagenum"><a name="Page_43" id="Page_43">[Pg 43]</a></span> nominating 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.</p> + +<p>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.</p> + +<p>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 the<span class="pagenum"><a name="Page_44" id="Page_44">[Pg 44]</a></span> fray. 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.</p> + +<p><span class="pagenum"><a name="Page_45" id="Page_45">[Pg 45]</a></span> </p> +<h3>VI.</h3> +<h4>THE JUDICIARY.</h4> + +<p>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.</p> + +<p>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, when<span class="pagenum"><a name="Page_46" id="Page_46">[Pg 46]</a></span> therefore +the law made by the people at large must be enforced on the individual, +and its defiance punished.</p> + +<p>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.</p> + +<p>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 subsequent<span class="pagenum"><a name="Page_47" id="Page_47">[Pg 47]</a></span> +Judiciary 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.</p> + +<p>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.”</p> + +<p>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 the<span class="pagenum"><a name="Page_48" id="Page_48">[Pg 48]</a></span> making 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.</p> + +<p>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 the<span class="pagenum"><a name="Page_49" id="Page_49">[Pg 49]</a></span> Constitution, 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.</p> + +<p>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 the <ins class="correction" title="original: minorites">minorities</ins> of the day +have the honest chance of becoming the <ins class="correction" title="original: majorites">majorities</ins> of 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?</p> + +<p>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.</p> + +<p>Therefore the Judiciary is placed in care of the provisions<span class="pagenum"><a name="Page_50" id="Page_50">[Pg 50]</a></span> of 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.</p> + +<p><span class="pagenum"><a name="Page_51" id="Page_51">[Pg 51]</a></span> </p> +<h3>VII.</h3> +<h4>THE QUESTION OF APPEALS.</h4> + +<p>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.</p> + +<p>I refer to the provision at the end of Article 65. The article itself +reads:</p> + +<div class="blockquot"><p>“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.”</p></div> + +<p><span class="pagenum"><a name="Page_52" id="Page_52">[Pg 52]</a></span>To which, in the present draft, the following apparently contradictory +words are now added:</p> + +<div class="blockquot"><p>“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.”</p></div> + +<p>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.</p> + +<p>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.</p> + +<p>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 only<span class="pagenum"><a name="Page_53" id="Page_53">[Pg 53]</a></span> strong 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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 Committee<span class="pagenum"><a name="Page_54" id="Page_54">[Pg 54]</a></span> would 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.</p> + +<p>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 straightest<span class="pagenum"><a name="Page_55" id="Page_55">[Pg 55]</a></span> nor 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.</p> + +<p>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 Judicial <ins class="correction" title="original: Commitee's">Committee’s</ins> +decision are stated in such a way that no Court and no Council in +Australia has yet been able to find out what they were.”</p> + +<p>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.”</p> + +<p>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 I<span class="pagenum"><a name="Page_56" id="Page_56">[Pg 56]</a></span> think 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.”</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>Yet there is an excellent principle embedded in this provision. It is very +deeply, and perhaps almost inextricably,<span class="pagenum"><a name="Page_57" id="Page_57">[Pg 57]</a></span> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p><span class="pagenum"><a name="Page_58" id="Page_58">[Pg 58]</a></span> </p> +<h3>VIII.</h3> +<h4>FUNCTIONAL COUNCILS.</h4> + +<p>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.</p> + +<p>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 historic<span class="pagenum"><a name="Page_59" id="Page_59">[Pg 59]</a></span> memory. Very frequently this will be found +to be the case.</p> + +<p>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:—</p> + +<div class="blockquot"><p>“The Oireachtas may provide for the establishment of Functional or +Vocational Councils representing branches of the social and economic +life of the Nation. A law establishing any such Council shall +determine its powers, rights and duties, and its relation to the +government of the Irish Free State.”</p></div> + +<p>As a matter of curious interest it happens that the German Constitution +contains an article very similar to this; but the conception had been in +development in Ireland for some years. It had, indeed (as I endeavoured to +shew in a little book on <i>The Gaelic State</i>, published in 1917), been a +slumbering memory of the Irish Nation during the centuries when the +characteristic political conceptions of the people were frustrate and +idle, as they may now be put into practical development. It had been +worked out in practical detail for one of our largest and most important +industries in the Report on Sea Fisheries of the <i>Commission of Inquiry</i>, +published in 1921. And it had actually, though imperfectly, been in +operation for another great industry since 1896 in the Council of +Agriculture.</p> + +<p>What, then, are these Functional (or Vocational or Occupational) Councils +for which provision is made, and on what political or social conception do +they rest? One need not travel outside the present draft Constitution to +discover the need for them. For in this Constitution, as in most +constitutions, the people are, outside this one Article, considered in +only two of the three relations that go to make up their lives, and which +therefore constitute the complete life of the Nation. All the persons of +the State are considered either as individuals or as citizens. But these +two descriptions do not exhaust their lives. In<span class="pagenum"><a name="Page_60" id="Page_60">[Pg 60]</a></span> addition to being +individuals and citizens they are also workers in some craft, industry, +trade or profession. Indeed, it is seldom they have time to be +individuals, and it is seldom they are reminded that they are citizens. +For good or for ill, these are only occasional parts of their lives. But +they are never permitted to forget the parts they are required to play in +the social and economic life of the Nation.</p> + +<p>The Constitution establishes their rights as individuals putting these +rights beyond the reach of interference either of those who make or those +who execute the law. It also establishes their rights as citizens, +certifies the manner of their action as citizens, and derives all +authority in the State from those rights and actions. But these are only +the lesser, however supremely important, parts of our lives. The greater +part of our days is, for each of us, packed with the thoughts are cares of +our functional lives. We are more frequently, in the intake and output of +our lives, blacksmiths or architects, or whatever else, than we are +individuals or citizens. Have we not rights and duties there too, both for +ourselves and to the Nation; and should not the Constitution make +provision for this, the larger part of our lives, as well as for the +lesser parts? Can provision be said to have been completely made either +for our own lives or for the interplay that constitutes the life of the +Nation if this aspect be neglected?</p> + +<p>We are faced at once with a difficulty. Seeing that we have the experience +of it, it is easy to perceive how we can be represented in the State as +citizens. How can we be represented in the State in respect of our +functions? To answer this question one may turn to an instance that lives +before us, an example from elder days when such an order of society was +familiar. For in old Ireland (as in other nations) guilds were a +recognised form of the industrial life of the nation. They were also, +though not known by that name, a recognised form of the professional life +of the Nation. And as a relic of those times we have to-day what is in +effect a guild of Lawyers. The lawyers of Ireland,<span class="pagenum"><a name="Page_61" id="Page_61">[Pg 61]</a></span> for example, are +organised as a whole, with a Council representative of the profession as a +whole. That Council, representative of all who practice as lawyers, is a +responsible body, not only to the lawyers who are represented in it, but +to and in the State on behalf of the legal profession. It is responsible +for the honour and good conduct of lawyers. It is responsible for the +economic maintenance of its constituents. No lawyer is allowed to practice +except by consent of the Legal Council—that is to say, except by the +consent of all other lawyers. The legal profession as a whole—in the +legal sense, as a Person—protects its own honour, protects the individual +lawyer, protects the public interest (in theory, at least), and requires a +guarantee of efficiency and rectitude from every lawyer before he is +allowed to practice his profession.</p> + +<p>So it was in ancient Ireland. At that time, when the Assembly of the +Nation met, the lawyers, or ‘brehons,’ met in a Council of their own. The +administrative heads of each unit of local government met in a Council of +their own. The Recorders, or <i>Seanchaidhe</i>, of the local petty states, met +in a Council of their own. And each Council was responsible for the +administration of its own concerns. Each Council drew up its own +regulations, for the conduct of it own duties in the State, and for the +protection of its own ‘functional’ rights. Each Council, in the modern +legal phrase, was a responsible ‘Person,’ and was by the State, as it +existed at that time, entrusted with the conduct and administration of its +own affairs, subject to the general execution of the public interest.</p> + +<p>It lay with the Assembly of the Nation to co-ordinate the whole in the +public interest. Whether this was or was not done effectively in olden +times is indifferent to the present problem of Functional Councils in the +modern State, with its better organisation and more perfect national +sense. The problem of organisation is very real, but it does not affect +the necessity of functional representation and functional responsibility +in the State. It is, for example, absurd that persons unfamiliar with +architectural<span class="pagenum"><a name="Page_62" id="Page_62">[Pg 62]</a></span> problems, however highly placed in the nation they may be, +should be entrusted with architectural decisions that require special +training and knowledge. It is equally absurd that a person unfamiliar with +the needs of the Fishing Industry should, because for political reasons he +should happen to be chosen as Minister of Fisheries, make proposals and be +responsible for decisions that affect the present livelihood of fishermen +and the successful future of the Fishing Industry. These matters must be +reposed in the care of representative Functional (Occupational or +Vocational) Councils, that should be required to render account, on the +one hand, to the Function which they represent, and, on the other hand, to +the State on behalf of that Function.</p> + +<p>When such an organisation of the social and economic life of the Nation +has been achieved, then, and only then, will it be possible to say that +all parts of the life of the Nation have been brought within the reach and +authority of the Constitution. It may be objected that these matters lie +in the future. That is true. The Constitution allows for them, and by +allowing for them indicates that they should be, and probably will be, the +natural development of the future of the Irish Nation.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_63" id="Page_63">[Pg 63]</a></span></p> +<h2>Draft Constitution of the Irish Free State</h2> + +<p class="center"><br />PRELIMINARY.</p> + +<p>These presents shall be construed with reference to the Articles of +Agreement for a Treaty between Great Britain and Ireland set forth in the +Schedule hereto annexed (hereinafter referred to as “the Scheduled +Treaty”) which are hereby given the force of law, and if any provision of +this Constitution or of any amendment thereof or of any law made +thereunder is in any respect repugnant to any of the provisions of the +Scheduled Treaty, it shall, to the extent only of such repugnancy be +absolutely void and inoperative and the Parliament and the Executive +Council of the Irish Free State shall respectively pass such further +legislation and do all such other things as may be necessary to implement +the Scheduled Treaty.</p> + +<p><span class="pagenum"><a name="Page_64" id="Page_64">[Pg 64]</a></span> </p> +<p class="center"><br />SECTION I.—FUNDAMENTAL RIGHTS.</p> + +<p><span class="smcap">Article 1.</span></p> + +<p>The Irish Free State/Saorstat Eireann is a co-equal member of the +Community of Nations forming the British Commonwealth of Nations.</p> + +<p><br /><span class="smcap">Article 2.</span></p> + +<p>All powers of government and all authority legislative, executive, and +judicial, are derived from the people and the same shall be exercised in +the Irish Free State/Saorstat Eireann through the organisations +established by or under, and in accord with, this Constitution.</p> + +<p><br /><span class="smcap">Article 3.</span></p> + +<p>Every person domiciled in the Irish Free State/Saorstat Eireann at the +time of the coming into operation of this Constitution who was born in +Ireland or either of whose parents was born in Ireland or who has been so +domiciled in the area of the jurisdiction of the Irish Free State/Saorstat +Eireann for not less than seven years is a citizen of the Irish Free +State/Saorstat Eireann and shall within the limits of the Irish Free +State/Saorstat Eireann enjoy the privileges and be subject to the +obligations of such citizenship, provided that any such person being a +citizen of another State may elect not to accept the citizenship hereby +conferred; and the conditions governing the future acquisition and +termination of citizenship<span class="pagenum"><a name="Page_65" id="Page_65">[Pg 65]</a></span> in the Irish Free State/Saorstat Eireann shall +be determined by law. Men and women have equal rights as citizens.</p> + +<p><br /><span class="smcap">Article 4.</span></p> + +<p>The National language of the Irish Free State/Saorstat Eireann is the +Irish language, but the English language shall be equally recognised as an +official language. Nothing in this Article shall prevent special +provisions being made by the Parliament/Oireachtas for districts or areas +in which only one language is in use.</p> + +<p><br /><span class="smcap">Article 5.</span></p> + +<p>No title of honour in respect of any services rendered in or in relation +to the Irish Free State/Saorstat Eireann may be conferred on any citizen +of the Irish Free State/Saorstat Eireann except with the approval or upon +the advice of the Executive Council of the State.</p> + +<p><br /><span class="smcap">Article 6.</span></p> + +<p>The liberty of the person is inviolable, and no person shall be deprived +of his liberty except in accordance with law. Upon complaint made by or on +behalf of any person that he is being unlawfully detained, the High +Court/Ard Chuirt and any and every judge thereof shall forthwith enquire +into the same and may make an order requiring the person in whose custody +such person shall be detained to produce the body of the person so +detained before such Court or Judge without delay and to certify in +writing as to the cause<span class="pagenum"><a name="Page_66" id="Page_66">[Pg 66]</a></span> of the detention and such Court or Judge shall +thereupon order the release of such person unless satisfied that he is +being detained in accordance with the law.</p> + +<p><br /><span class="smcap">Article 7.</span></p> + +<p>The dwelling of each citizen is inviolable and shall not be forcibly +entered except in accordance with law.</p> + +<p><br /><span class="smcap">Article 8.</span></p> + +<p>Freedom of conscience and the free profession and practice of religion are +inviolable rights of every citizen, and no law may be made either directly +or indirectly to endow any religion, or prohibit or restrict the free +exercise thereof or give any preference, or impose any disability on +account of religious belief or religious status, or affect prejudicially +the right of any child to attend a school receiving public money without +attending the religious instruction at the school, or make any +discrimination as respects State aid between schools under the management +of different religious denominations, or divert from any religious +denomination or any educational institution any of its property except for +the purpose of roads, railways, lighting, water or drainage works or other +works of public utility, and on payment of compensation.</p> + +<p><br /><span class="smcap">Article 9.</span></p> + +<p>The right of free expression of opinion as well as the right to assemble +peaceably and without arms, and to form associations or unions is +guaranteed for purposes not opposed to public morality. Laws<span class="pagenum"><a name="Page_67" id="Page_67">[Pg 67]</a></span> regulating +the manner in which the right of forming associations and the right of +free assembly may be exercised shall contain no political, religious or +class distinction.</p> + +<p><br /><span class="smcap">Article 10.</span></p> + +<p>All citizens of the Irish Free State/Saorstat Eireann have the right to +free elementary education.</p> + +<p><br /><span class="smcap">Article 11.</span></p> + +<p>The rights of the State in and to natural resources, the use of which is +of national importance, shall not be alienated. Their exploitation by +private individuals or associations shall be permitted only under State +supervision and in accordance with conditions and regulations approved by +legislation.</p> + +<p> </p> +<p class="center">SECTION II.—LEGISLATIVE PROVISIONS.</p> + +<p class="center">A.—<span class="smcap">The Legislature.</span></p> + +<p><span class="smcap">Article 12.</span></p> + +<p>A Legislature is hereby created to be known as Parliament/Oireachtas of +the Irish Free State/Saorstat Eireann. It shall consist of the King and +two Houses: the Chamber of Deputies/Dail Eireann and the Senate/Seanad +Eireann. The power of making laws for the peace, order and good government +of the Irish Free State/Saorstat Eireann is vested in the +Parliament/Oireachtas.</p> + +<p><span class="pagenum"><a name="Page_68" id="Page_68">[Pg 68]</a></span><br /><span class="smcap">Article 13.</span></p> + +<p>The Parliament/Oireachtas shall sit in or near the city of Dublin or in +such other place as from time to time it may determine.</p> + +<p><br /><span class="smcap">Article 14.</span></p> + +<p>All citizens of the Irish Free State/Saorstat Eireann without distinction +of sex who have reached the age of twenty-one years and who comply with +the provisions of the prevailing electoral laws, shall have the right to +vote for members of the Chamber of Deputies/Dail Eireann, and to take part +in the Referendum or Initiative. All citizens of the Irish Free +State/Saorstat Eireann without distinction of sex who have reached the age +of thirty years and who comply with the provisions of the prevailing +electoral laws, shall have the right to vote for members of the +Senate/Seanad Eireann. No voter may exercise more than one vote and the +voting shall be by secret ballot. The mode and place of exercising this +right shall be determined by law.</p> + +<p><br /><span class="smcap">Article 15.</span></p> + +<p>Every citizen who has reached the age of twenty-one years and who is not +placed under disability or incapacity by the Constitution or by law shall +be eligible to become a member of the Chamber of Deputies/Dail Eireann.</p> + +<p><br /><span class="smcap">Article 16.</span></p> + +<p>No person may be at the same time a member both of the Chamber/Dail +Eireann and of the Senate/Seanad Eireann.</p> + +<p><span class="pagenum"><a name="Page_69" id="Page_69">[Pg 69]</a></span><br /><span class="smcap">Article 17.</span></p> + +<p>The oath to be taken by Members of Parliament/Oireachtas shall be in the +following form:—</p> + +<div class="blockquot"><p>I ........................ do solemnly swear true faith and +allegiance to the Constitution of the Irish Free State as by law +established, and that I will be faithful to H.M. King George V., his +heirs and successors by law in virtue of the common citizenship of +Ireland with Great Britain and her adherence to and membership of the +group of nations forming the British Commonwealth of Nations.</p></div> + +<p>Such oath shall be taken and subscribed by every member of the +Parliament/Oireachtas before taking his seat therein before the +Representative of the Crown or some person authorised by him.</p> + +<p><br /><span class="smcap">Article 18.</span></p> + +<p>Every member of the Parliament/Oireachtas shall, except in case of +treason, felony, or breach of the peace, be privileged from arrest in +going to and returning from, and while within the precincts of either +House, and shall not be amenable to any action or proceeding at law in +respect of any utterance in either House.</p> + +<p><br /><span class="smcap">Article 19.</span></p> + +<p>All reports and publications of the Parliament/Oireachtas or of either +House thereof shall be privileged and utterances made in either House +wherever published shall be privileged.</p> + +<p><span class="pagenum"><a name="Page_70" id="Page_70">[Pg 70]</a></span><br /><span class="smcap">Article 20.</span></p> + +<p>Each House shall make its own rules and Standing Orders, with power to +attach penalties for their infringement and shall have power to ensure +freedom of debate, to protect its official documents and the private +papers of its members, and to protect itself and its members against any +person or persons interfering with, molesting or attempting to corrupt its +members in the exercise of their duties.</p> + +<p><br /><span class="smcap">Article 21.</span></p> + +<p>Each House shall elect its own Chairman and Deputy Chairman and shall +prescribe their powers, duties, and terms of office.</p> + +<p><br /><span class="smcap">Article 22.</span></p> + +<p>All matters in each House shall, save as otherwise provided by this +Constitution, be determined by a majority of the votes of the members +present other than the Chairman or presiding member, who shall have and +exercise a casting vote in the case of an equality of votes. The number of +members necessary to constitute a meeting of either House for the exercise +of its powers shall be determined by its Standing Orders.</p> + +<p><br /><span class="smcap">Article 23.</span></p> + +<p>The Parliament/Oireachtas shall make provision for the payment of its +members and may in addition provide them with free travelling facilities +in any part of Ireland.</p> + +<p><span class="pagenum"><a name="Page_71" id="Page_71">[Pg 71]</a></span><br /><span class="smcap">Article 24.</span></p> + +<p>The Parliament/Oireachtas shall hold at least one session each year. The +Parliament/Oireachtas shall be summoned and dissolved by the +Representative of the Crown in the name of the King and subject as +aforesaid the Chamber/Dail Eireann shall fix the date of re-assembly of +the Parliament/Oireachtas and the date of the conclusion of the session of +each House provided that the sessions of the Senate/Seanad Eireann shall +not be concluded without its own consent.</p> + +<p><br /><span class="smcap">Article 25.</span></p> + +<p>Sittings of each House of the Parliament/Oireachtas shall be public. In +cases of special emergency either House may hold a private sitting with +the assent of two-thirds of the members present.</p> + +<p> </p> +<p class="center">SECTION II.—LEGISLATIVE PROVISIONS.</p> + +<p class="center">B.—<span class="smcap">The Chamber of Deputies/Dail Eireann.</span></p> + +<p><span class="smcap">Article 26.</span></p> + +<p>The Chamber/Dail Eireann shall be composed of members who represent +constituencies determined by law. The number of members shall be fixed +from time to time by the Parliament/Oireachtas, but the total number of +members of the Chamber/Dail Eireann shall not be fixed at less than one +member for each thirty thousand of the population, or at more than one +member for each twenty thousand of the population: Provided that the +proportion between the<span class="pagenum"><a name="Page_72" id="Page_72">[Pg 72]</a></span> number of members to be elected at any time for +each constituency and the population of each constituency, as ascertained +at the last preceding census, shall, so far as possible, be identical +throughout the country. The members shall be elected upon principles of +Proportional Representation. The Parliament/Oireachtas shall revise the +constituencies at least once in every ten years, with due regard to +changes in distribution of the population, but any alterations in the +constituencies shall not take effect during the life of the Chamber/Dail +Eireann sitting when such revision is made.</p> + +<p><br /><span class="smcap">Article 27.</span></p> + +<p>At a General Election for the Chamber/Dail Eireann the polls shall be held +on the same day throughout the country, and that day shall be a day not +later than thirty days after the date of the dissolution and shall be +proclaimed a public holiday. The Chamber/Dail Eireann shall meet within +one month of such day, and shall unless earlier dissolved continue for +four years from the date of its first meeting, and not longer. The +Chamber/Dail Eireann may not at any time be dissolved except on the advice +of the Executive Council.</p> + +<p><br /><span class="smcap">Article 28.</span></p> + +<p>In case of death, resignation or disqualification of a member of the +Chamber/Dail Eireann, the vacancy shall be filled by election in manner to +be determined by law.</p> + +<p> <span class="pagenum"><a name="Page_73" id="Page_73">[Pg 73]</a></span></p> +<p class="center">SECTION II.—LEGISLATIVE PROVISIONS.</p> + +<p class="center">C.—<span class="smcap">The Senate/Seanad Eireann.</span></p> + +<p><span class="smcap">Article 29.</span></p> + +<p>The Senate/Seanad Eireann shall be composed of citizens who have done +honour to the Nation by reason of useful public service or who, because of +special qualifications or attainments, represent important aspects of the +Nation’s life.</p> + +<p><br /><span class="smcap">Article 30.</span></p> + +<p>Every University in the Irish Free State/Saorstat Eireann shall be +entitled to elect two representatives to the Senate/Seanad Eireann. The +number of Senators, exclusive of the University members, shall be +fifty-six. A citizen to be eligible for membership of the Senate/Seanad +must be a person eligible to become a member of the Chamber/Dail Eireann, +and must have reached the age of thirty-five years. Subject to any +provision for the constitution of the first Senate/Seanad the term of +office of a member of the Senate/Seanad shall be twelve years.</p> + +<p><br /><span class="smcap">Article 31.</span></p> + +<p>One-fourth of the members of the Senate/Seanad Eireann exclusive of the +University members shall be elected every three years from a panel +constituted as hereinafter mentioned at an election at which the Irish +Free State/Saorstat Eireann shall form one<span class="pagenum"><a name="Page_74" id="Page_74">[Pg 74]</a></span> electoral area and the +elections shall be held on principles of Proportional Representation. One +member shall be elected by each University entitled to representation in +the Senate/Seanad every six years.</p> + +<p><br /><span class="smcap">Article 32.</span></p> + +<p>Before each election of members of the Senate/Seanad Eireann (other than +University members) a panel shall be formed consisting of:—</p> + +<div class="blockquot"><p class="hang">(a) Three times as many qualified persons as there are members to be +elected of whom two-thirds shall be nominated by the Chamber/Dail +Eireann voting according to principles of Proportional Representation +and one-third shall be nominated by the Senate/Seanad Eireann voting +according to principles of Proportional Representation; and</p> + +<p class="hang">(b) Such persons who have at any time been members of the +Senate/Seanad (including members about to retire) as signify by +notice in writing addressed to the President of the Executive Council +their desire to be included in the panel.</p></div> + +<p>The method of proposal and selection for nomination shall be decided by +the Chamber/Dail and Senate/Seanad respectively, with special reference to +the necessity for arranging for the representation of important interests +and institutions in the country; Provided that each proposal shall be in +writing and shall state the qualifications of the person proposed. As soon +as the panel has been formed a list of the names of the members of the +panel arranged in alphabetical order with their qualifications shall be +published.</p> + +<p><span class="pagenum"><a name="Page_75" id="Page_75">[Pg 75]</a></span><br /><span class="smcap">Article 33.</span></p> + +<p>In the case of the death, resignation or disqualification of a member of +the Senate/Seanad Eireann (other than a University member) his place shall +be filled by a vote of the Senate/Seanad. Any Senator so chosen shall +retire from office at the conclusion of the three years period then +running and the vacancy or vacancies thus created shall be additional to +the places to be filled under Article 31. The term of office of the +members chosen at the election after the first fourteen elected shall +conclude at the end of the period or periods at which the Senator or +Senators by whose death or withdrawal the vacancy or vacancies was or were +originally created would be due to retire; Provided that the fifteenth +member shall be deemed to have filled the vacancy first created in order +of time and so on.</p> + +<p>In case of the death, resignation or disqualification of a University +member of the Senate/Seanad, the University by which he was elected shall +elect a person to fill his place, and the member so elected shall hold +office so long as the member in whose place he was elected would have held +office.</p> + +<p> </p> +<p class="center">SECTION II.—LEGISLATIVE PROVISIONS.</p> + +<p class="center">D.—<span class="smcap">Legislation.</span></p> + +<p><span class="smcap">Article 34.</span></p> + +<p>The Chamber/Dail Eireann shall in relation to the subject matter of money +bills as hereinafter defined have legislative authority exclusive of the +Senate/Seanad Eireann.</p> + +<p>A money Bill means a Bill which contains only provisions dealing with all +or any of the following subjects, namely, the imposition, repeal, +remission,<span class="pagenum"><a name="Page_76" id="Page_76">[Pg 76]</a></span> alteration or regulation of taxation; the imposition for the +payment of debt or other financial purposes of charges on public moneys or +the variation or repeal of any such charges; supply; the appropriation, +receipt, custody, issue or audit of accounts of public money; the raising +or guarantee of any loan or the repayment thereof; subordinate matters +incidental to those subjects or any of them. In this definition the +expressions “taxation,” “public money” and “loan” respectively do not +include any taxation, money or loan raised by local authorities or bodies +for local purposes.</p> + +<p>The Chairman of the Chamber/Dail shall certify any bill which in his +opinion is a money bill to be a money bill, but, if within three days +after a Bill has been passed by the Chamber/Dail, two-fifths of the +members of either House by notice in writing addressed to the Chairman of +the House of which they are members so require, the question whether the +Bill is or is not a money bill shall be referred to a Committee of +Privileges consisting of three members elected by each House with a +Chairman who shall be the senior judge of the Supreme Court able and +willing to act and who, in the case of an equality of votes, but not +otherwise, shall be entitled to vote. The decision of the Committee on the +question shall be final and conclusive.</p> + +<p><br /><span class="smcap">Article 35.</span></p> + +<p>The Chamber/Dail Eireann shall as soon as possible after the commencement +of each financial year consider the Budget of receipts and expenditure of +the Irish Free State/Saorstat Eireann for that year, and, save in so far +as may be provided by specific enactment in each case, the legislation +required to give effect to the Budget of each year shall be enacted within +that year.</p> + +<p><span class="pagenum"><a name="Page_77" id="Page_77">[Pg 77]</a></span><br /><span class="smcap">Article 36.</span></p> + +<p>Money shall not be appropriated by vote, resolution or law, unless the +purpose of the appropriation has in the same session been recommended by a +message from the Representative of the Crown acting on the advice of the +Executive Council.</p> + +<p><br /><span class="smcap">Article 37.</span></p> + +<p>Every Bill initiated in and passed by the Chamber/Dail Eireann shall be +sent to the Senate/Seanad Eireann and may, unless it be a Money Bill, be +amended in the Senate/Seanad Eireann and the Chamber/Dail Eireann shall +consider any such amendment; but a Bill passed by the Chamber/Dail Eireann +and considered by the Senate/Seanad Eireann shall, not later than two +hundred and seventy days after it shall have been first sent to the +Senate/Seanad, or such longer period as may be agreed upon by the two +Houses, be deemed to be passed by both Houses in its form as last passed +by the Chamber/Dail; Provided that any Money Bill shall be sent to the +Senate/Seanad for its recommendations and at a period not longer than +fourteen days after it shall have been sent to the Senate/Seanad, it shall +be returned to the Chamber/Dail which may pass it, accepting or rejecting +all or any of the recommendations of the Senate/Seanad, and as so passed +shall be deemed to have been passed by both Houses. When a Bill other than +a Money Bill has been sent to the Senate/Seanad a Joint Sitting of the +Members of both Houses may on a resolution passed by the Senate/Seanad be +convened for the purpose of debating, but not of voting upon, the +proposals of the Bill or any amendment of the same.</p> + +<p><span class="pagenum"><a name="Page_78" id="Page_78">[Pg 78]</a></span><br /><span class="smcap">Article 38.</span></p> + +<p>A Bill may be initiated in the Senate/Seanad Eireann and if passed by the +Senate/Seanad shall be introduced into the Chamber/Dail Eireann. If +amended by the Chamber/Dail the Bill shall be considered as a Bill +initiated in the Chamber/Dail. If rejected by the Chamber/Dail it shall +not be introduced again in the same session, but the Chamber/Dail may +reconsider it on its own motion.</p> + +<p><br /><span class="smcap">Article 39.</span></p> + +<p>A Bill passed by either House and accepted by the other House shall be +deemed to be passed by both Houses.</p> + +<p><br /><span class="smcap">Article 40.</span></p> + +<p>So soon as any Bill shall have been passed or deemed to have been passed +by both Houses, the Executive Council shall present the same to the +Representative of the Crown for the signification by him, in the King’s +name, of the King’s assent, and such representative may withhold the +King’s assent or reserve the Bill for the signification of the King’s +pleasure; Provided that the Representative of the Crown shall in the +withholding of such assent to or reservation of any Bill, act in +accordance with the law, practice, and constitutional usage governing the +like withholding of assent or reservation in the Dominion of Canada.</p> + +<p>A Bill reserved for the signification of the King’s Pleasure shall not +have any force unless and until within one year from the day on which it +was presented to the Representative of the Crown for the<span class="pagenum"><a name="Page_79" id="Page_79">[Pg 79]</a></span> King’s Assent, +the Representative of the Crown signifies by speech or message to each of +the Houses of the Parliament/Oireachtas, or by proclamation, that it has +received the Assent of the King in Council.</p> + +<p>An entry of every such speech, message or proclamation shall be made in +the Journal of each House and a duplicate thereof duly attested shall be +delivered to the proper officer to be kept among the Records of the Irish +Free State/Saorstat Eireann.</p> + +<p><br /><span class="smcap">Article 41.</span></p> + +<p>As soon as may be after any law has received the King’s assent, the clerk, +or such officer as the Chamber may appoint for the purpose, shall cause +two fair copies of such law to be made, one being in the Irish language +and the other in the English language (one of which copies shall be signed +by the Representative of the Crown to be enrolled for record in the office +of such officer of the Supreme Court as the Chamber/Dail Eireann may +determine) and such copies shall be conclusive evidence as to the +provisions of every such law, and in case of conflict between the two +copies so deposited, that signed by the Representative of the Crown shall +prevail.</p> + +<p><br /><span class="smcap">Article 42.</span></p> + +<p>The Parliament/Oireachtas shall have no power to declare acts to be +infringements of the law which were not so at the date of their +commission.</p> + +<p><br /><span class="smcap">Article</span> 43.</p> + +<p>The Parliament/Oireachtas may create subordinate legislatures, but it +shall not confer thereon any<span class="pagenum"><a name="Page_80" id="Page_80">[Pg 80]</a></span> powers in respect of the Navy, Army or Air +Force, alienage or naturalisation, coinage, legal tender, trade marks, +designs, merchandise marks, copyright, patent rights, weights and +measures, submarine cables, wireless telegraphy, post office, railways, +aerial navigation, customs and excise.</p> + +<p><br /><span class="smcap">Article 44.</span></p> + +<p>The Parliament/Oireachtas may provide for the establishment of Functional +or Vocational Councils representing branches of the social and economic +life of the Nation. A law establishing any such Council shall determine +its powers, rights and duties, and its relation to the government of the +Irish Free State/Saorstat Eireann.</p> + +<p><br /><span class="smcap">Article 45.</span></p> + +<p>The Parliament/Oireachtas has the exclusive right to regulate the raising +and maintaining of such armed forces as are mentioned in the Scheduled +Treaty in the territory of the Irish Free State/Saorstat and every such +force shall be subject to the control of the Parliament/Oireachtas.</p> + +<p> </p> +<p class="center">SECTION II.—LEGISLATIVE PROVISIONS.</p> + +<p class="center">E.—<span class="smcap">Referendum and Initiative.</span></p> + +<p><span class="smcap">Article 46.</span></p> + +<p>Any Bill passed or deemed to have been passed by both Houses may be +suspended for a period of ninety days on the written demand of two-fifths +of the members<span class="pagenum"><a name="Page_81" id="Page_81">[Pg 81]</a></span> of the Chamber/Dail Eireann or of a majority of the +members of the Senate/Seanad Eireann presented to the President of the +Executive Council not later than seven days from the day on which such +Bill shall have been so passed or deemed to have been so passed. Such a +Bill shall be submitted by Referendum to the decision of the people if +demanded before the expiration of the ninety days either by a resolution +of the Senate/Seanad Eireann assented to by three-fifths of the members of +the Senate/Seanad Eireann, or by a petition signed by not less than +one-twentieth of the voters then on the register of voters, and the +decision of the people on such referendum shall be conclusive. These +provisions shall not apply to Money Bills or to such Bills as shall be +declared by both Houses to be necessary for the immediate preservation of +the public peace, health or safety.</p> + +<p><br /><span class="smcap">Article 47.</span></p> + +<p>The Parliament/Oireachtas may provide for the initiation by the people of +proposals for laws or constitutional amendments. Should the +Parliament/Oireachtas fail to make such provision within two years, it +shall on the petition of not less than one hundred thousand voters on the +register, of whom not more than twenty thousand shall be voters in any one +constituency, either make such provisions or submit the question to the +people for decision in accordance with the ordinary regulations governing +the Referendum. Any legislation passed by the Parliament/Oireachtas +providing for such initiation by the people shall provide (1) that such +proposals may be initiated on a petition of fifty thousand voters on the +register, (2) that if the Parliament/Oireachtas rejects a proposal so +initiated it shall be submitted to the people for decision in accordance +with the ordinary regulations<span class="pagenum"><a name="Page_82" id="Page_82">[Pg 82]</a></span> governing the Referendum; and (3) that if +the Parliament/Oireachtas enacts a proposal so initiated, such enactment +shall be subject to the provisions respecting ordinary legislation or +amendments of the Constitution as the case may be.</p> + +<p><br /><span class="smcap">Article 48.</span></p> + +<p>Save in the case of actual invasion, the Irish Free State/Saorstat Eireann +shall not be committed to active participation in any war without the +assent of the Parliament/Oireachtas.</p> + +<p><br /><span class="smcap">Article 49.</span></p> + +<p>Amendments of this Constitution within the terms of the Scheduled Treaty +may be made by the Parliament/Oireachtas but every such amendment must be +submitted to a Referendum of the people and shall not be passed unless a +majority of the voters on the register record their votes and either a +majority of the voters on the register or two-thirds of the votes recorded +are in favour of the amendment.</p> + +<p> </p> +<p class="center">SECTION III.—THE EXECUTIVE.</p> + +<p class="center">A.—<span class="smcap">Executive Council/Aireacht.</span></p> + +<p><span class="smcap">Article 50.</span></p> + +<p>The Executive Authority of the Irish Free State/Saorstat Eireann is +hereby declared to be vested in the King, and shall be exercisable, in +accordance with the law, practice and constitutional usage governing the +exercise of the executive authority in the case of the Dominion of Canada, +by the Representative of the Crown. There shall be a Council to aid and +advise in the government of the Irish Free<span class="pagenum"><a name="Page_83" id="Page_83">[Pg 83]</a></span> State/Saorstat Eireann to be +styled the Executive Council/Aireacht. The Executive Council shall be +responsible to the Chamber/Dail Eireann, and shall consist of not more +than twelve Ministers/Airi appointed by the Representative of the Crown, +of whom four Ministers shall be Members of the Chamber/Dail Eireann and a +number not exceeding eight, chosen from all citizens eligible for election +to the Chamber/Dail Eireann, who shall not be members of +Parliament/Oireachtas during their term of Office, and who, if at the time +of their appointment they are members of Parliament/Oireachtas, shall by +virtue of such appointment vacate their seats; Provided that the +Chamber/Dail Eireann may from time to time on the motion of the President +of the Executive Council determine that a particular Minister or Ministers +not exceeding three, may be members of Parliament/Oireachtas in addition +to the four members of the Chamber/Dail Eireann above mentioned.</p> + +<p><br /><span class="smcap">Article 51.</span></p> + +<p>The Ministers who are required to be members of the Chamber/Dail Eireann +shall include the President of the Executive Council/Uachtaran and the +Vice-President of the Executive Council/Tanaist.</p> + +<p>The President of the Executive Council shall be the chief of the Executive +Council and shall be appointed on the nomination of the Chamber/Dail, and +the Vice-President of the Executive Council and the other Ministers who +are members of Parliament/Oireachtas shall be appointed on the nomination +of the President of the Executive Council; and he and the Ministers +nominated by him shall retire from office should he fail to be supported +by a majority in the Chamber/Dail, but the President of the Executive +Council and such Ministers shall continue to carry on their duties until +their successors are appointed.</p> + +<p><span class="pagenum"><a name="Page_84" id="Page_84">[Pg 84]</a></span><br /><span class="smcap">Article 52.</span></p> + +<p>Ministers who are not members of the Parliament/Oireachtas shall be +nominated by a Committee of members of the Chamber/Dail Eireann chosen by +a method to be determined by the Chamber/Dail so as to be impartially +representative of the Chamber/Dail. Such Ministers shall be chosen with +due regard to their suitability for office and should as far as possible +be generally representative of the Irish Free State/Saorstat Eireann as a +whole rather than of groups or of parties. Should a nomination not be +acceptable to the Chamber/Dail, the Committee shall continue to propose +names until one is found acceptable.</p> + +<p><br /><span class="smcap">Article 53.</span></p> + +<p>Each Minister not a member of the Parliament/Oireachtas shall be the +responsible head of the Executive Department or Departments as head of +which he has been appointed as aforesaid; Provided that should +arrangements for Functional or Vocational Councils be made by the +Parliament/Oireachtas these Ministers or any of them may, should the +Parliament/Oireachtas so decide, be members of and be nominated on the +advice of such Councils. The term of office of any such Minister shall be +the term of the Chamber/Dail Eireann existing at the time of his +appointment or such other period as may be fixed by law, but he shall +continue in office until his successor shall have been appointed: and no +such Minister shall be removed from Office during his term unless the +proposal to remove him has been previously submitted to a Committee chosen +by a method to be determined by the Chamber/Dail so as to be impartially +representative of the Chamber/Dail and then only if the Committee shall +have reported that such<span class="pagenum"><a name="Page_85" id="Page_85">[Pg 85]</a></span> Minister has been guilty of malfeasance in office +or has not been performing his duties in a competent and satisfactory +manner, or has failed to carry out the lawfully-expressed will of +Parliament/Oireachtas.</p> + +<p><br /><span class="smcap">Article 54.</span></p> + +<p>The Ministers who are members of the Parliament/Oireachtas shall alone be +responsible for all matters relating to external affairs whether policy, +negotiations, or executive acts. Subject to the foregoing provisions, the +Executive Council shall meet and act as a collective authority: Provided, +however, that each Minister shall be individually responsible to the +Chamber/Dail Eireann for the administration of the Department or +Departments of which he is head.</p> + +<p><br /><span class="smcap">Article 55.</span></p> + +<p>Ministers who are not members of the Chamber/Dail Eireann shall by virtue +of their office possess all the rights and privileges of a member of the +Chamber/Dail except the right to vote, and shall, if not members of the +Parliament/Oireachtas, comply with the provisions of Article 17 as if they +were members of the Chamber/Dail, and may be required by the Chamber/Dail +to attend and answer questions.</p> + +<p><br /><span class="smcap">Article 56.</span></p> + +<p>Should the President of the Executive Council die, resign or be +permanently incapacitated, the Vice-President of the Executive Council +shall act in his place until a President of the Executive Council shall be +elected. The Vice-President of the Executive Council shall also act in the +place of the President of the Executive Council during his temporary +absence.</p> + +<p><span class="pagenum"><a name="Page_86" id="Page_86">[Pg 86]</a></span><br /><span class="smcap">Article 57.</span></p> + +<p>The members of the Executive Council shall receive such remuneration as +may from time to time be prescribed by law, but the remuneration of any +Minister shall not be diminished during his term of office.</p> + +<p><br /><span class="smcap">Article 58.</span></p> + +<p>The Representative of the Crown, who shall be styled the Governor-General +of the Irish Free State, shall be appointed in like manner as the +Governor-General of Canada and in accordance with the practice observed in +the making of such appointments. The salary of the Governor-General of the +Irish Free State shall be of the like amount as that now payable to the +Governor-General of the Commonwealth of Australia and shall be charged on +the public funds of the Irish Free State/Saorstat Eireann and suitable +provision shall be made out of those funds for the maintenance of his +official residence and establishment.</p> + +<p><br /><span class="smcap">Article 59.</span></p> + +<p>The Executive Council shall prepare the Budget of receipts and expenditure +of the Irish Free State/Saorstat Eireann for each financial year and shall +present it to the Chamber/Dail Eireann before the close of the previous +financial year.</p> + +<p> <span class="pagenum"><a name="Page_87" id="Page_87">[Pg 87]</a></span></p> +<p class="center">SECTION III.—THE EXECUTIVE.</p> + +<p class="center">B.—<span class="smcap">Financial Control.</span></p> + +<p><span class="smcap">Article 60.</span></p> + +<p>All revenues of the Irish Free State/Saorstat Eireann from whatever source +arising, shall, subject to such exception as may be provided by law, form +one fund, and shall be appropriated for the purposes of the Irish Free +State/Saorstat Eireann in the manner and subject to the charges and +liabilities imposed by law.</p> + +<p><br /><span class="smcap">Article 61.</span></p> + +<p>The Chamber/Dail Eireann shall appoint a Comptroller and Auditor-General +to act on behalf of the Irish Free State/Saorstat Eireann. He shall +control all disbursements and shall audit all accounts of moneys +administered by or under the authority of the Parliament/Oireachtas and +shall report to the Chamber/Dail at stated periods to be determined by +law.</p> + +<p><br /><span class="smcap">Article 62.</span></p> + +<p>The Comptroller and Auditor-General shall not be removed except for stated +misbehaviour or incapacity on resolutions passed by the Chamber/Dail +Eireann and the Senate/Seanad Eireann. Subject to this provision the terms +and conditions of his tenure of office shall be fixed by law. He shall not +be a member of the Parliament/Oireachtas nor shall he hold any other +office or position of emolument.</p> + +<p> <span class="pagenum"><a name="Page_88" id="Page_88">[Pg 88]</a></span></p> +<p class="center">SECTION IV.—THE JUDICIARY.</p> + +<p><span class="smcap">Article 63.</span></p> + +<p>The judicial power of the Irish Free State/Saorstat Eireann shall be +exercised and justice administered in the public Courts established by +Parliament/Oireachtas by judges appointed in manner hereinafter provided. +These Courts shall comprise Courts of First Instance and a Court of Final +Appeal to be called the Supreme Court (Cuirt Uachtarach). The Courts of +First Instance shall include a High Court (Ard Chuirt), invested with full +original jurisdiction in and power to determine all matters and questions +whether of law or fact, civil or criminal, and also Courts of local and +limited jurisdiction with a right of appeal as determined by law.</p> + +<p><br /><span class="smcap">Article 64.</span></p> + +<p>The judicial power of the High Court shall extend to the question of the +validity of any law having regard to the provisions of the Constitution. +In all cases in which such matters shall come into question, the High +Court alone shall exercise original jurisdiction.</p> + +<p><br /><span class="smcap">Article 65.</span></p> + +<p>The Supreme Court of the Irish Free State/Saorstat Eireann 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<span class="pagenum"><a name="Page_89" id="Page_89">[Pg 89]</a></span> 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.</p> + +<p>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.</p> + +<p><br /><span class="smcap">Article 66.</span></p> + +<p>The number of judges, the constitution and organisation of, and +distribution of business and jurisdiction among, the said Courts and +judges, and all matters of procedure shall be as prescribed by the laws +for the time being in force and the regulations made thereunder.</p> + +<p><br /><span class="smcap">Article 67.</span></p> + +<p>The judges of the Supreme Court and of the High Court and of all other +Courts established in pursuance of this Constitution shall be appointed by +the Representative of the Crown on the advice of the Executive Council. +The Judges of the Supreme Court and of the High Court shall not be removed +except for stated misbehaviour or incapacity, and then only by resolutions +passed by both the Chamber/Dail Eireann and the Senate/Seanad Eireann. The +age of retirement, the remuneration and the pension of such judges on +retirement and the declarations to be taken by them on appointment shall +be prescribed by law. Such remuneration may not be diminished during their +continuance in office. The<span class="pagenum"><a name="Page_90" id="Page_90">[Pg 90]</a></span> terms of appointment of the judges of such +other courts as may be created shall be prescribed by law.</p> + +<p><br /><span class="smcap">Article 68.</span></p> + +<p>All judges shall be independent in the exercise of their functions, and +subject only to the Constitution and the law. A judge shall not be +eligible to sit in Parliament/Oireachtas, and shall not hold any other +office or position of emolument.</p> + +<p><br /><span class="smcap">Article 69.</span></p> + +<p>No one shall be tried save in due course of law and extraordinary courts +shall not be established. The jurisdiction of Courts Martial 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 prescribed 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.</p> + +<p><br /><span class="smcap">Article 70.</span></p> + +<p>A member of the armed forces of the Irish Free State/Saorstat Eireann not +on active service shall not be tried by any Court Martial for an offence +cognisable by the Civil Courts.</p> + +<p><br /><span class="smcap">Article 71.</span></p> + +<p>No person shall, save in case of summary jurisdiction prescribed by law +for minor offences, be tried without a jury on any criminal charge.</p> + +<p> <span class="pagenum"><a name="Page_91" id="Page_91">[Pg 91]</a></span></p> +<p class="center">SECTION V.—TRANSITORY PROVISIONS.</p> + +<p><span class="smcap">Article 72.</span></p> + +<p>Subject to this Constitution and to the extent to which they are not +inconsistent therewith, the laws in force in the Irish Free State/<ins class="correction" title="original: Sarorstat">Saorstat</ins> +Eireann at the date of the coming into operation of this Constitution +shall continue to be of full force and effect until the same or any of +them shall have been repealed or amended by enactment of the +Parliament/Oireachtas.</p> + +<p><br /><span class="smcap">Article 73.</span></p> + +<p>Until Courts have been established for the Irish Free State/Saorstat +Eireann in accordance with this Constitution, the Supreme Court of +Judicature, County Courts, Courts of Quarter Sessions and Courts of +Summary Jurisdiction, as at present existing, shall for the time being +continue to exercise the same jurisdiction as heretofore, and any judge or +justice, being a member of any such Court, holding office at the time when +this Constitution comes into operation, shall for the time being continue +to be a member thereof and hold office by the like tenure and upon the +like terms as heretofore, unless, in the case of a judge of the said +Supreme Court or of a County Court, he signifies to the Representative of +the Crown his desire to resign. Any vacancies in any of the said Courts so +continued may be filled by appointment made in like manner as appointments +to judgeships in the Courts established under this Constitution.</p> + +<p>Provided that the provisions of Article 65 as to the decisions of the +Supreme Court established under this Constitution shall apply to decisions +of the Court of Appeal continued by this Article.</p> + +<p><span class="pagenum"><a name="Page_92" id="Page_92">[Pg 92]</a></span><br /><span class="smcap">Article 74.</span></p> + +<p>If any judge of the said Supreme Court of Judicature or of any of the said +County Courts resigns as aforesaid, or if any such judge, on the +establishment of Courts under this Constitution, is not with his consent +appointed to be a judge of any such Court, he shall, for the purpose of +Article 10 of the Scheduled Treaty, be treated as if he had retired in +consequence of the change of Government effected in pursuance of the said +Treaty, but the rights so conferred shall be without prejudice to any +rights or claims that he may have against the British Government.</p> + +<p><br /><span class="smcap">Article 75.</span></p> + +<p>Every existing Officer of the Provisional Government who has been +transferred to that Government from the British Government and every +existing Officer of the British Government, who, at the date of the coming +into operation of this Constitution, is engaged or employed in the +administration of public services which on that date become public +services of the Irish Free State/Saorstat Eireann (except those whose +services have been lent by the British Government to the Provisional +Government) shall on that date be transferred to and become an Officer of +the Irish Free State/Saorstat Eireann and shall hold office by a tenure +corresponding to his previous tenure, and shall be entitled to the benefit +of Article 10 of the Scheduled Treaty.</p> + +<p><br /><span class="smcap">Article 76.</span></p> + +<p>As respects departmental property, assets, rights, and liabilities, the +Government of the Irish Free State/Saorstat Eireann shall be regarded as +the<span class="pagenum"><a name="Page_93" id="Page_93">[Pg 93]</a></span> successors of the Provisional Government, and, to the extent to which +functions of any department of the British Government become functions of +the Government of the Irish Free State/Saorstat Eireann, as the successors +of such department of the British Government.</p> + +<p><br /><span class="smcap">Article 77.</span></p> + +<p>After the date on which this Constitution comes into operation the House +of the Parliament elected in pursuance of the Irish Free State (Agreement) +Act, 1922 (being the constituent assembly for the settlement of this +Constitution), may, for a period not exceeding one year from that date, +but subject to compliance by the Members thereof with the provisions of +Article 17 of this Constitution, exercise all the powers and authorities +conferred on the Chamber/Dail Eireann by this Constitution, and the first +election for the Chamber/Dail Eireann under Articles 26 and 27 hereof +shall take place as soon as possible after the expiration of such period.</p> + +<p><br /><span class="smcap">Article 78.</span></p> + +<p>The first Senate/Seanad Eireann shall be constituted immediately after the +coming into operation of this Constitution in the manner following, that +is to say:—</p> + +<div class="blockquot"><p class="hang">(a) The first Senate/Seanad shall consist of two members elected by +each of the Universities in the Irish Free State/Saorstat Eireann and +fifty-six other members, of whom twenty-eight shall be elected and +twenty-eight shall be nominated.</p> +<p><span class="pagenum"><a name="Page_94" id="Page_94">[Pg 94]</a></span></p> +<p class="hang">(b) The twenty-eight nominated members of the Senate/Seanad shall be +nominated by the President of the Executive Council who shall, in +making such nominations, have special regard to the providing of +representation for groups or parties not then adequately represented +in the Chamber/Dail.</p> + +<p class="hang">(c) The twenty-eight elected members of the Senate/Seanad shall be +elected by the Chamber/Dail Eireann voting on principles of +Proportional Representation.</p> + +<p class="hang">(d) Of the University members one member elected by each University, +to be elected by lot, shall hold office for six years, the remaining +University members shall hold office for the full period of twelve +years.</p> + +<p class="hang">(e) Of the twenty-eight nominated members, fourteen, to be selected +by lot, shall hold office for the full period of twelve years, the +remaining fourteen shall hold office for the period of six years.</p> + +<p class="hang">(f) Of the twenty-eight elected members the first fourteen elected +shall hold office for the period of nine years, the remaining +fourteen shall hold office for the period of three years.</p> + +<p class="hang">(g) At the termination of the period of office of any such members, +members shall be elected in their place in manner provided by Article +31.</p> + +<p><span class="pagenum"><a name="Page_95" id="Page_95">[Pg 95]</a></span></p> +<p class="hang">(h) Casual vacancies shall be filled in manner provided by Article 33.</p> + +<p class="hang">(i) For the purpose of the election of members for any University +under this Article, all persons whose names appear on the register +for the University in force at the date of the coming into operation +of this Constitution shall, notwithstanding anything in Article 14, +be entitled to vote.</p></div> + +<p><br /><span class="smcap">Article 79.</span></p> + +<p>The passing and adoption of this Constitution by the Constituent Assembly +and the British Parliament shall be announced as soon as may be, and not +later than the sixth day of December, Nineteen hundred and twenty-two, by +Proclamation of His Majesty and this Constitution shall come into +operation on the issue of such Proclamation.</p> + + +<p> </p><p> </p> +<hr style="width: 50%;" /> +<p><span class="pagenum"><a name="Page_96" id="Page_96">[Pg 96]</a></span></p> +<h2>SCHEDULE</h2> + +<p class="center"><span class="smcap">Articles of Agreement for a Treaty between</span><br /><span class="smcap">Great Britain and Ireland, +dated the Sixth</span><br /><span class="smcap">day of December, Nineteen Hundred</span><br /><span class="smcap">and Twenty-one.</span></p> + +<p>1. Ireland shall have the same constitutional status in the Community of +Nations known as the British Empire as the Dominion of Canada, the +Commonwealth of Australia, the Dominion of New Zealand, and the Union of +South Africa, with a Parliament having powers to make laws for the peace +order and good government of Ireland and an Executive responsible to that +Parliament, and shall be styled and known as the Irish Free State.</p> + +<p>2. Subject to the provisions hereinafter set out the position of the Irish +Free State in relation to the Imperial Parliament and Government and +otherwise shall be that of the Dominion of Canada, and the law, practice +and constitutional usage governing the relationship of the Crown or the +representative of the Crown and of the Imperial Parliament to the Dominion +of Canada shall govern their relationship to the Irish Free State.</p> + +<p>3. The representative of the Crown in Ireland shall be appointed in like +manner as the Governor-General of Canada, and in accordance with the +practice observed in the making of such appointments.</p> + +<p>4. The oath to be taken by Members of the Parliament of the Irish Free +State shall be in the following form:—</p> + +<div class="blockquot"><p>I ...... do solemnly swear true faith and allegiance to the +Constitution of the Irish Free State as by law established and that I +will be faithful to H.M. King George V., his heirs and successors by +law in virtue of the common citizenship of Ireland with Great Britain +and her adherence to and membership of the group of nations forming +the British Commonwealth of Nations. +</p></div> + +<p>5. The Irish Free State shall assume liability for the service of the +Public Debt of the United Kingdom as existing at the date hereof and +towards the payment of war pensions as existing at that date in such +proportion as may be fair and equitable, having regard to any just claims +on the part of Ireland by way of set off or counterclaim, the amount of +such sums being determined in default of agreement by the arbitration of +one or more independent persons being citizens of the British Empire.</p> + +<p>6. Until an arrangement has been made between the British and Irish +Governments whereby the Irish Free State undertakes her own coastal +defence, the defence by sea of Great Britain and Ireland shall be +undertaken by His Majesty’s Imperial Forces, but this shall not prevent +the construction or maintenance by the Government of the Irish Free State +of such vessels as are necessary for the protection of the Revenue or the +Fisheries.</p> + +<p><span class="pagenum"><a name="Page_97" id="Page_97">[Pg 97]</a></span>The foregoing provisions of this article shall be reviewed at a conference +of Representatives of the British and Irish Governments to be held at the +expiration of five years from the date hereof with a view to the +undertaking by Ireland of a share in her own coastal defence.</p> + +<p>7. The Government of the Irish Free State shall afford to His Majesty’s +Imperial Forces:—</p> + +<div class="blockquot"><p>(<i>a</i>) In time of peace such harbour and other facilities as are +indicated in the Annex hereto, or such other facilities as may from +time to time be agreed between the British Government and the +Government of the Irish Free State; and</p> + +<p>(<i>b</i>) In time of war or of strained relations with a Foreign Power +such harbour and other facilities as the British Government may +require for the purposes of such defence as aforesaid.</p></div> + +<p>8. With a view to securing the observance of the principle of +international limitation of armaments, if the Government of the Irish Free +State establishes and maintains a military defence force, the +establishments thereof shall not exceed in size such proportion of the +military establishments maintained in Great Britain as that which the +population of Ireland bears to the population of Great Britain.</p> + +<p>9. The ports of Great Britain and the Irish Free State shall be freely +open to the ships of the other country on payment of the customary port +and other dues.</p> + +<p>10. The Government of the Irish Free State agrees to pay fair compensation +on terms not less favourable than those accorded by the Act of 1920 to +judges, officials, members of police forces, and other public servants who +are discharged by it or who retire in consequence of the change of +government effected in pursuance hereof.</p> + +<p>Provided that this agreement shall not apply to members of the Auxiliary +Police Force or to persons recruited in Great Britain for the Royal Irish +Constabulary during the two years next preceding the date hereof. The +British Government will assume responsibility for such compensation or +pensions as may be payable to any of these excepted persons.</p> + +<p>11. Until the expiration of one month from the passing of the Act of +Parliament for the ratification of this instrument, the powers of the +Parliament and the Government of the Irish Free State shall not be +exercisable as respects Northern Ireland, and the provisions of the +Government of Ireland Act, 1920, shall, so far as they relate to Northern +Ireland, remain of full force and effect, and no election shall be held +for the return of members to serve in the Parliament of the Irish Free +State for constituencies in Northern Ireland, unless a resolution is +passed by both Houses of the Parliament of Northern Ireland in favour of +the holding of such elections before the end of the said month.</p> + +<p>12. If before the expiration of the said month, an address is presented to +His Majesty by both Houses of the Parliament of Northern Ireland to that +effect, the powers of the Parliament and Government of the Irish Free +State shall no longer extend to<span class="pagenum"><a name="Page_98" id="Page_98">[Pg 98]</a></span> Northern Ireland, and the provisions of +the Government of Ireland Act, 1920 (including those relating to the +Council of Ireland), shall so far as they relate to Northern Ireland, +continue to be of full force and effect, and this instrument shall have +effect subject to the necessary modifications.</p> + +<p>Provided that if such an address is so presented a Commission consisting +of three persons, one to be appointed by the Government of the Irish Free +State, one to be appointed by the Government of Northern Ireland and one +who shall be Chairman to be appointed by the British Government shall +determine in accordance with the wishes of the inhabitants, so far as may +be compatible with economic and geographic conditions the boundaries +between Northern Ireland and the rest of Ireland, and for the purposes of +the Government of Ireland Act, 1920, and of this instrument, the boundary +of Northern Ireland shall be such as may be determined by such Commission.</p> + +<p>13. For the purpose of the last foregoing Article, the powers of the +Parliament of Southern Ireland under the Government of Ireland Act, 1920, +to elect members of the Council of Ireland shall after the Parliament of +the Irish Free State is constituted be exercised by that Parliament.</p> + +<p>14. After the expiration of the said month, if no such address as is +mentioned in Article 12 hereof is presented, the Parliament and Government +of Northern Ireland shall continue to exercise as respects Northern +Ireland the powers conferred on them by the Government of Ireland Act, +1920, but the Parliament and Government of the Irish Free State shall in +Northern Ireland have in relation to matters in respect of which the +Parliament of Northern Ireland has not power to make laws under that Act +(including matters which under the said Act are within the jurisdiction of +the Council of Ireland) the same powers as in the rest of Ireland subject +to such other provisions as may be agreed in manner hereinafter appearing.</p> + +<p>15. At any time after the date hereof the Government of Northern Ireland +and the provisional Government of Southern Ireland hereinafter constituted +may meet for the purpose of discussing the provisions subject to which the +last foregoing Article is to operate in the event of no such address as is +therein mentioned being presented and those provisions may include:—</p> + +<div class="blockquot"><p class="hang">(<i>a</i>) Safeguards with regard to patronage in Northern Ireland.</p> + +<p class="hang">(<i>b</i>) Safeguards with regard to the collection of revenue in Northern +Ireland.</p> + +<p class="hang">(<i>c</i>) Safeguards with regard to import and export duties affecting +the trade or industry of Northern Ireland.</p> + +<p class="hang">(<i>d</i>) Safeguards for minorities in Northern Ireland.</p> + +<p class="hang">(<i>e</i>) The settlement of the financial relations between Northern +Ireland and the Irish Free State.</p> + +<p class="hang">(<i>f</i>) The establishment and powers of a local militia in Northern +Ireland and the relation of the Defence Forces of the Irish Free +State and of Northern Ireland respectively.</p></div> + +<p>and if at any such meeting provisions are agreed to, the same shall have +effect as if they were included amongst the provisions subject to which +the powers of the Parliament and Government of<span class="pagenum"><a name="Page_99" id="Page_99">[Pg 99]</a></span> the Irish Free State are +to be exercisable in Northern Ireland under Article 14 hereof.</p> + +<p>16. Neither the Parliament of the Irish Free State nor the Parliament of +Northern Ireland shall make any law so as either directly or indirectly to +endow any religion or prohibit or restrict the free exercise thereof or +give any preference or impose any disability on account of religious +belief or religious status or affect prejudicially the right of any child +to attend a school receiving public money without attending the religious +instruction at the school or make any discrimination as respects State aid +between schools under the management of different religious denominations +or divert from any religious denomination or any educational institution +any of its property except for public utility purposes and on payment of +compensation.</p> + +<p>17. By way of provisional arrangement for the administration of Southern +Ireland during the interval which must elapse between the date hereof and +the constitution of a Parliament and Government of the Irish Free State in +accordance therewith, steps shall be taken forthwith for summoning a +meeting of members of Parliament elected for constituencies in Southern +Ireland since the passing of the Government of Ireland Act, 1920, and for +constituting a provisional Government, and the British Government shall +take the steps necessary to transfer to such provisional Government the +powers and machinery requisite for the discharge of its duties, provided +that every member of such provisional Government shall have signified in +writing his or her acceptance of this instrument. But this arrangement +shall not continue in force beyond the expiration of twelve months from +the date hereof.</p> + +<p>18. This instrument shall be submitted forthwith by His Majesty’s +Government for the approval of Parliament and by the Irish signatories to +a meeting summoned for the purpose of the members elected to sit in the +House of Commons of Southern Ireland, and if approved shall be ratified by +the necessary legislation.</p> + +<p>(Signed)</p> +<table border="0" cellpadding="0" cellspacing="5" summary="signatures"> +<tr><td>On behalf of the British Delegation,</td> + <td><span class="spacer"> </span></td><td>On behalf of the Irish Delegation,</td></tr> +<tr><td><span class="smcap">D. Lloyd George.</span></td> + <td> </td><td><span class="smcap">Art O Griobhtha.</span></td></tr> +<tr><td><span class="smcap">Austen Chamberlain.</span></td> + <td> </td><td><span style="margin-left: 1em;">(<span class="smcap">Arthur Griffith</span>).</span></td></tr> +<tr><td><span class="smcap">Birkenhead.</span></td> + <td> </td><td><span class="smcap">Michal O Coileain.</span></td></tr> +<tr><td><span class="smcap">Winston S. Churchill.</span></td> + <td> </td><td><span class="smcap">Riobard Bartun.</span></td></tr> +<tr><td><span class="smcap">L. Worthington-evans.</span></td> + <td> </td><td><span class="smcap">E. S. O Dugain.</span></td></tr> +<tr><td><span class="smcap">Hamar Greenwood.</span></td> + <td> </td><td><span class="smcap">Seorsa Ghabhain Ui</span></td></tr> +<tr><td><span class="smcap">Gordon Hewart.</span></td> + <td> </td><td><span style="margin-left: 1em;"><span class="smcap">Dhubhthaigh.</span></span></td></tr></table> + +<p>6th December, 1921.</p> + +<p> </p><p> </p> +<hr style="width: 20%;" /> +<p class="center">ANNEX.</p> + +<p>1. The following are the specific facilities required.</p> + +<div class="blockquot"> +<p class="center"><span class="smcap">Dockyard Port at Berehaven.</span></p> + +<p>(<i>a</i>) Admiralty property and rights to be retained as at the date hereof. +Harbour defences to remain in charge of British care and maintenance +parties.</p> + +<p class="center"><span class="smcap">Queenstown.</span></p> + +<p>(<i>b</i>) Harbour defences to remain in charge of British care and maintenance +parties. Certain mooring buoys to be retained for use of His Majesty’s +ships.</p> + +<p class="center"><span class="pagenum"><a name="Page_100" id="Page_100">[Pg 100]</a></span><span class="smcap">Belfast Lough.</span></p> + +<p>(<i>c</i>) Harbour defences to remain in charge of British care and maintenance +parties.</p> + +<p class="center"><span class="smcap">Lough Swilly.</span></p> + +<p>(<i>d</i>) Harbour defences to remain in charge of British care and maintenance +parties.</p> + +<p class="center"><span class="smcap">Aviation.</span></p> + +<p>(<i>e</i>) Facilities in the neighbourhood of the above ports for coastal +defence by air.</p> + +<p class="center"><span class="smcap">Oil Fuel Storage.</span></p> + +<p> +(<i>f</i>) Haulbowline - {To be offered for sale to commercial companies under guarantee that<br /> +<span style="margin-left: 1.2em;">Rathmullen - {purchasers shall maintain a certain minimum stock for Admiralty purposes.</span></p> +</div> + +<p>2. A convention shall be made between the British Government and the +Government of the Irish Free State to give effect to the following +conditions:—</p> + +<div class="blockquot"><p class="hang">(<i>a</i>) That submarine cables shall not be landed or wireless stations +for communication with places outside Ireland be established except +by agreement with the British Government; that the existing cable +landing rights and wireless concessions shall not be withdrawn except +by agreement with the British Government; and that the British +Government shall be entitled to land additional submarine cables or +establish additional wireless stations for communication with places +outside Ireland:</p> + +<p class="hang">(<i>b</i>) That lighthouses, buoys, beacons, and any navigational marks or +navigational aids shall be maintained by the Government of the Irish +Free State as at the date hereof and shall not be removed or added to +except by agreement with the British Government:</p> + +<p class="hang">(<i>c</i>) The war signal stations shall be closed down and left in charge +of care and maintenance parties, the Government of the Irish Free +State being offered the option of taking them over and working them +for commercial purposes subject to Admiralty inspection and +guaranteeing the upkeep of existing telegraphic communication +therewith.</p></div> + +<p>3. A Convention shall be made between the same Governments for the +regulation of Civil Communication by Air.</p> + +<table border="0" cellpadding="0" cellspacing="5" summary="initials"> +<tr><td>D. L. G.</td><td><span class="spacer"> </span></td><td><span class="spacer"> </span></td><td><span class="spacer"> </span></td><td>M. O. C.</td></tr> +<tr><td>A. C.</td></tr> +<tr><td>B.</td></tr> +<tr><td>W. S. C.</td></tr></table> + + + + + + + + + + + + +<pre> + + + + + +End of Project Gutenberg's The Irish Constitution, by Darrell Figgis + +*** END OF THIS PROJECT GUTENBERG EBOOK THE IRISH CONSTITUTION *** + +***** This file should be named 32612-h.htm or 32612-h.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/3/2/6/1/32612/ + +Produced by Brian Foley and the Online Distributed +Proofreading Team at https://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive/American Libraries.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Irish Constitution + Explained by Darrell Figgis + +Author: Darrell Figgis + +Release Date: May 30, 2010 [EBook #32612] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK THE IRISH CONSTITUTION *** + + + + +Produced by Brian Foley and the Online Distributed +Proofreading Team at https://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive/American Libraries.) + + + + + + + + + +THE IRISH CONSTITUTION + + + + +[Illustration: THE CONSTITUTION COMMITTEE IN SESSION. + +_From left to right_:--R. J. P. MORTISHED (_Secretary_), JOHN O'BYRNE, +B.L.; C. J. FRANCE, DARRELL FIGGIS (_Acting Chairman_), E. M. STEPHENS, +B.L. (_Secretary_); P. A. O'TOOLE, B.L. (_Secretary_); JAMES MACNEILL, +HUGH KENNEDY, K.C.; JAMES MURNAHAN, B.L.; JAMES DOUGLAS. (PROF. ALFRED +O'RAHILLY and KEVIN O'SHIEL, B.L. were absent from the Session).] + + + + + THE + IRISH CONSTITUTION + + + EXPLAINED + BY + DARRELL FIGGIS + + + MELLIFONT PRESS, LTD. + KILDARE HOUSE, + WESTMORELAND STREET, DUBLIN + + + + I INSCRIBE THIS BOOK + TO MY FRIEND + ARTHUR GRIFFITH + + + + +CONTENTS + + + PAGE + + INTRODUCTION 5 + + EXPLANATION 15 + + DRAFT CONSTITUTION 63 + + ARTICLES OF AGREEMENT FOR A TREATY BETWEEN GREAT BRITAIN AND IRELAND 96 + + + + +Introduction + +IRELAND AND A COMMUNITY OF NATIONS. + + +The articles that are now gathered together in this little book were first +published in the _Irish Independent_ at the invitation of its Editor. They +were not written for publication in book-form; and they naturally suffer, +in their present form, from the conditions that were first imposed on +them, conditions proper to their original setting. With the exception of +two of them, they were written rather in a spirit of exposition than in a +spirit of analysis and criticism; and this intention was only departed +from because it seemed that the two matters so dealt with departed, with +differing degrees of flagrancy, from the original purpose of the +Constitution, which was to make the mechanism of Government malleable at +every stage to the will of the people of Ireland. + +Whether one believes ardently in the faith that the will of a people +should under all circumstances prevail, and that the forms of Government +should at all times be submissive to that will, is indifferent. That is a +question for the individual, with which I do not presume to interfere. One +need only believe with l'Abbe Coignard that "a people is not susceptible +to more than one form of government at the same period," to believe, +further, that if one asserts the derivation of all power and authority +from the popular will, if that will be once fairly and honestly +ascertained, it then follows that the will of the people is sufficient to +itself, and that all forms of government must be made malleable to it. On +that supposition, all frustrations and obstructions of, and impediments +to, the constant exercise of that will must of necessity be cogs in the +machinery of government; and for that reason in two articles I turned from +exposition to criticism. + +Apart from these two matters, I held to the essentials of exposition, +without turning aside to criticism of details; and I based that exposition +on the original plan and structure, which are preserved in the present +draft, of the Constitution. It is right that the Fundamental Law of a +State should be fully discussed and debated before it be enacted; and when +that debate occurs criticism will find details enough to fasten upon. But +at the present moment it is the essential plan that matters--not the +feudal trumperies with which it is adorned, like stage jewels stuck upon a +comely and decent garment, marring its simple truth, but not otherwise +injuring its effectiveness for its purpose. And it was because it seemed +to me that these two matters departed from the spirit of this essential +plan, by placing important parts of the Judiciary and the Executive beyond +the ready control of the people or the people's representatives, that I +dealt with them as I did. Apart from them I kept away from criticism. + +Similarly I did not deal with certain matters anterior to the +Constitution, in the light of which the Constitution can alone be +understood. They lay out of sight of these articles, though they were +essential to them, since they brought the Constitution, in its present +form, into being. Chief among these is the historical fact that Ireland +has, by Treaty, confirmed by the act of her Legislature, consented to +enter a Community of Nations known at the moment as the British +Commonwealth of Nations. We may disagree with this act; but it is an +international fact; and without it the Constitution would not be what it +now is. This factor in the result is therefore worth brief attention, by +way of introduction to the present publication of these articles. + +To anyone familiar with the constitutions of the nations that now comprise +the Commonwealth of Nations the present Constitution will speak in an +unaccustomed language. It is unlike any of them. It has clearly been +planned as the result of a distinct and separate conception. The causes of +the difference are, however, not very difficult to discover, and once seen +are plain to understand. They constitute what may prove to be an +international factor of the very first importance. + +These causes fall under, broadly, two heads. The first is that Ireland is +not what these other nations were when their Constitutions were first +framed. Nor is Ireland, indeed, what they are now. Canada, for example, +and Australia, are English Colonies, first established by white men in a +coloured population. The greater part of these white men draw their +traditions and inspiration, their habits of thought and habits of public +conduct, from the rootstock of the English nation. They look to England as +their mother-country. But Ireland is an ancient nation and a +mother-country in her own right. She has herself peopled the earth with +her children. Her empire is as far-flung as England's. And if it is not +based on military might, but linked by ties of memory, pride and love, it +has not therefore proved itself any the less powerful internationally at +times of crisis and danger for the mother at home. + +Moreover, it was she who, when in the eighth and ninth centuries Europe +fell into decay after the barbarian inroads, re-established and rebuilt +European civilisation, sending her scholars with her books into every part +of the continent of ruin. It was her missionaries, indeed, who first +brought Christianity to England, and her scholars who taught the first +English poet his letters. Before the name of England was heard, the name +of Ireland was known and respected. She possessed an intricate, if +uncompleted national polity when the neighbouring island was peopled by +distinct and scattered populations of conquerors. By virtue of these +ancient dignities she was accorded international rank long after England +had risen to nationhood, and when invasion had brought her national polity +to ruin and silenced the voice of poet and scholar. + +These are not matters merely of the past. If they were, they could be +dismissed to the antiquity in which they would lie. But they live in the +consciousness of a nation to-day; and therefore to-day they are a factor, +to neglect which would be to neglect a prime element without which neither +the present nor the future may be understood. Only the sentimentalist +waves out of sight considerations that are unpleasant to him. The realist +faces every element of being, conscious or unconscious; for he knows that +only out of the sum of all those elements can life proceed, or creation +begin. + +For these ancient dignities have passed into the consciousness of every +sort of Irishmen. It was, for example, Molyneux who, in his _Case of +Ireland Stated_ at the end of the 17th century, first among modern Irish +writers based an argument upon them. Molyneux was an English colonist. In +the wars of Tirconnell and Patrick Sarsfield he had fled to England, +returning only when Ginkel the Dutchman had won the field for his master, +now monarch of England. He regarded the ancient nation with aversion. Yet +when the English Parliament harassed what he proudly conceived to be the +ancient liberty of Ireland, he stated the case of that nation, stated it +as his case, in a public document of historic moment; and the English +Parliament caused his book to be burned by the public hangman. + +The sorest part of his book was his reference to the Council of Constance +of 1416. This Council may rightly claim to be the first of modern +international congresses. At it a certain question of precedence had +arisen between France and England, which was referred to the Court of +Heralds. In the judgment which was given it was stated as an international +ruling that Europe was first constituted from four nations. These nations, +in the order of their precedence, were Rome, Byzantium, Ireland and Spain. +And Molyneux, the English colonist, proudly referred to this ruling, and +based a great part of his case upon it. + +The breed of Molyneux is alive to-day. Political differences have divided +it from the ancient race which furnished its arguments. But the pride is +the same; the sense of possession is essentially the same, obscured though +it may have been by the causes of difference; and when a new alignment of +political parties has blent the two points of view into one outlook, and +made the whole consciousness to merge in one, the living factor of ancient +nationhood will arise with a new strength. + +That strength will prove a factor for the future. The cause of it is +registered in the present draft Constitution; and it is the first of the +two causes that make it unlike those of the other nations with which +Ireland is now confederate and co-equal. The second cause is curiously +like, and yet curiously unlike, to the first. It is also derived from the +fact of nationhood, but from the achievement of nationhood at the other +end of history. + +For the other nations of the Commonwealth are themselves not now what they +were when their constitutions were first framed. They were then but +colonies, on whom their mother-country was pleased to bestow +constitutions--and if the pleasure was not always the most noticeable part +of the bestowal, the legal smile did not diminish the fact of the gift. In +their constitutions, therefore, the apron-strings are very much in +evidence. It is clear from them that the mother did not propose to let the +children wander far from her control, even though she permitted them to +walk with their own feet. Not only in the actual provisions of these +constitutions, but in their very conception and plan, drawn exactly +according to English methods and from English experience, it is evident +that a state of perpetual tutelage was imagined for the peoples to whom +they were given. + +That has now changed. The colonies have come to be nations, very jealous +of their nationhood. They have grown with experience, have moved onward +with time, and it would go hard with anyone who attempted to remind them +of what, nevertheless, their constitutions are a continual reminder. The +consequence is that the provisions of these constitutions cannot be +enforced since they do not square with experience. They encumber the +documents which contain them as so much dead timber. They are sometimes +carelessly, and more often dishonestly, described as legal fictions. But +they are not legal fictions. They are dead letters--dead timber which a +wise woodman would soon hew away. Life and experience have outgrown them; +and this growth finds expression--if, unfortunately, not the full +expression that might at one time have seemed possible--in the present +draft Constitution. For under her Treaty with England Ireland agreed to +take equal rank in the Community of Nations with the other members of it. +Specifically she accepted the "law, practice and constitutional usage" of +Canada; and that constitutional usage implies, not the dead timber of the +Canadian Constitution, but the living tissue of her constitutional +experience. + +These two causes, then, have joined together to produce the draft of the +Irish Constitution. From them was created the original plan of the +Constitution, according to which Ireland takes her place, not only +generally among all nations in virtue of her ancient right, but specially +in a certain confederacy of nations in virtue of a Treaty of Peace, signed +between her plenipotentiaries and England's plenipotentiaries, and +approved by both legislatures. To the most casual glance, it is indeed a +most modern and forward-looking document; yet it draws from so ancient a +fountain-head. And the conjunction of these two may prove of searching +value, if rightly used, to Ireland's influence in the world--provided that +there be peace at home, without which a nation is nought. That influence +may not be of the same kind as one had hoped before the Treaty of Peace +was signed. But even if it be not of the same kind, its measure need not +be less. It cannot be so immediate; and that is loss; but it may with +wisdom and firmness prove ultimately to be more extensive. Whatever the +means, the end remains the same; and that end is the contribution in the +comity of nations of the fruits of personality--without which neither men +nor nations can plead a justification for life. + +For when a nation such as Ireland joins a confederacy so composed, she by +the mere fact of her addition transfigures the whole. This is not a +fanciful figure of speech. It is a literal description of what has already +occurred. In the case of no other nation of the Community, for example, +has its advent been signalled by an International Treaty. That, in itself, +is a transfiguration of the whole. Similarly, other nations of the +Community had protested the co-equality of each and all; but the +protestation had remained a protestation until it was formally declared +for each and all by the claim made by and recognised for Ireland. + +So it has proved in the very case of this Constitution. The full height of +nationhood is the recognition of sovereignty; and the completest act of +sovereignty of which a nation may be capable is to confer its Constitution +on itself. With the exception of Great Britain, none of the other members +of the Community were, when their constitutions were enacted, capable of +this. Each of them received its Constitution as bestowed, not by the Act +of its own Legislature, but by the Act of a suzerain Legislature. And that +shortness of national stature remained until it was removed by the +addition of Ireland to the Community. For Ireland will receive her +Constitution by the Act of her own Constituent Assembly, not by the Act of +any suzerain Legislature. Whether the Constitution be or be not adopted by +any other assembly neither gives nor detracts from the national authority +it will possess. If it be so adopted, it will be adopted, not as giving it +authority, but as the completing Act of ratifying the Treaty. That is to +say, it will be adopted by the Parliament of Great Britain as concluding +the interest of that Parliament in the international bargain of the +Treaty; and it will be passed and prescribed by the Irish Assembly as +giving it full force and effect in Ireland. And that is a full sovereign +act. But, since all the members of the Community are declared to be +co-equal, the advent of Ireland, therefore, has given the recognition of +sovereignty to them all, and raised each to the full height of nationhood. + +The consequences of this are at the moment difficult to foresee fully; but +they are consequences that the addition of Ireland to the Community has +created, though in the fullness of time they were ready for her advent. It +is certain that they will reach far and strike deep, not only within the +Community, but towards other nations, not members of the Community. +Already as between the six full members of the Community the thought of +Empire belongs to the past; and the word and feudal trappings will follow +the thought. Indeed, though the foolish trappings remain, in the text of +both the Treaty and the Constitution the word has already begun to be +supplanted by the word Community. And though it be true that words are +only words, it is equally true that words are the parasites of thought, +and cling to the mind long after their original uses are forgotten. To +cause the relinquishment of an ancient word is itself a liberal +accomplishment of no mean sort, as psychologists know; and none can say +where new conceptions will not lead when once the barrier of words has +been broken down. + +These are, however, considerations for the future; and the future is only +for those who are worthy of it--and not always even for such. Already a +considerable change has been wrought; and that change is registered with +all its faults in the present draft Constitution. The nation that caused +the change is the same nation still, in spite of sad scattering of its +national strength. It is still an ancient nation: not a colony: never a +colony: deeply conscious of its historic heirlooms and prescriptive +dignities. Ireland is still a mother-country, fully resolved to employ her +empire of memory and love for the purposes which she and it judge worthy. +Her place and power in the Community will prove to be of no mean degree, +and of no small meaning for the nations outside that Community, as well +for the peoples and nations within it, if she rally her strength around +her and prove worthy of her destiny. When she shall have conferred a +Constitution upon herself, within the limits of her contractual obligation +in the Treaty, she will not have foresworn her heritage (unless she elect +to do so); she will not have diminished her strength (unless she choose to +dissipate it); but she will be able by a persistent purpose, of which she +has already given her pledges, to contribute in the future as she +contributed in the past, with a security that has not been allowed her for +many centuries, to the benefit of nations. And it is to this end I +dedicate this little book. + + + + +The Irish Constitution + + +I. + +WHAT IS A CONSTITUTION? + +During the early days of the second French Republic a customer entered a +bookseller's and asked: "Have you a copy of the French Constitution?" "We +do not," the bookseller politely replied, "deal in periodical literature." + +Now, to any student of history such a story is a sure indication of the +time of which it is told. He need not inquire to know that the time was +one of revolution, change, and unsettlement. He also knows the mind of the +people of that time, for insecure conditions beget a nervous, restless +fear. And these things are significant. They reveal a quality of +constitution-making that is not always, or easily, remembered. For +whatever changes may proceed in legislation--however many and rapid they +be--as long as the Constitution, written or unwritten, remains intact, the +State at least is stable and its foundations are secure. + +Plainly, therefore, nothing should be written into a Constitution that is +of a temporary, experimental, or questionable nature, or which should fall +to the lot of ordinary law-making and the changing convenience of +practice. A Constitution is that which is permanent, as far as anything in +this world may be permanent. Even to amend it, or add to it, requires in +all countries (except England, where the Constitution has not taken a +written form) a procedure quite different from that of ordinary +legislation. To change it, or recast it, requires a revolution. Such a +revolution may not be accompanied by bloodshedding, or it may, but it is +certainly accompanied by insecurity and unsettlement. + +It should, therefore, be the business of constitution-makers to prescribe +only what to them is fundamental and irrefutable; to lay down the secure +foundations of their State; and to leave all other matters to the +experience of the nation, without seeking to shackle that experience by +provisions that time may not commend. Otherwise, a convulsion may be +necessary to get done what ordinary legislation could have accomplished +without affecting the stability of the State. + +This, then, is the first definition of a Constitution, that it contains +the Fundamental Law of a State, and only the Fundamental Law. In England +there is no such thing as a Fundamental Law. It is claimed by English +constitutional lawyers that this is because Parliament is sovereign; but +the historical truth is that in England Parliament exercises a sovereignty +in fact which the King is supposed to exercise in theory; and any attempt +to make the theory square with the fact by the writing of a Fundamental +Law would lead, perhaps, to a surprising situation. + +Yet in England certain fundamental rights are recognised, with which +Parliament would not lightly tamper; and these amount in effect to a +Fundamental Law, holding a higher rank than ordinary laws. In practically +all other countries such rights are set forth in a document, different +from all other legal documents, inasmuch as unless these other documents +observe the conditions required in the first, and do not conflict with its +provisions, they are null and void. In both sets of documents the laws of +the realm are to be found; but the two sets of laws are of different +sorts. One is fundamental and permanent; the other is by contrast casual +and changeable. + +This, then, is the second definition of a Constitution, not only that it +contains the fundamental law of a State, but that it prescribes the manner +in which all other laws must be made, and put limits and restrictions on +all other law-making. In the American phrase, it is a "Frame of +Government." + +In English the words Constitution and Legislation do not carry on their +face the relation of one to the other, and the distinction between them. +In Irish the case is different. In Irish the word for Legislation is +_Reacht_, and the word for Constitution is _Bunreacht_--fixed and +foundation legislation. But even the distinction so simply carried on the +face of these words does not complete the relation of one to the other. +For that relation is precise; and consists in the fact that all laws +comprising the _Reacht_ must be built upon the foundation of the +_Bunreacht_, and must be contained within the fixed limits of the +_Bunreacht_. The moment they attempt to build elsewhere, or go outside +those limits, that moment they cease to be binding on any citizen; and all +citizens may claim the protection of the courts of law against them. + +From this follows the third definition of a Constitution, which is that it +contains the highest and completest sovereign act of a nation. A nation +may confer a Constitution on itself, and that Constitution may contain no +declaration that the people are sovereign; but the fact that the nation +did so make their own Constitution is itself a declaration of sovereignty. +Declarations of sovereignty in the body of a Constitution may be very +wise; and they are always pleasant; but they are not necessary. + +Similarly, a nation may make a Constitution for itself, and in that +Constitution confer the chief executive authority on a person to be known +as a king; and that person may be known in name as a sovereign; but the +fact that he derives his power from the Constitution is evidence that, not +he, but the people, are sovereign. His is only a sovereign name; theirs is +the sovereign reality. + +Such Constitutions were made in 1814 by Norway, in 1830 by Belgium, and +only last year by "Jugo-Slavia." In the last case the kingly line already +existed before the Constitution was framed, and an oath was prescribed in +it, according to which the King swore "to maintain the Constitution +intact." In the first two cases the kingly lines were not chosen until the +Constitutions had been framed, when the chosen dynasties stepped into the +places appointed for them, and carried out the functions defined for them. +In each case, however, the authority of the king sprang, not from the +divine right of kings, but from the divine right of the people, as set +forth in the sovereign act of giving themselves a Constitution. + +How different the power of kings such as these from the power of the +French monarch who in the 18th century declared, "L'Etat, c'est moi"--"I +am the State." He was right. He was sovereign. Sovereignty had to reside +somewhere; and until the people arose and declared that it resided in +them, and expressed that declaration in a formal Constitution, it +continued to reside in the ruler who claimed it. + +When, however, in 1787, the thirteen American States "ordained and +established a Constitution" for their Union, then in the modern world the +people came by their own. France quickly followed the example, but as a +result of the wars which followed the world was thrown back into reaction. +Throughout the 19th century, however, the statement of democratic +sovereignty as a fundamental law of the State found expression in +Constitution after Constitution; with the result that now, in modern +practice, the existence of a Constitution is practically identical with a +statement of national sovereignty. + +There has hitherto been one chief exception; and that exception is of +striking interest at the present time. For within the British Empire the +theory has been that there is only one sovereign assembly, the Parliament +at Westminster. It is true that the Constitutions of Canada, Australia and +South Africa were each drawn up by Constituent Conventions in the +countries themselves; but by the prevalent theory none of these peoples +were competent to confer these Constitutions upon themselves. They were +not, that is to say, sovereign; and before the Constitutions they devised +therefore could come of effect they had to be passed as Imperial Acts by +the Parliament at Westminster. + +Yet that also has now changed. Ireland has wrought the change; and the +deep influence of that change cannot be foretold. For the Dail elected to +pass the Constitution will act, not as a Constituent Convention, but as a +Constituent Assembly. It will not only devise the Constitution, with the +present Constitution before it as a Bill for discussion, but, having +devised it, will prescribe it; and thus, through their elected +representatives, the people of Ireland will have conferred it on +themselves as their Fundamental Law. + +That is a sovereign act; and that act will differ in no degree from a +similar act by any other sovereign people. From this, however, one last +consideration follows; and, though it is simple, it is not usually +remembered. For if the passing of a Constitution is an act of full +sovereignty, and if that Constitution, being a Fundamental Law, restricts +and limits all future law-making, then the assemblies to come which will +pass those future laws will not be sovereign. + +They will not be able to do what they will, and they will not be able to +act as they will, for they must obey the requirements and act within the +limits of the Constitution, as prescribed by the first Assembly, which +alone was of full sovereignty. For this reason every nation has gone to +great care to choose persons of special competence for the body which is +to act as a Constituent Assembly--the body, indeed, which is to act as the +first, and, so long as that Constitution shall remain, the last Sovereign +Assembly of the nation. The act of prescribing a Constitution being the +highest act that a nation can make, care has always been taken to make it +the fullest and the freest. For, once done, it cannot be undone, except at +great trouble, and perhaps as the result of great convulsion. + + +II. + +THE PLAN OF THE CONSTITUTION. + +To draw up a plan is almost inevitably to express a philosophy. In shaping +the sequence and proportion of the parts which are to comprise the whole, +the trick of the mind will out; and it is in that trick of the mind that, +ultimately, all philosophies are contained. Perhaps there are few who, +after consideration, would deny this in all the ordinary (greater or +lesser) concerns of life; but many will think it strange in a matter so +dry as the drafting of a Constitution. Yet even in the drafting of a +Constitution it will be found equally true. + +A Constitution may be likened to a pyramid, the apex of which is the +Executive Authority, and the base the People. The first question that +therefore at once arises is, where shall one begin first with this +pyramid? But before this question can be answered, another must first be +met; and it is, whether the base is hung from the apex, or whether the +apex rests on the base? What relation has the Executive Authority (whether +kingly, presidential or consular) to the People, and the People to the +Executive Authority; and which, names and titles apart, is ultimately the +Sovereign? These are ripe questions; and only in the making of the plan +can they be answered. + +I have already shewn that the writing of a Constitution is itself evidence +that the people are sovereign, even though no statement to that effect is +included in the writing. But when one comes to look in the Constitutions +of the world it is curious to note the persistence with which that truth +is overlooked. The Canadian Constitution, for example, having provided for +the Union of Provinces by which the Federation was created, begins at once +with the statement that "the Executive Government and authority of and +over Canada is hereby declared to continue and be vested in the Queen." +Nothing has been said about a Legislature--nothing about the people of +Canada. The Constitution begins at once with an Executive Authority which +nothing has brought into being, and which therefore exists of its own +right, original and indefeasible, all things else in the Constitution +depending from it. The pyramid is hung from heaven, for the philosophy of +the plan is to be found in the mediaeval myth of the Divine Right of +Kings. + +The Constitution of Canada consequently proceeds downwards from that apex +to the Legislature; and in that Legislature, according to the philosophy, +the Senate comes before the Commons. "There shall," it says, "be one +Parliament for Canada, consisting of the Queen, an Upper House, styled the +Senate, and the House of Commons." As for the base, it is found nowhere at +all. The interest is exhausted before it is reached; and the People are +not mentioned. + +I have taken the Canadian Constitution because it is specially mentioned +in the present draft of the Constitution of _Saorstat Eireann_; but the +same supposition is found in many other constitutions, such as those of +Denmark, Sweden, South Africa. In them are to be found the relics of the +mediaeval theory of government, of a divine authority conferred on a +family, which therefore ruled of its own right; and of its own grace +summoned the subjects of that authority for counsel and advice. Therefore +in these constitutions it is assumed that the sovereignty is above and the +subjection below--even though no one to-day supposes that the practical +facts are what they assume them to be. + +In the Irish Constitution, as in most modern constitutions, this order is +inverted. The sovereignty is below, and the subjection is above. Never +once throughout the Irish Constitution (either in its original or its +present form) are the people once considered as subjects, but always as +sovereign citizens. The pyramid is based on the broad earth, in the divine +right of the people; and a beginning is therefore made with the base, +proceeding upward to the apex. The plan in fact is reversed because the +philosophy is different. + +The Constitution of _Saorstat Eireann_ begins with the people, and with a +statement of the sovereignty of the people. "All powers of Government," it +says in Article 2, "and all authority, legislative, executive and +judicial, are derived from the people and the same shall be exercised in +_Saorstat Eireann_ through the organisations established by or under, and +in accord with, this Constitution." In this Constitution, therefore, the +people of Ireland establish their own right, original and indefeasible, +and all things and persons and institutions named or created by or under +it depend from them. That is in the present, as it was in the original, +draft. Whatever institution or organisation is established to act on their +behalf, acts under an authority conferred by them; and in accord with the +specific bestowal of that authority; and not otherwise. Whatever person or +power is named, is named to act on their behalf; acts under the same +authority; in accord with the specific bestowal of that authority; and not +otherwise. The people confer of their own right; and what they may confer +they may withdraw. If the authority they confer be abused or transgressed, +it ceases thereupon to have any sanction or reverence, and possesses no +binding effect. That is to say, in the terms of my figure, the apex of the +pyramid rests on the base, is hung from no mythical divine right of kings, +and has no support outside the people of Ireland. + +The people, consequently, are citizens of a free state, not the subjects +of authority. It is necessary, therefore, at once to state who are the +citizens of this state, and what constitutes their citizenship. This the +next article proceeds to define. In this article the whole question of +future citizenship is referred to legislation. It properly belongs to +legislation, since it includes a number of complex matters and details +quite unsuited to a Constitution. Yet there must be an original +citizenship, otherwise the service of the state could not begin. Article +3, therefore, states what constitutes the original citizenship of Saorstat +Eireann; and leaves all matters "governing the future acquisition and +termination of citizenship" to be "determined by law," making it a +constitutional provision, however, that "men and women have equal rights +as citizens." And Article 4 provides that the official language of that +citizenship shall be the Irish language. + +From these original citizens, and from whomever shall be admitted to +citizenship in the future, all the authority of the State derives under +the Constitution. They are the base of the pyramid, and it is they who in +the Constitution (according to the plan on which it is framed) confer on +certain persons and organisations definite powers of Government in +Ireland. But the authority which can confer, can also withhold; and from +the powers which they grant, certain matters are withheld. For there are +matters which comprise the fundamental rights of their sovereignty, with +which no Government created by them can interfere. If the Government had +existed, or had claimed to have existed, of its own original right, it +could, being itself sovereign, have acted as it pleased; and in past times +it did so. But since Government under the Constitution exists only by +reason of an authority conferred by a sovereign people, these Fundamental +Rights of their sovereignty are kept apart; and no authority--legislative, +executive or judicial--and no power of Government is conceded the right to +touch them. + +Therefore in the first section of the Constitution, where the original +authority of the people is stated, certain matters are withheld. They are +described as _Fundamental Rights_. The liberty of the Person, the +Inviolability of the Dwelling, Freedom of Conscience and the Free Practice +and Profession of Religion, the Free Expression of Opinion, Free +Assembly, Free Association, Free Elementary Education, and the +Inalienability of Natural Resources, are each dealt with in successive +articles as forming the essentials of these rights. Before any powers are +conferred, before any organisations or institutions of Government are +created, these matters are put to one side and reserved. They belong to +the people. None shall interfere with them. The people are sovereign, and +they so decide. + +Such is the plan, for such is the philosophy. The first section of the +Constitution, therefore, includes what may be described as the base of the +pyramid, resting on the soil of Ireland and established in the right of +the People of Ireland. From that base the pyramid is built up toward the +Executive Authority, in section by section, giving the logical order in +which power is derived. Each section is based on that which precedes it; +for the order is the same as in the original draft, and therefore the plan +is preserved. + + +III. + +THE MAKING OF LAWS. + +All powers of Government may derive from the people, but the people cannot +of themselves govern themselves. In simple small communities the people +may gather together and frame the manner of their government from meeting +to meeting (and only then when ancient custom has given them the practice +and expectation of such assemblies); but among nations for a people to +discipline and rule themselves it is necessary that they bestow recognised +and definite powers of government on representatives of their choice. Such +representatives, to be sure, have a habit of conceiving that they are +rulers of their own right. Cases have even been known where they have +endeavoured to obstruct the right of the people to depose them. But the +truth is that such representatives are merely a convenience. They are a +people's instruments, and no more. Without them the achievement of a +common agreement, and the formulation of laws based on that common +agreement, would prove so cumbersome as to be impossible. A people must +therefore tolerate them with good humour; and keep them under proper +control. And when such representatives have been chosen, they together +form an organised body for the making of laws, and for the supervision and +control of the execution of such laws. + +Obviously, then, once a Constitution has stated the sovereign source of +all authority, and defined the fundamental rights of that sovereignty, it +is essential that it should prescribe the manner in which laws shall be +made for the peace, order and good government of the whole people. The +second section of the Constitution, therefore, deals with the _Legislative +Provisions_ of the State. The most important of these, manifestly, is the +creation of an organisation of representatives; but, owing to the tendency +of representatives to arrogate powers to themselves, of late years the +peoples of many States have insisted on a direct voice in the checking, +and even in the making, of laws. This direct voice has been exerted by +means of two instruments known generally as the Referendum and the +Initiative. Wherever these prevail, the Assembly of Representatives is +given only a limited power in the making of laws, the sovereign authority +reserving to itself a constant and continuous control over its action. And +in our Constitution both these instruments are given a place. For it is a +sound rule that the people are generally better than their +representatives--wiser of counsel, more disinterested of judgment--and it +is therefore provided in the Constitution that there shall be an Assembly +of Representatives, but that the people may require of that Assembly that +laws be referred to them for final decision, or that laws be made to suit +their desire. + +The most important part of these legislative provisions, however, is the +setting up of a National Assembly, or Synod, to be known as the +Oireachtas. This is to be formed of two Houses, Dail Eireann and Seanad +Eireann. There are many powerful arguments against the two-chamber system. +In the end they all resolve themselves into a question of ultimate +responsibility. In a simple illustration, if there be one thimble and one +pea, it is easy enough to know where the pea is. But directly a second +thimble is brought up beside the first, the difficulty of placing the pea +becomes at once a problem. On the other hand, the arguments in favour of a +second-chamber system also resolve themselves into a question of +responsibility. For if there is only one chamber, without a second to +check it and act together with it, there is, it is argued, a greater +likelihood of its acting in an irresponsible manner, and of its running +into hasty, ill-advised legislation. Its members, having acquired the +habit of concerted action, may moreover strike a bargain behind the +people's back, even while preserving all the forms of opposition and +discussion. With the two instruments of the Referendum and the Initiative +in operation this danger is less likely, provided that the people be +sufficiently alert. Yet it exists. In most countries, therefore, two +chambers are the rule; and in our Constitution it is provided that there +shall be two chambers, care being taken to fix responsibility ultimately +in the first in case of doubt or delay. + +Given two chambers, the difficulty is the creation of the Second Chamber. +The First Chamber causes little difficulty, and is mainly a matter, not +for the Constitution, but for an Electoral Law. The Second Chamber is a +matter for the Constitution. Indeed, the question and creation of a Second +Chamber, and the formation of the Executive Power, are the two foremost +problems for the making of every Constitution. The first difficulty is to +find for the Second Chamber a sufficient constituency, and the second +difficulty is to find for it a proper function; and both these problems +are essentially matters for the Constitution of a State. To answer both of +them satisfactorily is the difficulty; and an examination of the +constitutions of other countries reveals that in few cases have they been +answered even to general satisfaction. + +As for the constituency, it is clear that this cannot be the same as for +the first chamber, otherwise the two Houses are simply repetitions. That +is one consideration to be remembered. There is another. For from earliest +times mankind has desired to call into its special councils those who have +distinguished themselves in the conduct of its affairs. Folk may disagree +with such persons, but they defer to them and hear them. What may be +called the Senatorial Person is a recognised factor in the history of all +nations. In the push and jostle of entry to the First House--where special +and local interests are represented--such a Senatorial Person is most +likely to be thrust aside, even if he or she be inclined to mingle in the +fray. He is consequently lost to the councils of the nation. How shall a +place be found for him or for her; and when the place is found, what shall +be the measure of his or her counsel? + +Other nations have answered these problems in divers ways. None has +answered them as they are answered in the Constitution of _Saorstat +Eireann_. For it is clear that if there is to be a Second Chamber, the +right place for such a Senatorial Person is in that Second Chamber, since +only thus is it possible to avoid making one chamber a mere copy of the +other. In some countries, therefore, the Second Chamber is composed of +persons on whom a title has been conferred--and on their children who +succeed to that title. In other countries the Second Chamber is created by +nomination--with at least the ostensible wish that only Senatorial Persons +will be appointed. Both these methods have led to corruption. Both, +moreover, have led to one fatal fault. For Second Chambers are mainly of +value at times when the First Chamber is likely to rush to a mistake; and +at such times no people are inclined to give careful heed to the counsel +of persons whom they have not themselves chosen to give that counsel. They +may be exactly such persons as they themselves would have chosen; but the +fact that they did not choose them, the fact that they came there by the +accident of birth, or the power of money, robs them of authority just when +their authority is most required. + +For this reason, the people's own choice of Senators is necessary to their +efficiency and authority. In countries formed out of a Confederation this +difficulty is evaded by the creation of the Senate from the Federated +States, while creating the First Chamber directly from the whole people. +But where there are no Federated States the people's direct bestowal of +authority cannot be evaded if friction and loss of strength are to be +avoided. Thus one returns to the original problem, which is, how the +people shall choose a Senate which will not be a copy of the Chamber of +Deputies, and how the Senatorial Person will find his way to the councils +of the nation, bringing with him an unanswerable authority. + +Our Constitution meets this by making the whole country one constituency +for the election of the Senate. The Deputies are elected from localities +where they are known, and the special interests of which they are +qualified to represent. Over those interests the major interest of the +whole nation stands guard. It would be possible for persons to enter the +Chamber of Deputies who are not known outside their own localities, but +who are qualified to represent those localities. But by making the entire +country one constituency for the election of the Senate, no merely local +interest will have power to secure election. And thus it will be possible +to find a place for the Senatorial Person from, as the Constitution reads, +"citizens who have done honour to the nation by reason of useful public +service, or who, because of special qualifications or attainments, +represent important aspects of the nation's life." These persons are to be +elected by Proportional Representation; and in order that the business of +election shall not prove too cumbersome it is appointed that one-fourth of +the Senate shall retire every three years, and that before each election a +list shall be prepared by both Houses consisting of at least three times +as many persons as there are vacancies to be filled. + +Such form the two Houses of the Oireachtas. Their relation to one another +is carefully defined. The Seanad is created as an advisory and delaying +body, and the ultimate responsibility is given to the Dail. But endowed, +as it is, with so strong an authority, vested in it by the entire nation +voting as a whole, it is unlikely that its criticisms and advice can be +neglected. For such criticisms will be furnished in the course of debates +that will be read by the whole people; and behind them there will always +be the possibility of appeal to the whole nation by Referendum, which the +Senate can compel by a three-fifths vote. The Senate and the people, +therefore, are placed in a watchful alliance over the acts and +proceedings of the Dail. Indeed, it is not unlikely that in the future the +Senate and the people (by Referendum) will often be found in practical +alliance against any attempt of the Dail to arrogate power to itself. The +Senate has the power to make it so--a power of greater worth to it, and to +the nation, than any constitutional right arbitrarily to obstruct +legislation or to make legislation abortive. + + +IV. + +THE PEOPLE AS LAW-MAKERS. + +More is spoken of the two instruments of the Referendum and the Initiative +(particularly the former) than is known about them; for in the countries +where they have been adopted, folk use them and do not talk about them, +and where they have not been adopted folk talk about them with ardour or +with fear but without knowledge. Briefly they may be described as a +retention by the sovereign people of sovereign authority over the making +of laws. + +The case is not without an historical parallel. In earlier times in other +states the sovereign was the king, who said, "L'Etat, c'est moi." He was +therefore the law-maker, by supreme right. He might summon the estates of +his realm--Lords and Commons--to advise and counsel him; and he might, +normally, allow their acts without his interference; but, being sovereign, +he reserved the right to cause those acts to be referred to him for the +final act of his will; and he at all times reserved the right to send a +message to them instructing them to make laws on matters that seemed to +him to require attention. This he did, being the sovereign. His parliament +was the legislature of the State, but he preserved the Referendum and the +Initiative, and held them as his sovereign authority over the authority +deputed to the legislature. + +When, however, sovereignty passed to the people, they assumed the +attributes and the functions of that sovereignty. Where once the king's +person and the king's dwelling, for example, had been declared to be +inviolable, now (as in our Constitution) the people's persons and the +people's dwellings are declared to be inviolable. And where once the king +reserved the right to veto and to initiate legislation, so now (as again +in our Constitution) the people reserve the right to veto and to initiate +legislation. And this is the plain and simple meaning of the two +instruments of the Referendum and the Initiative. Their effect is to shift +sovereignty from the parliament to the people, where the revolutions of +the 17th and 18th centuries shifted sovereignty from the king to the +parliament. + +It frequently happens that theories (for whatever they may be worth) are +carried to their logical ends by practical people and not by +theorists--for theory generally lags in the rear of practice. So it +happened in this case. For it was the soberly practical and conservative +people of Switzerland who in modern times first devised the Referendum, +and then the Initiative. Since then they have been adopted in many +countries, chief of which are Belgium, Australia, and many of the American +States; and they appear in most of the constitutions recently adopted in +Europe. But it is in Switzerland that they can most usefully be studied, +for there they have a solid experience of ninety years continuous practice +behind them. + +The Referendum came first; and in its modern form was first adopted in the +Constitution of the canton of St. Gall in 1831, the second and third +articles of which read: + + 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 manoeuvring 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 moves slowly. 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 of the 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. + + +V. + +THE EXECUTIVE POWER. + +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 the Law-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 a Confederation, 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 government +of 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 as deputies--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, they would 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 of nominating 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 the fray. 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. + + +VI. + +THE JUDICIARY. + +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, when therefore +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 subsequent +Judiciary 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 the making 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 the Constitution, 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 the minorities of the day +have the honest chance of becoming the majorities of 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 provisions of 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. + + +VII. + +THE QUESTION OF APPEALS. + +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." + +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." + +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 only strong 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 Committee would 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 straightest nor 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 Judicial Committee's +decision 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 I think 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. + + +VIII. + +FUNCTIONAL COUNCILS. + +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 historic memory. 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:-- + + "The Oireachtas may provide for the establishment of Functional or + Vocational Councils representing branches of the social and economic + life of the Nation. A law establishing any such Council shall + determine its powers, rights and duties, and its relation to the + government of the Irish Free State." + +As a matter of curious interest it happens that the German Constitution +contains an article very similar to this; but the conception had been in +development in Ireland for some years. It had, indeed (as I endeavoured to +shew in a little book on _The Gaelic State_, published in 1917), been a +slumbering memory of the Irish Nation during the centuries when the +characteristic political conceptions of the people were frustrate and +idle, as they may now be put into practical development. It had been +worked out in practical detail for one of our largest and most important +industries in the Report on Sea Fisheries of the _Commission of Inquiry_, +published in 1921. And it had actually, though imperfectly, been in +operation for another great industry since 1896 in the Council of +Agriculture. + +What, then, are these Functional (or Vocational or Occupational) Councils +for which provision is made, and on what political or social conception do +they rest? One need not travel outside the present draft Constitution to +discover the need for them. For in this Constitution, as in most +constitutions, the people are, outside this one Article, considered in +only two of the three relations that go to make up their lives, and which +therefore constitute the complete life of the Nation. All the persons of +the State are considered either as individuals or as citizens. But these +two descriptions do not exhaust their lives. In addition to being +individuals and citizens they are also workers in some craft, industry, +trade or profession. Indeed, it is seldom they have time to be +individuals, and it is seldom they are reminded that they are citizens. +For good or for ill, these are only occasional parts of their lives. But +they are never permitted to forget the parts they are required to play in +the social and economic life of the Nation. + +The Constitution establishes their rights as individuals putting these +rights beyond the reach of interference either of those who make or those +who execute the law. It also establishes their rights as citizens, +certifies the manner of their action as citizens, and derives all +authority in the State from those rights and actions. But these are only +the lesser, however supremely important, parts of our lives. The greater +part of our days is, for each of us, packed with the thoughts are cares of +our functional lives. We are more frequently, in the intake and output of +our lives, blacksmiths or architects, or whatever else, than we are +individuals or citizens. Have we not rights and duties there too, both for +ourselves and to the Nation; and should not the Constitution make +provision for this, the larger part of our lives, as well as for the +lesser parts? Can provision be said to have been completely made either +for our own lives or for the interplay that constitutes the life of the +Nation if this aspect be neglected? + +We are faced at once with a difficulty. Seeing that we have the experience +of it, it is easy to perceive how we can be represented in the State as +citizens. How can we be represented in the State in respect of our +functions? To answer this question one may turn to an instance that lives +before us, an example from elder days when such an order of society was +familiar. For in old Ireland (as in other nations) guilds were a +recognised form of the industrial life of the nation. They were also, +though not known by that name, a recognised form of the professional life +of the Nation. And as a relic of those times we have to-day what is in +effect a guild of Lawyers. The lawyers of Ireland, for example, are +organised as a whole, with a Council representative of the profession as a +whole. That Council, representative of all who practice as lawyers, is a +responsible body, not only to the lawyers who are represented in it, but +to and in the State on behalf of the legal profession. It is responsible +for the honour and good conduct of lawyers. It is responsible for the +economic maintenance of its constituents. No lawyer is allowed to practice +except by consent of the Legal Council--that is to say, except by the +consent of all other lawyers. The legal profession as a whole--in the +legal sense, as a Person--protects its own honour, protects the individual +lawyer, protects the public interest (in theory, at least), and requires a +guarantee of efficiency and rectitude from every lawyer before he is +allowed to practice his profession. + +So it was in ancient Ireland. At that time, when the Assembly of the +Nation met, the lawyers, or 'brehons,' met in a Council of their own. The +administrative heads of each unit of local government met in a Council of +their own. The Recorders, or _Seanchaidhe_, of the local petty states, met +in a Council of their own. And each Council was responsible for the +administration of its own concerns. Each Council drew up its own +regulations, for the conduct of it own duties in the State, and for the +protection of its own 'functional' rights. Each Council, in the modern +legal phrase, was a responsible 'Person,' and was by the State, as it +existed at that time, entrusted with the conduct and administration of its +own affairs, subject to the general execution of the public interest. + +It lay with the Assembly of the Nation to co-ordinate the whole in the +public interest. Whether this was or was not done effectively in olden +times is indifferent to the present problem of Functional Councils in the +modern State, with its better organisation and more perfect national +sense. The problem of organisation is very real, but it does not affect +the necessity of functional representation and functional responsibility +in the State. It is, for example, absurd that persons unfamiliar with +architectural problems, however highly placed in the nation they may be, +should be entrusted with architectural decisions that require special +training and knowledge. It is equally absurd that a person unfamiliar with +the needs of the Fishing Industry should, because for political reasons he +should happen to be chosen as Minister of Fisheries, make proposals and be +responsible for decisions that affect the present livelihood of fishermen +and the successful future of the Fishing Industry. These matters must be +reposed in the care of representative Functional (Occupational or +Vocational) Councils, that should be required to render account, on the +one hand, to the Function which they represent, and, on the other hand, to +the State on behalf of that Function. + +When such an organisation of the social and economic life of the Nation +has been achieved, then, and only then, will it be possible to say that +all parts of the life of the Nation have been brought within the reach and +authority of the Constitution. It may be objected that these matters lie +in the future. That is true. The Constitution allows for them, and by +allowing for them indicates that they should be, and probably will be, the +natural development of the future of the Irish Nation. + + + + +Draft Constitution of the Irish Free State + + +PRELIMINARY. + +These presents shall be construed with reference to the Articles of +Agreement for a Treaty between Great Britain and Ireland set forth in the +Schedule hereto annexed (hereinafter referred to as "the Scheduled +Treaty") which are hereby given the force of law, and if any provision of +this Constitution or of any amendment thereof or of any law made +thereunder is in any respect repugnant to any of the provisions of the +Scheduled Treaty, it shall, to the extent only of such repugnancy be +absolutely void and inoperative and the Parliament and the Executive +Council of the Irish Free State shall respectively pass such further +legislation and do all such other things as may be necessary to implement +the Scheduled Treaty. + + +SECTION I.--FUNDAMENTAL RIGHTS. + +ARTICLE 1. + +The Irish Free State/Saorstat Eireann is a co-equal member of the +Community of Nations forming the British Commonwealth of Nations. + +ARTICLE 2. + +All powers of government and all authority legislative, executive, and +judicial, are derived from the people and the same shall be exercised in +the Irish Free State/Saorstat Eireann through the organisations +established by or under, and in accord with, this Constitution. + +ARTICLE 3. + +Every person domiciled in the Irish Free State/Saorstat Eireann at the +time of the coming into operation of this Constitution who was born in +Ireland or either of whose parents was born in Ireland or who has been so +domiciled in the area of the jurisdiction of the Irish Free State/Saorstat +Eireann for not less than seven years is a citizen of the Irish Free +State/Saorstat Eireann and shall within the limits of the Irish Free +State/Saorstat Eireann enjoy the privileges and be subject to the +obligations of such citizenship, provided that any such person being a +citizen of another State may elect not to accept the citizenship hereby +conferred; and the conditions governing the future acquisition and +termination of citizenship in the Irish Free State/Saorstat Eireann shall +be determined by law. Men and women have equal rights as citizens. + +ARTICLE 4. + +The National language of the Irish Free State/Saorstat Eireann is the +Irish language, but the English language shall be equally recognised as an +official language. Nothing in this Article shall prevent special +provisions being made by the Parliament/Oireachtas for districts or areas +in which only one language is in use. + +ARTICLE 5. + +No title of honour in respect of any services rendered in or in relation +to the Irish Free State/Saorstat Eireann may be conferred on any citizen +of the Irish Free State/Saorstat Eireann except with the approval or upon +the advice of the Executive Council of the State. + +ARTICLE 6. + +The liberty of the person is inviolable, and no person shall be deprived +of his liberty except in accordance with law. Upon complaint made by or on +behalf of any person that he is being unlawfully detained, the High +Court/Ard Chuirt and any and every judge thereof shall forthwith enquire +into the same and may make an order requiring the person in whose custody +such person shall be detained to produce the body of the person so +detained before such Court or Judge without delay and to certify in +writing as to the cause of the detention and such Court or Judge shall +thereupon order the release of such person unless satisfied that he is +being detained in accordance with the law. + +ARTICLE 7. + +The dwelling of each citizen is inviolable and shall not be forcibly +entered except in accordance with law. + +ARTICLE 8. + +Freedom of conscience and the free profession and practice of religion are +inviolable rights of every citizen, and no law may be made either directly +or indirectly to endow any religion, or prohibit or restrict the free +exercise thereof or give any preference, or impose any disability on +account of religious belief or religious status, or affect prejudicially +the right of any child to attend a school receiving public money without +attending the religious instruction at the school, or make any +discrimination as respects State aid between schools under the management +of different religious denominations, or divert from any religious +denomination or any educational institution any of its property except for +the purpose of roads, railways, lighting, water or drainage works or other +works of public utility, and on payment of compensation. + +ARTICLE 9. + +The right of free expression of opinion as well as the right to assemble +peaceably and without arms, and to form associations or unions is +guaranteed for purposes not opposed to public morality. Laws regulating +the manner in which the right of forming associations and the right of +free assembly may be exercised shall contain no political, religious or +class distinction. + +ARTICLE 10. + +All citizens of the Irish Free State/Saorstat Eireann have the right to +free elementary education. + +ARTICLE 11. + +The rights of the State in and to natural resources, the use of which is +of national importance, shall not be alienated. Their exploitation by +private individuals or associations shall be permitted only under State +supervision and in accordance with conditions and regulations approved by +legislation. + + +SECTION II.--LEGISLATIVE PROVISIONS. + +A.--THE LEGISLATURE. + +ARTICLE 12. + +A Legislature is hereby created to be known as Parliament/Oireachtas of +the Irish Free State/Saorstat Eireann. It shall consist of the King and +two Houses: the Chamber of Deputies/Dail Eireann and the Senate/Seanad +Eireann. The power of making laws for the peace, order and good government +of the Irish Free State/Saorstat Eireann is vested in the +Parliament/Oireachtas. + +ARTICLE 13. + +The Parliament/Oireachtas shall sit in or near the city of Dublin or in +such other place as from time to time it may determine. + +ARTICLE 14. + +All citizens of the Irish Free State/Saorstat Eireann without distinction +of sex who have reached the age of twenty-one years and who comply with +the provisions of the prevailing electoral laws, shall have the right to +vote for members of the Chamber of Deputies/Dail Eireann, and to take part +in the Referendum or Initiative. All citizens of the Irish Free +State/Saorstat Eireann without distinction of sex who have reached the age +of thirty years and who comply with the provisions of the prevailing +electoral laws, shall have the right to vote for members of the +Senate/Seanad Eireann. No voter may exercise more than one vote and the +voting shall be by secret ballot. The mode and place of exercising this +right shall be determined by law. + +ARTICLE 15. + +Every citizen who has reached the age of twenty-one years and who is not +placed under disability or incapacity by the Constitution or by law shall +be eligible to become a member of the Chamber of Deputies/Dail Eireann. + +ARTICLE 16. + +No person may be at the same time a member both of the Chamber/Dail +Eireann and of the Senate/Seanad Eireann. + +ARTICLE 17. + +The oath to be taken by Members of Parliament/Oireachtas shall be in the +following form:-- + + I ........................ do solemnly swear true faith and + allegiance to the Constitution of the Irish Free State as by law + established, and that I will be faithful to H.M. King George V., his + heirs and successors by law in virtue of the common citizenship of + Ireland with Great Britain and her adherence to and membership of the + group of nations forming the British Commonwealth of Nations. + +Such oath shall be taken and subscribed by every member of the +Parliament/Oireachtas before taking his seat therein before the +Representative of the Crown or some person authorised by him. + +ARTICLE 18. + +Every member of the Parliament/Oireachtas shall, except in case of +treason, felony, or breach of the peace, be privileged from arrest in +going to and returning from, and while within the precincts of either +House, and shall not be amenable to any action or proceeding at law in +respect of any utterance in either House. + +ARTICLE 19. + +All reports and publications of the Parliament/Oireachtas or of either +House thereof shall be privileged and utterances made in either House +wherever published shall be privileged. + +ARTICLE 20. + +Each House shall make its own rules and Standing Orders, with power to +attach penalties for their infringement and shall have power to ensure +freedom of debate, to protect its official documents and the private +papers of its members, and to protect itself and its members against any +person or persons interfering with, molesting or attempting to corrupt its +members in the exercise of their duties. + +ARTICLE 21. + +Each House shall elect its own Chairman and Deputy Chairman and shall +prescribe their powers, duties, and terms of office. + +ARTICLE 22. + +All matters in each House shall, save as otherwise provided by this +Constitution, be determined by a majority of the votes of the members +present other than the Chairman or presiding member, who shall have and +exercise a casting vote in the case of an equality of votes. The number of +members necessary to constitute a meeting of either House for the exercise +of its powers shall be determined by its Standing Orders. + +ARTICLE 23. + +The Parliament/Oireachtas shall make provision for the payment of its +members and may in addition provide them with free travelling facilities +in any part of Ireland. + +ARTICLE 24. + +The Parliament/Oireachtas shall hold at least one session each year. The +Parliament/Oireachtas shall be summoned and dissolved by the +Representative of the Crown in the name of the King and subject as +aforesaid the Chamber/Dail Eireann shall fix the date of re-assembly of +the Parliament/Oireachtas and the date of the conclusion of the session of +each House provided that the sessions of the Senate/Seanad Eireann shall +not be concluded without its own consent. + +ARTICLE 25. + +Sittings of each House of the Parliament/Oireachtas shall be public. In +cases of special emergency either House may hold a private sitting with +the assent of two-thirds of the members present. + + +SECTION II.--LEGISLATIVE PROVISIONS. + +B.--THE CHAMBER OF DEPUTIES/DAIL EIREANN. + +ARTICLE 26. + +The Chamber/Dail Eireann shall be composed of members who represent +constituencies determined by law. The number of members shall be fixed +from time to time by the Parliament/Oireachtas, but the total number of +members of the Chamber/Dail Eireann shall not be fixed at less than one +member for each thirty thousand of the population, or at more than one +member for each twenty thousand of the population: Provided that the +proportion between the number of members to be elected at any time for +each constituency and the population of each constituency, as ascertained +at the last preceding census, shall, so far as possible, be identical +throughout the country. The members shall be elected upon principles of +Proportional Representation. The Parliament/Oireachtas shall revise the +constituencies at least once in every ten years, with due regard to +changes in distribution of the population, but any alterations in the +constituencies shall not take effect during the life of the Chamber/Dail +Eireann sitting when such revision is made. + +ARTICLE 27. + +At a General Election for the Chamber/Dail Eireann the polls shall be held +on the same day throughout the country, and that day shall be a day not +later than thirty days after the date of the dissolution and shall be +proclaimed a public holiday. The Chamber/Dail Eireann shall meet within +one month of such day, and shall unless earlier dissolved continue for +four years from the date of its first meeting, and not longer. The +Chamber/Dail Eireann may not at any time be dissolved except on the advice +of the Executive Council. + +ARTICLE 28. + +In case of death, resignation or disqualification of a member of the +Chamber/Dail Eireann, the vacancy shall be filled by election in manner to +be determined by law. + + +SECTION II.--LEGISLATIVE PROVISIONS. + +C.--THE SENATE/SEANAD EIREANN. + +ARTICLE 29. + +The Senate/Seanad Eireann shall be composed of citizens who have done +honour to the Nation by reason of useful public service or who, because of +special qualifications or attainments, represent important aspects of the +Nation's life. + +ARTICLE 30. + +Every University in the Irish Free State/Saorstat Eireann shall be +entitled to elect two representatives to the Senate/Seanad Eireann. The +number of Senators, exclusive of the University members, shall be +fifty-six. A citizen to be eligible for membership of the Senate/Seanad +must be a person eligible to become a member of the Chamber/Dail Eireann, +and must have reached the age of thirty-five years. Subject to any +provision for the constitution of the first Senate/Seanad the term of +office of a member of the Senate/Seanad shall be twelve years. + +ARTICLE 31. + +One-fourth of the members of the Senate/Seanad Eireann exclusive of the +University members shall be elected every three years from a panel +constituted as hereinafter mentioned at an election at which the Irish +Free State/Saorstat Eireann shall form one electoral area and the +elections shall be held on principles of Proportional Representation. One +member shall be elected by each University entitled to representation in +the Senate/Seanad every six years. + +ARTICLE 32. + +Before each election of members of the Senate/Seanad Eireann (other than +University members) a panel shall be formed consisting of:-- + + (a) Three times as many qualified persons as there are members to be + elected of whom two-thirds shall be nominated by the Chamber/Dail + Eireann voting according to principles of Proportional Representation + and one-third shall be nominated by the Senate/Seanad Eireann voting + according to principles of Proportional Representation; and + + (b) Such persons who have at any time been members of the + Senate/Seanad (including members about to retire) as signify by + notice in writing addressed to the President of the Executive Council + their desire to be included in the panel. + +The method of proposal and selection for nomination shall be decided by +the Chamber/Dail and Senate/Seanad respectively, with special reference to +the necessity for arranging for the representation of important interests +and institutions in the country; Provided that each proposal shall be in +writing and shall state the qualifications of the person proposed. As soon +as the panel has been formed a list of the names of the members of the +panel arranged in alphabetical order with their qualifications shall be +published. + +ARTICLE 33. + +In the case of the death, resignation or disqualification of a member of +the Senate/Seanad Eireann (other than a University member) his place shall +be filled by a vote of the Senate/Seanad. Any Senator so chosen shall +retire from office at the conclusion of the three years period then +running and the vacancy or vacancies thus created shall be additional to +the places to be filled under Article 31. The term of office of the +members chosen at the election after the first fourteen elected shall +conclude at the end of the period or periods at which the Senator or +Senators by whose death or withdrawal the vacancy or vacancies was or were +originally created would be due to retire; Provided that the fifteenth +member shall be deemed to have filled the vacancy first created in order +of time and so on. + +In case of the death, resignation or disqualification of a University +member of the Senate/Seanad, the University by which he was elected shall +elect a person to fill his place, and the member so elected shall hold +office so long as the member in whose place he was elected would have held +office. + + +SECTION II.--LEGISLATIVE PROVISIONS. + +D.--LEGISLATION. + +ARTICLE 34. + +The Chamber/Dail Eireann shall in relation to the subject matter of money +bills as hereinafter defined have legislative authority exclusive of the +Senate/Seanad Eireann. + +A money Bill means a Bill which contains only provisions dealing with all +or any of the following subjects, namely, the imposition, repeal, +remission, alteration or regulation of taxation; the imposition for the +payment of debt or other financial purposes of charges on public moneys or +the variation or repeal of any such charges; supply; the appropriation, +receipt, custody, issue or audit of accounts of public money; the raising +or guarantee of any loan or the repayment thereof; subordinate matters +incidental to those subjects or any of them. In this definition the +expressions "taxation," "public money" and "loan" respectively do not +include any taxation, money or loan raised by local authorities or bodies +for local purposes. + +The Chairman of the Chamber/Dail shall certify any bill which in his +opinion is a money bill to be a money bill, but, if within three days +after a Bill has been passed by the Chamber/Dail, two-fifths of the +members of either House by notice in writing addressed to the Chairman of +the House of which they are members so require, the question whether the +Bill is or is not a money bill shall be referred to a Committee of +Privileges consisting of three members elected by each House with a +Chairman who shall be the senior judge of the Supreme Court able and +willing to act and who, in the case of an equality of votes, but not +otherwise, shall be entitled to vote. The decision of the Committee on the +question shall be final and conclusive. + +ARTICLE 35. + +The Chamber/Dail Eireann shall as soon as possible after the commencement +of each financial year consider the Budget of receipts and expenditure of +the Irish Free State/Saorstat Eireann for that year, and, save in so far +as may be provided by specific enactment in each case, the legislation +required to give effect to the Budget of each year shall be enacted within +that year. + +ARTICLE 36. + +Money shall not be appropriated by vote, resolution or law, unless the +purpose of the appropriation has in the same session been recommended by a +message from the Representative of the Crown acting on the advice of the +Executive Council. + +ARTICLE 37. + +Every Bill initiated in and passed by the Chamber/Dail Eireann shall be +sent to the Senate/Seanad Eireann and may, unless it be a Money Bill, be +amended in the Senate/Seanad Eireann and the Chamber/Dail Eireann shall +consider any such amendment; but a Bill passed by the Chamber/Dail Eireann +and considered by the Senate/Seanad Eireann shall, not later than two +hundred and seventy days after it shall have been first sent to the +Senate/Seanad, or such longer period as may be agreed upon by the two +Houses, be deemed to be passed by both Houses in its form as last passed +by the Chamber/Dail; Provided that any Money Bill shall be sent to the +Senate/Seanad for its recommendations and at a period not longer than +fourteen days after it shall have been sent to the Senate/Seanad, it shall +be returned to the Chamber/Dail which may pass it, accepting or rejecting +all or any of the recommendations of the Senate/Seanad, and as so passed +shall be deemed to have been passed by both Houses. When a Bill other than +a Money Bill has been sent to the Senate/Seanad a Joint Sitting of the +Members of both Houses may on a resolution passed by the Senate/Seanad be +convened for the purpose of debating, but not of voting upon, the +proposals of the Bill or any amendment of the same. + +ARTICLE 38. + +A Bill may be initiated in the Senate/Seanad Eireann and if passed by the +Senate/Seanad shall be introduced into the Chamber/Dail Eireann. If +amended by the Chamber/Dail the Bill shall be considered as a Bill +initiated in the Chamber/Dail. If rejected by the Chamber/Dail it shall +not be introduced again in the same session, but the Chamber/Dail may +reconsider it on its own motion. + +ARTICLE 39. + +A Bill passed by either House and accepted by the other House shall be +deemed to be passed by both Houses. + +ARTICLE 40. + +So soon as any Bill shall have been passed or deemed to have been passed +by both Houses, the Executive Council shall present the same to the +Representative of the Crown for the signification by him, in the King's +name, of the King's assent, and such representative may withhold the +King's assent or reserve the Bill for the signification of the King's +pleasure; Provided that the Representative of the Crown shall in the +withholding of such assent to or reservation of any Bill, act in +accordance with the law, practice, and constitutional usage governing the +like withholding of assent or reservation in the Dominion of Canada. + +A Bill reserved for the signification of the King's Pleasure shall not +have any force unless and until within one year from the day on which it +was presented to the Representative of the Crown for the King's Assent, +the Representative of the Crown signifies by speech or message to each of +the Houses of the Parliament/Oireachtas, or by proclamation, that it has +received the Assent of the King in Council. + +An entry of every such speech, message or proclamation shall be made in +the Journal of each House and a duplicate thereof duly attested shall be +delivered to the proper officer to be kept among the Records of the Irish +Free State/Saorstat Eireann. + +ARTICLE 41. + +As soon as may be after any law has received the King's assent, the clerk, +or such officer as the Chamber may appoint for the purpose, shall cause +two fair copies of such law to be made, one being in the Irish language +and the other in the English language (one of which copies shall be signed +by the Representative of the Crown to be enrolled for record in the office +of such officer of the Supreme Court as the Chamber/Dail Eireann may +determine) and such copies shall be conclusive evidence as to the +provisions of every such law, and in case of conflict between the two +copies so deposited, that signed by the Representative of the Crown shall +prevail. + +ARTICLE 42. + +The Parliament/Oireachtas shall have no power to declare acts to be +infringements of the law which were not so at the date of their +commission. + +ARTICLE 43. + +The Parliament/Oireachtas may create subordinate legislatures, but it +shall not confer thereon any powers in respect of the Navy, Army or Air +Force, alienage or naturalisation, coinage, legal tender, trade marks, +designs, merchandise marks, copyright, patent rights, weights and +measures, submarine cables, wireless telegraphy, post office, railways, +aerial navigation, customs and excise. + +ARTICLE 44. + +The Parliament/Oireachtas may provide for the establishment of Functional +or Vocational Councils representing branches of the social and economic +life of the Nation. A law establishing any such Council shall determine +its powers, rights and duties, and its relation to the government of the +Irish Free State/Saorstat Eireann. + +ARTICLE 45. + +The Parliament/Oireachtas has the exclusive right to regulate the raising +and maintaining of such armed forces as are mentioned in the Scheduled +Treaty in the territory of the Irish Free State/Saorstat and every such +force shall be subject to the control of the Parliament/Oireachtas. + + +SECTION II.--LEGISLATIVE PROVISIONS. + +E.--REFERENDUM AND INITIATIVE. + +ARTICLE 46. + +Any Bill passed or deemed to have been passed by both Houses may be +suspended for a period of ninety days on the written demand of two-fifths +of the members of the Chamber/Dail Eireann or of a majority of the +members of the Senate/Seanad Eireann presented to the President of the +Executive Council not later than seven days from the day on which such +Bill shall have been so passed or deemed to have been so passed. Such a +Bill shall be submitted by Referendum to the decision of the people if +demanded before the expiration of the ninety days either by a resolution +of the Senate/Seanad Eireann assented to by three-fifths of the members of +the Senate/Seanad Eireann, or by a petition signed by not less than +one-twentieth of the voters then on the register of voters, and the +decision of the people on such referendum shall be conclusive. These +provisions shall not apply to Money Bills or to such Bills as shall be +declared by both Houses to be necessary for the immediate preservation of +the public peace, health or safety. + +ARTICLE 47. + +The Parliament/Oireachtas may provide for the initiation by the people of +proposals for laws or constitutional amendments. Should the +Parliament/Oireachtas fail to make such provision within two years, it +shall on the petition of not less than one hundred thousand voters on the +register, of whom not more than twenty thousand shall be voters in any one +constituency, either make such provisions or submit the question to the +people for decision in accordance with the ordinary regulations governing +the Referendum. Any legislation passed by the Parliament/Oireachtas +providing for such initiation by the people shall provide (1) that such +proposals may be initiated on a petition of fifty thousand voters on the +register, (2) that if the Parliament/Oireachtas rejects a proposal so +initiated it shall be submitted to the people for decision in accordance +with the ordinary regulations governing the Referendum; and (3) that if +the Parliament/Oireachtas enacts a proposal so initiated, such enactment +shall be subject to the provisions respecting ordinary legislation or +amendments of the Constitution as the case may be. + +ARTICLE 48. + +Save in the case of actual invasion, the Irish Free State/Saorstat Eireann +shall not be committed to active participation in any war without the +assent of the Parliament/Oireachtas. + +ARTICLE 49. + +Amendments of this Constitution within the terms of the Scheduled Treaty +may be made by the Parliament/Oireachtas but every such amendment must be +submitted to a Referendum of the people and shall not be passed unless a +majority of the voters on the register record their votes and either a +majority of the voters on the register or two-thirds of the votes recorded +are in favour of the amendment. + + +SECTION III.--THE EXECUTIVE. + +A.--EXECUTIVE COUNCIL/AIREACHT. + +ARTICLE 50. + +The Executive Authority of the Irish Free State/Saorstat Eireann is +hereby declared to be vested in the King, and shall be exercisable, in +accordance with the law, practice and constitutional usage governing the +exercise of the executive authority in the case of the Dominion of Canada, +by the Representative of the Crown. There shall be a Council to aid and +advise in the government of the Irish Free State/Saorstat Eireann to be +styled the Executive Council/Aireacht. The Executive Council shall be +responsible to the Chamber/Dail Eireann, and shall consist of not more +than twelve Ministers/Airi appointed by the Representative of the Crown, +of whom four Ministers shall be Members of the Chamber/Dail Eireann and a +number not exceeding eight, chosen from all citizens eligible for election +to the Chamber/Dail Eireann, who shall not be members of +Parliament/Oireachtas during their term of Office, and who, if at the time +of their appointment they are members of Parliament/Oireachtas, shall by +virtue of such appointment vacate their seats; Provided that the +Chamber/Dail Eireann may from time to time on the motion of the President +of the Executive Council determine that a particular Minister or Ministers +not exceeding three, may be members of Parliament/Oireachtas in addition +to the four members of the Chamber/Dail Eireann above mentioned. + +ARTICLE 51. + +The Ministers who are required to be members of the Chamber/Dail Eireann +shall include the President of the Executive Council/Uachtaran and the +Vice-President of the Executive Council/Tanaist. + +The President of the Executive Council shall be the chief of the Executive +Council and shall be appointed on the nomination of the Chamber/Dail, and +the Vice-President of the Executive Council and the other Ministers who +are members of Parliament/Oireachtas shall be appointed on the nomination +of the President of the Executive Council; and he and the Ministers +nominated by him shall retire from office should he fail to be supported +by a majority in the Chamber/Dail, but the President of the Executive +Council and such Ministers shall continue to carry on their duties until +their successors are appointed. + +ARTICLE 52. + +Ministers who are not members of the Parliament/Oireachtas shall be +nominated by a Committee of members of the Chamber/Dail Eireann chosen by +a method to be determined by the Chamber/Dail so as to be impartially +representative of the Chamber/Dail. Such Ministers shall be chosen with +due regard to their suitability for office and should as far as possible +be generally representative of the Irish Free State/Saorstat Eireann as a +whole rather than of groups or of parties. Should a nomination not be +acceptable to the Chamber/Dail, the Committee shall continue to propose +names until one is found acceptable. + +ARTICLE 53. + +Each Minister not a member of the Parliament/Oireachtas shall be the +responsible head of the Executive Department or Departments as head of +which he has been appointed as aforesaid; Provided that should +arrangements for Functional or Vocational Councils be made by the +Parliament/Oireachtas these Ministers or any of them may, should the +Parliament/Oireachtas so decide, be members of and be nominated on the +advice of such Councils. The term of office of any such Minister shall be +the term of the Chamber/Dail Eireann existing at the time of his +appointment or such other period as may be fixed by law, but he shall +continue in office until his successor shall have been appointed: and no +such Minister shall be removed from Office during his term unless the +proposal to remove him has been previously submitted to a Committee chosen +by a method to be determined by the Chamber/Dail so as to be impartially +representative of the Chamber/Dail and then only if the Committee shall +have reported that such Minister has been guilty of malfeasance in office +or has not been performing his duties in a competent and satisfactory +manner, or has failed to carry out the lawfully-expressed will of +Parliament/Oireachtas. + +ARTICLE 54. + +The Ministers who are members of the Parliament/Oireachtas shall alone be +responsible for all matters relating to external affairs whether policy, +negotiations, or executive acts. Subject to the foregoing provisions, the +Executive Council shall meet and act as a collective authority: Provided, +however, that each Minister shall be individually responsible to the +Chamber/Dail Eireann for the administration of the Department or +Departments of which he is head. + +ARTICLE 55. + +Ministers who are not members of the Chamber/Dail Eireann shall by virtue +of their office possess all the rights and privileges of a member of the +Chamber/Dail except the right to vote, and shall, if not members of the +Parliament/Oireachtas, comply with the provisions of Article 17 as if they +were members of the Chamber/Dail, and may be required by the Chamber/Dail +to attend and answer questions. + +ARTICLE 56. + +Should the President of the Executive Council die, resign or be +permanently incapacitated, the Vice-President of the Executive Council +shall act in his place until a President of the Executive Council shall be +elected. The Vice-President of the Executive Council shall also act in the +place of the President of the Executive Council during his temporary +absence. + +ARTICLE 57. + +The members of the Executive Council shall receive such remuneration as +may from time to time be prescribed by law, but the remuneration of any +Minister shall not be diminished during his term of office. + +ARTICLE 58. + +The Representative of the Crown, who shall be styled the Governor-General +of the Irish Free State, shall be appointed in like manner as the +Governor-General of Canada and in accordance with the practice observed in +the making of such appointments. The salary of the Governor-General of the +Irish Free State shall be of the like amount as that now payable to the +Governor-General of the Commonwealth of Australia and shall be charged on +the public funds of the Irish Free State/Saorstat Eireann and suitable +provision shall be made out of those funds for the maintenance of his +official residence and establishment. + +ARTICLE 59. + +The Executive Council shall prepare the Budget of receipts and expenditure +of the Irish Free State/Saorstat Eireann for each financial year and shall +present it to the Chamber/Dail Eireann before the close of the previous +financial year. + + +SECTION III.--THE EXECUTIVE. + +B.--FINANCIAL CONTROL. + +ARTICLE 60. + +All revenues of the Irish Free State/Saorstat Eireann from whatever source +arising, shall, subject to such exception as may be provided by law, form +one fund, and shall be appropriated for the purposes of the Irish Free +State/Saorstat Eireann in the manner and subject to the charges and +liabilities imposed by law. + +ARTICLE 61. + +The Chamber/Dail Eireann shall appoint a Comptroller and Auditor-General +to act on behalf of the Irish Free State/Saorstat Eireann. He shall +control all disbursements and shall audit all accounts of moneys +administered by or under the authority of the Parliament/Oireachtas and +shall report to the Chamber/Dail at stated periods to be determined by +law. + +ARTICLE 62. + +The Comptroller and Auditor-General shall not be removed except for stated +misbehaviour or incapacity on resolutions passed by the Chamber/Dail +Eireann and the Senate/Seanad Eireann. Subject to this provision the terms +and conditions of his tenure of office shall be fixed by law. He shall not +be a member of the Parliament/Oireachtas nor shall he hold any other +office or position of emolument. + + +SECTION IV.--THE JUDICIARY. + +ARTICLE 63. + +The judicial power of the Irish Free State/Saorstat Eireann shall be +exercised and justice administered in the public Courts established by +Parliament/Oireachtas by judges appointed in manner hereinafter provided. +These Courts shall comprise Courts of First Instance and a Court of Final +Appeal to be called the Supreme Court (Cuirt Uachtarach). The Courts of +First Instance shall include a High Court (Ard Chuirt), invested with full +original jurisdiction in and power to determine all matters and questions +whether of law or fact, civil or criminal, and also Courts of local and +limited jurisdiction with a right of appeal as determined by law. + +ARTICLE 64. + +The judicial power of the High Court shall extend to the question of the +validity of any law having regard to the provisions of the Constitution. +In all cases in which such matters shall come into question, the High +Court alone shall exercise original jurisdiction. + +ARTICLE 65. + +The Supreme Court of the Irish Free State/Saorstat Eireann 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. + +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. + +ARTICLE 66. + +The number of judges, the constitution and organisation of, and +distribution of business and jurisdiction among, the said Courts and +judges, and all matters of procedure shall be as prescribed by the laws +for the time being in force and the regulations made thereunder. + +ARTICLE 67. + +The judges of the Supreme Court and of the High Court and of all other +Courts established in pursuance of this Constitution shall be appointed by +the Representative of the Crown on the advice of the Executive Council. +The Judges of the Supreme Court and of the High Court shall not be removed +except for stated misbehaviour or incapacity, and then only by resolutions +passed by both the Chamber/Dail Eireann and the Senate/Seanad Eireann. The +age of retirement, the remuneration and the pension of such judges on +retirement and the declarations to be taken by them on appointment shall +be prescribed by law. Such remuneration may not be diminished during their +continuance in office. The terms of appointment of the judges of such +other courts as may be created shall be prescribed by law. + +ARTICLE 68. + +All judges shall be independent in the exercise of their functions, and +subject only to the Constitution and the law. A judge shall not be +eligible to sit in Parliament/Oireachtas, and shall not hold any other +office or position of emolument. + +ARTICLE 69. + +No one shall be tried save in due course of law and extraordinary courts +shall not be established. The jurisdiction of Courts Martial 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 prescribed 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. + +ARTICLE 70. + +A member of the armed forces of the Irish Free State/Saorstat Eireann not +on active service shall not be tried by any Court Martial for an offence +cognisable by the Civil Courts. + +ARTICLE 71. + +No person shall, save in case of summary jurisdiction prescribed by law +for minor offences, be tried without a jury on any criminal charge. + + +SECTION V.--TRANSITORY PROVISIONS. + +ARTICLE 72. + +Subject to this Constitution and to the extent to which they are not +inconsistent therewith, the laws in force in the Irish Free State/Saorstat +Eireann at the date of the coming into operation of this Constitution +shall continue to be of full force and effect until the same or any of +them shall have been repealed or amended by enactment of the +Parliament/Oireachtas. + +ARTICLE 73. + +Until Courts have been established for the Irish Free State/Saorstat +Eireann in accordance with this Constitution, the Supreme Court of +Judicature, County Courts, Courts of Quarter Sessions and Courts of +Summary Jurisdiction, as at present existing, shall for the time being +continue to exercise the same jurisdiction as heretofore, and any judge or +justice, being a member of any such Court, holding office at the time when +this Constitution comes into operation, shall for the time being continue +to be a member thereof and hold office by the like tenure and upon the +like terms as heretofore, unless, in the case of a judge of the said +Supreme Court or of a County Court, he signifies to the Representative of +the Crown his desire to resign. Any vacancies in any of the said Courts so +continued may be filled by appointment made in like manner as appointments +to judgeships in the Courts established under this Constitution. + +Provided that the provisions of Article 65 as to the decisions of the +Supreme Court established under this Constitution shall apply to decisions +of the Court of Appeal continued by this Article. + +ARTICLE 74. + +If any judge of the said Supreme Court of Judicature or of any of the said +County Courts resigns as aforesaid, or if any such judge, on the +establishment of Courts under this Constitution, is not with his consent +appointed to be a judge of any such Court, he shall, for the purpose of +Article 10 of the Scheduled Treaty, be treated as if he had retired in +consequence of the change of Government effected in pursuance of the said +Treaty, but the rights so conferred shall be without prejudice to any +rights or claims that he may have against the British Government. + +ARTICLE 75. + +Every existing Officer of the Provisional Government who has been +transferred to that Government from the British Government and every +existing Officer of the British Government, who, at the date of the coming +into operation of this Constitution, is engaged or employed in the +administration of public services which on that date become public +services of the Irish Free State/Saorstat Eireann (except those whose +services have been lent by the British Government to the Provisional +Government) shall on that date be transferred to and become an Officer of +the Irish Free State/Saorstat Eireann and shall hold office by a tenure +corresponding to his previous tenure, and shall be entitled to the benefit +of Article 10 of the Scheduled Treaty. + +ARTICLE 76. + +As respects departmental property, assets, rights, and liabilities, the +Government of the Irish Free State/Saorstat Eireann shall be regarded as +the successors of the Provisional Government, and, to the extent to which +functions of any department of the British Government become functions of +the Government of the Irish Free State/Saorstat Eireann, as the successors +of such department of the British Government. + +ARTICLE 77. + +After the date on which this Constitution comes into operation the House +of the Parliament elected in pursuance of the Irish Free State (Agreement) +Act, 1922 (being the constituent assembly for the settlement of this +Constitution), may, for a period not exceeding one year from that date, +but subject to compliance by the Members thereof with the provisions of +Article 17 of this Constitution, exercise all the powers and authorities +conferred on the Chamber/Dail Eireann by this Constitution, and the first +election for the Chamber/Dail Eireann under Articles 26 and 27 hereof +shall take place as soon as possible after the expiration of such period. + +ARTICLE 78. + +The first Senate/Seanad Eireann shall be constituted immediately after the +coming into operation of this Constitution in the manner following, that +is to say:-- + + (a) The first Senate/Seanad shall consist of two members elected by + each of the Universities in the Irish Free State/Saorstat Eireann and + fifty-six other members, of whom twenty-eight shall be elected and + twenty-eight shall be nominated. + + (b) The twenty-eight nominated members of the Senate/Seanad shall be + nominated by the President of the Executive Council who shall, in + making such nominations, have special regard to the providing of + representation for groups or parties not then adequately represented + in the Chamber/Dail. + + (c) The twenty-eight elected members of the Senate/Seanad shall be + elected by the Chamber/Dail Eireann voting on principles of + Proportional Representation. + + (d) Of the University members one member elected by each University, + to be elected by lot, shall hold office for six years, the remaining + University members shall hold office for the full period of twelve + years. + + (e) Of the twenty-eight nominated members, fourteen, to be selected + by lot, shall hold office for the full period of twelve years, the + remaining fourteen shall hold office for the period of six years. + + (f) Of the twenty-eight elected members the first fourteen elected + shall hold office for the period of nine years, the remaining + fourteen shall hold office for the period of three years. + + (g) At the termination of the period of office of any such members, + members shall be elected in their place in manner provided by Article + 31. + + (h) Casual vacancies shall be filled in manner provided by Article + 33. + + (i) For the purpose of the election of members for any University + under this Article, all persons whose names appear on the register + for the University in force at the date of the coming into operation + of this Constitution shall, notwithstanding anything in Article 14, + be entitled to vote. + +ARTICLE 79. + +The passing and adoption of this Constitution by the Constituent Assembly +and the British Parliament shall be announced as soon as may be, and not +later than the sixth day of December, Nineteen hundred and twenty-two, by +Proclamation of His Majesty and this Constitution shall come into +operation on the issue of such Proclamation. + + + + +SCHEDULE + +ARTICLES OF AGREEMENT FOR A TREATY BETWEEN GREAT BRITAIN AND IRELAND, +DATED THE SIXTH DAY OF DECEMBER, NINETEEN HUNDRED AND TWENTY-ONE. + +1. Ireland shall have the same constitutional status in the Community of +Nations known as the British Empire as the Dominion of Canada, the +Commonwealth of Australia, the Dominion of New Zealand, and the Union of +South Africa, with a Parliament having powers to make laws for the peace +order and good government of Ireland and an Executive responsible to that +Parliament, and shall be styled and known as the Irish Free State. + +2. Subject to the provisions hereinafter set out the position of the Irish +Free State in relation to the Imperial Parliament and Government and +otherwise shall be that of the Dominion of Canada, and the law, practice +and constitutional usage governing the relationship of the Crown or the +representative of the Crown and of the Imperial Parliament to the Dominion +of Canada shall govern their relationship to the Irish Free State. + +3. The representative of the Crown in Ireland shall be appointed in like +manner as the Governor-General of Canada, and in accordance with the +practice observed in the making of such appointments. + +4. The oath to be taken by Members of the Parliament of the Irish Free +State shall be in the following form:-- + + I ...... do solemnly swear true faith and allegiance to the + Constitution of the Irish Free State as by law established and that I + will be faithful to H.M. King George V., his heirs and successors by + law in virtue of the common citizenship of Ireland with Great Britain + and her adherence to and membership of the group of nations forming + the British Commonwealth of Nations. + +5. The Irish Free State shall assume liability for the service of the +Public Debt of the United Kingdom as existing at the date hereof and +towards the payment of war pensions as existing at that date in such +proportion as may be fair and equitable, having regard to any just claims +on the part of Ireland by way of set off or counterclaim, the amount of +such sums being determined in default of agreement by the arbitration of +one or more independent persons being citizens of the British Empire. + +6. Until an arrangement has been made between the British and Irish +Governments whereby the Irish Free State undertakes her own coastal +defence, the defence by sea of Great Britain and Ireland shall be +undertaken by His Majesty's Imperial Forces, but this shall not prevent +the construction or maintenance by the Government of the Irish Free State +of such vessels as are necessary for the protection of the Revenue or the +Fisheries. + +The foregoing provisions of this article shall be reviewed at a conference +of Representatives of the British and Irish Governments to be held at the +expiration of five years from the date hereof with a view to the +undertaking by Ireland of a share in her own coastal defence. + +7. The Government of the Irish Free State shall afford to His Majesty's +Imperial Forces:-- + + (_a_) In time of peace such harbour and other facilities as are + indicated in the Annex hereto, or such other facilities as may from + time to time be agreed between the British Government and the + Government of the Irish Free State; and + + (_b_) In time of war or of strained relations with a Foreign Power + such harbour and other facilities as the British Government may + require for the purposes of such defence as aforesaid. + +8. With a view to securing the observance of the principle of +international limitation of armaments, if the Government of the Irish Free +State establishes and maintains a military defence force, the +establishments thereof shall not exceed in size such proportion of the +military establishments maintained in Great Britain as that which the +population of Ireland bears to the population of Great Britain. + +9. The ports of Great Britain and the Irish Free State shall be freely +open to the ships of the other country on payment of the customary port +and other dues. + +10. The Government of the Irish Free State agrees to pay fair compensation +on terms not less favourable than those accorded by the Act of 1920 to +judges, officials, members of police forces, and other public servants who +are discharged by it or who retire in consequence of the change of +government effected in pursuance hereof. + +Provided that this agreement shall not apply to members of the Auxiliary +Police Force or to persons recruited in Great Britain for the Royal Irish +Constabulary during the two years next preceding the date hereof. The +British Government will assume responsibility for such compensation or +pensions as may be payable to any of these excepted persons. + +11. Until the expiration of one month from the passing of the Act of +Parliament for the ratification of this instrument, the powers of the +Parliament and the Government of the Irish Free State shall not be +exercisable as respects Northern Ireland, and the provisions of the +Government of Ireland Act, 1920, shall, so far as they relate to Northern +Ireland, remain of full force and effect, and no election shall be held +for the return of members to serve in the Parliament of the Irish Free +State for constituencies in Northern Ireland, unless a resolution is +passed by both Houses of the Parliament of Northern Ireland in favour of +the holding of such elections before the end of the said month. + +12. If before the expiration of the said month, an address is presented to +His Majesty by both Houses of the Parliament of Northern Ireland to that +effect, the powers of the Parliament and Government of the Irish Free +State shall no longer extend to Northern Ireland, and the provisions of +the Government of Ireland Act, 1920 (including those relating to the +Council of Ireland), shall so far as they relate to Northern Ireland, +continue to be of full force and effect, and this instrument shall have +effect subject to the necessary modifications. + +Provided that if such an address is so presented a Commission consisting +of three persons, one to be appointed by the Government of the Irish Free +State, one to be appointed by the Government of Northern Ireland and one +who shall be Chairman to be appointed by the British Government shall +determine in accordance with the wishes of the inhabitants, so far as may +be compatible with economic and geographic conditions the boundaries +between Northern Ireland and the rest of Ireland, and for the purposes of +the Government of Ireland Act, 1920, and of this instrument, the boundary +of Northern Ireland shall be such as may be determined by such Commission. + +13. For the purpose of the last foregoing Article, the powers of the +Parliament of Southern Ireland under the Government of Ireland Act, 1920, +to elect members of the Council of Ireland shall after the Parliament of +the Irish Free State is constituted be exercised by that Parliament. + +14. After the expiration of the said month, if no such address as is +mentioned in Article 12 hereof is presented, the Parliament and Government +of Northern Ireland shall continue to exercise as respects Northern +Ireland the powers conferred on them by the Government of Ireland Act, +1920, but the Parliament and Government of the Irish Free State shall in +Northern Ireland have in relation to matters in respect of which the +Parliament of Northern Ireland has not power to make laws under that Act +(including matters which under the said Act are within the jurisdiction of +the Council of Ireland) the same powers as in the rest of Ireland subject +to such other provisions as may be agreed in manner hereinafter appearing. + +15. At any time after the date hereof the Government of Northern Ireland +and the provisional Government of Southern Ireland hereinafter constituted +may meet for the purpose of discussing the provisions subject to which the +last foregoing Article is to operate in the event of no such address as is +therein mentioned being presented and those provisions may include:-- + + (_a_) Safeguards with regard to patronage in Northern Ireland. + + (_b_) Safeguards with regard to the collection of revenue in Northern + Ireland. + + (_c_) Safeguards with regard to import and export duties affecting + the trade or industry of Northern Ireland. + + (_d_) Safeguards for minorities in Northern Ireland. + + (_e_) The settlement of the financial relations between Northern + Ireland and the Irish Free State. + + (_f_) The establishment and powers of a local militia in Northern + Ireland and the relation of the Defence Forces of the Irish Free + State and of Northern Ireland respectively. + +and if at any such meeting provisions are agreed to, the same shall have +effect as if they were included amongst the provisions subject to which +the powers of the Parliament and Government of the Irish Free State are +to be exercisable in Northern Ireland under Article 14 hereof. + +16. Neither the Parliament of the Irish Free State nor the Parliament of +Northern Ireland shall make any law so as either directly or indirectly to +endow any religion or prohibit or restrict the free exercise thereof or +give any preference or impose any disability on account of religious +belief or religious status or affect prejudicially the right of any child +to attend a school receiving public money without attending the religious +instruction at the school or make any discrimination as respects State aid +between schools under the management of different religious denominations +or divert from any religious denomination or any educational institution +any of its property except for public utility purposes and on payment of +compensation. + +17. By way of provisional arrangement for the administration of Southern +Ireland during the interval which must elapse between the date hereof and +the constitution of a Parliament and Government of the Irish Free State in +accordance therewith, steps shall be taken forthwith for summoning a +meeting of members of Parliament elected for constituencies in Southern +Ireland since the passing of the Government of Ireland Act, 1920, and for +constituting a provisional Government, and the British Government shall +take the steps necessary to transfer to such provisional Government the +powers and machinery requisite for the discharge of its duties, provided +that every member of such provisional Government shall have signified in +writing his or her acceptance of this instrument. But this arrangement +shall not continue in force beyond the expiration of twelve months from +the date hereof. + +18. This instrument shall be submitted forthwith by His Majesty's +Government for the approval of Parliament and by the Irish signatories to +a meeting summoned for the purpose of the members elected to sit in the +House of Commons of Southern Ireland, and if approved shall be ratified by +the necessary legislation. + +(Signed) + + On behalf of the British Delegation, + D. LLOYD GEORGE. + AUSTEN CHAMBERLAIN. + BIRKENHEAD. + WINSTON S. CHURCHILL. + L. WORTHINGTON-EVANS. + HAMAR GREENWOOD. + GORDON HEWART. + + On behalf of the Irish Delegation, + ART O GRIOBHTHA. (ARTHUR GRIFFITH). + MICHAL O COILEAIN. + RIOBARD BARTUN. + E. S. O DUGAIN. + SEORSA GHABHAIN UI DHUBHTHAIGH. + + 6th December, 1921. + + +ANNEX. + +1. The following are the specific facilities required. + + DOCKYARD PORT AT BEREHAVEN. + + (_a_) Admiralty property and rights to be retained as at the date + hereof. Harbour defences to remain in charge of British care and + maintenance parties. + + QUEENSTOWN. + + (_b_) Harbour defences to remain in charge of British care and + maintenance parties. Certain mooring buoys to be retained for use of + His Majesty's ships. + + BELFAST LOUGH. + + (_c_) Harbour defences to remain in charge of British care and + maintenance parties. + + LOUGH SWILLY. + + (_d_) Harbour defences to remain in charge of British care and + maintenance parties. + + AVIATION. + + (_e_) Facilities in the neighbourhood of the above ports for coastal + defence by air. + + OIL FUEL STORAGE. + + (_f_) Haulbowline - {To be offered for sale to commercial + {companies under guarantee that + Rathmullen - {purchasers shall maintain a certain + {minimum stock for Admiralty purposes. + +2. A convention shall be made between the British Government and the +Government of the Irish Free State to give effect to the following +conditions:-- + + (_a_) That submarine cables shall not be landed or wireless stations + for communication with places outside Ireland be established except + by agreement with the British Government; that the existing cable + landing rights and wireless concessions shall not be withdrawn except + by agreement with the British Government; and that the British + Government shall be entitled to land additional submarine cables or + establish additional wireless stations for communication with places + outside Ireland: + + (_b_) That lighthouses, buoys, beacons, and any navigational marks or + navigational aids shall be maintained by the Government of the Irish + Free State as at the date hereof and shall not be removed or added to + except by agreement with the British Government: + + (_c_) The war signal stations shall be closed down and left in charge + of care and maintenance parties, the Government of the Irish Free + State being offered the option of taking them over and working them + for commercial purposes subject to Admiralty inspection and + guaranteeing the upkeep of existing telegraphic communication + therewith. + +3. A Convention shall be made between the same Governments for the +regulation of Civil Communication by Air. + + D. L. G. + A. C. + B. + W. S. C. + M. O. C. + + + + +Transcriber's Notes: + +Passages in italics are indicated by _underscore_. + +The following misprints have been corrected: + "moveover" corrected to "moreover" (page 28) + "Confederateion" corrected to "Confederation" (page 38) + "minorites" corrected to "minorities" (page 49) + "majorites" corrected to "majorities" (page 49) + "Commitee's" corrected to "Committee's" (page 55) + "Sarorstat" corrected to "Saorstat" (page 91) + + + + + + +End of Project Gutenberg's The Irish Constitution, by Darrell Figgis + +*** END OF THIS PROJECT GUTENBERG EBOOK THE IRISH CONSTITUTION *** + +***** This file should be named 32612.txt or 32612.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/3/2/6/1/32612/ + +Produced by Brian Foley and the Online Distributed +Proofreading Team at https://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive/American Libraries.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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