At the same time a distinction must be drawn between the prerogatives relating to the exercise of Irish services and prerogatives which cannot be so defined. Some of the latter may be delegated to the Lord-Lieutenant by his patent, and these he will exercise not on the advice of the Irish, but of the Imperial, Government. Moreover, there are certain powers conferred by statute on the Lord-Lieutenant, or the Lord-Lieutenant in Council, such as the power of proclaiming disaffected districts under the Crimes Act, of suspending the operation of the Irish Habeas Corpus Act, and of controlling the constabulary, not all(49) of which will be exercisable on the advice of Irish Ministers. Prerogatives not so exercisable will no doubt be exercised on the advice of the Secretary of State for Home Affairs who is even now the medium of formal communications between the Lord-Lieutenant and the Crown. The Chief Secretary(50) will, of course, disappear altogether; he will be replaced by the Executive Committee. The Lord-Lieutenant will, of course, cease to be a member of the English Ministry; his position will be assimilated to that of a Colonial Governor, and his tenure fixed for a term of years so as to make his tenure of office independent, as it must be in the exercise of his new constitutional duties, of the fortunes of English Parties.
The constitution of the legislature itself calls for little comment. It follows with some fidelity the features of Mr. Gladstone’s Bills, but the substitution of a nominated Senate for the “Council” or “Order” elected on a property franchise is a new departure. Nomination of late has fallen into some discredit both in theory and in practice.(51) Colonial experience is not encouraging. Nomination by the Crown means in practice nomination by the Governor, on the advice of the Cabinet of the day, and Ministries in Canada and New South Wales have put this prerogative to such partizan uses as to reduce the Upper House to a very servile condition. When nomination is for life and not for a fixed term of years the evils of this system may be mitigated, but they are not removed. The one thing that can be said about the proposed Senate is that its powers in legislation are of such a limited character that an Irish Executive would be under little temptation to “pack” it. A Senate of only forty members compelled to meet in joint session a House of Commons of 164 members every second time that it rejects or objectionably amends a bill is not likely to prove a very formidable obstacle to legislation. But the nomination by the Executive is in any case somewhat objectionable, and it would seem better to provide that at the end of the first term of eight years the Senators should be appointed by some system of election, whether on a basis of proportional representation or otherwise.(52) But to their nomination for the first term by the Imperial Government I see no very cogent objection. Indeed, the expedient has much to be said for it, for the discretion, if wisely exercised, will enable the Imperial Government not only to secure to Irish minorities a degree of representation which no conceivable system of election could secure, but also to appoint men of moderate opinions—one immediately thinks of Sir Horace Plunkett—who, in the strife of extremists, might have no chance of election by either party. It has been argued in some quarters that a Second Chamber is wholly unnecessary, and the example of the single-chamber legislatures in some of the Canadian provinces has been cited. The argument, however, overlooks one really important function of the Senate, namely its duty to provide for the security of tenure of the Irish judges. Clause XXVII. provides that judges appointed after the passing of the Act shall only be removable on an Address of both Houses of the Irish Parliament, and, should the Senate refuse to concur in a demand by the lower House for the removal of a judge, there is no such means of overcoming its resistance in a joint session as is the case with legislation. This is well.