The New Irish Constitution: An Exposition and Some Arguments
History
The New Irish Constitution: An Exposition and Some Arguments
Home rule -- Ireland; Ireland -- Politics and government
The enumeration of matters in respect of which the Irish Parliament shall
have no power to make laws is a little deceptive, inasmuch as many of the
matters so enumerated would have been outside its power in any case.
Ireland is not, so long as the Act of Union remains on the Statute Book, a
sovereign state, and “the making of peace or war” and the negotiation of
treaties would, as a matter of international law, have been impossible in
her case, even if they had not been expressly prohibited. “Merchant
shipping” and “the return of fugitive offenders” would also have been
excluded from her authority by the rule of law(43) which precludes a
subordinate legislature from extra-territorial legislation. The same may
be said of Copyright. The colonies have only been enabled to deal with
these matters in virtue of clauses in Acts of the Imperial Parliament.(44)
But it would not be true to say that the position of the Irish Parliament
is assimilated to that of the legislature of a self-governing colony. The
exclusion of subjects relating to allegiance, such as naturalization(45)
and treason,(46) and of legislation as to aliens is exceptional. All the
self-governing colonies have power to deal with these matters, as also
with the subject of naval and military forces. Perhaps the most important
exemption in the case of Ireland is that of trade, trade-marks, designs,
merchandise marks and patent rights. I cannot help regretting that,
inasmuch as the principle has been adopted of giving Ireland general and
unenumerated powers, the number of specific exemptions has not been
enlarged. It is highly desirable to avoid conflict of laws in the United
Kingdom as far as possible. It must be remembered that the Statute Book
has, quite apart from the Act of Union, bound Ireland to England by many
legislative ties; there is a uniform system of industrial, commercial,
and, to some extent, criminal law for the whole of these Islands—Factory
Acts, Companies Acts, the law of negotiable instruments, criminal
procedure, old-age pensions, and insurance legislation; in all these there
is legislative standardization, and the tendency of all modern political
unions, notably those of the Australian Commonwealth and the German
Empire, is in this direction. Confusion, injustice, and economic
inequalities constantly occur in a modern State whose inhabitants are
living under a “conflict of laws.” Fiscal considerations point the same
way. It may be safely assumed that English opinion will not tolerate any
considerable divergence between the fiscal systems of England and Ireland.
Moreover, financial considerations apart, the regulation of “trade” is, as
in every political union, reserved for the central legislature. But to
distinguish between “trade” on the one hand and “industry” on the other is
not an easy problem, and Ireland may discriminate against England only
less effectively by lowering the standard of the Factory Acts than by a
tariff.
Public-domain text, read in full here on John Shaqi.
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