The Irish Constitution. Figgis Darrell
she permitted them to walk with their own feet. Not only in the actual provisions of these constitutions, but in their very conception and plan, drawn exactly according to English methods and from English experience, it is evident that a state of perpetual tutelage was imagined for the peoples to whom they were given.
That has now changed. The colonies have come to be nations, very jealous of their nationhood. They have grown with experience, have moved onward with time, and it would go hard with anyone who attempted to remind them of what, nevertheless, their constitutions are a continual reminder. The consequence is that the provisions of these constitutions cannot be enforced since they do not square with experience. They encumber the documents which contain them as so much dead timber. They are sometimes carelessly, and more often dishonestly, described as legal fictions. But they are not legal fictions. They are dead letters – dead timber which a wise woodman would soon hew away. Life and experience have outgrown them; and this growth finds expression – if, unfortunately, not the full expression that might at one time have seemed possible – in the present draft Constitution. For under her Treaty with England Ireland agreed to take equal rank in the Community of Nations with the other members of it. Specifically she accepted the “law, practice and constitutional usage” of Canada; and that constitutional usage implies, not the dead timber of the Canadian Constitution, but the living tissue of her constitutional experience.
These two causes, then, have joined together to produce the draft of the Irish Constitution. From them was created the original plan of the Constitution, according to which Ireland takes her place, not only generally among all nations in virtue of her ancient right, but specially in a certain confederacy of nations in virtue of a Treaty of Peace, signed between her plenipotentiaries and England’s plenipotentiaries, and approved by both legislatures. To the most casual glance, it is indeed a most modern and forward-looking document; yet it draws from so ancient a fountain-head. And the conjunction of these two may prove of searching value, if rightly used, to Ireland’s influence in the world – provided that there be peace at home, without which a nation is nought. That influence may not be of the same kind as one had hoped before the Treaty of Peace was signed. But even if it be not of the same kind, its measure need not be less. It cannot be so immediate; and that is loss; but it may with wisdom and firmness prove ultimately to be more extensive. Whatever the means, the end remains the same; and that end is the contribution in the comity of nations of the fruits of personality – without which neither men nor nations can plead a justification for life.
For when a nation such as Ireland joins a confederacy so composed, she by the mere fact of her addition transfigures the whole. This is not a fanciful figure of speech. It is a literal description of what has already occurred. In the case of no other nation of the Community, for example, has its advent been signalled by an International Treaty. That, in itself, is a transfiguration of the whole. Similarly, other nations of the Community had protested the co-equality of each and all; but the protestation had remained a protestation until it was formally declared for each and all by the claim made by and recognised for Ireland.
So it has proved in the very case of this Constitution. 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. For Ireland will receive her Constitution by the Act of her own Constituent Assembly, not by the Act of any suzerain Legislature. Whether the Constitution be or be not adopted by any other assembly neither gives nor detracts from the national authority it will possess. If it be so adopted, it will be adopted, not as giving it authority, but as the completing Act of ratifying the Treaty. That is to say, it will be adopted by the Parliament of Great Britain as concluding the interest of that Parliament in the international bargain of the Treaty; and it will be passed and prescribed by the Irish Assembly as giving it full force and effect in Ireland. And that is a full sovereign act. But, since all the members of the Community are declared to be co-equal, the advent of Ireland, therefore, has given the recognition of sovereignty to them all, and raised each to the full height of nationhood.
The consequences of this are at the moment difficult to foresee fully; but they are consequences that the addition of Ireland to the Community has created, though in the fullness of time they were ready for her advent. It is certain that they will reach far and strike deep, not only within the Community, but towards other nations, not members of the Community. Already as between the six full members of the Community the thought of Empire belongs to the past; and the word and feudal trappings will follow the thought. Indeed, though the foolish trappings remain, in the text of both the Treaty and the Constitution the word has already begun to be supplanted by the word Community. And though it be true that words are only words, it is equally true that words are the parasites of thought, and cling to the mind long after their original uses are forgotten. To cause the relinquishment of an ancient word is itself a liberal accomplishment of no mean sort, as psychologists know; and none can say where new conceptions will not lead when once the barrier of words has been broken down.
These are, however, considerations for the future; and the future is only for those who are worthy of it – and not always even for such. Already a considerable change has been wrought; and that change is registered with all its faults in the present draft Constitution. The nation that caused the change is the same nation still, in spite of sad scattering of its national strength. It is still an ancient nation: not a colony: never a colony: deeply conscious of its historic heirlooms and prescriptive dignities. Ireland is still a mother-country, fully resolved to employ her empire of memory and love for the purposes which she and it judge worthy. Her place and power in the Community will prove to be of no mean degree, and of no small meaning for the nations outside that Community, as well for the peoples and nations within it, if she rally her strength around her and prove worthy of her destiny. When she shall have conferred a Constitution upon herself, within the limits of her contractual obligation in the Treaty, she will not have foresworn her heritage (unless she elect to do so); she will not have diminished her strength (unless she choose to dissipate it); but she will be able by a persistent purpose, of which she has already given her pledges, to contribute in the future as she contributed in the past, with a security that has not been allowed her for many centuries, to the benefit of nations. And it is to this end I dedicate this little book.
The Irish Constitution
I
WHAT IS A CONSTITUTION?
During the early days of the second French Republic a customer entered a bookseller’s and asked: “Have you a copy of the French Constitution?” “We do not,” the bookseller politely replied, “deal in periodical literature.”
Now, to any student of history such a story is a sure indication of the time of which it is told. He need not inquire to know that the time was one of revolution, change, and unsettlement. He also knows the mind of the people of that time, for insecure conditions beget a nervous, restless fear. And these things are significant. They reveal a quality of constitution-making that is not always, or easily, remembered. For whatever changes may proceed in legislation – however many and rapid they be – as long as the Constitution, written or unwritten, remains intact, the State at least is stable and its foundations are secure.
Plainly, therefore, nothing should be written into a Constitution that is of a temporary, experimental, or questionable nature, or which should fall to the lot of ordinary law-making and the changing convenience of practice. A Constitution is that which is permanent, as far as anything in this world may be permanent. Even to amend it, or add to it, requires in all countries (except England, where the Constitution has not taken a written form) a procedure quite different from that of ordinary legislation. To change it, or recast it, requires a revolution. Such a revolution may not be accompanied by bloodshedding, or it may, but it is certainly accompanied by insecurity and unsettlement.
It should, therefore, be the business of constitution-makers to prescribe only what to them is fundamental and irrefutable; to lay down the secure foundations of their State;