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
*** 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. Special rules,
set forth in the General Terms of Use part of this license, apply to
copying and distributing Project Gutenberg-tm electronic works to
protect the PROJECT GUTENBERG-tm concept and trademark. Project
Gutenberg is a registered trademark, and may not be used if you
charge for the eBooks, unless you receive specific permission. If you
do not charge anything for copies of this eBook, complying with the
rules is very easy. You may use this eBook for nearly any purpose
such as creation of derivative works, reports, performances and
research. They may be modified and printed and given away--you may do
practically ANYTHING with public domain eBooks. Redistribution is
subject to the trademark license, especially commercial
redistribution.
*** START: FULL LICENSE ***
THE FULL PROJECT GUTENBERG LICENSE
PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK
To protect the Project Gutenberg-tm mission of promoting the free
distribution of electronic works, by using or distributing this work
(or any other work associated in any way with the phrase "Project
Gutenberg"), you agree to comply with all the terms of the Full Project
Gutenberg-tm License (available with this file or online at
https://gutenberg.org/license).
Section 1. General Terms of Use and Redistributing Project Gutenberg-tm
electronic works
1.A. By reading or using any part of this Project Gutenberg-tm
electronic work, you indicate that you have read, understand, agree to
and accept all the terms of this license and intellectual property
(trademark/copyright) agreement. If you do not agree to abide by all
the terms of this agreement, you must cease using and return or destroy
all copies of Project Gutenberg-tm electronic works in your possession.
If you paid a fee for obtaining a copy of or access to a Project
Gutenberg-tm electronic work and you do not agree to be bound by the
terms of this agreement, you may obtain a refund from the person or
entity to whom you paid the fee as set forth in paragraph 1.E.8.
1.B. "Project Gutenberg" is a registered trademark. It may only be
used on or associated in any way with an electronic work by people who
agree to be bound by the terms of this agreement. There are a few
things that you can do with most Project Gutenberg-tm electronic works
even without complying with the full terms of this agreement. See
paragraph 1.C below. There are a lot of things you can do with Project
Gutenberg-tm electronic works if you follow the terms of this agreement
and help preserve free future access to Project Gutenberg-tm electronic
works. See paragraph 1.E below.
1.C. The Project Gutenberg Literary Archive Foundation ("the Foundation"
or PGLAF), owns a compilation copyright in the collection of Project
Gutenberg-tm electronic works. Nearly all the individual works in the
collection are in the public domain in the United States. If an
individual work is in the public domain in the United States and you are
located in the United States, we do not claim a right to prevent you from
copying, distributing, performing, displaying or creating derivative
works based on the work as long as all references to Project Gutenberg
are removed. Of course, we hope that you will support the Project
Gutenberg-tm mission of promoting free access to electronic works by
freely sharing Project Gutenberg-tm works in compliance with the terms of
this agreement for keeping the Project Gutenberg-tm name associated with
the work. You can easily comply with the terms of this agreement by
keeping this work in the same format with its attached full Project
Gutenberg-tm License when you share it without charge with others.
1.D. The copyright laws of the place where you are located also govern
what you can do with this work. Copyright laws in most countries are in
a constant state of change. If you are outside the United States, check
the laws of your country in addition to the terms of this agreement
before downloading, copying, displaying, performing, distributing or
creating derivative works based on this work or any other Project
Gutenberg-tm work. The Foundation makes no representations concerning
the copyright status of any work in any country outside the United
States.
1.E. Unless you have removed all references to Project Gutenberg:
1.E.1. The following sentence, with active links to, or other immediate
access to, the full Project Gutenberg-tm License must appear prominently
whenever any copy of a Project Gutenberg-tm work (any work on which the
phrase "Project Gutenberg" appears, or with which the phrase "Project
Gutenberg" is associated) is accessed, displayed, performed, viewed,
copied or distributed:
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
1.E.2. If an individual Project Gutenberg-tm electronic work is derived
from the public domain (does not contain a notice indicating that it is
posted with permission of the copyright holder), the work can be copied
and distributed to anyone in the United States without paying any fees
or charges. If you are redistributing or providing access to a work
with the phrase "Project Gutenberg" associated with or appearing on the
work, you must comply either with the requirements of paragraphs 1.E.1
through 1.E.7 or obtain permission for the use of the work and the
Project Gutenberg-tm trademark as set forth in paragraphs 1.E.8 or
1.E.9.
1.E.3. If an individual Project Gutenberg-tm electronic work is posted
with the permission of the copyright holder, your use and distribution
must comply with both paragraphs 1.E.1 through 1.E.7 and any additional
terms imposed by the copyright holder. Additional terms will be linked
to the Project Gutenberg-tm License for all works posted with the
permission of the copyright holder found at the beginning of this work.
1.E.4. Do not unlink or detach or remove the full Project Gutenberg-tm
License terms from this work, or any files containing a part of this
work or any other work associated with Project Gutenberg-tm.
1.E.5. Do not copy, display, perform, distribute or redistribute this
electronic work, or any part of this electronic work, without
prominently displaying the sentence set forth in paragraph 1.E.1 with
active links or immediate access to the full terms of the Project
Gutenberg-tm License.
1.E.6. You may convert to and distribute this work in any binary,
compressed, marked up, nonproprietary or proprietary form, including any
word processing or hypertext form. However, if you provide access to or
distribute copies of a Project Gutenberg-tm work in a format other than
"Plain Vanilla ASCII" or other format used in the official version
posted on the official Project Gutenberg-tm web site (www.gutenberg.org),
you must, at no additional cost, fee or expense to the user, provide a
copy, a means of exporting a copy, or a means of obtaining a copy upon
request, of the work in its original "Plain Vanilla ASCII" or other
form. Any alternate format must include the full Project Gutenberg-tm
License as specified in paragraph 1.E.1.
1.E.7. Do not charge a fee for access to, viewing, displaying,
performing, copying or distributing any Project Gutenberg-tm works
unless you comply with paragraph 1.E.8 or 1.E.9.
1.E.8. You may charge a reasonable fee for copies of or providing
access to or distributing Project Gutenberg-tm electronic works provided
that
- You pay a royalty fee of 20% of the gross profits you derive from
the use of Project Gutenberg-tm works calculated using the method
you already use to calculate your applicable taxes. The fee is
owed to the owner of the Project Gutenberg-tm trademark, but he
has agreed to donate royalties under this paragraph to the
Project Gutenberg Literary Archive Foundation. Royalty payments
must be paid within 60 days following each date on which you
prepare (or are legally required to prepare) your periodic tax
returns. Royalty payments should be clearly marked as such and
sent to the Project Gutenberg Literary Archive Foundation at the
address specified in Section 4, "Information about donations to
the Project Gutenberg Literary Archive Foundation."
- You provide a full refund of any money paid by a user who notifies
you in writing (or by e-mail) within 30 days of receipt that s/he
does not agree to the terms of the full Project Gutenberg-tm
License. You must require such a user to return or
destroy all copies of the works possessed in a physical medium
and discontinue all use of and all access to other copies of
Project Gutenberg-tm works.
- You provide, in accordance with paragraph 1.F.3, a full refund of any
money paid for a work or a replacement copy, if a defect in the
electronic work is discovered and reported to you within 90 days
of receipt of the work.
- You comply with all other terms of this agreement for free
distribution of Project Gutenberg-tm works.
1.E.9. If you wish to charge a fee or distribute a Project Gutenberg-tm
electronic work or group of works on different terms than are set
forth in this agreement, you must obtain permission in writing from
both the Project Gutenberg Literary Archive Foundation and Michael
Hart, the owner of the Project Gutenberg-tm trademark. Contact the
Foundation as set forth in Section 3 below.
1.F.
1.F.1. Project Gutenberg volunteers and employees expend considerable
effort to identify, do copyright research on, transcribe and proofread
public domain works in creating the Project Gutenberg-tm
collection. Despite these efforts, Project Gutenberg-tm electronic
works, and the medium on which they may be stored, may contain
"Defects," such as, but not limited to, incomplete, inaccurate or
corrupt data, transcription errors, a copyright or other intellectual
property infringement, a defective or damaged disk or other medium, a
computer virus, or computer codes that damage or cannot be read by
your equipment.
1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right
of Replacement or Refund" described in paragraph 1.F.3, the Project
Gutenberg Literary Archive Foundation, the owner of the Project
Gutenberg-tm trademark, and any other party distributing a Project
Gutenberg-tm electronic work under this agreement, disclaim all
liability to you for damages, costs and expenses, including legal
fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT
LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE
PROVIDED IN PARAGRAPH F3. YOU AGREE THAT THE FOUNDATION, THE
TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE
LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR
INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH
DAMAGE.
1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a
defect in this electronic work within 90 days of receiving it, you can
receive a refund of the money (if any) you paid for it by sending a
written explanation to the person you received the work from. If you
received the work on a physical medium, you must return the medium with
your written explanation. The person or entity that provided you with
the defective work may elect to provide a replacement copy in lieu of a
refund. If you received the work electronically, the person or entity
providing it to you may choose to give you a second opportunity to
receive the work electronically in lieu of a refund. If the second copy
is also defective, you may demand a refund in writing without further
opportunities to fix the problem.
1.F.4. Except for the limited right of replacement or refund set forth
in paragraph 1.F.3, this work is provided to you 'AS-IS' WITH NO OTHER
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR ANY PURPOSE.
1.F.5. Some states do not allow disclaimers of certain implied
warranties or the exclusion or limitation of certain types of damages.
If any disclaimer or limitation set forth in this agreement violates the
law of the state applicable to this agreement, the agreement shall be
interpreted to make the maximum disclaimer or limitation permitted by
the applicable state law. The invalidity or unenforceability of any
provision of this agreement shall not void the remaining provisions.
1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the
trademark owner, any agent or employee of the Foundation, anyone
providing copies of Project Gutenberg-tm electronic works in accordance
with this agreement, and any volunteers associated with the production,
promotion and distribution of Project Gutenberg-tm electronic works,
harmless from all liability, costs and expenses, including legal fees,
that arise directly or indirectly from any of the following which you do
or cause to occur: (a) distribution of this or any Project Gutenberg-tm
work, (b) alteration, modification, or additions or deletions to any
Project Gutenberg-tm work, and (c) any Defect you cause.
Section 2. Information about the Mission of Project Gutenberg-tm
Project Gutenberg-tm is synonymous with the free distribution of
electronic works in formats readable by the widest variety of computers
including obsolete, old, middle-aged and new computers. It exists
because of the efforts of hundreds of volunteers and donations from
people in all walks of life.
Volunteers and financial support to provide volunteers with the
assistance they need are critical to reaching Project Gutenberg-tm's
goals and ensuring that the Project Gutenberg-tm collection will
remain freely available for generations to come. In 2001, the Project
Gutenberg Literary Archive Foundation was created to provide a secure
and permanent future for Project Gutenberg-tm and future generations.
To learn more about the Project Gutenberg Literary Archive Foundation
and how your efforts and donations can help, see Sections 3 and 4
and the Foundation web page at https://www.pglaf.org.
Section 3. Information about the Project Gutenberg Literary Archive
Foundation
The Project Gutenberg Literary Archive Foundation is a non profit
501(c)(3) educational corporation organized under the laws of the
state of Mississippi and granted tax exempt status by the Internal
Revenue Service. The Foundation's EIN or federal tax identification
number is 64-6221541. Its 501(c)(3) letter is posted at
https://pglaf.org/fundraising. Contributions to the Project Gutenberg
Literary Archive Foundation are tax deductible to the full extent
permitted by U.S. federal laws and your state's laws.
The Foundation's principal office is located at 4557 Melan Dr. S.
Fairbanks, AK, 99712., but its volunteers and employees are scattered
throughout numerous locations. Its business office is located at
809 North 1500 West, Salt Lake City, UT 84116, (801) 596-1887, email
[email protected]. Email contact links and up to date contact
information can be found at the Foundation's web site and official
page at https://pglaf.org
For additional contact information:
Dr. Gregory B. Newby
Chief Executive and Director
[email protected]
Section 4. Information about Donations to the Project Gutenberg
Literary Archive Foundation
Project Gutenberg-tm depends upon and cannot survive without wide
spread public support and donations to carry out its mission of
increasing the number of public domain and licensed works that can be
freely distributed in machine readable form accessible by the widest
array of equipment including outdated equipment. Many small donations
($1 to $5,000) are particularly important to maintaining tax exempt
status with the IRS.
The Foundation is committed to complying with the laws regulating
charities and charitable donations in all 50 states of the United
States. Compliance requirements are not uniform and it takes a
considerable effort, much paperwork and many fees to meet and keep up
with these requirements. We do not solicit donations in locations
where we have not received written confirmation of compliance. To
SEND DONATIONS or determine the status of compliance for any
particular state visit https://pglaf.org
While we cannot and do not solicit contributions from states where we
have not met the solicitation requirements, we know of no prohibition
against accepting unsolicited donations from donors in such states who
approach us with offers to donate.
International donations are gratefully accepted, but we cannot make
any statements concerning tax treatment of donations received from
outside the United States. U.S. laws alone swamp our small staff.
Please check the Project Gutenberg Web pages for current donation
methods and addresses. Donations are accepted in a number of other
ways including including checks, online payments and credit card
donations. To donate, please visit: https://pglaf.org/donate
Section 5. General Information About Project Gutenberg-tm electronic
works.
Professor Michael S. Hart was the originator of the Project Gutenberg-tm
concept of a library of electronic works that could be freely shared
with anyone. For thirty years, he produced and distributed Project
Gutenberg-tm eBooks with only a loose network of volunteer support.
Project Gutenberg-tm eBooks are often created from several printed
editions, all of which are confirmed as Public Domain in the U.S.
unless a copyright notice is included. Thus, we do not necessarily
keep eBooks in compliance with any particular paper edition.
Most people start at our Web site which has the main PG search facility:
https://www.gutenberg.org
This Web site includes information about Project Gutenberg-tm,
including how to make donations to the Project Gutenberg Literary
Archive Foundation, how to help produce our new eBooks, and how to
subscribe to our email newsletter to hear about new eBooks.
