§ [TWENTY-FIRST NIGHT.]
§ Considered in Committee.
§ (In the Committee.)
§ Legislative Authority.
§ Clause 4 (Restrictions on powers of Irish Legislature).
§ SIR T. LEA (Londonderry, S.)
said, he desired to move an Amendment with the object of preventing the Irish Legislature from passing any law,Whereby there shall be any increased use of the Irish language in lieu of English in national schools, courts of law, or other places where public money is expended.He said, he had found it quite impossible and contrary to the Rules to try and get a clear understanding on some of the points contained in the Bill by putting questions in the House, and he was, therefore, compelled to raise them on Amendments. He might be told that it was not likely that this question of the Irish language would ever be raised in the Irish Parliament; but he could conceive that such a proposal as that against which his Amendment was aimed might meet with the approval of a Nationalist Party, for they had had an indication of that in a question put the other day by the hon. Member for North Louth, as to whether it would be an offence under the Highways Act if the name of the owner of a cart were printed on the vehicle in Irish instead of in English. It might possibly be argued—"we have our own National Parliament, why should we not have our own National language?" All he asked was that if the Parliament had power to adopt the Irish language the English-speaking population should not be compelled to pay for it. What he objected to was giving an Irish Parliament power to compel the use of the Irish language in parts of Ireland where English was always spoken. He had been in Land Courts in the West of Ireland with no one but the officials and the priest— in one case it was the celebrated Father M'Fadden (who, whatever might be said of him, did look after the material welfare of his flock)—who were able to speak Eng- 1080 lish. At the present moment in Irish schools the Irish language was optional, and the Education Commissioners reported, as an evidence of the desire for the revival of that language, that of the teachers who had gone up for examination in special subjects 13 were candidates in Irish and only two in Greek. Some people would say—"The Irish language is dying out; why, therefore, consider the matter?" But Statistical Returns would convey a different idea. No doubt the number of those who spoke only Irish was diminishing; but the Census Returns showed that a large increase was taking place in those who spoke both Irish and English. From 1871 to 1881 there had been an increase of 171,000 in the number of those who could speak both languages. In County Galway 58 per cent, of the people were acquainted with Irish, and in County Mayo 50 per cent. He submitted, therefore, that this point was an important one, and that if the Government did not wish to see Irish recognised as the language of the future in Ireland they should say so in the Bill.
In page 2, after line 29, to insert, "(5) Whereby there shall be any increased use of the Irish language in lieu of English in national schools, courts of law, or other places where public money is expended; or."—(Sir T. Lea.)
§ Question proposed, "That those words be there inserted."
§ THE CHIEF SECRETARY FOR IRELAND (Mr. J. MORLEY,) Newcastle-upon-Tyne
I certainly think that with Amendments like this we are getting down to the dregs of triviality. The hon. Member says he has raised what is really an important point, and he gives a number of figures, interesting enough in their own place, to show how many people speak Irish only, and how many are bi-lingual and speak both English and Irish. These are interesting matters, but they are considerations not for this Parliament, but for the Irish Legislature. If there is a matter which is exclusively Irish I should think it is the use of the Irish language. One of the most ingenious arguments of the hon. Member was that if the Irish Parliament were allowed an increasing use of the Irish language it would encourage the Welsh in their desires in that direction. I cannot imagine an Amendment which 1081 requires less of an answer. I would point out to the hon. Gentleman that in our Education Act we sanction the use of French in the schools of the Channel Islands, and we sanction the use of Welsh in Welsh schools. Nobody who knows anything about the subject will deny that Irish literature is a thing worth preserving; but to bring us down from that high region to a common, practical level—take the case of a gaol with Irish-speaking prisoners—which is possible enough, say in County Donegal—is it not to be permitted to appoint an Irish-speaking chaplain? But I really will not go more fully into the matter.
§ MR. A. J. BALFOUR (Manchester, E.)
I think that with the general object the hon. Member for Londonderry has in view all sides of the House will sym0pathise. I, at all events, have always held the view that, however much may be said for the continued scholarly study of the various branches of the Celtic language, it is not expedient, in the interests of the people concerned, that a check should be thrown in the way of any of Her Majesty's subjects speaking English as their own mother tongue. There are, perhaps, parts of the United Kingdom where that truth—if it be a truth—has not been adequately learnt; but I confess, so far as I was able to observe in Ireland, when I was responsible for the administration of the country, that though there may have been gentlemen representing Ireland below the Gangway who desired to see Irish revived, there is no general wish, on the part either of gentlemen from Ireland or of those they represent, to substitute Irish for English in the ordinary concerns of life, either as an instrument of education or as an instrument for carrying on business. I hope Irish may always be studied, as it has an antiquarian interest. I hope it may be studied for the purpose of keeping alive the memory of interesting antiquities, which can only be studied through the medium of the Irish lauguage; but I do not think the danger the hon. Baronet contemplates is a real one, and, if it were, I am for once forced to agree with the right hon. Gentleman opposite, and to say it is a matter which is not likely to be injurious to the loyal minority in Ireland, or to Imperial interests. I am, on the whole, not dis- 1082 posed to think that this is a question on which it would be worth while for this House to attempt to make any serious curtailment of the privileges and powers of an Irish Parliament. I hope, under the circumstances, that the hon. Baronet, while he will not understand me as taking exception to the general policy of his proposal, will, at any rate, not put the Committee to the trouble of dividing.
§ MR. SEXTON (Kerry, N.)
I think the hon. Baronet must have felt that the delicate sarcasm of the Leader of the Opposition is even more painful than the direct invective of the Chief Secretary for Ireland. Out of every 130 persons in Ireland one person speaks Irish, and the hon. Baronet's theory is that the other 129 people will take to the study of Irish for the purpose of holding communication with that one individual, and will, at the same time, give up the study of English, or endeavour to rid themselves of the knowledge of English, so that they cannot hold communication with the main body of the community and the world at large. Frivolous, extremely frivolous, as this Amendment is, I am not sorry that it has been moved. It is an excellent object lesson for the people of England, as a type of the kind of danger which the Unionist imagination engenders in the Unionist mind.
§ COMMANDER BETHELL (York, E.R., Holderness)
said, that the policy the hon. Baronet wished to provide against had been adopted by Russia in Finland, and, he thought, Poland. This was by no means a trivial matter; and if the hon. Baronet divided he should vote with him.
§ SIR T. LEA
said, his object had been to extract from the Government an expression of opinion on this subject, and, having attained that object, he would ask leave to withdraw the Amendment. ["No, no!"]
§ Question put, and negatived.
§ * MR. BARTLEY (Islington, N.)
said, be wished to move to leave out Subsection 5. This sub-section was not in the Bill of 1886; therefore it was evident that it bad been put in for some special purpose. It was an imitation of the American Constitution, and it evidently originated from the Chancellor of the Duchy of Lancaster, who, since 1886, had been very assiduous in the study of 1083 the American Constitution. The right hon. Gentleman the Chancellor of the Duchy wished, he supposed, to see the American system of jurisprudence and [...] Magistrates introduced into England, and he wished to see the words of Subsection 5 introduced into the Bill, namely—The power of the Irish Legislature shall not extend to the making of any law whereby any person may be deprived of life, liberty, or property, without due process of law, or may be deemed the equal protection of the laws, or whereby private property may be taken without just compensation.In considering this they might leave out of mind altogether the words "due process of law." Nobody seemed to understand what they really meant. No American lawyer had yet been able absolutely to tell how much they embraced; therefore, he thought they might consider that they were really going to enact in the Bill that the Irish Legislature should not deprive any person of life, liberty, or property. In these Debates the idea had been continually brought before the Committee of confidence and want of confidence in the Irish people. The Prime Minister and the Chief Secretary had continually referred to this, and the Attorney General had done the same yesterday. But he (Mr. Bartley) would ask whether anything could show greater distrust of the Irish Legislature they were about to create than the words of this sub-section? Was there a single Amendment moved by the opponents of the Bill which could come within a measurable distance of the indictment of want of confidence in the Irish people of a clause declaring that the Irish Legislature should not be able to deprive any person of life, liberty, or property? He could not think that this meant anything else than enacting that this new Legislature should not kill nor steal. It indicated, to his mind, a total distrust of the Irish Legislature. Did the Government think that Legislature would be likely to deprive anybody of life, liberty, or property, without due process of law? If they thought so, it was criminal on their part to give them Home Rule at all. He was surprised to see the Irish Members accept the subsection—he was astonished that they did not resent it as an insult. It would be an insult to a boy going to school if they 1084 were to tell him that he was not to steal. If the Government thought the Irish Legislature was going to be fairly reasonable and honest they had no business at all to put these words in the Bill. There were many persons in the House who did not believe in this Irish Legislature, and who had a strong suspicion that it would not be fair to the loyal minority—that, judging from past events, it would be tyrannical. But what was the use of this sub-section as a safeguard? Let him read a passage from Lecky in an article written by him on this very subject. He wrote—Place at the head of affairs men who have for years been the preachers of anarchy, and, whether they wish it or not, all the elements of anarchy will be inevitably let loose. Give the power of the police to disloyal and dishonest men, who wish to confiscate and not to protect property, and no paper guarantees will be of the smallest value. What importance can be attached to the provision that no one may be deprived of property without due process of law and just compensation, when the very danger to be feared is unjust legislation, and when it is left to the teachers of spoliation to define compensation.It seemed to him (Mr. Bartley) that to tell the members of the National League and the Land League and the Plan of Campaign and boycotters that they were not to deprive persons of life, liberty, or property, without due process of law, and at the same time to give them the power to make the laws, was merely at best throwing dust in the eyes of the people of this country, in order to make them think that they were safeguarding the interests that might suffer. He had referred to the words "without due process of law." Everybody admitted that those words were practically incomprehensible—that they had never yet been understood; that they were not understood; and that they had never yet been defined by any competent legal tribunal. But, whether they were understood or not, the fact remained that the Irish Legislature was to make the law. Practically speaking, therefore, it came to this: that the makers of the law would be the interpreters of the law in these matters. They would be like the captain on board ship, who, if it was not eight bells, made it eight bells. The Government would leave the decision as to what would be due process of law to the people who might want to evade the due process of law. 1085 If the Irish Legislature at any time wanted to deprive anyone of life, liberty, or property in spite of this clause, they could make any process they liked "due process of law," and in that way comply absolutely with the Statute. Therefore, he held that putting in these words was really a sham and a farce, and, for all practical purposes, a cruel joke on the loyal minority in Ireland. Again, there was a very significant change in the words of the Bill as compared with those of the American Constitution. In the American Constitution there were several words which were not in this sub-section, and the fact was very suggestive. The sub-section said—Or whereby private property may be taken without just compensation.But the American Constitution had three additional words. It said—Whereby private property may be taken for public use without just compensation.That seemed to him to throw a good deal of side light on the whole position. It was clear that in America the idea of taking private property for any purpose except public use was practically considered an impossibility. But America, on the other hand, had an important clause in its Constitution forbidding the passing of any law to impair the obligation of contracts, which was closely allied to this subject. For some reason or other those words had been left out of the Bill. Looking at the care which had boon displayed in the framing of this measure, and looking at the number of years that had been devoted to it, he could not think that those words had been omitted altogether by accident, and it seemed to him clear that the Government were afraid that there was a possible danger of the Irish Legislature oven being guilty of taking private property for private purposes without giving just compensation. The sub-section, however it was looked at, seemed to him objectionable. For those who believed in the honesty of the proposed Irish Legislature, it seemed to him that it was an insult to put these words in the Bill; and he did not think they ought to be supported by anyone except those who really and truly (as the Unionist Party had been accused of doing) believed that the Irish Legislature would be impassioned by evil. But if they believed in the honesty 1086 and fairness of the Irish Legislature, they were simply enacting a farce altogether in laying down that that Legislature was not to do things which, according to the ordinary common laws of morality, it would be taken for granted they would not do. If the loyal minority in Ireland had to depend on the safeguards in the clause, that minority would be in a very poor and miserable position. Therefore, although he did not profess to think that the measure would ever do much good, he believed it would do more harm than good if it was full of these restrictions. Feeling sure, as he did, that as soon as the Irish people had a Government they would set to work to get rid of these restrictions and insulting insinuations, he urged that these words should be omitted.
§ Amendment proposed, to leave out Sub-section 5.—(Mr. Bartley.)
§ Question proposed, "That the word 'Whereby' stand part of the Clause."
§ THE FIRST LORD OF THE TREASURY (Mr. W. E. GLADSTONE,) Edinburgh, Midlothian
If I desired to answer the first part of the hon. Member's speech I should do it by referring to the second part, and if I were to answer the second part I should do it by referring to the first part. One part was for unbounded confidence in the Irish Legislature, and the second part was an argument showing that the Irish Legislature—although I do not know how he knew it—would be composed of men who are the apostles of anarchy, and will be totally unfit to make laws for others. That is a fair equilibrium between the two parts of the speech, but I do not see how that determines the balance between them in such a manner as to warrant his moving the Amendment. I could understand either portion of the speech alone, but how to reconcile the two is certainly beyond any skill of mine. The hon. Member has not measured accurately the powers of the Irish Legislature, neither has he estimated the value of the words "due process of law." As regards the powers of the Irish Legislature, I distinctly understood the hon. Member to say that these words "due process of law" would be so interpreted by the Irish Legislature as to enable them to make their laws in such a way 1087 as to place them in whatever relation they pleased to the phrase. But that is not so. These words being incorporated in the Act of Parliament become thereby a portion of the Magna Charta of the Irish Legislature, and cannot be abrogated by anything that the Irish Legislature may do. If their Acts are challenged in the Courts, the Courts, in view of this phrase, will have to determine the question whether they are law or whether they are not. The hon. Member very much underrates the value of the phrase. I do not say it has received—I do not say it can receive—an exhaustive legal interpretation; but it is a phrase that rests on authority of the utmost weight. The phrase was first promulgated by Lord Coke himself, and is an authentic rendering of a phrase in Magna Charta itself. It has been subjected, from time to time, to judicial interpretation, and it has been made the foundation of very important judicial decisions. I have no doubt that in the natural course of things it will continue so to be made the subject of decisions, and probably it will operate, as it has already operated, with great lucidity in securing a strict adherence to the rules of justice. The hon. Member stated that the sub-section is one insulting to the Irish nation. That contention, it seems to me, can be disposed of in two ways. In the first place, that view is not shared by those who represent Ireland and who are entitled to speak for Ireland; and in the next place—and this, if possible, is even weightier to my mind—the words of the sub-section, if not in absolute correspondence, are very nearly in correspondence with words in the American Constitution bearing upon the several States of America. The States, it must be remembered, are Sovereign States, and have themselves delegated and given the authority by which this language is applied to them. If this had been the language simply of the Federal Government it would have been enough to say—"We know full well that no language of suspicion or disparagement would be used by the Federal Government with regard to the Sovereign States;" but it is not the language of the Federal Government. It is the language of the Amendment of the Constitution which rests on the authority of the several States. It is idle, under these circumstances, to say that 1088 any disparagement can attach to the words in the sub-section, and we have satisfied ourselves, in the first instance, that they import no insult. I do not say I believe these words to be absolutely necessary. I am sick of repeating that our object in framing the Bill has been not altogether to use words which we conceive to be necessary, but to adopt language which is demanded from us by the apprehensions and jealousies of others when we believe that such language cannot be injurious. Having so inserted these words, unless some more valid reason is shown for their withdrawal than we have yet heard we must decline to accept the Amendment.
§ MR. RENTOUL (Down, E.)
said, that assuming with the Prime Minister that the Nationalists in Ireland were incapable of doing anything to injure the loyal minority lot them regard Sub-section 5 as it stood before them. The Prime Minister had said these words were not insulting, because the Irish Nationalists did not consider them to be so. But the Irish Nationalists did not consider them insulting, because the right hon. Gentleman was himself responsible for them. Nothing could be an insult unless it was intended to be an insult, and clearly these words were not intended by the Prime Minister as an insult to his friends below the Gangway on the Opposition side of the House. But suppose this section had been proposed by someone not on terms of friendship with the Nationalist-Party, would they not have regarded it as about the most insulting thing which could be put upon the Paper? That was not really the point. The matter that chiefly weighed with him was this. He had talked over the section with a large number of gentlemen who belonged to the legal profession, and without a single exception they declared they did not understand it, and had no-idea of what was meant by it. The statement of the Prime Minister had not made the matter any more clear to him. Under these circumstances, he would ask the Attorney General whether it would not be possible for the Irish Legislature under the sub-section to pass a law prohibiting Party processions and providing that any person convicted of engaging in a Party procession should be imprisoned, say, for 12 mouths? This would not be depriving a person of his liberty without 1089 due process of law, because the person would be tried before the Court in the usual way. Then, with regard to depriving persons of property, he would ask the Attorney General whether it would not be possible for the Irish Legislature to pass an enactment that the occupier of land should be the sole owner, and that if a person occupied land for a given term, say seven years, he should become ipso facto owner? These were cases which he thought were very likely to happen under the Irish Legislature. With regard to depriving persons of life, it was, of course, possible that the Irish Legislature might make sheep-stealing a capital offence. He did not think it was likely they would do so; but, at the same time, it would be possible under the sub-section as it stood. The Prime Minister said that very clear decisions had been given with regard to the words "without due process of law." The Attorney General well knew there was a statement made with regard to the Statute of Frands that "every sentence of it was worth a ransom," and that someone had very properly replied to that statement, "and every sentence of it has cost a ransom." As a matter of fact, every line of the Statute of Frands had cost at least a million of money in litigation. Did the Government want this Bill to be placed in the same position? Possibly the Attorney General might be able to make the matter a little more clear than the Prime Minister had done.
§ LORD R. CHURCHILL (Paddington, S.)
I cannot see that in Sub-section 5 there can be anything insulting to any Party, of course including Members of the Irish Legislature; because the principles it embodies are the principles of elementary, constitutional, and executive morality—the principles on which every civilised Government carries on its affairs. Whether the clause goes quite far enough it is difficult to say. All I can say is that it might be added to so as to bring it within the limits of what I may call ordinary political executive common sense, without in the least giving Ireland cause to complaint or any reason to think that her interests are in any way injured. Of course, the source of the objection to the sub-section is naturally that it is borrowed almost entirely from the Constitution on which the Chancellor 1090 of the Duchy (Mr. Bryce) has written some instructive and learned history. But there are other regulations of the United States bearing on those subjects which I think cannot have been omitted deliberately, and I am at a loss to imagine why any English statesman or any English historian who has studied the Constitution of a popular character should have omitted them. I take Section 1 of the added Articles of the United States Constitution, and I find it is practically contained in this section. It runs as follows:—Nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction equal protection of the laws.But the Government will find that in another part of the Constitution it is provided that no ex post facto laws shall be passed. That is a very important provision. There is no instance in modern times in our Parliament of ex post facto law, and I do not see why the prohibition of such legislation should apparently be excluded from Sub-section 5 of this clause. The Chancellor of the Duchy (Mr. Bryce), in a very interesting review of the United States Constitution, remarks that many State Constitutions provide that no ex post facto law and no law impairing the obligation of contracts would be passed by the States Legislature. I cannot believe that the omission of a provision of this kind is intentional on the part of the Government, and I cannot believe there can be any possible objection to the strengthening of the clause in this direction. A provision respecting ex post facto legislation is one which no Legislative Assembly can possibly object to. I want to ask whether some interpretation might be given to the words "due process of law" under the powers of the Irish Legislature? I hope I have not detained the Committee too long; but I think the points I have brought before them deserve a very clear explanation.
§ MR. W. E. GLADSTONE
I think that the question of omitting the sub-section hardly constitutes a proper opportunity for going into these questions. I have given the most distinct opinion upon the meaning of "due process of law." At the same time, the noble Lord is quite justified in wishing that my opinion should be restated or corrected by someone whose 1091 authority is so much higher than mine. I think he will agree, however, that the point he has referred to ought to be raised on the wording of the sub-section.
§ * SIR A. ROLLIT (Islington, S.)
said, he hoped time would not be unnecessarily occupied in the discussion of this Amendment. The sub-section had been described by the Mover as going too far; but the argument of the noble Lord the Member for Paddington (Lord R. Churchill) showed that it did not go far enough. That argument was, he (Sir A. Rollit) thought, entitled to consideration. The propriety of refraining from legislating ex post facto was recognised in all forms of jurisprudence. As to the argument which was founded upon the suggestion of insult, if it were a good one, much of the Bill and many of the Amendments came within the same description. It seemed, however, to be perfectly clear that the Irish Legislature was to be a subordinate body; and, therefore, it was necessary to limit the powers to be conferred upon it, and unless such limitation were clearly effected, there would be a very grave danger of the abuse—he did not use the term in the slightest degree offensively to Irish Members—of the powers conferred upon the subordinate Legislature. An hon. Member had contended that if the sub-section had passed in its present form the immediate occupier could, by an Act of the Irish Parliament, have conferred upon him the property of which he was the occupier. He (Sir A. Rollit) thought this was a wholly wrong and narrow interpretation of the term "property." In one sense—and the term was somewhat ambiguous—the occupier had a property, but the reversioner was really the owner; and, therefore, to confiscate the reversionary interest would clearly be an invasion of the terms of the sub-section, which provided that private property might not be taken without compensation. If that were a true case, it illustrated the necessity for the existence of this provision in the Bill. He did not think it an insulting provision, but a proper constitutional principle, and one which, by the chief instance given, in relation to property, seemed to be called for.
§ MR. A. J. BALFOUR (Manchester, E.)
I am disposed to agree with my hon. Friend who has just sat down that this is not an insulting provision. But what 1092 we want to know, or what I understand my hon. Friend wants to know, is how the Government, with their peculiar principles and method of argument, and their contention that any limitation on the Irish Parliament is an insult—[Mr. W. E. Gladstone: No, no!]—can reconcile that view with putting such a provision in the Bill? The right hon. Gentleman says he never said that. It is true he never laid down such a proposition. But we have over and over again suggested limitations to the power of the Irish Parliament far less extreme in their character, such as errors of the Irish Parliament—far less than those intended to be prevented by this section; and when we have suggested these limitations the right hon. Gentleman, in his most virtuous manner, has said we were showing ourselves unduly suspicious of the intentions and policy to be carried out by the Irish Legislature. How does the Prime Minister meet the argument that is advanced by my hon. Friend in moving this Amendment? He says—"Oh, it cannot be an insult, because it is similar in wording to a clause contained in the American Constitution, and that what the American Sovereign States agreed to submit to as a limitation of their authority cannot be an insult to apply to the Irish Parliament." I think there is a good deal of force in that contention, but I also think it should be applied impartially. I recollect that the Government yesterday closured an Amendment, after half-an-hour's discussion, upon the subject of attainder, and the Irish Members exhausted all their powers of interruption in order to express the absurdity of our suggesting any such Amendment and the insult they considered it to be to their people and their proposed Legislature. But acts of attainder are also among those powers which the Sovereign States of America gave up; and I cannot understand, therefore, why the right hon. Gentleman should not be a little more equitable and impartial in the application of his own principles, and why what is a good argument to-day at half-past 4 was not a good argument yesterday at 5 o'clock. Although the defence the Government made to this particular Amendment was not a very good defence, or very much in accord with their own principles, I am 1093 disposed to advise my hon. Friend not to divide upon it for two reasons. In the first place, he probably thinks—in fact, he told us he does think—that the Irish Parliament is not one to which we can give unfettered power over the lives, liberty, and property of the minority, and he is anxious to see limitations imposed. He thinks the limitation is imperfect; so do I, and I think the important discussion which will be initiated when we begin to discuss the sub-section will show that it is; that the power here given to the Irish Legislature is much wider than that enjoyed by the American States, and that this so-called safeguard is no safeguard at all. In order to come to a detailed discussion on that point, and in order to get to the wording of that section and to what will be in all probability the most important Debate on the clause, I would venture to suggest to my hon. Friend that he should withdraw the Amendments and then we can proceed to a discussion on the wording of the sub-section. On the sub-section itself we can raise the various points we have to raise; and perhaps the gentleman responsible for the wording of it, the Chancellor of Duchy, before we depart from the subject, will give us some general view of the principle which has animated him in making the somewhat arbitrary selection from the American Constitution which appears in these words; why he has omitted so much and put in so little, and in obedience to what broad and statesmanlike policy he has made the particular selection which he has made. When the right hon. Gentleman has given us that explanation I hope the Amendment will be withdrawn, and that then we shall proceed to discuss in a businesslike fashion the wording of the sub-section.
* MR. GIBSON BOWLES
said, as the right hon. Gentleman had appealed to the Cæsar of the American Constitution to Caesar he would—
§ MR. W. E. Gladstone 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 268; Noes 235.—(Div. List, No. 134.)1094
§ Question put accordingly, and agreed to
MR. MOWBRAY (Lancashire, Prestwich)
moved the following Amendment:—Page 2 line, 30, after "whereby," insert "the privileges or immunities of any of Her Majesty's subjects in the United Kingdom may be abridged, or whereby.He said it would be a satisfaction to know that this could not be regarded as an insult on the Irish Benches, because it was taken almost verbatim from the same Amendment to the American Constitution to which this clause had already been referred, and in the American Constitution it came in in exactly the same place as he proposed to insert it here. The moving of this Amendment would give the draftsman an opportunity of explaining why he took parts of these amendments to the American Constitution and not other parts. The words in the American Constitution were—That no State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States.The closest analogy he had found to "citizens of the United States" was contained in the words "Her Majesty's subjects in the United Kingdom," which, they were told, was still to exist after this Bill passed—if over it did pass—into law. He was not clear himself exactly what were the immunities or privileges of British subjects, and he should be very glad, indeed, to hear what they were from the Chancellor of the Duchy, and he should also be equally glad to hear what was meant by "due process of law." This amendment to the American Constitution was added to the Constitution for the purpose of affording protection to the coloured races in the Southern States after the close of the War of Secession, and it did seem to him that it was not too much to ask that House to provide at least as much security for the loyal minority in Ireland as the Americans provided for the coloured population in the American States after the war. He begged to move the Amendment.
In page 2, line 30, after the word "whereby," to insert the words "the privileges or immunities of any of Her Majestj's subjects in the United Kingdom may be abridged, or whereby."—(Mr. Mowbray.)
§ Question proposed, "That those words be there inserted."
* MR. GIBSON BOWLES
thought the Russian proceeding they were just recovering from of the Closure being moved before a Member had began his speech was not likely—[Cries of"Order!"]
§ MR. BARTLEY
It is absolutely impossible for any hon. Member to proceed for the interruptions of the hon. Member (Mr. Mac Neill).
* MR. GIBSON BOWLES
said, the Amendment proposed to save the privileges or immunities of any of Her Majesty's subjects in the United Kingdom by introducing them into this clause. He believed he was in Order in pointing out that this clause, which professed to be borrowed from the American Constitution, was borrowed so far as he could see from the wrong clause, which probably arose from a study of the wrong text books. The framers of the Bill had probably studied Bryce instead of Cooley. In Cooley he found that by the 5th Article of the American Constitution it was provided that no man should be deprived of life, liberty, or property, except by due process of law, or have his private property taken for public use without just compensation. That was passed in 1789. After close on a century's experience, namely in 1868, another Amendment—Article 14th—was passed, and he submitted that it was not to the 5th, but to the 14th, Article that the attention of the Government should have been addressed if they had intended to import any part of the American Constitution into the Bill. The 14th Article prohibited not merely the State Legislature, but the whole of the State from the top to the bottom—including all its officers, from interfering with the privileges and immunities of any citizen or from depriving-any citizen of life, liberty, or property without due process of law, or from depriving any citizen of the due protection of the law. The sub-section of the Bill which the Committee were considering 1096 solely and exclusively applied to the Legislature, and under it no State officer could be punished for, say, excluding a man from a jury because he was an Orangeman. He contended that the clause would be defective unless it were supplemented in another part of the Bill, which related to the Executive, by a provision prohibiting the Executive, as in the United States, from ill-doing contrary to law. The necessity for keeping the Executive in order was far greater than the necessity for keeping the Legislature in order. The Legislature was not at all likely to pass laws depriving any subject of the Queen of life, liberty, or property without due process of law—whatever that might mean; but he thought it was extremely likely that in Ireland, as in America, it would be found that race animosities, religious animosities, and other animosities might prevail to such an extent as to induce State officers to exceed their duty.
I do not think the hon. Member is in Order. The only question here is a question of legislation, and this Amendment deals only with the Legislature.
* MR. GIBSON BOWLES
said, he was pointing out that the privileges and immunities of the subject would not be sufficiently guarded unless the Amendment were introduced into the clause, and supplemented by another sub-section dealing with the Executive. But he would leave the Executive. The Opposition were constantly told that their Amendments—most of which were accepted—[Laughter.] If those who laughed would look at Clause 3 they would see that the greater part of it now consisted of Amendments. The Opposition were constantly told that their Amendments were animated by distrust of the Irish people. ["Hear, hear!"] He had thought that would have evoked a cheer. But let them look at the amount of distrust of the Irish people shown by the Bill. It showed a distrust that the Irish Legislature would fulfil even the very elementary principles of lew, for here they were enacting that the Irish Legislature could not deprive a citizen of life, liberty, and property without due process of law. It distrusted the Irish Legislature in the appointment of the Judges, and it even distrusted them in their honesty by the 1097 appointment of the Auditor General with power to stop their money. He would now ask the Committee what were the rights and privileges referred to? He was but a poor humble layman, but he had a few law books with him which might, perhaps, expedite the decision of the Committee in the matter of rights, privileges, and immunities. His opinion was that these rights, privileges, and immunities arose out of Common Law, which, according to Lord Stowell and Lord Coke, was uncontrolled even by Acts of Parliament. Cooley, in his work on the American Constitution, said these rights and privileges included the right to pass through or to reside in any part of the United States; the right to go to a foreign country; the right to claim and have the benefit of a writ of habeas corpus; the right to initiate and maintain any action at law of any kind; the right to hold and dispose of property; the right to use the navigable waters of the country without let or hindrance, subject to the regulations imposed for the common benefit of all navigators; and, finally, the right to claim protection in traversing the high seas. These were rights which wore founded not upon Statute, but upon Common Law, and were the rights of all citizens of the United States. If there was any saving clause in the Bill saving to everyone the rights of Common Law, and all rights not interfered with by the Constitution, it would be unnecessary, perhaps, to move such an Amendment as this. But there was no such saving clause in the Bill. The peculiarity of the Bill was that it gave to the Irish Legislature power over every thing that was not specifically withdrawn from it. It was, therefore, necessary to jealously scan the subjects enumerated in order to see that nothing of importance was left out. There was another point to which he wished to draw the attention of the Committee. Although the rights of a British subject in Ireland could be interfered with, the rights of a foreign resident in Ireland could not be interfered with, because their rights were protected by the Law of Nations; and the Law of Nations was incorporated with, and really formed a part of, the Common Law of the country, and, according to Lord Stowell, could not be touched by the British Parliament or any other Parliament. They would, 1098 therefore, have this strange condition of things in Ireland under the Bill: that foreign residents would be in a far better position than British subjects. That, however, could hardly have been the intention of the Government, and he hoped, now that the omission had been pointed out to them, that they would insert in the Bill a provision to protect the Common Law rights, privileges and immunities of Her Majesty's subjects in Ireland.
§ MR. PARKER SMITH (Lanark, Partick)
said the Prime Minister had stated that in this clause—They were not dealing with matters which it was intended to take out of the hands of the Irish Parliament, and put into the hands of the Imperial Parliament, but with matters which they conceived were to be excluded altogether from the field and purview of legislation whether by one Parliament or the other.That seemed to him to state in a satisfactory way what was intended by this clause. The clause was intended, practically, to be a statement of rights—a Bill of Rights, so to speak—by which the position of the subject under the Irish Parliament was to be determined. That seemed to him to be a perfectly' right and a perfectly necessary part of any Home Rule Bill, and the only fault he had to find with it was that it was totally inadequate as it stood, and required extension. He should like to know why it was that the Government, having gone to the American Constitution and finding there their precedent, had left out of the clause too much that was essential. The words of the clause standing by themselves had extremely little meaning; whereas if the Government had followed them up in the way in which they were followed up in the American Constitution, by supplementary provisions, they would be of great value. He was glad one argument, of the Government was gone—the argument that, the Opposition in suggesting safeguards were insulting the Irish people. The Opposition were only laying down those large and general propositions which they thought should govern not only the Irish Parliament, but all Parliaments. That was a line that was more frequently adopted by foreign Parliaments than by the Imperial Parliament, for the good reason that the Imperial Parliament hitherto never had to write a Constitution, while foreign Parliaments had. When they brought the points of a Constitution within an 1099 Act of Parliament it was necessary that they should specify principles that were hitherto left unwritten but generally accepted. The provision contained in the Amendment was one of the provisions that stood at the beginning of the Article of the American Constitution, from the latter part of which the sub-section of the Bill was taken. He would like to ask the Government why that provision also had not been included in the Bill. They should remember that this was a Constitution which, if fairly launched, was not a matter for a year or two, or for five years, to be renewed or amended whey expedient; and that it was, therefore, their duty to frame a Constitution which would stand, as the American Constitution had stood, with but small changes, from generation to generation. This provision carried with it a vast number of rights and privileges which it was quite conceivable might be interfered with by the Irish Parliament. As they were enumerated by Story in his work on the American Constitution, they included protection by the Government; the enjoyment of life and liberty; the right to secure and possess property; the pursuit of happiness, subject to the restraints imposed for the general good; the right to pass through and reside in any State; the right of habeas corpus to maintain any action at law; to take and dispose of property; exemption from higher taxes than were paid by other citizens; and the exercise of the franchise us it was regulated by the laws and the Constitution of the State in which it was exercised. These were the rights, privileges, and immunities which he wished to see embodied as a fundamental part of the Irish Constitution. He would like to point out that it was not so very long ago in the history of this country when a provision of the kind was almost necessary. He referred to the time when there was a most bitter feeling in this country against Scotchmen; when ridicule was the part of a Scotchman, and when there was every chance and possibility of legal disabilities being imposed upon Scotchmen. It might, for instance, be proposed in Ireland that a law should be passed that no man should vote unless he were born in Ireland, or of Irish parentage; or that no man should hold land who had not resided for so many years in Ireland. 1100 There were hundreds of ways in which the fair and equal treatment of British and Irish subjects might be evaded in Ireland under the Bill; and if it were evaded in Ireland, it would inevitably lead to reprisals in this country. The provisions suggested by the Amendment were not only contained in the Federal Constitution of the United States, but also in nearly all, if not all, the State Constitutions. For instance, in the Constitution of the State of California, which the Chancellor of the Duchy described as a typical State, the first Article enacted that no privilege or immunity should be granted to any citizen which was not in the same terms granted to all citizens. The lessons to be learned from the history of the American Constitution was that it was foolish to leave any matter vague and uncertain. There was only one point left vague and uncertain in the American Constitution—that was the question of slavery; and, as they all knew, the settlement of that question cost a terrible war. He hoped the Government would be willing to extend their view to the Bill of Rights, and would be willing to agree to a great many of those large American provisions.
§ MR. CARSON (Dublin University)
I desire to say a few words as to this Amendment. In the first place, Ave are entitled to some answer on the part of the Government as to why they thought it right, in framing this Constitution for Ireland, to commence this 5th sub-section with the middle of a sentence in the American Constitution, and purposely to leave out the words which the hon. Member proposes to insert by this Amendment. When these words are purposely left out we are entitled to some explanation, and to look upon the conduct of the Government with some suspicion in relation to these particular matters. The Government may say these are very general words, but I cannot conceive for a moment that that is the reason they have not put them in. They are not more general than the words which follow—Whereby any person may be deprived of life, liberty, or property without due process of law,"—whatever that means—or may be denied the equal protection of the laws.1101 Therefore, I cannot for a moment conceive that it is because the words are considered too general that the Government have refused to insert them in the Bill. What, then, is the reason the Government have omitted these words? Is it because they mean to give to the Irish Parliament a power to abrogate from and take from the privileges and immunities of Her Majesty's subjects in the United Kingdom? Is that their object? Is it because they deem it an insult to the Irish Government? It may be very difficult to define what these privileges and immunities are; I admit they are very general words, but you cannot leave out of your consideration that while these were not originally in the American Constitution at the time the American Constitution was first framed, they were inserted in 1866; that the Americans themselves thought it necessary to amend their Constitution, and put in these very words you propose to leave out of the Irish Constitution. The hon. Member who last spoke has given us a number of instances to show that these words deal with the fundamental rights of citizens of the United Kingdom. He has quoted a vast number of them, and we want to know are these different matters that he has gone into in detail in the hands of an Irish Parliament to be abrogated if the Irish Parliament so will? I do not for a moment say willfully abrogated or with a view to do any wrong; but if there are Acts of Parliament passed to interfere with these fundamental rights, whether intentional or unintentional, are the Irish Parliament to be at liberty to pass them, and are we not to have the safeguard given to us which was thought essential in America after a number of years? We are entitled to some answer from the Government why the words were omitted, and we are entitled to look with suspicion upon the Government's intention when we find one portion of a sentence taken and another portion not included.
§ VISCOUNT WOLMER (Edinburgh, W.)
I should like to ask one question on Sub-section o of this clause—as it at present stands. Will the Irish Legislature be precluded from either suspending the Habeas Corpus Act or abolishing trial by jury?
§ THE ATTORNEY GENERAL (Sir C. RUSSELL,) Hackney, S.
A little 1102 time ago two appeals were made to me personally, one by my hon. and learned Friend the Member for Down (Mr. Rentoul) and another by the noble Lord the Member for Paddington (Lord R. Churchill), who is not now in his place. Both those questions were addressed to eliciting the view the Government entertained as to the meaning and effect of the words in one of these clauses, "due process of law." I do not wish to appear to have forgotten those appeals, but I think my hon. and learned Friend will see the answer can be more appropriately given when the Amendment is reached that is addressed to that particular point—I have not forgotten the appeal, and will recur to it at a later moment. We are asked by right hon. Gentlemen opposite, by this Amendment, to insert a further exception in Clause 4, so that the powers of the Irish Legislature shall not extend to the making of any law whereby "the privileges or immunities of any of Her Majesty's subjects in the United Kingdom may be abridged." Let me remind the Committee that there is one overruling provision in this Bill which governs the whole of its provisions; it is Section 2, which limits the powers of the Irish Legislative Body to—Make laws for the peace, order, and good government of Ireland in respect to matters exclusively relating to Ireland or to some part there of.That is the first point to which I wish to call the attention of the Committee, but the more material question is this—what are the immunities and what are the privileges which hon. Gentlemen suggest are not already protected by Clause 4, Sub-clause 5, as it now stands? We have had several speeches more or less interesting upon this subject. There is the speech of the hon. Gentleman opposite who has taken a very hasty dip into the American Constitution, and has culled a few passages that have not a very close connection with the subject we are discussing. He has given us some instances, and the hon. Gentleman who has just sat down has given the same instances which he has read from Story's work upon the American Constitution. What are those instances?—and I will ask him while I am reading them to ask himself this question, whether there is one that does 1103 not touch life, or liberty, or property; and if there is any of them that does not touch any of those three subjects, will he Intimate which they are? [Here the Tight hon. Gentleman read the passages he referred to. Is there any one of those that is not dealt with by one or other of these clauses? Let me remind the Committee, first, that this Subclause 5 prohibits any Act of the Irish Legislature extending to the deprivation of "life, liberty, or property without due process of law." It extends also to "the equal protection of the laws," and it would extend to the taking of private property without just compensation. The hon. and learned Gentleman the Member for the University of Dublin suggests there was some very grave reason which induced the Government not to put in these words. The reason was the Government believed the words in the clause are sufficient. As the hon. Member for Partick (Mr. Parker Smith) has said, the words are very general and very wide in their application. We do not think these words proposed to be introduced would add anything whatever to the strength of the clause, and I have heard nothing to induce me to change my mind on that subject. The hon. Member for the Dublin University gave the illustration of the right to apply for habeas corpus. That would be a matter generally affecting the liberty of the subject.
§ * SIR C. RUSSELL
That is another point referred to in another Amendment. And, lastly, the hon. Gentleman opposite gave the illustration of the right of navigating on the high seas.
MR. GIBSON BOWLES (Lynn Regis)
said he gave two illustrations in regard to that—one was the right to navigate Irish waters, and the other was the claim of protection from the Government when on the high seas.
§ * SIR C. RUSSELL
As regards the question of suspending the Habeas Corpus Act, there are cases in which it would be in their power, and cases where it would not be. I shall have something to say on that subject when the Com- 1104 mittee come to discuss the words "due process of law.
§ MR. CARSON
I must say I consider the answer given entirely unsatisfactory. His whole answer comes to this, that the subsequent words of the section provide for every conceivable case. At all events, the American jurists who framed that Amendment did not think so, because they have all the subsequent words and these words in addition which we propose to put in, and which were left out for some purpose that has not been explained. The hon. and learned Gentleman has been asked as to whether he finds in the subsequent portion that is adopted or in this sub-clause the right to acquire and possess property? I should like to know what words in that sub-clause confer that right or take away the right of legislating so as to prevent it? It occurs to me that depriving a man of property without due process of law is entirely different to allowing a man to acquire and possess property. Whore are the words that provide for this particular matter that will be covered by the Amendment? None of the writers on the American Constitution have looked on this as a trivial matter. I find that Story gives a number of instances of privileges and immunities, and amongst them—The right to acquire and possess property, the right to pursue a lawful employment in a lawful manner.
§ MR. CARSON
Yes; but where in the clause is that provided for? I must say I think the Committee would do well to press for some answer why these words are omitted. If everything in it is covered by the subsequent portion, and as it will do no harm, surely it is not too much to ask that you should introduce the other portion which writers on the American Constitution consider of great importance.
§ MR. J. CHAMBERLAIN (Birmingham, W.)
I cannot help thinking that a good deal of light would be thrown on this discussion if the Chancellor of the Duchy (Mr. Bryce) would condescend to answer the question addressed to him. Perhaps we are wrong in assuming he has had anything to do with this provision, but he is known to be a great authority upon American law; and if he deliberately inserted this portion of a section from the American Constitution, and at the same time he deliberately 1105 omitted other portions, he must have had some good reason, and it' he would tell that to the Committee he might bring conviction to our minds. At present the only answer that has been vouchsafed is that the Government knew better than the jurists who framed the American Constitution. I recollect a short time ago a most eloquent passage in a speech of my right hon. Friend, in which he expressed his high admiration both for the American Constitution, as a great and enduring instrument, and for the framers of that Constitution, and he said that it had secured the increasing admiration of successive generations. It now appears there are some Members of the Government who think they can improve on that astounding monument of skill in Constitutional legislation. The argument of the Attorney General is that the proposal is entirely unnecessary, because it is impossible for us to conceive anything that is not covered by their subsection. Already one or two questions have been put, and I should like to ask one or two more. If it be the fact that Sub-section 5 covers every conceivable kind of rights, immunities, and privileges, why do the Government put in Subsection 7, which provides for equal rights in fisheries? I think the Government themselves may be quoted as acquiescing that at all events this Sub-section 5 is not so omnipresent as they assume. There are many other questions; there is this question of habeas corpus. The Attorney General says that is covered by the fact you cannot deal with "life, liberty, and property without due process of law." I suppose legislation suspending the habeas corpus would be due process of law. Does he mean to say the Irish Legislature would not have that power under this Bill of suspending the Habeas Corpus Act? If so, we should like to hear it. Hitherto we have understood they would have that power, and the Amendment would increase the restriction upon that Legislature. Then the Amendment in the American Constitution was introduced chiefly to protect the negro population in the Southern States; it was to secure them equal rights with the white population. I will not make invidious comparisons; but it is perfectly evident that, where there is a minority or a section that is 1106 weaker than any other section, some provisions securing equal treatment are peremptorily required. Among the rights, immunities, or privileges this Amendment intends to secure are the rights of equal franchise. I would like to know whether, under Sub-section 5 of this Bill, it would be impossible for the Irish Legislature so to alter the electoral arrangements as to shut out one class or section of the population. By a subsequent clause they are given power to make alterations in the electoral arrangements; and I am certain, if they are possessed with that desire to do an injustice, there is nothing in the Bill, as it stands, to prevent them. Again, is the Attorney General confident that the right of equal treatment in candidature for Office will be secured under this Bill to all Her Majesty's subjects? Is it clear that, just as in some foreign countries special provisions have been made against the Jews, that special provisions may not be made—taking the illustrations of my hon. Friend behind me—against Scotchmen, or some other nationality, to prevent them from being candidates for Office under the Irish Legislature, or in connection with any Irish public work? And, lastly, I would ask the lion, and learned Gentleman this question: Does be consider that Sub-section 5 reserves the right to a jury trial? Would he kindly say?
§ MR. J. CHAMBERLAIN
Then I would like to know whether the addition of this Amendment would not preserve it, and whether, as a matter of fact, this and many other things, to which reference has been made, are not excluded from the perview of Sub-section 5, and which would be included if this Amendment were adopted? I do not think the Committee is in a right position to go to a Division until it has heard from some Member of the Government what has been the true reason why this amendment of the American Constitution has been excluded.
§ THE CHANCELLOR OF THE DUCHY OF LANCASTER (Mr. BRYCE,) Aberdeen, S.
I think the matter is rather more simple than what the Committee might suppose. I will endeavour to answer the questions of the right hon. Gentleman the Member for Birmingham (Mr. J. Chamberlain), and I tell him shortly the real reason this 1107 has not been introduced is because we think it was wholly unnecessary. I would also like to tell him that he must not suppose that any Member of the Government is more responsible than another for anything in the Bill which is submitted by the Government as a whole. I would like to mention that this Amendment was not necessary for the purposes of the American Constitution; but, in years after the Constitution was framed, it was introduced for the protection of the negroes in the Southern States. These words were not thought necessary in the earlier period of the Constitution, nor were they at all thought necessary but for the peculiar circumstances that arose, by which the negro was excluded from equal rights with the whites. We considered the points where protection was thought to be necessary, and we found two subjects with regard to which it was said unjust legislation was possible, and proper protection was needed; and, without supposing those conclusions were well-founded, we desired to meet them as far as possible. Those two were religion and property. We dealt with the supposed dangers to religious equality in the earlier sub-sections of the clause, and with regard to property we dealt with it in this sub-section, and we did not consider it necessary to go beyond those points. My right hon. Friend asks, "In that case, why did you introduce the provision with regard to sea fisheries?" I tell him I consider that provision is quite superfluous as it is covered by the words of the clause, but this is a question which has become, to some extent, a burning question—and, disputes having arisen, we thought, as it was a question exciting public notice, it was as well to take it out of the realm of Debate and curiosity; and that is the reason it was introduced. As regards the question put by another hon. Member as to the acquisition of property, we consider the question is amply covered by the clause; and with regard to the phrase, "equal protection of the laws," we consider that expression completely covers and prevents anything in the nature of discriminatory legislation. Any attempt to impose disabilities on some of Her Majesty's subjects for the supposed benefits of others would, in our mind, be contrary to this particular provision and, 1108 therefore, ultra vires. I put it to the Committee that the right way to interpret large and general words like these is to give them their widest application, and that is why the American Constitution has gone on well; the Judges give the full interpretation to expressions of this nature. I consider the sub-section is amply sufficient, taken along with the others, to cover every difficulty that has been raised. One word more, and I think I have answered all the questions put to me. I do not conceive this clause would necessarily protect trial by jury. It has not been so read in the United States, and they do not conceive it is necessary it should have that effect. We believe the Irish Legislature might find, as this Legislature has found, there are cases where it is not necessary to have trial by jury, and we do not think it necessary to put that under permanent protection. One point more on the parallel of the American Constitution, which has been brought up. A great deal of the point and force of that 14th Amendment resides in the last sentence. The point of that is this, that under an Amendment of this kind the Federal Legislature would have had no power to carry out the Articles by legislating over the heads of the States; and if there had not been such a provision the Federal Congress would have found itself unable to check such abuses as State legislation or action might produce. Now we are in no such difficulty. It is not necessary to confer any such power upon the Imperial Parliament; that power is retained, and the preservations which are suitable to the American Constitution are not required here.
§ * MR. MATTHEWS (Birmingham, E.)
We have obtained from the right hon. Gentleman some interesting information upon what I might call the genesis of this clause. It seems that three subjects, and three only, were in the minds of the framers of the clause, two of them important—religion and property—and a third which hardly stands on the same level—fisheries. The right hon. Gentleman said that Article 14 applied only to the blacks. No doubt there are no blacks in Ireland, and no doubt Article II was primarily intended for the protection of blacks; but the right hon. Gentleman forget to tell the Committee that there is a similar provision 1109 contained in Article 4 of the original Constitution, which says—The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.There is no question about blacks; Ireland will be one of the States of the Union and England will be another, and we are anxious that the Legislature which is to be set up with universal control over Irish affairs shall not be able to deprive English citizens when they go into Ireland of the privileges and immunities which Irish citizens may have. The right hon. Gentleman contended that all that this Amendment says or does has been already said or done by some other words in Clause 4. I take that as an admission that in substance the right hon. Gentleman has no objection to the Amendment. Does the right hon. Gentleman seriously contend that words which secure to everybody equal protection of the law are wide enough to carry equal rights to the acquisition of property? Surely the liberty of acquiring property is a privilege, and in no sense a right. There are also the privileges of residence, of carrying on trade. It cannot surely be said that all such privileges are covered by the words "entitled to equal protection of the law." Those words go this far, that they will prevent the opportunity of dealing differently with one set of traders to another. But they would not in the least confer the privilege of carrying on any other business that a man might desire to carry on if the Legislature thought fit to prohibit him. These are the eases which in America have been held to come under the words "privileges" and "immunities"—The right to acquire and possess property, the right to pursue a lawful employment in a lawful manner, and to be exempt from any higher taxes than those imposed on its own citizens, such privileges and immunities as belong to general citizenship, including the right to pass freely into and through any State for the purposes of commerce, trade, residence, &c.Equal protection of the law means simply that all persons shall be alike shielded from injustice or from anything like cruel treatment in the conduct of the affairs of life. I do not desire to put the argument higher than this. If reasonable doubt can be raised as to the effect of the words of the clause, why should the Government object to the Amend- 1110 ment? Surely you have conceded enough to the Irish Legislature. The right hon. Gentleman has now told the Committee that trial by jury is to be at the mercy of the Irish Legislature. The American Constitution has taken that discretion away, not only from the States, but from Congress itself. We are now told that it will be in the power of the Irish Legislature to do away with trial by jury, and that they might suspend or even repeal the Habeas Corpus Act, and they would have in their hands the whole subject of criminal procedure. Surely these concessions are large enough, and the Government need not grudge the minority the small protection asked for in this Amendment.
* MR. GIBSON BOWLES (Lynn Regis)
rose to call the attention of the Attorney General to certain points he had put to him earlier in the Debate, and to certain privileges which he had contended would not be covered by the subsection, having reference to the rights of navigation in inland waters. The pursuance of one's lawful calling on the high seas was also not covered by the subsection as it stood, for the deprivation of that right, whether for a short time or for all time, could not be said to be a deprivation of life, liberty, or property.
§ SIR H. JAMES
said, his right hon. Friend the Member for West Birmingham had pointed out that in the original Constitution of the United States, when the question of negro condition had not arisen, there was an Article providing that the citizens of each State should be entitled to all the privileges and immunities of the citizens of the several States. That provision was entirely left out of this Bill, and the argument of the Government was that they had left out these words because they were unnecessary, and because they were covered by the words "or may be denied the equal protection of the law." But privileges and immunities common to all inhabitants represented one thing, and the protection of the law another. If an Act were to be passed by the Irish Legislature that only Irish-born subjects should vote, that would deprive English-born subjects of equal privileges and immunities. That came within the original words of the Constitution of the United States, but it did not come within the Bill of the Government. Take, 1111 again, the case of aliens. Before they were allowed to hold land they would receive equal protection from the law, but they would not have equal privileges and immunities. He could give instance after instance of this kind as to the distinction between the protection of the law and equal privileges and immunities under the law.
§ THE SOLICITOR GENERAL (Sir J. RIGBY,) Forfar
I will answer very shortly the questions which have been put to the Government. The right hon. Gentleman pointed out that in the original Constitution of the United States there was a provision that the citizens of each State should be entitled to all the privileges and immunities in the several States. Why was that necessary? The several States were independent Sovereign Powers. They did not form the whole of one Kingdom or of one State, and again I must protest against the assumption which underlies all these Amendments, that Ireland is going to cease to be a part of the United Kingdom. You may say that in some senses it is a portion of the United Kingdom which is dealt with differently from the other parts of the United Kingdom; but it is not a State, and will not be a State apart from England. There will be no subjects of Her Majesty in Ireland in any other sense than that in which there are subjects of Her Majesty in England. For that purpose the words "who shall have the privileges and immunities" are not wanted; the words would be out of place, and they would give a wrong complexion to the Bill. It is not the fact that in the States the words "privileges and immunities" have any effect in preventing the States from making their own Franchise Laws. The right hon. Member for West Birmingham asked, how are you going to secure trial by jury, but does anyone intend that trial by jury shall be a right in all cases? "Due process of law" means process of law which is according to sound precedent; and therefore you do secure trial by jury in all those cases in which, according to the sound and general principles of our English Constitution, trial by jury has always been given. The right hon. Gentleman also asked whether there can be a suspension of the Habeas Corpus Act under the Bill as it stands. The answer is similar— 1112 there can be such a suspension of the Act as, when you look to the sound precedent in English history, has been the custom here; there cannot be a suspension of the Habeas Corpus Act under any other conditions. I will answer the hon. Member for King's Lynn by quoting from Mr. Cooley's Constitutional Limitations, wherein it is stated that the words "life, liberty, and property" are of the very widest character, the word "life" including limb, and the word "liberty" the right to the pursuit of happiness and the right to move about from place to place, including freedom of speech and of religious worship.
§ MR. COURTNEY (Cornwall, Bodmin)
said, his hon. Friend had only dealt with the indiscriminate legislation of one State against another. The Government admitted the laws relative to fisheries, especially as to the power of indiscriminate legislation. The question his friend wished to press upon them was why they should refuse general words preventing this sort of legislation in respect of all matters.
§ * MR. HARRY FOSTER (Suffolk, Lowestoft)
said, they had been told that this sub-section related to everything except fisheries; but the right hon. Gentleman the Member for West Birmingham had pointed out that some reasonable doubt might be supposed to exist upon the question. Not one single criticism on the part of the Government dealt with the Amendment. The only criticism that could be said to touch upon it was that of the Chancellor of the Duchy of Lancaster, and he (Mr. Foster) did not think it could be taken as an answer. They on the Opposition side thought there was some reasonable doubt, and they had pointed to various dangers which might be incurred without the insertion of these words, particularly in regard to indiscriminate legislation. They said that, as the section was drawn by the Government without these amending words, there was nothing to prevent the Irish Parliament from making English subjects aliens, or incapacitating them from holding land. They had a doubt upon that point. They said that these words were included in the American Constitution. It might not be necessary that such words should be inserted, according to the Government view; but the force 1113 of the words in the American Constitution ought to be reasonably expressed. What he wished to put to the Government was that they had accepted Amendments in other cases from the Opposition Benches—not because they thought them necessary, but because there was a reasonable doubt in the minds of Members of the Opposition Party, and they wished to remove it. The Government had raised no objection to the wording of the Amendment, and no danger would be incurred by the acceptance of the words of the Amendment. He held there would be no inconvenience; and he, therefore, asked the Government to not trifle with time, or waste it in prolonging useless discussion, by saying at once that they would agree to the words which, not being inconvenient, and not in any sense disturbing the plan of the Bill, would be harmless, but would, at the same time, remove the doubt that existed on the part of the Members on the Opposition Benches.
§ Question put.
§ The Committee divided:—Ayes 208; Noes 249.—(Division List, No. 114.)
The next Amendment in Order stands in the name of the hon. Member for St. Helen's (Mr. Seton-Karr).
§ MR. SETON-KARR
rose to move in page 2, line 31, leave out "without due process of law." He said the object of the Amendment was to prevent the Irish Legislature from making any laws whereby any persons might be deprived of life, liberty, or property. Hon. Members below the Gangway and the Irish Members always said that they were not anxious to have the power to make such laws. [Laughter from the Irish Benches.] Did hon. Members deny that? [Renewed laughter on the Irish Benches.] Well, if they did not deny it, he did not see why they should object to this safeguard. Another reason, however, why he moved the Amendment was in order that he might elicit from the Government the meaning of those mysterious words, "by due process of law." The Government seemed very coy in stating their moaning, and he saw with great satisfaction that the Attorney General (Sir C. Russell) was present on the Treasury Bench, and 1114 hoped they would have the benefit of his high authority as to the interpretation of the words. They had heard an explanation of the words from the Leader of the House (Mr. W. E. Gladstone); but, so far as he (Mr. Seton-Karr) was concerned, he was as wise when the right hon. Gentleman sat down as he was when he got up. The right hon. Gentleman told them that the Bill was a sort of Irish Magna Charta: but there were certain limits beyond which the Irish Parliament could not go, and that they were safe in relying on the construal of the Bill in that respect. The right hon. Gentleman the Member for Derby (Sir W. Harcourt) also told them that he was perfectly satisfied as to the meaning of the words. In the meantime, however, there were other opinions; and he (Mr. Seton-Karr) held one of them in his hand—that of Mr. Serjeant Campion, a distinguished Irish Queen's Counsel, who, being asked his opinion of the words by the Royal Dublin Society, said the meaning was the process of the law for the time being. This would mean that the Irish Legislature would be at liberty to alter the law in any way they liked. What was the due process now might not be the due process a few months hence. Surely, in these circumstances, they should have a clearer idea of the meaning of the words? They had heard a good deal about the American Constitution; but they had had it on good authority that this particular safeguard operated very badly in that Constitution. He might cite an instance in which, the Executive and the Federal Judges being in conflict, President Jackson had declared that one authority might execute its decrees if it could. They saw, therefore, that the Executive Authority could set aside decrees and so conflict with the Judicial Authority. He submitted the various points to the Government, and asked that they should define "due process of law." Could they not substitute some other words which would be of more value for the protection of the minority? As far as he was personally concerned he would not be disposed to press the Amendment, as he know perfectly well that, if the Bill passed, the "process of law" would be interpreted by the sympathisers of the Irish Members in accordance with the ideas entertained by that (the Nationalist) Party; 1115 and the lives, liberty, and property of the Loyalist minority would be placed under those gentlemen "by due process of law." At the same time, they were entitled to what he now asked—a full, accurate, and unmistakable declaration as to the meaning of the words in the Bill. If the Government would do that they would—he had hopes, at any rate, that they would—agree that his Amendment was a useful one.
§ Amendment proposed, in page 2, line 31, to leave out the words "without due process of law."—(Mr. Seton-Karr.)
§ Question proposed, "That the words proposed to be left out stand part of the Clause."
§ * SIR C. RUSSELL
I do not think the hon. Member can realise the effect of the Amendment he has moved. We are entitled to read it in connection with Sub-clause 5, and, if we do so, we shall see how it would work. If the Amendment were adopted we should prevent the Irish Legislature from making any law dealing with capital punishment; any law dealing with the sending of offenders to prison—for the hon. Member will agree, I think, that that would be a restriction of liberty—or any law touching property. Well, if the Irish Legislature is not to make laws dealing with life, liberty, and property, there is nothing at all about which it should or could make laws. The Amendment, therefore, may be taken as a peg—
§ SIR C. RUSSELL
Yes; the Amendment is merely a peg upon which to hang a discussion, and to secure an explanation from the Government as to the meaning which they attach to these words. This is a matter which I do not hesitate to say is one of some difficulty to define. I should be very sorry indeed to dogmatise in any way on the matter; but the phrase "due process of law" is one which has a very ancient history, and one which has had very important effect in judicial interpretation. Hon. Gentlemen opposite probably are quite aware that the words are, in fact, a translation by Lord Coke of the phrase in Magna Charta per legem terrœ, which has been adopted and embodied in judicial decision. Now, if I 1116 am asked whether I can define "due process of law," I would ask the Committee first of all to recollect what is involved in a dangerous attempt at definition. By a definition you are supposed to state exhaustively what the words mean, and to exclude all that you do not express. No Court has ever attempted a definition of the phrase. They have been able to draw a line, and say positively as to where a certain proceeding was in due process of law and where it was not; but there has never been, and I venture to say there never will be, any attempt, judicial or otherwise, to define accurately what "due process of law" means. That is not an exceptional instance in the history and application of phrases which have played an important part in judicial decisions. Let us take the word "fraud." There is no word which enters more largely or gives rise to greater difficulties in civil and sometimes also in criminal proceedings, and yet the Judges have never attempted, and very wisely never attempted, to define in any exhaustive fashion what is or what is not fraud. They have contented themselves with laying down certain broad general lines, and applying general principles to the circumstances of particular cases, and declaring whether the particular thing dealt with was fraud or not. Now, bearing that in mind, I would venture to suggest to the Committee that the words "due process of law" are to be regarded in this way: that due process of law is where the process of law follows settled principles of judicial procedure, or where such process follows sound precedent applicable to the subject-matter and the circumstances affecting it. It may be said that that does not bring us very much closer to an accurate interpretation, and I admit it. But I will now illustrate, if I may, by reference to the cases put by the lion, and learned Member for Down, where there would or would not be, according to the rule I have mentioned, due process of law. First of all, he said, would this be due process of law—could the Irish Legislative Body pass an Act making it a crime to take part in a Party procession, and impose a sentence of fine or imprisonment for the offence? My answer is, that certainly the Irish Legislature could, and that such imprisonment would be perfectly according to due process of law. The second 1117 case is, Could the Irish Legislature pass an Act by which in one section they might say that from the day of the Act coming into force every occupier in Ireland should be the owner of the fee-simple of the land he occupied? My answer is that it could not. The one case is on one side of the line and the other is on the other. It could not for two reasons: In the first place, it would not be, and could not be, "due process of law" when the Act itself by its own force and initiation professes to operate, and there is no judicial machinery or proceeding at all. I need not trouble the Committee by referring again to the passage in the case to which I referred last night, which shows that this is so. Of course, in this Bill for the better government of Ireland there are ample provisions to render it impossible for such legislation as this to be passed by the Irish Legislature. The third case put by the hon. and learned Member also serves to illustrate the meaning he was endeavouring to explain. He said, "Would it be possible or not for the Irish Legislature to make sheep-stealing a capital offence punishable by death?" My answer is that it could make such a law; but if it went on to say that a Stipendiary Magistrate, or any inferior functionary of that kind, should on hearing the evidence order that capital offender to be hanged, that would not be in due process of law, because it would not be following settled, sound precedent applicable to the subject-matter there dealt with. Another case has been put with reference to the suspension of the Habeas Corpus Act. The Irish Legislative Body, I submit—though I am not attempting to dogmatise in the matter—would have the power to suspend that Act; but they could only suspend it in cases in which, according to established precedent, there was an emergency or a state of circumstances justifying the action. Then you may ask, "How are these points to be determined?" The Bill provides for it. This Bill is a written Constitution for the Irish people. It is the creation of the supreme Parliament. The powers delegated to the Irish Legislative Body will be found within the four corners of the Bill, when it becomes an Act, and, like the American Constitution which the Legislature have no power to exceed, or to enlarge, or even to interpret, the Irish Legislature will not be 1118 able to interpret in its own sense what their powers are. It will be subject to judicial control, and if it exceeds its powers its Acts must be declared null and void. I have said all that at the moment occurs to me as necessary to say. The immediate point of the Amendment is the omission of these words altogether. I presume the hon. and learned Member does not intend to press his Amendment, but moves it with the view of eliciting some explanation from the Government. I admit that the words "due process of law" have not a very definite meaning, but they have an ancient meaning, and they are words of grave import, and the Government have deemed it proper to introduce them as a restriction.
§ MR. SETON-KARR
asked whether the Government would consider the advisability of inserting some other phrase more intelligible to the lay mind?
§ SIR C. RUSSELL
The hon. and learned Gentleman's mind is not a lay mind. The hon. and learned Member must see that it is desirable to use words which could receive judicial interpretation, though I admit in this case not with perfect definiteness. These words have been interpreted with an approximation to definiteness.
MR. TOMLLNSON (Preston)
said, he gathered that it was intended that the Irish Legislature should act in these matters under circumstances similar to those in which the Imperial Parliament would act. It must be remembered that they were going to commit these powers to a Body oil which the lay mind would predominate. Action might, therefore, be taken in a hurry, and the limits the Attorney General had pointed out might be transgressed. It seemed to him that the only satisfactory method of dealing with the case would be to add further words, and he would suggest the following:—Under circumstances similar to those, which would accord with precedents laid down in the Imperial Parliament.
§ MR. A. J. BALFOUR
We are extremely grateful for the interpretation of the words which the Attorney General has given, though it is to be regretted that that interpretation is tendered at a time when the Committee is less full than it has been during the evening. The next Amendment on the Paper is 1119 that of the noble Lord the Member for Rochester, which is intended to give precision and clear definition to the views it is desired to express by the words "due process of law." I would ask, as a point of Order, whether the interpretation of the Attorney General can be fully discussed on that Amendment? If so, I would suggest the withdrawal of the present Amendment. If not, as the question is one of such vital importance, this Amendment will require a good deal of discussion.
I think, on the whole, it will be competent for the Committee to consider the question on the other Amendment.
§ MR. SETON-KARR
said, he had followed as closely as he could the statements of the Attorney General, but the hon. and learned Member had not told them what would happen in the event of the Irish Legislature passing a law to interfere with the life, liberty, or property of individuals. How under the Bill could the Irish Legislature be prevented from passing such a law? By the appellate jurisdiction of the Court of Exchequer or by the Judicial Committee of the Privy Council? If so, how would the decrees be enforced? Would the hon. and learned Gentleman accept these words to follow "due process of law"—namely, "as now existing"?
§ Question put, and negatived.
§ MAJOR DARWIN (Staffordshire, Lichfield)
moved, in page 2, line 31, after "law," to insert "or by martial law." He said, it had been his duty as a soldier to look into the question of Martial Law. He need hardly remind the Committee that Martial Law and Military Law were two totally different things. By Military Law was meant the law which applied to all persons who were subject to military discipline, whilst by Martial Law was meant an arbitrary system of tribunals, established generally in times of trouble for the suppression of riots. After carefully considering the subject, he had come to the conclusion that nothing in the Bill would prevent the Irish Legislature from passing an Act to enforce Martial Law. But even if there was a doubt on the question, and it was hardly regarded as possible that the Irish Legislature might be able to establish Martial Law, he thought the Committee 1120 ought to put an end to the doubt, and to shut out the possibility. He was not dealing with Martial Law, which might be proclaimed by the Viceroy of Ireland, but merely with the powers of the Irish Legislature. In order to settle the point it was necessary to get same sort of idea of what was the meaning of the term "due process of law." In the American Courts "due process of law" and "the law of the land" were used almost in identical terms.
pointed out that the hon. Member was not dealing with the Amendment of which he had given notice.
§ MAJOR DARWIN
The clause about "due process of law" could only mean that the Irish Legislature was to be prevented from passing certain laws. Did it exclude Martial Law—legalised Martial Law? Let them look to America. Mr. Story, on the American Constitution, had a Note saying—But legislation as such has never been admitted into the standing of due process.Without due process" and "law of the land" were, he was told, used indiscriminately. Mr. Daniel Webster, in the Dartmouth College case, before the Supreme Court of the United States, declared that—Everything that might pass under affirmation of enactment is not, therefore, to be considered the law of the land.Could there be anything so confusing to the lay mind as that the Act of Parliament need not be the law of the land? Was there any reason to feel certain that British Judges would not call all Acts of this Legislature the law of the land, and, therefore, not excluded from due process? If so, the Irish Legislature could deal with Martial Law. But what did "due process" mean if they were to accept the American view? They were told on high authority that no definition was more often quoted than that of Mr. Webster, who, in the case just mentioned, said—By the law of the land is more clearly intended a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, and property under the protection of the general rules which govern society.That was a very vague definition, but one which need not exclude Martial 1121 Law. It might be said, however, that Martial Law was not bound by Rules of Evidence. Cooley, speaking of Rules of Evidence in connection with this subject, said—These and the like cases will sufficiently illustrate the general rule that the whole subject is under the control of the Legislature, which precribes such rules for the trial…as in its judgment will most completely subserve the ends of justice;so that the Irish Legislature would have control, and could frame rules in relation to this subject. A friend of his in a Government office in Washington, to whom he had written, informed him that in a case (ex parte Milligan), the Chief Justice of the Supreme Court of the United States had defined Martial Law as—An authority called into action when the public danger requires it, on a locality or district not of an enemy's country, but of the United States, and maintaining adhesion to the general Government.Thus they were shown that the United States recognised Martial Law. Again, he was told, on the authority of his friend, that—Martial Law being acknowledged and recognised as a form of law, it follows that whatever may be properly done under its sanction is not to be done in disregard of the 'law of the land' or 'due process of law.'So that Martial Law was not precluded from the operation of the law of the land. Cooley's Constitutional Limitations stated that—Those acts that are justified by Military or Martial Law are equally legal with those justified by the Common Law.It might be supposed that Martial Law and Military Law were hero the same thing; but the same authority told them—In exceptional cases, however, Martial Law may be declared and enforced whenever the ordinary legal authorities are unable to maintain the public peace and suppress violence and outrage.And so it was that he argued there was nothing to prevent the Irish Legislature from dealing with Martial Law. It might be supposed that Martial Law must be administered by soldiers, and hence that it was excluded. This was an error. Judge Advocate General Sir 1122 D. Dundas, before the Army Consolidation Commission in 1850, said—Martial Law comprises all persons, whether civil or military.They were told on the same high authority, replying as to whether tribunals under Martial Law must be presided over by soldiers, that—All good citizens were called in to take part with the power, which we will suppose a righteous power, in case of necessity.So that Martial Law was not excluded on this account. And, again, in De Hart's Military Law they read—Martial Law, when in force, is indiscriminately applied to all persons whatsoever within its jurisdiction;whereas Military Law was defined asA rule of government for persons in the Military Service only.The Irish Parliament could not deal with soldiers; but that need not prevent them from dealing with Martial Law—a phrase which was less vague than "due process of law." But hon. Members might say that a system so repugnant should not be even negatively recognised in this Bill—that it could not be legalised by any Act, and need not be considered. On that point he would refer them to the Army Annual Act, which said that no man could be subjected, in time of peace, to any kind of punishment within this Realm by Martial Law. "Time of peace" was a vague expression. The Act declared expressly—And whereas no man can be forejudged of life or limb or subjected in time of peace to any kind of punishment within this Realm of Martial Law, or in any other manner than by the judgment of his peers and according to the known and established laws of this Realm.Well, the soldier was, according to law, on active service during the time of not or disturbance: so that they would see that the expression "time of peace" was, as he had said, vague. It could not be held that Martial Law was excluded as a matter arising out of a state of war, if war meant war with a foreign State; but be did not think that war could fairly cover this case. He hoped hon. Members would agree that Martial Law ought to be consolidated. If they looked to colonial history, they had good evidence that it was perfectly competent for Colonial 1123 Legislatures to legalise Martial Law. Lord Carnarvon, in 1867, whilst stating that it was entirely at variance with the spirit of English law, directed the Governors of Colonies to submit repealing Acts to Local Legislatures, which clearly showed that he thought Local Legislatures could legislate in reference to this question in the Colonies. Lord Chief Justice Cock-burn, in the Jamaica case, said—Now, nobody can deny for a moment the power of Parliament to enact that Martial Law shall be put in force.And the same great Judge expressed a strong opinion as to the necessity for legislation if Martial Law were ever used; but no civilian, in his opinion, ought ever to be appointed a member of such a Court. Hence the only question as to who should legislate in this case. If the word "subordinate," as applied to the Irish Parliament, meant anything, this was assuredly a case for keeping the power in the hands of the Imperial Parliament. He acknowledged that the expression Martial Law was vague; but the question was whether they meant to exclude any system, whether called by that name or not, which departed so much from the ordinary law that Judges might consider it would be thus fairly described. There was an Irish Act passed—the 39th of George III.—which provided that after the passing of the Act it should be lawful for the Lord Lieutenant during the continuance of the Rebellion, whether the ordinary Courts of Justice were open or not, to issue orders to officers and others to try by Martial Law and punish those who might have done injury to the persons or property of His Majesty's loyal subjects by death or otherwise, and anything done in pursuance of such orders should not be questioned in any Court of Law. At that time the National Party in Ireland protested in the strongest manner against the passing of that Act. It was passed, however, by the Ascendency Party, and all he wanted was to prevent the now Ascendency Party from doing what the old Ascendency Party had done. If hon. Members opposite said that they did not desire to legislate on Martial Law there was no reason why the power should be given them. He begged to move the Amendment.
In page 2, line 31, after the word "law," to insert the words "or by Martial Law."—(Major Darwin.)
§ Question proposed, "That those words be there inserted."
§ * SIR J. RIGBY
The Committee has listened to a most interesting Constitutional argument founded on an extraordinary fallacy. There is no branch of law called Martial Law. There is Military Law by which the Forces of the Crown are governed—the annual Army Act—but there is no such thing as a system of law called "Martial Law." Assuming that there might be in time of emergency a right on the part of Her Majesty's subjects to take up arms and use force in the repression of violence, that is not done by virtue of Martial Law at all. The only connection between that and the law is that any body of men who take upon themselves that grave responsibility must answer for their conduct and show that there has been a sufficient necessity compelling them to act in that way. However difficult it may be to got correct notions upon this subject into the minds of gentlemen who pick up their ideas at random, I would say that no man can tell the Committee that in "due process of law" can be included what is vulgarly, inaccurately, and incorrectly called "Martial Law," which means a reign of force brought about by an overpowering necessity, in which a good citizen might commit what, without that overpowering necessity, would be an illegal act. The Government object altogether to the introduction into the Bill of such an improper expression as "Martial Law," because, though it represents force, it is force which might, according to the circumstances, be justifiable from necessity, but never could be a matter of law.
§ SIR E. CLARKE (Plymouth)
said, this Amendment had evidently provoked the Solicitor General to a militant mood; but in substance he was bound to agree with his lion, and learned Friend. He hoped the lion, and gallant Member would not insist upon putting an Amendment like this on the face of a great Statute. Martial Law had relation to Executive 1125 power when the ordinary law proved ineffective, and it would be dangerous to put it on the face of a Statute of this kind.
§ Amendment, by leave, withdrawn.
§ * MR. G. WYNDHAM (Dover)
rose to move an Amendment which stood on the Paper in the name of Viscount Cranborne. The Amendment was—Page 2, line 31, after "law," to insert "giving not less security than is given by the Common Law of Ireland, or by any Act of Parliament varying the Common Law.He said that instead of "Ireland" in the Amendment, he would prefer the word "England," so that the words would run "the Common Law of England." [Cries of "Leave out England!"] He was quite willing. The Amendment then stood thus—Whereby any person may be deprived of life, liberty, or property without due process of law giving not less security than is given by the Common Law, or by any Act of Parliament varying the Common Law.He approached the subject with diffidence, seeing that its difficulty had been admitted only that night by the greatest advocate of the day. This Amendment had not been introduced to allay the fears of lawyers, or of those who had spent a lifetime in the study of the American Constitution. This sub-section had, by their own showing, been admitted by the Government into the Bill in order to allay the fears of the men of Ulster and other Loyalists in Ireland. On behalf of those who saw some difficulty in grasping the meaning of the words "due process of law," which the Attorney General said no Court had ever attempted to define, this Amendment was put upon the Paper. Anyone who had read for the first time the sub-section of the Bill would think it was aimed only at barbarous proceedings in Courts of Law, that it merely enforced the decent observance of procedure previously laid down. But they now knew it represented a great deal more than that. During the early Debates on the Bill the Solicitor General said— 1126For many years that clause had stood the test of discussions by jurists and decisions by Courts, some of them of the highest authority. The reasons given in support of the interpretation invariably placed upon that clause were such that he did not doubt would be perfectly acceptable in any duly constituted Courts of Justice in any part of the world. The substance of the reasonings and the decisions that had been arrived at was this: that it would be idle if a clause, which was put in professedly as a restriction on the legislative powers of the Irish Legislature, were so construed to be got rid of without restricting those powers at all.It had, therefore, required these arguments and decisions to dispel the obvious or most salient meaning of the sub-section. Accepting that contention of the Solicitor General, it was clear that they were not having a joke at the expense of the loyal minority; they were not saying that the Irish Legislature would be allowed to pass laws altering the existing procedure, and then to deprive men of their lives, liberties, and property under the new procedure. The Solicitor General went on to say—The unquestioned and unquestionable meaning of the words was that no law should be passed by the subordinate Legislature which would enable any attack to be made effectually on life or liberty or property, unless it were done by a process of law properly described as a 'due' process, and for what was 'due' process resort must be had to the Common Law of England, or to any statutory law varying the Common Law.They had been told that those words had often been interpreted, and he gathered that the meaning to be put upon them was the interpretation of the Supreme Courts of America, which was that, in construing restrictions of this character, reference must be made to some external standard of justice and legality, and that the application of that standard rested with the Courts of Law of America, and, as a last resort, with the Supreme Court. In this country, unless they were to fall back on the obvious but grotesque interpretation repudiated by the Solicitor General, there must be also a reference to some external standard, and also some arbiter to apply that standard, such as the Courts of Justice in Ireland, and also, as a last resort, the Privy Council. But he would invite the attention of the Committee to a point which he considered of the greatest importance in this matter. He asked them to reflect that the conditions under which the Law 1127 Courts of America and the Supreme Court of America had decided this very difficult question were wholly distinct from the conditions under which the Courts of Ireland and the Privy Council would have to decide it if the Bill became law. It was not difficult to show how broad and deeply marked the contrast was. In America this safeguard was introduced into the Constitution after the people had enjoyed that Constitution for many years—it was introduced with all the help given by previous experience of the connotation of similar decisions on similar points during the scores of years in which the Americans had enjoyed their Constitution. In the second place, he would point out that in the American Constitution there was a rigid corpus of inalienable and stable rights enjoyed by American citizens. In America ex post facto legislation was impossible. Again, all laws varying contracts were void, and could not deprive any citizen of his property. In this country they had no traditions or experience of a similar kind. They were introducing a safeguard entirely novel into a Constitution they had heard of for the first time, and they had no such thing as stable and inalienable rights belonging to any subjects of the Queen, for it was admitted that the Imperial Parliament could pass any law it pleased upon any subject. There was not, therefore, in the Constitution which they enjoyed, any solid body of opinion upon which they could get purchase, in order to work this provision that "due process of law" should be observed. Take as an illustration the provision that no man was to be deprived of his property without just compensation. The Solicitor General said on that point in the course of his speech on the Second Reading of the Bill—If 'compensation' meant simply what compensation the Irish Legislative Body chose to provide, he could understand that the safeguard would be absolutely illusory. But 'just compensation' must be measured by what the Irish and the English laws at the present time thought to be just; and it would be within the competence and duty of every tribunal, from the highest to the lowest, to give such effect to the clause as would render absolutely illegal and void any provision in any Act of the Irish Legislature infringing the fundamental laws of justice in granting compensation.1128 What was the meaning of "laws of justice"? The Solicitor General, in using that phrase, had invited the House to enter on a Socratic dialogue. There was no such thing as absolute justice known to the country. And, similarly, there was in this country nothing known sa "due process of law"? It was a difficult subject, one which the Attorney General treated with hesitation, for he said a precise definition of the phrase could never be arrived at. In America it would be impossible to meet with the difficulty that would arise in this country should this safeguard be introduced into the Bill without any definition of "due process of law" being arrived at. The Attorney General dealt with a number of test cases put forward by opponents of the Bill. The hon. and learned Gentleman said the provision was not only a bar against barbarous procedure, but might also be used against extravagant legislation. One of the cases put before the Attorney General was whether this safeguard would prevent a law being passed by the Irish Parliament compulsorily transforming the occupier of land into an owner in fee simple; and the right hon. and learned Gentleman did not dismiss this supposititious case as alien to the purview of the sub-section. On the contrary, he relied on the sub-section as a protection against it. The safeguard, therefore, in the eyes of its authors, contemplated not only barbarous procedure but also extravagant legislation. Suppose a law was introduced for compulsory purchase upon unjust terms. The Attorney General would say that protection was given under the sub-section. But who was to decide at what point legislation of the kind became so wild and extravagant as to break through "due process of law"? That point would have to be decided by Courts of Law, which would have no experience of such points, and which would be without any standard at all according to which they could regulate and guide their decision. For in the United Kingdom Parliament had hitherto been paramount in all matters. If the Irish Legislature inherited this paramount power in all matters, except those specifically excepted, would it be possible outside those excepted subjects to restrict legislation by virtue of such a safe- 1129 guard? The Attorney General, when dealing with this point the previous night, quoted a decision of the Supreme Court of Law in America, by which it was laid down—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 eon-ducted. 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.That was abundantly true of the United States, but it was not true of the United Kingdom. In the United States such a law would come into conflict with the Constitution, under which contracts were inalienable; but it would not come into conflict with the Constitution of the United Kingdom. The Imperial Parliament was every day engaged in passing laws, extinguishing the rights of property in a manner some believed to be due and others believed to be undue. By the Land Acts of 1881 and 1887 the Imperial Parliament had passed laws seriously impairing existing legal contracts; and if the Irish Parliament passed an Act, the effect of which would be to deprive subjects of their property, it might be contended that such an Act would be no greater extension of the law, as it existed, than the extension which the Imperial Parliament made of the law as it existed when it passed the land legislation of 1881 and 1887. In his opinion, it would be extremely difficult for a Court of Law to decide whether the sub-section would be contravened by the passage of such a law as he suggested. If such difficulties existed, then let him say that whereas this sub-section fitted in well with the American Constitution it fitted in badly with the Constitution of the United Kingdom, and gave little protection to those it was intended to protect. If the Government wished to make the safeguard effective—and he did them the justice of supposing that that was their intention—there were only two courses open to them. One—which he named only to dismiss—was to add contracts to the subjects outside the legislative field of the Irish Parliament, and much could 1130 be said in favour of such a proposal if it were less alien to the spirit of the Bill and the spirit of the Constitution. The second course open to the Government was to accept the Amendment or its equivalent; and if they agreed with the dictum of the Solicitor General that in any construing of the Bill resort must be had to the Common Law or to any statutory law varying the Common Law, they would then have their external standard. Such an Amendment would be prospective in its action. He did not ask the Government to restrict the Irish Legislature to the field of law as it at present existed. What he desired to secure was that the two Legislatures—the Imperial and the Irish—should in these matters proceed pari passu. There were many people who were anxious to impair contract—many who wished to whittle away compensation. All he asked was, that as there was no danger of progress being wholly arrested in these matters, that the progress of the Irish Legislature should be governed by and co-ordinate with the progress in other parts of the United Kingdom. He said, in conclusion, that the safeguard was illusory unless they erected and defined an external standard of justice. The standard which he suggested was the law of England—not the existing law of England; but the law of England—existing at any time when the Irish Legislature passed a law affecting the lives, the liberties, or the property of Her Majesty's subjects in that country.
In page 2, line 31, after the word "law," to insert the words "giving not less security than is given by the common law, or by any Act of Parliament varying the common law."—(Mr. Wyndham.)
§ Question proposed, "That those words be there inserted."
§ * MR. T. H. BOLTON (St. Pancras, N.)
said, that before the Solicitor General replied on behalf of the Government, he would like to put a point before the Committee for the right hon. Gentleman to refer to. He would not now discuss the meaning of the words "due process of law," but he apprehended that a Court of Law in Ireland would have regard to the laws made by the Irish Parliament. If the Irish Parliament were to make a 1131 law dealing with individual rights or the taking of property, the Courts would interpret any case before them in accordance with that law. "Due process of law" would, therefore, mean due process according to the laws passed by the Irish Legislature. This was not due process of law, according to English law, or according to the Common Law, or according to decided cases, but it would be due process of law having regard to the Acts of the Irish Legislature dealing with the subject-matter before the Courts. That being so, it seemed essential that, if protection were really to be given, some words such as those in the Amendment should be embodied in the Bill.
§ * SIR J. RIGBY
It is one of the plain facts of common sense, as well as an accepted rule of the Courts of this country, and, I believe, of all other countries in the civilised world, that we must construe the words of any document so as to give some effect to them, and not so as to render them of no effect whatever. An Act, or a section of an Act, must be supposed to mean something. Bear that in mind, please. It is said that the provision in the Bill that life, liberty, and property were to be dealt with by "due process of law" meant that the Irish Parliament could make the "process of law" what they pleased, and could then legislate as if the sub-section were not in the Bill. That was reducing the words of the Bill to nothing. The position is this: The legislation that we are providing against by these words "due process of law" must be guided by some external standard. What is that external standard? It is not the existing process of law, but a process that can be described as due process of law. [Opposition laughter.] Cannot hon. Gentlemen see as far as that into an argument? If it is due process of law there must be a standard for that. The hon. Gentleman quoted from a speech of mine. As far as I followed the words what I then said corresponded exactly with what I intended to say. It may possibly be that I made a slip; but, as I followed the words, I believe that what I am reported to have said 1132 entirely expressed my meaning, and by that meaning I stand. The hon. Gentleman says that in the United States you have an unbending Constitution. Here you have no such unbending Constitution. Remember that we are creating a Constitution which the Irish Legislature cannot go beyond, though this Parliament can pass any law that it pleases, just or unjust; and, as I believe, in the course of its existence it has passed a great many unjust laws. But, over and above the Constitution, we have what are fixed, settled, acknowledged principles of law, not absolute enactments, fitted to every case, but well-known, well-understood, well-established general principles. The rule in the United States is that you look first to find whether the Constitution prohibits the law; and then, if there is nothing in the Constitution prohibiting the legislation which has been effected, you proceed to inquire what are the settled principles of the Common Law. It is the only standard conceivable; and although it is truly said that the words "due process of law" have not received their final interpretation, that only means that the Courts will, as they have wisely done in interpreting what amounts to "fraud," keep a hold over the matter, and will not be fettered by unwise or imperfect decisions or definitions in dealing with any new cases and altered circumstances that may arise in the course of time and under altering conditions. A definition may, perhaps, be framed to meet 999 cases; but they keep the matter open to meet the thousandth case, in order, if new circumstances should arise, that they may not be fettered. We have already decided that criminal procedure in Ireland shall be left to the Irish Parliament as part of their duty for regulating matters for the peace, order, and good government of Ireland. What we want is a rule sufficiently plain and sufficiently wide to secure justice — sufficiently elastic to prevent the making of mistakes-in dealing with cases that had never been thought of beforehand. The measure of elasticity is not to be the measure of the concurrent legislation of the United Kingdom. The whole idea of the Bill, so far as it is now established, is that criminal procedure in Ireland is to 1133 take effect according to the sense of justice of the Irish Legislature dealing with the Irish state of facts, and the state of facts in Ireland may be totally different from the state of facts in Great Britain. We are not to allow any deprivation of life, liberty, or property which cannot be called due or proper, and which is not regulated by general principles of procedure, with such elasticity as enables you to alter procedure with experience. This will give the advantage of a rule, which is as certain as any can be, and which is to be derived from a consideration of general principles. The words proposed to be introduced would not render more clear and precise, but altogether more vague and indeterminate, the meaning of the clause.
§ * MR. DUNBAR BARTON (Armagh, Mid)
said, the speech they had just listened to was in striking contrast to the Solicitor General's speech on the Second Reading of the Bill. On that occasion, after expounding this safeguard borrowed from the American Constitution, he asserted that the clause entirely did away with the fears presented to the men of Ulster.
§ * SIR J. RIGBY
I was wrong in that statement. I ought to have said that it does away with every reason for those fears.
§ * MR. DUNBAR BARTON
said, he would venture to think that, as time went on, the Solicitor General would have to correct many other expressions he had used. The Solicitor General said, "What lawyer would get up and say he understood this Amendment?" He retorted upon the Solicitor General—what lawyer would get up and say he clearly understood the meaning of this safeguard? The Attorney General, in his very candid statement, spoke of this safeguard as ancient, but not definite; as one which no Court of Law had ever attempted an exhaustive definition of, and which he himself would not like to dogmatise upon. Yet that was the "safeguard" on which for all time to come, if this Bill became law, the lives, liberties, and property of the Irish minority were to rest. He would tell 1134 the Government that they had wholly failed to safeguard those elementary rights and liberties which every Ulsterman and Loyalist possessed as a British subject, and which it was now plain would be handed over wholesale to another Authority. The Attorney General stated that this sub-section would prevent the Irish Legislature from passing any Bill of attainder or suspending the writ of habeas corpus in certain cases. Was it not a significant fact, however, that in every State Constitution this safeguard was inserted, and yet in every one of them there was also a restriction upon the suspension of the writ of habeas corpus—sometimes absolute, sometimes with the exception of rebellion and invasion—and at the same time the passing of any Act of attainder was also forbidden. How, then, could it be said that this sub-section covered the cases of habeas corpus and Bills of attainder? Mr. Cooley, in his great book published in 1883, pointed out the importance of restrictions upon these subjects being inserted in every Constitution, stating that this was highly necessary, in relation to popular Assemblies, and that it would be very unwise to dispense with them. The words "due process of law" occurred in the Irish law; they were on the Irish Statute Book; they had a clear meaning; and that meaning was wholly different from and inconsistent with that put forward by the Solicitor General. The words had been frequently adjudicated upon; they might be adjudicated upon any day; and the meaning given to them was the plain meaning put upon them by the hon. Member for St. Paneras, the meaning which every English and Irish lawyer must put upon them—namely, that it means process, the existing law as it is for the time being. If the Irish Parliament should change the process of law then the new process will be the process that will have to be carried out. No one would deny that every "course of law" authorised by an Irish Statute would be "due" course of law, however lax or oppressive it might be. The Judges, in construing such words, would not, and could not, construe them in accordance with any general principle of justice, but must construe them according to the 1135 strict letter of the law. The words "due course of law" occurred in every warrant issued in Ireland for the commitment of a prisoner to take his trial; he was to be committed until he was discharged by due course of law. That was construed to mean the law as it now existed in the Statute Book; and he challenged the Solicitor General to say that it meant anything else.
§ * SIR J. RIGBY
I will deal with that argument afterwards. What I have pointed out is this: That the section as it stands is plainly a limitation on the legislative power of the Irish Legislature; but it would not be any limitation at all if the Irish Legislature had the power of altering at their pleasure the due process of law. The words necessarily mean due course of Common Law as altered according to the will and pleasure of this Parliament, and abuse of its power by the Irish Legislature has nothing to do with the question.
§ * MR. DUNBAR BARTON
said, he would appeal to the legal profession, who would have this Debate before them for weeks and months to come, whether the words "due process of law" must not be construed according to their meaning in British law. He admitted they had a special meaning in American law, but that could not be adopted. The words were in an Irish Act now in force. It was an Act passed by Grrattan's Parliament in 1786 to punish forcible entry, and it was known as the Statute of George III. against forcible possession. The 64th section of the Statute made it a felony for any person to take possession of land "forcibly and without process of law." This section had not been repealed, was still the law of Ireland, and no one could contend that a Judge could, in construing these words, apply to them any general maxim of justice. Since the Statute was passed the "due process of law" for recovering the possession of land had been changed over and over again; and the words would be construed in the light of the most recent Statute. Fancy a prisoner indicted under the Act pleading the American Constitution; he would be a laughing-stock! It would only be 1136 necessary to prove that he had taken possession forcibly against the due process of the existing Statute Law. He understood the Attorney General agreed to that. [Sir C. RUSSELL nodded assent.] They had those words in an unrepealed Statute, and they had been frequently adjudicated upon, and they could not use them in any sense different from that which they possessed unless by passing words to give them a different sense. The Solicitor General would not dispute that proposition.
§ * MR. DUNBAR BARTON
It must be plain, therefore, to every layman and to every lawyer that these words "without due process of law," understood in the sense which they bore in English and Irish law, offer no protection whatever against oppressive legislation. The Irish Legislature might exercise their own sweet will in altering the process of law. The process in its altered form would become "due process"; and this clause would be valueless as a protection for life, liberty, or property. And yet they were to be told that the words would have a totally different meaning in this Bill. The Government wished it to be understood that these words were a real protection to the Irish Loyalists; they were more anxious, perhaps, that they should appear to be such than that they should be an actual safeguard. But the Government suggested, and he had no doubt intended, that these words should be understood in the very different meaning which they bore in American jurisprudence. His next proposition was that they could not be so understood. He was aware that the Government proposed by Clause 19 to set up a Court which could over-rule legislative enactments. But that Court would be and must be guided by the principles and rules of British and Irish law, and not of American jurisprudence. The Government could not by a phrase transplant a whole branch of American law into British law. It was said by Coke that Statute Law might be over-ruled by the Common Law in certain cases. In a new edition of his book on the American Constitution, Mr. Bryce—he begged 1137 pardon, but it was difficult to distinguish between the author and the statesman; he meant, of course, the Chancellor of the Duchy (Mr. Bryce)—said that this doctrine was obsolete, and that—The opposite doctrine has long been settled.So that a Constitutional Statute might be repealed by Act of Parliament.
§ * MR. DUNBAR BARTON
said, yes; but what was to prevent the Irish Legislature from doing the same? The Irish Legislature could under this Act alter all the Constitutional Statutes, such as Magna Charta and the Bill of Rights, as well as the right of trial by jury, bail, habeas corpus, free and open trial, liberty of the Press and speech. As an Ulster-man and a Loyalist, he repudiated this as a substitution for the liberties of an English subject. It was, therefore, impossible for the Government to transplant American law, because there was nothing in the Statute to authorise it. Besides, the Privy Council could not administer American law without authority of Parliament, and they would not if they could. The Chancellor of the Duchy in his book had pointed out, at page 385, with what strictness and literality the Privy Council had construed the British North America Act. The right hon. Gentleman wrote—Had the Supreme Court been possessed of the same spirit the United States Constitution would never have grown to be what it is now.The proposition appeared to be, therefore, that what the Supreme Court took 100 years to do was to be done in a day—in a moment, if necessary—after this Bill was passed. He thought that their Judges were right in their attitude of strictness and literality; but whether they were right or not the Chancellor of the Duchy had shown how absurd it was to suppose that they would on reading this phrase swallow, digest, and apply a large branch of American law which it had taken a century for the United States to build up. But he went further. He said that even if the Government could embody the whole of this 1138 American branch of law it would be quite ineffective and inadequate for the purpose for which it was intended. What was that purpose? It was offered as the sole safeguard for the lives and liberties of Ulster and the loyal minority. It was not, as in America, in addition to all the elementary rights to liberty. It was in substitution of them. In America it was applied to the Judiciary and Executive as well as to the Legislature. Therefore, the Government had borrowed these words, and applied them to the power which they could not effectively restrain, and they had not applied them to the powers which they might effectively restrain. But the external standard to be applied in deciding these matters was of vital importance. What was it? It was so vague and indefinite that, though the Law Officers of the Crown had tried to give it a moaning, the Committee had not been told what the phrase really meant. In the case quoted by the Attorney General of "Wynehamer v. People" it was indicated that these words meant "as settled maxims of law permit and sanction." In the famous argument of Webster, he explained the words by saying that life, liberty, and property were placed under the protection of the general rules which governed society. He would like to see how the Irish Judges and the English Privy Council would give effect to these explanations. He could understand the Solicitor General unfolding to the Privy Council the settled rules which governed society, and he firmly believed that, for once in his life, the Solicitor General would be dismissed with costs. He (Mr. Barton) had not to go beyond the Treasury Bench for authority. There was one Member of the Government whose name had not been mentioned in these Debates. The Civil Lord of the Admiralty had written a book called American Home Rule, which was a most interesting book, and, among other things, he dealt with this very question. At that time he ventured to say the Civil Lord of the Admiralty was not aware that this safeguard was going to be introduced into the great Home Rule Bill of 1893. What did he say was meant by "due process of law"? He said, "It means compliance with certain principles of justice which have not 1139 been very precisely defined." A more accurate and precise description of this principle was never put upon paper. The Civil Lord of the Admiralty went to America himself as a professional man; he studied and had a personal opportunity of seeing how this law worked; he was away for three years, and that was the evidence he gave as to the value of this safeguard. He would tell the House what he understood this safeguard to be taking it at the utmost, and it was consistent with what had been stated that and the previous nights by the Attorney General. It was some protection, he admitted, but absolutely inadequate by itself. It meant this, and he took the meaning from the case of "Parsons v. Russell," in 11th Michigan Reports, where the Attorney General would find it under the head of "due process of law,"—This safeguard merely intends to secure the right of trial according to the form of law.That was consistent with every word the Attorney General said in his speech last night and also in his speech that night. Story's explanation amounted to this— that there must be an accusation, a trial, a judgment, and a conviction. Yes, but the Committee would ask who was to decide what was to be the character or the form of that accusation, that trial, of that judgment, and of that conviction, and he would tell them not on the authority of a Michigan or Now York Court, but of that of the Supreme Court of the United States. In the case of "Walker v. Sauvinet" (92 U.S. Reports), the rule was clearly explained, and it was set forth in Mr. Cooley's book in the following words:—But the States will prescribe their own method of proceeding and trial; the accusation may be by Grand Jury or without one; the trial by Jury or by Court; and whatever is established will be due process of law, so that it be general and impartial in operation, and disregard no provision of Federal or State Constitution.What were these safeguards then? It must be general and impartial in operation; but if they were protecting a minority it was of the very elements of the question that an Act general and impartial in operation was that which might be most injurious to the minority, where 1140 one had to be protected from a majority, because they could frame an Act which might be general and impartial, which would do no harm to the majority but which might injuriously affect the minority. Then the process must not "disregard any provisions of Federal or State Constitution." But the Bill did not give them the provisions which were inserted in the Federal and State Constitution for the protection of life and liberty, and consequently the foundation of all the "due process of law" was gone, and these words by themselves afforded no protection at all. He would admit that occasionally—perhaps once in three or four years—this safeguard, if understood in its American sense, might be of use in Ireland, probably to stop Socialistic legislation, or something like that. But as a protection to life, liberty, and property it was absolutely worthless. He therefore put these four propositions: First, that these words were the sole safeguard for the lives and liberties of the Irish Loyalists—they were the substitute for all the liberties they at present possessed; secondly, that in their well-understood sense in our law they were absolutely valueless; thirdly, that it was impossible to pitchfork the words from the American law into our law in their American sense; and, finally, that, if that were done and the words were taken in their full American sense, they would be inadequate and ineffective for the purpose at which they aimed. As an Ulster Member he repudiated this safeguard as any protection for the Loyalists of Ireland. To offer this in exchange for the liberties of Ulstermen was a direct provocation to any course of action; and if the clause were passed in this form, he said that whatever course Ulster might take would be approved of by every lover of freedom in the civilised world.
§ MR. MACARTNEY (Antrim, S.)
said, that during the course of these Debates he had been astonished at the attitude of the Government, but he had never been more astonished than now by the fact that no Member of the Government had risen to answer the powerful arguments advanced by the Iron, and learned Member and by others. He contended that whatever basis there had been in the arguments of the Govern- 1141 ment had now been destroyed. This was a question of gigantic importance to the minority whom the words were intended to protect. Whenever Ulstermen had declared their lives and liberties and property to be endangered the Government and their supporters had always pointed to this sub-section as affording adequate protection, and now it had been shown by his hon. and learned Friend that the words had at least two interpretations. He held that the Government had no right to pledge themselves before the country to introduce into this Bill safeguards for the purpose of protecting the lives, the liberties, and the property of the minority in Ireland, and then to frame that protection in ambiguous language capable of varying interpretations. He was bound to say that the last speech the Solicitor General made certainly opened his mind very considerably to the great danger which surrounded this expression. The hon. and learned Gentleman declined to define it for the reason that he said no lawyer had yet attempted to define what fraud meant in the English law, and the Government proposed to hand over the lives, property, and liberties of the minority in Ireland to a frame of words which might be subject for years to the varying interpretations and doubtful judgments which had been given with reference to "fraud" in the English law. If the Government pretended that they were redeeming the pledges they had given to protect the minority in Ireland, all he could say was it was a way of redeeming them that very few politicians would care to imitate. It had been pointed out that these words had been interpreted by the Civil Lord of the Admiralty as dealing with "principles of justice not very accurately defined." Was the Civil Lord prepared to tell his constituents that by this subsection the Government had done justice to the principles upon which they went before the country with this Bill? Was he prepared to tell them that in his opinion this sub-section, which was merely a frame of words dealing with principles of justice not very accurately defined, was a sufficient safeguard for the minority in Ireland? He understood that one of the legal officers of the Government had stated that the words "due 1142 process of law" would preclude any action of the Irish Legislature which would alter the state of the law as it existed at present. [Sir C. RUSSELL: No, no!] If that were not so, he could not conceive what protection the words afforded against the action of the Irish Legislature. They afforded no legislative or judicial protection. Viewing this clause, upon Which the Government relied, as a redemption of their pledges with regard to the protection of the minority in Ireland, which the Government had over and over again admitted was necessary, this safeguard appeared to him to be an absolute fraud, and it was far better to reject it than encumber the Bill with it.
§ MR. A. J. BALFOUR
I do not rise for the purpose of intervening in this legal Debate, and giving what would most doubtless be a valueless opinion on matters bearing a legal interpretation, but I can hardly sit still and allow the Government under the cloak of silence to escape from not the least damaging of the many damaging attacks made upon them in the course of this Debate. I have had better fortune than many gentlemen in this House, in that I have heard the whole of the Debate from the beginning on the Amendment of the Member for St. Helens down to the present Amendment. On the Amendment of the Member for St. Helens we had one of the few legal speeches from that Bench with which we are expected to be satisfied. No doubt the Attorney General was perfectly clear in his statement. In other words, he very clearly explained to the House that he could not explain the moaning of his own Bill. His clearness was a negative clearness. It was clearness devoted to showing that with all his immense knowledge of English law and all his acquired and doubtless accurate knowledge of American law, still he is not in a position to give this House an adequate account of what it was the Government meant by this Amendment. Then he is followed by his learned Colleague the Solicitor General, and his learned Colleague's claims upon this matter appear to be of a very modest description. He was asked what these words meant, and he said that a Court of 1143 Law which had got to deal with an Act of Parliament would always assume that it means something; and, therefore, although the learned Gentleman could not tell us what they did mean, such was his confidence in the tribunals of his country that he had not the slightest doubt when the Statute came before them for interpretation they would be able to find some meaning or another to put upon these words. And I recollect, while I am on this point, that while the Solicitor General was quite confident they would know how to interpret the obscure conundrum contained in the words "due process of law," he had admitted they would be utterly puzzled by the word "security." In this Amendment the word "security" occurs. The learned Solicitor General, I suppose, understands what "security" means; but from his knowledge of the Judges of the land, he thought they would not be able to understand it, and so strangely constructed is the judicial mind that while there could be no question, no ambiguity connected with the "due process of law," the word "security" in an Act of Parliament would utterly puzzle those learned Judges. It may be true, as the Solicitor General says, that an Act of Parliament, however idiotic be the wording, will always have some meaning or another put upon it by "Judges when interpreting it." I do not deny that broad legal proposition. The question before us, then, is what will be the legal interpretation put upon this subject—which is the most material subject of all—upon which we have had a great deal of light from my hon. and learned Friend behind me? We have had no light from the Government at all. My learned Friend has shown—and he has not yet been contradicted by any of the legal luminaries on the other side of the House—that the words "due process of law" occur in a Statute still operative. He has shown that, as used in this Statute and as constantly interpreted by the Judges, "due process of law" means the process of law in force for the time being. In other words, he shows that the English Courts are in the habit of interpreting these words in a manner that make them a mere farce and absurdity when introduced into a Bill by way of a safeguard. He has gone 1144 further, and he has quoted two important works upon the American Constitution. This Government suffers under the unique difficulty of having produced two gentlemen who have both had the misfortune to write books on the American Constitution, and who have—I say it with modesty and humility—through the medium of excellent books, supplied us with at least half our facts and arguments. Both these learned gentlemen have been quoted by my learned Friend behind me. It appears that on the authority of both of them he has conclusively proved that in America the words are ambiguous, difficult of interpretation, and almost as illusory, as it is quite clear they would be upon the interpretation of the English Courts. I do not know what answer the Government can give, or whether they have any answer to give at all; but I submit that, at all events, this Debate should not conclude until some serious answer is attempted. But, Sir, as we are upon the subject of the American Constitution—as, indeed, we cannot be on any other subject while we are dealing with this particular Amendment, which is, after all, nothing but a quotation borrowed from the American Constitution and spoiled in the borrowing—let me give some information to hon. Gentlemen opposite, which I do not profess I have derived from my own researches into the American Constitution, or into the two books by Members of the Government to which I have just referred. But I am given to understand that this very sentence—these ambiguous words—came up for discussion in an American Court, and Chief Justice Ruffin thus defined the meaning of the clause. He said—The clause means that Statutes which would deprive citizens of the rights of person or property without a regular trial, according to the usage of the Common Law, would not be the law of the land in the sense of the American Constitution.And that sentence has been, as I understand, supported by Story, Kent, and other great American legal authorities. Very well, but that is the Amendment we are discussing, and which the Government refuse to interpret. This was known apparently—as, of course, everything about the American Constitution 1145 is known—to the Chancellor of the Duchy; and I really think if he had got up and told us that the very interpretation put upon it in the Amendment of my hon. Friend the Member for Dover and in the Amendment of the noble Lord the Member for Rochester had the support of the great legal authorities in America, I think our deliberations would have been very materially aided. There is one other argument as to which I should like a reply. It was alluded to, but not specially developed, by my learned Friend behind me (Mr. Dunbar Barton). "Due process of law," after all, in the American Constitution, refers, among other things, to principles laid down in that Constitution—principles regarding trial by jury, bail, the writ of habeas corpus, and a large number of other matters vitally interesting to the liberty of the subject. These, Sir, are embodied in the American Constitution, and it is, at least, partially in reference to these that the words "due process of law" are used. Why do not the Government put down in this Bill those principles of law? They have had an opportunity of doing so, because an Amendment was moved this very evening by my hon. Friend the Member for Glasgow before this Debate began. That opportunity they did not take. They will have many other opportunities. I observe the hon. Member for Glasgow has very properly, in my judgment, put down each one of these Amendments to the American Constitution, which the Government ought to have introduced into the Bill, but have not. If there is to be a meaning to the words "due process of law," we shall, on these Amendments, have an opportunity of testing whether the Government really mean this to be a safeguard to the religious liberties, lives, and property of the minority in Ulster, or whether, on the other hand, this is merely a clause put in for the purpose of debate on the Second Reading—a clause put in to be aired upon Euglish platforms—a clause put in to induce the English people to believe they were not betraying the interests of those in Ireland who had trusted them, but a clause which, whatever its value may be for these electioneering purposes, will be utterly and obviously useless for every real 1146 object for preserving the rights threatened by the institution of this new Legislature.
§ * SIR C. RUSSELL
I certainly should have risen after the speech of the hon. and learned Member for Armagh, but for the fact that the right hon. Gentleman the Leader of the Opposition rose, and that I had delivered a speech of some length, which was practically a speech relating to this Amendment, though it occurred upon the withdrawal of the Amendment proposed by the hon. Member for St. Helens. The fallacy, as I conceive it, which has pervaded the entire argument of the hon. Member for Armagh, to which the right hon. Gentleman thinks I am called upon to make an answer, is this: that he entirely disregards the context in which this language, "due process of law," occurs. He cites, forsooth, as an illustration and an argument upon this question a Statute of the year 1786, which, forbidding the taking forcible possession except by "due process of law," has been construed in the only way in which it could be—namely, "due process of law," according as the law at that time existed. According to the context there could be no other possibility of any other construction. But what is this case? I must briefly state it again, because I do not feel warranted in following far afield some of the extraneous topics introduced to-night. I will not follow the hon. and learned Member into his extravagant description of loyal Ulstermen stripped of every vestige of protection—poor, helpless creatures, with no protection from the Irish Legislative Body, no protection from the Representatives of the Crown, from the judicial tribunals of the country, or from the ultimate appeal to the Appellate Court of the Privy Council. I will not follow him into that extraneous matter. I will, therefore, call attention to the fact that it is in relation to the context in which the language "due process of law" is used that a true apprehension of the meaning of the words must be found. It is said that in spite of the clause the Irish Legislative Body might make any law or might lay down any mode of pro- 1147 ceeding they pleased, and that thereupon it would become due process of law. I have no hesitation in saying that that argument is absurd on the face of it—one to which no legal tribunal would, or could, for a moment listen. The Solicitor General has been twitted because he declined, as I did earlier in the Debate, to commit himself to a positive and accurate definition of the words. Well, there are many lawyers in the House; but where is the one who will rise and give such a definition? The authority cited by the Solicitor General at the close of his speech is most apposite, because it is the judicial expression of a Judge of one of the Superior Courts in America, giving the meaning to the phrase "due process of law" which we contend it has received from long judicial interpretation. Thereupon the Government are asked why they do not put the words of the Judge in the Bill? In other words, we are asked to select the opinion of an isolated Judge, which, no doubt, is sound, but which may have a restrictive effect, in preference to the result to be obtained from the whole of the judicial decisions upon the question. The words must be left to judicial interpretation in connection with the context; and thus, while they will have the guarantee of judicial interpretation, they will, without using any stereotyped form, give the elasticity of language which may be necessary in the consideration of principles involved in varying circumstances.
§ SIR H. JAMES (Bury, Lancashire)
My hon. and learned Friend had much to answer in the direct propositions put to him; but he has replied to none of them. The hon. Member for St. Paucras asked the simple question—Was that which was represented to be due process of law the process of law which existed now, the process of the Common Law, or was it that process of law which the Irish Legislature at their will might invent? Do any of those hon. Members who think the Attorney General answered that question understand what his answer was? Certainly, the hon. and learned Gentleman has not asserted that the Irish Legislature could not enact due legislation controlling procedure. That procedure, whatever it might be, would 1148 amount to process of law, and that would be the "due process of law"—[Sir C. RUSSELL dissented]—which would form the only safeguard given by this sub-section. We have the admission that the Irish Legislature will be able to deal with criminal procedure. The Attorney General has said that the Irish Legislature will be able to enact that there should be trial otherwise than by jury. The Imperial Parliament did so in 1882. The hon. and learned Gentleman, earlier in the evening, told us that the question as to what is or is not due process of law is one of some difficulty. No Court has been able to define it, and no Court ever will be able to define it; but whilst we cannot define it we can give concrete instances. Suppose the Irish Legislature enacted that there should be trial before an individual—would that be due process of law? The Attorney General says it would not be due process of law if the Legislature said there should be trial before a Magistrate and he should be able to pass sentence of death. But why, if we give to a tribunal of three the power to sentence a man to death, can that power not he given to one? If we can give it to a Chief Justice, it can be given to a Puisne Judge or to a Magistrate. It is a question of degree, and does not much affect the principle. The hon. and learned Gentleman says we must leave the question to a Judge to determine. But we can, at least, assist a Judge. Why should we not say that the security should amount to the security given by the Common Law? The Attorney General says that in doing so we should be placing a task on the Judge to determine what the Common Law is. Why not? He has to determine it every day, and it is no argument to say that it would take volumes to tell what the Common Law is. Every Judge knows the Common Law—more or less. He is bound to administer it; and I must protest, when we ask that this safeguard, "due process of law," should be within the Common Law, against the Attorney General saying that we cannot consent to the Common Law being administered by a Judge, because we cannot trust a Judge to know what the Common Law is. The Solicitor General has added another argument. He says that when we speak of process 1149 of law we speak of due process of law, and that ought to satisfy us. I expected the Solicitor General to tell us what due process of law was; but he did not make the attempt. The Attorney General did. He threw the words at large upon the Bill, saying—"We cannot tell you what it is; no one has ever been able to tell you what it is; but that is all we have to give you." I admit the difficulty of definition; but I think it a bad practice to put on the Statute Book that which no one can define. Having heard all the Government have to say, I assert that those who have drawn the clause stand convicted of having put in words of no meaning and no force, which will create confusion instead of affording protection.
§ SIR E. CLARKE (Plymouth)
I shall make no apology for asking the Committee to listen to a few words from me upon the important subject before them. If I wanted any justification, I should find it in the words of the right hon. Gentleman opposite, who, in answer to a question, said there was no subject on which the House ought to spend so much time as one dealing with the liberty of the subject. [Mr. W. E. GLADSTONE: No.] It was in reply to a question from the hon. Member for South Tyrone (Mr. T. W. Russell), and, desiring to turn the edge of the question, the right hon. Gentleman gave the answer to which I have referred. [Mr. GLADSTONE dissented.] I cannot give the exact words just now, but I have no desire to misrepresent the right hon. Gentleman. There is another reason why I claim to speak. The Attorney General threw out a challenge to any lawyer in the House to speak on this Amendment.
§ SIR E. CLARKE
Yes; my hon. and learned Friend has so challenged us. He has admitted that he cannot define the words "due process of law," and he added that it was more difficult to define the Amendment.
§ SIR E. CLARKE
I am aware there was another challenge, but I am not dealing with that. I shall meet it in 1150 time. With regard to the words in the Amendment, I hold that they are perfectly easy of interpretation and application. It would be the duty of the Judge dealing with them to see what was the security given by the Common Law; and that is precisely the duty which falls to every Judge in the discharge of the day's work. Therefore, the interpretation of my learned Friend the Member for Mid Armagh is perfectly correct. There are very few Statutes in which the phrase "due process of law" occurs, except Statutes relating to imprisonment, in which the phrase occurs "to be imprisoned until discharged by due process of law."
§ SIR E. CLARKE
I will do so with the greatest pleasure. "Due process of law," as used in such Statutes, means the operation of the law existing at the time by whomsoever that law has been made. The real difficulty in this matter arises from the Government's having applied to the Legislature a restriction which should logically apply to the Executive. If the words of the American Constitution were introduced it would be observed that the words ran thus—No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.I pause here to point out that the restriction which so specifically applied to the Legislative Body has been rejected by the Government. The words go on—Nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.That sentence shows that the law there dealt with is the law which at the time exists in the State. The Solicitor General first said that "due" meant "proper," and then he said that "due process of law" meant "according to sound precedent." The Attorney General accepted, as I thought he would accept, the interpretation in the judgment in the United States Court which was read by my right hon. Friend the Leader of the Opposition. But, as has been pointed out, that interpretation is almost precisely in the words put down 1151 in the Amendment. What answer can be given to the illustration my right hon. Friend the Member for Bury has just given in the Act passed in 1882, under which men were to be tried for their lives in Ireland without a jury? Why should not the Irish Parliament pass a similar Act? Will the Attorney General or the Solicitor General now say that, as the Bill stands, the Irish Parliament cannot do so?
§ SIR E. CLARKE
Why not? Full power of legislation is given to the Irish Parliament, subject to certain limitations, and I venture to say that there is not a word in the Bill which imposes a limit upon this power. It would be competent for them to pass such an Act, and, if they do so, the procedure under it would become due process of law.
§ MR. J. CHAMBERLAIN
So long as this is a question of legal interpretation, it is quite right the discussion should remain in the hands of legal experts. The time has now come, however, when laymen have got to form their conclusion and to give their judgment. I hope that even at this late period the right hon. Gentleman at the head of the Government will give the Committee the benefit of his views on the subject. Sir, I make an appeal. It appears to me that the issue is very plain and capable of being placed before the Committee in a very few words. The Government proposes to give a safeguard to the minority in Ireland. They consider they do this by inserting the words "by due process of law." Well, we ask what the expression means. We are told by the highest authority on behalf of the Government that it is beyond the wit of man to define it, but at the same time he assures us it is a very great safeguard indeed. He cannot tell us how it is a safeguard, or why it is a safeguard, or when it is a safeguard. And yet he knows that it is a safeguard. He asks us to accept his pious opinion. On the other hand, great legal authorities point out that as the clause is drawn, and without the addition of further words it will not carry the matter one bit further than the Bill would carry it if the subsection were left out—that, in fact, the 1152 Irish Legislature will have full power—subject, of course, to the veto and the Imperial surpremacy, such as it is—over the lives and liberty and property of our fellow-subjects in Ireland. At one point of his speech—or rather in one of his interruptions, I should say—the Attorney General was much more definite, because when the Leader of the Opposition quoted the opinion of a Judge of the Supreme Court in America defining "due process of law" according to the American Constitution, and showed that in America, at any rate, "due process of law" is defined to include all the securities of the Common Law, then by interruption the Attorney General gave his acquiescence. Yes; then why not define the matter in the English law according to the definition which you accept of the American law, instead of leaving to the Courts the duty which they may or may not discharge of importing the American law into the English law, especially as you can define it in the few words quoted by the Leader of the Opposition? But the moment the Attorney General finds himself pinned in this way he retires from the field, and begins to depreciate the authority to which he has before appealed. "Oh," he says, "what an indignity! You ask me to insert in the English law the opinion of an isolated American Judge." Let us put aside the isolated American Judge, who, after all, was considered to be a great authority in his time. The hon. and learned Member has admitted that the opinion of this poor isolated American Judge accords with the definition the Government are prepared to give to these words.
§ MR. J. CHAMBERLAIN
It was something a great deal more. I think the hon. and learned Gentleman is forgetting the language of the Judgment. It was not an illustration; it was a definition for the purpose of a Judgment; and the Judgment was founded on the definition. I say the definition of the American Judge satisfies us, and we have put it on the Paper. The Government say they agree with it. Then why not put it into the Bill? If they do not agree with it, let them tell us why. The Govern- 1153 ment themselves admit that their law is vague and ill-defined, but they trust to some future Court to define it in the course of years. Would it not be better to have an imperfect definition of certain application than to leave everything to chance? Can you conceive anything more certain to provoke litigation and irritation and to bring the proceedings of both Parliaments into contempt than upon this most important subject, which covers the lives and liberties as well as the property of the minority in Ireland, to leave everything vague and uncertain?
§ THE CHANCELLOR OF THE DUCHY OF LANCASTER (Mr. BRYCE,) Aberdeen, S.
Several statements have been made which require to be corrected in regard to that which is the undoubted meaning of the American authorities. I cannot help thinking, in hearing the Debate so far as it has gone, what would have been said by right hon. and hon. Gentlemen who have taken part in it on the other side had they happened to be at Runnymede at the time King John signed Magna Charta, and what they would have said as to the extreme vagueness of the words per legem terrœ. These are the words of Magua Charta. They are words which have been well understood by every succeeding age of lawyers. They are the words interpreted by Lord Coke. The right hon. Gentleman who has just sat down did not add very much to the previous arguments. He only repeated what has been said several times before, that this expression "due process of law" has not been defined. It is one that cannot be defined. [Opposition cheers.] Yes, it cannot be defined, and it ought not to be defined, because a definition would destroy its value. Hon. Members are probably not aware of the long-established legal maxim that there is nothing so dangerous in law as a definition? And why? Because a definition limits and narrows, and therefore destroys, the value of the words. Why is the expression a safeguard? Because it is elastic. I do not expect laymen to understand that. I notice that no lawyer has ventured to traverse that proposition. The Member for Bury 1154 asked whether "due process of law" is to be taken as the law as it is now in Ireland, or as the Common Law generally. Lord Coke has described it as embodying the settled principles of the Common Law, and others have given a similar definition. Why, then, do we object to the introduction of the words "Common Law"? Because they would make the matter more vague than it is. They would make the matter more vague because they would throw upon the Courts the duty of determining not only what is the due process of law, but also what the relation of the words is to the security given by the Common Law, and also what is the security given by any Act of Parliament which varies the Common Law. And could you present a more difficult field to the Judges than by asking them whether any Act of Parliament varied the Common Law? We think those words would add nothing to the clause, and make the section more difficult of application. There is another error which pervades the arguments of lawyers who have spoken in the Debate—that is, that the Irish Parliament could make that due process of law which would not be due process of law. Why, the whole object of the Government is to give a sort of Magna Charta to Ireland—a Constitution. Putting it here makes it impossible for the Irish Parliament to vary it, and so far from interpreting it by the words of the Irish Statute of 1776 it must be interpreted by the context of this Act. We are not dealing here with a new matter—with an ambiguous matter. We are dealing with words which have received in the Courts of the United States a perfectly clear, perfectly uniform, perfectly definite, and perfectly unambiguous construction. No lawyer who has spoken to-night has been able to cite a case where there has been a difference of opinion amongst Judges on this matter. The American authorities have been ransacked, and I venture to say that they will be found to be in accord as to the meaning to be put upon these words. There are 44 States in the Union, and words like these find a place in every one of their Constitutions. The result is, that a large body of interpretation has been accumulated in their Courts as well as in the Federal Courts, leaving the question quite unambiguous. This 1155 large body of authority will be at the disposal of the Privy Council should that Court require guidance; therefore, I maintain that we are not asking the Committee to embark in a novel proceeding, and to accept something which has not stood the test of experience. The words "due process of law" have been found to give that protection in America which it is sought to secure in the case of Ireland. They constitute, I maintain, an elastic and, therefore, efficient safeguard.
§ MR. DARLING rose—[Cries of "Divide!"] The hon. Member resumed his seat.
§ Question put.
§ The Committee divided:—Ayes 231; Noes 263.—(Division List, No. 145.)
§ It being after Midnight, the Chairman left the Chair to make his report to the House.
§ Committee report Progress; to sit again To-morrow at Two of the clock.