VI.—The Judiciary, The Police, And The Maintenance Of Law And Order. By Thomas F. Molony, K.C., His Majesty's Second Serjeant-at-Law, Crown Counsel for Dublin.

(1) The Judiciary

The Supreme Court of Judicature in Ireland is at present constituted as follows: The Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, the Lord Chief Baron of the Exchequer, two Lords Justices of Appeal, two Judges of the Chancery Division and six Puisne Judges of the King's Bench Division. On the occurrence of the next vacancy in the office of Lord Chief Baron the office is to be abolished and a Puisne Judge appointed instead. Since the year 1897, six judgeships have been abolished in Ireland, and a large saving thereby effected. The duties formerly discharged by the Probate and Matrimonial Judge, the Admiralty Judge and the two Bankruptcy Judges have been transferred to the King's Bench Division and the number of the Puisne Judges of the King's Bench Division has been reduced by two.[107] With every desire for economy it is believed that the Supreme Court Bench cannot be further reduced without interfering with the efficiency of the public service. The Lord Chancellor of [pg 158] Ireland is appointed by having the Great Seal delivered to him by the Crown, and all the other Judges are appointed by His Majesty by Letters Patent. There are also in Ireland five Recorders and sixteen County Court Judges, who are appointed by the Lord-Lieutenant. The County Court Judges in Ireland are also Chairmen of the Quarter Sessions of their respective counties. No Judge of the Supreme Court or of the County Court can be removed from his office except upon the address of both Houses of Parliament. Under the Home Rule Bill the position of existing judges is to remain unchanged, and future judges are to be appointed by the Irish Executive, and can only be removed by a joint address of both Houses of the Irish Parliament which gives them the same independence that the existing Judges now enjoy. Under the Bill of 1893, the Imperial Executive was to have the appointment of Judges for six years after the passing of the Act, but there seems to be no justification for the suspensory period and it has been wisely dropped from the present measure. The Irish Executive will not be “irresponsible and inexperienced” as Mr. J. H. Campbell says in “Against Home Rule—The Case for the Union” (page 54), but will be composed of men who for many years have served in the Imperial Parliament, and are well qualified from their ability and experience to at once take up the reins of Government.

(2) The Police

There are two distinct police forces in Ireland. The Dublin Metropolitan force[108] has jurisdiction over the Dublin Metropolitan District, which includes the whole of the City of Dublin and portion of the County. It [pg 159] consists of 2 Commissioners, 7 Superintendents, 25 Inspectors, 187 Sergeants and 1,060 Constables, and costs £154,181 per annum.[109] Portion of the cost is met by a police tax of 8d. in the £ on the rateable value of the district, but a substantial balance—in the present year amounting to £96,466—is borne by the Treasury. The Royal Irish Constabulary[110] has jurisdiction over the rest of Ireland, including Belfast. It consists of 1 Inspector-General, 1 Deputy Inspector-General, 3 Assistant Inspectors-General, 37 County Inspectors, 195 District Inspectors, 235 Head Constables, 2,068 Sergeants and 8,182 Constables. It costs £1,413,069 per annum, the whole of which is borne by the Treasury.[111] There is a fundamental difference between the two forces. The Dublin force has been founded on the model of the London Metropolitan Police, and is essentially a civilian force. It is admirably trained in police duties, and has always discharged its duty to the satisfaction of the citizens. The Royal Irish Constabulary is drilled and trained in the use of the revolver, rifle, and sword in the same manner as are the armed forces of the Crown, and is in every essential a military organization. There is a reserve force always kept at the Depôt in the Phœnix Park which at a moment's notice is available for service in any part of Ireland. The Bill proposes that the control of the Dublin Metropolitan Police be transferred immediately to the Irish Executive, but that the Royal Irish Constabulary shall remain under Imperial control for six years. An Irish Executive which could not control the police force of its own metropolis would be in a ridiculous position, and no believer in self-government can object to the immediate transfer of the Dublin [pg 160] force to the Irish Executive, and indeed, many think that the same course ought to be adopted with regard to the Royal Irish Constabulary. It has for a long period, been a constant source of complaint that the numbers of the Royal Irish Constabulary, and its consequent cost, are entirely out of proportion to the wants of the country. It was created in a time of agrarian disturbance which has long since passed away, and now that Ireland has been for many years far more free from serious crime than either England or Scotland, it is absurd that in Ireland it should cost 6s. 8d. per head of the population for police, while an equally efficient force can be provided, in England for 3s. 4d. per head, and in Scotland for 2s. 5d. per head. In Ireland there is one policeman for every 365 inhabitants, while in England and Wales there is only one for every 727 inhabitants.[112]

(3) Law and Order

The maintenance of law and order is the first duty of a Government, and if it could be proved that the proposed measure of Home Rule for Ireland would lead to crime and disorder, the cause would lose many of its more prominent adherents. To those, however, who are interested in the administration of the law—and particularly the criminal law—it is obvious that Home Rule will have the effect of still further diminishing crime, and will also enable considerable saving to be effected in the sums now spent on law charges and criminal prosecutions. At the present time, and indeed for many years past, Ireland has been practically crimeless. The Judges at the Spring Assizes, 1912, were unanimous in describing all the counties in Ireland, except two, [pg 161] as peaceable and orderly, and free from serious crime. In two counties—Fermanagh and Carlow—there were no cases whatever for trial, and it was only in Galway and Clare that dissatisfaction was expressed with the present state of affairs, and even in those counties the affected districts comprised a very limited area. The following table taken from the report of the General Prisons Board for Ireland for 1910, shows how the Government have been able to close prisons in consequence of the diminution of crime and reduction in the number of prisoners:

“The number of prisons and bridewells,” says the report, “under the control of the General Prisons Board on the 1st April, 1878—the date when the local prisons and bridewells were transferred to the Board—and now is as follows:—

1878.1910.
4 Convict Prisons.1 Convict Prison.
38 Local Prisons.1 Joint Convict and Local Prison.
95 Bridewells.15 Local Prisons.
6 Bridewells.”

The Unionist Associations of Ireland have recently published a handbook called “The Home Rule ‘Nutshell’ Examined by an Irish Unionist” in which it is stated (p. 69) “The only crime that is complained of in Ireland is the organized crime due to the inspired agitation of the United Irish League. Without that Ireland would be comparatively crimeless.” No proof has ever been given that the United Irish League has taken any part in the organization of crime, and beyond all doubt in many instances it has been instrumental in preventing it. It cannot, of course, be denied that in certain parts of the country instances of boycotting and cattle driving occur, but such occurrences will certainly not increase, and are more likely to cease altogether when Ireland is governed by an Irish [pg 162] Executive chosen by the people, and responsible to the people for the good government of the country. The Unionist complaint is, not so much that an Irish Executive will not be able to enforce the law, but that it will be unwilling to do so in certain cases, and will exercise a dispensing power as to whether the decrees of the Courts shall or shall not, in particular cases, be enforced.[113] If it were within the power of the Executive to prevent the police or military from being called upon to protect the civil officers of the law in the discharge of their duties, it would, no doubt, be possible to paralyze the administration of justice, but it is well settled that a sheriff, or anybody charged with the execution of a writ of a competent Court, has the right to require the assistance of constables, and indeed of any of the liege subjects of the Crown, and that the Executive has no power to prevent such assistance being given. This was laid down by the Common Law Judges in England in the well-known case of “Miller v. Knox”[114] and still more emphatically by the Lord Chief Baron (Palles) of the Exchequer in Ireland in the case of the Woodford prisoners at the Connaught Winter Assizes of 1886.[115] The Lord Chief Baron said:

“I desire it to be thoroughly understood that the execution of the decrees of the judiciary in this country does not depend—as it does not, I believe, in any civilised country—upon the will of the Executive who, for the moment, may happen to be in office. Into the execution of our writ we cannot allow any question of party politics to enter. If the law be wrong, let the law be altered by the Legislature, and the judges will, at the moment, carry out the law as altered. They cannot look beyond the law. They [pg 163] cannot, in the administration of that law, contemplate alterations at a future time. Their sworn duty is to give to him who asks it that which he is entitled to by law. It is not competent to them, or to any other person, to go behind the law and to ask whether, in his own opinion, or in the opinion of others, the law is just or unjust. With them the only consideration must be that is the law. They are bound to pronounce the law. From that pronouncement there is an appeal to the highest court in the realm. But when judgment is once given—the judgment of a court of law, acting within the scope of its jurisdiction—it is not competent to anyone in this kingdom, I care not how high he may be, to say that a writ regularly issued on foot of that judgment shall not be executed, or to prevent those who by law are bound to aid in its execution from giving that aid and assistance which the Constitution requires.”

In 1893 the County Inspector of the Royal Irish Constabulary in County Kerry, by the direction of the Executive, refused the assistance of the Constabulary to the Sheriff of the County, when he desired to execute certain writs of the superior Courts in the night time. The Sheriff thereupon applied to the Queen's Bench Division for an attachment against the County Inspector, and the Court unanimously made the order.[116] The Lord Chief Justice (Lord O'Brien) in giving judgment said (p. 238):

“I wish to point out that, according to the opinion of all the judges who were called in to advise the House of Lords in the case of Miller v. Knox,[117] refusal, unjustified by the occasion, as, in my opinion, the refusal in the present case was, to protect the sheriff in the execution of his duty, when protection is sought by him, in the honest exercise of his discretion, to enable him to discharge his duty in the execution of civil process, is punishable, by indictment, by criminal information, and, as was established in Miller v. Knox by the summary process of this court. The official, be he Under Secretary or Chief Secretary (I do not, of course, refer to his Excellency the Lord-Lieutenant), who directed Mr. Waters not to comply with the sheriff's demand for protection, has rendered himself [pg 164] amenable to the criminal law, is liable to be tried by indictment, to have a criminal information exhibited in this court against him, or to be attached by the summary process of this court.”

There can be no doubt, therefore, that the Irish Executive will be bound to give assistance and protection to sheriffs or other lawful officers executing any legal process of a competent Court, and if such assistance is not given the Courts will be able to assert their supremacy in the various ways pointed out by the Lord Chief Justice.

A great deal of capital has recently been made in the Unionist Press on account of the promulgation of the Motu Proprio “Quantavis Diligentia.” It has been asserted that this decree applies to Ireland and will necessarily embarrass catholic officials in the discharge of their public duty. The Roman Catholic Archbishop of Dublin has, however, fully explained the meaning of the decree, and has shown that it does not apply to any country where there has prevailed against it, as there has long prevailed against it in Ireland, a custom invested with the conditions required by the Canon Law.[118] He further says (p. 36):

“The excommunication of the clause Cogentes, is not decreed against all who oblige lay judges to compel the attendance of ecclesiastics in their courts. It is decreed against those who do this in violation of the Canon Law. There must first, then, be a canonical offence. It is to that offence that the clause Cogentes attaches the penalty of excommunication. But, there being no canonical offence in the discharge of their duty by our Catholic Judges, and Catholic Law Officers of the Crown, our Catholic Police Magistrates and Catholic Policemen, and our laity in general—who were so ludicrously paraded before the public a few weeks ago as the unhappy victims of the Motu Proprio—there is in their case no offence to which an ecclesiastical penalty can be attached, and so, no ecclesiastical penalty is incurred.”

Nothing is to be feared in Ireland from the Motu Proprio “Quantavis Diligentia,” and there is really no necessity for the restrictions contained in Section 3 of the Bill, although no person will object to their insertion as a matter of precaution. The Unionists profess to be alarmed at the prospects of Ireland under Home Rule; but when their fears are analyzed they are seen to be illusory, and when their arguments are considered they are found to amount to a single assertion that a great measure of reform is not to be passed, and the will of the people is not to prevail, because a small minority is irrevocably opposed to any measure which will give to the Irish people power to manage their own affairs.

When Unionists complain of an occasional case of boycotting or cattle-driving—and it is almost all they have to complain of now—they should read Lord Durham's report on Canada in 1838, and they will see how favourably Ireland, even in its darkest hour, contrasts with the Canada of that day. Lord Durham adopted the courageous policy of trusting the people, and his policy brought peace, prosperity and contentment to that country. Mr. Asquith's great measure is an embodiment of the same policy, and will be attended with the same results, and indeed the situation could not be better summed up than it was by Mr. John Redmond in the House of Commons three years ago.[119]

“As it happened in Canada, so it will happen in Ireland—when you throw responsibility on the shoulders of the people, and not till then. Then respect for law will arise in Ireland; then confidence in the administration of justice will arise; and when that day comes, I am perfectly convinced that Ireland will become the most peaceable and most law-abiding, as she is to-day the most crimeless, part of your Empire.”