Extracts from the general preliminary memorandum by John J. Hearne for the Irish delegation to the Conference on the Operation of Dominion Legislation

Secretary,

A preliminary examination of the Preparatory Memoranda circulated by the Dominions Office containing a survey of existing legislation 'affecting the Dominions' passed by the Parliament at Westminster will disclose how effectively that Parliament ruled and controlled the old British Empire through the operation of the Imperial statute. The question whether Imperial statutes passed prior to the 6th day of December 1922 apply to Saorstát Éireann has not been judicially determined, and it is unlikely that our Courts will be called upon to consider the constitutional issues involved in that question before the date on which the Sub-Conferences called for the present year will assemble. It is proposed, therefore, in the present memorandum to state such views as have been formed on the question itself and also on the larger question intimately bound up with it, namely, that of the legislative powers of the Oireachtas. Special references will be made to the Merchant Shipping Acts and the Colonial Laws Validity Act, 1865. These statutes are taken as cornerstone legislation in the old Imperial structure; they illustrate the system which is now obsolescent better than any other statutes what we know, and in addition they are amongst the special subjects for consideration at the forthcoming Sub-Conferences. The principles which representatives of the Irish Free State will be called upon to contend for at those Sub-Conferences are best considered in reference to them. There is little doubt that whatever advances in constitutional practice and whatever contributions to the new constitutional doctrines are made by or as a result of the forthcoming Sub-Conferences will be made upon the showing of the Irish Free State representatives, that is to say, upon their advocacy of the New Policy forming in the Commonwealth generally as a result of the special constitutional position of the Irish Free State. It is in the perspective of the Irish Free State Constitution, what it is and what it involves, that the contents of the entire Commonwealth conception are coming more and more clearly into focus. Theories and practices which linger on from the days of the British Dominions into those of the Commonwealth States are being subjected to critical scrutiny and reviewed in the light of that new international phenomenon and its frank implications. The facts relating to the establishment of the Irish Free State and the nature of the Pact on which it is founded have given to its Constitution an international character not shared in their origins by the Constitutions of the other member-States of the Commonwealth. In addition, the Irish Free State Constitution came into existence at a time when the movement towards constitutional development in Canada and South Africa had begun and indeed was well on its way. In its terms it reflected in some measure those progressive tendencies and was in fact based in certain fundamentals upon the Constitution of Canada and in others upon that of South Africa. The law, practice and constitutional usage governing the relationship of the Crown and of the Imperial Parliament to the Dominion of Canada were to govern their relationship to the Irish Free State. Besides the reference in the Treaty of 1921 Canada is specifically mentioned in three Articles of our Constitution, Articles 41, 51 and 60. Canada was thus chosen as the model for the new Irish State because she of all the Dominions had outgrown her status and her Constitution. It is over a decade since President Wilson in his book 'The State' (revised in December 1918 by Professor Edward Elliott) stated that 'the law of the more developed English colonies, for example, though it is made by the enactment of their own Parliaments, is not law by virtue of such enactment, because those Parliaments are in the habit of being obedient to the authorities in London and are not themselves sovereign. The sovereignty which lies back of all law in the colonies is said to be the sovereignty of the Parliament of England' (page 91). The learned editor of President Wilson's treatise was not au courant with constitutional progress within the 1918 British Empire or in particular with the special advancement of the Federal Dominion of Canada. He was not aware of the facts which inspired the makers of our Constitution to model it in the image of the Canadian; but a glance at the Preparatory Memorandum now circulated by the Dominions Office will reveal that even ten years after the revision of the text of President Wilson's book some justification could even still be found for the view then so emphatically enunciated. The Statute Book of the British Parliament is crowded with imposing but antiquated legal structures in the shadows of which the new group of buildings - as it were - erected in the course of world reconstruction are lost to view. The Commonwealth will not appear to the world in its true perspective for the group of constitutional edifices which it is - each unit in the group, although not symmetrical with every other, yet splendidly proportioned to the ends and aims of all - unless and until the shadows cast upon it out of a dead age are lifted. 'The State', 'the Commonwealth', 'status' are spoken words. The written text of the statute law either belies them or gives them legal sanction, life and permanence. Step by step the written law must form up with the advances of the new constitutional doctrines. Else those doctrines in their strides forward leave behind a force which is always potentially available and which in a sudden mobilization may be used to hinder their development or destroy their principle. It is wholly right, therefore, that as the last criticisms of the old British Empire must be based upon the newest of the Constitutions in operation in the States which have succeeded it the first criticisms of the British Statute Book in its outlandish inconsistency with the powers of the Parliaments of the Commonwealth should be based also on that Constitution, what it is and what it implies, as at once their foundation and criterion.

It is submitted that Imperial statutes passed prior to the 6th day of December 1922 do not apply to the Irish Free State. By section 3 of the Irish Free State Constitution Act, 1922, it is enacted that if the Parliament of the Irish Free State make provision to that effect, any Act passed before the passing of that Act which applies to or may be applied to self-governing Dominions whether alone or to such Dominions and other parts of His Majesty's Dominions shall apply or may be applied to the Irish Free State in like manner as it applies or may be applied to self-governing Dominions. That section is based upon the assumption that Imperial Statutes passed before the passing of the Irish Free State Constitution Act, 1922, do not apply to the Irish Free State. It would accordingly appear that the provisions of the Merchant Shipping Acts which applied or could have been applied to the self-governing Dominions do not apply to the Irish Free State unless adopted in pursuance of the provisions of section 3 of the Irish Free State Constitution Act, 1922. It has been suggested that Article 73 of the Constitution operates as an adoption within the meaning of the said section 3 of the provisions referred to of the Merchant Shipping Acts and that the extent of such adoption is the extent to which, having regard to the provisions of section 735 and 736 of the Merchant Shipping Act, 1894, the Parliament of the Irish Free State could itself have legislated in regard to merchant shipping. I do not think that Article 73 is at all open to that interpretation. The Article was enacted by the Parliament of the late United Kingdom of Great Britain and Ireland in the same statute as that in which the section relating to the power to adopt was enacted. It seems to me that the true construction of Article 73 in this connection is that it carries over those provisions of the Merchant Shipping Acts which were in force in the late United Kingdom of Great Britain and Ireland at the date of the coming into operation of the Constitution. If that view of the construction of Article 73 be correct the Irish Free State has power in pursuance of that Article to repeal or amend in any way it considers desirable the provisions of the Merchant Shipping Acts so carried over. It has power, in other words, to legislate in regard to merchant shipping in like manner as upon any other matter subject only to the Constitution and the Treaty. I do not think, however, that Article 73 is at the root of the problem which presents itself for solution here. The problem raises the entire constitutional issue of the legislative power of the Oireachtas. That issue will have to be approached through a consideration of the situation which resulted in the Treaty and the Constitution as well as of the situation which the Treaty and the Constitution created.

The view of the Treaty as an agreement between two independent nations needs no emphasis. Whether that is the true conception of the position from the point of view of British legal theory is not material to the purpose of this memorandum. Whatever, moreover, may have been the nature of the agreement contained in the Treaty I think that the affect of Article 1 of that instrument was to create 'an independent State' (Murnaghan J. Alexander v Circuit Judge of Cork 1925 2. I.R. p. 170).

In theory there can be no limitation of the legislative power of an independent state. 'Within its own local bounds the sovereign power of each nation is absolute so long as it subsists. At all events it must be regarded as absolute by its own courts of justice. It may, no doubt, be so tyrannical as to provoke resistance at home, or so arrogant and indifferent to the interests of other states as to provoke war from abroad but as long as it exists courts of justice cannot refuse to put in force its clearly expressed will' (Stephen's History of the Criminal Law of England Vol. II pp. 36 and 37). In practice, however, considerations of policy and expediency necessarily restrict in various ways the exercise of the full legislative competency of every State.

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The effect of these sections has been frequently stated to be a very serious limitation of the legislative powers of the self-governing Dominions. And it has been argued that upon the adoption (by enactment of the Oireachtas) by the Irish Free State of the provisions of the Merchant Shipping Acts which apply or could be applied to the self-governing Dominions these sections would operate automatically and that the provisions so adopted could only be amended by the Oireachtas to the extent limited by section 735 of the Merchant Shipping Act, 1894. It is added that so limited a power of amendment is of very little practical value. The argument embodies the view of sections 735 and 736 of the Merchant Shipping Act, 1894, which has been consistently entertained and forcibly advocated by successive law officers of the British Government. In reply to that argument I would point out that it is difficult to see how sections 735 and 736 could operate to limit the legislative power of the Oireachtas in the way suggested unless those sections were themselves adopted by enactment of the Oireachtas under section 3 of the Irish Free State Constitution Act, 1922. I am unable, moreover, to agree that the legislative powers of the Oireachtas in the matter of navigation and shipping depend so completely upon sections 735 and 736 of the Merchant Shipping Act, 1894. Both sections are affirmative, not negative. So far from restricting the power to legislate, they confer certain specific legislative powers on Dominion legislatures and cannot be construed as depriving Dominion legislatures to which they apply of all or any of their antecedent legislative competency. Section 735 empowers a Dominion legislature to which it applies to repeal as regards such Dominion certain provisions of the Merchant Shipping Act, 1894, which apply to such Dominion. That is not either in terms or by implication a limitation of the legislative competency of such Dominion. It amounts rather to the conferring of a power which without the provisions of that section it might previous to the year 1926 have been contended that a Dominion did not have or at least could not exercise. There is no rule of interpretation upon which the argument that the provisions of that section limit the legislative competency of the Dominion can be sustained. Moreover, did such a rule exist, and were such a restrictive meaning to attach to section 735, the further question would arise as to whether a provision limiting the competency of Dominion legislatures enacted in a statute of the year 1894 could operate as a limitation of the legislative competency of a coequal member of the Commonwealth of Nations in the year 1922 or after.

Neither can sections 735 and 736 be regarded as links designedly forged for the purpose of fastening Dominion legislatures more closely to the Imperial Parliament or for strengthening the control of that Parliament over the machinery of administration and Government in the Dominions.

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The real question, however, with which our representatives at the forthcoming Sub-Conference will be concerned is this: what, apart from section 3 of the Irish Free State Constitution Act, 1922, are the legislative powers of the Oireachtas in regard to the subject of merchant shipping?

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Neither the Treaty nor the Constitution contains any provision in terms that the Irish Free State is a Dominion. But Article I of the Treaty determines what its constitutional status under that instrument is to be. The relationship of the Irish Free State to the Imperial Parliament and Government is defined in Article 2 to be that of the Dominion of Canada 'and' - the Article continues - 'the law, practice and constitutional usage governing the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State'. Are any limitations imposed upon legislative powers of the Irish Free State by reason of its constitutional status as defined in Article 1 and of the relationship defined to exist between it and the Imperial Parliament by Article 2 of the Treaty? Is there in the constitutional make-up of the Irish Free State any disability to legislate arising out of status? To speak of a disability to legislate arising out of the status of 'an independent State' seems to do violence to the plain meaning of words. Yet the student of British constitutional history is familiar with the fact of a long drawn-out controversy as to the nature and extent of the legislative powers of the Parliaments of Dominions which are by their definition autonomous. The character of that controversy has been undergoing a gradual metamorphosis and what began as a legal discussion of status and of principles governing the interpretation of statutes has been continued as a political discussion of practical measures for securing uniformity in administration in matters of common concern to the 'Imperial' Parliament and to the members of the Commonwealth of Nations.

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A rapid succession of developments in the constitutional relationship between the Dominions and the 'Imperial' Parliament has necessarily resulted in a situation in which the theory of the law does not fit the facts and is frequently even after the most ingenious constructional effort incapable of adjustment with them. The expression 'constitutional practice' invented to denote the category into which prevailing usages (not covered by Imperial statute) in the Dominions were grouped has come to be used in a new acceptation. Under it have been designated every new constitutional departure and development. So much so that if it be added here that the expression 'constitutional practice' includes in its meaning alike every transgression by the Dominions of the provisions of Imperial statutes applying to them and every trespass by their legislatures beyond the limits sought to be set to their legislative power it becomes clear that practice rather than statute is the only real criterion of actual relationship between the self-governing dominions and the Imperial Parliament.

It has been uniformly sought to insist upon two limitations of the positive legislative competency of the members of the Commonwealth of Nations. The first is expressed to be as follows:- The laws of such members - except where extra-territorial operation is given to them by the 'Imperial' Parliament - operate only within the territorial area of such member.

 A Dominion has power to make laws for the peace, order and good government of the Dominion either generally (as in the case of a unitary constitution like the Irish Free State) or with regard to specific subjects (as in the case of a Dominion with a federal constitution). It is nowhere expressed in a constitution of any member of the Commonwealth of Nations that there is any territorial limitation to the operation of a law made by such member. It appears to me that there may be cases in which it is necessary for the peace, order and good government of a member of the Commonwealth of Nations that such member should be able to pass a law to operate extra-territorially; and that the words of the constitution of such member are wide enough to sanction extra-territorial operation of laws made by the legislature of such member in such cases. I think therefore that the limitation sought to be imposed on the positive legislative competency of the legislature of a member of the Commonwealth of Nations ought to be expressed in the terms of the constitution itself of such member, namely that the operation of the laws of such member is limited to the purposes of peace, order and good government. It follows that an Act of the Oireachtas is not necessarily ultra vires if it be extra-territorial.

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The second limitation sought to be imposed upon the positive legislative power of a member of the Commonwealth of Nations has statutory foundation in the Colonial Laws Validity Act, 1865. The Act applies to all 'colonies', that is to say (according to the definition of a colony contained in the Act itself) to all Her Majesty's possessions abroad having a legislature as defined in the Act. By section 2 it is enacted that 'any colonial law which is or shall be repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate or repugnant to any order or regulation made under authority of such Act of Parliament or having in the colony the force or effect of such Act shall be read subject to such Act, order or regulation and shall to the extent of such repugnancy but not otherwise be and remain absolutely void and inoperative'. Section 3 of the Act is really a commentary upon section 2 and declares that no colonial law shall be or be deemed to have been void and inoperative on the ground only of its repugnancy to the law of England. The repugnancy must lie between the colonial law and the provisions of an Act of the 'Imperial' Parliament or an order or regulation made under such Act extending to the colony. Moreover, it is not enough that the colonial law and the Imperial Act both deal with the same matter and deal with it differently; they must be inconsistent with each other in the sense of being irreconcilably opposed. The colonial law may indeed go further than the Imperial Act; may, for example, require compliance with more stringent conditions than those under the Imperial Act dealing with the same matter and applying to the Colony; but it is not, therefore, necessarily repugnant. Furthermore it is not enough that the Imperial Act is worded so generally that it is capable of being construed as applying to the colony or that it is not in express terms limited in its application to the United Kingdom. The application to the colony must be clear and unequivocal by express words or necessary intendment; that is it must be incapable of being construed as not extending to the colony.

The question arises as to whether the Colonial Laws Validity Act, 1865, applies to the Irish Free State. In section 1 of the Act the word 'colony' is defined to include in that Act 'all of Her Majesty's Possessions abroad in which there shall exist a legislature' as therein defined. There exists a legislature (as defined in the Act) in the Irish Free State but in the year 1865 the Irish Free State was not one of 'Her Majesty's Possessions abroad'; it was at that time part of the then United Kingdom of Great Britain and Ireland. The framers of the Colonial Laws Validity Act, 1865, did not contemplate the setting up of a separate legislature in Ireland or in any part thereof at any future time. One of the Acts which imposed the recognition of the Irish Free State as an independent state upon the people of Great Britain, namely the Irish Free State Constitution Act, 1922, contains an express provision (section 3) to the effect that the Irish Free State could by legislation adopt the provisions of Acts of the 'Imperial' Parliament which applied or could have applied to self-governing Dominions. That section as has already been remarked in this memorandum appears to have been based on the assumption that the provisions of Imperial Acts referred to do not proprio vigore and automatically apply to the Irish Free State. It is moreover a section drawn with careful regard to a practice which has grown up since the Colonial Laws Validity Act, 1865, was passed, namely the practice whereby the consent of a Dominion is a condition precedent to the passing by the 'Imperial' Parliament of statutes relating to that Dominion. Section 3 of the Irish Free State Constitution Act, 1922, is specific in its terms as to the nature of the provisions of Imperial statutes which the Parliament of the Irish Free State is thereby empowered to adopt, and I am unable to discover a ground on which the provisions of the Colonial Laws Validity Act, 1865 - an Imperial statute which in 1922 applied to selfgoverning Dominions - can be shown to stand outside the category of provisions of Imperial statutes so clearly specified in the section. If it is not outside the category of these provisions, if, that is to say, it is included, it would appear that the Oireachtas must expressly adopt it by legislation under section 3 of the Irish Free State Constitution Act, 1922, before it can apply to the Irish Free State and that unless and until it is so adopted it does not apply. It has been suggested that a difficulty arises on that view of the law upon a consideration of Article 2 of the Treaty. Article 2 defines the position of the Irish Free State in relation to the 'Imperial' Parliament and Government and otherwise to be that of the Dominion of Canada and adds that the law, practice and constitutional usage governing the relationship of the Crown or the representative of the Crown and of the 'Imperial' Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State. It is argued that the law governing the relationship of the 'Imperial' Parliament of the Dominion of Canada includes the Colonial Laws Validity Act, 1865, and that that Act applies to the Irish Free State by virtue of Article 2 of the Treaty. If that argument is correct where do its advocates draw the line in interpreting Article 2 of the Treaty? If Article 2 applies to the Colonial Laws Validity Act, 1865, does it not also apply the British North America Act, 1867, as being part of the law governing the relationship of the Crown or the representative of the Crown and of the 'Imperial' parliament to the Dominion of Canada? I think that the whole argument is a constructional effort which overloads the sense of Article 2 and becomes heavily embarrassed by the nature of the conclusions to which it leads. The Colonial Laws Validity Act, 1865, is a statute which is declaratory of the invalidity of certain laws passed by the legislatures of 'Her Majesty's possessions' generally; it is not a statute governing the relationship of the Crown or the representative of the Crown and of the 'Imperial' Parliament to the Dominion of Canada. It is an Imperial statute applying to Canada as well as to the other self-governing Dominions by express words; but it does not purport to specifically affect the constitutional relationship of Canada to the Crown or the 'Imperial' Parliament. It is not part of the constitution of Canada at all. It applies to Canada like a large number of Imperial statutes in the same way as it applies to the other self-governing Dominions. It does not apply to the Irish Free State unless and until it is adopted by the Oireachtas under section 3 of the Irish Free State Constitution Act, 1922.

It would appear therefore that there exists no limitation of the legislative power of the Irish Free State arising out of status. The limitation alleged to be contained in the enabling words 'power to make laws for the peace, order and good government of Ireland' is, in the result, not a limitation of legislative power. These words create no difficulty for the Parliament of the Irish Free State not already in existence for the 'Imperial' Parliament itself. Furthermore they place no difficulty in the way of the executive enforcement of the laws of the Irish Free State not already found to exist in the case of laws passed by the 'Imperial' Parliament. Mere difficulty in the way of the executive enforcement of legislation in no way derogates from the right to legislate in instances where that difficulty arises and cannot be regarded as destructive of the validity of such legislation.

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The momentous developments of the past few years have resulted in a constitutional situation within the Commonwealth of Nations in which the United Kingdom as at present constituted is no more than one of the self-governing states of the Commonwealth. The basis of unity amongst the members of the Commonwealth is no longer to be sought in legal bonds but rather in the consciousness of common interests or the menace of common dangers. The new constitutional character of the Commonwealth finds expression in the formula 'freedom and constitutional equality', indicating the freedom of the constituent States to co-operate or to act separately and equally in the exercise of every function of government, legislative, judicial and executive. The old legal bonds have succumbed to the strain put upon them by the foregoing conception of the character of the Commonwealth developed side by side with the progress of constitutional status amongst the constituent States themselves. The Imperial statute as an instrument of unity has been succeeded by the Imperial Conference as a means of co-operation. It is unnecessary to advert here to the place which the whole theme of the constitutional status of the States of the Commonwealth has come to occupy in contemporary literature relating to the Commonwealth of Nations and in the pronouncements of statesmen in both Houses of the 'Imperial' Parliament and in the Parliaments of the Commonwealth States themselves. From these pronouncements it is clear that the problem of the unity of the Dominions has become insoluble in terms of legal forms designed to knit together a constitutional system which no longer in fact exists. The problem is now rather one of group co-operation amongst independent States.

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Applying the foregoing considerations to the problem immediately to hand, namely the form of the proposed merchant shipping legislation of the Irish Free State, it would appear that the form of such legislation will be determined by considerations of expediency and practical convenience rather than by considerations of the legislative competency of the Oireachtas. There exists through the present British Empire and the Commonwealth of Nations an elaborate administrative machine regulating merchant shipping set up under the Merchant Shipping Acts. That administrative machine it is submitted forms part of the necessary machinery of Commonwealth cooperation. The advantages of the use of that part of the machinery of cooperation to the overseas States of the Commonwealth are very great; the advantages of its use to the Irish Free State would be enormous. It seems to me that while the proposed Merchant Shipping Bill may be as freely drawn as considerations of policy require (and such considerations are outside the scope of this memorandum) the ultimate tendency will be to frame the measure in a way that will seek to secure to the Irish Free State the advantages of the existing administrative machine regulating merchant shipping in the British Empire and the Commonwealth of Nations. The type of difficulty by which the draftsman of the Bill is confronted may best be illustrated by a reference to Part I of the Merchant Shipping Act, 1894. Part I of that Act relates to the registration of ships and establishes the machinery of registry for 'the whole of Her Majesty's Dominions' and 'all places where Her Majesty has jurisdiction' (Section 91). The Canada Shipping Act and the Australian Navigation Act are based upon Part I of the Merchant Shipping Act, 1894, and the Registrar General of Shipping and Seamen in London directly controls the administration of the merchant shipping code in Canada and Australia not by virtue of the statutes of those countries but by virtue of his powers under the Merchant Shipping Act, 1894. In the recent controversy concerning the Medical Register the constitutional objection to the existence of a body outside Saorstát Éireann controlling an important public service was emphasised. A similar objection will, doubtless, be raised in regard to the position of the Registrar General of Shipping and Seamen should the proposals for merchant shipping legislation include the suggestion to base the Bill upon Part I of the Merchant Shipping Act, 1894, and to adopt that Part as it stands. (I am instructed that at the present time the Registrar-General of Shipping and Seamen communicates direct with marine superintendents at various ports in the Irish Free State and not through the Department of Industry and Commerce.) The advantages of adoption of the whole of Part I would, I think, be subject to a serious deduction if the constitutional objection already raised in connexion with the Medical Register was pressed forward to an issue in the instance of the position of the Registrar-General of Shipping and Seamen. On the other hand if the forthcoming proposals embody a substantive re-enactment of Part I of the Merchant Shipping Act, 1894, the Oireachtas will have to take upon itself the function of legislating for British consular officers abroad and will have to make such arrangements as may be necessary to surmount the difficulties in the way of a course so adventuresome and so perilous. The third alternative is that of adoption of Part I of the Merchant Shipping Act, 1894, subject to the provisions of the Part of the proposed Bill relating to the registry of ships. That alternative has been used in the preliminary draft of Part I of the Bill at present being considered by the Department of Industry and Commerce. It has the advantage of giving the Minister for Industry and Commerce the opportunity of taking such powers as he may wish to exercise in the matter of the registry of ships and of at the same time affording the Irish Free State the facilities which the use of the administrative machine set up under the Merchant Shipping Acts affords the other members of the Commonwealth of Nations.

The foregoing reference to Part I of the Merchant Shipping Act, 1894, illustrates the type of difficulty the draftsman of the proposed Bill has to surmount. In the result it will probably be found that the best course which can be followed throughout will be that of adopting (under and in the terms of section 3 of the Irish Free State Constitution Act, 1922) or re-enacting such provisions of the Merchant Shipping Acts as the Department of Industry and Commerce consider necessary or useful; and enacting such new provisions as that Department think suitable to the special conditions existing in the Irish Free State. The special conditions existing in the Irish Free State in regard for instance to emigration and emigrant ships make it necessary to disregard the provisions of section 735 of the Merchant Shipping Act, 1894, which it is contended prohibit the amendment by the Irish Free State of the provisions of Part III of the Merchant Shipping Act, 1894, which relate to emigrant ships. How far the British Government will be prepared to go in allowing the enactment by the Irish Free State of a new code of law relating to emigrant ships in face of the prohibition stated to be contained in section 735 and at the same time permitting to that State the use and advantage of the administrative system set up under the Merchant Shipping Acts is a question outside the scope of this memorandum. The sacrifice of section 735 by the British Government can hardly be hoped for. Doubtless, if the argument outlined here is correct the sacrifice of that section is rendered unnecessary by reason of the provisions of the Irish Free State Constitution Act, 1922. It is not to be expected, however, that the view of section 3 which is expressed here will prevail elsewhere, and in that event the form which our Merchant Shipping Bill is taking (subject to direction) will, should it become law in that form, amount to the exercise by the Oireachtas of a legislative right which the British Government if they agree to it will regard as involving a sacrifice by them of section 735. The repeal of section 735 by the 'Imperial' Parliament would cut the oldest and perhaps the strongest of the cables by which the whole system of Imperial control in shipping matters has been held together, and remove the last remnant of the legal theory upon which the system was founded. The merchant shipping code of the States of the Commonwealth would then derive the binding force of such of its provisions as apply generally throughout the Commonwealth not from a statute of the 'Imperial' Parliament but from the statutes of those States themselves enacting those provisions as an international convention.