Darrell Figgis

“ 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.” ”

“ 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. ”

“ When such an organisation of the social and economic life of the Nation has been achieved, then, and only then, will it be possible to say that all parts of the life of the Nation have been brought within the reach and authority of the Constitution. ”

“ To attempt by arbitrary provisions to create an Executive that does not accurately and at all times reflect the Legislature (on whatever party lines that Legislature be composed) is automatically to remove that Executive from the continuous control of the Legislature. And it is surely the essential business of a Constitution to insist that that control be emphasised, not diminished. Otherwise, whatever be the intention, the Executive will become irresponsible, government will fall into the hands of rulers who can only with difficulty be removed, and constant friction will ensue. ”

“ Indeed, it is not unlikely that in the future the Senate and the people (by Referendum) will often be found in practical alliance against any attempt of the Dail to arrogate power to itself. The Senate has the power to make it so—a power of greater worth to it, and to the nation, than any constitutional right arbitrarily to obstruct legislation or to make legislation abortive. ”

“ Nothing has been said about a Legislature—nothing about the people of Canada. The Constitution begins at once with an Executive Authority which nothing has brought into being, and which therefore exists of its own right, original and indefeasible, all things else in the Constitution depending from it. The pyramid is hung from heaven, for the philosophy of the plan is to be found in the mediaeval myth of the Divine Right of Kings. ”

“ 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. ”

“ A nation may confer a Constitution on itself, and that Constitution may contain no declaration that the people are sovereign; but the fact that the nation did so make their own Constitution is itself a declaration of sovereignty. Declarations of sovereignty in the body of a Constitution may be very wise; and they are always pleasant; but they are not necessary.
Similarly, a nation may make a Constitution for itself, and in that Constitution confer the chief executive authority on a person to be known as a king ”

“ Nor is Ireland, indeed, what they are now. Canada, for example, and Australia, are English Colonies, first established by white men in a coloured population. The greater part of these white men draw their traditions and inspiration, their habits of thought and habits of public conduct, from the rootstock of the English nation. They look to England as their mother-country. But Ireland is an ancient nation and a mother-country in her own right. She has herself peopled the earth with her children. ”

“ It is the duty of a Constitution, not merely to provide for the present, but to leave itself lissom and flexible for the development of the future. If those developments can in any way be foreseen, it is its duty further, to indicate them by allowing specifically for them, without of necessity pledging the future to them. How far these indications may profitably be carried is a question not so easy to answer. Times differ. Constitutions made at a time of fixed social and political ideas, are necessarily fixed in their provisions. ”

“ The full height of nationhood is the recognition of sovereignty; and the completest act of sovereignty of which a nation may be capable is to confer its Constitution on itself. With the exception of Great Britain, none of the other members of the Community were, when their constitutions were enacted, capable of this. Each of them received its Constitution as bestowed, not by the Act of its own Legislature, but by the Act of a suzerain Legislature. And that shortness of national stature remained until it was removed by the addition of Ireland to the Community. ”

“ 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. ”

“ They will not be able to do what they will, and they will not be able to act as they will, for they must obey the requirements and act within the limits of the Constitution, as prescribed by the first Assembly, which alone was of full sovereignty. For this reason every nation has gone to great care to choose persons of special competence for the body which is to act as a Constituent Assembly—the body, indeed, which is to act as the first, and, so long as that Constitution shall remain, the last Sovereign Assembly of the nation. ”

“ For it is a sound rule that the people are generally better than their representatives—wiser of counsel, more disinterested of judgment—and it is therefore provided in the Constitution that there shall be an Assembly of Representatives, but that the people may require of that Assembly that laws be referred to them for final decision, or that laws be made to suit their desire. ”

“ Whether one believes ardently in the faith that the will of a people should under all circumstances prevail, and that the forms of Government should at all times be submissive to that will, is indifferent. ”

“ 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. ”

“ And as it is always the Executive which tends naturally, where it does not intrigue deliberately, to upset that order, by gathering all power into its hands, obviously the provisions respecting the formation and maintenance of Executive Power are the most critical part of every Constitution. ”

“ The act of prescribing a Constitution being the highest act that a nation can make, care has always been taken to make it the fullest and the freest. For, once done, it cannot be undone, except at great trouble, and perhaps as the result of great convulsion. ”

“ 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. ”

“ The mere existence of the Referendum has proved to be a check on legislation that might otherwise have been carried by parliamentary manœuvring for votes. The people, in actual fact, have proved to be both purer and more conservative than their representatives; and the tendency towards economy in the expenditure of public moneys has, in the main, been not the least benefit it has conferred. People are little inclined to study bills debated in the national assembly when they realise that they are powerless to change or check the measures it may pass. ”

“ But they live in the consciousness of a nation to-day; and therefore to-day they are a factor, to neglect which would be to neglect a prime element without which neither the present nor the future may be understood. Only the sentimentalist waves out of sight considerations that are unpleasant to him. The realist faces every element of being, conscious or unconscious; for he knows that only out of the sum of all those elements can life proceed, or creation begin. ”

“ One need only believe with l’Abbé Coignard that “a people is not susceptible to more than one form of government at the same period,” to believe, further, that if one asserts the derivation of all power and authority from the popular will, if that will be once fairly and honestly ascertained, it then follows that the will of the people is sufficient [Pg 6] to itself, and that all forms of government must be made malleable to it. ”

“ For if the passing of a Constitution is an act of full sovereignty, and if that Constitution, being a Fundamental Law, restricts and limits all future law-making, then the assemblies to come which will pass those future laws will not be sovereign. ”

“ But by making the entire country one constituency for the election of the Senate, no merely local interest will have power to secure election. And thus it will be possible to find a place for the Senatorial Person from, as the Constitution reads, “citizens who have done honour to the nation by reason of useful public service, or who, because of special qualifications or attainments, represent important aspects of the nation’s life.” These persons are to be elected by Proportional Representation ”

“ The power to throw out their representatives at the next general election is only a limited form of freedom, and it is illusory in face of the fact that those representatives are generally chosen by powerful political organisations which take care to select pliant and obedient tools. Only at times of great crisis does the wish of the people become vocal; and even then it is more usually neglected than not. But with the Referendum in their hands (especially with the Initiative added to it) the will of the people is always present. The people can hasten legislation where it moves [Pg 34] slowly. ”

“ 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. ”

“ A people must therefore tolerate them with good humour; and keep them under proper control. And when such representatives have been chosen, they together form an organised body for the making of laws, and for the supervision and control of the execution of such laws.
Obviously, then, once a Constitution has stated the sovereign source of all authority, and defined the fundamental rights of that sovereignty, it is essential that it should prescribe the manner in which laws shall be made for the [Pg 26] peace, order and good government of the whole people. ”

“ But the pride is the same; the sense of possession is essentially the same, obscured though it may have been by the causes of difference; and when a new alignment of political parties has blent the two points of view into one outlook, and made the whole consciousness to merge in one, the living factor of ancient nationhood will arise with a new strength. ”

“ 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 ”

“ For from earliest times mankind has desired to call into its special councils those who have distinguished themselves in the conduct of its affairs. Folk may disagree with such persons, but they defer to them and hear them. What may be called the Senatorial Person is a recognised factor in the history of all nations. In the push and jostle of entry to the First House—where special and local interests are represented—such a Senatorial Person is most likely to be thrust aside, [Pg 28] even if he or she be inclined to mingle in the fray. He is consequently lost to the councils of the nation. ”

“ 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. ”

“ The Chamber itself should be its own Committee for the selection of Ministers, on the recommendation of the President of the Council, with whom they would have to work. This provision still further removes the Executive from the control of the Chamber. And so the order of responsibility is inverted, which the plan of the Constitution elsewhere so constantly emphasises. For the People may at all times, by the Referendum and the Initiative, control the Legislature. But the Legislature cannot, under these provisions, at all times and so simply control the Executive. ”

“ Every University in the Irish Free State/Saorstat Eireann shall be entitled to elect two representatives to the Senate/Seanad Eireann. The number of Senators, exclusive of the University members, shall be fifty-six. A citizen to be eligible for membership of the Senate/Seanad must be a person eligible to become a member of the Chamber/Dail Eireann, and must have reached the age of thirty-five years. Subject to any provision for the constitution of the first Senate/Seanad the term of office of a member of the Senate/Seanad shall be twelve years. ”

“ 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. ”

“ It is therefore the plain duty of every Constitution to keep the Executive simple and flexible, responsive always to the will of the Legislature, as the Legislature should always be responsive to the will of the people. Crises will arise in the history of every nation when the powers of the Executive require to be strengthened ”

“ All judges shall be independent in the exercise of their functions, and subject only to the Constitution and the law. A judge shall not be eligible to sit in Parliament/Oireachtas, and shall not hold any other office or position of emolument.
Article 69.
No one shall be tried save in due course of law and extraordinary courts shall not be established. The jurisdiction of Courts Martial 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 prescribed by law. ”