It is perhaps more open to question whether the words of the 1893 Bill designed to secure to the subject “the equal protection of the laws,” and to prevent legislation discriminating against Englishmen and Scotsmen(29) under certain circumstances, ought not to have been repeated. The words “equal protection of the laws” have been interpreted in the United States in such a way as to secure that legislation, particularly in the exercise of the “police power,” shall be impartial in its operation.(30) On this interpretation, they would for example, have prevented an Irish Legislature from exempting Catholic convents which are used as workshops from the operation of the Factory Acts. But that might be secured in another way, and the words might, if adopted, have operated to prevent much useful legislation. It seems likely enough that discriminating legislation, in so far as it tended to prevent a particular class of persons from residing in Ireland or penalised non-residents, would be held invalid in any case on the ground that it conflicted with the reservation to the Imperial Parliament of such subjects as “trade” and “naturalization.”(31) And, as regards non-residents, it must be remembered that the grant of legislative powers can only be exercised “in respect of matters exclusively relating to Ireland or some part thereof”—words which may be found to be of considerable importance.
The same may be said of the omission in the Bill, to provide, as its predecessor of 1893 provided, for the maintenance of securities for the liberty of the subject and the preservation of his common law rights. It is almost impossible to do this without entering on an uncharted sea of litigation. Modern legislation, especially social and industrial legislation, infringes common law rights at every point. I have ventured elsewhere(32) to describe the modern tendency of industrial legislation as a tendency, inverting Maine’s famous aphorism, to advance from contract to status, that is to say, to limit to an increasing extent the contractual freedom of the worker, and to confer on him a certain status by the protection of him against himself.(33) The greater part of our Irish land legislation impaired the obligation of contracts. Professor Dicey criticised the Bill of 1893 for not going further than it did in its incorporation of clauses taken from the Constitution of the United States with the intention of securing the common law rights of the subject. But it may be remarked that many of those clauses have proved an almost intolerable limitation upon the power of the legislatures to deal with the regulation of trade and industry, so intolerable that the Supreme Court has of late made a liberal use of the fiction of “the police power”(34) to enable the legislatures to pass legislation which otherwise might have seemed to “abridge the privileges” of citizens of the United States or deprive them of “liberty or property without due process of law.”(35)