§ [TWENTY-THIRD NIGHT.]
§ Considered in Committee.
§ (In the Committee.)
§ Legislative Authority.
§ Clause 4 (Restrictions on Powers of Irish Legislature.)
§ * MR. T. H. BOLTON (St. Pancras, N.)
said, that Sub-section 5, which the Committee was then discussing, provided that the powers of the Irish Legislature should not extend to the making of any law whereby private property might be taken without just compensation. The Committee would notice that the sub-section, as it stood, provided -compensation only for private property taken. He ventured to propose an 1354 Amendment which would secure that compensation should be given, not only for private property taken, but for private property "injuriously affected." He did not apprehend that the Government would find any great difficulty in assenting to this Amendment, because it came well within the scope of the subsection, and dealt with a point which the draftsman might possibly have overlooked. It might be suggested that the words "property taken" had a wide and general operation, and that it was difficult specifically to provide for all matters which ought to come within the sub-section. But the words "property taken" would not cover a large number of interests which would be especially subject to legislation by such a Body as the proposed Irish Legislature. For private property actually taken it would be hard to suppose that compensation would not he given by any persons actuated by common honesty. Some recognised compensation would no doubt be paid. But there were very many interests of great importance which might be injuriously affected, and for which no compensation whatever would be given if they restricted the provision to the taking of property only. He would call the attention of the Law Officers of the Crown to the fact that in the Lands Clauses Act there was a distinct section which provided for the giving of compensation for property injuriously affected, and a distinction was drawn between property taken and property "injuriously affected." If such a provision were necessary in the Lands Clauses Act it would be equally necessary in this measure. He might be asked what were the interests injuriously affected which would not be compensated under the section as framed. His reply was that there were easements and privileges of great value, for which no compensation would be obtained under the provision giving compensation for property taken. Lauds might be flooded, streams might be diverted, and a diminution in the flow of water might be brought about, property might be deprived of river frontage, houses of lateral, support buildings might be affected by tunnelling and vibration, and in many other ways lands might be injured, &c, and unless some provision for compensation was made valuable rights and interests might thus 1355 be taken away from the owner without his obtaining any redress. The narrowing of a road might injure a man's trade, ancient lights might be interfered with, injury to property might be caused by the vibration of machinery. These were cases in which no compensation was provided for under the section. He was sure there was no wish on the part of the Government to deprive owners of property of the right to compensation for such injuries, and he could hardly suppose that any fair-minded man sitting on the Irish Benches would wish to injure property without giving fair compensation for the injury. It was, perhaps, even more important to provide in the Bill for this class of cases than for those which the sub-section, as drafted, provided for. It was well within the bounds of supposition that Acts of the Irish Legislature might be passed affecting property in the way he had referred to without compensation. If it was right to have a sub-section providing compensation for property taken, it was also right to provide compensation for property injuriously affected, and this would only be a reasonable and practical addition to the sub-section.
In page 2, line 33, after the word "taken," to insert the words "or injuriously affected."—(Mr. T. H. Bolton.)
§ Question proposed, "That those words be there inserted."
§ * THE SOLICITOR GENERAL (Sir J. RIGBY,) Forfar
I cannot, on behalf of the Government, agree to this Amendment. I think that a misconception underlies the whole argument of the hon. Gentleman. The clauses in the Lands Clauses Acts show that the words "injuriously affected" possess a very special meaning. That Act deals with lands which may be "taken" and with lands that may be "injuriously affected." It is not the law now that persons whose lands are injuriously affected are necessarily entitled to compensation in all cases. It has been clearly decided that the clause about lands "injuriously affected" applies in many cases only when some land of the person claiming has been taken. Other persons, doubtless, may have their lands injuriously affected in a similar manner; but it has been laid down that such claims as these persons 1356 may have are so vague and uncertain that it would not be proper, under any system of legislation, to provide for them. Accordingly, they are not provided for. The words employed in the present case will certainly include the taking of easements—such, for instance, as light, right of road, and so on. The section is, in fact, wide enough to cover the cases mentioned, and to allow compensation in all cases in which, in the opinion of the Government, compensation ought to be allowed. It would be distinctly against the existing law of the United Kingdom to provide, in terms, compensation for all the claims which might come under claims for lauds injuriously affected; and we should only be introducing uncertainty in place of certainty if we were to sanction the insertion of the words proposed. For these reasons the Government think that the Amendment ought to be rejected.
§ SIR H. JAMES (Bury, Lancashire)
The Solicitor General has presented one view, but there is another which I would like to put before the Committee. It is true that the words "injuriously affected" have become words of art, and possess a particular moaning, but by the construction put upon them by the hon. and learned Gentleman great injustice might be done. Under the view of the Solicitor General, a man's property might be cut in two, and a small piece—say, one acre—taken out of the middle; but the owner could obtain no compensation save in respect of the one acre which was taken, although the injury done to his property might be far greater than the value of the acre which was actually taken. It would in the same way be possible to take the garden ground in front of a house and pay only for the land so taken without compensating the owner for the injury done to the dwelling. To allay any possible fears, I will suggest that the Government should allow the insertion of the words "injuriously affected," and that they should define their meaning. [A laugh.] That laugh seems to indicate that the Irish Home Rule Members wish to have the power of injuriously affecting property without having to pay compensation, and I will, therefore, press my suggestion upon the Government. I am, after all, only asking you to secure that compensation shall be paid in Ireland as is done in 1357 this country for property injuriously affected. Millions of money have been paid to persons in this country in respect of property injuriously affected. I will suggest that such claims should be limited in the Bill to occasions when property is absolutely injured. A man's house may, for instance, be undermined, but not taken. Ought the owner to receive no compensation? I am not asking for compensation for fancy rights; but when property is substantially injured it is right that the owner should be compensated. I trust, therefore, that the Government will re-consider their decision and accept this Amendment.
§ * MR. W. KENNY (Dublin, St. Stephen's Green)
said, the Solicitor General seemed to take the view that the words "property taken" would be sufficient to cover compensation for severance or other consequential injuries to property. But had the hon. Gentleman considered Section 49 of the Lands Clauses Act, by which the jury were to assess separately the sum to be paid by reason of the severance or other consequential injury to the land? The 49th section was very distinct on that point. Not only were the jury to assess the value of the land purchased and to fix the compensation for injury done, but they were to assess the amount of compensation for damage, if any, sustained by the owner of the land by reason of the severance of his land. As he understood the Amendment, its object was to make plain what otherwise was vague and obscure. He could not understand any Member of the Government objecting to the addition of the words proposed, which were taken from an English Act of Parliament, unless, indeed, he were so infatuated with the American Constitution that he was unable to see any good in an English Statute. The English Act was distinct on this subject; this Bill ought to be equally clear, and surely no Member of the Committee could object to an Amendment which would have that effect.
§ * MR. MATTHEWS (Birmingham, E.)
I hope the Government will reconsider the decision that they have announced through the Solicitor General. They seem to think that fanciful claims might be made, but that objection is purely visionary. The words are in the 1358 Lands Clauses Act, and have received, during some 50 years, judicial interpretation; and it is quite clear that no compensation will be given unless there is an actionable injury.
§ * MR. MATTHEWS
The Attorney General denies the proposition; but I am sure that no lawyer in the House will support him in denying that, unless the injury were actionable if it had not been under the protection of an Act of Parliament, no compensation would be paid in respect of it. That is perfectly certain. The hon. Member for St. Pancras has instanced cases in which, under the section as it stands, owners of property will not be entitled to compensation for "injury." A road might be raised, and the access to his premises made more difficult, yet there would be no compensation for injurious effects in such a ease. These instances might be multiplied. I think it will be a matter for great regret if the Government persevere in rejecting an Amendment which can do no harm.
§ * MR. VICARY GIBBS (Herts, St. Albans)
said, the hon. Member for St. Pancras (Mr. T. H. Bolton) had suggested possible injury to property by the flooding of land through public works. Would the Solicitor General inform them how the words "property taken" could be taken to cover the flooding of land?
§ MR. T. W. RUSSELL (Tyrone, S.)
said, he would take the case of public drainage works in Ireland. Nothing was more likely than that such works should give rise to the flooding of land, and he would like to know if the tenants of land so flooded were to have no compensation, because the land did not, happen to be scheduled in the Drainage Act.
An hon. MEMBER asked whether, supposing it was desired to create an easement over laud, there would be any right to compensation under the sub-section?
§ MR. J. CHAMBERLAIN (Birmingham, W.)
I can suggest a case still more likely to occur, and one that, has occurred in this city. Take the case of the Metropolitan District Railway. That, of course, goes under a great many houses in London, as the owners and occupants well know, by reason of the 1359 consequent depreciation in value. The company have had to pay for compensation for disturbance for going under the houses, although they did not purchase those houses. Surely that is an example of the manner in which property may be injured without being taken. In Staffordshire cases continually arise in which claims are made against mine-owners for damage to houses caused through the subsidence of land under which the mines run. How would such cases in Ireland be governed by the words "property taken"?
§ * THE ATTORNEY GENERAL (Sir C. RUSSELL,) Hackney, S.
This is one of the many cases with which we have had to deal in the course of the Committee on this Bill, in which Amendments have been put down in vague and general terms, which cannot be defended, and, when this is pointed out, then it is urged that some cases of hardship may arise which are not provided for, and to meet which the Government are invited to supply words. The section does not profess to exhaust every possible case that may occur, but it deals with the great majority of cases by seeking to prevent anything like injustice. It seems to be suggested that the Irish Legislature is sure to inflict grievous wrong on some class or classes of persons, but the very object of this sub-section is to prevent that being done. This is not a proposal to confer a power on the Irish Legislature; it is, on the contrary, one to restrict its powers. Now I come to the arguments that have been advanced. I confess I was a little startled by the statement of the right hon. Gentleman the Member for East Birmingham, especially when the right hon. Gentleman the Member for Bury seemed to give his assent to the proposition. I understood the late Home Secretary to say that there could be no claim for "injurious effect" under the Lands Clauses Act which would not give a right of action outside the Act. Does the right hon. Gentleman the Member for Bury endorse that statement? Is there anybody in the House who will endorse it? I do not think there is. My right hon. Friend cannot have considered the matter; for under the Lauds Clauses Act it is clear that where other portions of an estate dealt with are "injuriously affected"—which per se would 1360 not give a cause of action—damages may be awarded. With regard to injury caused by the flooding of land, the answer is that the right of action would rest with the man whose land is flooded; and in the case of interference with easement rights, which are property rights, compensation would have to be given. My right hon. Friend cited the case of the raising of a road which prevented convenient access to a dwelling. Does he say in such a case damage may be given for injurious effect where no part of the property is taken? If he does, then I say he is entirely wrong. I will take a commonly familiar case, that of a public-house at a corner of a street: A railway comes which does not interfere with any property belonging to the owner of the house, but it diverts the course of traffic and interferes with the access to, and the custom of, the house. There is no cause of action in such a case, because no part of the property is taken; but under the Lands Clauses Act, if part of the property were taken, it would properly be alleged that the property was injuriously affected, and there would be a right to compensation. Undoubtedly it is the case, in the matter of railways which cause injurious effects on houses by vibration, thereby rendering them less likely to let, although there is no cause of action, yet there is a palpable injury, and yet the company does not become liable unless other part of the property is taken. I venture to suggest that all the cases which have been cited are covered by the sub-section and by the ordinary law, and that there is no need for the Amendment.
§ SIR H. JAMES
said, that he was afraid these legal arguments weighed heavily upon the Committee, and he was very unwilling to continue expressing an opinion in opposition to those of his learned Friend. But he could not agree with any of the views the Attorney General had expressed. He thought that the contention of the right hon. Member for East Birmingham (Mr. Matthews) was correct. He also thought it clear that if injury wag done to a man's land under statutory authority, no compensation could be obtained unless there was negligence in carrying out the powers given by Statute.
§ SIR H. JAMES
Then that view is conclusive in favour of the Amendment, for all it asks is that such compensation shall be secured to the person whose property is injuriously affected. If the Attorney General says that such compensation would always be given by the Irish Parliament, why should not we say that it must be so given.
§ MR. A. J. BALFOUR (Manchester, E.)
said, the Government should consent to accept Amendments which they thought were desirable and which only put in precise language that of which they bad merely a popular description in the clause as drafted. They had a clause before them which was but a popular description of that which was intended, and they had been left under this impression down to this 19th of June. Now the whole thing was changed; the Attorney General refused to accept an Amendment with which he agreed. They were not concerned with these popular descriptions. They were concerned with making the clause intelligible, and the Attorney General should tell them whether he was willing, or whether he was not, to insert words which would have that effect. He did not wish to prolong the discussion, nor did he wish to pronounce where lawyers disagreed. The words might, however, be accepted in order to making the meaning perfectly clear, and by yielding in this spirit to Amendments with which they agreed the Government would save a considerable amount of time.
§ MR. SEXTON (Kerry, N.)
said, such an extraordinary extension as this Amendment would effect would destroy the power given to the Irish Legislature. In the first place, they would not impose upon the Irish Legislature a principle which they would never dream of imposing on themselves. That was the conclusion he had arrived at from the discussion. In the second place, if they meant to give the Irish Legislature power over order in Ireland they would be doing an injustice by dealing with a matter of this kind in advance. Such proceedings would be interpreted as against the principle of the Bill and as withdrawing confidence in the Irish people. If that spirit prevailed amongst them they should never have set about Home Rule.
§ * THE SOLICITOR GENERAL (Sir J. RIGBY,) Forfar
said, the words would 1362 mean a very much different thing from that understood by the right hon. and learned Member for Bury (Sir H. James), and would apply to things to which these did not apply.
§ Question put.
§ The Committee divided:—Ayes 250; Noes 284.—(Division List, No. 151.)
§ * MR. H. HOBHOUSE (Somerset, E.)
rose to move—In page 2, line 33, leave out "just compensation," and insert "such compensation as he is at present by law entitled to.He said his Amendment was intended to give a little more precision to one of the many indefinite expressions in the clause. The more they saw of the clause the more they felt that, if passed, it would have but one certain result—in a crop of litigation. He supposed they would be told that the phrase "just compensation;" was taken from the American Constitution; but he asked, had it any definite meaning? He did not mean to ask the Committee to deal with the question for any length of time; but he must say a few words in order to show that the meaning even in the American law was not very precise, and that it would be totally inapplicable in the case of Ireland. He had first to notice the omission of the words "for the public use." The United States Constitution did not contemplate the meaning which the omission of these words would convey. In relation to "just compensation" in the United States Constitution, they knew that the State could only take property "for public use." Kent stated—If they (the Legislature) should take it for purposes not of a public nature, as if the Legislature should take the property of A and give it to B, under pretext of some public use or service, such case would be a gross abuse of their discretion and a fraudulent attack on public right, and the law would be clearly un-constitutional and void.That was sufficient to show the application in the American law. Therefore, it was clear that the Government were giving an extension to the principle of just compensation which it would be found extremely difficult to carry out. Then, as to the principles of the American law, there were provisions with regard to time and tribunal. With regard to time, the provision for compensation must precede, or be concurrent with, seizure; but in some cases it is sufficient that the owner can 1363 coerce payment through the judicial tribunals, or otherwise, without any unreasonable or unnecessary delay. As to tribunals, he found that the party was entitled to an impartial tribunal, but he was not entitled to a jury for assessing the value of the property unless the Constitution had provided such a tribunal for that purpose. There was also a rule to the effect that it was not competent for a State itself to fix the compensation through the Legislature for the reason given immediately after, that this would make the State the judge of its own cause. But in many of the cases they would have to deal with under the Amendment the State would not be the judge in its own cause, but judge in the case of a class of persons different to the class from which the property would be transferred; therefore, this principle of the American Constitution would not apply, and it would be competent, under the principle of the American law, for the State itself to fix the actual compensation to be paid in an Act of Parliament authorising the taking away of the property. The difficulty of applying those principles in a country like Ireland was best seen by taking a concrete case. There was no doubt one of the first acts of the Irish Legislature might very reasonably be expected to be the passing of an Act making it compulsory on owners to sell their fee-simple to their tenants. Supposing that the majority of the Irish Parliament assented to the passing of an Act saying that the owner of land might be bought out by his tenants at a certain number of years' purchase of his judicial rent, would that Act be void or not? To what extent would it be void, and what tribunal was to say it was within the competence of an Irish Parliament to decide how many years' purchase was a just compensation for the owner of the land? Would it be the Exchequer Judges, or would an owner actually have to go to the Privy Council in order to say how many years' purchase should be given him in each case, so that the requirements of this vague section might be complied with? He thought they ought to have some light thrown on the way it was to be worked in practice. Take another case—that of fishery rights, which in some parts of Ireland had produced large sums to the persons owning them. No 1364 doubt there were large numbers of persons who would like to enjoy these fishery rights as public rights, and who would not be willing to pay a large number of years' purchase for them. Would an Act appointing as arbitrator—to decide at his own discretion what the compensation should be—a person in sympathy with those who wanted to buy up the rights be void or not? Again, suppose an Act was only void in so far as the amount of compensation was concerned, would the property be allowed to be taken and the owner left to his remedy at law to have the amount of compensation fixed? If the Act worked in that way they would have no proper protection for property under this clause, but only unlimited uncertainty and confusion. The Amendment was a suggestion for a definition directly founded on an explanation given by the only Member of the Government who had hitherto explained what just compensation meant. On the Second Reading Debate the Solicitor General said—If compensation meant simply what compensation the Irish Legislative Body chose to provide, I could understand that a safeguard would be absolutely illusory. But just compensation must be measured by what the Irish and English laws at the present time think to be just; and it would be within the competence, and would be the duty, of every tribunal, from the highest to the lowest, to give such effect to the clause as to render absolutely illegal and void any provision in an Act of the Irish Legislature infringing the fundamental laws of justice.The hon. and learned Gentleman was asked who was to decide what the law of justice was in a particular case, and he replied that the Courts of Justice would decide as they decided upon the construction of every Act of Parliament, and he went on to say-—Justice would be determined by the principles of English law. However august or humble a tribunal might be, the standard it would have to take would not be any theory derived from its own conscience, but the standard set by the existing law, and it would be its duty not to depart from it by one jot or tittle.That explanation at the time was accepted as a fairly satisfactory explanation, because it gave them to understand that the standard of justice would be that set by the existing law. But doubts had since arisen as to whether the existing law, which was well settled both in 1365 Ireland and in this country with regard to the principle of compensation, might not be altered at any time by an Act of the Irish Legislature. What were to be the fundamental principles of justice? Were they to be laid down by this Imperial Parliament, in which they had reason to believe Ireland would be fully represented in future, or were they to be settled by the leaders of the majority in the future Irish Parliament—gentlemen who had taken an extreme view on the Land Question; and, after all, the real significance and importance of this clause was connected with the Land Question. Were they to leave the determination of this question to those who supported the "No Rent" Manifesto not many years ago, or were those who had expressed strong views as to landlords being entitled to the prairie value of the land to fix the amount of just compensation? He ventured to think it would be preferable to the Committee to accept his Amendment rather than leave the subject in the vague way in which it now stood in the Bill. It was quite true his Amendment to some extent stereotyped the principles of compensation so far as the Irish Parliament was concerned; but these principles had been pretty well settled during the last 50 years in this country and Ireland by decisions of the tribunals, and had been nearly uniformly adopted in the Acts that had since been passed. If they were going to depart from those well-settled principles of justice, let it be by the act of this Imperial Parliament, and let those principles of justice in the strong case of taking away a man's property against his will be rather settled by the one legislative tribunal, in which all parts of the United Kingdom were to be represented than by the tribunal given by the new Irish Legislature. Under Clause 9 as it stood, it would be perfectly easy and proper for the 80 Irish Members to move that, in case any amendment of those principles of compensation were carried in the Imperial Parliament, such amendments should also apply to Ireland, and it would be very difficult for anyone to object to that extension; because if they altered those fundamental principles of justice in one part of the Kingdom, they could hardly contend that these alterations ought not to be made in all parts. He considered, 1366 whether the Government accepted his Amendment or not, they must do something further to define these words. They should not be satisfied with being told they could not and ought not to be defined. He hoped, therefore, the Government would without delay do what they did with some delay the other day in a similar case when they defined "due process of law," and consent to insert some words defining exactly what was meant by "just compensation."
In page 2, line 33, to leave out the words "just compensation," in order to insert the words "such compensation as he is at present by law entitled to."—(Mr. Henry Hothouse.)
§ Question proposed, "That the words 'just compensation' stand part of the Clause."
§ * THE ATTORNEY GENERAL (Sir C. RUSSELL,) Hackney, S.
The hon. Member has with his accustomed clearness conveyed to the Committee in a way that will not be mistaken the object of his Amendment and the grounds upon which he advocates it. But upon the part of the Government I have to say, in the first place, that we conceive the clause to be adequate for the purpose intended, and, in the next place, that the substitution proposed by my hon. Friend would, as he admitted, stereotype the rule upon the matter of compensation, which, in our judgement, it would be I undesirable to do. Again, I must bog to recall the Committee to the position in which this Amendment stands in relation to the clause. The clause with which we are dealing is one which imposes restrictions upon the power of the Legislative Body to make laws, and we, in the sub-clause in question, provide that the powers of the Irish Legislature shall not extend to the making of a law which does not provide that where property is taken there shall be just compensation. Now, surely that is an enunciation of principle—clear, distinct, and unambiguous. My hon. Friend asks who is to define what is just compensation? The answer is, that as in every other written Constitution the construction must be for the decision of the judicial tribunals of the country. This is, in effect, a written Constitution, and I have to answer my hon. Friend's question in this way: He 1367 put the case of the Irish Legislative Body passing an Act for the taking of private property without just compensation to the owner of the property so taken, and he asked the question whether that Act would or would not be null and void; and who wore to determine the question. My answer to the first question is, that if it were determined that the compensation provided was not just, the Act would be null and void.
§ SIR C. RUSSELL
The provision dealing with the matter of compensation, and those other provisions which depended upon and were connected with it. There might be other provisions which might have an independent existence apart from that question.
§ * SIR C. RUSSELL
If the Act is declared to be null and void the land cannot be taken. Then my hon. Friend asks who shall determine that question in the first instance. The question might arise in any ordinary private litigation in the ordinary Courts of Justice. But Clause 19, Sub-clause 4, has a special provision in which any person affected has the right to bring the matter before the Exchequer Judges, and there is an ultimate appeal to the Privy Council in this country. So much as regards the two questions of my hon. Friend. Now, as to the stereotyping, which is the second objection to this proposal. There are few persons who know the history of the Lands Clauses Act who are not aware of the enormous change that has taken place in the scale of compensation paid to owners of land taken for public purposes between 1845–46 and the present time. A Committee of the House of Lords which considered this matter and reported upon it wont the length of recommending that in cases where land was compulsorily taken there should be a provision in the Lands Clauses Act by which, in addition to the value of the land, there should be a compulsory allowance of, I think, 100 percent., because of the owner being compelled to sell the land. Those who have had much to do with this question of compensation will recollect there has been a gradual descent from those figures. I have known 20 per cent, given by way of a 1368 compulsory allowance; but at the present day there is an almost uniform allowance—against the justice of which many people are found to protest—of 10 per cent. Again, there is another question looming in the not very remote distance. Take the question of betterment, a principle which has received the sanction of a Parliamentary Committee of the House of Commons. That may be the law of the Imperial Parliament, or it may not be the law of the Imperial Parliament. It may be the law of the Irish Parliament, and may be considered to be perfectly consistent with just principles that if a man, part of whose land is taken, receives indirectly a benefit from an undertaking in respect to other land which goes a long way to meet, if not wholly to meet, the injury he receives in respect of the portion of the land taken away, such case shall be met by the future state of the law, and it would be a perfectly just consideration to take into account when fixing that compensation. I pronounce no opinion upon that point—it is not necessary to do so—but I submit I have said enough to justify the objection that the effect of this Amendment would be to stereotype the law. For the reasons I have given we cannot accept this Amendment.
§ SIR E. CLARKE (Plymouth)
The answer of the hon. and learned Gentleman the Attorney General may be a sufficient one; but it is, I think, somewhat technical. I do not propose to examine the objection that the effect of accepting these words would be the stereotyping of the present system of compensation and the preventing of any amendment or improvement of that system. There may be something in that; but my hon. and learned Friend has, I think, missed the gravity of the case. The point made against the proposal before the House—and I do not think the section and sub-section to which the Attorney General referred in a later part of the Bill will help the Committee over the difficulty—appears to me to be a serious one. It is said that in this Subsection 5 there is a limitation of the legislative powers of the new Irish Parliament, that they shall not pass any Act by which private property may be taken without just compensation. The question at once arises who is to be the judge of the justice of the compen- 1369 sation; and I cannot find in my hon. and learned Friend's speech, or in any clause of the Bill, any answer to that at all. It might, of course, be the Legislature that passed the Bill. Suppose a Bill were to be passed through the Irish Parliament dealing with the expropriation at once of certain persons, whether holding agricultural land or not, and providing a particular standard by which compensation was to be given. Suppose, for instance, they said that no allowance whatever was to be made for compulsory purchase, or for the compulsion that was being exorcised. Who would decide whether that was just or not? This House has never yet decided against an allowance for compulsory purchase—[Sir C. RUSSELL: Nor in favour of it]—nor do I think it is likely to do so. It has accepted a plan which has been in operation for some years, the history of which is slightly different to that given by my hon. and learned Friend. The fact is that the allowance of 10 per cent, was first arrived at by two distinguished counsel who used to appear against one another in appeals under the Compensation Act, and that compensation of 10 per cent, was agreed upon to avoid the discussion which would necessarily have taken place in every case as to the injury a man would sustain by being disturbed in his occupation and compelled to find a fresh investment for his money; and although 20 per cent, was agreed upon in the case of agricultural land, I have never known more than 10 per cent, given in other cases. It has been a rule which has been accepted, and having now, no doubt, the authority of the law. But suppose the Irish Legislature was to say no allowance should be paid for compulsory purchase at all, who is to decide whether that is a just law or not? My hon. and learned Friend says we find in Section 19, Sub-section 4, the statement that it will have to be decided by the Exchequer Judges. That sub-section is as follows:—All legal proceedings in Ireland, which are instituted at the instance of or against the Treasury, or the Commissioners of Customs, or any of their officers, or relate to the election of Members to serve in Parliament, or touch any matter not within the powers of the Irish Legislature, have not power to repeal or alter, shall, if so required by any party to such proceedings, be heard and determined before the Exchequer Judges.1370 The question is only to be brought before the Exchequer Judges if it "touch any matter not within the power of the Irish Legislature." So the effect would be that if these vague words are left in the sub-section with which we are now dealing a law might be passed by the Irish Parliament affecting the compensation to be given in a case of expropriation, and nobody would know whether that law was good or bad until you had been able to bring it before the Irish Exchequer Judges, and in the case I have referred to there is no provision by which it could be brought before the Irish Exchequer Judges—noprocessopen to the persons affected. To leave this word "just" in the clause would be to invite difficulties, and to leave it ambiguous whether that justice was to be decided by the Parliament of Ireland or by the Exchequer Judges. I mentioned these difficulties at an early part of the discussions, and my hon. and learned Friend said "just" meant according to well-established rules of justice. But enlarging the phrase gives no guidance to its meaning or enforcement; and as the case now stands I point out to the Committee that there is an ambiguity on the face of the clause, and some words will require to be added in order to clear it up.
§ VISCOUNT CRANBORNE (Rochester)
desired to say a word or two upon this Amendment as he had one upon the Paper dealing with the same subject. If there was any real force in the contention of the Attorney General that this Amendment would stereotype the law in Ireland he thought it would be found by the hon. and learned Gentleman that his (Viscount Cranborne's) Amendment was not open to the same objection; but within certain limits left the Irish Parliament to legislate as they pleased, the limit being that in such cases of expropriation the amount given as compensation must be not less than that which would have been given by the Common Law of Ireland as modified by any Act of Parliament. The Attorney General entirely passed by all that interesting portion of the speech of the hon. Member for East Somerset which dealt with the American Constitution; and it was amazing, the Attorney General having himself said that this would be a written Constitution, that he did not think it worth while to pay attention to 1371 the successful Constitution to which the Mover of the Amendment alluded. That hon. Member showed that in the American Constitution the scope of these words included not merely the expropriation of owners for public purposes, but positively of private owners for the purpose and advantage of other private individuals. There were other matters on which the American Constitution was far less sweeping than the Bill of the Government—namely, and the question of contracts ex post facto laws. The interference with contracts and ex post facto laws were altogether excluded from the American Constitution; but they were not excluded from the present Bill, therefore on this question of compensation points would arise which could not arise in the case of the American Constitution. The Attorney General, however, did not deal with any of these topics. He seemed to treat the whole question as a small matter, and to argue that the Amendment ought not to be accepted because the Irish Parliament might adopt the betterment principle. It was playing with the House of Commons to treat them in that way. They knew perfectly well that the kind of proposal that was in favour in Ireland was far more sweeping than the Betterment Clauses of the Loudon County Council. But what they were afraid of was confiscation by the Irish Parliament for the benefit of the tenants or other people. There was one question which would probably attract the attention of the Irish Parliament, and that was migration from one part of Ireland to another; for proposals had often been made by Nationalist gentlemen that large grazing farms should be compulsorily seized in order to provide holdings for the distressed population of the West. How were eminent Judges to determine what was just compensation in such cases? He recollected that on a former Amendment the Law Officers of the Crown pointed to the words "principle and precedent." He did not know whether they were willing to insert these words in respect of compensation as they did in respect of due process of law. He submitted that even if they were it would not be sufficient, because what were the principles of Irish land legislation in the past? Was that what the Judges would have to look to? He did not desire to 1372 take a strong Conservative line at the present moment, but he desired to speak to the moderate Members of the House of Commons. He would not, therefore, trouble the House with any hasty views of his on past land legislation by the right hon. Gentleman the head of the Government; but he would say this—it would be extremely difficult for a Judge or anybody else to definitely lay down the principle on which the Land Act of 1881 and the Arrears Act which followed were passed into law. They might say, without offence, that the policy which led to the passing of these Acts constituted a progressive diminution of a landlord's legal rights. Under the Land Act of 1881 about one-third part of the landlord's rights was taken from them, and perhaps the Irish Legislature would propose to take away another third. Upon what principles of law or common sense were the Exchequer Judges or the Medical Committee of the Privy Council to decide when the Irish Legislature had passed the boundary which separated legal justice from injustice? It would be impossible for the Judges to have any conception of what the Legislature intended by just compensation. He, therefore, submitted to the Government that some words of definition were necessary. When the Attorney General spoke of the rigidity of the Amendment he thought the hon. and learned Gentleman was going to accept words in the nature of those he (Viscount Cranborne) had put on the Paper. There was not a Member in the House who did not believe that the Irish Legislature would try to pass an Act still further to diminish the rights of the landlords. He did not believe that the followers of the Government in their hearts were desirous of committing a grave injustice. He would ask them to consider the provisions of the Bill, and if they were honestly convinced that the proposed safeguards would not protect the landlords they would be bound, in spite of Party ties, which they were prone to follow only too closely to support the Amendment.
§ * MR. HARRINGTON (Dublin, Harbour Division)
said, the noble Lord seemed to have a great deal of sympathy for the Judges who were to determine the question of just compensation, bat he wanted to force the hands of the Judges 1373 by laying down a standard they could not vary from. He was surprised that the Mover of the Amendment thought there was any safeguard whatsoever to the Irish landlords in his proposal. Surely the standard value of land was not fixed at the present time, but varied according to circumstances, and the Amendment gravely proposed now, and on which so much time had been occupied, sought to lay down a fixed standard which was not now the law in England, and could not be, and to deprive the Judges of all discretion into taking into consideration the circumstances of the case. He would remind the noble Lord this was not altogether a landlord's question. The noble Lord judged the question altogether from an English point of view, but there were also numerous tenants in Ireland who had recently purchased their holdings, and who were themselves in the position of landowners, and the best security both for them and the landlords was to allow the Judges to be the valuers of the land and to take into consideration all the circumstances of the time and place. As the tenants in Ireland who became the owners of their holdings increased so would the number of persons who would be able to protect the right to "just compensation" be largely on the increase, and the noble Lord might be sure there was little danger of the Irish Parliament running in the direction he alluded to, or confiscating the property of landowners or other people in Ireland without compensation. He thought the tendency would be rather the other way, and it would be found that a large body of people in Ireland would be deeply interested in seeing that fair compensation was given. It seemed to him that if the Government, instead of the clause which was in the Bill, had moved a clause similar to the Amendment of the hon. Member they would then have had an Amendment just in the direction of the clause as the Opposition were determined to have an argument and discussion either one way or the other. The clause was infinitely better than the Amendment. What they (the Irish Members) objected to in these Amendments was this system of endeavouring to beget litigation. There seemed to be a desire to bring the future Government of Ireland into continual collision with the 1374 Courts of the country, and to enable gentlemen in Ireland, who were not in sympathy with any form of National Government, to be constantly setting snares for the National Parliament, and calling the Courts of Law into requisition.
§ * MR. COURTNEY (Cornwall, Bodmin)
observed that the action of the Government themselves showed how serious this matter was. One of the clauses in the Bill provided that for three years the Irish Legislature should not be able to deal with the relations between landlord or tenant, or deal with the question of land legislation. This Proviso dealt with the same matter, and would survive those three years; and if the matter was so grave that, for three years, it was to be withheld from the power of the Irish Parliament, surely it was necessary that they should hare this matter so strictly defined that, after those three years had passed over, the Irish Parliament should not be able to commit injustice. The hon. Member for the Harbour Division of Dublin spoke of this Amendment as being designed to provoke litigation, and increase the possibility of conflict between the Irish Legislature and the Courts before which the Acts of that Legislature might be brought. He was afraid that, whatever they did, there would be too abundant opportunities of that kind. It was inherent in the subject-matter of the Bill that such litigation must be frequently provoked, and the action of his hon. Friend who moved the Amendment was directed, not to amplifying, but to limiting, the opportunities of such litigation by laying down more strictly for the guidance of the Legislature, and more clearly for the guidance of the Court, the conditions under which they could proceed. The whole question turned upon this matter of just compensation. Property was to be taken only upon condition of just compensation, and the Irish Legislature were not to be entitled to pass any Act which should interfere with that principle. The hon. Member for the Harbour Division, to show the impossibility of the Irish Legislature doing any act which would involve the taking of land without just compensation, asked them to consider what had been done in multiplying peasant proprietors in Ireland, and had said that, as they were the people who 1375 would control very largely the action of the Irish Legislature, they would gee very clearly that their interests would not be very injuriously affected. But, numerous as that class was, there was another class of landowners whose property had not been sold to occupying tenants, and it wag probable that very serious legislation would be proposed in the Irish Legislature affecting that class. He was not at present prejudging the question as to whether such legislation should or should not be dealt with.
§ * MR. HARRINGTON
This class are themselves in the category of landlords, and any class of legislation affecting landlords would affect this class.
§ * MR. COURTNEY
said that, although the name of landlord applied to both, the legislation of which he spoke would not affect that class to which the hon. Member referred at all. They were speaking of the compulsory expropriation of the landlords demanded by a great class in Ulster; and how would the feelings and interests of the peasant proprietors to whom the hon. Member had referred operate to control the Irish Legislature and prevent them imposing upon these greater landlords terms which could not be considered to be just? The Attorney General said it would be easy for anyone to bring the matter immediately before the Exchequer Judges and to get their opinion as to the compensation, and if such compensation were not just the whole proceeding would fall to the ground. But he failed to see, in the machinery to which the Attorney General directed attention, the means of carrying it out. That machinery was to come into operation when the Irish Legislature dealt with matters with which it had no power to deal, not when it abused the powers conferred upon it. The Solicitor General, at an earlier stage of the Debate, stated that "just compensation" was compensation which was just, according to the ideas of our present time, when the Bill should become law; but that was a very vague criterion, and he thought some words should be introduced —if not those of the hon. Member then some others—to give greater precision of definition to the compensation to be given. The phrase in the clause was too vague to be of any value, and a 1376 much closer definition should be introduced for the guidance of the Legislature and the Court. In default of better words those which had been proposed by the hon. Member for East Somerset deserved attention, because he wished to have a strict definition. Some more definite words than those in the clause were absolutely necesary.
§ * SIR J. RIGBY
(who was received with cries of "Divide!): In answer to the hon. and learned Member for Plymouth and the right hon. Gentleman the Member for Bodmin I desire to say a few words. ["Divide!"] We have got here an enactment that the powers of the Irish Legislature should not extend to any law whereby property may be taken without just compensation, and that, therefore, it is not within the power of the Irish Legislature to make any such law. In the sub-section which has been referred to by the Attorney General it is provided that any matter not within the power of the Irish Legislature which is dealt with by the Irish Legislature is null and void. It is certainly not within the power of the Irish Legislature to sanction the taking of land without just compensation. That is perfectly plain, and there can be no doubt on the point. ["Divide!"] If a person feels aggrieved he can go to the Exchequer Judges, and there is an ultimate appeal to the Privy Council. There is power given in other clauses to the Secretary of State or the Lord Lieutenant to send a question at once to the Privy Council; and if it were a matter of great public importance we might expect that to be done. By another clause of the Act Her Majesty may receive a Petition from any person aggrieved, and has full power upon a Petition of any aggrieved person to send it to the Privy Council, oven if the Lord Lieutenant or Secretary of State do not proceed. Now, as to the question of just compensation. [Cries of "Divide!"and interruption.] There is no fixed direction or rule. We must arrive at a result according to what is just. I will take a case which I do not put forward as a probable case. [Cries of "Divide!"] Suppose the Irish Legislature said that the "just compensation" in a certain case should be one-half the value. It is perfectly obvious that that would be an unjust compensation, and any tribunal to whom the matter might 1377 be referred would so hold. The Judges have perpetually to deal with eases quite as difficult as this, and I only need say one word in reference to what has been said as to the American Constitution, and that is that I never heard of a case in which the Judge complains that the Constitution has left to him the task of construing Acts of Parliament.
§ SIR J. GORST
(Cambridge University) (who was met with cries of "Divide!"): I will not detain the Committee. I only rise to point out to the Committee the very unfavourable circumstances under which this discussion is carried on. Gentlemen who have not been present at the discussion come into the House, and when the hon. and learned Solicitor General rises to meet a difficulty which has been raised by the opponents of the Bill he is met with loud cries of "Divide!"—[Cries of "Question!"]—from the supporters of the Government; and when, in the course of his speech, he says he will give an illustration to make his meaning more clear, he is met by the rude interruption of "We do not want your illustration."
§ MR. CONYBEARE (Cornwall, Camborne)
I beg to ask you, on a point of Order, Mr. Mellor, if these remarks have anything whatever to do with the Amendment before the Committee?
§ SIR J. GORST
I rose to call your attention and the attention of the Committee to the conditions and circumstances in which this Bill was being discussed. I was saying it was impossible for the Government—["Divide!"]—to explain to the House and the country the propositions they brought forward in consequence of the interruptions of their own supporters.
§ Question put.
§ The Committee divided:—Ayes 290; Noes 258.—(Division List, No. 152.)
ruled that the following Amendment would come more appropriately under Clause 32:—Page 2, line 33, after "compensation," insert "provided that no law shall be passed by the Irish Legislature abrogating or prejudicially affecting the right of appeal from the Irish Courts to Her Majesty the Queen in Council, as hereinafter provided by this Act."—(The Marquess of Carmarthen.)1378 The following Amendment was ruled out of Order:—Page 2, line 33, after "compensation," insert "being not less than would have been given by the Common Law of Ireland, or by any Act of Parliament varying the law."—(Viscount Cran-borne.)
§ MR. CARSON (Dublin University)
rose to move—Page 2, line 33, after "compensation," insert "or whereby proceedings by petition of right may be altered or abridged.He said he was aware, from observations that had been made to him by more than one Member, that an impression prevailed that in bringing before the Committee this question of procedure by petition of right he was introducing a matter that was somewhat obsolete, or was some unusual process. He ventured to assure the Committee that petition of right was an ordinary every-day remedy, and the only remedy in certain eases. As the law at present stood, so far as he was aware, the only method of litigating a dispute with an Executive Government deriving authority from the Queen was by petition of right. In other words, in relation to a dispute with an Executive Government, the subject could not bring an action against that Executive Government; and, therefore, in the event of the Bill becoming law, as the Executive in Ireland which they were about to set up would be an Executive deriving its authority direct from the Queen, it would be impossible, in the event of a dispute arising between a subject and the Executive Government, to bring an action in relation to such dispute, save and except by the process known as petition of right. His Amendment, therefore, aimed at preventing the Irish Legislature from having the power of altering or abridging the only process existing by which a subject could contest his rights as against the right of the Executive they proposed to set up in Ireland. Matters in relation to petitions of right arose in this way—it was a fiction of our law, or a fact of our law, if they pleased, that the Queen could do no wrong; and as the Queen could do no wrong, the Executive, which derived its authority from the Queen, could do no wrong either, so that, therefore, no action could be brought against an Executive Government. But the same fiction that gave rise to the maxim that 1379 the Queen could do no wrong also gave rise to this—that if wrong were inflicted on a subject by the Executive Government, the proper mode to seek a remedy was to refer the matter, by supplication, to the Queen, and in that way have justice done. A petition of right was, therefore, simply a petition to the Queen asking that justice should be done in relation to a matter arising between a subject and the Executive Government. Matters of the kind arose in many cases. The most ordinary cases were cases in which subjects complained of damages arising in one way or other out of contracts entered into by the Government for carrying on the business of the country. If his Amendment was carried, all these matters would be left as they had been settled by Act of Parliament. The Irish Act of Parliament in relation thereto was long subsequent to the English Act; but under it actions in dispute between the subject and the Executive in exclusively Irish matters could be brought by petition of right and prosecuted in the Irish Courts. He had put down a subsequent Amendment, leaving all disputes that might arise hereafter between the Executive in Ireland and the subject to be litigated in the same way. The Committee would see that if they gave to the Irish Government the power of altering this procedure by petition of right they would be really giving one of the litigating parties in disputes between the subject and the Executive Government the power of altering the procedure for the trial of the disputes, and such a course would be absolutely absurd and unjust. The case of Sir Thomas Brady, who recently proceeded by petition of right in the Irish Courts against the Executive for depriving him of his office, was an illustration of the disputes between subjects and the Executive Government which would inevitably arise if the Bill became an Act of Parliament. There was no process, except petition of right, by which a subject could seek redress in such cases, and it was to secure that procedure to the subject in Ireland under an Irish Government that he moved his Amendment.
In page 2, line 33, after the word "compensation," to insert the words "or whereby proceedings by petition of right may bealtered or abridged."—(Mr. Carson.)
§ Question proposed, "That those words be there inserted."
§ * SIR J. RIGBY
I quite agree that it would be a serious defect in the Bill if it were left to one of the, possibly, litigant parties to do away with the process by which the other sought a remedy; but, inasmuch as this is a question involving the honour and the dignity of the Crown, it ought not to be forgotten that the Crown's consent must be given to such a Bill of the Irish Legislature before it can become law. But there are other reasons why this Amendment should not be accepted. The effect of it would be that you would have a stereotyped procedure for petitions of right, and the Irish Legislature would have no power of improving that procedure in regard to ordinary matters. The hon. and learned Gentleman is under a misconception in what he said with regard to the Executive deriving its power from the Crown. There is no use made of that petition of right in, I think, any of the Australian Colonies, in New Zealand, or in the Straits Settlements. In most of our Colonies the petition of right no longer exists. And why? Because they have initiated a much more convenient and a much more beneficial system which it would be well to adopt here, and which the Irish Legislature would do well to adopt. That is to say, that when a claim is made against the Executive a Minister is named as defendant, and is sued, though he really represents the interest of the Crown as an ordinary litigant. If this Amendment were accepted the Irish Legislature would be prevented from altering the procedure in petitions of right, and they would be prevented from adopting the modern and most beneficial mode of dealing with Crown actions.
§ MR. A. J. BALFOUR (Manchester, E.)
The hon. and learned Gentleman appears to have expressed, on behalf of the Government, on this question of the rights of the subject suing the Executive Government, a preference for the more direct method adopted in the Colonies than for the procedure of petition of right which prevails here. Am I right in saying so?
§ SIR J. RIGBY
I said that the Colonies have adopted a more direct procedure, and that I think, personally, it is a better one than ours.
§ MR. A. J. BALFOUR
Am I to understand that in a later stage of the Bill the Government proposes to introduce that innovation?
§ MR. A. J. BALFOUR
Then I understand that in this case, as in other cases, though the Government really admire such a procedure, they are not going to adopt it. We must, therefore, discuss that question on its merits. My hon. and learned Friend showed, beyond all doubt and question—indeed, that part of his speech was not questioned by the Solicitor General—that the rights of the subject as against the Executive depend, and depend solely, upon this petition of right. How, then, are those elementary rights to be preserved under the proposed Irish Parliament? The only answer given is to trot out again our old friend, the veto. It is the veto, and the veto alone, that is to be the sole bulwark between the subject in Ireland and the unrestrained power of the Executive Government. I would make two observations on that argument. The first is that, if the hon. and learned Gentleman thinks the veto a sufficient safeguard for every subject in every emergency, why insert in the Bill any other safeguard at all? My second answer is that by common consent, if this Bill is intended to be a working measure, and if it is not a mere subject for academic discussion in this House, our object ought to be to relieve the Lord Lieutenant of functions which, if the Bill ever becomes law, would be too weighty for any single individual to carry out. Therefore, when the Government say that this thing should not be allowed, and that the proper person to prevent it is the Lord Lieutenant, I say that to prevent friction and lighten the responsibility of the Lord Lieutenant it would be a proper and statesmanlike course to introduce your limitation into the clause itself. The hon. and learned Gentleman opposite says that this right of the subject for a remedy against. the Executive ought to be reserved, and he goes the length of saying it ought even to be extended—because he prefers the Colonial method, which does extend it—and yet with all these interesting academic views as to what the Irish Parliament ought or ought not to do, he is not prepared to introduce into the 1382 clause half-a-dozen words which would put the thing beyond question, and relieve the Lord Lieutenant of responsibility in determining the matter. I can understand the action of the Government in resisting Amendments touching the essential elements of the Bill. They, of course, are matters we must fight out; but why, in order to save time and render the measure more complete, they do not adopt an Amendment which will affect an object they desire, passes my imagination.
§ * SIR C. RUSSELL
The right hon. Gentleman has not really done justice to the hon. and learned Gentleman who sits near him, and who has proposed this Amendment. The fears of hon. Gentlemen on that side rise very high; but they have not yet risen in the case of the hon. and learned Member for the University of Dublin—to the point of supposing it possible for an Irish Legislative Body to pass a Bill which would run thus—"Hereafter no British subject shall beat liberty to petition the Crown." The right hon. Gentleman the Leader of the Opposition has misread the Amendment, and, therefore, has misunderstood the arguments of my hon. and learned Colleague; because this Amendment does not prevent, or seek to prevent, the Irish Legislative Body from putting an end to the right to petition. It never entered into the mind of the hon. and learned Member for the University of Dublin that such a Bill would be proposed for the acceptance of the Irish Legislative Body, or that if introduced it would ever, possibly, receive the sanction of the Lord Lieutenant. All this Amendment deals with are "proceedings" by petition—the question of altering or abridging the proceedings.
§ SIR C. RUSSELL
Abridging is shortening. Why should not the proceedings be altered? The point of the Amendment is "proceedings." It is not that the right to petition is not to be taken to be upheld, or that it is to be sought to be taken away, but that the Irish Legislative Body shall not alter or abridge proceedings.
§ MR. CARSON
said, he did not understand the object of the speech of the hon. and learned Gentleman. The object of putting down an Amendment that they 1383 were not to alter or abridge proceedings by petition of right was obviously to provide that the petition of right should stay as it was. The proceeding by petition of right was the proceeding of petition of right. The petition of right was in itself the proceeding. What else was it? It was the proceeding of commencing an action against the Queen. If that was altered or abridged the whole petition of right was no good. If they did not carry it on by petition, how else were they to carry it on unless they substituted some other process? The hon. and learned Member had given no answer whatsoever to the arguments which had been adduced. He had tried to draw a kind of technical distinction between proceeding by petition of right and petition of right itself, but had not attempted to refute the arguments brought forward. The Solicitor General had said that the Amendment would prevent an alteration in the procedure in the Courts; but that was not the case at all. If a petition of right under the Act of Parliament in force was valid it went to the Imperial Courts. The Act contained the words—The procedure of the said Courts for the time being in reference to such actions.Therefore, the proceeding known as a petition of right having been taken, and the fiat of the Queen having been obtained to come into Court, it became an ordinary action, and the procedure was not that of the time of the passing of the Act, but that of the time of the adoption of the petition. It was of no use in trying to ride off on side issues. The matter to his mind was clear, and he should like to know if the Committee were to rest satisfied with the Attorney General's statement that the question was only one of procedure?
§ MR. ROSS (Londonderry)
said, the Government were creating in Ireland an Executive that would be hostile to a very powerful portion of the population. Therefore, it was clear that disputes must, in the natural course of events, arise as between the subject and the Executive. But the only method by which these disputes could be adjusted was to be kept under the control of the Irish Legislature, who would be one of the parties to the disputes. He submitted that men should not be allowed to sit as judges in their own case. The 1384 argument of the Solicitor General as to the Amendment stereotyping the procedure had been answered by his hon. and learned Friend (Mr. Carson) reading an extract from the Act of Parliament. What was the answer of the Government? That of the Attorney General was a great deal too narrow, so that the Opposition were without any answer.
* MR. T. SHAW (Hawick, &c.)
said he desired to say a word as to the Scotch procedure on this matter. He observed that no speaker who had addressed the Committee on the Amendment had uttered a syllable of admiration of the procedure by petition of right. He himself had no admiration for it at all. He thought it an antique, clumsy, and useless method of procedure. The object of the Amendment was to prevent the alteration by an Irish Parliament of procedure by way of petition of right, although it stood confessed that that procedure was expensive, clumsy, and altogether inadequate and useless. There was no proposal in the Bill or clause to affect or alter in any way this procedure. The proposal to involve or entangle the clause with the question of petition of right came from the other side. What they had on the North of the Tweed was a simple and logical system, whereby, when the Executive Government entered into any contract with a subject of the Crown, then that Executive was bound to answer in respect of that contract, the same way that any subject of the Crown would be bound to answer. Actions were brought every day against the Lord Advocate as representing the Board of Works, the Woods and Forests Department, the Board of Manufactures, and so on. There was no petition of right in these cases; and he submitted that if a Parliament were established in Ireland, one of the best things it could do in this department would be to simplify the present procedure by petition of right. He regarded the Amendment as useless, dealing with a subject not infringed upon by the Bill; but if the Irish Parliament could in any way have the power of dealing with the matter it should have the right to alter a clumsy, expensive, and ridiculously useless procedure. They should have the power of bringing that more into accord with the jurisprudence of Scotland.
* MR. GRAHAM MURRAY (Buteshire)
said, the hon. Member who had just sat down had forgotten one little fact which made a good deal of difference in his argument, and that was that although it was quite true there were actions every day against the Crown, and though the Crown was represented by the Lord Advocate in Scotland, the reason that the Crown was so represented was because there were special Statutes bearing on the question. As he understood the Mover of the Amendment, he would be quite willing to accept words to prevent the stereotyping of a form of procedure in petition of right. That offer was pointedly put by the right hon. Gentleman the Leader of the Opposition, but it was refused by the Government. What was desired was not the form but the substance of the Amendment. It was pointed out that the motto of Common Law was, "The King can do no wrong," and that the consequence of that motto was that if he could not proceed by petition of right the subject would have no remedy against the Crown. Those who supported the Amendment said—"Give us our remedy in one form or other, and if you do not go so far as the Colonies for a method, give us the Scotch system, and constitute some official—probably not the already overloaded Viceroy—the Representative of the Executive for the purpose of defending actions."
§ * MR. T. H. BOLTON (St. Pancras, N).
said, the question was whether the individual citizen who wished to bring an action against the Irish Government could do so. If the petition of right remained as at present, the procedure would be under the control of the Imperial Parliament; but, if not, the Irish Legislature might prevent the individual citizen from appealing against its decisions. The Government answered that resort could be had to the veto. That, he had understood, was ordinarily to be exercised by the Lord Lieutenant under the advice of the Irish Government. Naturally, the Irish Government would be disinclined to exercise the veto for the purpose of forbidding an Act of the Irish Legislature. If the Irish Legislature could exercise control over procedure of petition of right it could deprive petition of right of its full force and effect—[Cries of 1386 "Divide!"] The rights of the citizen should be made effective as in the United States by giving a direct personal power of appeal, and the mode of appeal should not be under the control of one of the parties to the proceedings.
§ Question put.
§ The Committee divided:—Ayes 164; Noes 201.—(Division List, No. 153.)
§ MR. HANBURY (Preston)
May I, on a point of Order, explain what the Amendment really is, and ask respectfully for the reason why it is ruled out of Order—
I can tell the hon. Member at once that the Amendment is out of Order, because its principle has been already decided by the Committee.
§ MR. RENTOUL
, in the absence of Mr. Barton, moved to amend the clause by inserting in line 33, after the word "or," the words—Suspending or prejudicially affecting the right of any person to the writ of habeas corpus.The Legislature it was proposed to establish in Ireland would admittedly be a subordinate Parliament; and it would, therefore, be improper to confer on it the right of suspending the habeas corpus, and of taking away one of the oldest and most treasured rights of Her Majesty's subjects. The privilege of habeas corpus was originally conferred in Magna Charta. It was enlarged and emphasized by the 25th Edward III.; but in the reign of Charles II., as the then existing law was availed of for political purposes, the granting of habeas corpus was rendered compulsory in the case of every person imprisoned without cause being assigned, and also providing for the speedy trial committed for treason or felony. A considerable number of enactments had been passed, bearing in the same direction, and they knew that within their own memory—in fact not more than 10 years ago, the writ of habeas corpus was suspended by the Government of which the present Prime Minister was the head. What pressed on him (Mr. Rentoul) in this matter was that the Irish Parliament would always recall and, very justly, quote the precedent and example of the Imperial Parliament in everything they 1387 might desire to do. This writ of habeas corpus had been suspended under George III. in 1829, and under Victoria in 1844 and 1883, and the reasons assigned had been the troublous condition of some of Her Majesty's dominions or subjects. He did not say that the Imperial Parliament had been wrong in this matter; but if because a portion of Her Majesty's subjects were disaffected, that was a justification for the suspension of the habeas corpus; if this Bill passed the Ulstermen would undoubtedly become disaffected subjects to the Irish Parliament, and what was there to prevent that Parliament—who would always follow the example and precedent of the Imperial Parliament when it was their interest to do so—from pursuing a similar purpose and suspending the habeas corpus in Ulster, particularly in regard to those who had laboured energetically against the establishment of an Irish Parliament, and who still opposed it? So that the people of Ulster ought to have from Her Majesty's Government a very distinct deliverance on this subject. The Attorney General was himself an Ulsterman, though perhaps, not an Orangeman, and, therefore, not liable to the same danger as many other Ulstermen—as for instance, the hon. Member for Mid Armagh (Mr. Barton). What would be more natural than that the Irish Legislature would say—"We will suspend the Habeas Corpus Act with regard to those persons who threaten that when a Government is established in Ireland they will try to upset it." The hon. Member for Mid Armagh would himself be hit by such action as that; therefore, he and many of those who acted with him desired that it should be made clear that their liberties should not be subject to the control and care of an Irish Parliament, but should be under the control of the Imperial Parliament. If it was necessary to insert clauses in the Bill tying the hands of the Irish Legislature in regard to education, religious endowments, and certain kinds of property, surely it was much more logical to tie its hands with regard to the much more important matter of personal liberty. If there had been no safeguards in the Bill at all, he should have felt himself unable to move an Amendment such as this. But they had a number of paper safe- 1388 guards which were of no value at all. He would rather be without them—he would rather be entirely in the hands of the Irish Legislature, so that his very weakness might plead with the hearts of the Members of an Irish Government, than see a lot of sham safeguards adopted which would only have the effect of irritating the Irish Parliament, and filling them with a desire to persecute the people in whose interests those safeguards had been enacted. Again, if the hands of the Irish Legislature were tied in some respects, what would be more natural than that they should exercise to the fullest extent the powers left to them? Therefore, he would ask the Attorney General to justify, if he could, the policy of the Government in leaving this great power of suspending the habeas corpus in the hands of the Legislature from whom they had withheld so many lesser powers. He and other Ulstermen considered that this was of ten times greater importance to the loyal minority than any of the other safeguards, which were, for the most part, valueless. They would rather have the hands of the Irish Parliament free in matters of property, religious endowment, and education, than leave them full power over the liberty of the subject.
In page 2, line 33, at end, to insert, "Suspending or prejudicially affecting the right of any person to the writ of habeas corpus."—(Mr. Rentoul.)
§ Question proposed, "That those words be there inserted."
§ * SIR C. RUSSELL
This Amendment stood in the name of that most amiable and highly esteemed Member of the House, the hon. and learned Member for Mid Armagh (Mr. Barton), and I have been asking myself how it was that the hon. and learned Member did not discharge that task. I have not been able to get at a reason satisfactory to myself; but, probably, we shall hear it in the course of the discussion. Perhaps it is because the hon. and learned Member has publicly proclaimed that if the measure passes he will resolutely defy it. I think he valorously proclaimed it to be his intention to line some ditch or other. I do not exactly myself know what lining a ditch is; but 1389 we shall learn all about it, I presume, when defiance is offered to the Legislative Authority created in Ireland by the Imperial Parliament. The hon. and learned Member does not himself move the Amendment, I suppose, feeling that he would be too much of an object-lesson in view of the attitude he intends to take up, assuming the distressing necessity should arise for lining the ditches in Ulster. The hon. and learned Gentleman opposite has made out a strong case for this power of suspending the Habeas Corpus Act being held in reserve by any Legislative Body responsible for the good government of Ireland. What does my hon. and learned Friend say? He says—"There is no use in concealing the matter; there is no use beating about the bush; Ulster is and always will be disaffected towards any Legislative Authority which may be established in Ireland by the Imperial Parliament." That is the measure of the loyalty of these particular subjects of the Queen—a loyalty which is quite a unique specimen. The hon. and learned Gentleman also says that it is very probable that it may be necessary, in order to preserve the peace in Ireland, that the Irish Legislative Body should have the right to suspend the Habeas Corpus Act. But though he himself has demonstrated that the necessity for the suspension of the Habeas Corpus Act may in all probability arise, by a curious effort at argument he lays it down that the Irish Legislative Body shall not have the power to deal with an emergency which he thinks may arise. Let me say, in all seriousness, that I really cannot rise to the level of the terrified apprehension of hon. Gentlemen who speak in the name of Ulster.
§ * SIR C. RUSSELL
I agree I am not living there, but I have friends who live there. The argument is hardly worthy of my right hon. and learned Friend. If that argument is to be used—and it is one I would not have used—I might retort that the Mover of the Amendment is not living in Ulster; he resides in London, where he is pursuing a distinguished career at the English Bar, and I heartily wish him all possible success to which his talents entitle him. But, as I have said, I cannot rise to the level of these fears. I believe these fears to be 1390 absolutely and wholly baseless. That there is a considerable amount of feeling in Ulster opposed to this change I recognise. I think it is perfectly natural. I can understand that a large community well-to-do or reasonably well-to-do— although I believe there have been suggestions on that subject also—would be disposed to say —"We are averse to change; we do not want to take what we regard to be a leap in the dark; the result is doubtful, and therefore we will not have this Home Rule."
§ * SIR C. RUSSELL
That is the position which Ulstermen take up. I think they are wrong, but of course they are entitled to their opinions. My hon. and highly esteemed Friend opposite, the Member for South Belfast, has honestly persuaded himself that to give to an Irish Legislative Body the power of dealing with Irish affairs would be to give a Catholic majority power to oppress the Protestant minority, just as the ascendent minority tried in past times to oppress the Catholic majority. But the world has grown wiser. The world is more tolerant now on religious questions, and public opinion has a far greater and more wide-reaching force than it had in days gone by. But even if the modern tone and temper of mind on these questions were not, as I believe them to be, changed for the better, there is public opinion to be reckoned with; and if oppressive ideas possessed a Legislative Body, whether in Ireland, in Canada, in Australia, or at the remotest bounds of the earth where British rule and opinion prevailed, that opinion has too much volume to permit the oppression to be perpetrated. Why should there be those differences? What is there to divide Ulster from the rest of Ireland except these religious differences, which have been decidedly fomented, and accentuated beyond their natural growth? Outside influence has given to them a factitious importance, which cannot possibly be kept up, once all classes in Ireland understand that Parliament has decreed that their fate for the future is one, and that their interests are bound up indissolubly. So much for the religious question. What are the other possible questions on which differences might arise? The land. I agree as to the possibly extreme view 1391 which the Irish Legislative Body may take on the Land Question; but there are adequate safeguards in the Bill against injustice. To say that the Ulster tenant farmers, whose one desire in the world is to acquire on just terms the ownership of their own farms, would rebel against the Irish Legislative Body, whose prime object would be, by legislation and by just means, to give the Ulster farmers that opportunity, passes the bounds of absurdity. I must apologise to the Committee for having been led to this divergence; but I was really driven to it by the argument of my hon, and learned Friend who moved the Amendment. As to the Amendment, the Imperial Parliament has again and again found itself justified in suspending the Habeas Corpus Act; and why should the Irish Legislature, which will be responsible for the peace and order of Ireland, be deprived in great emergencies of the use of a weapon which the wisdom of this Imperial Parliament has often resorted to? Is it to be said that when the emergency arises resort must be had to the Imperial Parliament? [Cries of "Yes!"] Then Parliament having made a great effort to rid itself of the burden of governing Ireland, and to give self-government to the Irish people on their own responsibility, is still to interfere in matters about the conditions and requirements of which it cannot be as well informed as the Irish Legislature? I have been treated—I will not say discourteously, but to such derisive laughter when I have referred to the safeguards in the Bill, that I am afraid to dwell on the safeguards for the restraint of the Irish Legislative Body should they attempt to resort to the suspension of habeas corpus without sufficient justification. I think the common sense of the Irish Legislative Body counts for something. There will be a minority in that body which will be the more powerful in proportion as the claims of Ulster to superior intelligence are well-founded.
§ SIR C. RUSSELL
My hon. Friend is not the dictator of Ulster. He does not know what will happen in the course of a few years. There will be a minority in the Irish Legislative Body—I do not say they will come exclusively from Ulster—which will be keenly alive to any 1392 invasion of public liberty. Then, again, if the Irish Executive were to advise that such a Bill should be passed and the Legislature were to hurry it through when the circumstances of the time did not justify it, would not the attention of the Ministry of the Queen be called to the matter at once, and are not they empowered to give instructions to the Representative of Her Majesty not to sanction the Bill? Is not that a sufficient safeguard against the undue use of this power of suspension of the Habeas Corpus Act? We know that Acts of Parliament are not carried through by one branch of the Legislature in a day or in a month, and that sometimes they are never carried.
§ SIR C. RUSSELL
Yes; I have known a case in which a Bill was carried through the House in a day. But that is a strong illustration of my argument, because it was a Bill directed to deal with a supposed great emergency, and it had a bearing on the question of the liberty of the subject. I say that if we are to give legislative powers to the Irish people we ought not to deprive them of one necessary weapon, which should not indeed be lightly used, and which I admit cannot be justified except in the case of a great emergency.
§ * MR. DUNBAR BARTON (Armagh, Mid)
said, that the Attorney General had candidly confessed that the power of suspending habeas corpus should be given to the Irish Legislature for the purpose of dealing with the case of Ulster. The Solicitor General never would have made that admission.
§ SIR C. RUSSELL
I deny that I said that this power is to be directed against the people of Ulster. I only described the position taken up by the hon. Member who moved the Amendment, who said action in Ulster might require its exercise.
§ * MR. DUNBAR BARTON
said, that the hon. and learned Gentleman was one of whom every Ulsterman, whether Protestant or Catholic, Unionist or Nationalist, was proud; and they classed him, with another Ulsterman, Lord Cairns, as one of the most distinguished lawyers of his time. But when he says that he cannot rise to the level of our fears we believe him. We say he cannot possibly 1393 do so whilst he enjoys the otium cum dignitate of an English citizen in this City of London. The hon. and learned Gentleman, so far as Ulster is concerned, is a distinguished absentee. My hon. Friend who moved the Amendment may not live in Ireland, though he goes there for some part of the year; but he represents 50,000 people who live in Ulster, and I myself represent very nearly as much. We represent a vast population who may be said to be adscripti glebœ, and who cannot live outside of Ulster, and who have everything in this world staked upon this cause. If the Attorney General cannot rise to the height of our fears, we cannot rise to the lofty altitude of his indifference. The hon. and learned Gentleman referred to the question of ascendency. There was an ascendency in the last century. But there was no ascendency now. There was equality in the eye of the law, or, if there was not equality, let the inequalities be removed by the Imperial law, and they would bow to it. But the object of this Bill was to establish a new ascendency in Ireland in place of the old ascendency which had existed before they were born, and the new ascendency would be the more odious and tyrannical, because it would be supported by a permanent and unalterable majority. It was said that Lord Salisbury, when he went to Belfast, fomented the spirit of resistance to this Bill. He no more fomented that feeling than the President of the United States, if he visited Niagara, could be said to cause the waters to overflow. There was going on in Ulster now what was not going on in any country in the world. But it was not fomented—it could not be fomented. It was a voluntary conscription. [Laughter.] Ridicule was, perhaps, the wisest policy to indulge in with respect to this matter. They had in the North of Ireland a voluntary conscription of 160,000 men—[Laughter]—of all classes, from the highest to the lowest, and that was a fact which hon. Members might laugh at, but which, in certain circumstances, they might find no laughing matter. He should complain that the Attorney General had not dealt at all with the Amendment before the Committee. This was one of the most important Amendments proposed in the 1394 Bill, and it would illustrate to the public in Ireland, England, the United States, and the world, what their so-called subordinate Parliament meant, and what the talk about freedom and liberty in Ireland and a free Ireland meant. It meant the giving of coercive powers to this subordinate Parliament such as was given to no State of the American Union. What was the foundation of our liberty? It was the right which every citizen had by means of his right to the writ of habeas corpus, if illegally detained, to apply to the Courts to be set free. And if the Amendment were rejected, it would be in the power of the Irish Legislature to suspend the right to the writ of habeas corpus, and to establish a power of imprisonment at the discretion of the Executive. He declared that there was no right which should be more jealously preserved than the right of habeas corpus. The meaning of that right had been well summed up in the words of an Irish Judge—The Queen is supposed to be entitled to know why any of her subjects are kept in restraint.It was a mistake to suppose that the right was created by Statute. It existed before Magna Charta. Magna Charta merely confirmed the right of the people to the writ, and the Habeas Corpus Acts passed in England in 1679 and in Ireland in 1781 only rendered the right more available and enforceable by making the remedies, as had been well said, short, sharp, and decisive In moving the Amendment they were, therefore, not asking the Committee to restrain the power of the Irish Legislature to make beneficial laws, but they asked the Committee to restrain the power of the Irish Legislature to suspend the high prerogative right—the most valuable right attached to the Crown, and which the Crown should be slow to part with or delegate. The writ of habeas corpus had, no doubt, in past times been suspended. It was suspended only once in England—in 1817—in the present century. It was suspended six or eight times in Ireland during the same period, and he thought that that fact was a most powerful argument in favour of the Amendment. On 1395 every occasion on which Parliament made this great encroachment on personal liberty it limited its operation to a brief period of time, and never resorted to it except in times of the greatest emergency. He would like to quote the opinions of a few representative men on the writ of habeas corpus. Chatham said that the first three Latin words of the writ—nullus liber homo—were worth all the classics; Burdett, who was the Leader of the Radicals in Parliament when the writ was suspended in 1817, said that it was one of the best and most distinctive rights of Englishmen, and Lord Liverpool, who proposed the suspension of the writ in the House of Lords in 1817, said he had to admit that he was asking for most odious powers. It was said that they had the veto as a protection. He entirely repudiated the idea that the veto was an adequate protection in cases of this sort. The veto would depend on a Party vote in the House of Commons. In other words, the prerogative writ of habeas corpus would be placed at the mercy of the British Executive, only checked by indirect responsibility to one of the Houses of Parliament. This was a result which would be repugnant to the spirit of the British Constitution. Blackstone had pointed out the Constitutional principle applicable to the power of suspending habeas corpus. He wrote as follows—The happiness of our Constitution is that it is not left to the Executive Power to determine when the danger of the State is so great as to render this measure expedient, for it is the Parliament only, or legislative power, that can suspend the Habeas Corpus Act.But the proposal of the Government was that this power should be withdrawn from the Legislative Body and handed over to the Executive. In the majority of the United States the habeas corpus could be suspended only in case of invasion or rebellion. In eight of these Sovereign States it could not be suspended in any case, and the tendency was to remove the exceptions and to provide that in no instance should it he suspended within the State. It could not be suspended in Vermont, Maryland, West Virginia, North Carolina, Missouri, and Texas. In Georgia, by the Constitution of 1868, and in Ala- 1396 bama, by the Constitutions of 1819, 1865, and 1867, it could be suspended in case of rebellion or invasion; but by the most recent Constitutions of these two States it had been provided that the writ of habeas corpus could not be suspended at all. With all the experience gained in America, the tendency was to get rid of exceptions and to substitute absolute prohibition. In America the fact would be appreciated that the Irish minority were being handed over to a Legislature which was called subordinate with a power that was not entrusted to the Sovereign States of the United States, and the American people would know who were on the side of liberty. How could it be necessary to give this power in Ireland to deal with invasion and rebellion when war and treason were reserved to the Imperial Parliament by the Bill? Invasion was only a form of war, and rebellion was an untechnical name for treason. If war and treason were reserved to the Imperial Parliament there was no reason for not also reserving the power to suspend the habeas corpus. The power could be given only for the purpose of coercion. This Amendment would test the sincerity of the Prime Minister's eloquent exordium in introducing the Bill, when he spoke of the two paths of autonomy and coercion, and invited the House to substitute autonomy for coercion. It was now rendered abundantly clear that coercion was part and parcel of this new Constitution for Ireland. Autonomy and coercion would be twins rocked in the same cradle and growing up together until a freedom-loving people arises to lay them in the same grave. It could not be said the power was to be given with the idea that it was not to be used, for the Attorney General claimed, as did the hon. and learned Member for North Dublin (Mr. Clancy) that it was given in order that it might be used. If the Irish Legislature could not govern Ulster without this power, this Parliament had no right to give it Ulster to govern; and further, the power would be of no use, because the prisons in Ulster were not large enough to hold the men who would go into them if the power were used, nor were bars and bolts strong enough to keep them there. [Mr. W. E. GLADSTONE: Loyalism.] 1397 The Prime Minister had been so spoiled by the adoration of some of his followers that he forgot what loyalism was—that it was loyalty to the Constitution, of which the habeas corpus was one of the foundations. There was no man who, when he found himself face to face with the risk of losing this protection, would not resist to the utmost. It would not strengthen the hands of the Irish Legislature to invest it with this power, for the possession of it would justify disaffection and precipitate resistance. The minority did not want to have their liberties put in peril. Let the Attorney General know in what company he was ridiculing the value of the habeas corpus. James II., in his advice to his son, quoted by Lord Milton in the Debates of 1817, said— "It was a great misfortune to the people, as well as to the country, that the habeas corpus had been passed, as it obliged the Government to maintain a great force and enabled the turbulent to prosecute their evil designs." But he would rather appeal from the opinion of James II. to that of the great historian Hallam, who had written that "If temporary circumstances, or the doubtful plea of political necessity, should lead men to look on the denial of the writ of habeas corpus with apathy, the most distinguishing characteristic of our Constitution would be effaced." The Government were looking on the denial of the writ of habeas corpus with apathy. They might convince themselves that they were right in yielding to the pressure of their Irish allies, but in process of time he thought that a provision like this would bring home to the humblest and the greatest in Great Britain and Ireland what was the real character of the Bill. It was a measure for really investing the authority in Ireland deliberately and knowingly with the power of coercing a portion of their fellow-countrymen, and with the power of withdrawing from men of whom Great Britain had nothing to complain on the score of loyalty or peaceableness the protection of the Imperial Parliament.
§ * SIR H. JAMES
My learned Friend the Attorney General seemed, from the speech he has delivered, to have forgotten that he was Attorney General and almost that he was a lawyer. My hon. and learned 1398 Friend has delivered a purely Second Reading speech, and, what is more, a purely political speech. Long ago I recollect receiving a piece of advice as to the manner in which a Minister, engaged in steering a Bill through Committee, should act. The advice was given by the Chancellor of the Exchequer, and it was to this effect:—"Never speak for five minutes, and never say one word which your opponents can object to or answer." I venture to recall that piece of advice to the attention of the Attorney General, who spoke for 25 minutes, and who has uttered many words to which his opponents must necessarily object. We shall have to follow the lead of the Attorney General to discuss the wrongs and the dangers of Ulster, to discuss their fears, to reply to his taunts and his insults; and in doing this we ought to receive the support of the Nationalist Members who cheered the Attorney General that this is not digression, but is the proper way in which to conduct a discussion in Committee on the sub-section of a Bill. What right, I would suggest, has the Attorney General to enter into the "last ditch" argument? The hon. and learned Gentleman is steering this Bill, but instead of avoiding the rocks, he has run right upon them, and appeared to be pleased when he got on them, and sorry when he got off. He said, What has the Imperial Parliament to do with anything that goes on in Ireland, even if the Irish Legislature should suspend the Habeas Corpus Act? The Imperial Parliament has a great deal to do with the question. I understand that the supremacy of Parliament is admitted to be a real supremacy, and that the Bill has been launched by means of promises, that the minority in Ireland shall be protected through this supremacy. If you allow the majority in Ireland to deal with the minority without the protection of the Habeas Corpus Act, what protection can possibly be given to any minority? The Prime Minister was unfortunately not present while this rhetorical attack was being made on Ulstermen; if the right hon. Gentleman bad been present I believe that it would not have been uttered. I repeat, that the Attorney General said that if the Irish Legislature think it right to suspend the Habeas Corpus Act, what have we, the 1399 Imperial Parliament, to do with the matter.
§ * SIR C. RUSSELL
I beg distinctly to say that I said no such thing. What I said was this: I was dealing with the suggestion of the hon. Member who moved the Amendment, and I referred to the result of throwing upon the Imperial Parliament, when it had made an effort to rid itself of Irish local affairs, the duty of considering that question, although they were not in the same position to judge of it as the Irish Legislature.
§ * SIR H. JAMES
That is much as I have stated, and I think I have correctly represented the Attorney General. I am now asking the Committee to consider whether the Imperial Parliament has not something to do with this very grave question. I know of no subject with which the Imperial Parliament ought to deal more seriously than with the suspension of the Habeas Corpus Act. If the Irish Legislature is to be a subordinate Parliament this is a strange power to give to it. The Legislature of Ireland would have the power of taking away the liberty of the subject, and the Executive would be in possession of the power to mark down for punishment, and without trial, every opponent. But I am told that Irishmen would never wish to use the power. Then for what purpose do they wish to have it? If it is improbable that the power would be used, why should it be granted? I appeal to the Prime Minister, who in his time has enjoyed great responsibilities of government. I would ask my right hon. Friend whether the slightest success attended the suspension of the Habeas Corpus Act in 1881. Did it pacify Ireland? The fact is, that the suspension of the Habeas Corpus Act can only be effective where it leads to people running away and escaping from justice. When it is met it becomes of no service, and never can be of service in restoring peace or obedience to the law. I now repeat, in the hearing of my right hon. Friend, that the Act of 1881—
MR. MAC NEILL (Donegal, S.)
Who was the Attorney General then?
§ SIR H. JAMES
I do not think the Prime Minister looks back to his suspension of the Act with satisfaction.
§ * SIR H. JAMES
I can assure my right hon. Friend that I spoke only of the Government as a whole. It was done in the belief that good would come out of it. [Laughter from the Irish Members.] Do hon. Gentlemen think I shall be disturbed by what occurs there. [Laughter.] Why should those jeers take place? I have acted faithfully towards the right hon. Gentleman the Prime Minister. I have formed no compact with him to get something from him; I have not abused him one day, accused him of political crime one day, and followed him servilely the next. I was not for one moment complaining of the policy of the Government of my right hon. Friend; I was asking him if he thought this policy had produced good results. I understood that in 1882 we departed from that which was represented by the suspension of the Habeas Corpus Act, and I do not think my right hon. Friend looks back on it with pleasure.
§ * SIR H. JAMES
My hon. Friend below me thinks I introduced the Bill. I was not a Member of the Cabinet; I was never consulted before it was introduced. So far as I can recollect I never uttered a word in favour of it, and all the right hon. Gentleman can taunt me with now, by word or gesture, is that I did not resign Office because he introduced that Bill. I do not think that precludes me—because I had the great honour of serving my right hon. Friend—from saying the suspension of the Habeas Corpus Act, and although I share the responsibility with other Members of the Government of the passing of that Act, is a dangerous policy. I know the step was taken with the best motives, but I think the right hon. Gentleman in charge of the Bill—Mr. Forster—regretted that he had to use a weapon so dangerous. I do not intend to say more 1401 in relation to the policy of suspending this Act in the past than I have said, and to which I have referred for a moment with a desire to criticise the action of a former Government. We have now to decide whether that power is to be given to the Irish Legislature. I take the words of the Attorney General (Sir C. Russell). His description was that the Irish Legislature would have power to suspend the Habeas Corpus Act, but only in accordance with the established precedents, and if there was an emergency or a state of circumstances that justified the act. I wish my learned Friend would tell us the meaning he wishes to attach to those words. All that would be required would be an Act of one clause saying that the Habeas Corpus Act should be suspended after a certain date in any year. Who will try the validity of that Act? A person might be arrested under it, and he might, before the Skibbereen Petty Sessions, charge the police officer with an assault. The officer would reply, "I arrested you by warrant of Dublin Castle." The accused would say, "Here is the Habeas Corpus Act; you have no right to arrest me." The officer would say, "The Act has been suspended, and the suspension was a good one." "No," the accused would say, "it is bad, because it is not an Act passed according to the established precedents, nor was there an emergency or a state of circumstances to justify the Act." The Petty Sessions at Skibbereen would have to decide whether the Legislature of Ireland had acted according to precedent or national emergency. If they found the Legislature was acting in accordance with precedent they would remit the accused into the custody of the officer; but if the procedure goes to the extent of enabling the Magistrates to say the Act was passed without precedent, they would have to release the accused and to detain the officer in custody who made the arrest. But I am told there is an appeal to the Exchequer Judges. So there is, but I understand the appeal to the Exchequer Judges is to be on a point of law. According to this canon of construction laid down by the Attorney General, the Exchequer Judges are to be a Court of Appeal over the exercise of the discre- 1402 tion of the Irish Legislature. The Irish Legislature, by a large majority, vote that the Act ought to be suspended. The Court of Exchequer Judges have to say, "Yes, so they did; but we do not care for that; we will look into the state of Ireland, and will inquire whether there are Ribbonmen in West Meath or Fenians in the South of Ireland; we will sit in a High Court, and say we think the Irish Legislature was wrong; there were no such disturbances which, according to precedent, would justify the Legislature in passing this Act." And then they are to say, "We, the two Judges, not agreeing with the Irish Legislature, will over-rule the vote of that Legislature; we will set that Act entirely on one side, and declare that the Act has not been passed on account of a national emergency." I think the Committee will see the tangled web into which this Bill has now got. Here we are going to introduce into this old Constitution of ours this new-fangled form of the American Constitution. We are now to reduce to this positive level the liberties and the greatest power over the liberties. [Laughter and interruption.] Of course, Mr. Mellor, the Nationalist Members do not understand such arguments, and they gibe at them; they are foolish gibes. They are not thinking of the liberties of anyone. If you give this power of suspending the Habeas Corpus Act, we believe and hold that the Irish Legislature will use that power, and, therefore, we ought to take good care that there shall not be given to a subordinate Parliament powers which ought never to be given to any Body but that which possesses extreme responsibility. We take note that to-night there has been developed by the refusal to accept this Amendment, exaggerated to some extent by the strange arguments of my hon. and learned Friend, a feeling that this Bill will produce results full of the highest danger and disaster to the loyal minority in Ireland.
§ Mr. W. E. GLADSTONE
We are accustomed to acknowledge, and I am accustomed greatly to acknowledge, the advantage we derive in intricate and difficult legal discussions from the presence of sages of the law on one side or 1403 the other. We expect from them everything that tends to allay our passions, to enlighten our understanding, and to direct us without prejudice or disturbance of the balance of our minds towards the various issues before us. But my right hon. Friend has introduced quite a new element. During these Debates, in certain things, not on all occasions, he has, undoubtedly, contributed some of the most stirring, some of the most animated, and some of the most disturbing disquisitions I have ever heard delivered in this House; but I think he has excelled himself on the present occasion. My right hon. Friend has stated to-night that during a Government of which I had the honour to be the Chief, that he served us loyally. Sir, that is perfectly and absolutely true, and I look back upon it, even at this moment, with unmixed satisfaction; but he served us with a completely simple and sober-minded loyalty that is in most extraordinary contrast with the speech he has delivered. If my right hon. Friend has lost nothing in ability, he has certainly lost nothing in warmth and power of appealing to passion—nothing whatever. On the contrary; in those respects, if they are desirable, he has largely gained, and is altogether in advance of the Attorney General. His new position has inspired him with new zeal; he has before him, apparently, objects far more sacred than those which were present to him when he held the humdrum office of Her Majesty's Chief Law Officer. How jauntily has he dealt to-night with the question of the habeas corpus. He refers to my suspension of the habeas corpus—he had nothing to do with it— my suspension of the habeas corpus. I accept the responsibility in this matter, and I shall not say one word to extenuate it; but I think the Attorney General of that day had a little more responsibility about it than he seems to be aware of. Under what pretext does he shelter himself? He believes he never made a speech in favour of it; he only followed loyally the Government to which he belonged. Yes, Sir; but an Attorney General who follows in Constitutional and legal matters the Government to which he belongs is supposed to have some concern with the character of any proposals which they make. What is 1404 the true and sound doctrine as to the responsibilities of Members who, as my right hon. Friend carefully reminds us, were not in the Cabinet? Well, Sir, my doctrine has ever been this, and scores of times I have had to deliver that opinion in practical advice and in other exigencies of political life. I have always held that a Member of the Government not in the Cabinet, when a measure is adopted by the Government not in his own specific Department, has no responsibility until he has to pronounce upon that measure in his character as a Member of Parliament; but when he has to pronounce in his character as Member of Parliament, he becomes as fully responsible for that measure as any Member of the Government. My right hon. Friend, who has endeavoured tonight elaborately to relieve himself of that responsibility—
§ SIR H. JAMES
I shall not appeal in vain to my right hon. Friend's justice. I do not think that he heard all I said.
§ SIR H. JAMES
My right hon. Friend was engaged in conversation with the Attorney General. I said distinctly that I blamed nobody, and that I did not wish to depart from accepting responsibility. But I asked my right hon. Friend, did he not look back with satisfaction upon the result of that measure?
§ Mr. W. E. GLADSTONE
That is a very easy part of the question. I do not look back with satisfaction; but I might reply to the Attorney General of that day, the great defender of the law, the great champion and pillar of Constitutional principles, by asking him whether he, who gave his votes in Parliament on that subject, reflected with satisfaction upon them? Well, Sir, my right hon. Friend has done to-night what I think is extremely unusual. I have heard my right hon. Friend, even under the excitement which attends our present Debates, do most kind and most handsome things within the last few weeks. Never would I be the man to do him consciously, or any other man, injustice; 1405 but my right hon. Friend to-night took a very extreme course. He differed entirely with the Attorney General as to the sense of the speech and the declarations made by the Attorney General. In his recollection, in his honourable recollection, he differed absolutely from the honourable and independent recollection of my hon. Friend. Now, Sir, it is a uniform rule in this House that when a gentleman finds himself in that predicament, when he has put a construction on the speech of an opponent, and that opponent rises and interjects an expression denying and reversing that construction of the speech, and states what he said is distinct from and opposite to it, it is the established practice to accept that declaration. My right hon. Friend has set an evil precedent; he continued to construe the speech of the Attorney General in the sense which the Attorney General had emphatically disclaimed. I wish to enter my protest against that mode of conducting the Debates of this House. I should enter my protest against it even if it occurred in the speech of the most insignificant and newest Member, but especially when it occurred in the speech of one of the great sages of the law, to whom we have to look, even in this House, for the anticipatory exercise at least of some of those judicial qualities that are supposed to lead gentlemen on in that happy path to the highest positions in the legal firmament. Now I come to the Amendment itself. ["Hear, hear!"] I welcome that cheer; I acknowledge that cheer; I acknowledge its justice; I acknowledge I have been at a long distance from the Amendment, but who led me there? The effect of this Amendment, as I understand it, beyond all question is to deprive absolutely and under all circumstances the Irish Legislature, acting on its own responsibility, of the power of suspending the writ of habeas corpus. What is the position which we take up in answer to that contention? Our position is this: that while I, for one, entirely disclaim the slightest intention of imputing to the future Irish Legislature any disposition to an unjust or capricious suspension of the Habeas Corpus Act, yet I do not hesitate to say in my judgment, and I believe in the judgment of those to whom we look as our legal 1406 guides on this question, we have endeavoured so to frame the phraseology of this Bill as to place it beyond the power of the Irish Legislature to exercise such a disposition which I am certain it will never do. ["Oh, oh!"] That is the strange and eccentric opinion which I hold of the future of the Irish Legislature. But allow it, permit it, forgive it, because though I hold that opinion I admit that I, with others, have acted as though we did not—that is to say, we have met you, and not unwillingly met you, to this extent: that we have endeavoured to frame the phraseology of this Bill in such a way that were this Irish Legislature capriciously and in utter forgetfulness of British liberty under our ancient Constitution; were this Irish Legislature to be capable of capricious, wanton, and needless suspension of the Habeas Corpus Act, with no circumstances to warrant and demand it, our Bill as it is framed would not allow it. Such an Act, even if it could receive the Royal Assent, which I believe to be impossible; even if it could escape the intervention of this House, which I believe to be impossible also, the action of the Courts of Ireland, by the appeal that would be made to them, and by the final judgment of that Judicial Committee of the Privy Council, would entirely quash and nullify that not only unwise but wicked act of the Irish Legislature. That has been our object, and the question is whether you will adopt an Amendment which shall bind you to this principle that under no circumstances shall the Irish Legislature be enabled to suspend the Habeas Corpus Act. ["Hear, hear!"] I am sorry to say I understand that cheer, though it is limited to a particular corner which is rapidly acquiring a peculiar notoriety for cheers of a certain character, and renewed at a particular part of the evening. Our position is that, while taking securities, if you please, against the wanton, the wicked suspension of the habeas corpus, we also determine to impose on the Irish Legislature the duty of enacting laws for the peace, order, and good government of Ireland; and, having imposed on them that duty, we have no right to deprive them of this last and all-powerful weapon, which, in circumstances not to be supposed, and, I am 1407 firmly convinced, never to occur, but still within the range of possibility, and of the survival of which our opponents sometimes give indications—we have no right to withdraw the means of dealing with a terrible crisis if it should arise. If this were done it would be open to the Irish people to say that they had been appointed to a great, solemn, and responsible charge, and then had deliberately taken from them the means of discharging it. That requires no illustration drawn from the inconsistencies of late Law Officers or others to condemn it. It is a simple proposition which will, I think, recommend itself to this Committee; and, therefore, I ask you to reject the Amendment.
§ LORD R. CHURCHILL (Paddington, S.)
said, the Prime Minister had made a very forcible speech; but the Committee must recollect—he (Lord R. Churchill) had a good recollection in the matter—having heard the right hon. Gentleman speak very differently on the suspension of the Habeas Corpus Act in Ireland. The attack made by the Prime Minister upon the Member for Bury (Sir H. James) was utterly unfounded. The main ground of that attack was that the Member for Bury consented to the suspension of the Habeas Corpus Act in 1881, but now objected to that right being handed over to the Irish Parliament. When the Member for Bury supported the Prime Minister in 1881 the latter professed very different views to what he now upheld with regard to the government of Ireland. If the Prime Minister had never deserted the old Liberal principles which for years he held as to the government of Ireland, he would have the right hon. Member for Bury and many others with him now. But when the Prime Minister and leader of the people abandoned it in the course of a few weeks, without consultation with any of his Colleagues as to the new policy for Ireland which he was going to pursue, he should not, years afterwards, turn round and accuse the right hon. Member for Bury for departing from all his old principles. That was a most unjust charge to be brought against a former Colleague, who, to his know- 1408 ledge and recollection, gave him more assistance for the suppression of Ireland than any single Member on that (the Treasury) Bench. The Member for Bury remained true to every principle of political honour to which he was pledged, and experienced the greatest sorrow at departing from his Chief. The Ulster people who, at one time, gave the Prime Minister their support—
§ MR. W. E. GLADSTONE
They, in the exercise of their undoubted right, turned out everyone of our supporters.
§ LORD R. CHURCHILL
said, that they were quite right to do so, after the legislation which he had adopted for Ireland. He remembered the noble Duke (Devonshire), who was then Marquess of Hartington, going over to Belfast and saying that the government was unsatisfactory, and a departure from the great principles of Liberal government. The Attorney General had deliberately said that the reason the Government objected to the Amendment was that the habeas corpus would have to be used against the people of Ulster.
§ * SIR C. RUSSELL
said, he must correct the noble Lord. He was dealing with the argument of the Member for Down (Mr. Rentoul), who said there would in all probability be a state of things in Ulster in which the Irish Legislature would think it right to apply the Habeas Corpus Act; and he went on to show the hon. Member that the state of Ulster opinion was not what he thought it was.
§ LORD R. CHURCHILL
said, that was a manœuvre which was called "willing to wound, but yet afraid to strike." The Attorney General's whole argument was directed to the power of the Irish Legislature to put down rebellion, or what they might choose to regard as rebellion, in Ulster. The right hon. Gentleman asked whether the Opposition seriously thought the Irish Legislature would forget the great principles of English liberty. When, at any time of their history, did the Irish people learn those principles? They had their own principles of liberty, which were fatal 1409 when a large minority were opposed to their ideas. The Opposition held, therefore, that the Irish were not fit, and never would be fit, to suspend the liberties of a large portion of their countrymen, because at the least sign of opposition the Irish Parliament would be ready to suspend every safeguard for liberty. The Government were driving nails into the coffin of the Home Rule Bill. Of all the Amendments proposed to this clause none exceeded the present one in importance. When the right hon. Gentleman was responsible for the government of Ireland, he did not hesitate to suspend the Habeas Corpus Act and to imprison about 2,000 persons —village ruffians in their thousands, and Members of Parliament in their scores. The inconsistency of the Government on this subject was incomprehensible and phenomenal. They did not seem to realise what weapons they were putting into the hands of the Opposition. He had had some experience and he knew the effect that could be produced on Englishmen by asking them whether their Irish fellow-subjects were to be deprived of their great securities for liberty—the Habeas Corpus Act and the petition of right—especially when it was known that those rights would only be valuable to the Protestants and Loyalists, and that the suspension of them would be a political strength to the Nationalists. The hon. Member for Sunderland (Mr. Storey) professed to be a most faithful supporter of the old Radical faith, but he would help to give this power to the Irish Executive. Mr. Bright would never have consented to it; he would not even vote in this House for the suspension of the Habeas Corpus—
§ LORD R. CHURCHILL
said, there might be exceptions here and there; he 1410 did not admit it until he had had the opportunity of verifying it. If Mr. Bright voted for the suspension, it only showed the influence of the right hon. Gentleman the Prime Minister. But your modern Radical voted for it gaily. The right hon. Gentleman might pursue his way; but undoubtedly the progress of the Bill had not been very gratifying. [Cries of "Question!"] He was speaking to the Question. Why was progress slow? Because, at the time when there was grave anxiety among the Government's supporters as to whether the Bill would be got through Parliament at all, and at a time when the elections showed clearly—[cries of "Oh!" and cheers]—utter distrust, and in many places great hostility to the measure, the right hon. Gentleman would insist on driving the Opposition to their last resort by refusing concessions on the vital and essential parts of the British Constitution, and by refusing to listen to or to answer arguments.
§ Question put.
§ The Committee divided:—Ayes 241; Noes 270.—(Division List, No. 154.)
§ Motion made, and Question, "That the Chairman do report Progress, and ask leave to sit again,"—(Mr. J. Morley) —put, and agreed to.
§ Committee report Progress; to sit again To-morrow.