Chapter I: of this work.—EDITORIAL NOTE

74 This convention of the English Constitution, which rests on a
Standing Order of the House of Commons, is embodied in the Bill
(Clause X. (2)).—_Ibid._

75 A similar provision appears in the new Bill, but the character of
the Executive Committee is much more explicitly defined. _See_
Clause IV.; _also_ Chapter I. of this work.—EDITORIAL NOTE.

_ 76 Marbury_ v. _Madison_, 1 Cranch, at pp. 177-8.

77 The principal authority is _Hodge_ v. _Reg._ (1883) 9 App. Ca. 117,
132. See also the _Maritime Bank of Canada’s_ case (1892) A.C. 437,
442.

_ 78 Ex parte Carew_ (1897) A.C. 719. It is not clear that the judgment
was adequately considered.

79 See _Russell_ v. _Reg_. (1882) 7 App. Ca., 829, 839.

_ 80 Citizens’ Insurance Company of Canada_ v. _Parsons_ (1881) 7 App.
Ca. 96, 109.

_ 81 Webb_ v. _Outrim_ (1907) A.C. 81. The appeal which before the
Constitution Act of 1900 lay direct to the Crown in Council from the
Supreme Courts of the several Australian Colonies is not abolished.

82 3 and 4 Will. IV. c. 41, s. 4. Under this section the question
whether the Royal assent should be given to a Bill of the Irish
Parliament could certainly be referred to the Judicial Committee,
but it seems doubtful whether an Act already passed could be so
dealt with, as the matter would then be beyond the competence of an
Order in Council.

83 See Prof. Harrison Moore in _Law Quart. Rev._, xx. 236.

84 The Syllabus of March 8th, 1861 (Proposition 57) condemned the
proposition that “any other religion than the Roman Catholic may be
established by the State.”

85 To illustrate this, I quote first from a Roman Catholic writer of
distinction: “Religious liberty may be introduced when it is
required for the common good, to prevent greater evils, or when it
has been a necessity” (Hergenröther, Vol. II., p. 364). “Where
modern States exist with freedom of conscience and several religious
denominations with equal rights, it is impossible further to carry
out the principles of the Church. In these days the Church is
confined to the purely ecclesiastical domain, and her whole
endeavours must be directed to preserve her necessary freedom, or if
she does not possess it, to win it back” (Hergenröther, Vol. I., p.
65). The next quotation is from a modern Protestant historian “The
Pope would like to have freedom of conscience in Sweden and Russia;
but he does not wish for it on principle, but only as a means which
may be used by Providence to propagate the truth in those countries.
Pius IX. and Mgr. Pie were agreed that only in countries where the
Catholics are in a minority might religious freedom be wished for by
Catholics” (Nielsen “History of the Papacy in the Nineteenth
Century,” Vol. II., p. 263). See also _Ueber die Entwickelung des
Katolischen Kirchenrechts im 19. Jahrhundert_, Von Dr. Fritz
Fleiner.

86 Mr. Gladstone (“Church and State,” p. 185) enumerates eight
principles adopted by modern Governments with regard to the support
of religion and the treatment of its varieties. He subsequently
reduces them to four; the first in which heresy and schism were
visited with civil penalty _pro salute animæ_ for the cure of the
individual. The second in which they were similarly visited, but
chiefly in the view of preventing the infection of society within
which limits they had appeared. The third in which disqualifications
of a civil kind are imposed instead of penalties. The fourth is that
in which all forms of religion claim from Government a precisely
equal regard, as respects either civil privileges or positive
assistance (pp. 187, 188). Zeller (“Staat und Kirche,” p. 6) reduces
the principles to three; substantial identity of Church and State;
complete separation; partial separation and identity.

87 As to meaning of “establishment,” see _Bradfield_ v. _Roberts_
(1899), 175 U.S. 291.

88 The German _Reichsgesetz_ of July 3rd, 1869, expressly repeals all
civic disqualifications based upon religion (Laband, Vol. I., p.
148).

89 See as to cases which have come before the Swiss Courts (Buckhardt,
p. 484).

90 Keith: “Responsible Government in the Dominions,” Vol. III., 1423n.
In Gignac’s “Compendium Juris Canonici ad Usum Cleri Canadensis”
(1901) is a statement of the large rights which the Catholic Church
has acquired in Canada in virtue of treaties.

91 See, as to the effect of this section, _Barrett_ v. _City of
Winnipeg_ (1892) A.C. 445; also _Brophy_ v. _Attorney-General of
Manitoba_ (1895) A.C. 202.

92 “There is at present no general marriage law for the Dominion, and
it is disputed whether the Dominion Parliament has power to pass
such an Act. Each province has legislated with respect to this
subject. The Government of the Dominion have just referred to the
Supreme Court (March 11th) a stated case regarding the respective
jurisdictions of the Dominion and provinces in regard to a marriage
law. The Quebec provinces argued that there is no power on the part
of the Dominion Parliament to submit such a case to the Supreme
Court. The point stands over until May 7th.” (_The Globe_, Toronto,
March 12th.)

_ 93 Brown_ v. _Curé de Montreal_, L.R. 6, P.C. 157. See _O’Keefe_ v.
_Cullen_, Report by Fitzpatrick; also 7 Irish Reports, 319.

_ 94 The Times_, March 1st, 1911.

95 It is only right that the rest of the letter should be quoted: “But
it is, in my opinion, much to be regretted that by the promulgation
of the decree, and even more by the language which appears to be
sometimes used to secure obedience to it, the Roman Catholic Church
should introduce confusion into domestic life and give rise to
unnecessary and disquieting doubts as to the legal validity of
marriages already contracted, or as to the lawful status of persons
who may hereafter marry.”

96 “Ecclesia haec matrimonia mixta communiter improbavit atque
detestata,” Lehmkuhl Theologia Moralis, Vol. II., p. 511.

97 See Statement by Monsignor Bidwell in _Dublin Review_, 148, p. 327;
also article “_Apostolicæ Sedis_.” Vacant, _Dictionnaire Théologie
Catholique_.

98 Reiffensteuel, Vol. II., p. 245, asserts that the privilege is not
lost by immemorial custom, even as to civil matters.

99 It is perhaps hardly necessary to remind the reader that Lord Welby
was a member of the Royal Commission on the Financial Relations
between England and Ireland which reported in 1896.—_Editorial
Note._

100 The “_true_” revenue differs from the _collected_ revenue, by making
allowance for duties paid in the one country on articles consumed in
the other.

101 Any charge in excess of £1,000,000 on the Constabulary was to be
borne by the Imperial Exchequer.

102 Probably over-estimated.

103 True Revenue £8,000,000, Irish Expenditure £6,000,000, Contribution
£2,000,000.

104 It is not clear from the Bill or the explanatory paper, whether the
Irish Postal Revenue will be paid into the British Exchequer in the
first instance, or retained in the Irish Exchequer. I presume the
former.

105 £11,339,000 minus £7,562,000 = £3,777,000.

106 The Constabulary charge is fixed at first at £1,337,000. If in the
six years of Imperial control the cost rises to (say)
£1,500,000-£1,500,000 will be the sum transferred; but the Bill does
not say what is to happen if the cost were to fall to (say)
£1,300,000. Explanation is needed as to the effect of the proviso
that regard is to be had to the prospect of any increase or decrease
expected to arise from causes not being matters of administration.

107 60 and 61 Vic. c. 66, 7 Edward VII. c. 44.

108 6 & 7 Will. IV., c. 29; 7 Will. IV., and 1 Vict., c. 25; 5 & 6
Vict., c. 24.

109 Civil Service Estimates, 1912-1913, Class III., p. III.

110 6 & 7 Will. IV., c. 13; 2 & 3 Vict., c. 75; 22 & 23 Vict., c. 22.

111 Civil Service Estimates, 1912-1913, Class III., p. 119.

112 Taking Census of 1911 as a basis, see Civil Service Estimates
1912-1913, Class III. pp. 111 and 119, Reports of H.M. Inspectors of
Constabulary for England and Wales, 1910, p. 135.

113 “Against Home Rule,” p. 155.

114 4 Bingham, “New Cases,” p. 574.

115 Judgments of the Superior Courts in Ireland published under the
direction of the Attorney-General for the information of magistrates
(1889), p. 23.

_ 116 Attorney-General_ v. _Kissane_, 32 Law Reports, Ireland, p. 220.

117 4 Bingham, “New Cases”, p. 574 _supra_.

118 “The Motu Proprio ‘Quantavis Diligentia’ and its Critics,” by the
Archbishop of Dublin, p. 10.

119 Speech upon the Address, February, 1909.

120 This sum has, since the 31st of March, been considerably reduced.

121 Part I. of this Chapter incorporates the statement on the Land
Question prepared by the Right Hon. W. F. Bailey, Estates
Commissioner for the Commission on Congestion in Ireland, presided
over by the Earl of Dudley. It has been brought up-to-date, but
otherwise it is almost word for word as the learned Commissioner
wrote it.

_ 122 Cf_. Mr. Balfour, _The Times_, November 7th, 1911.

123 A considerable portion of this chapter appeared in the form of an
article in _The Contemporary Review_ in the year 1887, but it has
been rewritten by Lord Fitzmaurice for the purposes of this work. We
have to thank the Editor of the _The Contemporary Review_ for his
kind permission to make use of the original text—_Editorial Note_.

124 Speech of October 28th, 1738: “Grattan’s Speeches,” i., 183.

125 Grattan to Fox, April 18th, 1782: “Fox’s Correspondence,” i., 403.

126 “Grattan’s Speeches,” i., 129.

127 “Fox’s Correspondence,” by Lord Russell, i. 412.

128 Lord Rockingham to Lord Shelburne, May 25th, 1782, “Parliamentary
History,” xxxiv., 979.

129 “Life of Lord Shelburne,” iii., 144.

130 “Fox’s Correspondence,” i., 417, 418.

131 “Life of Lord Shelburne,” iii., 145.

_ 132 See_ “Life of Grattan.”

133 “Fox’s Correspondence,” i., 416; “Life of Lord Shelburne,” iii.,
143.

134 “Life of Lord Shelburne,” iii., 146.

135 Fox: “Speeches,” ii., 64, 65.

136 “Grattan’s Speeches,” Vol. III., 355, 409; January 15th, February
22nd, 1800. “Fox’s Correspondence,” i., 426; “Life of Lord
Shelburne,” iii., 149; “Parliamentary History,” xxx., 957 (Speech of
General Fitzpatrick).

137 Speech of July 19th, 1782.

138 Speech of Grattan, January 15th, 1800: “Speeches,” Vol. III., 355.

139 “Fox’s Correspondence,” i., 431.

140 “Life of Lord Shelburne,” iii., 150.

141 “Parliamentary History,” xxxiv., 675, 678; “Memoirs of the Whig
Party,” by Lord Holland, I. 147; “Life of Lord Shelburne,” iii.,
554, 555.

142 Letter on the Affairs of Ireland, 1797.

143 28 Geo. III., c. 28.

144 Much interesting light has been thrown on the history of the
struggle in 1782-1783 between Grattan and Flood, by the publication
of the Diary and Correspondence of Lord Charlemont, in the Reports
of the Historical MSS. Commission, Twelfth Report, Appendix Part X.,
1891. The abstract doctrine of the legislative supremacy of the
British Parliament, and not only the practical application of that
doctrine, was strenuously disputed by many of the leaders of
Colonial Opinion in America as well as in Ireland at the
commencement of the XVIIIth century, as a reference to the
literature of the Stamp Act and the Declaratory Act of 1766 will
show. The doctrine itself was one of the consequences of the
Revolution of 1688, which true to the general principle of exalting
the importance of the British Parliament, abolished on the one hand
the right of the Crown to tax the Colonies by virtue of its
prerogative, and on the other asserted a right in the British
Parliament to legislate and tax in the “settled” Colonies of the
Crown concurrently with the local representative assemblies, and, if
necessary, over their heads. The same class of arguments were used
both by Colonial and by Irish statesmen against the claims of the
British Parliament to interfere as between them and the Crown; but
the Irish case was always the stronger of the two, because her
advocates were able to start from the admitted right and position of
Ireland as a kingdom, with a Crown of her own. To the claims of the
British Parliament, the Whig statesmen, recognising their danger in
practice, tried to set constitutional limitations, and hence grew up
the distinction, on which the elder Pitt relied, between the right
of Great Britain to impose by law internal taxation within the
Colonies for the purposes of revenue, and her right to levy external
taxation for the regulation of Colonial trade. This distinction,
however, from a legal point of view, Lord Mansfield showed, would
not bear examination, and he laid down the law to be, that the
Parliament of Great Britain had an absolute legislative supremacy
over her Colonies—and by implication over Ireland—in all cases
whatever, whether for internal or external objects; whether to
impose a tax, or to regulate trade; whether to levy money, or to
make general enactments; and this doctrine it was which was recorded
in the Declaratory Act of George III. of 1766, relating to the
Colonies, the counterpart of the Declaratory Act of George I.,
relating to Ireland. (_See_ Bancroft, Vol. III., Ch. xix., The
Absolute Power of Parliament; “Life of Lord Shelburne,” Vol. I., Ch.
iv., p. 253.)

145 “Life of Lord Shelburne,” i., 285.

146 Montesquieu, “Considérations sur la Grandeur et la Decadence des
Romains.”

147 Lecky.

148 For further details see _Dublin Castle and the Irish People_.

149 Bright.

150 Poor Law Commission (Ireland) Report 1903-1906, p. 12.

151 “Dublin Castle and the Irish People.”

152 Gavan Duffy: “Young Ireland.”

153 “In Ireland,” said Lord Normanby, “the landlord has the monopoly of
the means of existence, and has a power of enforcing his bargains
which does not exist anywhere—the power of starvation.”

154 Gavan Duffy: _League of North and South._

155 I have done so in “Dublin Castle and the Irish People,” _see_ p.
264, _et seq._

156 Mr. Commissioner Bailey.

157 John Stuart Mill.

158 A debate took place in the House of Lords on the subject on February
17th, 1905. The correspondence between Mr. G. Wyndham and Sir A.
MacDonnell on the latter’s appointment appears as an appendix in
“The Outlook in Ireland” (John Murray. 1912.)

159 Mr. Barry O’Brien’s “Life of Parnell.” Vol. I., p. 93.

160 “Federation and Empire,” p. 315. (H. Henry & Co., 1896.)

161 This Table has already been published in a chapter which I
contributed to “Home Rule Problems,” edited by Basil Williams (King,
1911).

162 “Home Rule Problems,” pp. 67-72. (King, 1911.)

163 “Parliamentary Debates,” Vol. CCCXVIII., p. 688.

164 A Quarterly Review of the politics of the British Empire, which is
entirely free from any partisan prepossessions.

_ 165 See_ Kipling’s “Ulster.”

166 “Irish Nationality” (Home University Library.)

<pre id="pg-footer">