BY E.L. GODKIN.

Mr. Dicey in his _Case against Home Rule_ does me the honour to refer to

an article which I wrote a year ago on "American Home Rule,"[24]

expressing in one place "disagreement in the general conclusion to which

the article is intended to lead," and in another "inability to follow

the inference" which he supposes me to draw "against all attempts to

enforce an unpopular law." Now the object of that article, I may be

permitted to explain, was twofold. I desired, in the first place, to

combat the notion which, it seemed to me, if I might judge from a great

many of the speeches and articles on the Irish question, was widely

diffused even among thoughtful Englishmen that the manner in which the

Irish have expressed their discontent--that is, through outrage and

disorder--was indicative of incapacity for self-government, and even

imposed upon the Englishmen the duty, in the interest of morality (I

think it was the _Spectator_ who took this view), and as a disciplinary

measure, of refusing to such a people the privilege of managing their

own affairs. I tried to show by several noted examples occurring in this

country that prolonged displays of lawlessness, and violence, and even

cruelty, such as the anti-rent movement in the State of New York, the

Ku-Klux outrages in the South, and the persecution of Miss Prudence

Crandall in Connecticut, were not inconsistent with the possession of

marked political capacity. I suggested that it was hardly adult politics

to take such things into consideration in passing on the expediency of

conceding local self-government to a subject community. There was to me

something almost childish in the arguments drawn from Irish lawlessness

in the discussion of Home Rule, and in the moral importance attached by

some Englishmen to the refusal to such wicked men as the Irish of the

things they most desire. It is only in kindergartens, I said, that

rulers are able to do equal and exact justice, and see that the naughty

are brought to grief and the good made comfortable. Statesmen occupy

themselves with the more serious business of curing discontent. They

concern themselves but little, if at all, with the question whether it

might not be manifested by less objectionable methods.

The Irish methods of manifesting it, I endeavoured to show, were not

exceptional, and did not prove either inability to make laws or

unwillingness to obey them. I illustrated this by examples drawn from

the United States. I might, had I had more time and space, have made

these examples still more numerous and striking. I might have given very

good reasons for believing that, were Ireland a state in the American

Union, there probably would not have been any rent paid in the island

within the last fifty years, and that the armed resistance of the

tenants would have had the open or secret sympathy of the great bulk of

the American people. In truth, the importance of Irish crime as a

political symptom is grossly exaggerated by English writers. I venture

to assert that more murders unconnected with robbery are committed in

the State of Kentucky in one year than in Ireland in ten, and the

condition of some other Southern and Western States is nearly as bad.

All good Americans lament this and are ashamed of it, but it never

enters into the heads of even the most lugubrious American moralists

that Kentucky or any other State should be disfranchised and remanded to

the condition of a Territory, because the offences against the person

committed in it are so numerous, and the punishment of them, owing to

popular sympathy or apathy, so difficult.

There are a great many Englishmen who think that when they show that

Grattan's Parliament was a venal and somewhat disorderly body, which

occasionally indulged in mixed metaphor, they have proved the

impossibility of giving Ireland a Parliament now. But then, as they are

obliged to admit, Walpole's Parliament was very corrupt, and no one

would say that for that reason it would have been wise to suspend

constitutional government in England in the eighteenth century. It is

only through the pernicious habit of thinking of Irishmen as exceptions

to all political rules that Grattan's Parliament is considered likely,

had it lasted, to have come down to our time unreformed and unimproved.

Those have misunderstood me who suppose that I draw from the success of

the anti-rent movement in this State between 1839 and 1846 an inference

against "all attempts to enforce an unpopular law." Such was not by any

means my object. What I sought to show by the history of this movement

was that there was nothing peculiar or inexplicable in the hostility to

rent-paying in Ireland. The rights of the New York landlords were as

good in law and morals as the rights of the Irish landlords, and their

mode of asserting them far superior. Moreover, those who resisted them

were not men of a different race, religion, or nationality, and had, as

Mr. Dicey says, "none of the excuses that can be urged in extenuation of

half-starved tenants." Their mode of setting the law at defiance was

exactly similar to that adopted by the Irish, and it was persisted in

for a period of ten years, or until they had secured a substantial

victory. The history of the anti-rent agitation in New York also

illustrates strikingly, as it seems to me, the perspicacity of a remark

made, in substance, long ago by Mr. Disraeli, which, in my eyes at

least, threw a great deal of light on the Irish problem, namely, that

Ireland was suffering from suppressed revolution. As Mr. Dicey says,

"The crises called revolutions are the ultimate and desperate cures for

the fundamental disorganization of society. The issue of a revolutionary

struggle shows what is the true sovereign power in the revolutionized

state. So strong is the interest of mankind, at least in any European

country, in favour of some sort of settled rule, that civil disturbance

will, if left to itself, in general end in the supremacy of some power

which by securing the safety at last gains the attachment of the people.

The Reign of Terror begets the Empire; even wars of religion at last

produce peace, albeit peace may be nothing better than the iron

uniformity of despotism. Could Ireland have been left for any lengthened

period to herself, some form of rule adapted to the needs of the country

would in all probability have been established. Whether Protestants or

Catholics would have been the predominant element in the State; whether

the landlords would have held their own, or whether the English system

of tenure would long ago have made way for one more in conformity with

native traditions; whether hostile classes and races would at last have

established some _modus vivendi_ favourable to individual freedom, or

whether despotism under some of its various forms would have been

sanctioned by the acquiescence of its subjects, are matters of uncertain

speculation. A conclusion which, though speculative, is far less

uncertain, is that Ireland, if left absolutely to herself, would have

arrived, like every other country, at some lasting settlement of her

difficulties" (p. 87). That is to say, that in Ireland as in New York

the attempt to enforce unpopular land laws would have been abandoned,

had local self-government existed. For "revolution" is, after all, only

a fine name for the failure or refusal of the rulers of a country to

persist in executing laws which the bulk of the population find

obnoxious. When the popular hostility to the law is strong enough to

make its execution impossible, as it was in New York in the rent affair,

it is accepted as the respectable solution of a very troublesome

problem. When, as in Ireland, it is strong enough to produce turbulence

and disorder, but not strong enough to tire out and overcome the

authorities, it simply ruins the political manners of the people. If the

Irish landlords had had from the beginning to face the tenants

single-handed and either hold them down by superior physical force, or

come to terms with them as the New York landlords had to do, conditions

of peace and good will would have assuredly been discovered long ago.

The land question, in other words, would have been adjusted in

accordance with "Irish ideas," that is, in some way satisfactory to the

tenants. The very memory of the conflict would probably by this time

have died out, and the two classes would be living in harmony on the

common soil. If in New York, on the other hand, the Van Rensselaers and

Livingstons had been able to secure the aid of martial law and of the

Federal troops in asserting their claims, and in preventing local

opinion having any influence whatever on the settlement of the dispute,

there can be no doubt that a large portion of this State would to-day be

as poor and as savage, and apparently as little fitted for the serious

business of government, as the greater part of Ireland is.

There is, in truth, no reason to doubt that the idea of property in

land, thoroughly accepted though it be in the United States, is

nevertheless held under the same limitations as in the rest of the

world. No matter what the law may say in any country, in no country is

the right of the landed proprietor in his acres as absolute as his right

in his movables. A man may own as much land as he can purchase, and may

assert his ownership in its most absolute form against one, two, or

three occupants, but the minute he began to assert it against a large

number of occupants, that is, to act as if his rights were such that he

had only to buy a whole state or a whole island in order to be able to

evict the entire population, he would find in America, as he finds in

Ireland, that he cannot have the same title to land as to personal

property. He would, for instance, if he tried to oust the people of a

whole district or of a village from their homes on any plea of

possession, or of a contract, find that he was going too far, and that

no matter what the judges might say, or the sheriff might try to do for

him, his legal position was worth very little to him. Consequently a

large landlord in America, if he were lucky enough to get tenants at

all, would be very chary indeed about quarrelling with more than one of

them at a time. The tenants would no more submit to wholesale ejectment

than the farmers in Missouri would submit some years ago to a tax levy

on their property to pay county bonds given in aid of a railroad. The

goods of some of them were seized, but a large body of them attended the

sale armed with rifles, having previously issued a notice that the place

would be very "unhealthy" for outside bidders.

The bearing of this condition of American opinion on the Irish question

will be plainer if I remind English readers that the Irish in the United

States numbered in 1880 nearly 2,000,000, and that the number of persons

of Irish parentage is probably between 4,000,000 and 5,000,000. In short

there are, as well as one can judge, more Irish nationalists in the

United States than in Ireland. The Irish-Americans are to-day the only

large and prosperous Irish community in the world. The children of the

Irish born in the United States or brought there in their infancy are

just as Irish in their politics as those who have grown up at home.

Patrick Ford, for instance, the editor of the _Irish World_, who is such

a shape of dread to some Englishmen, came to America in childhood, and

has no personal knowledge nor recollection of Irish wrongs. Of the part

this large Irish community plays in stimulating agitation--both agrarian

and political--at home I need not speak; Englishmen are very familiar

with it, and are very indignant over it. The Irish-Americans not only

send over a great deal of American money to their friends at home, but

they send over American ideas, and foremost among them American

hostility to large landowners, and American belief in Home Rule. Now, to

me, one of the most curious things in the English state of mind about

the Irish problem is the apparent expectation that this Irish-American

interference is transient, and will probably soon die out. It is quite

true, as Englishmen are constantly told, that "the best Americans," that

is, the literary people and the commercial magnates, whom travelling

Englishmen see on the Atlantic coast, dislike the Irish anti-English

agitation. But it is also true that the disapproval of the "best

Americans" is not of the smallest practical consequence, particularly as

it is largely due to complete indifference to, and ignorance of, the

whole subject. There are probably not a dozen of them who would venture

to express their disapproval publicly. The mass of the population,

particularly in the West, sympathize, though half laughingly, with the

efforts of the transplanted Irish to "twist the British lion's tail,"

and all the politicians either sympathize with them, or pretend to do

so. I am not now expressing any opinion as to whether this state of

things is good or bad. What I wish to point out is that this

Irish-American influence on Irish affairs is very powerful, and may, for

all practical purposes, be considered permanent, and must be taken into

account as a constant element in the Irish problem. I will indeed

venture on the assertion that it is the appearance of the

Irish-Americans on the scene which has given the Irish question its

present seriousness. The attempts of the Irish at physical resistance to

English authority have been steadily diminishing in gravity during the

present century--witness the descent from the rebellion of 1798 to Smith

O'Brien's rebellion and the Fenian rising of 1867. On the other hand the

power of the Irish to act as a disturbing agency in English politics has

greatly increased, and the reason is that the stream of Irish discontent

is fed by thousands of rills from the United States. Every emigrant's

letter, every Irish-American newspaper, every returned emigrant with

money in his pocket and a good coat on his back, helps to swell it, and

there is not the slightest sign, that I can see, of its drying up.

Where Mr. Dicey is most formidable to the Home Rulers, as it seems to

me, is in his chapter on "Home Rule as Federalism," which is the form in

which the Irish ask for it. He attacks this in two ways. One is by

maintaining that the necessary conditions for a federal union between

Great Britain and Ireland do not exist. This disposes at one blow of all

the experience derived from the working of the foreign federations, on

which the advocates of Home Rule have relied a good deal. The other is

what I may call predictions that the federation even if set up would not

work. Either the state of facts on which all other federations have been

built does not exist in Ireland, or if it now exists, will not, owing to

the peculiarities of Irish character, continue to exist. In other words,

the federation will either fail at the outset, or fail in the long run.

No one can admire more than I do the force and ingenuity and wealth of

illustration with which Mr. Dicey supports this thesis. But

unfortunately the arguments by which he assails Irish federalism might

be, or might have been, used against all federations whatever. They

might have been used, as I shall try to show, against the most

successful of them all, the Government of the United States. I was

reminded, while reading Mr. Dicey's account of the impossibility of an

Anglo-Irish federation, of Mr. Madison's rehearsal in the _Federalist_

(No. 38) of the objections made to the Federal Constitution after the

Convention had submitted it to the States. These objections covered

every feature in it but one; and that, the mode of electing the

President, curiously enough, is the only one which can be said to have

utterly failed. A more impressive example of the danger of _à priori_

attacks on any political arrangement, history does not contain. Mr.

Madison says: "This one tells me that the proposed Constitution ought to

be rejected, because it is not a confederation of the states, but a

government over individuals. Another admits that it ought to be a

government over individuals to a certain extent, but by no means to the

extent proposed. A third does not object to the government over

individuals, or to the extent proposed, but to the want of a bill of

rights. A fourth concurs in the absolute necessity of a bill of rights,

but contends that it ought to be declaratory not of the personal rights

of individuals, but of the rights reserved to the states in their

political capacity. A fifth is of opinion that a bill of rights of any

sort would be superfluous and misplaced, and that the plan would be

unexceptionable but for the fatal power of regulating the times and

places of election. An objector in a large state exclaims loudly against

the unreasonable equality of representation in the Senate. An objector

in a small state is equally loud against the dangerous inequality in the

House of Representatives. From one quarter we are alarmed with the

amazing expense, from the number of persons who are to administer the

new government. From another quarter, and sometimes from the same

quarter, on another occasion the cry is that the Congress will be but

the shadow of a representation, and that the government would be far

less objectionable if the number and the expense were doubled. A patriot

in a state that does not import or export discerns insuperable

objections against the power of direct taxation. The patriotic adversary

in a state of great exports and imports is not less dissatisfied that

the whole burden of taxes may be thrown on consumption. This politician

discovers in the constitution a direct and irresistible tendency to

monarchy. That is equally sure it will end in aristocracy. Another is

puzzled to say which of these shapes it will ultimately assume, but sees

clearly it must be one or other of them. Whilst a fourth is not wanting,

who with no less confidence affirms that the Constitution is so far from

having a bias towards either of these dangers, that the weight on that

side will not be sufficient to keep it upright and firm against the

opposite propensities. With another class of adversaries to the

Constitution, the language is, that the legislative, executive, and

judiciary departments are intermixed in such a manner as to contradict

all the ideas of regular government and all the requisite precautions in

favour of liberty. Whilst this objection circulates in vague and general

expressions, there are not a few who lend their sanction to it. Let each

one come forward with his particular explanation, and scarcely any two

are exactly agreed on the subject. In the eyes of one the junction of

the Senate with the President in the responsible function of appointing

to offices, instead of vesting this power in the executive alone, is the

vicious part of the organization. To another the exclusion of the House

of Representatives, whose numbers alone could be a due security against

corruption and partiality in the exercise of such a power, is equally

obnoxious. With a third the admission of the President into any share of

a power which must ever be a dangerous engine in the hands of the

executive magistrate is an unpardonable violation of the maxims of

republican jealousy. No part of the arrangement, according to some, is

more inadmissible than the trial of impeachments by the Senate, which is

alternately a member both of the legislative and executive departments,

when this power so evidently belonged to the judiciary department. We

concur fully, reply others, in the objection to this part of the plan,

but we can never agree that a reference of impeachments to the judiciary

authority would be an amendment of the error; our principal dislike to

the organization arises from the extensive powers already lodged in that

department. Even among the zealous patrons of a council of state, the

most irreconcilable variance is discovered concerning the mode in which

it ought to be constituted."

Mr. Madison's challenge to the opponents of the American Constitution to

agree on some plan of their own, and his humorous suggestion that if the

American people had to wait for some such agreement to be reached they

would go for a long time without a government, are curiously applicable

to the opponents of Irish Home Rule. They are very fertile in reasons

for thinking that neither the Gladstone plan nor any other plan can

succeed, but no two of them, so far as I know, have yet hit upon any

other mode of pacifying Ireland, except the use of force for a certain

period to maintain order, and oddly enough, even when they agree on this

remedy, they are apt to disagree about the length of time during which

it should be tried.

Mr. Dicey, in conceding the success of the American Constitution, seems

to me unmindful, if I may use the expression, of the judgments he would

probably have passed on it had it been submitted to him at the outset

were he in the frame of mind to which a prolonged study of the Irish

problem has now brought him. The Supreme Court, for instance, which he

now recognizes as an essential feature of the Federal Constitution, and

the absence of which in the Gladstonian arrangement he treats as a fatal

defect, would have undoubtedly appeared to him a preposterous

contrivance. It would have seemed to him impossible that a legislature

like Congress, with the traditions of parliamentary omnipotence still

strong in the minds of the members, would ever submit to have its acts

nullified by a board composed of half a dozen elderly lawyers. Nor would

he have treated as any more reasonable the expectation that the State

tribunals, which had existed in each colony from its foundation, and had

earned the respect and confidence of the people, would quietly submit to

have their jurisdiction curtailed, their decisions overruled, causes

torn from their calendar, and prisoners taken out of their custody by

new courts of semi-foreign origin, which the State neither paid nor

controlled. He would, too, very probably have been most incredulous

about the prospect of the growth of loyalty on the part of New-Yorkers

and Massachusetts men to a new-fangled government, which was to make

itself only slightly felt in their daily lives, and was to sit a

fortnight away in an improvised village in the midst of a Virginian

forest.

He would, too, have ridiculed the notion that State legislatures would

refrain, in obedience to the Constitution, from passing any law which

local sentiment strongly favoured or local convenience plainly demanded,

such as a law impairing the obligation of obnoxious contracts, or

levying duties on imports or exports. The possibility that the State

militia could ever be got to obey federal officers, or form an efficient

part of a federal army, he would have scouted. On the feebleness of the

front which federation would present to a foreign enemy he would have

dwelt with emphasis, and would have pointed with confidence to the

probability that in the event of a war some of the states would make

terms with him or secretly favour his designs. National allegiance and

local allegiance would divide and perplex the feelings of loyal

citizens. Unless the national sentiment predominated--and it could not

predominate without having had time to grow--the federation would go to

pieces at any of those crises when the interests or wishes of any of the

states conflicted with the interests or wishes of the Union. That the

national sentiment could grow at all rapidly, considering the maturity

of the communities which composed the Union and the differences of

origin, creed, and manners which separated them, no calm observer of

human nature would believe for one moment.

The American Constitution is flecked throughout with those flaws which a

lawyer delights to discover and point out, and which the framers of a

federal contract can only excuse by maintaining that they are

inevitable. It is true that Mr. Dicey does not even now acknowledge the

success of the American Constitution to be complete. He points out that

if the "example either of America or of Switzerland is to teach us

anything worth knowing, the history of these countries must be read as a

whole. It will then be seen that the two most successful confederacies

in the world have been kept together only by the decisive triumph

through force of arms of the central power over real or alleged State

rights" (p. 192).

It is odd that such objectors do not see that the decisive triumph of

the central power in the late civil war in America was, in reality, a

striking proof of the success of the federation. The armies which

General Grant commanded, and the enormous resources in money and

devotion from which he was able to draw, were the product of the Federal

Union and of nothing else. One of the greatest arguments its founders

used in its favour was that if once established it would supply

overwhelming force for the suppression of any attempt to break it up.

They did not aim at setting up a government which neither foreign malice

nor domestic treason, would ever assail, for they knew that this was

something beyond the reach of human endeavour. They tried to set up one

which, if attacked either from within or from without, would make a

successful resistance, and we now know that they accomplished their

object. Somewhat the same answer may be made to the objection, which is

supposed to have fatal applicability to the case of Ireland, that among

the "special faults of federalism" is that it does not provide

"sufficient protection of the legal rights of unpopular minorities," and

that "the moral of it all is that the [American] Federal Government is

not able to protect the rights of individuals against strong local

sentiment" (p. 194 of Mr. Dicey's book). He says, moreover, if I

understand the argument rightly, that it was bound to protect free

speech in the States because "there is not and never was a word in the

Articles of the Constitution forbidding American citizens to criticize

the institutions of the State." It would seem from this as if Mr. Dicey

were under the impression that in America the citizen of a State has a

right to do in his State whatever he is not forbidden to do by the

Federal Constitution, and in doing it has a right to federal protection.

But the Federal Government can only do what the Constitution expressly

authorizes it to do, and the Constitution does not authorize it to

protect a citizen in criticizing the institutions of his own State. This

arrangement, too, is just as good federalism as the committal of free

speech to federal guardianship would have been. The goodness or badness

of the federal system is in no way involved in the matter.

The question to what extent a minority shall rely on the federation for

protection, and to what extent on its own State, is a matter settled by

the contract which has created the federation. The settlement of this

is, in fact, the great object of a Constitution. Until it is settled

somehow, either by writing or by understanding, there is, and can be, no

federation. If I, as a citizen of the State of New York, could call on

the United States Government to protect me under all circumstances and

against all wrongs, it would show that I was not living under a

federation at all, but under a centralized republic. The reason why I

have to rely on the United States for protection against some things and

not against others is that it was so stipulated when the State of New

York entered the Union. There is nothing in the nature of the federal

system to prevent the United States Government from protecting my

freedom of speech. Nor is there anything in the federal system which

forbids its protecting me against the establishment of a State Church,

which, as a matter of fact, it does not do. Nor is there anything in the

federal system compelling the Government to protect me against the

establishment of an order of nobility, which, as a matter of fact, it

does do. The reason why it does not do one of these things and does the

other is simply and solely that it was so stipulated, after much

discussion, in the contract. Most thinking men are to-day of opinion

that the United States ought to have exclusive jurisdiction of marriage,

so that the law of marriage might be uniform in all parts of the Union.

The reason why they do not possess such jurisdiction is not that

Congress is not fully competent to pass such a law or the federal courts

to execute it, but that no such jurisdiction is conferred by the

Constitution. In fact it seems to me just as reasonable to cite the ease

of divorce in various States of the Union as a defect in the federal

system, as to cite the oppression of local minorities in matters not

placed under federal authority by the organic law.

If one may judge from a great deal of writing on American matters which

one sees in English journals and the demands for federal interference in

America in State affairs which they constantly make, the greatest

difficulty Irish Home Rule has to contend with is the difficulty which

men bred in a united monarchy and under an omnipotent Parliament

experience in grasping what I may call the federal idea. The influence

of association on their minds is so strong that they can hardly conceive

of a central power, worthy of the name of a government, standing by and

witnessing disorders or failures of justice in any place within its

borders, without stepping in to set matters right, no matter what the

Constitution may say. They remind me often of an old verger in

Westminster Abbey during the American civil war who told me that "he

always knew a government without a head couldn't last." Permanence and

peace were in his mind inseparably linked with kingship. That even Mr.

Dicey has not been able to escape this influence appears frequently in

his discussions of federalism. He, of course, thoroughly understands the

federal system as a jurist, but when he comes to discuss it as a

politician he has evidently some difficulty in seeing how a government

with a power to enforce _any_ commands can be restrained by contract

from enforcing _all_ commands which may seem to be expedient or

salutary. Consequently the cool way in which the Federal Government here

looks on at local disorders seems to him a sign, not of the fidelity of

the President and Congress to the federal pact, but of some inherent

weakness in the federal system.

The true way to judge the federal system, however, either in the United

States or elsewhere, is by observing the manner in which it has

performed the duties assigned to it by the Constitution. If the

Government at Washington performs these faithfully, its failure to

prevent lawlessness in New York or the oppression of minorities in

Connecticut is of no more consequence than its failure to put down

brigandage in Macedonia. Possibly it would have been better to saddle it

with greater responsibility for local peace; but the fact is that the

framers of the Constitution decided not to do so. They did not mean to

set up a government which would see that every man living under it got

his due. They could not have got the States to accept such a

government. They meant to set up a government which should represent

the nation worthily in all its relations with foreigners, which should

carry on war effectively, protect life and property on the high seas,

furnish a proper currency, put down all resistance to its lawful

authority, and secure each State against domestic violence on the demand

of its Legislature.

There is no common form for federal contracts, and no rules describing

what such a contract must contain in order that the Government may be

federal and not unitarian. There is no hard and fast line which must,

under the federal system, divide the jurisdiction of the central

Government from the jurisdiction of each State Government. The way in

which the power is divided between the two must necessarily depend on

the traditions, manners, aims, and needs of the people of the various

localities. The federal system is not a system manufactured on a

regulation model, which can be sent over the world like iron huts or

steam launches, in detached pieces, to be put together when the scene of

operation is reached. Therefore I am unable to see the force of the

argument that, as the conditions under which all existing federations

were established differ in some respects from those under which the

proposed federal union between England and Ireland would have to be

established, therefore the success of these confederations, such as it

is, gives them no value as precedents. A system which might have worked

very well for the New England States would not have worked well for a

combination which included also the middle and southern States. And the

framers of the American Constitution were not so simple-minded as to

inquire, either before beginning their labours or before ending them--as

Mr. Dicey would apparently have the English and Irish do--whether this

or that style of constitution was "the correct thing" in federalism.

Assuming that the people desired to form a nation as regarded the world

outside, they addressed themselves to the task of discovering how much

power the various States were willing to surrender for this purpose.

That was ascertained, as far as it could be ascertained, by assembling

their delegates in convention, and discussing the wishes and fears and

suggestions of the different localities in a friendly and conciliatory

spirit. They had no precedents to guide them. There had not existed a

federal government, either in ancient or modern times, whose working

afforded an example by which the imagination or the understanding of the

American people was likely to be affected in the smallest degree. They,

therefore, had to strike out an entirely new path for themselves, and

they ended by producing an absolutely new kind of federation, which was

half Unitarian, that is, in some respects a union of states, and in

others a centralized government; and it was provided for a Territory one

end of which was more than a month's distance from the other.

It is not in its details, therefore, but in the manner of its

construction, that the American Constitution furnishes anything in the

way of guidance or suggestion to those who are now engaged in trying to

find a _modus vivendi_ between England and Ireland. The same thing may

be said of the Swiss Constitution and of the Austro-Hungarian

Constitution. Both of them contain many anomalies--that is, things that

are not set down in the books as among the essentials of federalism. But

both are adapted to the special wants of the people who live under them,

and were framed in reference to those wants.

The Austro-Hungarian Delegations are another exception to the rule.

These Delegations undoubtedly control the ministry of the Empire, or at

all events do in practice displace it by their votes. It is made

formally responsible to them by the Constitution. All that Mr. Dicey can

say to this is that "the real responsibility of the Ministry to the

Delegations admits of a good deal of doubt," and that, at all events,

it is not like the responsibility of Mr. Gladstone or Lord Salisbury to

the British Parliament. This may be true, but the more mysterious or

peculiar it is the better it illustrates the danger of speaking of any

particular piece of machinery or of any particular division of power as

an essential feature of a federal constitution.

We are told by the critics of the Gladstonian scheme that federalism is

not "a plan for disuniting the parts of a united state." But whether it

is or not once more depends on circumstances. Federalism, like the

British or French Constitution, is an arrangement intended to satisfy

the people who set it up by gratifying some desire or removing some

cause of discontent. If that discontent be due to unity, federalism

disunites; if it be due to disunion, federalism unites. In the case of

the Austro-Hungarian Empire, for instance, it clearly is a "plan for

disuniting the parts of a united state." Austria and Hungary were united

in the sense in which the opponents of Home Rule use the word for many

years before 1867, but the union did not work, that is, did not produce

moral as well as legal unity. A constitution was therefore invented

which disunites the two countries for the purposes of domestic

legislation, but leaves them united for the purposes of foreign

relations. This may be a queer arrangement. Although it has worked well

enough thus far, it may not continue to work well, but it does work well

now. It has succeeded in converting Hungary from a discontented and

rebellious province and a source of great weakness to Austria into a

loyal and satisfied portion of the Empire. In other words, it has

accomplished its purpose. It was not intended to furnish a symmetrical

piece of federalism. It was intended to conciliate the Hungarian people.

When therefore the professional federal architects make their tour of

inspection and point out to the Home Ruler what flagrant departures from

the correct federal model the Austro-Hungarian Constitution contains,

how improbable it is that so enormous a structure can endure, and how,

after all, the Hungarians have not got rid of the Emperor, who commands

the army and represents the brute force of the old _régime_, I do not

think he need feel greatly concerned. This may be all true, and yet the

Austro-Hungarian federalism is a valuable thing. It has proved that the

federal remedy is good for more than one disease, that it can cure both

too much unity and too little. The truth is that there are only two

essentials of a federal government. One is an agreement between the

various communities who are to live under it as to the manner in which

the power is to be divided between the general and local governments;

the other is an honest desire on the part of all concerned to make it

succeed. As a general rule, whatever the parties agree on and desire to

make work is likely to work, just as a Unitarian government is sure to

succeed if the people who live under it determine that it shall succeed.

If a federal plan be settled in the only right way, by amicable and

mutually respectful discussion between representative men, all the more

serious obstacles are certain to be revealed and removed. Those which

are not brought to light by such discussions are pretty sure to be

comparatively trifling, and to disappear before the general success of

arrangement. But by a "mutually respectful discussion" I mean discussion

in which good faith and intelligence of all concerned are acknowledged

on both sides.

In what I have said by way of criticism of a book which may be taken as

a particularly full exposition of the legal criticism that may be

levelled at Mr. Gladstone's scheme, I have not touched on the arguments

against Home Rule which Mr. Dicey draws from the amount of disturbance

it would cause in English political habits and arrangements. I freely

admit the weight of these arguments. The task of any English statesman

who gives Home Rule to Ireland in the only way in which it can be

given--with the assent of the British people--will be a very arduous

one. But this portion of Mr. Dicey's book, producing, as it does, the

distinctively English objections to Home rule, is to me much the most

instructive, because it shows the difficulty there would be in creating

the state of mind in England about any federal relation to Ireland which

would be necessary to make it succeed. I do not think it an exaggeration

to say that two-thirds of the English objections to Home Rule as

federalism are unconscious expressions of distrust of Irish sincerity or

intelligence thrown into the form of prophecy, and prophets, as we all

know, cannot be refuted. For instance, "the changes necessitated by

federalism would all tend to weaken the power of Great Britain" (Dicey,

p. 173). The question of the command of the army could not be arranged;

the Irish army could not be depended on by the Crown (p. 174); the

central Government would be feeble against foreign aggression, and the

Irish Parliament would give aid to a foreign enemy (pp. 176-7).

Federalism would aggravate or increase instead of diminishing the actual

Irish disloyalty to the Crown (pp. 179-80); the Irish expectations of

material prosperity from Home Rule are baseless or grossly exaggerated

(p. 182); the probability is, it would produce increased poverty and

hardship; there would be frequent quarrels between the two countries

over questions of nullification, secession, and federal taxation (p.

184); neither side would acquiesce in the decision either of the Privy

Council or of any other tribunal on these questions; Home Rulers would

be the first to resist these decisions (p. 185). Irish federation "would

soon generate a demand that the whole British Empire should be turned

into a Confederacy" (p. 188). Finally, as "the one prediction which may

be made with absolute confidence," "federalism would not generate the

goodwill between England and Ireland which, could it be produced, would

be an adequate compensation even for the evils and inconveniences of a

federal system" (p. 191).

Now I do not myself believe these things, but what else can any advocate

of Home Rule say in answer to them? They are in their very nature the

utterances of a prophet--an able, acute, and fair-minded prophet, I

grant, but still a prophet--and before a prophet the wisest man has to

be silent, or content himself by answering in prophecy also. What makes

the sceptical frame of mind in which Mr. Dicey approaches the Home Rule

question so important is not simply that it probably represents that of

a very large body of educated Englishmen, but that it is one in which a

federal system cannot be produced. Faith, hope, and charity are

political as well as social virtues. The minute you leave the region of

pure despotism and try any form of government in which the citizen has

in the smallest degree to co-operate in the execution of the laws, you

have need of these virtues at every step. As soon as you give up the

attempt to rule men by drumhead justice, you have to begin to trust in

some degree to their intelligence, to their love of order, to their

self-respect, and to their desire for material prosperity, and the

nearer you get to what is called free government the larger this trust

has to be. It has to be very large indeed in order to carry on such a

government as that of Great Britain or of the United States; it has to

be larger still in order to set up and administer a federal government.

In such a government the worst that can happen is very patent. The

opportunities which the best-drawn federal constitution offers for

outbreaks of what Americans call "pure cussedness"--that is, for the

indulgence of anarchical tendencies and impulses--is greater than in any

other. Therefore, to set it up, or even to discuss it with any profit,

your faith in the particular variety of human nature, which is to live

under it, has to be great. No communities can live under it together

and make it work which do not respect each other. I say respect, I do

not say love, each other. The machine can be made to go a good while

without love, and if it goes well it will bring love before long; but

mutual respect is necessary from the first day. This is why Mr. Dicey's

book is discouraging. The arguments which he addressed to Englishmen

would not, I think, be formidable but for the mood in which he finds

Englishmen, and that this mood makes against Home Rule there can be

little doubt.

I am often asked by Americans why the English do not call an Anglo-Irish

convention in the American fashion, and discuss the Irish question with

the Irish, find out exactly what they will take to be quiet, and settle

with them in a rational way. I generally answer that, in the first

place, a convention is a constitution-making agency with which the

English public is totally unfamiliar, and that, in the second place,

Englishmen's temper is too imperial, or rather imperious, to make the

idea of discussion on equal terms with the Irish at all acceptable. They

are, in fact, so far from any such arrangement that--preposterous and

even funny as it seems to the American mind--to say that an English

statesman is carrying on any sort of communication with the

representatives of the Irish people is to bring against him, in English

eyes, a very damaging accusation. When a man like Mr. Matthew Arnold

writes to the _Times_ to contend that Englishmen should find out what

the Irish want solely for the purpose of not letting them have it, and a

journal like the _Spectator_ maintains that the sole excuse for

extending the suffrage in Ireland, as it has lately been extended in

England, was that the Irish as a minority would not be able to make any

effective use of it; and when another political philosopher writes a

long and very solemn letter in which, while conceding that in governing

Ireland a sympathetic regard for Irish feelings and interests should be

displayed, he mentions, as one of the leading facts of the situation,

that in "the Irish character there is a grievous lack of independence,

of self-respect, of courage, and above all of truthfulness"--when men of

this kind talk in this way, it is easy to see that the mental and moral

conditions necessary to the successful formation of a federal union are

still far off. No federal government, and no government requiring

loyalty and fidelity for its successful working, was ever set up by, or

even discussed between, two parties, one of which thought the other so

unreasonable that it should be carefully denied everything it asked for

and as unfit for any sort of political co-operation as mendacity,

cowardice, and slavishness could make it.

Finally let me say that there is nothing in Mr. Dicey's book which has

surprised me more, considering with what singular intellectual integrity

he attacks every point, than his failure to make any mention or to take

any account of the large part which time and experience must necessarily

play in bringing to perfection any political arrangement which is made

to order, if I may use the expression, no matter how carefully it may be

drafted. Hume says on this point with great wisdom, "To balance the

large state or society, whether monarchical or republican, on general

laws, is a work of so great difficulty, that no human genius, however

comprehensive, is able by the mere dint of reason or reflection to

effect it. The judgments of many must unite in the work, experience must

guide their labour, time must bring it to perfection, and the feeling of

inconveniences must correct the mistakes which they inevitably fall into

in their first trial and experiments."[25]

This has proved true of the American and Swiss federations; it will

probably prove true of the Austro-Hungarian federation and of any that

may be set up by Great Britian [Transcriber: sic.] and her colonies. It

will prove still more true of any attempt that may be made at

federation between Great Britain and Ireland. No corrections which could

be made in the Gladstonian or any other constitution would make it work

exactly on the lines laid down by its framers. Even if it were revised

in accordance with Mr. Dicey's criticism, it would probably be found, as

in the case of the American Constitution, that few of the dangers which

were most feared for it had beset it, and that some of the

inconveniences which were most distinctly foreseen as likely to arise

from it were among the things which had materially contributed to its

success. History is full of the gentle ridicule which the course of

events throws on statesmen and philosophers.

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