These Restrictions, or safeguards, deprive Ireland of powers in fact possessed by the Legislature of any self-governing colony, and I believe by the Isle of Man or Jersey. [Compare the Home Rule Bill 1893, clause 3, sub-clause (3) (p. 197, post,) as it appears in the original Bill, with the same clause as amended by the House of Commons and sent up to the House of Lords. The original clause forbids the Irish Parliament to make any law in respect (inter alia) of 'naval or military forces or the defence of the realm.' The clause as amended by the House of Commons forbids the Irish Parliament to make any law in respect of '(3.) Navy, Army, Militia, Volunteers, and any other military forces, or the defence of the realm, or forts, or permanent military camps, magazines, arsenals, dockyards, and other needful buildings, or any places purchased for the erection thereof.' In 1893, Unionists and Gladstonians alike were determined that on no pretence whatever should an Irish Parliament be allowed to raise an Irish army, even of volunteers. The very name of 'volunteers,' and the history of 1780-82, explain and justify their prudence.
Clause 4, sub-clause (1) to (4).
For the details of the Restrictions contained in clauses 3 and 4 the reader should study carefully the terms of the Bill itself. See Bill, in Appendix.
In more than one case it is pretty clear that the Restrictions are in themselves ineffective. Take these instances:—
1. The Restrictions do not really prevent the drilling of an armed force. The Act which makes drilling illegal is a statute of 1819, 60 Geo. III. 1 Geo. IV. c. 1. This Act applies to Ireland and cannot (it is submitted) be repealed by the Irish Parliament. But this statute of 1819 might easily be evaded, for by sec. 1 meetings for training and drilling may be allowed by any two Justices of the Peace. The Irish Executive might, and probably would, appoint plenty of justices who were willing to allow training and drilling. The men thus trained and drilled could not, I conceive, technically be made a volunteer force, but they might, for all that, be a very dangerous armed body.
2. It is not certain what is the real effect of the provisions whereby no 'person may be deprived of life, liberty or property without due process of law.' Does it, for example, preserve a right to trial by jury? I doubt whether it does. American judgments on the same words in United States Constitution, Amendments, art. 14, would of course have no legal authority in the United Kingdom, and there is a special reason why they often could not be followed. No process would (it is submitted) be considered in an Irish or British Court as not a 'due' process, for which a parallel could be found in the legislation of the Imperial Parliament. But the Prevention of Crime (Ireland) Act, 1882, sec. 1, to instance no other enactment, took away the right to trial by jury in cases of trial for treason, murder, etc.
3. Private property might still in fact be taken without just compensation. The Privy Council would not apparently have to consider whether in any given case property was taken without just compensation, but whether a particular law was a law whereby it might be taken without just compensation. Suppose, for example, Sir James Mathew and the commissioners who sat with him were constituted by an Irish Act a Court for determining what compensation should be given for the taking of certain property for public use, and the Act itself provided that just compensation must be given. It is very doubtful how far the Privy Council could treat the Act as invalid, or could in any way enter upon the question whether just compensation had been given. Yet it is plain that such a Court might give very far from just compensation, say to Lord Clanricarde.
Constitution, art. i sect. 10.
See Mr. J. Morley, April 18, 1893, Times Parl. Deb., p. 500.
See Bill, clause 5, sub-clause (3). The language of this clause disposes of the contention put forward by at least one Gladstonian candidate at the last general election [i.e. of 1892], that the veto must of necessity be exercised under the control of the British Cabinet; an arrangement too futile for an ardent Gladstonian to contemplate as possible is therefore actually enacted in the Government of Ireland Bill.