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VI.
THE JUDICIARY

The three organic parts of every Constitution are the Legislature, for the making and enacting of laws, the Executive, for the execution and administration of laws, and the Judicature, for the interpretation and enforcement of laws. These three comprise the powers of Government which a people bestow on certain organisations which they create for that purpose, in the sovereign act of conferring a Constitution on themselves. The authority which such organisations shall henceforward exercise in Ireland derive, under the Constitution, from the people of Ireland; and from no right or power, pretended or real, existing elsewhere.

The first of these three organic parts, obviously, is the Legislature, since laws cannot be executed or interpreted until they first exist. The second, equally obviously, is the Executive, since laws, having come into existence, must first be put into execution before they can be liable to interpretation, or before they can be said to require enforcement. But when a Legislature and an Executive have been brought into existence, as necessary organisations for a people’s government of themselves, a Judicial organisation at once becomes necessary. For no law can so be made as of itself to fit each particular case. Laws, by their nature, are of general meaning, and must be interpreted to the particular instance where its construction is questioned. And there is (unhappily) no law that is not sometimes altogether challenged, and set at defiance, when therefore the law made by the people at large must be enforced on the individual, and its defiance punished.

Unfortunately few people regard their Judicature with the same pride of possession with which they (sometimes) regard the Legislature, and even the Executive. Even when folk disapprove of their law-makers and their ministers, they disapprove because they conceive they have acted mistakenly on their behalf, whereas they conceive of judges as having acted from a malignancy inborn in them or in the system, with the kind of disapproval reserved for those who are created and are destined to act against their behalf. That is – in most countries, and especially in Ireland – a legacy from evil days, when judges were not the people’s judges, but whips sent forth through the land by some person who claimed to be sovereign. With the reversal of sovereignty, however, the judges become the people’s judges; the courts are the people’s courts, where the laws of their own making are interpreted; the judicial system is the people’s system; and it is for the people to insist that this attitude is observed, not only by them, but by those who interpret the laws and administer justice. For, under the Constitution, no judge sits in any court in the land save by an authority bestowed on him by the people, in the Constitution which they confer on themselves. And it is for the people to remember that fact; for only by that memory will it be recognised in the courts themselves – and, indeed, only thus will it deserve to be recognised there.

It is not, however, necessary that the details of the judicial system should be worked out in the Constitution. It is not, indeed, desirable that they should be (a consideration worthy of attention, not alone here, but in connection with the provisions for the Executive also), for such details belong to later legislation. All that is required in the Constitution is the general outline of the Judiciary, and a statement of its organic relation to the other parts of the powers of government created under it. How that outline will be completed, and the details of the organic relation made good, must be dealt with in a subsequent Judiciary Act, preceded probably by a Judiciary Commission established to review the whole of the present system and to report to Government on the changes required. In the meantime the present system will continue, subject to the principles and plan of the Constitution, which is the law fundamental to the later Act, and therefore at once of effect in respect of its general principles and plan.

According to that plan the entire system of courts and titles that derive from ancient feudal practice is abolished. A new and simple system comes into existence, comprising a number of courts, civil or criminal, of original instance and a Court of Final Appeal. The Court of Final Appeal is to be known as the Supreme Court, and the chief of the courts of first instance as the High Court. In these courts all cases are entered, and the Civil Authority of the Nation is made paramount in all circumstances. “The jurisdiction of Courts Martial,” says Article 69, “shall not be extended to or exercised over the civil population save in time of war, and for acts committed in time of war, and in accordance with the regulations to be preserved by law. Such jurisdiction shall not be exercised in any area in which the civil courts are open or capable of being held, and no person shall be removed from one area to another for the purpose of creating such jurisdiction.” Moreover, soldiers themselves are relieved from Courts Martial, unless they are on active service, except for purely military offences. For Article 70 reads: “A member of the armed forces of the Irish Free State not on active service shall not be tried by any Court Martial for an offence cognisable by the Civil Courts.”

It may be asked, however, how safeguards such as these, together with the qualities of sovereignty declared in the Constitution to be the Fundamental Rights of the people, shall be protected. For it is a temptation to all governments to find an easy way out of difficulties by riding roughshod over rights and safeguards, however earnestly they may be declared. There is only one answer. In the making of constitutions there can be only one answer. It is that the Judiciary is the People’s Judiciary, and the third part of the organic whole of Government which the people create. Article 64, therefore, reads that “the judicial power of the High Court” – with appeal to the Supreme Court – “shall extend to the question of the validity of any law having regard to the provisions of the Constitution.” The Judiciary is the interpreter of laws. It is therefore the interpreter of the Fundamental Law. And it is therefore the interpreter of the Fundamental Law and the protector of the Fundamental Law, as against all other laws of the Legislature that may violate it, not to say arbitrary acts of the Executive that may neglect it.

It must be so. There is no other way to protect the guarantee of fundamental rights written carefully in a people’s constitution. Without some such provision a Constitution might be written in water, and its guarantees set aside by any powerful executive, or any executive not instantly answerable to the people’s will. A provision of this kind is, therefore, a necessary democratic safeguard. It is true that in the United States the judicial review of the Supreme Court over legislative and executive acts has led to unfortunate decisions and much acrimonious discussion. The evils of an institution are always apparent, and no institution but has its evils. The evils that would have come into existence had that institution not been there, however, are not apparent. They are the incalculable part of the bargain; and, being incalculable, are inevitably neglected in argument. Yet they may prove to be the overwhelming factor of the argument. So it is in this case. It would be blindness to neglect it. The mere existence of the Judicial Review in the United States has unquestionably prevented many an arbitrary act of the Executive in defiance of the rights ensured by the Constitution; and if the Supreme Court has, as it undoubtedly has, abused its power of interpretation, the remedy is, not to sweep away that Judicial Review, and so to jeopardise the provisions of the Constitution, but to amend the Constitution in plainer terms, or to amend the Supreme Court. For it is plain that without Judicial Protection of the Fundamental Law (as the Judiciary is required to protect, interpret and enforce the ordinary law) its clearest provisions could be neglected at pleasure.

I may take only one instance. Article 9 of the Constitution protects the right of free expression of opinion, the right of free assembly, and the right of forming associations not opposed to public morality. Now it hardly needs to be said that no Government likes the expression of opinions hostile to itself. And no Government likes associations formed to bring its hour to an end. Under the Constitution the minorities of the day have the honest chance of becoming the majorities of the morrow in a peaceable manner. But what would be the worth of this honest chance before a powerful Government unless these protections, these rights of a sovereign people, were placed in the care of the third institution of the Constitution, the institution entrusted with the interpretation and enforcement of laws?

It is true that the Judiciary may abuse its power (since power is nearly always abused) by interpreting social reform, let us say, to be “opposed to public morality.” But in this connection, it is right to remember, first, that judgment is not reserved only to one Court, but to two Courts – to the High Court, with appeal to the Supreme Court. And it is right to remember, next, that the people have always in their possession the instruments of the Initiative and the Referendum, by which they may require either the Fundamental Law or later laws to be amended to meet their need. There are, therefore, considerable safeguards in the Constitution against abuse. Yet, even so, because one-fourth of a fundamental right may be jeopardised by an abuse of the Judicial Power, that is no reason why four-fourths should be surrendered to the abuse of the Executive Power.

Therefore the Judiciary is placed in care of the provisions of the Constitution, not to imperil but to protect them. The rights conferred in the Constitution are the People’s rights. The Constitution is the People’s Constitution. The Judiciary is the People’s Judiciary. It is for the people, by alert and active citizenship, to make them so in every real sense.

VII
THE QUESTION OF APPEALS

In the section dealing with the Judiciary one provision lends itself at once to criticism. It is hostile, on the face of it, to the entire spirit of the Constitution. It has everywhere created bitterness and irritation among the other co-equal members of the Commonwealth of Nations, which Ireland has now joined. If the purpose of life, therefore, is to learn from experience as one may reasonably believe, in spite of an apparently united conviction to the contrary, a new State at the outset of its career would be well advised not to create trouble for the future, and others would be well advised to honour that quite reasonable wish. And yet in this provision there lies hid a principle of very great meaning, if it could be extracted, separated from its feudal lumber, and wrought upon creatively.

I refer to the provision at the end of Article 65. The article itself reads:

“The Supreme Court of the Irish Free State shall, with such exceptions (not including cases which involve questions as to the validity of any law) and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court. The decision of the Supreme Court shall in all cases be final and conclusive, and shall not be reviewed or capable of being reviewed by any other Court, Tribunal or Authority whatsoever.”

To which, in the present draft, the following apparently contradictory words are now added:

“Provided that nothing in this Constitution shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty in Council or the right of His Majesty to grant such leave.”

According to this article as it now stands the Supreme Court of the Irish Free State is the highest court of appeal for all citizens of that State; but if any citizen, or any corporation, desires to affront the sense of those amongst whom he, or it, lives, he or it may carry a case elsewhere, outside the country altogether. This is known as the right of appeal to the Judicial Committee of the Privy Council. The right is rooted in the principle of Crown prerogative – a prerogative which has been removed in the highest questions of life and death, but which apparently exists in smaller matters, although there too it has been described by no less an authority than Professor Berriedale Keith as “in process of obsolescence,” so far as the other members of the Commonwealth are concerned.

Apart from the theory of the matter, however (a theory vested in an outworn feudalism), what is its effect in practice? That practice can be investigated on its merits, without the least prejudice; and it will be found that it has not produced justice, and that it has proved fruitful of increasing irritation and anger.

In the first place, such a right of appeal out of the country defeats the ends of justice by placing a premium on wealth. It has so proved among the other members of the Commonwealth. It is obvious that it must be so. For it requires a large purse to carry a case out of the country, once it has been well handled in at least two courts at home. Therefore the experience in Canada, Australia and S. Africa is that only strong corporations take advantage of such a right of appeal, because only strong corporations possess the moneys, and only strong corporations can afford to defy local feeling, since local feeling cannot react easily against anything so powerful while so intangible as a corporation.

In the second place, it defeats the ends of justice because it is an appeal to a court where the local circumstances are not familiar, and where it may even happen (as it will certainly happen in the case of Ireland) that the very axioms of the law may not be rightly apprehended. For a central court of appeal of this kind supposes uniform circumstances and uniform law. Now the circumstances manifestly are not uniform. Yet neither is the law likely to be uniform. The example of S. Africa may be taken. In S. Africa the law in force is Roman-Dutch law, not the English Common Law. It has therefore proved that the Judicial Committee has been required to handle an instrument with which it is unfamiliar. The same will apply in Ireland, where it has already proved, notoriously, that the principles of the law known familiarly as “Brehon law” have worked in opposition to the black-letter precedents of English law.

In addition to this, however, it is to be remembered that the lawyers composing the Judicial Committee are obviously unfamiliar with the principles underlying the structure of our Constitution, since they are quite unlike the principles with which they themselves have to deal. One need not argue which are the better. It is enough that they are unlike. A mechanic cannot be supposed to deliver impartial justice between two farmers in a matter of farming economy. The famous case of the Loch Neagh fisheries is enough to prove that only those who are familiar, not only with Irish circumstances, but with Irish history, can expect to deliver justice in Irish matters.

Moreover, there is a further consideration, which the plain facts of the case require should be firmly stated – and which the experience of other nations of the Commonwealth emphasises. It is that under the chief of the two heads under which such appeals to the Judicial Committee would fall the very intention to do impartial and indifferent justice could not presumed in advance. For all such appeals involve two classes of cases. The first deals with appeals from interpretation of the ordinary law. The second deals with appeals from interpretations of the Fundamental Law of the Constitution. Now appeals from an interpretation of the ordinary law heard in some country where the principles of that law are unfamiliar would, as has been indicated, involve injustices enough; but they would concern only the individual or some corporate enterprise. The injustice would exist; but it would be limited; and lawyers of another country might be supposed to wish to search for justice, even if the trading enterprise had its seat in their own nation and the individual were Irish. But a Constitution is the very charter of a nation’s freedom.

Cases concerning an interpretation of the Constitution are vital to a whole people, and, as between two nations, vital to international safety and polity. And such cases could, under the circumstances, only arise between two nations, Ireland, whose the Constitution is, and England, whose the Constitution is not, and where parties might arise to power who would intrigue to impeach that Constitution. Moreover, in England it is frequently the practice to recruit the higher offices of the Judiciary, not from men of acknowledged skill in the achievement of equity, but rather from men who have snatched a casual eminence in the heat of party strife, men of political passions and political prejudices, who have come to the front by the very profession of partisanship. It is such men who will form for the most part the lawyers of the Judicial Committee. Even if the road to that Committee were of the straightest and purest legal character, no reasonable person would expect it to deliver impartial judgment on the Fundamental Law of another nation, especially if an adjustment of the liberties of two nations were concerned, one of those nations being, more than conceivably, their own. But since the road is, admittedly, neither of the straightest nor of the purest, the expectation of impartial and indifferent justice would be a fool’s dream. And where a Court exists from which a people presumes injustice in advance, the wells of security and good order are at once poisoned.

Yet, even supposing that these questions of justice are neglected, how is the system likely to work? How has it, in fact, worked elsewhere? Assume that a case has been decided in a certain way by the Supreme Court in Ireland. It is carried to the Judicial Committee, which decides in favour of the opposite party. How is such a decision of the Judicial Committee to be put into effect? Such cases have occurred in Australia; and the Australian High Court has refused to recognise the decisions of the Judicial Committee, or to give them effect. Special legislation therefore at once became necessary; but the obvious fact which emerged was that the Judicial Committee had no machinery to put decisions into effect which were contrary to local feeling. Of the last of these cases the Australian Premier said at the “‘Imperial Conference,’ 1917,” that the “decision was one which must have caused great embarrassment and confusion if it were not for the fortunate fact that the reasons for the Judicial Committee’s decision are stated in such a way that no Court and no Council in Australia has yet been able to find out what they were.”

It is little wonder that Mr. Hughes in the same speech should have said that “Australia’s experience of the Privy Council in constitutional cases has been, to say the least of it, unfortunate.” He also read an extract from a resolution of the Final Court of Appeal of New Zealand, which declared of the Judicial Committee that “by its imputations in the present case, by the ignorance it has shown in this and in other cases of our history, of our legislation, and of our practice, and by its long delayed judgments, it has displayed every characteristic of an alien tribunal.”

The spokesmen for the other States present were equally emphatic. “I think,” said Sir Robert Borden for Canada, “we have had just about enough Appeal Courts, and I think the tendency in our country will be to restrict appeals to the Privy Council rather than to increase them.” “There is,” said Mr. Rowell for the same State, “a growing opinion that our own Courts should be the final authority.” “You know what our opinion is in S. Africa,” said Mr. Burton. “In our Constitution we have abolished the right of appeal to the Privy Council as a right. There is no such right with us at all, but the Constitution merely says that any right residing in the King in Council to grant special leave to appeal shall not be interfered with.”

These utterances, and the entire course of history on this matter, reveal an irritation which has grown with experience. The mechanism is merely a mechanism, and it has not worked well. It has injured harmony, and it manifestly has not brought justice. Even assuming that the Irish courts should agree that the decision in any individual case appealed from should stand, it could equally well argue that that decision could not be held to govern other cases; and the effect of such a decision would be to make the appeal nugatory in law.

Besides all of which, the right to allow such appeals to the Judicial Committee is based, ultimately, on the acknowledgment of the supremacy of British legislation; and the plain intention of our Constitution is that this supremacy is not acknowledged, each party to the Treaty being a co-equal member of a larger Community. Not only, therefore, are the practical reasons against such a right of appeal, but there is no substance in the Constitution to make such a right allowable.

There is, indeed, nothing that can be said in favour of such a provision, from the point of view either of justice, of law, of equity or of harmony. If it be destined to remain, it is to be hoped that it will remain a dead letter. Otherwise it will lead to boundless friction and ill-will, internal and external.

Yet there is an excellent principle embedded in this provision. It is very deeply, and perhaps almost inextricably, embedded; but it is there. For if a number of nations are to join together as co-equal members of a Community, plainly there should be some common Court to which all can appeal with equal confidence. Ireland and England, for instance, have made a Treaty. Either side may violate that Treaty. Who is to judge between them? Is the appeal to be to the arbitrament of strength? If so, what of the co-equality of the Community? It becomes an idle phrase, however separate one may claim to be from the other.

The case may be carried even further. A case exists for such a Court, not only in respect of their interdependent relations, but not less in respect of their internal relations. It may even happen that the citizen of a State, or a combination of citizens, may have a plain case to be carried to such a Court as against their State, if a Court of sufficient impartiality could be established. States are not always immaculate of justice, particularly to minorities.

Can such a Court be found? I believe it can. An exposition of the present draft of our Constitution is not the place to give the details of such an alternative. It is sufficient to say that there is such an alternative, for which provision could therefore be made in substitution of the present provision, against which the requirements of justice and the entire experience of the Commonwealth rises in evidence.