denying the right of Parliament to repeal the Bill without the recall of the Irish members is one that must be thought a very bad reason by those who accept the notions of law and sovereignty now prevalent among English judges and jurists. "That Bill was," he said, "a legislative contract," and he referred to the existence of constant examples of such contracts in the Statute Book. No doubt there are many examples to be found of contracts between citizen and citizen ratified by Act of Parliament, but where does Sir Henry James find an example of any contract made between the High Court of Parliament and any subject, whether a mere person or a corporation? Later on, in the passage quoted above, the right hon. gentleman took a very remarkable view of the functions of an Irish judge. He says that "the Irish judge would not be responsible to Parliament but to Ireland." The meaning of this is not very obvious. Under the proposed scheme two of the judges of the Exchequer division of the High Court of Justice in Ireland would be liable to be removed only in the same way as the judges of the High Court of Justice in England, viz. by an address from both Houses of the Imperial Parliament. Those Irish judges would to that extent be responsible at any rate to those bodies. With regard to the other Irish judges, it is not easy to see what is meant from a legal point of view by their being responsible to Ireland. In a vague

49

That section propose. 1. ebat

Ireland should our bre

assent of her gislative body, f her Majesty uing, and disand any prerolegated to him

aced in the Bill Lority," but in

not only necese Bill, but to

force in Ireon 38, and the criminal juris

address to her Majesty from both are
lative body, voting separately, that is to say the
request of both orders of the Legislation and
the consent of her Majesty, acting upon the adrie of
her responsible Imperial Ministers The duty of an
Irish judge under the proposed scheme would be just
what it is now-to administer justice according to
law, and of that law the Imperial Parliament would
still, as we have seen, be the supreme sourcey the said sec-

H. James assumes there must be a conflict, and that
an Irish judge would follow the Acts of the Legis
lature of Ireland rather than those of the sovereign
Legislature of the United Kingdom; and he also says
that if a judge did so he would be in the right. It
is not very clear whether Sir H. James meant that s
judge so acting would be morally right. If he d
liberately refused to be bound by an Art of the
Imperial Parliament made applicable to Irail he
would be intentionally breaking the m
which he holds his office; and it is not very y
imagine a case in which he could be belly

In een passed. We
xisting arrange-
understandings,
e conventions of
into force. By
provided that the
the Irish legisla-
ody itself, so that,
ceed those at the
d and exercised by
bers; and that the
so far as it might
e body, was to be

right under such circumstances. In any case, any one aggrieved would, according to the proposed scheme, have an appeal to the Judicial Committee; but I cannot see why it should be assumed that Irish judges, any more than colonial or other judges, will at all times and on every occasion be ready to allow political considerations to sway their minds and to become the subservient tools of party politicians.

§ 4. THE PROPOSED EXECUTIVE.

Assuming, then, that in accordance with these principles the Bill would not have taken away the legal sovereignty of the Imperial Parliament, let us see what, according to its provisions, would have been the form and powers of the Irish executive, and try to determine the extent and nature of the constitutional change which would have been effected.

By section 7 of the Bill it was provided as follows: "The Executive Government of Ireland shall continue vested in her Majesty, and shall be carried on by the Lord-Lieutenant on behalf of her Majesty, with the aid of such officers and such council as to her Majesty may from time to time seem fit." And by sub-section 2 of the same section it was proposed that, "Subject to any instructions which may from time to time be given by her Majesty, the Lord

* V. § 25 of the Bill.

Lieutenant shall give or withhold the assent of her Majesty to bills passed by the Irish legislative body, and shall exercise the prerogatives of her Majesty in respect of the summoning, proroguing, and dissolving of the Irish legislative body, and any prerogatives the right of which may be delegated to him by her Majesty." This section was placed in the Bill under the heading "Executive Authority," but in order to understand its operation it is not only necessary to refer to other sections of the Bill, but to bear in mind the existing laws in force in Ireland, which are kept alive by section 38, and the fact that all existing courts of civil and criminal jurisdiction, and all existing legal commissions, powers, and authorities, and all existing officers, judicial, administrative, and ministerial, were by the said section to continue as if the Act had not been passed. We must remember too that under our existing arrangements certain usages, certain political understandings, or, to use Professor Dicey's term, "the conventions of the Constitution," are every day put into force. By section 34 of the proposed Bill it was provided that the privileges, immunities, and powers of the Irish legislative body were to be defined by that body itself, so that, however, the same should never exceed those at the time of the passing of the Act enjoyed and exercised by the House of Commons and its members; and that the existing parliamentary law, save so far as it might be altered by the Irish legislative body, was to be

E

applicable to it. The Bill contained nothing to prevent the executive officers to be appointed under section 7, or the members of the council therein referred to, from being members of the Legislature; and the general intention to be inferred from the Bill is that the proposed executive government of Ireland (except so far as the powers of government are reserved to the Imperial Parliament or the Imperial executive), would be exercised through ministers responsible to the Irish Legislature in a manner analogous to that in which the administration is carried on in colonies possessing what is called responsible government.

The determination of the powers and functions of the Irish Ministers seems under this scheme to be left to the legislative body of Ireland. That body, of course, might determine that the executive officers or ministers should not be qualified to sit therein, just as by section 6 of article 1 of the Federal Constitution of the United States, no person holding any office under the United States shall be a member of either House during his continuance in office. With the consent of the Lord-Lieutenant they might make the relations between the legislative authority and the executive authority in Ireland as nearly similar as possible to those existing between the Senate and the House of Representatives in the United States and the Federal Government.

There is, indeed, much to be said for the complete separation of the Legislature and the members of the