THE IRISH CONSTITUTION.

[TO THE EDITOR OP THE " SPECTATOR."1

Sie,--Section I. of the "Draft Constitution of the Irish Free State," as published on Friday, June 16th, relates to what are called " Fundamental Rights," and is apparently modelled, at least as to some of its provisions, on what are known in the Constitutions of many, if not all, of the forty-eight American States as the " Bill of Rights " or "Declaration of Rights." Article 2 of this " Section I." commences thus :—

" All powers of government and all authority, legislative, executive and judicial, are derived from-the people, Sze."

A similar declaration is in the Massachusetts Constitution of 1780, thus (Article V. of Part the First) :- " All power residing originally in the people and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive or judicial, are their substitutes and agents and are at all times account- able to them."

The Alabama Constitution (1819) :—" All political power is inherent in the people . . . and therefore they have at all times an inalienable right to alter, reform or abolish their form of government. . . ."

Colorado (1876) :—" All political power is vested in and derived from the people." . . . " The people of this State have the right . . . to alter and abolish their constitution, &c." Wyoming (1889) :—" All power is inherent in the people. . . . They have at all times an inalienable and indefeasible right to alter, reform or abolish the government in such manner as they may think proper."

Oklahoma (1907) :—" All political power is inherent in the people and government is instituted for their protection, &c.; they have the right to alter or reform the same whenever the public good may require it."

These citations, taken at random from the constitutions of five of the forty-eight States, which were adopted at varying periods of the history of the United States, establish, I think, the doctrine, at least for that country, that the people at all times have control of their constitutions of government because they are inherently unable to divest themselves of that control.

But there is another principle laid dawn by ex-Chief Justice Bradley in the following language. He says:— " The principles of American State Constitutional law, as settled beyond dispute, are:- 1. That the people are sovereign.

2. That they act by a majority vote.

3. That they change a State Constitution through a conven- tion and vote of a majority of the people at the polls. such is the American method of change."

This eminent jurist was then considering only the -subject of changing an established constitution. He might have gone further (had it been necessary) and declared that the establish- ment of a constitution in the States has always been by means of a convention of delegates elected for that express purpose under the authority of the existing government, which authority was exercised in the passing of an Act (or law) designating the time, places and method of electing the dele- gates and also making provision for their assembling to trans- act the business of passing a new constitution or of altering the old one and also making the necessary arrangements for the taking of a referendum upon the new constitution.

" At the time of the revolution in 1776 the government of the colony (of Massachusetts) was administered by an elective

Assembly called the ' General Court,' which derived its Parlia- mentary powers from the charter of King Charles I. On February 28th, 1778. this Assembly drafted a constitution which was designed to supplant the royal charter and submitted it to the direct vote of the people of the Commonwealth, by whom it was rejected by a majority of five to one. . . . The General Court then asked the people to say whether they desired the calling of a convention charged with the duty of drawing up a constitution, and, if so, to elect their delegates for that purpose." (Referendum among the English- Macmillan, 1912.)

By referendum rote, the question was answered in the affirma- tive, and the existing constitution of Massachusetts, after ratification by the people at a referendum, is the result of the work of that convention, with some amendments which have been made from time to time as altered social and other condi- tions have prompted them.

The " Draft Constitution of the Irish Free State," while declaring that " all authority is derived from the people," does not appear even to declare that it owes its own existence to that source. It seems to have been the handiwork of a number of persons working in the dark behind the scenes and there coming to some sort of an agreement as to what aro "Funda- mental Rights " and what shall be the future political regime. Can anyone say that " the people" do not prefer a monarchical form of government to the scheme which is outlined in this " draft "? Have " the people " any choice given to them? Have they had anything at all to say in regard to this scheme? If not, what becomes of the declaration that " all authority is derived from the people "? Is not a constitution when written the expression of " authority "? And, above all, is it not reasonably certain that disaffected elements in Ireland, perhaps even in the Dail Eireann (or whatever other name may be attached to the Irish Parliament), will assert that the " consti- tution being without authority" (not being "derived from the people") can be lawfully set at defiance?

Assuming that there will be a ratification of this constitution by the legislative assembly(?), the members of which were elected at or about the time of the publication of the constitu- tion, how can it be said that this assembly derives its authority in that behalf " from the people," seeing that " the people" knew nothing of it until after the election? And again, if " all powers of government are derived from the people," what has a foreign government to do with it, unless, possibly, to give its assent to that which would be valid without such assent?—I am,

P.S.—According to the American theory, there can be no ratification except by referendum : by that method alone can the authority of " the people " be exercised when constitutional questions are in issue.