COMMITYEE. [Progress, 13th June.]

HC Deb 14 June 1893 vol 13 cc981-1038

[TWENTIETH NIGHT.]

Bill considered in Committee.

(In the Committee.)

Legislative Authority.

Clause 4 (Restrictions on powers of Irish Legislature).

MR. COCHRANE (Ayrshire, N.)

moved the following Amendment:—Page 2, line 24, leave out "prejudicially." In moving the Amendment he should not, he said, occupy the time of the Committee at any length, leaving the matter to be dealt with by some of the legal Members of the House. He thought, however, it must be obvious that there was something in the Amendment. Those Members who were lawyers with whom he had spoken on the subject agreed with him that the word "prejudicially" was superfluous, and th instead of strengthening it rathat weakened the section. This was in no way a contentious question. For his part, he thought the clause would be far clearer if the word was left out. This word was very similar to another word used in a section of the Lands Clauses Act, and which had given rise to a considerable amount of litigation. In fact, for the last 45 years the Courts had been occupied in determining the exact meaning of the words "injuriously affecting"; they had been the subject of numerous appeals to the House of Lords, and he understood on the best authority that the exact meaning had not yet been clearly defined. The object of the Amendment was to remove what might otherwise be a bone of contention from the Bill, and the omission of the word would not in any way affect any other part of the clause. A day or two ago the hon. Member for North Kerry, speaking in reference to another Amendment, objected to the words then proposed, because, he said, they added nothing to the force of the Bill, and should not be included. He (Mr. Cochrane), in the same way, maintained that the word "prejudicially" did not add anything to the force of the Bill. It occurred in another sub-section lower down, which read— Prejudicially affecting the right of any child to attend a school receiving public money, without attending the religious instruction at that school. The word was one which might give rise to a great deal of contention, and he was sure hon. Members opposite would desire to avoid that. He hoped, therefore, the Government would accept the Amendment.

Amendment proposed, in page 2, line 24, to leave out the word "prejudicially."—(Mr. Cochrane.)

Question proposed, "That 'prejudicially' stand part of the Clause."

* THE ATTORNEY GENERAL (Sir C. RUSSELL,) Hackney, S.

Mr. Mellor, the hon. Member has made his point very briefly, and I will answer him briefly. I think that, if he will kindly follow me for one moment, he will see the effect of the omission of the adverb "prejudicially" would, in fact, nullify the whole of this clause. In order to make that clear, I must show the relation which Clause 3 has to Clause 4. Clause 3 is dealing with matters as to which the Irish Legis- lative Body shall have no power to make laws at all; Clause 4 is dealing with matters as to which the Legislative Body shall have power to make laws, but placing certain restrictions upon the extent of that power. The result is that they have, under Clause 4, powers to deal with the subject-matters referred to in Sub-section 3 of Clause 4; but the restriction is placed upon them that they shall not deal with them in a manner which would prejudicially affect the matters in question. If the word "prejudicially" is entirely deleted from the sub-section, it would follow that there is no power to affect them by any legislation at all, which is quite contrary to the object of the clause. I think if the hon. Member will consider the matter in the light of the very brief explanation I have given he will see that the Government cannot accept the Amendment.

MR. CARSON (Dublin University)

said, he thought that in reference to this Amendment a good deal more might be said than had already been said in relation to this matter. As he understood the discussion yesterday, the question of legislating with a view to assisting any place of denominational education, or any denominational institution or charity, was intended to be entirely removed from the powers of the Irish Legislature under the 1st section of this clause, when they inserted the words "directly or indirectly," because the Committee were of opinion that, although that clause prevented the Irish Legislature from legislating respecting the establishment or endowment of religion, the same result might be arrived at if, by indirect legislation, they were enabled to give preference to any particular denomination in Ireland. Therefore, he took it that, as regarded the 3rd section, it was not, as the hon. and learned Member had said, intended that they should have any power whatever. He thought the Committee ought to have this made perfectly clear at the present stage of the proceedings. He understood from the previous day's discussion that it was not intended that the Irish Legislature should have any power whatever to give any preference to any denominational education, or institution, or charity of any kind, as that would be a direct infringement of the principle laid down by the words "directly or indirectly," introduced as a sub-section. He should like to know was that so or not? or was the Irish Legislature to have the power of passing legislation which might establish or maintain any place of denominational education, or denominational institution or charity? If that was the intention of the Government and of the Committee, he should at once concede that what the hon. and learned Gentleman had said was entirely relevant as to the insertion of the word "prejudicially." But if, upon the other hand, as he took to be the intention of the Committee, the Irish Government were not to have the power in any way, directly or indirectly, to establish or maintain any place of denominational education, or any denominational institution or charity, then, he said, the word "prejudice" in the section had no meaning whatever. He submitted that to leave the word "prejudicially" in would give rise to an immense amount of legal controversy. Any lawyer would say it would require great argument and discrimination on the part of the Courts to determine what really did prejudicially affect or not; and if it was the intention of the Committee that the entire matter should be withdrawn from the Irish Legislature, why should they not have the word "affecting" without the word "prejudicially"? As an instance of the difficulty of construing these words, take the 4th sub-section, which read— Prejudicially affecting the right of any child to attend a school receiving public money without attending the religious instruction at that school. They had had a Debate in that House already on the question as to whether the putting up of emblems in the Christian Brothers Schools was a matter that would prejudicially affect the children attending schools under the National Board, and which would come within those very words of the 4th sub-section, "without attending the religious instruction at that school." For his own part, not holding any narrow views whatsoever, he should not think it would prejudicially affect a child to walk into one of these schools where these emblems were. But, at the same time, he could quite understand there were many people in Ireland who would think it did, and they would have then to go before the Court and ask them to determine whether the fact of having these emblems up did or did not affect the right of a child to attend without his having to attend the religious instruction of that school. It occurred to him that nothing could raise a greater controversy in legally construing this sub-section than to leave in this word "prejudicially," and the word "affecting" would carry out the object and intentions of the Government without the insertion of the word the Amendment proposed to omit. There was one other reason he would venture to suggest why this was a matter of importance. The Committee would observe that any law made in contravention of this section would be void. The Lord Lieutenant might very well pass an Act, not observing there was anything in it "prejudicially affecting." That Act would be proceeded to be carried out. A large scheme of education, or a scheme for the regulation of some institution or charity, might be founded on that Act, and might work for a considerable time. But eventually somebody in a proceeding under that Act before a Court might raise the question that some particular clause in the Act prejudicially affected rights which were withdrawn from the Irish by the Imperial Parliament. The Act regulating such a scheme might have been in force for some time; but it would at once be held to be void in consequence of the breach, and the Court holding that it "prejudicially" affected certain rights. The whole fabric upon which the scheme had been founded, and the whole working carried on under that Act, would by reason of the Court coming to a determination on the word "prejudicially"— which the Lord Lieutenant and those who had advised him had not observed—tumble down, and the whole matter would be thrown into the utmost confusion. This was not a question creating any vital difference as between different Parties in Ireland; he approached it altogether from the view of what was the real meaning and intention of the Committee, and he ventured to suggest that, unless some very good reason could be shown as to the absolute necessity for retaining this word, it ought to be omitted.

* THE SOLICITOR GENERAL (Sir J. RIGBY,) Forfar

As I was present during the whole of the discussion upon this clause, and during part of that dis- cussion my hon. and learned Friend the Attorney General was not present, I may, perhaps, be permitted to answer the hon. and learned Gentleman who has last spoken. He asks, first, what is our intention as to the powers of the Irish Legislature in respect of the matters he has mentioned. The intention is, first of all, that the Irish Legislature, except so far as their powers are restricted by this sub-section of Clause 4, shall have power to deal with education. Undoubtedly, our intention is, they are to deal with education generally; and as the question arises whether they are going beyond their proper functions, you must limit these functions by something which is to be found in Clause 4. We have come to an agreement with the whole Committee that there is not to be direct or indirect endowment of religion. But it was pointed out that there are places in which, as regards education, grants are now made for denominational schools, provided that one denomination is not preferred to another. By Subsection 2 you cannot confer any privilege on account of religious belief. To prefer a Roman Catholic school, for instance, to a Protestant school, would be preferring that school on account of religious belief. There were other cases that were mentioned, such as chaplaincies —chaplaincies in workhouses or gaols, and there may be others of the same kind. Now, where you endowed or maintained a Roman Catholic chaplain, where under similar circumstances you would not pay a Protestant chaplain, you would give a preference on account of religious belief. In all cases there is no such preference of one religion over another—our intention is that there shall be no interference in such cases. We intend that the law shall be general in its application, so that, in similar circumstances, the Protestant religion would have the same assistance from the State as the Roman Catholic religion; but we do not consider those as cases of endowment of religion at all when there are payments for services rendered under circumstances recognised as proper by this Parliament. Then as to the words "prejudicially affecting," we do not intend to withdraw entirely from the jurisdiction of the Irish Legislature the establishment or assistance of places of denominational education. This is different from re- ligion. What we do intend is, if there be I any assistance given to any place of denominational religion, that shall not be by way of preference. We do not intend to withdraw from them charities; that was settled by the decision of the Committee on an Amendment proposed by the right hon. Gentleman the Member for Bury; and we do not intend to withdraw altogether from them the question of denominational institutions provided they do not infringe on any of the restrictions, every one of which must be obeyed. But really to strike out the word "prejudicially" and leave it as "affecting" these rights would be to prevent all legislation, not only regarding religious endowments, but would also keep charities and denominational institutions altogether out of the purview of the Irish Legislature. As regards the question about the Christian Brothers and religious emblems, I think that belongs to another clause entirely.

MR. SEXTON (Kerry, N.)

I think it must be evident to the Mover of the Amendment, after hearing the speeches of the Law Officers of the Crown, that the word must stand part of the clause. I do not share the belief in the difficulty expressed by the hon. and learned Gentleman the Member for Dublin University that he says the word will give rise to in the matter of construction. It seems to me that the meaning of the word is as clear as any word in the English language; and the word is also familiar in connection with this subject, because in Sub-section 4 the word "prejudicially" also occurs. In Sub-section 3 the words are— Abrogating or prejudicially affecting the right to establish or maintain any place of denominational education or any denominational institution or charity. "Prejudicially affecting" is precisely the same as derogating from. It means doing anything injurious to a right; and what Parliament intends is this—that the Irish Legislature shall not have power to do any act injurious to the right To maintain any place of denominational education or any denominational institution or charity. It is intended that the Irish Parliament shall have power to deal with, by legislation, the matters referred to; but it shall not deal with them in any spirit of pre- ferencc to one creed over another. It is obvious that in the ordinary course of legislation the Irish Legislature will have to deal with Bills relating to the subject-matter of this discussion. As to the question of construction, if the word "prejudicially" be left out, what then would be the difficulty of construing the clause? The Irish Legislature would not then have power affecting the right referred to. But whatever relates to the right affects the right, so that it would be impossible for the Irish Legislature to deal with any Bill whatever establishing such institutions as are referred to in this section; and in the ordinary course of legislation there must be Bills to establish, to maintain, and to endow institutions of this class. The Irish Legislature, however, would be debarred from dealing with them; and as it is not the intention of Parliament to withdraw absolutely these subjects from the purview of the Irish Legislature, but only to debar the Irish Legislature from doing unjust acts, or showing unjust preference, it is clear the word ought to remain.

* MR. T. H. BOLTON (St. Pancras, N.)

said, it might be the intention of the Government to deprive the Irish Legislature of the power of endowing any denomination; but he did not find that anywhere in the Bill. The clause that had been passed prohibiting the Imposing any disability, or conferring any privilege, on account of religious belief, would hardly apply to the case of denominational schools. It could hardly be contended that an Act of Parliament empowering grants to particular denominational schools would be a privilege within this clause. The term "privilege" would scarcely apply, reading it in connection with the rest of the clause, to the grant of a sum of money to a certain class of denominational schools. If that were so, there seemed to be nothing here to prevent the endowment—he did not say whether this was right or wrong—of Roman Catholic schools, and no obligation to grant a similar endowment to the schools of any other denomination. He should be glad to have the clause pointed out under which it would be efficiently and practically prohibited. The clause they were now discussing prohibited the Irish Legislature from Abrogating or prejudicially affecting the right to establish or maintain any place of denominational education. That was to say, that the Irish Legislature should have no power to pass an Act of Parliament to interfere with the establishment or maintenance of denominational schools, and would be protective, of course, to Protestants as well as Roman Catholics. It was only fair to say that. The object of his rising was to point out that he did not see where in the Bill the intention of the Government was carried out to provide that no grant should be made to particular denominational institutions in preference to other denominational institutions.

THE FIRST LORD OF THE TREASURY (Mr. W. E. GLADSTONE,) Edinburgh, Midlothian

We do that in Subsection 2.

* MR. BOLTON

said, with reference to Sub-section 2, he would most respectfully ask the right hon. Gentleman and the Law Officers to consider whether that sub-section could, by any reasonable legal construction, be held to apply to the grant of money and to Acts of the Legislature providing for the grants of money to particular schools where particular denominational teaching might be given? If it was the intention of the Government that no grants should be made to particular denominational schools that were not made to all denominational schools, then he must respectfully suggest that that intention was hardly carried out by the clause they had passed, and an Amendment in specific terms would have to be made in the clause under discussion to carry out that intention.

MR. COURTNEY (Cornwall, Bodmin)

was sure no one wished to alter the businesslike character of that Debate. It occurred to him that in the very brief speech of the Attorney General—whom they were all glad to welcome back after his labours for his country elsewhere—and in the speech of the Solicitor General they had not paid sufficient attention to the word "right" which occurred in the sub-section. Their arguments were directed towards action which might prejudicially affect the working of a denominational school by giving or withdrawing from it grants in aid. But they were not there concerned with action which would touch the working of an institution when established, but with the "right to establish or maintain" it, and he failed altogether to understand how a distinction could be drawn between "prejudicially affecting" and "affecting" that right. If the right was affected at all, he thought it must be affected in a prejudicial manner; therefore the word was superfluous. He should be glad if his hon. and learned Friend could give him an illustration of the kind of action to which the word "prejudicially" would be applicable, and, if the word were left out, an illustration of the mischief "prejudicially" was supposed to obviate. It appeared to him that the governing word being "right," to insert "'prejudicially' affecting that right" was certainly to use a superfluous word, and one which ought not to be added to the clause.

MR. GIBSON BOWLES (Lynn Regis)

thought this clause, although it prohibited the Irish Legislature from passing any law prejudicially affecting the right to establish or maintain any place of denominational education, would allow it to pass any law beneficially affecting that right. Was he right? [Sir J. RIGBY assented.] That being so, he wished to point out how that might possibly be in derogation of other rights affected. For instance, suppose the Irish Legislature should pass an Act beneficially affecting the rights of certain denominational schools while leaving out other denominations altogether. In proportion as the right of one denomination would be beneficially affected, in the same degree they would derogate from and impair the rights of other denominations, and he would suggest that the point might possibly be met by getting rid of the words "abrogating or prejudicially affecting" and inserting in their stead the single word "impairing," which was a well-known word used in many Constitutional Acts.

COMMANDER BETHELL (York, E.R., Holderness)

said, as he understood the matter at present, anybody had a complete right to establish or maintain any of these places of denominational education. Any legislation which affected that right must in some degree diminish or prejudicially affect it. The governing word in the sub-section was "right;" and if any law was passed varying that right it must prejudicially affect it, so that the word proposed to be left out was entirely superfluous.

* SIR C. RUSSELL

The intention of the Government is that expressed by the Solicitor General, and it seems to me to be effected by Sub-section 2, as strengthened by the addition of words moved by my right hon. Friend the Member for Bury, and accepted by the Government, and which provide that the powers of the Irish Legislature shall not extend to Imposing any disability or conferring any privilege, advantage, or benefit on account of religious belief. That is distinctly the purpose of the Government, and is there expressed. The right hon. Gentleman the Member for Bodmin asks me for an illustration of "affecting" which would not be prejudicial. His argument at the most comes to this: that the word "prejudicially" is superfluous, and is it worth while wasting the time of the Committee merely upon a question whether or not it is superfluous? That is practically the objection to it. I can only suggest to my right hon. Friend that one can well conceive a case in which there might be a course of action which fortifies that right instead of prejudicially affecting it.

Mr. TOMLINSON (Preston)

I beg the hon. and learned Gentleman's pardon for interrupting him, but it is really impossible for Members on this side to hear a word he is saying.

* SIR C. RUSSELL

I beg pardon. There is an acknowledged right of persons to establish in Ireland on their own account denominational schools representing various shades of religious opinion, and why should not the Legislature think it right to assist them? It might assist them in respect to obtaining sites in the same way we have in this country a Bill for obtaining sites for places of worship. I do submit to the Committee that the most that can be said in favour of the Amendment is that the section contains a superfluous word. We do not think the word is superfluous, and, therefore, we desire to retain it.

MR. A. J. BALFOUR (Manchester, E.)

The section of the clause we are now discussing gives to the Irish Legislature the power of extending rights— though not of diminishing them—with regard to denominational education. But if you are going to allow Parliament to deal with these rights, how are you to prevent them preferentially dealing with them? I will give a case. Supposing there was to be a denominational school started in connection with one denomination in Ireland—for the sake of argument, I will say the Roman Catholic Church. A Private Bill might be passed to give special facilities for obtaining a site for that school, while no such Bill would be passed for obtaining a site under similar circumstances for a school for the Protestant denomination. The point is a contest, between sects. We are assuming there is such a contest, and these sub-sections are meant to deal with them. Whether they deal with that contest effectually or ineffectually—I say ineffectually—under these sub-sections, there is nothing that would prevent that preferential treatment which the Government desire to stop as well as we do, and certainly the word "prejudicially," to which the Government attach so much value, would not have the effect of stopping that preferential treatment, because it will be observed that, although under this clause it would be impossible for the Irish Legislature to injure preferentially a Protestant denominational school, it would be in their power to assist preferentially a Catholic denominational school, and it does not matter whether you produce your inequality by depressing the one side or raising the other, the ultimate result, as between the two classes of people affected, is the same. I remind the Committee of what occurred yesterday in connection with the denominational Training Colleges, of which there are two—one a Protestant Episcopalian, the other Roman Catholic. The Government had come to the conclusion—I confess I was startled at the decision—that under the Bill it would be possible for the Irish Legislature to continue an annual grant by an annual Bill in favour of these denominational Training Colleges. If it is possible for them to do that with regard to one Catholic Training College it is possible for them to do it with regard to half-a-dozen or a dozen or two dozen such institutions, and again you would have the preferential treatment of one denomination over another, which, as I said before, the Government desire to stop, and which we desire to stop. I am convinced that the words of this and other sub-sections do not carry out this object, and I press upon the Government the advisability of considering if their intention cannot be more plainly indicated than is the case at present.

MR. SEXTON

I submit, Sir, that the words in the 2nd sub-section effectually provide against the evils anticipated by the right hon. Gentleman (Mr. Balfour). That sub-section is to the effect that the Irish Legislature must not, under any circumstances whatever, impose any disability or confer any privilege or benefit on account of religious belief. The right hon. Gentleman, in his extreme ingenuity, has suggested that the Irish Legislature might not violate the 2nd sub-section by general legislation where a breach of the 2nd sub-section would appear upon the face of a Bill, but he said they might proceed to deal by Private Bills with individual institutions, and that having passed one Private Bill giving an advantage to a Catholic institution, they might refuse to pass a second Bill which would deal in a similar manner with a Protestant institution. I submit with very great confidence that the Judicial Committee of the Privy Council, in administering judicially Clause 4 of the Bill, would be entitled to take cognisance not only of what was upon the face of the individual Statute, but also of the course of legislation, and if the Privy Council upon considering any Bill passed by the Irish Legislature hail before them the fact that there had been a course of legislation even by Private Bills favourable to Catholic institutions, followed by the rejection of similar Bills favourable to Protestant institutions, it would be in the power of the Judicial Committee of the Privy Council to declare all future Bills of that sort ultra vires upon the ground that the Irish Parliament had imposed disabilities and conferred benefits on account of religious belief. I think, therefore, the danger to which the right hon. Gentleman referred is entirely illusory, and that the Judicial Committee of the Privy Council would take cognisance of the spirit and force of legislation as well as of each individual Statute.

MR. PLUNKET (Dublin University)

asked whether, in deciding such questions, the Judicial Committee or Court of Appeal would have to have regard to the proportion of the population of the different sects? If that were so, could it not be contended that whereas there were only two Denominational Colleges, one of these represented a small minority of the whole population, whilst the remaining portion of the population had only one institution.

MR. MACARTNEY (Antrim, S.)

wished to point out how it might be possible to treat preferentially one class of denominational schools against another class. The curriculum differed very much in the denominational schools. Conventual and monastic schools, for instance, got large grants for subjects connected with the Science and Art Department. It might be quite possible for the Irish Legislature to grant large sums for one particular class of subjects, without acting in contravention of the sub-section, because in doing so they could not be said to be conferring any privilege or imposing any disability on account of religious belief. In this way a preference could be given to particular schools. He did not see how the Legislature was to be prevented from doing this by Sub-section 2 or 3. He thought it would be admitted that the matter was open to grave doubt.

MR. CARSON (Dublin University)

said, he did not at all differ in substance from what the Government had said, and if words were put in which would provide that no preference should be given to one denomination over another, he should not be averse to the retention of this word. Under the 3rd sub-section it must be admitted that such a preference could not be prevented, and, therefore, they were driven back to Subsection 2. Under that sub-section it was anything but clear that if a particular advantage were given to one denomination over another, it would be held to have been given on account of religious belief. Why should the Government not introduce words into the Bill which would make it perfectly clear that the Irish Legislature should not give preference to one sect more than to another? If they took the case indicated by the hon. Member for Kerry (Mr. Sexton) they would see what was meant by his argument. The 2nd sub-section did not cover that point as to giving a site on the ground of religious belief. He thought the Government should meet them, and endeavour to make the matter clear.

THE FIRST LORD OF THE TREASURY (Mr. W. E. GLADSTONE,) Edinburgh, Midlothian

The hon. and learned Gentleman has made a declaration of principle in which we are entirely at one with him; but the hon. and learned Gentleman says that we ought to legislate clearly and unequivocally against preference. When we referred back to Subsection 2, we did not do that upon the assumption that we had attained a final perfection of language; but what we did think was—and what we do think is—that it is much better to legislate against preference by one comprehensive provision than to do it piecemeal, and in fragments. We are not so much attached to our own language as not to be willing to have it amended to satisfy the views of others, if we are satisfied that no mischief will be done; but we think that it is far better to deal with this question of preference as a whole, and, consequently, it would not be wise to introduce amending words into this subsection.

MR. J. CHAMBERLAIN (Birmingham, W.)

I think, Mr. Mellor, the statement that has just been made ought to be satisfactory to the Committee, and, in that case, I would recommend my hon. Friend to withdraw his Amendment. Something more is wanted to carry out the object of the Committee. Even if the word were struck out, it would be possible, indirectly, to give preference to one domination over another. I understood my right hon. Friend to say that the Government were not so attached to their own language that they would not consider the advisability of introducing a sub-section dealing generally with this matter of preference.

An hon. MEMBER on the Government Benches interrupted.

MR, J. CHAMBERLAIN

Well, now, here is an hon. Member who always tries to explain what my right hon. Friend means.

MR. W. E. GLADSTONE

What I said was that the most effective manner of proceeding was to deal with the question of preference in one enactment, and not in several; and that the Government were not so attached to their own language as to refuse, if that language required enlargement, to give a favourable consideration to an Amendment having that object.

MR. J. CHAMBERLAIN

That is what I was going to say. My right hon. Friend's position appears to be that, so far as this particular matter is concerned, the Government are of opinion that it has been sufficiently guarded against; but, at the same time, if a separate proposal were brought up to deal with preference, they would favourably consider it.

MR. W. E. GLADSTONE

Or in Amendment form.

MR. J. CHAMBERLAIN

Yes. What we have to fear is indirect preference. That is much more likely to be exercised than direct preference, which would be flagrantly unjust. Indirect preference is to be feared, not merely in the case of different sects, but also in questions affecting persons and parties and trade. It is possible to give undue preference to a particular trade; and I take it that the Government would desire to prevent that. There is a parallel case in our railway legislation, which raises one of the most difficult questions of preference that could be considered. My right hon. Friend is doubtless aware that in the Railway Acts there is a clause providing against undue preference, and the definition of what is undue preference is left to the decision of the tribunal. It is well that we should not deal with the question ad invidiam as against possible sectarian preference, but should have regard also to other forms of preference in other matters. If an Amendment carrying out that view would be favourably received by the Government, I think the Amendment of the hon. Member for Ayrshire might be withdrawn.

MR. COCHRANE

said, he would ask for leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE CHAIRMAN

The next two Amendments standing in the names of the right hon. Gentleman the Member for the Bodmin Division of Cornwall (Mr. Courtney) and the hon. Baronet the Member for Bassetlaw (Sir F. Milner) are out of Order. The next Amendment in Order is that standing in the name of the hon. Member for Herts, St. Albans (Mr. Vicary Gibbs).

MR. VICARY GIBBS (Herts, St. Albans)

said, he rose to move to insert in the clause as a separate sub-section— Imposing any new disability or conferring any new privilege on any institution belonging to or conducted by any religious denomination; or. What he wanted to point out was that, under Sub-section 2, the Irish Government would be in a position to give monetary grants to Roman Catholic Colleges—not perhaps directly as such, but in other ways. The Solicitor General had stated that there could be no endowment of any denomination on account of religious belief. That was satisfactory as far as it went; but it would be more satisfactory if it were stated clearly in the Bill that it could not be done, directly or indirectly. He did not suggest that the Members of the Irish Parliament would wilfully do what was unjust; but, like other men, they would have the common frailties of human nature, and would be tempted to give preference to those institutions which were in accord with their own views. It was on that ground that he wished to distinctly provide that no special privilege should be given on the one hand, or new disability imposed on the other, in respect to particular religious denominations—especially as religious differences were at the bottom of a great deal of the ill-feeling that had existed in Ireland. He hoped the Government would agree to the acceptance of the sub-section.

Amendment proposed, In page 2, after line 26, insert "(4) Imposing any new disability or conferring any new privilege on any institution belonging to or conducted by any religious denomination; or." —(Mr. Vicary Gibbs.)

Question proposed, "That those words be there inserted."

* THE SOLICITOR GENERAL (Sir J. RIGBY,) Forfar

I quite follow the intention of the hon. Member; but I think the Amendment goes further than he intends. The effect of it would be to withdraw entirely from the Irish Parliament everything connected with denominational schools. None of us, I apprehend, intend that. But it is intended that so long as no special privilege or preference is given to a particular denomination, the Irish Parliament should be able to give additional advantages to denominational institutions, and even to impose restrictions where it may be thought desirable to do so in connection, for instance, with the teaching of particular subjects, such as science and art. If the Amendment is intended to take away all power of legislation with regard to schools from the Irish Legislature the Government cannot accept it.

MR. A. J. BALFOUR

I have no reason to complain of the general tone of the Government on the question of religious disabilities in Ireland; but I think they have not realised the difficulty of the problem they have undertaken to deal with. My hon. Friend has done well to put down the Amendment, because it is the only one which really proposes to do something effectual with respect to future preferential treatment of schools by the Irish Government. The Chief Secretary knows that of all questions that divide Irish society those relating to the treatment of denominational or quasi-denominational schools are far the most burning in Ireland, and the most difficult to deal with. The division of opinion and Party follows closely the question of religious belief.

An Irish MEMBER

Certainly not.

Another Irish MEMBER

No, no!

MR. A. J. BALFOUR

Well, many illustrations can be given in proof of my statement. I know myself of sharp divisions on this question on lines of religious belief, and you have the question of the Training Colleges—Episcopalian and Roman Catholic. The result of the Amendment would be that no future alteration could be made in the privileges now given to these institutions by Parliament, and that would practically effect the object the Government have in view. If the Amendment is not adopted I do not see how the Government are going to prevent the Irish Parliament from paying the Training Colleges and analogous institutions out of the public funds, and devoting such funds to the establishment of denominational schools under one particular scheme to the disadvantage of other schools. Such action on the part of the Irish Legislature would clearly be contrary to the policy of the Government. In those circumstances, I cannot understand why the Government do not accept the Amendment. We are all agreed as to what we want. It is clear that the Irish Government, under Sub-section 2, may do what they like in regard to the Training Colleges. Denominational education is only accepted by the Roman Catholics at present simply because it is denominational. I am not entering into any controversial matter, but dealing with the subject of the Amendment. I should certainly advise my hon. Friend to debate this matter thoroughly, and to press it to a Division unless he succeeds in obtaining a promise from the Government that the question will be properly dealt with. I am going on the assumption justified by the statement of the Law Officers of the Crown, that it is competent for the Irish Government under Sub-section 2 to do what they like in the way of endowment or contributing to Denominational Colleges for the education of teachers and, for anything I know, for the education of priests also.

MR. W. E. GLADSTONE

That would be endowment of religion.

MR. A. J. BALFOUR

Would it be more endowment of religion than the endowment of Training Colleges? I cannot see that it would be. In the one case people are trained for the purpose of going into Holy Orders, and in the other case they are trained for the purpose of teaching children. But in both cases it is denominational education and is only as such accepted by Roman Catholics.

LORD R. CHURCHILL (Paddington, S.)

My right hon. Friend made some remarks which I think all will agree with—namely, that if the right hon. Gentleman the Prime Minister does not quite approve of the words of the Amendment, perhaps the Government would either themselves suggest words, or accept other words proposed from these Benches, to carry out what I think is the object of all Parties in the House. The Government will find in the Elementary Education Act of 1870 a clause setting forth how denominational and Board schools are to be dealt with in regard to the denominational system. These are the words of Sub-section 2 of Clause 97— But such condition shall not require that the school shall he in connection with a religious denomination, or that religious instruction shall be given in the schools, and shall not give any preference or advantage to any school on the ground that it is or is not provided by the School Board. I have incorporated some of those words in an Amendment I would suggest to be added to the last line of the clause, as follows:— Or giving any preference or advantage to any institution on the ground that it is or is not provided or maintained by any special religious denomination. These words have been very successful in connection with the large grants to the denominational and Board schools, and I think they would afford a solution of the present difficulty.

MR. SEXTON

said, the Committee might have expected from the noble Lord that he would have put the words of his proposal down on the Paper.

LORD R. CHURCHILL

said, that attention had not been drawn very closely to the words until this afternoon when the issue was raised.

MR. SEXTON

said, the noble Lord would admit that the task of interpreting the words at the moment was difficult. He (Mr. Sexton) had heard them read twice, and they appeared to him to import that the Irish Legislature should not have power to give any advantage to an educational institution on the ground that it was or was not provided for a particular Religious Body. It did not appear to him that the words added anything to Sub-section 2.

LORD R. CHURCHILL

said, he advocated the adoption of the form of words in the Education Act, because they had enabled the English Government to divide the large education grant without the slightest trouble equally between denominational schools and undenominational schools.

MR. SEXTON

said, that if the Irish Legislature violated these conditions they would, at the same time, violate the conditions of Sub-section 2. They could not give an advantage or benefit to a school on the ground that it had been provided by a particular Religious Body without conferring a privilege. It was open to the objection which the right hon. Gentleman the Prime Minister had put with unanswerable force—namely, that it was better to deal with a great principle by a particular large provision than to return to it again and again with sectional and subsidiary provisions which, because of their textile difference from each other, must, instead of forwarding the object in view, load to confusion. The right hon. Gentleman the Leader of the Opposition on this matter had been afflicted with some confusion of thought which was rare to him. The right hon. Gentleman seemed to think that if they endowed religion, whether in a College for ecclesiastics or a Training College, it was the same thing There was a gulf of difference between helping a Denominational College, which, though it was denominational, trained teachers to teach afterwards in schools protected by the Conscience Clause, and endowing a College where ecclesiastics were trained for the single purpose of serving as ministers of one religion. The right hon. Gentleman would surely withdraw his argument on that subject. But that was not the only matter on which the right hon. Gentleman had shown confusion of thought. He had spoken of differences in Ireland on legislative questions which wore conterminous with religious creed, and he had illustrated that by saying that on some questions all the Catholics and the great body of Protestants wore on one side and a particular body of Protestants on the other. But that would not be a difference founded on a difference of creed if they had the Catholics and the Protestants acting together.

MR. A. J. BALFOUR

You might have the Presbyterians on one side.

MR. SEXTON

said, he had always understood that the difference between Protestants and Presbyterians was not a difference of creed, but as to episcopacy and practice. The right hon. Gentleman had spoken of guarding against future preferential treatment; but surely Sub-section 2 was not bounded by time—confined to a privilege conferred at any particular time. Therefore, it was evident if could not be the newness of the privilege, or the time at which it was attempted to be conferred, that Section 2 dealt, with. The Amendment would do nothing that the Committee desired which could not be done by Subsection 2, and by adopting it they would bar the Irish Legislature from taking action in regard to institutions conducted by religious denominations, but not dealt with on account of religious considerations. That would be clearly undesirable. The whole system of reformatory and industrial schools in Ireland was carried out by religious orders. Protestant children were sent to schools conducted by Protestants—sometimes by Protestant religious orders. Catholic children went to institutions conducted entirely by religious orders of monks and nuns. Supposing the Irish Legislature desired to alter the rules, or establish an audit of accounts, or to extend the certificate for the number of children that might be in any reformatory school in Ireland, they would be unable to do it. They would have to leave the whole system stereotyped. The form of the Amendment before the Committee was only to be explained by the hon. Member's ignorance of Ireland. It would not meet the object the Committee had in view, and would prevent the Irish Legislature from having control over reformatory and other industrial schools, even in the interest of Protestants, which was a thing he was sure the hon. Member could not desire.

MR. MACARTNEY (Antrim, S.)

did not see in Sub-section 2 any protection whatever against the apprehensions the Opposition entertained as to these educational establishments. He quite recognised the spirit in which the Government had met the Opposition. He believed the Prime Minister and the Government did recognise that there was some difficulty in the matter. His (Mr. Macartney's) view was that those difficulties would not arise in any way in any matter that could be brought under Sub-section 2. There could be preference given to one sect over another, and it could be done in such a way that it would be impossible for any Court before whom a case was brought to come to the conclusion that it was done on account of religion. The Amendment proposed appeared to meet directly the apprehensions of the Irish Unionist Members, which apprehensions, he was bound to say, had been considerably increased by the speech of the Solicitor General. The hon. and learned Member had shown bow large would be the powers of the Irish Legislature under the sub-section. They would be able to deal in almost every possible way with these denominational institutions. The hon. and learned Gentleman's objection to the Amendment was that if the Committee accepted it, it would be impossible for the Irish Legislature, with the best intentions in the world, to deal with these institutions by way of altering their rules, conferring new privilege, or imposing any disability. The hon. and learned Gentleman's objection might be met by adding at the end of the Amendment the words "to the disadvantage of any other." That might also meet the objections of the hon. Member for North Kerry, who had brought forward the case of the reformatories. No doubt, those institutions were managed denominationally by both Protestants and Catholics, and it was necessary that some rule should be adopted which would prevent anything being done in the interest of one set of schools, which would tend to the prejudice of another set. He trusted the Amendment would be pressed to a Division.

* SIR C. RUSSELL

I think this subject is hardly being discussed in a business-like fashion, inasmuch as we have all our attention diverted from the Amendment by the suggestion of the noble Lord the Member for South Paddington. With regard to the Amendment before the Committee, it will be observed that it has not received unqualified or hearty support from anybody.

MR. A. J. BALFOUR

It has from me.

* SIR C. RUSSELL

I think the speech of the right hon. Gentleman was fully answered by the hon. Member for North Kerry, and to put the criticism on a narrow and minute ground I would point out that the illustrations advanced by my hon. and learned Friend the Solicitor General have not been answered.

MR. A. J. BALFOUR

I will notice them presently.

* SIR C. RUSSELL

It would not be open for the Legislative Body, under the Amendment, to make rules for institutions conducted by religious denominations, although those rules might be such as the whole community in Ireland would agree with and desire. The illustration of my hon. and learned Friend has not been answered. It was this: supposing the Irish Legislature offered prizes to such institutions as have teaching in Science and Art, and would not give prizes to such institutions as have not such teaching. That, in the one case, would be offering an advantage, but in the other it would in a sense be imposing a new disability. The speech of the hon. Member who has just sat down showed that every one of these Amendments is still harking back upon Subsection 2. The hon. Member who has just spoken admits the case put by the hon. Member for North Kerry, that certain institutions would not be properly dealt with by the Amendment as it stands; and, therefore, he proposes to add the words "to the disadvantage of any other." What is that but our old friend Sub-section 2? The proposal of the noble Lord opposite and the points dealt with by the Prime Minister and by the right hon. Gentleman the Member for West Birmingham (Mr. J. Chamberlain) again relate to Clause 2. There is no difference in the object of the Government and the object of those who are pressing the Amendment, that object being to provide that there shall be no undue or preferential treatment given to religious denominations. That being the view the Government have expressed, we are glad the noble Lord has been good enough to make this suggestion. The Government will consider the matter and see if Clause 2 can be strengthened so as to meet the point raised.

MR. A. J. BALFOUR

The hon. and learned Gentleman seems to think that I failed in answering the objections of his learned Colleague, and I gather that his opinion is in favour of debate by illustration—that the person who gives the greatest number of unanswerable illustrations may be considered to have the best of it. Well, I accept the challenge, and I will give him some illustrations. The Solicitor General asked— "Would you prevent rules being passed as to Science and Art grants?" I should be glad if some plan could be hit upon to leave such indifferent matters to the Irish Government, provided it did not carry dangers with it. I will give my illustrations. The Catholic Hierarchy in Ireland does not approve of the teaching of such subjects as history and philosophy, except under the immediate supervision of the Church. Suppose the Irish Legislature passed a rule giving preferential advantages to those institutions which do not teach history and philosophy as against those which do. What is to prevent that being done under the clause as it stands? My second illustration is drawn from the statement of the hon. Member for North Kerry. "Would you prevent certificates being granted under the superintendence of the Irish Government to new industrial schools, these schools being invariably denominational institutions in Ireland?" If you are not to withdraw that, power from the Irish Government, I say you will be giving them the most ample opportunity of treating preferentially one sect as against another. There is no appeal to the Privy Council or to the Judges, or to that Executive by which the certificates to industrial schools are granted; and it would, therefore, obviously be in the power of the Irish Government, unless some such Amendment as this is adopted, to increase indefinitely the grants to the industrial schools of one denomination to the exclusion of others. My third illustration—one to which no answer has been given—is as to Training Colleges. I have put it over and over again, and not a word of reply has been given by the hon. and learned Gentleman who is so sensitive about illustrations which are not answered. The hon. Member for North Kerry says I am guilty of confusion of thought in regard to Training Colleges and Colleges for the training of priests. I fully admit that there is a difference, but it is one of degree and not of kind; and it is extravagant to ask the Committee to say that the denominational institutions established for the purpose of training teachers denominationally are not in their nature as denominational as a College would be likely to be established for the sole purpose of the education of priests. What should prevent the Irish Government, without assigning a reason? passing a Vote to increase the grant to a Roman Catholic College, leaving the Protestant Colleges as they are? I do not see how you are to prevent that, and the Government have not given one jot or tittle of answer to my argument. If in the Appropriation Act—or whatever Act they might choose to do it in—they thought it desirable to increase the endowments of the Roman Catholic Colleges, what would there be to check it? Until I have these illustrations replied to, I shall hold the view that the hon. Member is bound to go to a Division and take the opinion of the Committee on his Amendment.

MR. W. E. GLADSTONE

I do not say that the speech of the right hon. Gentleman was not important, and contained much for consideration; but it did not go to the question immediately before the Committee. Whatever happens, I think that the view of the Committee is that this Amendment ought plainly to disappear. I was rather under the impression that the Mover of it was inclined to withdraw it.

MR. VICARY GIBBS

I am not.

MR. W. E. GLADSTONE

The right hon. Gentleman's speech turned upon illustrations, and he has referred to the case of Training Colleges. The position of the Government on that point is, I think, clear. Training Colleges are essentially connected with education. Their purpose is to fulfil the functions of schools, and the Government are unable to detach the questions affecting the Training Colleges from the questions of schools which the Training Colleges are intended to supply. We do not deny that Training Colleges have, as I am inclined to believe they ought to have, a denominational character; at any rate, they have that character. They are attached to schools of a secondary character, and, therefore, the Government recognises the responsibility distinctly that Training Colleges may very properly be supported by the Irish Legislature; but we apply to Training Colleges the same rigid rule against preference as we desire to see applied to the whole of the doings of the Irish Legislature. I can conceive a case of some denomination in Ireland, insignificant in numbers, and not able to support Training Colleges. Their application for aid might be refused. That might be a legitimate matter for the Irish Legislature to consider, if such refusal were based on grounds of insufficient purpose in the future, or insufficient resources; but if, on the ground either avowed, or from the act of the Irish Legislature, that Body had conceived a determination to establish Roman Catholic Colleges, and refused public assistance for the benefit of any similar institutions, this would be as flat a violation of what would be enacted in the Bill as it is possible to conceive. It appears to me that such a proceeding would be in direct violation of the important principle of the Bill; and if the action of the Irish Legislature could not be got at in the Courts of Justice—and I hope this may not be so—in my opinion, it would warrant resort to the Imperial Parliament for the purpose of defending its own act. The right hon. Gentleman has also referred to the fact that a University may be established. But it appears to me that a Training College is a Training College and a University is a University, and to mix up the two subjects is altogether beside the question. A University exists wholly irrespective of the other institution.

MR. A. J. BALFOUR

Can the right hon. Gentleman, if he takes that view, point out what sub-section of the clause would prevent the establishment of Denominational Colleges?

MR. W. E. GLADSTONE

I am referring to the right hon. Gentleman's speech. My point is that no establishing of any institution could take place under the Bill which "was founded on preferential principles. The right hon. Member for West Birmingham referred to the question of indirect preference as well as direct preference. There was considerable force in the contention of my right hon. Friend, and indirect preference is not an improper object for the consideration of the Committee. The liberty of taking an impartial view and acting without reference to religious distinctions as between one Party and another we desire to leave intact, as far as we can venture to do so, in all cases where the highest considerations do not intervene; but as to disguised motives actuating the Irish Legislature and inducing them to make differences as between one religion and another, I am bound to say I do not, in the least degree, suspect such a thing after what I have seen in a long Parliamentary experience of the conduct of the Irish Members. But I fully admit that this is a question on which it is desirable to act with every consideration, and that we ought to omit no means of excluding that which people may seem to apprehend.

MR. A. J. BALFOUR

I do not mean to go again into the controversy which the right hon. Gentleman has dealt with. I have laid my case as well as I can before the Committee. The right hon. Gentleman has replied; and although I do not think his reply is satisfactory, I shall not repeat the arguments I have already used. But I want to put one question to him. By way of interjection, I asked him about a Catholic University or College, and it is well-known that I have always been in favour of a Catholic University or College in Ireland. But it is not understood to be the view of the Government that the Irish Legislature should have the power of endowing such a Catholic College or University? Yet, surely it might be contended that, as there are Protestant Chairs of Theology in Trinity College, the Irish Legislature would have a right without preferential treatment—and I do not think it would be preferential treatment—to use their funds either to establish a Catholic University with a power of giving degrees, which I think would be very bad policy, or to establish a Catholic College without the power of giving degrees, which I think would be beneficial. I do not understand, however, that the Government intend that this matter shall be dealt with by the Irish Parliament. If that be so, I wish the Government to point out what clause of the Bill or what sub-section of this clause would prevent the Irish Legislature doing it.

MR. SEXTON

The right hon. Gentleman has, not for the first time in the Debate, raised a question of great gravity. I think the right hon. Gentleman would act more properly if he brought forward such a question on some specific words instead of by incidental questions on an Amendment which is not relevant to the subject in hand.

MR. A. J. BALFOUR

Surely the Amendment raises it.

MR. SEXTON

I think not. I think anyone who reads the Amendment will see that whatever it relates to, it does not cover the founding of a University. I do not know whether anyone will contend that the provision for University education in Ireland is now to be regarded as complete.

MR. A. J. BALFOUR

I do not think it is.

MR. SEXTON

Then I do not know whether the right hon. Gentleman will be disposed to contend that any further provision necessary to complete it should be reserved to the Imperial Parliament, no matter what such further provision may be. Is it proposed seriously at this time of day to withdraw from a Legislature in Ireland the task of completing the provision for University education in that country without regard to the question whether it should be carried out or not in the interests or a particular section of the community?

MR. A. J. BALFOUR

Does the hon. Gentleman desire me to answer him now?

MR. SEXTON

Yes.

MR. A. J. BALFOUR

Then my answer is quite direct and simple. I should not leave to the Irish Legislature the power of taxing Protestants and Catholics alike in Ireland for the purpose of establishing a denominational place of education.

MR. SEXTON

The right hon. Gentleman delivers a colourable reply, and one founded entirely on assumption. He also ignores some of the features of the case, and does not point out that which he was very willing to enlarge on when be sat on the opposite side of the Table three years ago—namely, that all the provision for University education in Ireland now is practically of a Protestant character. The hon. Member went on to submit that if the great question of University education was to be raised, and the right hon. Gentleman was going to endeavour to impose restrictions on the Irish Legislature which would not be tolerated in the case of any other civilised country, the subject ought to be carefully weighed before any conclusive declaration was made. It was evident that the provision for University education must be developed and supplemented in Ireland. For his own part, he should resist the insertion by anticipation of any restriction in the Bill importing that the Irish Legislature was not to be trusted on the question of Irish University education.

MR. VICARY GIBBS

said, he fully recognised the fact that the adoption of the Amendment would have the effect of crystallising the situation in so far as denominational education was concerned, and that it would prevent the Irish Legislature from making possibly useful alterations for or against certain Denominational Bodies. But he recognised also that the Committee was face to face with what seemed to him to be a more serious danger. In Ireland there was very great jealousy between religious communities—

An hon. MEMBER

Not more so than in England.

MR. VICARY GIBBS

said, that, at all events, the jealousy manifested itself much more strongly than in England, and he thought no one would dispute that both sides would be very ready to endeavour to advance the cause of their own creed as against that of a creed in which they were not interested. It seemed to him that unless some such Amendment as he had proposed were accepted the Irish Legislature would be able to establish a Roman Catholic University. There would be a great many people in England who would very much object to their having power to do that, and he thought the Committee ought to have its attention called definitely to any clause which would prevent it.

* MR. TALBOT (Oxford University)

asked whether his hon. Friend would consent to insert the word "preferential" before the words "disability" and "privilege"? This would remove the objection stated by the Government, that the Amendment as proposed would forbid any alteration.

MR. VICARY GIBBS

said, that if the Government would assent to the Amendment with that word included in it he would accept it. He had, however, no reason to suppose that the Government would assent to it. He quite recognised that the matter had been fully discussed, and that the Committee saw the very grave danger that would arise under the Bill in its present form. With the leave of the Committee he was prepared to withdraw the Amendment.

THE CHAIRMAN

Is it your pleasure that the Amendment be withdrawn? [Cries of "No!"]

Question put, and negatived.

THE CHAIRMAN

The next Amendment (Mr. Brodrick's) is out of Order.

* MR. GERALD BALFOUR (Leeds, Central)

moved to add a new sub-section, withdrawing from the Irish Legislature the power of making any law Determining the qualifications necessary to the holding of any judicial office, or of any office of the Executive Government in Ireland. He said that this Amendment differed in character from most of those which had been proposed by his hon. Friends on this and the previous clause. Those Amendments in general aimed at curtailing and restricting the powers of the Irish Go- vernment, including the Executive as well as the legislative branch. This Amendment had for its object not to restrict the powers of the Irish Government generally, but only of the legislative branch of that Government. It was one of a series of Amendments which he had placed on the Paper and which were intended to prevent the Legislative Body in Ireland from encroaching on the Executive. The experience of history had shown that where a Government consisted of different branches—

MR. J. MORLEY

I rise to Order. I submit that it is, not possible to discuss the hon. Member's Amendment without reference to those qualifications and conditions of Executive power which will come under Clause 5, and that, therefore, the Amendment is out of Order.

* THE CHAIRMAN

I think it will be necessary to refer to Clause 5, but I do not think that as this Amendment concerns the legislative powers only that it is out of Order here.

* MR. GERALD BALFOUR

said, that the Amendment dealt only with the legislative powers and not the Executive powers of the Irish Government, and, therefore, properly came in here. The experience of history showed that where a Government consisted of various branches intended to form a counterpoise one to another, there was an inevitable tendency in each branch to enlarge its powers and extend its range at the expense of the others. In such a struggle, as between the Executive and a Legislative Body, there was no equality of contest unless special precautions were taken to protect the Executive from encroachment of the Legislative. The history of this country for the last two or three centuries had been a history of the encroachment of the Legislature on the powers of the Executive. The same might be said of the Irish Government in the last half of the last century. In America, though in a less degree, Congress had been slowly encroaching on the powers of the Executive notwithstanding the safeguards provided by the Constitution. The other day he moved an Amendment to withhold from the Irish Legislature control over the appointment of Judges. That Amendment was not accepted by the Committee, but it was generally recognised on both sides that the appointment to judicial posts should be vested in the Crown, and he intended at a later stage to propose an Amendment to effect that object, and a similar Amendment with reference to the officers of the Executive Government. But it was not sufficient that these appointments should be vested in the Executive, valuable as that would be as a check on the powers of the legislative branch, so long as power was left to the Legislature to determine the necessary qualifications for the holding of such posts. By way of illustration, he would point out that it would be possible as the Bill now stood for the Irish Legislature to pass a law that nobody should be appointed to the judicial office who had not been domiciled in Ireland for a certain number of years, or who was not Irish by birth and parentage, or that nobody should be appointed to judicial or Executive posts who had held such posts under the existing régime. There were various methods in which it would be possible for the Irish Legislature to interfere in practice with the appointments made by the Executive, and it was difficult to forecast them exactly, for they might take curious and unexpected forms. The other day he came across a curious case of disqualification in connection with State appointments in the State of Virginia. In 1871 the State of Virginia induced the bondholders to abate one-third of their claims on the understanding that they should receive bonds with coupons attached, those coupons bearing on the face of them that they were receivable in payment of taxes. After the enfranchisement of the negroes a different policy prevailed, and the State passed Statute after Statute to get rid of its liability. The Statutes were declared invalid one after another by the Supreme Court, and as another means of effecting the same object those who offered the coupons in payment of taxes were made ineligible for public offices. He mentioned that as an illustration of the curious forms in which the State might interfere to determine the qualification of persons appointed to offices, and so interfere with the appointments themselves. The Solicitor General said, on the previous day, that the restrictions contained in this clause were intended to guard against real, not imaginary, dangers. He submitted that the danger to which he had called attention was real, and in that belief he begged to move the Amendment.

Amendment proposed, In page 2, line 29, after the word "or," to insert as a new sub-section the words "(5) Determining the qualifications necessary to the holding of any judicial office, or of any office of the Executive Government in Ireland; or." —(MR. Gerald Balfour.)

Question proposed, "That those words be there inserted."

* SIR C. RUSSELL

The Government cannot accept this Amendment. The hon. Member has, no doubt, said all that can be said in favour of it, but he has not given any illustrations of the danger which he conceives to be real and not merely imaginary. If the Irish Legislature have these powers, no doubt it would be perfectly true to say that it might exercise them in a ridiculous and absurd fashion. There is no reason why it should not declare that no man shall be a Judge who is not of a particular stature, or whose name does not begin with a certain letter of the alphabet. It might be capable of any absurdity of that kind; but that is not what the hon. Gentleman who moved the Amendment means. What the hon. Gentleman means is that some unjust and inequitable qualifications may be laid down, which would result in improper selections. But the Amendment goes much wider than that. Under the Amendment it would be impossible for the Irish Legislature to lay down as an ordinary condition that no one should be appointed to a judicial office who has not been at the Bar for a certain number of years, or that a man should retire and be disqualified for acting as a fudge after a certain age.

* MR. GERALD BALFOUR

The Executive might lay down that rule.

* SIR C. RUSSELL

I do not see why there should be given to the Executive, which will grow out of, and be the creation of, the Legislature^ power which will not be given to the Legislature itself. The answer to this and other Amendments is that, with whatever care the Bill may have been framed, it is possible to put cases in which the Irish Legislature or Executive may be conceived as using its powers in a manner which Parliament did not intend—which Parliament would be disposed to condemn—and it is not possible to provide for every contingency. I would say to the opponents of the Bill that the mortar of distrust is a very bad cement to apply to a legislative struc- ture such as we are now engaged in erecting, and we must ask the Committee to give to the Body to be constituted as the Irish Legislative Body credit for qualities of good sense and of justice also in the matters in which they will have to deal. I say, further, that with regard to the qualifications of Judges, the Amendment proposes to take away from the Irish Legislature a power which I do not think is taken away from the Legislature of any country I know of. Then what about the Stipendiaries and County Court Judges? Why is the power of determining the qualifications of the Stipendiaries and County Court Judges to be taken from the Legislative Body and vested in the Executive Body, which will be created out of and by that Legislative Body? The Amendment would even deprive the Irish Executive of any voice in formulating the qualifications of any one of its numerous Executive officers, important and unimportant. I submit that that is an Amendment which is not called for, and one which ought not to receive the support of the Committee.

* MR. MATTHEWS (Birmingham, E.)

I am extremely glad to see the Attorney General, and welcome his advice and assistance; but he has contributed to the present discussion only the old argument which we have heard over and over again in his absence—that the Amendment expressed distrust of the Irish Legislature, and therefore ought to be rejected. That is an argument which would apply to the whole clause. We are discussing a clause which lays down restrictions on the Irish Legislature, and this Amendment does not imply more distrust of the Irish Legislature than any other sub-section of the clause. The Amendment raises the important question as to whether the holding of judicial office shall be governed by the Crown or by a popular Assembly. It is not necessary to imagine absurd actions on the part of the Irish Legislature in order to find arguments in favour of the Amendment. It is quite possible that the Irish Legislature will be actuated by common sense, but that does not render the Amendment unnecessary. One important part of our system is that high judicial offices are held by the confidence of the Crown, and not in obedience to any conditions that might be imposed by a popular Assembly, and it is not expressing distrust of the Irish Legislature to suggest that it would be extremely likely in Ireland, where there has long been a want of sympathy between the population and the law, that some such qualification as popular election may be imposed by that Legislature before the appointment is made.

SIR C. KUSSELL

The appointments are made by the Crown.

* MR. MATTHEWS

If you allow the Legislature to determine the qualifications, the Legislature may lay down a rule that an appointment should be confined to persons who had received the approval of some popular election, or some popular sanction. The law, as it at present exists, and which we desire to preserve in Ireland, is that these appointments should be at the discretion of the Crown; that the appointments should come from above, and not from below; that the fitness of the persons for the appointments shall be determined by the Executive Government of the day, and controlled by the Irish Legislature only by that indirect uncontrol exercised by the House of Commons over appointments of the sort. For instance, it is not many years ago since one of the appointments of the right hon. Gentleman the Prime Minister to the Bench was the subject of debate in this House. In that indirect way it is quite right and proper that the Irish Legislature should have the same check over judicial appointments as this House has; that is to say, it may express its opinion of a bad appointment by a vote of censure; but for a popular Assembly to lay down the qualifications on which alone the Crown shall give these appointments is unknown in this country, and would operate prejudicially on the Bench. I do not assume that the Irish Legislature would do anything unreasonable, absurd, or unjust. But it is perfectly possible that what are called American sentiments may prevail, and it is perfectly possible that the differences of race or creed which unhappily prevail in Ireland may lead to some sort of qualification being laid down which would certainly not be in accordance with the ideas that have hitherto prevailed.

MR. DANE (Fermanagh, N.)

said, the appointment of the Judges in Ireland was a matter of the greatest importance to the Loyalists. In the very next sub- section of the clause provision was made that the lives, liberties, or properties of Her Majesty's subjects in Ireland were not to be interfered with or determined except by due process of law, and the persons who were to determine what was the due process of law were the Judges of the Superior Courts, the County Court Judges, and the Stipendiary Magistrates throughout the country. The Attorney General had said that the Imperial Government was to retain the appointments of these Judges; but he had read carefully through the Bill, and failed to find in it any provision of the kind. The occupants of the Treasury Bench should admit that this was a most important matter; and if they could not see their way to accept the present Amendment, perhaps they would introduce into the clause some words to guard against the danger that was apprehended. So far as he could see, the Legislature proposed to be set up in Ireland would be entirely free to appoint any persons they pleased as Judges. It would be quite competent for the Legislature to appoint the Judges of the Superior Courts and the Counts Courts for a certain time, and it would then depend on the manner in which those Judges bowed to popular clamour whether they would be re-appointed or not at the end of the term. That was a most depressing outlook for the Loyalists of Ireland: and, as one of their representatives, be appealed to the Government not to leave so great a power unchecked in the hands of the Irish Legislature.

MR. CLANCY (Dublin Co., N.)

said, that if the Irish Legislature was not fit to determine the qualifications of persons who were to hold judicial offices or executive offices in Ireland, it, was not fit to do anything at all. He believed that no Irish Parliament that might be elected would prefer a system of popular election to judicial appointments; but, at the same time, he would never surrender the right of the Irish Parliament to do anything it pleased in such matters. The Irish Parliament should be allowed free scope to do as it pleased in domestic matters of that kind; and if it were not allowed to do that, it had no right to live at all. He wondered how any Englishman who was enamoured of the Constitution of his country could lend the slightest support to the Amendment. The hon. Gentleman who moved the Amendment had actually stated in the British House of Commons that he had put down a series of Amendments, the object of which was to prevent the encroachment of the Legislature on the power of the Executive. He thought the history of the British Constitution was the history of successful efforts on the part of the Legislature to control the Executive. If the Irish Parliament in the last century had had control of the Executive, probably this Home Rule Bill would never have been necessary, for the Irish Parliament would have continued in existence. But because the Irish Executive was independent of the Irish Parliament; because the Executive held Office, no matter what their majority in the Irish Parliament might be, was the chief reason, in his opinion, why the Irish Executive was able, with the assistance of the English Executive, to bribe the Irish Parliament to destroy itself. The hon. Gentleman referred to the tendency which was observable in the United States in the direction of encroaching upon Executive control. But the reason why the American Legislature had not so much control over the Executive was that when the United States Constitution was founded, it was founded upon the British Constitution as it existed in the time of George III., and not in its present form. Owing to external circumstances, the United States Constitution had continued in that condition; but he was prepared to believe that it was advancing in the British direction, and he was confident the more it advanced the more it would be subservient to liberty in the United States. What the Irish people wanted was that their Legislature should have control over the Executive; they would not submit to an Executive which was not controlled by the Legislature, and they would not accept Home Rule unless their Legislature had control over every Department of the Executive Government.

LORD R. CHURCHILL

I do not think the question raised is so much the right of the Legislature to interfere in judicial appointments as one would gather from the course which the debate has taken, nor do I think the sub-section would give any power to the Irish Legislature to lay down any special disability or any special disqualification in the case of Judges to be appointed, for these matters, after all, are governed by very general principles; of course, the appointment of Judges will rest entirely with the Lord Lieutenant as part of the prerogatives which will devolve upon him; and the only doubt is as to the manner of the exercise of this prerogative. The Lord Lieutenant will have to do one of two things. He must, before appointing to the Judicial Bench, consult his Ministers, or, as is generally done in this country, and as has been the practice in Ireland, consult the Lord Chancellor of Ireland. There is another practice, which has been very common in Ireland under certain régimes—notably in that from 1874 to 1880—and that is to take the Lord Chancellor of England into consultation as well as the Lord Chancellor of Ireland. I suppose one of these methods will be selected for the guidance of the Lord Lieutenant. The Committee would like to know to what extent it will be in the power of the Lord Lieutenant to appoint to the Judicial Bench under the Bill, and by what counsel he will be guided in making his appointments. It is on this point that the merits of the Amendment turn, and I hope the Solicitor General or the Chief Secretary will throw some light upon it.

MR. SEXTON

said, with regard to the provision in Clause 35, that during the first six years after the passing of the Act the Judges in Ireland should be appointed on a Warrant signed by Her Majesty's Government, he could only infer that what was meant was that after those six years the appointments would be made by the Lord Lieutenant, acting on the advice of the Irish Executive. He assumed that the term six years was intended to reserve a discretion to the Imperial Cabinet, and that after that period had elapsed the Lord Lieutenant would act on the advice of the domestic Cabinet. The noble Lord had discoursed upon the Amendment; but he had not addressed himself to its scope, which dealt not only with the qualification of judicial officials, but with the officers of the Executive in Ireland.

LORD R. CHURCHILL

I am afraid I did not take any notice of that; but it is obvious that the initiative of the prerogative must rest entirely with the Lord Lieutenant.

MR. SEXTON

said, the Amendment did not say any "officer"—it said any "office," and he read that Amendment to include the whole sphere and round of administration. It was obvious that any person, be he a letter carrier or a police constable, could not be appointed under this Amendment. That might be a too sweeping reading of the Amendment, but it was just reading nevertheless. He would submit that this was an Amendment which breathed not only a spirit of distrust, but one of unqualified contempt, for the intentions of the Irish people. It was, moreover, illogical and nonsensical. No doubt the interest of the English people in the maintenance of peace, order, and good government in Ireland would be a deep and intelligent interest; but the Irish people would have a still deeper and a still more intelligent interest in seeing that these things were secured through the medium of their Legislature. He said, therefore, firstly, with regard to the Executive Offices, it was absurd to give the Irish Legislature power to make certain laws and then to deny the right to put forward a Bill defining the qualification of those who were to administer them. As to the Judicial Offices, it would be the cardinal interest of the people of Ireland to see that good laws were made, and that they were well administered. If this Amendment were carried, the Irish Legislature would be actually prevented from altering the qualifications of the Judges, even if English experience pointed to the desirability of making such alteration. He submitted broadly and generally upon the Amendment, with regard to both Executive and Judicial Offices, that if they trusted the people of Ireland—and the friends of the Bill did trust them—to make laws for the peace, order, and good government of Ireland, they must give them, according to Constitutional usage, the power to secure executively and judicially the good administration of those laws.

MR. W. E. GLADSTONE

It will have been noticed that the proposer of the Amendment, as has happened in so many other cases, entirely failed to notice the scope of his proposition. The Amendment will include all persons holding public office in Ireland, no matter how humble that office might be. It will include the postman and letter carrier as much as the Lord Chancellor or the Judge. It is not convenient to have an Amendment of this enormous scope merely because in one-twentieth or in one-hundredth part of it there may be a certain morsel or residuum of sense. Under the Amendment the Irish Parliament could not order that no postman should be appointed under the age of 18 years. But, with regard to the appointment of the Judges, two misprints in the Bill had been pointed out. One is with respect to the Exchequer Judges, who are to be considered as mainly invested with the discharge of Imperial functions. They are to be taken out of the general scope of the Bill, and their salaries charged on the Consolidated Fund. The other is with respect to the period of six years. It is quite plain that the restriction is intended to refer only to the term of six years, and that after that the appointment of Judges will fall under general and permanent rules. The Government have declared their perfect willingness to introduce into the Bill a provision that the appointment of Judges shall remain with the Crown; and if that is done it will be totally impossible, as has been suggested by the right hon. and learned Gentleman opposite (Mr. Matthews), that the method of popular election should be resorted to. That would be in direct contradiction to the spirit and intention of the Act, and it would be totally impossible that any Viceroy worth his salt would sanction a proceeding of that kind. Beyond that, I hold that we should do no good by attempting to interfere in this matter; we should only show our teeth without biting, and only exhibit our distrust and jealousy of the Irish Legislature. The noble Lord has referred to the case of 1874, when he said that it was customary to consult the English Lord Chancellor as to the appointment of Irish Judges. The arrangement must have been resorted to at the time a distinguished Irish lawyer like Lord Cairns was Lord Chancellor, because it was found convenient to follow his advice in these matters; but the practice of consulting the English Judges as to the appointment of Irish Judges is quite unknown to Ministerial usage in this country.

LORD R. CHURCHILL

Is not the Prime Minister himself consulted in regard to such appointments?

MR. W. E. GLADSTONE

My varied experience enables me to say that the Prime Minister has no concern what— ever in the appointment of Irish Judges. With regard to English Judges, the appointment of Puisne Judges rests, in a Ministerial sense, in the hands of the Lord Chancellor, and it is rarely that the Lord Chancellor consults the Prime Minister in regard to these appointments. All Judges other than Puisne Judges are appointed on the responsibility of the Cabinet; but, as far as I know, the advice of the Lord Chancellor is invariably taken. I assume that arrangement will be adopted in Ireland, and I say that to vest the appointments in the Crown would be an absolute guarantee against the adoption of any proceedings which would tend to defeat the intention of the Act.

* MR. GERALD BALFOUR

said, that, speaking with all due submission, he differed from the view of the Prime Minister that the Amendment would have the wide scope which the right hon. Gentleman had suggested. However, he was quite willing to move his Amendment without the words "or any office of the Executive Government in Ireland." All the same, it would, he felt, be a very serious matter if the Irish Legislature should have the power of determining the qualifications of those who were to form the Cabinet—if, for instance, it should be allowed to pass a law that no one should sit in that Cabinet who had not been domiciled in Ireland for a given number of years, because such a step would materially diminish the power of the Crown. The hon. and learned Member for the Northern Division of Dublin County had expressed his surprise that any English Member should desire to prevent the Irish Legislative Body from encroaching on the powers of the Executive, and he had declared that the history of England was a history of encroachment of the Legislation on the Executive. But that was in the past, and the process had gone far enough already. The United States Constitution carefully provided against any encroachment by the Legislature on the Executive; and if such a provision were necessary in America, it was still more requisite in the case of a country like Ireland, which was so deeply divided against itself. It was obvious that in Ireland there would be a constant tendency towards an increase of the powers of the Legislature. They had on this, as on so many other Amendments, been met with the argument that they should not distrust the Irish people and the proposed Legislative Body. While he was content to give that Body credit for possessing common sense, he thought they were bound to remember what had occurred in certain of the States of America. In the valuable work of the Chancellor of the Duchy of Lancaster on the American Constitution, they were told that the provisions as to the restrictive powers of the Legislature had grown more minute of late years as abuses appeared to have become more frequent. Let them remark that admission—that American Legislatures were capable of abusing their powers, and let them ask themselves why it was to be assumed that the Irish Legislature would not abuse its powers.

Amendment amended, by leaving out the words "or of any office of the Executive Government in Ireland."

Question put, "That the words 'determining the qualifications necessary by the holding of any judicial office, or,' be there inserted."

The Committee divided:—Ayes 231; Noes 266.—(Division List, No. 141.)

* MR. GERALD BALFOUR

moved the insertion of the following subsection:— Diminishing the salary of the holder of any office under the Crown in Ireland during his continuance of office, or altering his right to pension without his consent. The general arguments in favour of this proposal were, said the hon. Member, the same as those he brought forward in support of the last Amendment. It was designed to protect the Irish Executive if the occasion ever arose, and there should be a struggle between it and the legislative branch of the Government. The ultimate power rested with those who controlled the purse, and he thought it would be undesirable that the Legislative Body should have the power of diminishing the salaries of the servants of the Crown, and should be able to hold that power in terrorem over their heads. He quite admitted, in moving an Amendment of this sort, he had in his mind a different relation between the Executive and Irish Legislative Body to that which was contemplated by the Bill. He hoped, at a later stage, to bring forward an Amendment securing that the Executive should have greater independence of the Irish Legislature than this Bill gave it, and it was with a view to that further change in the provisions of the Bill that he now begged to move this Amendment.

Amendment proposed, In page 2, line 29, after the word "or," to insert, as a new sub section, the words—" (5.) Diminishing the salary of the holder of any office under the Crown in Ireland during his continuance in such office, or altering his right to pension without his consent, or."—(Mr. Gerald Balfour.)

Question proposed, "That those words be there inserted."

MR. J. MORLEY

The hon. Member who moved this Amendment is of course aware that so far as, perhaps, the most important of all the classes of officers of the Government are concerned,—namely, the Judges, we have provided in the Bill by the 26th clause—

MR. GERALD BALFOUR

I had forgotten to allude to that. The object of the Amendment is to extend that provision to other officers of the Crown.

MR. J. MORLEY

We quite admit that, so far as the Judges are concerned, it might be thought that the possibility of reducing their salaries might be held over them in terrorem. Without sharing that apprehension, we have made provision against it by specifically forbidding the Irish Legislature from diminishing a Judge's salary during his continuance in office, or altering his right to pension without his consent. The hon. Member proposes to extend that limitation to all holders of Executive offices. Can it be conceived that it would be possible to carry on the Executive Government in either Ireland or any other country if the Legislature were prohibited from fixing the amount of salaries. Take your own case. Can any Member of this House contemplate the possibility of this House being debarred from the exercise of any power of reducing the salaries of all holders of Executive office, from the highest down to the lowest, or of at all regulating their pensions? Surely it is conceivable, if an Irish Legislature ought to be constituted at all, for Ireland to pass laws for the peace, order, and good government of Ireland, that they would be fit to exercise the power of fixing the salaries of their own Executive officers.

MR. J. CHAMBERLAIN (Birmingham, W.)

I think the Chief Secretary has given as an illustration a case which the Committee ought to consider. He asks how should we like it in our own case? He talks about fixing the salaries. Of course, the Amendment does not, in the slightest degree, touch any office or the new holders of old offices. It proposes merely to respect what I would call the vested rights of holders of office. It is only those who are actually holding office at the time of the passing of the Bill, or who have contracted with the Government for a particular salary, who are not to have that salary diminished. Following out the illustration of my right hon. Friend, I would ask him can he point to a single case in which this Parliament has ever made a reduction of salary?

Colonel NOLAN (Galway, N.)

We often move it.

MR. J. CHAMBERLAIN

That is a different thing altogether. The Motion is made in every case I have known, because it is the formal method of raising the subject which is connected with the office attached. In no case I know of has there ever been made by Parliament a reduction in a salary previously agreed to by Parliament.

MR. J. MORLEY

I should like to understand clearly from the Mover of the Amendment whether he means his Amendment to affect only existing holders of office, or whether he means to make it affect the general system of Irish government under the new Parliament?

MR. GERALD BALFOUR

The object of my Amendment is this. In the case of a person who is already a holder of officio, I withdraw from the cognisance of the Irish Legislature the diminution of his salary while he is in office and during his continuance in office.

MR. T. M. IIEALY (Louth, N.)

The Bill does that.

MR. GERALD BALFOUR

In the case of the Judges, as the right hon. Gentleman has said, this is already provided for, and all the Amendment proposes to do is to extend to the holders of other offices of the Crown that which the Rill provides for in the case of the Judges.

MR. J. MORLEY

The hon. Member must have overlooked the 28th clause, which concerns all other officers of the Crown.

MR. GERALD BALFOUR

The light hon. Gentleman has mistaken me. I do not refer merely to those who at this present time hold office—I refer to future holders of office also; and what the Amendment provides is, that a person having entered into office at a given salary, that salary is not to be diminished by the action of the Irish Legislature during his continuance of office.

MR. J. CHAMBERLAIN

May I put the case in this way? Suppose at the present time a holder of an office has a salary of £500 a year. It would pi-event the Irish Parliament from reducing that salary during the continuance in office of the present holder. But when the question arose who was to take his place, the Irish Parliament would be perfectly entitled to fix the salary of the office for the new holder. Let us suppose they did so, and fixed it at £300, then the Amendment would come into force again, and prevent them reducing that £300 as long as the holder held the office. The argument in favour of it is precisely the same as for the proposition of the Government in regard to the Judges. The provision of the Government in reference to the Judges is put in in order to secure the impartiality of the office and its superiority from Party considerations. If there is one thing which distinguishes the Imperial Civil Service from all other Civil Services in the world it is the fact that our Civil Service is above and beyond Party. That has been secured by the fact that Party feeling in this country is powerless to penalise the holder of any office on account of political opinions. In other countries where that is not the case disastrous results have followed, and I would submit to the Government that the very same consideration which led them to secure the impartiality of the Judicial Bench should also lead them, in the interests of the new Legislature they are setting up, to secure the absolute impartiality of the Irish Civil servants.

MR. SEXTON

did not think the right hon. Gentleman correctly apprehended the reason why the salary of a Judge was not to be diminished. It was not to secure that the Judge would be impartial, because the Judge was practically sure his salary would not be diminished, and he did not require any safeguard to make him impartial between suitors. If one of the parties to a suit before a Judge could affect his salary, then that might affect his impartiality; but that was not before them. The real reason why a Judge's salary could not be reduced was because in British history the people had a bitter experience of the dependence of the Judges on the Crown, and the desire was to make the Judge independent with regard to the Crown and the Executive power. It appeared to him that there were adequate provisions in the Bill for the purpose of meeting the object of the Amendment, of which he thought the right hon. Gentleman misunderstood the scope. He rather thought that the right hon. Gentleman imagined it was only intended to safeguard the interests of existing holders of office; but the proposer of the Amendment went much further. The Bill, as drafted, provided amply for all existing office holders. The salaries of the Judges could not be diminished; and, in respect to Civil servants, Clause 27 provided that all persons whose salaries were charged to the Consolidated Fund should continue to receive the same salaries as heretofore. In Clause 28 it was provided that existing permanent Civil servants, whose salaries were not chargeable to the Consolidated Fund, should continue to receive the same salary. He did not think there ever was any legislative enactment in which there were such elaborate provisions made for the preservation of the salaries of all grades of Civil servants. But now they came to this: that after all the existing tenants of office had departed, and the now tenants had come in, it was proposed that once any man had enjoyed a certain salary, never hereafter should that salary be reduced. He would say that that proposal was fantastic. They were leaving the region of comedy in which they had stayed so long, and were passing into the region of farce. Suppose there was a shrinkage of revenue in Ireland from a succession of bad years, and suppose that the funds at the disposal of the Irish Government suffered extensive diminution, was it to be said that a reduction of salaries ought never to take place? He did not think it likely that after a gentleman once received a certain salary that salary would be reduced; but he could not accept, a restriction which would be absurd, and would not be countenanced if applied to any other Legislature, especially when the rights of all persons now in office were absolutely safeguarded.

MR. GIBSON BOWLES

pointed to the fact that on the Paper there was a proposed new clause, to be inserted after Clause 28, which read as follows:— When any public officers not in the service of the Crown are entitled to salaries, gratuities, and pensions, the provisions of this Act shall apply, as in the case of Civil servants. It seemed to him that as the matter stood the Judges, the Civil servants, and all other public officers not being Civil servants were also provided for against disturbance in their salaries and pensions; and if he was right in his construction of the proposed new clause, it would amount to very much the same thing as the Amendment.

MR. J. MORLEY

remarked that there were certain officials in Ireland who, while they were in the service of the Government, were not Civil servants, properly so-called, and that clause in the Schedule had been introduced to meet their case.

LORD R. CHURCHILL

Does that apply to the Resident Magistrates?

MR. J. MORLEY

They are dealt with by Clause 27.

MR. A. J. BALFOUR

I do not propose to follow the hon. Member for North Kerry in his commentary on Clauses 26, 27, and 28. He has laid down the broad proposition that the safeguards in the Bill as to the existing Civil servants are adequate. I do not take that view; I think they are inadequate; but I shall reserve my arguments until we come to the clauses relevant to that particular issue. At present we are not discussing in the least the position of the existing Civil servants.

MR. W. E. GLADSTONE

That is exactly what the right hon. Gentleman the Member for West Birmingham did discuss.

MR. A. J. BALFOUR

I listened to the speech of the right hon. Gentleman, and I certainly did not gather from him a single word indicating that in his view it was necessary that the interest of the existing holders of office should be safeguarded by the Amendment of my hon. Friend. As regards the Judges, the safeguards may be ample and adequate; as regards the existing holders of office in the Civil Service, they are neither adequate nor intended to be adequate. Let the Committee understand that this Amendment does touch the existing holders of office, but does not touch the salaries to be fixed hereafter in the event of vacancies in the existing offices or the salaries of new offices to be created. All those things are left absolutely to the Irish Legislature to determine. The only question before us is whether we shall or shall not give to the Irish Legislature power to put the screw upon officers appointed by the Crown through the operation of reducing their salaries? I think that on general grounds, whatever may be the constitution of the Irish Legislature, that would be inexpedient. But it would be more inexpedient if my hon. Friend's view of the relations which should exist between the Executive and Legislature is carried out. He has put down Amendments to assimilate the new Constitution of Ireland to that which is already in existence in America, under which there is a very great independence on the part of the Executive from the Legislature. As, therefore, quite apart from the expediency of withdrawing from the Irish Legislature the power of manipulating the salaries under our system, my hon. Friend wishes to alter that system, it becomes doubly necessary, if you have an Executive depending on the Crown and not on the Irish Legislature, to secure that the salaries of that Executive shall not suffer diminution at the wild and way ward will of an Irish Parliament. Those are our arguments. They are not worthy of the description given them by the hon. Member for North Kerry; they are not wild and illusory; I think them rational, worthy of consideration, and worthy of adoption by the Committee.

MR. J. MORLEY

I will not enter on a discussion as to the best system of government for Ireland. It may possibly be that the American system of independence on the part of the Executive of the Legislature is the best. But it is not the foundation on which this Bill is laid. These are not the principles on which the English Constitution and the English Parliamentary system are conducted, and I think the hon. Member is making a mistake in endeavouring to graft them upon this Bill, a course which would be sane enough if Parliament accepted his general conception of the best government for Ireland. What has often happened in this House? The right hon. Gentleman the Member for West Birmingham said the salaries of officers are never reduced. There is a Motion constantly made—it was frequently made in the case of the Leader of the Opposition when he was Chief Secretary for Ireland —for the reduction of salary. It is the form in which holders of office are criticised, and why, I ask, should the Irish Legislature be debarred from expressing its opinion of the conduct of an official in that way? Take a more practical case. It is quite possible to conceive circumstances which might withdraw all duties from a holder of an office. You may have a legislative change which would withdraw from the holder of an office the work he was appointed to perform. Does the Mover of the Amendment think that the Irish Parliament is not to have the power to alter the terms of office under these circumstances? I do not think I need labour the argument further.

Question put.

The Committee divided:—Aves 239; Noes 281.—(Division List, No. 142.)

* MR. DARLING (Deptford)

rose to move, as an Amendment— In page 2, line 29, after sub-section (4), insert "(5) Subjecting any person to the penalties or disabilities of attainder, nor shall their powers extend to the bringing in or considering of any bill of attainder. He thought that no one who attended to the discussions in the country which preceded the bringing in of this Bill—discussions which went to the point that the Irish Parliament was to be gifted with the power of managing the local affairs of Ireland—could have supposed that such a Parliament was to have the high powers and privileges of the Imperial Parliament of bringing in bills of attainder, and to subjecting Her Majesty's subjects to the penalties that such bills of attainder involved. Bills of attainder had been generally used in this country to strike at high crimes or misdemeanours or high crimes and misdemeanours in the estimation of those who had not committed them themselves. It might, therefore, well be reserved to this Parliament—in which, after all, Ireland was to be very generously represented— if the ordinary law was to be set aside and exceptional measures were to be resorted to, to have recourse to those exceptional measures. He understood from his experience in the House that the Irish Members objected to what they called exceptional legislation, and especially to exceptional legislation which dealt with the punishment of crime; and therefore they, above all, would hardly desire to have the Irish Parliament possessed of powers to punish crime beyond the powers vested in the ordinary Courts of Law, and it was such power that the power to pass a bill of attainder involved. But there was another reason for adopting the Amendment. Bills of attainder have usually been introduced in the past to punish the crime known as high treason, and what was high treason and what was not was a matter which had exercised the minds of many lawyers and many persons who had not the disadvantage of knowing any law at all. If there was one thing on which the English and the Irish people absolutely and entirely differed it was the question what was treason and what was not treason. He need not go further than the words of the Prime Minister to prove that. The right hon. Gentleman had described the Party, to whose demands he yielded in introducing this Bill, as steeped in treason to the lips.

MR. W. E. GLADSTONE

Considering that that has been contradicted at least 20 times, I am surprised to hear it from the hon. and learned Member.

* MR. DARLING

said, he had, it seemed, attributed the expression to the wrong Member of the Liberal Government. It was used by an ex-Attorney General for Ireland who had even a wider experience than the right hon. Gentleman of the attributes of the Irish Party. But the Irish Party did not accept that view. Even the present Chancellor of the Exchequer thought they were steeped in something different—

The CHAIRMAN

Order, order! I think the observations of the hon. and learned Member have little to do with the Amendment on the Paper.

* MR. DARLING

said, he was arguing that if they gave to a subordinate Parliament the power of punishing on a charge of treason, it was material to consider what would be the view of treason held by that Legislature, and whether it was the same view as that held by right hon. Gentlemen on the Treasury Bench. If the Irish Parliament had the power to introduce bills of attainder their bills of attainder would be to punish what the Imperial Parliament would consider loyalty, just as the bills of attainder of the Imperial Parliament would be to punish what the Irish Parliament would consider loyalty. Whether that was so or not there were other reasons for not giving the power of introducing and passing bills of attainder to the Irish subordinate Legislature. He would read a passage from Sir Erskine May on the subject—

MR. T. M. HEALY (Louth, N.)

I rise to Order. I wish to ask whether Clause 2, Sub-section 8, does not provide that the Irish Parliament shall make no laws in reference to treason, and whether the Amendment is not, therefore, out of Order?

The CHAIRMAN

The hon. Member is not out of Order.

* MR. DARLING

said, that a bill of attainder was a purely legislative matter. It could be introduced to punish treason or anything else; and if the hon. Member had waited until he had heard the passage read, he would not have made the objection, as the passage would have enlightened him. Sir T. Erskine May wrote— The proceedings of Parliament in passing bills of attainder, and of pains and penalties, do not vary from those adopted in regard to other bills. They may be introduced into either House, but ordinarily commence in the House of Lords; they pass through the same stages; and when agreed to by both Houses they receive the Royal Assent in the usual form. But the parties who are subjected to these proceedings are admitted to defend themselves by counsel and witnesses before both Houses; and the solemnity of the proceedings would cause measures to be taken to enforce the attendance of Members upon their service in Parliament. In evil times this summary power of Parliament to punish criminals by Statute has been perverted and abused; and in the best of times it should be regarded with the severest jealousy. They were at present living in the best of times, in the estimation of the Government. The right hon. Gentleman was in Office, and the times could not be mended; but even in such times the power of punishing any kind of crime by means of legislation ought, according to Sir Erskine May, to be watched with the greatest jealousy. He therefore asked the Prime Minister either to admit that we were not living in the best of times or else to exercise the greatest jealousy before he conferred this power upon the Irish Legislature, enabling the Irish Legislature to declare that to be a crime which in reality was no crime at all. He appealed to Scotch Members to remember the times when To be a Scot was treason and, to side with Wallace, crime. [Cries of "Divide!"]

An hon. MEMBER

We are tired of this.

* MR. DARLING

said, he rejoiced to find that his remarks were so distasteful to the hon. Member, and asked what case had been made out for giving a subordinate Legislature a power which, although it had not lately been exercised by this Parliament, had been perverted and abused? Did the Government suppose that the Irish Parliament would be a better Parliament than our own? They had it upon the authority of the Solicitor General that they could not take away the authority of this Parliament even if they tried, but they could be careful how they granted powers which even this Parliament had abused to another Parliament that they were about to set up. They were frequently told that this Bill did not repeal the Act of Union; but Sir Erskine May said— By the 4th Article of the Act of Union with Ireland it was enacted that 'the (representative) Lords Spiritual and Temporal respectively, on the part of Ireland, shall have the same rights in respect of their sitting and voting upon the trial of Peers as the Lords Spiritual and Temporal respectively on the part of Great Britain'; and that all the Peers of Ireland shall be sued and tried as Peers, but shall not have the right of sitting on the trial of Peers. Bills of attainder had been very frequently preceded by articles of impeachment exhibited in this House, and upon the exhibition of such articles the representative Irish Peers had the right to sit and vote, and all the Irish Peers, whether representative or not, had the right to be represented and to be tried by the House of Lords. [Cries of "Agreed!" "Divide! divide!" and "Question!"] If they did not take away from the Irish Parliament the right to proceed by Bill of attainder, they might go behind that Article of the Act of Union, because they might refuse to proceed by articles of impeachment, but might pass a bill of attainder, and the Irish Peers would then be deprived of the protection given to them by the Act of Union. It might be said that this Irish Parliament, if granted, would not have the right of impeachment. But who could show that? The Imperial Parliament, though it clearly had a right of impeachment, did not possess it by virtue of any Statute, but simply because it had assumed the right; and why could not the Irish Parliament, in the fulness of its strength, do what this Parliament had done? There was no provision in the Bill to prevent them from exhibiting articles of impeachment. There was nothing in the Bill to say that impeachment should be forbidden to them as a Legislature, and that they should, by exhibiting articles of impeachment, be able to interfere with rights which were supposed to be safeguarded by the Act of Union was a thing not to be tolerated. [Cries of "Go on!"] He intended to "go on," but he might remark that things had not been done so hastily a few days since in Committee Room No. 15. It was not provided for in the Bill that the Irish Legislature should not exhibit articles of impeachment: therefore, the Committee was bound to see that this power of attainder was not given to the Irish Parliament. He did not know whether it was the view of the Government that articles of impeachment were within the power of the Irish Parliament or not. If they were not there was no provision in the Bill that they should not have power to consider Bills of attainder, which were on precisely the same footing as other legislation. If it was not intended that they should have the power of impeachment, they ought to provide—

MR. T. M. HEALY

I rise to Order. I wish to ask whether there is not a Rule in this House against tedious repetition?

MR. BARTLEY

I, Sir, would ask whether there is not a Rule against continual interruption Member is speaking?

THE CHAIRMAN

Order, order! Mr. Darling.

* MR. DARLING

said, he was content to observe how awkward this question had become. He thought the Government would see that it was a serious question which deserved their attention. He believed they did not desire—he was sure they did not desire—that the Irish Legislature should have power to do what might be unjust, and he could not think that they had really considered the points he had referred to which were contained in the Act of Union, a violation of which would be an infringement of the liberties secured to Irishmen of a certain class. He would remind the Committee that every crime could be proceeded against under a bill of attainder—that it would not be confined to the more dignified forms of crime, and that, therefore, it was not merely a question of protecting the class protected by the Act of Union, but a question of protecting every one over whom the Irish Parliament might have power. As the Government had not included in their Bill a power of exhibiting articles of impeachment, they ought to prohibit that Parliament from doing what was the same thing—that was to say, proceeding against any one by Bill of attainder. They should leave Irishmen in Ireland to be dealt with by the ordinary Courts administering the ordinary law of the land.

Amendment proposed, In page 2, line 29, after sub-section (4), to insert as a new sub-section, the words "(5) Subjecting any person to the penalties or disabilities of attainder, nor shall their powers extend to the bringing in or considering of any bill of attainder."—(Mr. Darling.)

Question proposed, "That those words be there inserted."

* SIR C. RUSSELL

I wonder if there is a single Member of the Committee who takes the Amendment or the speech of the hon. and learned Member seriously. I wonder if there is anyone in the House who thinks that the Amendment is aimed at any real, substantial, or conceivably probable, or even possible, grievance.

MR. DUNBAR BARTON

Yes.

SIR C. RUSSELL

Do I understand the hon. Member opposite to assent to that view?

MR. DUNBAR BARTON

Certainly.

* SIR C. RUSSELL

The hon. and learned Member has said there is no provision in the Bill on the subject of articles of impeachment. No: and there are hundreds of other subjects on which there are no provisions in the Bill. There are no provisions preventing the Irish Legislative Body from reviving the writ de hœretico comburendo, or from enacting laws for burning witches, or against introducing the ancient form of wager of battle, and a great many other things of a like kind. But I really do not desire to give the Amendment an importance which I do not think belongs to it. There is a provision in the Bill which is adequate to meet the objection raised by the Amendment, and that is Sub-section 5, which provides that nobody shall be deprived of life, liberty, or property without due process of law. [Laughter.] Hon. Members opposite need not deride, for I am about to argue what the effect of those words will be. These are words to be found in the Fifth Amendment of the American Constitution; they are words not in the original Constitution. The words relating to attainder and bills of pains and penalties are in the original American Constitution; but the words "due process of law" are not. If the latter words "due process of law" had been there the others would not have been required. How is the point to be established? By judicial interpretation of the Supreme Courts of the country which has to deal with the matter. I will cite one authority. A Bill was passed in the United States, which became an Act of the Legislature, dealing with the forfeiting of property of certain persons. It was considered unconstitutional, and this was the decision of the Supreme Court of New York— To give the clause any value, it must be understood to mean that no person shall be deprived by any form of legislation or governmental action of either life, liberty, or property except as a consequence of some judicial proceeding properly and legally conducted. It follows that the law which, by its own inherent force, extinguishes rights of property or compels their extinction without any legal process whatever comes directly in conflict with Constitutional Law, and the act in question was, therefore held to be void. Though that decision deals with property, I need not point out that the language is equally appropriate in dealing with questions of liberty.

SIR H. JAMES

I welcome the return of my hon. and learned Friend from a light-hearted country. It may be that, not yet having enjoyed repose, the influence of his residence in that country is still upon him; and he, therefore, does not think this is a serious Amendment. I can assure him that a large section of the Committee consider this to be a very serious matter. My hon. and learned Friend's view is that Ireland ought not to have the power of dealing with bills of attainder.

SIR C. RUSSELL

I did not say so. But I said that under Sub-section 5 there could be no such power.

SIR H. JAMES

Then what a strange state of mind the Government must be in. They have inserted words in the Bill to prevent the Irish Legislature from dealing with bills of attainder—so my hon. and learned Friend argues—and I presume they were intended to have that effect—but they refuse to assent to the Amendment which would render the fact clear. The argument of my hon. and learned Friend is that the Amendment is unnecessary, because it is covered by the words he has read. I must confess that I had not in my mind until my hon. and learned Friend spoke that judgment of the Supreme Court of New York. If, however, the judgment of the New York Court is held to be law here—and it is not at all necessary that it should be—it is just as well that the words "due process of law" should be well defined. The words in Sub-section 5 have puzzled many minds as to what they mean. They have puzzled Judges in the United States, and they would puzzle Judges here. In order, however, to secure that the object of the Government will be carried out, and that the Irish Legislature shall not entertain bills of attainder, there should be no objection to giving a definition of the words "due process of law" in the Definition Clause. If that can be done it will save difficulty hereafter.

MR. SEXTON

A definition for legal purposes in an enactment is never a very easy matter; and the ease here involved, I venture to say, is one of a very delicate kind. Under the cover of general words you may go far beyond the intentions or wishes of those who contemplate the restriction, while you may also introduce something which is entirely prejudicial to the Irish Legislature. I would suggest that the right hon. and learned Gentleman should draw up the definition himself, and bring it forward at the proper time.

SIR H. JAMES

Would the Government accept it?

MR. SEXTON

It is evidently impossible now to deal with the scope of the words "due process of law." The Attorney General has read a judgment of the Supreme Court of New York, which seems to me to deserve close attention. The Amendment I regard as a bad joke and a very considerable affront. ["Oh!"] Yes; it is one thing to state in the Bill the general principle as to not depriving anyone of life, liberty, or property without due process of law, and another thing to insert words which suggest that the Irish Legislature might resort to a mediæval device for punishing an opponent—for attainder, I believe, has not been used in England since 1697. Such an imputation, I say, is offensive. The only gentleman who would be likely to be in any danger, even if this power existed, is the hon. Member for Mid Armagh (MR. Barton), as he is the only person who is going into the streets to fight against the Irish Government. But I do not think that even that danger is imminent. It is extremely improbable that the Irish Legislature would ever think of resorting to such a process. Even if it did the Committee should not put the enactment in the Bill, seeing that there is already a means of dealing with such cases— namely, the veto. [Cries of "Divide!"]

MR. W. E. GLADSTONE

It would not be respectful to my right hon. and learned Friend if I did not give him an answer. If my right hon. Friend would himself furnish a definition the Government will be glad to consider it; but in undertaking to define a legal phrase you are liable to exclude from the scope of the phrase as much as you include. The American Judge quoted by my hon. and learned Friend, I observe, carefully avoided defining "due process of law." He merely gave his opinion that something was included in the words, but he avoided the danger of giving an account of all the things that are included. The Government, therefore, think that it is more safe to leave the matter to judicial interpretation. The process must be a legal one, and not a legislative one with safeguards.

SIR H. JAMES

Is there not a definition known to those who have to draw Acts of Parliament as to what "process of law" shall be taken to include, and can it not be provided that it shall include this question of attainder?

MR. A. J. BALFOUR

The Committee have been placed by the action of the Government in a very curious position. It is admitted on all hands that the Irish Legislature should not be allowed to exercise the power of attainder. It is said that it is very improbable—and I will go the length of saying that I believe it to be extremely improbable—that they will will use it, but still it is not impossible: and I and my hon. Friends desire to exclude the power from the Irish Legislature. Then, how is it be done? Two methods towards this end have been suggested; one is the Amendment, and the other is the method of the Attorney General, who relies on the words "due process of law." The only objection raised by the hon. Member for Kerry to the Amendment is that on the face of it it is an insult to the Irish people to put the matter so plainly. But plain language should never be an insult to anyone. Then there is the remedy of the hon. and learned Gentleman (Sir C. Russell), who relies upon words taken from the American Constitution, and which, by common consent, have puzzled every lawyer who has had to deal with them. Those words have been submitted to no English lawyer, and the hon. and learned Gentleman could cite no case in which the Supreme Court has acted on them. Really we are asked to accept words which the Prime Minister says he will not commit himself to a definition of, which have never been dealt with by the Supreme Courts, either here or in America, and which we say are obviously incomplete. Between the two alternatives of having a clear and complete method of excluding from the purview of the Irish Legislature a proceeding which we all agree they ought not to be allowed to take and of introducing words which have not been rendered clear by either English or American Courts there is a broad line of divergence, and I have no hesitation in electing to support the Amendment.

Mr. J. Morley rose in his place, and claimed to move, "That the Question be now put."

Question put, "That the Question be now put."

The Committee divided:—Ayes 280; Noes 241.—(Division List, No. 143.)

Question, "That those words be there inserted," put accordingly, and negatived.

It being half-past Five of the clock, the Chairman left the Chair to make his report to the House.

Committe report Progress; to sit again To-morrow.