Chapter III

43 The English judges, even when favourable to the claims of the early
Irish Parliament, insisted on this limitation. _Cf._ the Case of the
Merchants of Waterford; Year Book, Ric. III., fol. 12.

_ 44 Cf._ Section 264 of the Merchant Shipping Act of 1894; also the
Fugitive Offenders Act of 1881 (44 & 45 Vict., cap. 69).

_ 45 Cf._ the Naturalization Act of 1870.

46 The law as to treason is not necessarily the same in the Colonies.
_Cf. Riel_ v. _The Queen_, 10 App. Cas. 675, and also _R._ v.
_Marais_, L.T. Rep. LXXXV., p. 363.

47 There can, I think, be no doubt as to the necessity. I know but one
opinion, and not a very authoritative one, to the contrary, namely
that of a Chief Justice of the Colony of Victoria. See _Musgrove_ v.
_Toy_ V.L. Rep. XIV. 349, and _supra_.

48 Even, however, if there had not been such an express grant of the
executive power in the Act, the Irish Parliament might, I think,
have assumed it by legislation. A colonial Legislature can, subject,
of course, to the veto of the Crown, confer on the Colonial
Government the prerogatives in so far as they are necessary to the
domestic government of the colony. _Cf._ Lefroy, “Legislative Power
in Canada,” p. 180.

49 No doubt the statutory powers exercisable under the first two Acts
would come within the control of the Irish Government.

50 His office is not the creation of statute except in so far as it was
necessary to place his salary on the Estimates. His office has,
however, frequently received statutory recognition in connection
with the creation of new Departments. _Cf._ the Irish Local
Government Board Act (1872), Section 3.

51 I have examined with some care the theory of Second Chambers in my
articles in _The Nineteenth Century_, for November, 1910, and June,
1911. I may also refer the reader to my book on “The House of Lords
and the Constitution,” and particularly to the Lord Chancellor’s
preface to the same. Foreign examples are dealt with in the reprint
of the author’s lectures on “The Place of a Second Chamber in the
Constitution” (1911).

52 There is this much to be said for nomination, that it does fulfil
the condition laid down by Alexander Hamilton and by Story as the
first canon of the bi-cameral theory—namely, that the basis of the
two chambers should be radically different. See Story’s Commentaries
(ed. Bigelow) Vol. I., Section 690. This is not so easy to secure by
election in modern times when there is suspicion of any other than a
democratic franchise.

53 Clause XII. (4).

54 For a survey of the Second Chambers in the Colonies I may refer the
reader to my article on the subject in _The Contemporary Review_ for
May, 1910.

_ 55 Kielley_ v. _Carson_, 4 Moore P.C. 63.

56 I refer the reader for detailed treatment of the subjects of Irish
Appeals, Constitutional Limitations, and Police and Judiciary, to
the chapters by Sir Frederick Pollock, Sir John Macdonell and
Serjeant Molony. I have not thought it necessary to touch on the
financial provisions of the Bill, as they are exhaustively treated
by Lord Welby in Chapter V.

_ 57 The Times_, April 16th.

58 See Mr. Cecil Harmsworth’s essay on the “State of Public Business,”
Chap. XV. of this work.

_ 59 Cf._ for example, Jellinek’s “Gesetz und Verordnung” (Freiburg,
1887), pp. 20-35.

60 I may here refer to an article of mine in the _Nineteenth Century_
for April of last year.

61 Statutory changes in the common law (it would be more correct to
call it “the civil law”) of Scotland are rarely made by Parliament
except on the initiative, or with the consent, of Scottish members.
There is a remarkable clause in the Act of Union between England and
Scotland (6 Anne, Cap II., Art. xviii.) providing that “no
alteration may be made in the (Scotch) laws which concern private
right except for evident utility of the subjects within Scotland.”

62 The law relating to matrimonial causes in Ireland is governed by the
Matrimonial Causes and Marriage Law (Ireland) Amendment Act of 1870,
and is practically the same as the English Law before the
Matrimonial Causes Act of 1857.

63 Power to make such re-arrangements or transfers by Order in Council
is given by Sections XL. and XLIV. of the Government of Ireland
Bill.—EDITORIAL NOTE.

64 The control by Government, of course, does not extend to the
magistrates’ judicial functions.

65 Recorders and County Court Judges are appointed by the Irish
Government.

66 Clause XXI. of the Bill provides for this.—EDITORIAL NOTE.

67 “Money for loans in Ireland shall cease to be advanced either by the
Public Works Loans Commissioners or out of the Local Loans Fund”
(Clause XIV. (3)).—EDITORIAL NOTE.

68 If transferred to the Irish Government.

69 The Office of Arms is now directly controlled by the
Lord-Lieutenant, and it is a question whether it should not remain
so.

70 The clause in question which set up a Court to be known as the
Exchequer Division with a quasi-federal jurisdiction has not been
repeated. _See_ Chapter I. of this work.—EDITORIAL NOTE.

71 Clauses II. and V. provide for the reservation of the Constabulary
for a period of six years from the appointed day, at the end of
which the force is to be transferred to the Irish Government. The
Dublin Metropolitan Police is transferable at once.—EDITORIAL NOTE.

72 Under the Bill it is permanently reserved, _i.e._,
“excluded.”—_Ibid._

73 Provision is made by Clause IV. of the Bill for the appointment of
heads of Departments who shall be known as “Ministers.” _See_