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
Some of the
earlier Acts establishing self-government, following the common form of
the old colonial charter, provided that local legislation should not be
repugnant to the laws of England. This might have been held to forbid such
revolutionary changes as abolishing the publicity of Courts of Justice or
depriving prisoners of the right to trial by jury. In our own time the
question has been raised whether the sacred number of twelve jurymen could
be reduced by Order in Council in a criminal court established under the
Foreign Jurisdiction Acts in an Asiatic country.(78) But in 1865 it was
expressly declared by the Colonial Laws Validity Act that the enactments
of colonial legislatures should not be called in question for repugnancy
to the law of England in any other sense than repugnancy to some Act of
the Imperial Parliament or an order made under its authority.
These matters are only preliminary to the questions that arise under
federal constitutions, but they are necessary to be understood if we are
to avoid confusion. In the case of a federated Dominion within the British
Empire the federal constitution is itself an Act of the Imperial
Parliament, and therefore all exercise of legislative power in the
Dominion, whether by the central legislature or by that of any constituent
State or Province, must be consistent with its provisions, or otherwise it
will clearly be invalid to the extent of the repugnancy or excess. Every
such constitution has to assign the bounds of central and local
legislation; in the case of Canada, for example, the field of action open
to the Dominion Parliament at Ottawa and the legislatures of the several
Provinces. In strict legal theory the Confederation Act of Canada or the
Commonwealth Act of Australia can be amended at Westminster like any other
Act of Parliament; but, as in fact these constituent Acts were framed by
Canadian and Australian statesmen, so it is well understood that the Home
Parliament will not touch them except at the request of Canada or
Australia. With such request, there have been amendments and legislative
interpretations of the Canadian Constitution. If any Act of Parliament
might be called unconstitutional, uninvited intermeddling with the
constitution of a self-governing colony would be so. We may pause here to
draw one immediate consequence. Whenever Home Rule is enacted and
established for Ireland, Parliament must harden its heart against all
endeavours, from whatever quarter they may proceed, to obtain any
alteration in the scheme save as it may be required by the regularly
expressed will of Ireland as a whole. This should be an understanding
outside and above all party divisions, British or Irish; and it is equally
necessary whether or not a certain number of Irish members continue to sit
at Westminster.
Public-domain text, read in full here on John Shaqi.
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