The earlier Home Rule Bills were characterised by a most elaborate code of rights which the Irish Legislature might not infringe. Its main provisions might be classified as having three objects in view: (1) The protection of the subject in life, liberty, and property; (2) the prevention of legislation discriminating against any part of the United Kingdom, and (3) the preservation of the existing rights and privileges of the Protestant community in Ireland. In one form or another almost all these principles are to be found embodied in the Constitution of the United States, and in the case of the first of them a clause of the famous 14th Amendment was actually incorporated, with some slight alterations, in Sub-section 8 of Section 4 of the Bill of 1893, according to which the powers of the Irish Legislature should not extend to the making of any law
“whereby any person may be deprived of life, liberty, or property without due process of law in accordance with settled principles and precedents or may be denied the equal protection of the laws or whereby private property may be taken without just compensation.”
These impressive words bristled with legal controversy. Did they, for example, secure to the subject the preservation of the right to trial by jury? In the States of America it has been authoritatively laid down(28) that, in the absence of further defining words in the State constitutions, they do not. Such procedure is indeed safeguarded in the Federal Courts, but only in consequence of express words. In the case of the States, Cooley, a great authority, says that “whatever the State establishes will be due process of law,” and Story regarded the words by themselves as simply securing a judicial hearing—that is to say, as they stand they merely secure the separation of legislative and judicial functions and prevent the State Legislature from passing laws which are in effect judicial decrees.
What the words would really have secured to the subject in Ireland was very doubtful. The object of the draughtsman appears to have been to secure to the subject in Ireland all the protection of the law, including trial by jury, which he would have enjoyed at the date of the passing of the Bill, understanding by law both common law and statute law. If the Imperial Parliament had, subsequent to the date of the Act itself, passed legislation limiting trial by jury or other common law rights, this would, presumably, have provided the Irish Parliament with a new “settled principle and precedent,” enabling it to go further. In other words, the clause might have operated to secure a certain standardization of legislation as between the two countries.