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 Const.i.tution 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 subst.i.tution of the present provision, against which the requirements of justice and the entire experience of the Commonwealth rises in evidence.

VIII.

FUNCTIONAL COUNCILS.

It is the duty of a Const.i.tution, 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. Const.i.tutions made at a time of fixed social and political ideas, are necessarily fixed in their provisions. Const.i.tutions made at a time, such as the present, when social and political ideas are rapidly shifting and changing must needs indicate the likelihood of change in certain directions; and make allowance for such changes. It is therefore striking to notice that in nearly every Const.i.tution made during and since the Great War such indications are scattered freely. And from that fact alone the historian of the future could tell with a.s.surance that these were years of rapidly changing conceptions.

We in Ireland cannot but have a share in these changes. Fortunately for us, heirs of an ancient tradition, in looking forward we look backward, and in looking backward we look forward. We may, and often do, use phrases identical with those used by other nations; but in many cases it will be found by the thoughtful student that what to them is often social theory, to us is a slumbering historic memory. Very frequently this will be found to be the case.

An indication of this kind, that looks both forward and backward, is to be found in Article 44 of our Const.i.tution. This article has aroused considerable interest. It reads:--

"The Oireachtas may provide for the establishment of Functional or Vocational Councils representing branches of the social and economic life of the Nation. A law establishing any such Council shall determine its powers, rights and duties, and its relation to the government of the Irish Free State."

As a matter of curious interest it happens that the German Const.i.tution contains an article very similar to this; but the conception had been in development in Ireland for some years. It had, indeed (as I endeavoured to shew in a little book on _The Gaelic State_, published in 1917), been a slumbering memory of the Irish Nation during the centuries when the characteristic political conceptions of the people were frustrate and idle, as they may now be put into practical development. It had been worked out in practical detail for one of our largest and most important industries in the Report on Sea Fisheries of the _Commission of Inquiry_, published in 1921. And it had actually, though imperfectly, been in operation for another great industry since 1896 in the Council of Agriculture.

What, then, are these Functional (or Vocational or Occupational) Councils for which provision is made, and on what political or social conception do they rest? One need not travel outside the present draft Const.i.tution to discover the need for them. For in this Const.i.tution, as in most const.i.tutions, the people are, outside this one Article, considered in only two of the three relations that go to make up their lives, and which therefore const.i.tute the complete life of the Nation. All the persons of the State are considered either as individuals or as citizens. But these two descriptions do not exhaust their lives. In addition to being individuals and citizens they are also workers in some craft, industry, trade or profession. Indeed, it is seldom they have time to be individuals, and it is seldom they are reminded that they are citizens.

For good or for ill, these are only occasional parts of their lives. But they are never permitted to forget the parts they are required to play in the social and economic life of the Nation.

The Const.i.tution establishes their rights as individuals putting these rights beyond the reach of interference either of those who make or those who execute the law. It also establishes their rights as citizens, certifies the manner of their action as citizens, and derives all authority in the State from those rights and actions. But these are only the lesser, however supremely important, parts of our lives. The greater part of our days is, for each of us, packed with the thoughts are cares of our functional lives. We are more frequently, in the intake and output of our lives, blacksmiths or architects, or whatever else, than we are individuals or citizens. Have we not rights and duties there too, both for ourselves and to the Nation; and should not the Const.i.tution make provision for this, the larger part of our lives, as well as for the lesser parts? Can provision be said to have been completely made either for our own lives or for the interplay that const.i.tutes the life of the Nation if this aspect be neglected?

We are faced at once with a difficulty. Seeing that we have the experience of it, it is easy to perceive how we can be represented in the State as citizens. How can we be represented in the State in respect of our functions? To answer this question one may turn to an instance that lives before us, an example from elder days when such an order of society was familiar. For in old Ireland (as in other nations) guilds were a recognised form of the industrial life of the nation. They were also, though not known by that name, a recognised form of the professional life of the Nation. And as a relic of those times we have to-day what is in effect a guild of Lawyers. The lawyers of Ireland, for example, are organised as a whole, with a Council representative of the profession as a whole. That Council, representative of all who practice as lawyers, is a responsible body, not only to the lawyers who are represented in it, but to and in the State on behalf of the legal profession. It is responsible for the honour and good conduct of lawyers. It is responsible for the economic maintenance of its const.i.tuents. No lawyer is allowed to practice except by consent of the Legal Council--that is to say, except by the consent of all other lawyers. The legal profession as a whole--in the legal sense, as a Person--protects its own honour, protects the individual lawyer, protects the public interest (in theory, at least), and requires a guarantee of efficiency and rect.i.tude from every lawyer before he is allowed to practice his profession.

So it was in ancient Ireland. At that time, when the a.s.sembly of the Nation met, the lawyers, or 'brehons,' met in a Council of their own. The administrative heads of each unit of local government met in a Council of their own. The Recorders, or _Seanchaidhe_, of the local petty states, met in a Council of their own. And each Council was responsible for the administration of its own concerns. Each Council drew up its own regulations, for the conduct of it own duties in the State, and for the protection of its own 'functional' rights. Each Council, in the modern legal phrase, was a responsible 'Person,' and was by the State, as it existed at that time, entrusted with the conduct and administration of its own affairs, subject to the general execution of the public interest.

It lay with the a.s.sembly of the Nation to co-ordinate the whole in the public interest. Whether this was or was not done effectively in olden times is indifferent to the present problem of Functional Councils in the modern State, with its better organisation and more perfect national sense. The problem of organisation is very real, but it does not affect the necessity of functional representation and functional responsibility in the State. It is, for example, absurd that persons unfamiliar with architectural problems, however highly placed in the nation they may be, should be entrusted with architectural decisions that require special training and knowledge. It is equally absurd that a person unfamiliar with the needs of the Fishing Industry should, because for political reasons he should happen to be chosen as Minister of Fisheries, make proposals and be responsible for decisions that affect the present livelihood of fishermen and the successful future of the Fishing Industry. These matters must be reposed in the care of representative Functional (Occupational or Vocational) Councils, that should be required to render account, on the one hand, to the Function which they represent, and, on the other hand, to the State on behalf of that Function.

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 Const.i.tution. It may be objected that these matters lie in the future. That is true. The Const.i.tution allows for them, and by allowing for them indicates that they should be, and probably will be, the natural development of the future of the Irish Nation.

Draft Const.i.tution of the Irish Free State

PRELIMINARY.

These presents shall be construed with reference to the Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the Schedule hereto annexed (hereinafter referred to as "the Scheduled Treaty") which are hereby given the force of law, and if any provision of this Const.i.tution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty, it shall, to the extent only of such repugnancy be absolutely void and inoperative and the Parliament and the Executive Council of the Irish Free State shall respectively pa.s.s such further legislation and do all such other things as may be necessary to implement the Scheduled Treaty.

SECTION I.--FUNDAMENTAL RIGHTS.

ARTICLE 1.

The Irish Free State/Saorstat Eireann is a co-equal member of the Community of Nations forming the British Commonwealth of Nations.

ARTICLE 2.

All powers of government and all authority legislative, executive, and judicial, are derived from the people and the same shall be exercised in the Irish Free State/Saorstat Eireann through the organisations established by or under, and in accord with, this Const.i.tution.

ARTICLE 3.

Every person domiciled in the Irish Free State/Saorstat Eireann at the time of the coming into operation of this Const.i.tution who was born in Ireland or either of whose parents was born in Ireland or who has been so domiciled in the area of the jurisdiction of the Irish Free State/Saorstat Eireann for not less than seven years is a citizen of the Irish Free State/Saorstat Eireann and shall within the limits of the Irish Free State/Saorstat Eireann enjoy the privileges and be subject to the obligations of such citizenship, provided that any such person being a citizen of another State may elect not to accept the citizenship hereby conferred; and the conditions governing the future acquisition and termination of citizenship in the Irish Free State/Saorstat Eireann shall be determined by law. Men and women have equal rights as citizens.

ARTICLE 4.

The National language of the Irish Free State/Saorstat Eireann is the Irish language, but the English language shall be equally recognised as an official language. Nothing in this Article shall prevent special provisions being made by the Parliament/Oireachtas for districts or areas in which only one language is in use.

ARTICLE 5.

No t.i.tle of honour in respect of any services rendered in or in relation to the Irish Free State/Saorstat Eireann may be conferred on any citizen of the Irish Free State/Saorstat Eireann except with the approval or upon the advice of the Executive Council of the State.

ARTICLE 6.

The liberty of the person is inviolable, and no person shall be deprived of his liberty except in accordance with law. Upon complaint made by or on behalf of any person that he is being unlawfully detained, the High Court/Ard Chuirt and any and every judge thereof shall forthwith enquire into the same and may make an order requiring the person in whose custody such person shall be detained to produce the body of the person so detained before such Court or Judge without delay and to certify in writing as to the cause of the detention and such Court or Judge shall thereupon order the release of such person unless satisfied that he is being detained in accordance with the law.

ARTICLE 7.

The dwelling of each citizen is inviolable and shall not be forcibly entered except in accordance with law.

ARTICLE 8.

Freedom of conscience and the free profession and practice of religion are inviolable rights of every citizen, and no law may be made either directly or indirectly to endow any religion, or prohibit or restrict the free exercise thereof or give any preference, or impose any disability on account of religious belief or religious status, or affect prejudicially the right of any child to attend a school receiving public money without attending the religious instruction at the school, or make any discrimination as respects State aid between schools under the management of different religious denominations, or divert from any religious denomination or any educational inst.i.tution any of its property except for the purpose of roads, railways, lighting, water or drainage works or other works of public utility, and on payment of compensation.

ARTICLE 9.

The right of free expression of opinion as well as the right to a.s.semble peaceably and without arms, and to form a.s.sociations or unions is guaranteed for purposes not opposed to public morality. Laws regulating the manner in which the right of forming a.s.sociations and the right of free a.s.sembly may be exercised shall contain no political, religious or cla.s.s distinction.

ARTICLE 10.

All citizens of the Irish Free State/Saorstat Eireann have the right to free elementary education.

ARTICLE 11.

The rights of the State in and to natural resources, the use of which is of national importance, shall not be alienated. Their exploitation by private individuals or a.s.sociations shall be permitted only under State supervision and in accordance with conditions and regulations approved by legislation.

SECTION II.--LEGISLATIVE PROVISIONS.

A.--THE LEGISLATURE.

ARTICLE 12.