Chapter VII: Section 4: of the Bill of 1893, according to which the powers of the Irish (3)

It appears from the published text of the Bill [cl. 29, sub.-cl. 1] that the Lord-Lieutenant or a Secretary of State—in ordinary political language either the Irish Government or the Home Government—may refer a question whether any provision of an Irish Act or Bill is constitutional to be heard and determined by the Judicial Committee of the Privy Council. That Committee is to decide who are the proper parties to argue the case. There does not seem to be any reason to apprehend that the parties interested would make difficulties on the score of expense; they would be either public authorities or representative associations. This provision is really not a novelty but a special declaration, and perhaps an enlargement, of the very wide power given by the Act which established the Judicial Committee in 1833,(82) and empowered the King “to refer to the said Judicial Committee for hearing or consideration any such other matters whatsoever as His Majesty shall think fit”: a power more than once exercised in our own time.(83) It is quite easy, however, for even learned persons who are not familiar with the practice of the Privy Council to overlook the existence of this enactment, and therefore the insertion of an express clause in the Home Rule Bill is judicious. Probably no one will seriously propose to deprive the Crown, as regards Ireland, of a power which it already has throughout the British Empire. But it is a matter from which party politics ought to be rigorously excluded. It should be understood that the power will not be exercised without a considered opinion of the law officers, in Ireland or here, that there is a substantial and arguable question.

IV.—Constitutional Limitations Upon The Powers Of The Irish Legislation. BY SIR JOHN MACDONELL, C.B., LL.D.

Securities For Religious Freedom

It may be of interest before dealing with the safeguards for religious liberty in Ireland to describe those adopted in other countries. This survey, made in no controversial spirit, may help to give a proper sense of perspective and proportion. A brief comparative study of the legal safeguards for religious liberty may not perhaps help much to inspire the spirit of charity and toleration, which are its best supports. But we know our own position better when we know that of others. It is some gain also to find that others have had the same problems as ours, and have solved them with more or less success. Certain fears are much abated when it is recognised that it is proposed to make in Ireland an experiment of a kind which has been satisfactorily carried out elsewhere. Political justice has been found, in the countries to which I refer, compatible with religious freedom. Why not in Ireland?

Constitutional Limitations

I. PROGRESS OF RELIGIOUS LIBERTY

In most States to-day religious liberty exists with some qualifications—it is one of the most characteristic features of modern legislation. All religious denominations are tolerated; some may be favoured; all are free so long as they do not come into conflict with generally accepted principles of morality. In most States there is a further advance; we find a tendency, more and more accentuated, towards religious equality; more and more is it the policy of States to place all religious denominations upon the same footing. This principle is not carried out completely in all or indeed in most States. Certain churches are in a special sense State Churches. In some countries, the churches of large parts of the population are treated as “recognised churches,” to their advantage and to the exclusion, it may be, of others. In Austria, for example, there are six recognised churches and religious societies; and a similar system exists in Hungary.

I do not attempt to analyse the many causes of these movements. The fact at all events is that, whether as the result of the attrition, everywhere going on, of dogmatic creeds, or of the growth of the spirit of tolerance, or of indifference, or the rediscovery of charity as a fundamental principle of Christianity, or because toleration is the line of least resistance, or because it best accords with democracy, almost everywhere in modern times in Europe and America religious equality seems to be the condition towards which States are moving. It is worthy of notice that complete freedom is demanded by many sincere adherents of churches who are impatient of State control, and who believe that spiritual life thrives best in an atmosphere of freedom. It is the creed, I am inclined to think, of an ever increasing number that the existence of a free Church in a free State is to the welfare of both.

Even where the principle is questioned, practice tends to conform thereto. Reluctantly and grudgingly conceded as a favour, religious toleration becomes part of the habitual attitude of mind at first of the more enlightened and then of ordinary men. The principle of religious liberty or equality is still disputed by the Church of Rome.(84) The doctrines of Gregory VII. and Innocent III. are still asserted as of old. The syllabus of Pius IX. condemns the principle of equality as enshrining an error not less pernicious because common; it is the vain attempt to equalise creeds incomparable with each other and radically different; such liberty is no better than liberty to err. That is the position taken up in the Papal Syllabus. But in modern times all churches, the Roman Catholic not excepted, have yielded, often insensibly and reluctantly, to the pressure of facts. The ideal condition may be domination of the church; the practical problem in adverse circumstances is how to make the best compromise. Vatican decrees notwithstanding, the powers which issue them cannot, and do not, press their claims as they once did. Immutable in doctrine, they are found to be adaptive in practice. Churches which retract nothing alter their practice; they do not escape the influence of the age and the country, Ireland not excepted, in which they work. Everywhere the tendency is towards religious equality; I find abundant evidence of it even in the policy of the Church of Rome. Many books have been written describing the recent increase of the pretensions of Papal absolutism. There exists, so far as I am aware, no complete history of the policy pursued by the Church of Rome in countries in which it cannot give full effect to its doctrines respecting the true connection between Church and State. Such a history would reveal the existence and exercise of a singularly adaptive power; the growth of a policy suitable for and acceptable in non-Catholic countries and under democratic rule. In the wonderfully rich system of the Canon law are devices suitable for all circumstances. The Church may promulgate a decree in one country and not in another; the Tridentine decrees at the close of some four centuries are not yet made universally obligatory. It may for centuries leave it uncertain whether a bull specially assertive of the power of the Church, is in force in a particular country. The doctrine of the Canon law as to the efficacy of customs, and particularly local customs, permits of variations in accordance with the necessities of time and place. _Semper eadem_, but elastic and always opportunist—such is the character of the actual policy of the Church;(85) and there is no reason to think that it will be otherwise in Ireland under popular government.

The Roman Catholic Church has lately shown itself accommodating in Germany in regard to the marriage law. When Dr. Hogan of Maynooth College writes of “the peaceful character and disposition of the church and her reluctance to cause any disturbance of the social affairs of States or communities, even where the vast majority of the people are hostile to her religious claims”; when he adds “if it can be shown that a new law (the _Ne temere_ decree) inflicts any serious grievance on Protestants in this country, we are satisfied that due consideration will be given to any representations which may be made in this matter,” he is borne out by the recent policy of his Church, even if one cannot admit the accuracy of his further statement: “Such has always been the policy and practice of the Church in this matter.”—(_See_ _Irish Ecclesiastical Record_, February, 1911). The system never breaks, but it bends—bends to the exigencies of new situations, and particularly of democratic institutions, such as will exist in Ireland under Home Rule.

II. SECURITIES FOR RELIGIOUS LIBERTY

How to obtain and still more how to secure such liberty or equality is a problem in every modern State. The actual solutions, though many, fall into a few groups(86); I enumerate the chief. There are countries with State Churches in which have gradually been made concessions to other denominations. England is the typical example. Religious equality (so far as it exists) is the result of a long series of measures; the successive removal of disabilities of Dissenters and Roman Catholics; of measures relating to the tenure of public offices, and as to marriage, or oaths. No one Act states any governing principle. After the fashion of English legislation there has been movement from point to point, though, on the whole, always, or with few relapses, in modern times, in one direction. The securities for equality are found in a long series of individual statutes. Such, also, may be said to have been the history of religious equality in Hungary; as in so many countries there has been a gradual abandonment of the old maxim _cujus regio, ejus religio_.

I am concerned with the safeguards for equality within a State, and so I need say little or nothing of the Gallican system, which was intended to secure liberty against foreign intrusion. It was the liberty claimed by a church, which refused toleration to other denominations; the protests of a national Church part of Catholicism against the intrusion of the Papacy; it was the assertion of claims, which, to quote Saint Simon, “_blessent douloureusement la Cour de Rome_”; assertions of the doctrine that the French kings were in secular matters independent of the Pope, and that the Pope’s spiritual authority was limited by the laws of the church. In some countries, churches have secured a large measure of religious liberty or autonomy by means of Concordats with the civil Power. The typical case is that of the Catholic Church in France, where such a system may be said to have existed from the Concordat of Bologna, concluded between Francis I. and Leo X. in 1516, until recent times, with the exception of a short break at the Revolution; they may be said to have established an offensive and defensive alliance between Church and State.

I come to systems and devices chiefly used in modern times to secure religious liberty or equality. They are to be found in particular in countries possessing written constitutions. Either they lay down with more or less clearness principles of religious equality, or, dealing specifically with some pressing danger or difficulty, they provide a safeguard as to it. The first striking example of this kind of restriction is to be found in America. Dread of the existence of an established Church and of its ultimate effects upon republican institutions was shared by the framers of the United States Constitution and most of the framers of the States Constitutions. The provision which Jefferson caused to be inserted in the Virginia Bill of Rights and the article in the Massachusetts Declaration of Rights have been copied with variations by the States. Speaking generally, they provide for equality of treatment of religious denominations (Stimson, “Federal and State Constitutions,” p. 137). In the Constitution of the United States there is only one Article on the subject (Amendment, Article 1). “Congress shall make no law respecting the establishment(87) of religion or prohibiting the free exercise thereof.” In the United States true equality exists; all denominations are treated alike; the modern tendency towards equality has triumphed as the result partly of national habits and partly of constitutional restrictions.

I may here cite one or two examples of modern Constitutions which have laid down principles designed to secure religious equality.(88) Naturally Switzerland, with its population nearly equally divided into Catholics and Protestants, has been obliged to deal with this question, and so far as I am aware, it has done so with success. The principles of religious equality are embodied in the amended Constitution of 1874. I quote the chief provisions, because they are on the whole the most complete set of existing safeguards which I have found.

“_Article_ 49.—La liberté de conscience et de croyance est
inviolable. Nul ne peut être constraint de faire partie d’une
association religieuse, de suivre un enseignement religieux,
d’accomplir un acte religieux, ni encourir des peines, de quelque
nature quelles soient, pour cause d’opinion religieuse.

“L’exercice des droits civils ou politiques ne peut être restreint
par des prescriptions ou des conditions de nature ecclésiastique
ou religieuse, quelles qu’elles soient.

“Nul ne peut, pour cause d’opinion religieuse, s’affranchir de
l’accomplissement d’un devoir civique.

“Nul n’est tenu de payer des impôts dont le produit est
spécialement affecté aux frais proprement dits du culte d’un
communauté religieuse à laquelle il n’appartient pas. L’exécution
ultérieure de ce principe reste réservée à la legislation
fédérale.

“_Article_ 50.—Le libre exercice des cultes est garanti dans les
limites compatibles avec l’ordre public et les bonnes mœurs.

“_Article_ 54.—Le droit de mariage est placé sous la protection de
la conféderation.

“Aucun empêchement au mariage ne peut être fondé sur des motifs
confessionels.”

While declaring the principle of liberty of conscience, the Swiss Federal Constitution permits the cantons to give a privileged position to certain religious denominations; they may give them subsidies; they may invest them with certain prerogatives denied to other bodies less favoured. For example, in Fribourg, the Catholic and the Protestants are put on a footing of equality. Owing to the powers possessed by the separate cantons religious equality is not so complete as at first sight might seem. No serious difficulty appears to have been experienced in giving effect to the above provisions(89) which are not so complete as those found in the Home Rule Bill.

III. SAFEGUARDS IN COLONIES

I come to legislation which may seem of a kind more helpful and instructive than that of Continental countries. In the British Colonies there is no connection between the State and Church. The sole important exception is in Canada, where “the church can compel by law the payment of dues by Roman Catholics, and thus obtains great privilege from, while independent of, the State.”(90)

In framing the Constitution for the Canadian Dominions the religious question chiefly considered related to education; it was deemed necessary to guard against legislation which might impair existing rights. It was with an eye to the possibility of injustice being done to the denominational schools that special provisions were inserted in the North American Act accordingly (30 & 31 Vic., c. 3, 1867, Section 93):

“In and for each province the Legislative may exclusively make
laws in relation to education, subject and according to the
following provisions:

“(1) Nothing in any such Act shall prejudicially affect any right
or privilege with respect to denominational schools which any
class of persons have by law in the province at the union;

“(2) All the powers, privileges and duties at the union law
conferred and imposed in Upper Canada on the separate schools and
school trustees of the Queen’s Roman Catholic subjects shall be
and the same are hereby extended to the dissentient schools of the
Queen’s Protestant and Roman Catholic subjects in Quebec;

“(3) Where in any province a system of separate or dissentient
schools exists by law at the union, or is thereafter established
by the Legislature of the province, an appeal shall lie to the
Governor-General in Council from any Act or decision of any
provincial authority affecting any right or privilege of the
Protestant or Roman Catholic minority of the Queen’s subjects in
relation to education;

“(4) In case any such provincial law as from time to time seems to
the Governor-General in Council requisite for the due execution of
this section is not made, or in case any decision of the
Governor-General in Council on any appeal under this section is
not duly executed by the proper provincial authority in that
behalf, then and in every such case, and as far only as the
circumstances of each case require, the Parliament of Canada may
make remedial laws for the due execution of the provisions of this
section, and of any decision of the Governor-General in Council
under this section.”(91)

Lately there have arisen religious difficulties to which this section has no application. By the Confederation Act (Section 91) the Dominion Parliament has exclusive jurisdiction as to marriage and divorce; jurisdiction which would appear to relate to capacity as to marriage. By