Chapter XXVI: Section 5: dealing with the provinces almost recall the centralising (3)

“What in the world do you want?” is the cry indignantly repeated in Belfast conventions, as if it had not been answered a thousand times. Well, once more; it is self-government, so far as that is compatible with the interests of the Empire, to which Ireland belongs and must still belong unless a mighty convulsion of nature puts it elsewhere. It is the right of every civilized and progressive people, the grant of which to its dependencies is the glory of the British Empire, and in preparation for which it governs its subject races in India or Africa. Is Ireland less fit after nine centuries of English government to rule itself on constitutional lines than Canada or the South African Union? Possibly it is; for the centuries have been a weary apprenticeship in misgovernment rather than in constitutional methods; but all the more surely does the long experiment stand condemned, and it may well give place to saner methods. As in personal, so in national life, the sole condition of mature development is responsibility. The father or ruler who jealously denies it to one come to years of discretion is a bungler or a tyrant, ignorant of the first principles of education. For all these centuries the Irish race has been in leading strings; and those most guilty of multiplying and tightening the bonds are naturally the enemies of its independence and of the only method ever discovered by God or man to secure the growth of virtue, the acquisition of strength, or the fulfilment of personal and national promise. Experience is the best, the only, teacher of practical politics; and the mistakes and losses in life incurred by folly or ignorance are our best discipline. To charge a people with incapacity who have never been trusted with power is the resort of stupid malice. Irishmen have vindicated before the world their fitness to fight its battles, or command its armies; as captains of industry they have led in every land, and the British Empire above all is indebted to the statesmen, proconsuls, travellers, scholars and divines that have issued from the race. What a people to be denied the elementary rights of self-government! If Unionists are sincere in deploring the absence of a true spirit of citizenship in the Irish, what have they ever done to encourage it? Sympathy with men’s difficulties, appreciation of their virtues, co-operation in their efforts, Christian charity and trust—these, and not suspicion, distrust, misrepresentation and opposition, should have been the Protestant contribution to the growth and happiness of a people, whom in private life they themselves always admit to be generous friends and neighbours.

Self-government must be based on representation, and the right of majorities. Recognized universally in the Empire, this simple dictate of justice is to be denied to Irishmen in their own land, because the great majority is Roman Catholic. “It is not constitutional” said Gladstone in 1886, “to refuse the demand of five-sixths of the duly elected representatives of a country”; and ever since then the representation has never changed nor has the demand abated. That it is resisted in the name of Religion, not Politics, we are not allowed for one moment to forget; and no one in Protestant circles is unfamiliar with the assertion, how ardently Home Rule would be welcomed if it were not for the Priest in politics and the dread of “Rome Rule.” But let it be recognized that under free institutions it is the right of the majority to rule, irrespective of their religious creed; and that to deny that right in Ireland is to establish a tyranny of the minority—an oligarchy in these days of Democracy! Nothing can exceed the sincerity of men, good but blinded by prejudice, when on Belfast platforms they declare their desire for equality and hatred of ascendency. But what a ludicrous fallacy they fall into when with the same breath they assert their resolve never to submit to the Government of the great majority of their fellow countrymen. In other words they, a small minority, contend for a union with the Parliament of another country for this express purpose, that by the aid of its votes they may override the unanimous wish of three-fourths of the people of their own land. This is the very gist of the Anti-Home Rule demonstration in Belfast on April 9th. It was not Irish in any true sense. The platforms crowded with sixty members of Parliament representing British Constituencies, presided over by noblemen such as a Grand Master of Orangemen and a great coal owner who has practically ceased to be an Irish landowner, addressed by eminent counsel who have transferred their services to the English bar for reasons best known to themselves, ex-ministers and aspirants to office in a Unionist administration—it was a brave show of party political force; but nothing can hide or minimize the fact that it is all avowedly an effort to support and intensify the claim of about half the population of Ulster, and one-fourth of the population of Ireland, to resist and overthrow the rights of Irishmen to the privileges of representative government. If the Unionists of Ireland sincerely desire equality and disavow ascendency in their own country, let them prove it by being willing to accept the conditions of life and legislation naturally imposed by the will of a majority, in the discussion of which they will possess and exercise a fair, or according to their ability, a preponderating degree of influence. But let them cease to demand in their country the predominance of social, political and religious ideals, natural perhaps to England and Scotland now, but alien to Ireland, and secured only by foreign, that is non-Irish, votes.

The representation of minorities on a complete system of proportional voting is an absolute necessity in Ireland. Considering the number of the population, there is very marked and wide-spread variety of opinion. The Orangemen of the cities are often democratic Radicals, however much evil associations may at times corrupt their good manners; Catholic Irishmen, even the clergy (notwithstanding the _semper eadem_ cry), are sharply divided by lines of severance that will appear when the present unnatural combinations pass out of sight, Unionist and Nationalist becoming meaningless; Nonconformists here, as elsewhere, differ from Episcopalians on important subjects; Molly Maguires, Sinn Feiners, Gaelic Leaguers have something to say as regards Irish life worth hearing; and all must find a voice in any true representation of the country’s thought and purpose. The United Kingdom, too, probably needs such a reform in representation, and cannot do better than witness the trial of the experiment on the political body of the sister island.

It is on such fundamental principles of government the argument for Home Rule stands, and Liberalism at all events would be untrue to its very genius in hesitating to confer the boon. Irish Home Rule has been the touchstone of Liberalism, and it is not by any accident that Unionists, who abandoned their old creed to refuse Ireland’s plea, became arrant Tories, and have ceased to exist as a political party.

The objections made by Protestants are formidable and specious. They appeal to passion rather than to reason; they exploit religion in opposition to Christianity; they ignore history and flourish on journalism; they forget humanity’s claims in their zeal for sectional interests.

The stock argument in Belfast appears to be that in the interests of “Empire” Home Rule is impossible. Yet Ireland was under the British Crown when 42,000 volunteers were enrolled under Lord Charlemont and the Duke of Leinster to protect her shores from foreign foes; the stigma of the word “Separatist” has been repudiated by every responsible Irish statesman; and so long as Britain’s naval and military power lasts, the secession of 4 millions of people within one hour’s sail is an absolute impossibility, should any one desire “the dismemberment of the Empire.” Let candid Englishmen consider a simple question; which is the more likely and the more intimidating, menace to the Empire: a discontented, disloyal and impoverished Ireland, or one proud in its self-dependence, grateful to its benefactor, and united by every consideration of mutual protection and benefit? Or which will be of most credit to Britain in the estimation of her Colonies and of the civilized world?

Timid Ulstermen deplore “the loss of their birthright in the Empire”; their civil and religious liberties, they say, are imperilled, their commercial prosperity is sure to suffer. It is hard even to imagine the conception they have formed of their countrymen. Is it as fools or rogues, slaves or tyrants, they wish to caricature the inhabitants of the land, in which they so reluctantly dwell, for the delectation of ignorant foreigners? For none other can be imposed on by such diatribes. Are Irishmen engaged in a struggle for 150 years to gain independence and the rights of men, to signalize their victory by denying civil and religious liberty to their fellows; or are a people whose own industries have been ruined in the past by legal restraints on trade, whose enterprise and efforts to establish new industries and foster old ones are being rewarded with a few gleams of prosperity, dull or wicked enough to wish to injure commercial or manufacturing triumphs in the north of which they are proud? Ask the commercial travellers from Ulster, who enter every town in Ireland, whether their wares are scouted and themselves insulted because of Orange bluff or threats. No! Irishmen are neither fools nor bigots.

The ordinary method of producing prejudice on these topics is to recount the crimes and outrages that have darkened the past of Irish agrarian life. No one can deny their existence, or palliate their enormity. They were the inevitable incidents of war; one of the most bitter ever waged over such a period of years. It was a war of rebellion against misgovernment, of revenge for political crimes, a frantic struggle for life and home on the part of a peasantry down-trodden, ejected, starved; it was the last and successful phase of a great agrarian movement to secure the rights of free born men in the land they tilled. Many crimes have been committed, but who can distribute the blame? and any fair historian will recollect the exasperation under which they were committed, the failure of every attempt at redress, the findings of Royal Commissions disregarded and the promises of politicians forgotten, the evictions and legalized tyranny of rack-renting landlords, and the steady decrease of this violence as constitutional agitation has gained a hearing and a more humane spirit has inspired Parliamentary action. But such crimes as were committed were never acts of religious persecution or violations of the civil liberties of Protestants as such. Roman Catholics who opposed the national movement, or sided with the party accountable for the wrong, suffered also; and it is absolutely unjust and unhistorical to quote the violence of an angry and a maddened people as prophetic, or even suggestive, of similar wrongs likely to be perpetrated under an Irish Government. If the Irish Roman Catholics desired to persecute Protestants, there has been plenty of opportunity to do so; and, in three-fourths of the country, life could have been made intolerable and impossible to farmers and merchants dependent on the goodwill of their neighbours. Yet a universal testimony to the contrary is borne by Protestants of every class and party in the middle and southern counties where Romanism is predominant. The charges of intolerance freely levelled at the Protestant of the north in connection with certain notorious incidents of the political campaign have been repelled and, it was supposed, answered by reference to the boycotting outrages of the land struggle; but what unprejudiced critic would ever admit that such incidents could be paralleled with, or afford any justification for, the petty tyranny to which men have been subjected in Ulster, because they dared to differ in opinion from the majority and to utter the expression of their deliberate convictions?

One of the most curious arguments relied on now against Home Rule, is the prosperity of Ireland under the Union. It used to be Ireland’s miserable poverty and thriftlessness that were assigned as proof of its unfitness for self-government; now the blessed effects of the self same Union have produced such prosperity that self-government is not needed or even wanted!

A daring orator in Belfast proclaimed “the independent Parliament of Ireland a dismal failure, and the Imperial Parliament a distinct success.” The improved condition of Ireland is a matter of deep gratification, specially as a foretaste of a better future. But to boast of the prosperity of a country with its population reduced by one-half in fifty years, with its poor little agricultural holdings of a £10 valuation extending to one-half of the total, its sodden fields and ill-drained lands, its treeless hills and undeveloped mineral resources, its famished peasants and shoeless children carrying sods of peat to the village school, is a heartless jibe emanating from the wealthy capital of the North. The “distinct success” of a century of so-called Union government is an equally audacious flight of fancy. Most people would wish to find a contented people, living under the ordinary laws of constitutional government, advancing industries, growing population, and plentiful food as the tokens of a distinct success under a government of ever-increasing wealth and power: but seven famines desolated the land during the century; “for thirty-five years after the Union, Ireland was ruled for three years out of every four by laws giving extraordinary powers to the Government; and in the next fifty years (1835-1885) there were only three without Coercion and Crime Acts.”(166) That for the boasted success of Unionism in Ireland! The present prosperity is due to the National movement, in response to which Gladstone secured the tenant right for the farmer, and disestablished the Church, commencing that long series of beneficent but belated reforms which have inspired the Irish people with hope, and of which the last and crowning gift of independent self-government awaits completion.

To return to the more distinctly religious aspects of the question, though all that means liberty and progress ought to appeal to every Protestant’s warmest sentiments, let us examine briefly the alleged dangers arising from the power of the Roman Catholic priesthood and their influence on a national government. It is ungenerous to forget all but the seamy side of the Priest’s influence in Ireland. In many a dark day he was the poor man’s only champion, and he has won a place of love in the people’s heart not lightly granted or easily lost. But no one familiar with Irish life fails to notice a change in the relations of priest and people whether it be a portent of good or evil. The spread and consolidation of democratic feeling, the many ties between the cabin in Ireland and the children’s home in America, the spread of education and the influence of the Press, are exercising in Ireland, as similar causes do elsewhere, a deep influence on the simple piety, or as some call it, the superstition of the people. The cry “no priest in politics” prevails as never before; and that their sphere of influence in limited to questions of faith and morals is being widely recognized by the clergy themselves. Influences at work in European Catholic countries must more and more reach Ireland, and possibly its danger is not from clericalism but from a slackening hold of the only form of Christianity that has ever won the heart of the people. At all events Roman Catholicism in Ireland has never been an aggressive force forcing its faith on other communions, but seems content to be let alone and to minister to its own adherents unmolested, as it has not been in the past.

When Protestant interests such as education, temperance, Sunday observance, marriage laws, and morals generally, are said to be in imminent danger, what is it that is meant exactly? On such subjects there are interests that are essential, and others that are matters of opinion: very important to those who think them right, but of no weight to others. As to legislation on these questions, if Protestants imagine they have any claim or chance to impose their views in a National Parliament as they have been accustomed to do, or try to do, by aid of English votes at Westminster, the sooner they are disillusioned the better. But if they are satisfied to secure essential interests, such as thoroughness in education, increased sobriety by temperance reform, sanctity for marriage, and liberty for Sunday observance according to the conviction of each, what ground have they to fear that the influence of the Roman Catholic clergy will be cast on the side opposed to their aims? There is a very wonderful ignorance in the mind of the ordinary Protestant as to the attitude of the Catholic clergy on moral and social questions. In temperance, for instance, no Church in Ireland can rival in extent or efficiency the work of the Capuchin Fathers, the Redemptorists, or the Pioneers, an organization formed by a Jesuit priest, and rivalling in thoroughness and success the “Catch-my-Pal” crusade of the Presbyterian Church. In education, too, of every grade the Roman Catholic Church advances with extraordinary zeal. True, there are Protestants who complain of the Roman Catholic opposition to “mixed education”—a palpably unfair complaint, whose underlying motive is a sectarian hope to weaken the hold of religion on the people. There has been nothing like unanimity among the Protestant Churches on the same subject. Each of them has tried its best to secure in the educational sphere its own denominational interests. It was the cry “Hands off Trinity” that killed Mr. Bryce’s University Bill, which would have united the youth of Ireland in one grand university, in which Trinity might have been the proud leader of Irish University education. That legislation on education should be demanded on the lines of a mixed system is quite unreasonable, being a matter of very divided opinion; but as to the keen and successful competition of the Roman Catholic schools and colleges with all the older institutions in the country there is no question among those who know.

As to the moral interests of the community, it is a rather daring assumption that they will be imperilled under a distinctly Nationalist government. The reputation of the Irish race for pre-eminence in the domestic virtues is a well established fact, and no incidents of later years can cast even a passing shadow on the fair fame of her sons and daughters. The standard of religious observance on such a matter as Sunday may be different from that of the Protestant Churches. In practice the latter have not much to boast; and experience gives no reason whatever to fear any interference with the freest pursuit of their religious convictions. The decree _Ne temere_ and cases of the undoubted miscarriage of justice arising from it have created much discussion and distrust as to the validity, under an Irish Parliament, of the marriage bond. The sanctity of that bond in the eyes of the Roman Catholic Church, to whom it is a Sacrament, cannot be doubted; and if the object of the decree is, as it appears to be, to prevent mixed marriages, it ought to win the approval of many Protestants who strongly condemn such alliances; but it is for the civil law and the Executive of any government to provide that marriages legally celebrated shall be upheld by all the power of the State. And Ireland, according to Mr. Asquith’s Home Rule Bill, has no reason to dread any failure in that duty. As to the decree commonly known as _Motu proprio_, it never has been promulgated, or acted on, in Ireland or elsewhere in the British dominions. It was unearthed, after centuries of existence, by a party newspaper, and exploited for all it was worth, and a great deal more, to embitter anti-Catholic prejudices, and score a point in the Irish discussion.

As to Guarantees, opinion is much divided among Protestants. They are at best a temporary device to allay fear; and can never be a substitute for the real and honourable safeguards to be found in freedom and publicity of discussion, the spread of enlightenment and toleration, the growing spirit of Christian brotherhood and goodwill. The provisions in the Government Bill appear to be ample; but all paper guarantees are easily evaded, and it is on more permanent and spiritual assurances Protestants must rely.

Seldom has Protestantism had a finer chance than she will have in Ireland under self-government, if only, inspired with the spirit of her Master and the love of her native liberty, she seeks not to grasp power, but to render service, if her idea of character be not the “old man” with his haunting memories of wrong done and suffered, but the “new man” of the Gospel, inspired by a fresh enthusiasm for the realisation of the Divine purpose in regenerated human society. No Protestant Church will perhaps ever be the Church of Ireland, as one powerful communion with a touch of the old arrogance claims to be; yet Protestantism may add something to the national piety and progress, nay, she may be another bulwark to the Christian faith in days of strain and stress, if she can exhibit to a naturally religious people a tangible proof of the possibility of uniting the Apostolic creed with the intellectual demands of modern progress, and in this way help to save the youth of Ireland from a desolating materialism. Thus Protestantism may yet be enabled to make some pious reparation for many an unholy deed done in her name to the most generous people under the sun.

FOOTNOTES

1 Professor Dicey in “A Leap in the Dark” (1911), p. 118. _Cf._ Mr.
Balfour in _The Times_, May 3rd, 1912.

2 “The Law of Constitution,” Sixth Edition, p. 162, where Professor
Dicey makes a rather unhappy attempt to force the Dominion
Constitution into the category of Federalism.

3 The opinion of Laband (“Staatsrecht,” I., _passim_) as to its being
found in the totality of allied Governments represented by the
Bundesrath is probably nearest the truth.

4 Laband, “Die Entwickelung des Bundesraths,” Jahrbuch des
oeffentlichen Rechts, 1907, Vol. I., p. 18.

5 Maitland, _Domesday Book and Beyond_, p. 345.

6 It is difficult to understand what Professor Dicey means by saying
“unity is increasing throughout the Empire.” His argument seems like
a play upon the words unity and union. In merchant shipping,
copyright and other such matters, the whole tendency is towards
differentiation.

7 There are innumerable cases, _e.g._ _Cruikshank’s case_ and the
_Slaughter House case_.

_ 8 Cf._ Mr. Balfour, _The Times_, May 3rd.

_ 9 Cf._ “Pacificus” in _The Times_, April 30th.

10 I refer, of course, to the decisions of the Supreme Court—decisions
almost revolutionary in their character—in connection with the
annexation of Hawaii, the Philippines and Porto Rico. See in
particular _Downes_ v. _Bidwell_, 182 U.S., 244; also _Territory of
Hawaii_ v. _Makichi_, 23 S.C. Rep., 787, and _Dorr_ v. _United
States_, 195 U.S., 138.

11 It cannot be contended with any show of reason that the grant of a
constitution legally carries with it a grant of the Executive power
such as to divest the Imperial Government of its authority. There is
but a solitary opinion to the opposite effect—that of Higginbottom,
C. J. of Victoria, in _Musgrove_ v. _Toy_ (Victorian Law Reports,
XIV., 349).

12 The veto of the central Government on the local legislature is the
most decisive departure from the Federal principle. The Judicial
Committee have always regarded it, in the case of the British North
America Act, as a conclusive reason for rejecting the application of
the Federal doctrines of the U.S. Courts to the interpretation of
the Canadian Constitution. See _infra_, and _cf. Bank of Toronto_ v.
_Lambe_, 12 App. Cas., 575.

13 Difficulties arise when, as in the case of the Australian
Commonwealth, an attempt is made to reconcile the principles of the
American Constitution with those of the English Constitution. The
State Governments in Australia, equally with the Federal Government,
are carried on in the name of the Crown; what, then, becomes of the
prerogative doctrine that the Crown is not bound by a taxing
statute, when the Federal Executive attempts to levy Customs duties
under a Federal statute upon the property of a State Government? The
High Court found itself compelled to distinguish between several
capacities of the Crown in a Federal system. See _A-G. of New South
Wales_ v. _Collector of Customs_, 5 C.L.R., 818.

_ 14 In re Neagle_, 135 U.S. Rep., p. 1.

_ 15 Cf._ Sir William Anson, in the _Law Quarterly Review_, 1886.

16 There is, however, a provision in Clause XXVI. of the Bill Providing
that, in the event of a revision of the financial arrangements being
recommended by the Joint Exchequer Board, with a view to securing an
Imperial contribution from Irish revenues, and “extending the powers
of the Irish Parliament and the Irish Government with respect to the
imposition and collection of taxes,” there shall be summoned to the
Imperial Parliament such number of members of the _Irish_ House of
Commons as will raise the representation of Ireland in that
Parliament from its reduced figure of forty-two to such a number
(say seventy) as will represent Ireland’s claim to representation on
a population basis. That is to say, the Irish Parliament will send
some twenty-eight of its members to reinforce the forty-two members
who are directly elected to the Imperial Parliament by the
constituencies. It is only proper that Ireland should not be
required to contribute to Imperial purposes except with the consent
of the full representation to which she is entitled. But the clause
will require more careful definition: for example, the Irish
Parliament ought to be required to choose these twenty-eight
delegates in proportion to the representation of Irish parties in
the Imperial Parliament, so as not to “pack” the delegation. It can
hardly be denied that the provision makes a change in the
constitution of the Imperial Parliament itself, and a somewhat
anomalous one. It ought to be carefully considered in Committee. So,
also, ought the powers of the Joint Exchequer Board, whose decisions
are to be “final and conclusive.”

17 Clause XLI.

18 Clause XLI. (2).

19 The power of the Dominion Parliament to make laws for the peace,
order, and good government of Canada has, however, been so
interpreted as to permit of a large degree of concurrent
legislation. See _Russell_ v. _The Queen_, 7 App. Cas. 829. The
Dominion Government can also exercise a veto on provincial
legislation when it runs counter to the “settled policy” of the
Dominion. But in these respects the Canadian Constitution diverges
from the true Federal type.

_ 20 The King_ v. _Barger_, Commonwealth Law Reports, VI., p. 41.

_ 21 Riel_ v. _The Queen_, 10 App. Cas. 675.

22 Cf. _Reg._ v. _Burah_, 3 App. Cas. 889; _Hodge_ v. _The Queen_, 9
App. Cas. 117; _Powell_ v. _The Apollo Candle Company_, 10 App. Cas.
282.

23 The Imperial Parliament can, of course, legislate for any part of
the world (_Cf._ _Earl Russell’s_ Case, 1901, App. Cas. 446), but
its power is limited in practice.

_ 24 Cf._ _Bank of Toronto_ v. _Lambe_, 12 App. Cas. 575.

25 In _McCulloch_ v. _Maryland_, 4 Wheaton 316.

26 I am concerned here only with the justification for the omission of
constitutional restrictions. The Bill, as compared with its
predecessors, is conspicuous in this respect. Such restrictions as
it actually contains are dealt with by Sir John Macdonell in Chapter
IV.

27 Let me cite in illustration _Tilonko_ v. _The Attorney-General of
Natal_, L.R. (1907), A.C. 93 and 461, and _Philips_ v. _Eyre_
(1869), Q.B.

_ 28 Walker_ v. _Sauvinet_, 92 U.S. 90.

_ 29 Cf._ Clause IV. (8) of the 1893 Bill.

30 Such legislation must affect alike all persons similarly situated,
_cf._ _Yick Wo_ v. _Hopkins_, 118 U.S. 356.

_ 31 Cf._ on this subject the decision of the Judicial Committee in
_Union Colliery Co. of British Columbia_ v. _Bryden_ (1899) A.C.
580.

32 “Towards a Social Policy” (1905).

33 For example, the statutory limitations of the doctrine of common
employment which was based on the common law doctrine that the
workman had freely contracted to undertake the risks of his
employment.

34 Mr. Justice O. W. Holmes, of the Supreme Court of the United States,
writes to me on the subject of constitutional restrictions as
follows: “The police power is a ’conciliatory phrase’ to cover the
fact that if the infringement is not very big it will be sustained.
The police power would warrant a State law limiting the height of
buildings in a certain region to, say, 70 feet; but if you limited
them to 5 feet you would have to fall back on Eminent Domain and pay
for it—so that the beginning of constitutional rights may be
measured in feet. In other words, constitutional restrictions cannot
be carried to extremes, but end in a penumbra.”

35 The best example of this liberalising interpretation of the police
power is the famous _Slaughter House Case_ (16 Wall. 36). _Cf._ as
to regulation of the liquor trade _Barbemeyer_ v. _Iowa_ (18 Wall.
129), and _Mayler_ v. _Kansas_ (123 U.S. 623). For a general review
of cases bearing on the restrictive words of the Fourteenth
Amendment and their qualification by the necessity of allowing State
Legislatures the benefit of the police power, see the case of the
Utah Miners Act, 18 Supreme Court Reporter 383.

_ 36 Cf._ the leading case of _Metropolitan Asylums Board_ v. _Hill_ and
_cf._ _Partington_ v. _The Attorney-General_, L.R. 4 H.L. 122.

37 The decisions of the Supreme Court at Washington in the annexation
cases are a remarkable example of this. Their decision in the case
of _Dorr_ v. _United States_ that trial by jury did not extend to
the Philippines, on the ground that it was not a right fundamental
in its nature, set up a distinction which is not to be found in the
Constitution itself, and therefore left it to the court to decide
principles of constitutional law which are unwritten. _Cf. Harvard
Law Review XIX._ 547.

38 As to the safeguard against legislation affecting the rights of
religious minorities and to laws of marriage, see Sir John
Macdonell’s remarks in Chapter IV. _infra_.

_ 39 Cf. Philips __v.__ Eyre_ _supra_.

40 This would apply to the Tenure of Office Act.

41 The mere fact that the Crown had given its consent to an Irish Act
would not make that Act _intra vires_ if it exceeded the powers of
the Irish Legislature. It might subsequently be declared _ultra
vires_ by a Court at any time.

42 I am not at all sure that this provision was necessary. The Crown
already has the power under 3 & 4 Will. IV. cap 41, sec. 4 to refer
to the Judicial Committee any such matters whatsoever as it may
think fit. The Canadian Government has a similar power conferred on
it by the Supreme Court Act, 1875, extended by 54 & 55 Vict.,
enabling the Governor-General in Council to refer to the Supreme
Court certain specified matters, particularly questions touching the
validity of provincial or Dominion legislation. The decision of the
court operates as a declaratory judgment, on which an appeal may be
taken to the Judicial Committee. For example of its exercise _cf._
the Manitoba Schools Case. See Sir Frederick Pollock’s remarks in