Constitution--an Irish legislature, which I shall take leave hereafter
to call by its proper name, the "Irish Parliament," consisting of the
Queen and an Irish legislative body, which we may call a House of
Parliament or a Chamber, made up itself of two orders.[57]
The Irish Parliament, subject to certain restrictions, has authority to
make or repeal any laws for the peace, order, and good government of
Ireland; it is in fact in the strictest sense what I have termed it, an
Irish Parliament. It is the body which indirectly appoints and controls
the Executive, and directly legislates for Ireland. It can repeal laws
which have been passed by the existing Parliament of the United Kingdom
in so far as they are in force in Ireland.
The powers of the Irish Parliament are, it should be noted, indefinite.
The Parliament, that is to say, may pass any law which it is not, under
the Constitution, forbidden to pass. In this respect it stands in the
position not like that of the American Congress, which can legislate
only on certain topics, which are expressly placed within the competence
of Congress, but in a position like that occupied by the Parliament of
the Canadian 1 Dominion, which can legislate on all topics not expressly
excepted from its competence. The difference between a legislature of
definite and a legislature of indefinite powers is important. In the one
case changes of circumstances may diminish but cannot increase the
authority of the legislature; in the other case changes of circumstances
may increase but cannot diminish that authority. The Irish Parliament is
a body whose authority will, from the necessity of things, tend
constantly to increase.
If the authority given to the Irish Parliament is indefinite, it is not
unlimited. A large number of exceptions and restrictions are imposed
upon its freedom of action. It is hard to point to any clear principle
on which they rest. Their object undoubtedly is to guard against
legislation about subjects such as the armed forces, the coinage, and
the like, which are of Imperial rather than of local concern. But we
can hardly say that the line between the things which the Irish
Parliament can do, and the things which it cannot do, exactly coincides
with the line which divides Imperial from local legislation. The Irish
Parliament might lawfully pass laws opposed to the whole tenour of
British legislation, such, for instance, as an Act preventing particular
classes of foreigners, or even of Englishmen, from settling in Ireland.
The Irish Parliament could not, on the other hand, pass any law for the
establishment or the endowment of religion. Hence Ireland could not, in
imitation of England and Scotland, provide herself with an established
Church, nor could she again pass any law relating to volunteers. She
could not therefore take steps for the defence of the country, which are
permissible to Victoria or Canada.
The observance of these limitations on the Parliament's power of
legislation is enforced by a twofold method: first, by the veto of the
Lord-Lieutenant;[58] secondly, by the special authority given to the
Judicial Committee of the English Privy Council.[59]
The Lord-Lieutenant can, after the manner of a Colonial Governor, refuse
the Royal assent to any bill passed by the Irish House of
Parliament.[60] It would rather appear (though this is by no means
certain) that a Bill passed by the Irish Parliament might, even though
the Lord-Lieutenant assented thereto, be like the Bill of a Colonial
legislature, disallowed by the Crown, or in effect by the English
Ministry.[61]
The Judicial Committee of the English Privy Council, with the addition
of certain members, who must be, or have been, Irish Judges, exercises
under the Gladstonian Constitution a very peculiar authority in respect
of Irish legislation. It becomes both an administrative and a judicial
body.
As an administrative body it can give a decision as to the
constitutional validity of any Bill brought before or Act passed by, the
Irish Parliament. In its judicial character it is a court of final
appeal, with exclusive power to pronounce a decision upon the validity
of an Act of the Irish Parliament whenever the validity thereof comes in
question in the course of an action.[62] The decisions of the Privy
Council are final; their twofold character as opinions and judgments
deserve special attention. The result is that the Judicial Committee of
the English Privy Council can always in one way or another pronounce
void the proposed or actual legislation of the Irish Parliament if it is
in the judgment of the Privy Council unconstitutional.
Ireland in return for the advantages gained by her under the Gladstonian
Constitution gives up the representation which she now has in each of
the two Houses of the Parliament of the United Kingdom. No Irish
representative, either Peer or Commoner, sits under that Constitution at
Westminster.[63] The present Parliament of the United Kingdom under
whatever name it be described, and whatever be its powers, becomes
therefore on the withdrawal of the Irish representatives a British
Parliament, and is hereinafter termed by me, for the sake of
distinction, the British Parliament. Ireland also contributes annually
to the Consolidated Fund of the United Kingdom a sum of over four
millions. The Irish customs and excise are made the security for the
payment of this contribution; they are, if I understand the Government
of Ireland Bill rightly, to be collected by British officials and paid
into the British Treasury, but the details of the financial arrangements
intended to exist under the Gladstonian Constitution are not within the
scope of this work.
The Irish Parliament has no power to modify or alter the provisions of
the Constitution under which it exists,[64] except in one or two cases
provided for by the Constitution itself. The Constitution is alterable
in a particular manner therein pointed out, namely by the co-operation
of the British Parliament and the Irish Parliament. If we omit certain
complications of detail, this co-operation takes place by the Irish
representatives being summoned back, and thus added to the British
Parliament. The body thus constituted for the alteration of the
Gladstonian Constitution is formed of much the same elements as the
existing Parliament of the United Kingdom, and is hereinafter called the
Imperial Parliament.[65]
[Sidenote: As regards the English Constitution.]
As regards the Constitution of England--
The Gladstonian Constitution, as it will now be seen, does, whatever the
intention of its authors, as a matter of fact seriously affect the
Constitution of England, and this in more points than one.
_First._--The withdrawal of the Irish representation from the Parliament
of the United Kingdom constitutes in effect a new body, which in its
composition is different from the present Parliament of the United
Kingdom, and which since (allowing for changes introduced by the
different Reform Acts which have been passed during the century) it
corresponds with the Parliament of Great Britain as it existed before
the Union with Ireland, may be rightly described by the name I have
applied to it, of the British Parliament. This British Parliament has
admittedly authority to legislate on every matter which comes within the
competence neither of the Irish Parliament, nor of the body which I have
distinguished as the Imperial Parliament, which, it will be remembered,
consists of the British Parliament with the Irish representatives
summoned thereto. Whether the British Parliament has or has not any
further powers is a moot question which I purposely leave for the moment
untouched. What is admitted on all hands is that a Parliament in which
Irish representatives have no voice whatever can legislate on every
matter affecting England, Scotland, or the British Empire, and also on
the topics specially excluded from the competence of the Irish
Parliament unless they belong to the one topic, namely, the alteration
of the Gladstonian Constitution, reserved for the Imperial Parliament.
_Secondly._--The British Parliament, whatever be its theoretical
authority, will cease under the Gladstonian Constitution to pass laws
for Ireland, and will not impose any taxation on Ireland in addition to
the contribution which Ireland is compelled to pay under the
Constitution.
Hence, _Thirdly_,--and as a result of the various features in the
Gladstonian Constitution which have been already noted, there exist
under it three bodies with different functions which, by whatever name
they may be each called, ought to be carefully distinguished. They are--
(i.) The British Parliament at Westminster, in which sit no Irish
members, which legislates for Great Britain, and for the whole of the
British Empire, except Ireland, but which does not in general at any
rate legislate for Ireland.
(ii.) The Irish Parliament at Dublin, in which sit no British
representatives, which legislates for Ireland, but does not legislate
for England, Scotland, or for any other part of the British Empire, and
does not have any voice whatever in the general policy of the Empire.
(iii.) The Imperial Parliament also sitting at Westminster, and
comprising both the British and the Irish Parliament. This body, which
in composition corresponds nearly if not exactly with the existing
Parliament of the United Kingdom, comes together only on special
occasions and only for a special purpose, namely the revision or
alteration of the Gladstonian Constitution.
That the existence of these three bodies, each normally exercising the
different functions or powers I have attributed to them, constitutes an
unmistakable, and I should myself say a fundamental, change in the
existing English Constitution with its one sovereign Parliament of the
United Kingdom, hardly in my judgment requires or admits of proof. If
the change be denied, I have no course but to leave the decision of the
question whether such a change can be fairly ignored to the intelligence
of my readers.[66]
The Gladstonian Constitution, if it worked in the way contemplated by
its authors--if everything, that is to say, went exactly as it was
wished, and everybody acted exactly in the manner in which
constitutionally they ought to act--would provide a complicated but, as
I have already said, most ingenious solution of the problem before us.
The British Parliament would sit at Westminster undisturbed by any Irish
obstructives, and legislate for Great Britain and the whole British
Empire in accordance with the wishes of the people of England and
Scotland. Not only would Irish obstruction vanish, but what is even
better, the necessity of considering Irish questions at all would
disappear. English legislators would not be called upon to pay more
attention to the affairs of Ireland than to the affairs of Canada or of
New Zealand. The Irish Parliament would take the whole burden of
legislation for Ireland off our hands, and Irishmen if they did not like
Irish laws would have nobody to complain of but Irish legislators. But
the Irish Parliament whilst it saved England from all trouble would, if
the Constitution worked properly, give England no trouble whatever. If
Bills were proposed or Acts passed at Dublin in violation of the
Constitution they would be pronounced void by the Privy Council, and all
Ireland would at once acquiesce in the final decisions of that exalted
tribunal. If on the other hand the Irish House of Parliament were to
pass enactments which though not unconstitutional were inexpedient, then
foolish proposals would be nullified by the veto of the Lord-Lieutenant.
The contribution from Ireland would be duly collected and be paid up to
the day, since its collection would lie in the hands of British
officials; and should any difficulty arise, the collectors would be
aided by the Irish Court of Exchequer, the Judges of which would be
appointed by the English Government, and the judgments of the Court of
Exchequer could, if need were, be enforced by the British Army. This
paper federation, in short, looks as promising as paper Constitutions
generally do. It appears at first sight to combine the merits of
American Federalism and of Colonial independence. To see, however,
whether the Gladstonian Constitution gives any real promise of
fulfilling the hopes which it seems to hold out, let us examine how far
it really fulfils the conditions on which alone, as we have already
pointed out, Home Rule can possibly be accepted by the people of Great
Britain.
[Sidenote: 1st Question.--Is sovereignty of Parliament preserved?]
_1st Question._--Is the Gladstonian Constitution consistent with the
sovereignty or ultimate legislative supremacy of the British
Parliament?[67]
It is well to make clear to ourselves the precise meaning of this
enquiry. It is nothing else than this: Do or do not the provisions of
the Gladstonian Constitution either legally or morally impair the right
of the British Parliament when sitting at Westminster without having
summoned a single representative from Ireland to legislate (e.g. pass a
Coercion Act) for Ireland, and if need be to repeal of its own authority
all or any of the provisions of the Gladstonian Constitution, including
the very provision under which it is declared in substance that the
Constitution shall not be alterable except by the Imperial Parliament,
which consists, as already noted, of the British Parliament and the
Irish Parliament? To put the same matter in another shape, the enquiry
is whether, under the Gladstonian Constitution, the British Parliament
does or does not retain the sovereignty now admittedly possessed by the
Parliament of the United Kingdom.[68]
Let us first consider the matter as a pure question of constitutional
law.
[Sidenote: As a question of constitutional law.]
The inquiry then is whether a Judge in England or Ireland resolved to do
his duty would or would not be bound to treat as invalid an Act passed
by the British Parliament either inconsistent with or, to put the matter
more strongly, actually repealing of such Parliament's own authority the
provisions of the Gladstonian Constitution, or in other words of the
Government of Ireland Bill, which would then, as we are assuming the
Gladstonian Constitution to be in existence, have become the Irish
Government Act.
Such a Judge would have to consider a question to which English Courts
are now quite unaccustomed as regards Acts passed by the Parliament of
the United Kingdom. The reason why they are unused to solve the
particular kind of question supposed to arise under the new Irish
Constitution is, that as the Parliament of the United Kingdom is
undoubtedly a sovereign body, the validity of its enactments is in any
British Court beyond dispute. The reason why the problem might under the
Gladstonian Constitution require an answer is, that the question might
arise whether the British Parliament were or were not a sovereign body.
Our Judge would find the question more difficult to answer than is
readily admitted by English lawyers not versed in any constitution
except their own. He would have to consider the language and effect of
the Irish Government Act in the light of certain propositions which are
now, and at the supposed passing of that Act must have been, true of the
Parliament of the United Kingdom.
These propositions may be thus stated, roughly indeed, but with
sufficient accuracy for our purpose:--
The Parliament of the United Kingdom is admittedly the sovereign of the
whole British Empire.
The Parliament of the United Kingdom because it is a sovereign body can
make laws for every part of the British Empire, and can legally make or
unmake any law, and establish, alter, or abolish any institution
(including in that term the Constitution of the Canadian Dominion or of
Victoria) existing within the limits of any country subject to the
British Crown.
The Parliament of the United Kingdom just because it is a sovereign body
cannot, whilst retaining its position as sovereign of the British
Empire, be itself bound by any Act of Parliament whatever.
To recur to an instance which is pre-eminently instructive, Parliament
conferred in 1867 upon the Dominion of Canada as large a measure of
independence as is compatible with a colony's maintaining its position
as part of the British Empire. Yet the Parliament of the United Kingdom
retains now, as ever, the indisputable legal power to change or abolish
the Constitution of the Dominion.
The Parliament of the United Kingdom, just because it is a sovereign
body, though it cannot remain a sovereign and place a legal limit on its
own powers, can, like any other sovereign, e.g. the Czar of Russia,
abdicate its sovereignty in reference to the whole, or it may be to
part of the Crown's dominions; and the Parliament of the United Kingdom
can, just because it is a sovereign body, do what is at bottom the same
thing as abdicate, namely, merge its own powers in those of another
sovereign body, or, in other words, form, or aid in forming, a new
sovereign for the British Empire.
This proposition has during the Home Rule controversy been occasionally,
in words at least, disputed or questioned by the supporters of Mr.
Gladstone's policy, and language has been used which seems to imply that
a sovereign power such as the Parliament of the United Kingdom can never
by its own act divest itself of sovereignty. I can hardly think that the
able controversialists who seem to maintain this doctrine really meant
to contend for more than the admitted principle that a sovereign cannot
while remaining a sovereign limit his sovereign powers. If, however, it
be seriously suggested that the Parliament of the United Kingdom cannot
divest itself of sovereignty, the suggestion is as a matter of argument
untenable, and this for more than one reason.
An autocrat, such as the Russian Czar, can undoubtedly abdicate; but
sovereignty, whether it be the sovereignty of the Czar or of Parliament,
is always one and the same quality. If the Czar can abdicate, so can
Parliament. The Czar again could, instead of abdicating in the ordinary
sense of the term, constitute a new sovereign body for the government of
Russia, of which he might himself be a part. Thus he may undoubtedly
give Russia a constitution like that of England, under which the Czar
and two Houses of Parliament might together become the sovereign of the
Russian State, and no constitutionalist would dream of maintaining that
the new power thus constituted was the less supreme owing to the fact
that one of its members, namely the Czar, had at one time been himself
the real sovereign of Russia. Here again what is true of the Czar is
true of Parliament. The Parliament of the United Kingdom certainly might
become a part of another sovereign body, or might join in constituting a
sovereign power supreme throughout the British Empire of which
Parliament itself did not form a part. There is nothing in the theory of
sovereignty to prevent the Parliament of the United Kingdom from forming
a constitution for the whole British Empire under which the Parliament
of the United Kingdom, the Victorian Parliament, the Parliament of the
Canadian Dominion and so forth should become simply State Parliaments,
whilst the whole British Empire was ruled by some Imperial Congress
sitting, say, either in London or in Victoria. Nor need we in this
matter have recourse to theory. The present Parliament of the United
Kingdom is itself a monument of the historical fact that sovereign
Parliaments can divest themselves of sovereignty. For the Parliament of
the United Kingdom is itself the result of the abdication of supreme
power by sovereign Parliaments. The Union with Scotland was not, as
Englishmen often, I suspect, fancy, the absorption of the Parliament of
Scotland in the Parliament of England. The transaction bears, when
carefully looked at, a quite different character. Up to the year 1707
there existed an English Parliament sovereign in England, and there
existed a Scotch Parliament sovereign in Scotland. These two sovereign
bodies in negotiating the Treaty of Union acted with scrupulous, and on
the Scotch side with punctilious, independence. Neither sovereign body
would consent to be absorbed in the other. What they did agree to was to
constitute a new State, namely, the United Kingdom of Great Britain, and
each to surrender their separate sovereignty in favour of a new
sovereign, namely, the sovereign Parliament of the United Kingdom. The
English Parliament no more became supreme in Scotland than the Scotch
Parliament became supreme in England. The old Parliament of each country
abdicated and lost its identity in the New Parliament of Great Britain.
In theory the Treaty of Union between Great Britain and Ireland bore
exactly the same character as the Treaty of Union between England and
Scotland. But on this point I do not care strongly to insist, because at
the present moment every part of Irish history excites controversy.
When, however, the excitement of the day has passed by, no one will
dispute that 22 Geo. III. c. 53 and 23 Geo. III. c. 28 constituted the
renunciation by the British Parliament of sovereignty over Ireland. The
difference between the limitation of sovereignty and the surrender of
sovereignty has been pressed far enough for my present purpose; no
principle of jurisprudence is more certain than that sovereignty
implies the power of abdication, and no fact of history is more certain
than that a sovereign Parliament has more than once abdicated or shared
its powers. To argue or imply that because sovereignty is not limitable
(which is true), it cannot be surrendered (which is palpably untrue) is
to confuse together two distinct ideas, and is like arguing that because
no man can while he lives give up, do what he will, his freedom of
volition, therefore no man can commit suicide.
The Parliament of the United Kingdom, further, whilst because it is a
sovereign body it cannot impose any legal limit to the exercise of its
own power, may so express an intention to use or not to use its power in
a particular way as to excite expectations which it will be extremely
difficult or hazardous to disappoint, and so may find itself morally
fettered as to its subsequent legislative action.
A notorious instance, taken from our constitutional history, illustrates
this proposition. The statute 18 Geo. III. c. 12 declares in substance
that Parliament will not impose any tax on any colony in North America
or in the West Indies. The history of the statute is told by its
date--1778. Now no constitutional lawyer will contend that the
Parliament of the United Kingdom is legally bound by this Act. If
Parliament were to impose an income tax on Jamaica to-morrow the impost
would be legal, and could, no doubt, be enforced. But the Declaratory
Act of 1778 makes it morally impossible for Parliament to tax any
colony. That the impossibility does not arise from a law is clear,
because it applies with as much strength to colonies which do not fall
as to colonies which do fall within the terms of 18 Geo. III. c. 12.
Victoria is not a colony in North America or in the West Indies, but
Victoria is at least as well protected from Imperial taxation as is
Barbadoes. The so-called Act establishes not a rule of law, but a
precept of constitutional morality. It does not theoretically limit, but
it practically impedes and interferes with the legislative sovereignty
of Parliament.
Our Judge with these propositions fully before his mind would scan the
terms of the Gladstonian Constitution, or in other words of the Irish
Government Act. He would certainly come to the conclusion that the point
for his decision was one of great nicety. Against the validity of any
Act passed by the British Parliament in contravention of the provisions
of the Constitution could be adduced the precise and formal enactment,
passed, be it noted, by the undoubtedly sovereign Parliament of the
United Kingdom, that the Constitution should be alterable in one way,
and in one way only;[69] and if it were said that the body which passed
this enactment could also repeal it, then the Judge might consider that
that body, namely the Parliament of the United Kingdom, had in effect
ceased to exist, and that the successor to its sovereign powers, if any,
was not the British Parliament, but the Imperial Parliament, the body
which, under any view, had legal authority to alter the Constitution.
No doubt there would be a great deal to be urged on the other side. The
attention of the Judge would be called to the singular and ambiguous use
throughout the Constitution of the term Imperial Parliament, which it
might be argued was meant to show that what I have called the British
Parliament was to be identified with the Parliament of the United
Kingdom. Reference would also be made to the ambiguous saving of powers
contained in the 37th section of the Irish Government Act. The high and
all-important enquiry as to the authority of the British Parliament
sitting at Westminster would come to turn upon the studied ambiguities
of one ill-drawn section of an Act of Parliament. There the legal
question of the sovereignty of the British Parliament under the
Gladstonian Constitution may well be left. It is not within the scope of
this work to deal with the draughtsmanship of the Government of Ireland
Bill. It is easy to anticipate what would be the practical result of
that Bill's ambiguities if it passed into an Act. Irish Judges would
honestly take one view, English Judges would as honestly take another.
The Courts of Ireland would maintain that the Constitution could be
altered only in the method provided by the Constitution, namely, by the
Imperial Parliament. The English Courts would maintain that the
Constitution could also be altered by the British Parliament, which was
itself the Parliament of the United Kingdom, and possessed the
sovereignty inherent in the Parliament of the United Kingdom. No Court
in either country could satisfactorily terminate the dispute. Force
would no doubt settle what law had left undecided, but to interpret a
Constitution by power of arms is in reality to substitute revolutionary
violence for constitutional discussion.[70]
Let us next consider the matter before us, not as a question of
constitutional law, but as a question of public morality.
[Sidenote: As question of public morality.]
The enquiry then is whether under the Gladstonian Constitution the
legislative supremacy of the British Parliament is or is not morally and
in fact impaired? It is extremely difficult to see how any candid person
can answer this question except by the admission that for all practical
purposes, and except on possible but very extreme occasions, the right
of the British Parliament to legislate for Ireland is morally not only
impaired but destroyed. The supporters of the Government of Ireland Bill
have admitted again and again that it constitutes what they term a
Parliamentary compact; it embodies, in other words, a solemn contract
between Great Britain and the people of Ireland that the British
Parliament, whatever be its legal power, shall not legislate about Irish
affairs without summoning Irish representatives to share in its
deliberations. This covenant is made for great and valuable
consideration, namely, the withdrawal of the Irish representatives from
the Parliament of the United Kingdom, and the consequent acquisition by
the British Parliament of power to legislate not only on every British
but on every Imperial concern without consulting the wishes of the Irish
people. This is in a moral point of view little less than a treaty; it
is an engagement which England could not break, or incur the imputation
of breaking, without dishonour. With all this every man of sense and of
honour agrees; but if this be so, it is impossible to see how any one
can maintain that this Parliamentary compact does not morally impair, as
far as Ireland is concerned, the sovereignty or legislative supremacy of
the British Parliament. It may be doubted whether the most earnest
Gladstonian really and seriously maintains that under the Gladstonian
Constitution the British Parliament sitting at Westminster could or ever
would legislate for Ireland in contravention at any rate of the patent
and apparent meaning of the Constitution. All that is really maintained
is that the British Parliament would retain a legal power of doing that
which would never be done by it. There is, however, it is suggested,
convenience in retaining a nominal sovereignty which is not intended for
real use. Convenience there may be, but there is also immense danger.
The Irish Parliament we will suppose acts in a way which is most
annoying to England, but the Irish Parliament at the same time takes
care not to violate a line of the Constitution. The temptation to use
our sovereign authority is great, and likely enough may prove
irresistible; yet if we use it every Irishman, and many Englishmen for
that matter, will accuse England of bad faith. No doubt a breach of the
Constitution by the Irish Parliament might be remedied by the use of the
sovereignty reserved to the British Parliament. But it is difficult even
then to see the great advantage of this reservation. In any case in
which England would be morally justified in setting aside the terms of
the high Parliamentary contract, she would be equally justified in
suspending the Constitution by the use of force. The employment of power
becomes the more not the less odious because it is allied, or seems to
be allied, with fraud. The miserable tale of the transactions which
carried the Treaty of Union teaches at least one indisputable
lesson--the due observance of legal formalities will not induce a people
to pardon what they deem to be acts of tyranny, made all the more
hateful by their combination with deceit. For the British Parliament to
renounce the exercise whilst retaining the name of sovereignty is the
very course by which to run a great risk of damaging the character
without any certainty of increasing the power of Parliament.
The plain answer then to the enquiry on which we have been engaged is
this:--
Under the Gladstonian Constitution, as foreshadowed in the Government of
Ireland Bill, the sovereignty of the British Parliament is legally
rendered doubtful, and is morally reduced to nothing.
[Sidenote: Does Constitution secure justice?]
_2nd Question._--Does the Gladstonian Constitution secure justice?
The justice which the Constitution ought to secure is twofold--justice
to Great Britain, and justice to all classes, including minorities, of
Irishmen.
The just claims of Great Britain may roughly be summed up under the one
claim, that Ireland should contribute her fair share to Imperial
expenditure.
The Gladstonian Constitution, nominally at least, makes fair provision
that this claim should be satisfied. But any one who looks into the
matter with care will find reason to think that as regards the exaction
of payments from Ireland, which are already known by the hateful name of
"tribute," Great Britain will find herself involved in this dilemma.
Either she must surrender the tribute, or else surrender all hope of
attaining the main object for the sake of which it is proposed to grant
Home Rule to Ireland. If the tribute is exacted, we may be sure that it
will have to be exacted in the long run by British officials supported
by a British army. Laws, we are told, which are otherwise just are hated
in Ireland because they bear a foreign aspect, and come before the Irish
people in a foreign garb. If this assertion be not true, then the whole
case for Home Rule falls to the ground. If this assertion possess even
partial truth, then it applies with far greater force to tribute than
to law. It is almost an absurdity to suppose that people who hate good
laws because they may be termed English will not detest a heavy tax
which not only may be called, but in reality is, a tribute to England.
It is well to remember that a "publican" was a tax-gatherer, and that
Roman publicans were far more hated than Roman Judges or Roman law. If
England gives Ireland semi-independence, and at the same time makes
Ireland pay tribute, all the conciliatory effects of Home Rule will be
lost. If Home Rule is to have even a bare chance of producing in Ireland
the contentment of Victoria, Ireland, the poorest of all civilized
countries, must be freed from Imperial taxation, which would not be
tolerated by the richest of our colonies. To this conclusion the
advocates and the opponents of Home Rule may, I think, both come without
grave dissatisfaction. Of all the sacrifices by which Ireland might be
benefited, that sacrifice which England should make with the least
regret is sacrifice of revenue. If, however, it be assumed, as the
supporters of the Government of Ireland Bill must assume, that justice
requires the contribution by Ireland of three or four millions annually
to Imperial expenditure, then the Gladstonian Constitution, if it
provides for the satisfaction of the claims of Great Britain, does so at
the cost of keeping alive Irish discontent. Nor is it at all certain
that the payment of the tribute could in effect be easily secured. The
practical working of the Constitution might well be that Great Britain
were impoverished and Ireland were angered.
Justice to individuals and to unpopular minorities is a matter of far
greater importance and far more difficult to secure than the regular
payment of Ireland's contribution to Imperial expenditure.
The Gladstonian Constitution ought to provide securities against
executive and legislative oppression.
To provide however against the possible oppression of classes or
individuals by an Irish Ministry and Irish officials is all but an
impossibility, though, as every one knows, the grossest oppression may
in any country arise from the wrongful action or inaction of the
executive power. The assumption, indeed, is constantly made, though its
truth is very hard to prove, that if Ireland were self-governed the law
of the land would be enforced. In one sense this assumption may perhaps
be well founded. A strong government, or, to put matters plainly, a
popular despotism when installed in office at Dublin would, it may be
suspected, stringently compel obedience to such laws as the Government
approved. The Jacobin Club was no friend to anarchy when anarchy meant
defiance of the mandates issued by the Club. But the energy of a strong
Government in carrying out laws which it approves is a different matter
from the zealous maintenance of even-handed justice. An Irish executive
will immediately on coming into existence be called upon to deal with
cases which will severely test its sense of justice. Landlords cannot
at once be banished like vermin from Ireland; landlords, as long as
they exist, must, I presume, have some rights. Is there any security
under the Gladstonian Constitution, that the rights--rights, be it
remembered, of British subjects, which ought to be neither more nor less
sacred than the rights of a British subject in London or Calcutta--will
be protected by an executive of Land Leaguers? There is, I answer, none
whatever. To distrust the justice of an Irish Government is not, be it
remarked, to show any special distrust of Irish nature. The Irish
leaders are of necessity revolutionists, and, it must be added,
revolutionists of no high character. Revolutionists on accession to
power do not lay aside the revolutionary temperament, and this
temperament may have every other virtue, but it knows nothing of the
virtue of justice. The Gladstonian Constitution withdraws Ireland from
the control of the Government of the United Kingdom, which with all its
faults must of necessity possess more impartiality than can a Ministry
formed out of the leaders of any Irish faction. The Gladstonian
Constitution therefore does leave unpopular classes or individuals
exposed to considerable risks of injustice at the hands of the Irish
Government.
[Sidenote: Methods for securing just government.]
Though it is from the nature of things almost impossible to take
effective steps for ensuring that an Irish executive shall make a right
use of its powers, it is an essential feature of the Gladstonian
Constitution that the Irish Parliament shall so far at least use its
authority justly as to keep within the limits placed upon its
competence. Whether these limitations have been wisely drawn, and
whether they may not be in some respects too wide and in others too
narrow, are inquiries which, though important in themselves, need hardly
detain us. The question in comparison with which all matters of detail
sink into insignificance is not what are the limitations which the
Constitution imposes on the competence of the Irish Parliament, but what
is the efficacity of the means provided by the Constitution for
compelling the Irish Parliament to respect these limitations? This is
the one vital inquiry, for upon the answer to it depends the reality of
the constitutional provisions for the maintenance of just legislation.
These methods are, as already pointed out, twofold.
[Sidenote: 1. Veto of Lord-Lieutenant.]
The first is the veto of the Lord-Lieutenant. Let us assume, though the
truth of the assumption is not quite clear, that this veto is combined,
as in the case of the colonies, with a further power of disallowance on
the part of the Crown, or in effect of the British Ministry. The result
is that the British Ministry, or, to put the thing plainly, the British
House of Commons, can put a check on such Irish legislation as may be
opposed to the letter or to the spirit of the Constitution. The check is
in one sense real, but it must, as in the case of the colonies, be but
rarely employed. Its constant use, or its use on occasions of great
importance, would seem to Irishmen, and with good reason, to nullify
the concession of Home Rule. Suppose, for example, the Irish Ministry
carry a measure for artificially stimulating Irish commerce, and the
Crown disallows it on the ground that it is contrary to the provision of
the Constitution forbidding the Irish Parliament to make any law
relating to trade. The Irish Cabinet thereupon resigns. What course is
the Lord-Lieutenant to take? If he uses the veto he reintroduces in the
most awkward form the interference of the British Parliament with Irish
legislation. If he does not use the veto, or, what is in its effect the
same thing, if the Act is not disallowed, then the right of veto comes
to little or nothing. We may be quite sure that in general neither the
Lord-Lieutenant nor the Crown will refuse assent to Bills approved of by
the Irish Parliament. The veto in its different forms will, in short, be
but a very slight check on unconstitutional or unjust legislation.
[Sidenote: 2. Action of Privy Council.]
The second method by which it is endeavoured to check unconstitutional
legislation is the use of the authority vested in the English Privy
Council. Privy This method is borrowed from Federalism, as the
Lord-Lieutenant's veto is borrowed from the Colonial system. The Privy
Council, it should be remembered, may nullify the effect of Irish
legislation in two ways:--It may as an administrative body give a
decision that a Bill or Act is void. It must, however, be hoped and
expected that the Privy Council will rarely adopt this mode of
exercising its powers, for such exercise would at once give rise to a
direct conflict between the Irish Parliament and the English Privy
Council. That body may, however, act simply as a Court of final appeal,
and as a tribunal decide whether an enactment Of the Irish Parliament is
or is not void. This, we may suppose, is the mode in which the Privy
Council will usually put forth its authority. It is easy, bearing the
experience of America and Canada in mind, to see how the whole
arrangement will, in theory at least, work. _A._ sues _X._ in an Irish
Court, _X._ bases his defence on some Act passed by the Irish
Parliament. The Privy Council pronounce the Act void, as being opposed
to some provision of the Constitution, and give a judgment in favour of
_A._, under which he has a right to recover £10,000 against _X._ Here it
will be said the whole matter is settled. The law was unconstitutional;
the law has been treated as void; _A._ has obtained judgment; _A.'s_
rights are secured. This would be all that was required, but for one
consideration. The object of the plaintiff in an action is to obtain not
judgment, but payment or execution. What are the means by which
judgments of the Privy Council may be put in force where they happen not
to be supported by Irish opinion, and are opposed, it may be, to the
decisions of the Irish Courts? The answer is simple: the Constitution
provides no means whatever. The Federal tribunals of America possess in
every State officials of their own, and are supported in the main by
American opinion. The Americans are, moreover, to use their own
expression, "a law-abiding people." Yet for all this the judgment of
the Supreme Court may be worth little if it runs across State sentiment,
and if the President should happen to sympathise with State rights. A
citizen of colour was unlawfully imprisoned in Georgia; he applied for a
habeas corpus. The application ultimately came before Chief Justice
Marshall, and the writ was granted. The traditional comment of President
Jackson is noteworthy: "John Marshall has given his judgment, let him
enforce it if he can." The Executive would not assist the Court, and the
Supreme Court was powerless. Switzerland, again, has a Federal tribunal:
it is a Court, as would be the Privy Council, which cannot command
officials of its own to execute its process; it depends for aid on the
Cantonal authorities. This state of things, I am told on good authority,
produces its natural result. The judgments of the Federal tribunal can
be rendered almost ineffective by the opposition of a Canton.
At this moment the statutes of the Imperial Parliament bind every man
throughout the United Kingdom. The Courts in Ireland are bound to give
effect to every statute, and the Irish Courts are supported by the
Sheriff and his officers, and in the last resort by the power of the
United Kingdom. Yet the very difficulty of the day is enforcing
judgments which run against Irish popular opinion. Is it common sense to
imagine that opposition which defies, often with success, the authority
of the Irish Queen's Bench Division, or ultimately of the House of
Lords, would not easily nullify the judgments of the Privy Council when
not only unpopular in Ireland, but in contradiction to a law devised by
the Irish Executive, passed by the Irish Parliament, supported by the
Irish Judges? The truth must be spoken: the Gladstonian Constitution
will, as regards the restrictions placed under it on the powers of the
Irish Parliament, inevitably turn out a mere paper Constitution. The
methods for compelling the observance of these limitations have neither
of them any real efficacity. The veto can with difficulty and but rarely
be used; the judgments or opinions of the Privy Council may have a
speculative interest, but will possess no coercive power.
If this be so the guarantees afforded by the Constitution for just
legislation are nugatory; they are worth neither more nor less than the
pompous securities for every kind of inalienable right which have
adorned the most splendid and the most transitory among the
Constitutions which have during a century been in turn created and
destroyed in France--that is, they are worth nothing; nor is it unfair
to conjecture that on this point my opinion agrees with the opinion of
many English Home Rulers. They think the limitations on the independence
of the Irish Parliament useless and destined to disappear; for their
avowed belief is that legislation by an Irish Parliament will in the
main be just, and that the laws of the Irish Parliament, because they
represent the wishes of the Irish people, will obtain easy obedience in
Ireland. If this conviction be sound--and it is the almost necessary
basis for a policy of Home Rule--let us act upon it, and not impose
restrictions which, if needless, must certainly be noxious. Meanwhile in
any case let us dismiss the delusion that restrictions which cannot be
enforced are any guarantee for justice. The Gladstonian Constitution
admits on the face of it that guarantees are wanted. Most Englishmen
agree in the opinion implied in this admission. But if I am right in
asserting that the guarantees for justice are illusory, then the
Gladstonian Constitution does not secure justice, and is therefore not
just.
[Sidenote: Does Constitution possess finality?]
_3rd Question_.--Does the Gladstonian Constitution hold out fair hopes
of finality?
This is an enquiry which may be answered with some confidence.
To any one who surveys the Constitution, not as a politician, but as a
legist; to any one moderately versed in the study of comparative
constitutionalism, few statements which savour of prediction will appear
more certain than the assertion that the Gladstonian Constitution cannot
be a final or even a lasting settlement of the constitutional relations
between England and Ireland.
The grounds of this opinion are, briefly, that the proposed Constitution
will, while leaving alive elements of discord, cause disappointment and
inconvenience to both countries, and that the mechanism of the
Constitution, framed as it is upon a combination of Federalism and of
Colonialism, has some of the defects of each system, and promises in
its working to produce something like the maximum of irritation and
friction.
The two grounds for believing that the Gladstonian Constitution bears no
promise of finality run into one another, but they admit of separate
examination, and each requires explanation or justification.
[Sidenote: Constitution will cause disappointment to England.]
The Constitution will cause disappointment and inconvenience both to
England and to Ireland, Englishmen will on the Gladstonian Constitution
coming into operation find to their great disappointment that they have
not attained the object which from an English point of view was the
principal inducement to grant Home Rule to the Irish people, that is,
freedom from the difficulty of governing Ireland. The difficulty no
doubt will be diminished, or rather shifted; but the dream is vain that
under the new Constitution Englishmen would be able to trouble
themselves no more about the concerns of Ireland than they do about the
affairs of Canada. Ireland would still be our immediate neighbour.
Irishmen would still be divided by differences of class and religion,
and England would still, disguise the fact as you may, be ultimately
responsible for good government in Ireland. Home Rule is not Separation,
and nothing short of Irish independence would greatly lessen English
responsibility. This would be true under whatever form Home Rule were
established, but it is emphatically true of Home Rule under the
particular form contemplated by the Gladstonian Constitution. The army
in Ireland--and no one supposes that England can withdraw her soldiers
from the country--will be the British Army under the control of the
British Government. But the power of the sword is, though we often
forget the fact, the sanction by which law is maintained. Hence it
follows that the British Ministry remains at bottom responsible for the
maintenance of peace and order throughout Ireland. Note the results. If
there are riots at Belfast; if unpopular officials are assassinated in
Dublin; if evictions give rise to murder in Kerry, the British Army must
in the last resort be called in to restore peace or punish crime. If the
army are not under the control of the Irish Executive, then the English
Cabinet become directly responsible for the government of Ireland. If
British soldiers are placed at the disposal of the Irish Ministry, still
the English Government must, shift the thing as you will, share the
responsibility of the Irish Cabinet. During a riot at Belfast a hundred
Protestants or Catholics are shot by British soldiers whilst restoring
order. If any one fancies that such slaughter can take place without the
English Ministry being called upon in the British Parliament for
explanation and defence, he shows utter ignorance of English, or indeed
of human nature. Nor is it for the action only of the troops that the
English Executive will incur liability. If British subjects are killed
by a mob in Belfast or in Dublin whilst British troops stand quietly by
and under the direction of an Irish Home Secretary take no steps to
prevent murder, we may rest assured that the Queen's Government in
England will be asked whether it is decent that the Queen's forces
should be trained to stand as indifferent spectators of outrageous
breaches of the Queen's peace.
Take again the question of pardoning crime. Suppose that the first Irish
Ministry on their accession to power propose to inaugurate the new era
by a free pardon of all the political offenders, dynamiters and others,
whose misguided zeal placed them within the gripe of the law, but also
in no small measure contributed to achieve the Parliamentary
independence of Ireland. If the request is not granted, then the Irish
Administration are refused the means of carrying on the government of
the country after their own notions of sound polity. If the request is
granted, can the English Government be held entirely irresponsible for
the mode in which the Crown exercises its prerogative? Let it be settled
that the prerogative of mercy must in Ireland be exercised in accordance
with the wishes of the Irish Ministry. Even then the English Government
will not really escape responsibility. British soldiers put down a riot
at Belfast; they are indicted for the murder of a Catholic rioter,
before a Catholic grand jury, convicted by a Catholic jury under the
direction of a Catholic judge who has just been appointed by the new
Irish Ministry. Popular opinion demands the execution of the convicted
murderers, the Irish Ministry advise that the law should take its
course. The general belief in England, shared we will suppose by the
English Home Office, is that the convicted soldiers are about to be
capitally punished for having simply discharged their duty. Is an
English Minister to abstain from advising a pardon? The dilemma is
difficult. If he recommends a pardon, the Irish Government are prevented
by England from governing Ireland. If the soldiers are hanged, the
English Ministry will not keep long in office, the British Army will
hardly maintain its habit of absolute obedience to the civil power.
Englishmen, in the next place, will soon discover that the creation of a
statutory constitution for Ireland curiously hampers the working of our
own institutions. Questions must arise whether Acts of the British
Parliament do or do not trench upon the provisions of the Irish
Constitution. Few persons are aware of the number of Imperial Acts which
touch the Colonies. To such statutes there is no legal or moral
objection, because the principle embodied in the Colonial Laws Act,
1865, that enactments passed by the Parliament of the United Kingdom
override any Colonial law with which they conflict, is universally
admitted; but, as already pointed out, it is questionable as a matter of
law whether the statutes of the British Parliament can repeal Acts duly
passed by the Irish Parliament, and it is quite beyond question that for
the British Parliament to infringe upon the province of the Irish
legislature would involve a breach of good faith. Changes again in the
formation of the British Parliament might under the Gladstonian
Constitution become difficult. The abolition of the House of Lords would
be hard to reconcile with the right of the Irish Peers to be summoned on
occasion to the Imperial Parliament. An increase in the number of
British representatives in the House of Commons would be objected to by
Irishmen because it diminished the relative importance of the members
from Ireland when recalled to take part in the deliberations of the
Imperial Parliament. The reduction of the number of members of the House
of Commons, though one of the most salutary reforms which could be
carried out, would be opposed by every person interested in maintaining
the present excessive number of the Lower House, on the ground that to
reduce the numbers of the House of Commons, to say 400, would involve an
increase in the authority of the Irish members whenever they reappeared
on the scene. The moot question whether the British Parliament could on
an emergency repeal of its own authority the articles of the Irish
Constitution; the extent to which Ireland should be represented on the
Judicial Committee of the Privy Council; above all, the vital question
whether the reassembled Imperial Parliament were not the true
representative of the Parliament of the United Kingdom, and the ultimate
sovereign power in the State, would in periods of excitement give rise
to disputes hitherto quite alien to English politics, and involving
elements of unknown danger.
Ambiguity and obscurity, since they help to pass Bills, are in the
judgment of Parliamentary draughtsmen and Parliamentary statesmen
characteristics which promote the easy working of Acts. Knives which are
made to sell are not knives which are made to cut. No delusion is more
dangerous. The founders of the American Union knew their own minds, and
were not well acquainted with the advantages to be derived from the
obscurities of modern draughtsmanship. But on two points they tried the
experiment of keeping real perils out of sight by omitting to refer to
them. "Slave" and "slavery" are words not to be found in the
Constitution of the United States. What (if any) was the right of a
State to retire from the Union, was a matter purposely left open for the
interpretation of future generations. The Abolition movement, the
Fugitive Slave Law, the War of Secession tell the result of trying to
ignore perils or problems which it is not easy to face or to solve.
[Sidenote: And to Ireland.]
The last disappointment of Englishmen would be to find that Home Rule
had not satisfied Ireland. For to Irishmen no less than to Englishmen
the Constitution must bring disappointment and inconvenience.
That the Gladstonian Constitution cannot satisfy Ireland is all but
certain.
To say this is not to imply that its acceptance by Irish Home Rulers is
dishonest. In their eyes it is a move in the right direction; they
exaggerate, as their English allies underrate, the freedom of action
which the Constitution offers to Ireland. It cannot, as already pointed
out, by any possibility remove the admitted causes of Irish discontent.
It cannot tempt capital towards Ireland, but it may easily drive capital
away from her shores; it cannot diminish poverty; it cannot in its
direct effect assuage religious bigotry; it cannot of itself remove
agrarian discontent. The Land Purchase Bill, even when discarded,
remains an involuntary exposure of the futility of the Gladstonian
Constitution, and of the unsoundness of the principle on which the
demand for Home Rule rests. No friend of Italy ever suggested that
Italian independence should be accompanied by a loan from Austria to the
Italian Kingdom. For the principle of nationality was the true source of
Italian disaffection. If in dealing with Ireland we must calm agrarian
misery before satisfying national aspirations, this necessity is all but
a confession that Irish unrest is due far more to desire for a change in
the land laws than to passionate longing for national independence. I do
not doubt that the spirit of nationality has some, though probably a
small, part in the production of Irish discontent. But the Gladstonian
Constitution is unfortunately so devised as to outrage quite as much as
it soothes national sentiment. The tribute will affect every Irishman in
his pride no less than in his purse. Can any one suppose that
Northerners indignant at recent treachery, and Catholics mindful of
ancient oppression, will not join, and justly join, in denouncing as at
once ignominious and ruinous the payment of a tribute raised for
Imperial purposes at the moment when Ireland ceases to have any voice in
the direction of Imperial policy? Irishmen again will find to their
surprise that the Constitution intended to give them independence
imposes annoying fetters on their freedom of action. They wish for a
protective tariff, and they come across the prohibition to make laws
affecting trade; they desire that the country shall defend herself, and
they discover that they cannot raise even a body of volunteers; they
wish to try the plan of concurrent endowment, and they are thwarted by
the article of the Constitution prohibiting the endowment of religion.
These restrictions are the more annoying because none of them are
imposed upon the Colonies. Irishmen will further discover that great
achievements of constructive legislation require for their success the
command of large pecuniary resources, and that exemption from British
control involves the withdrawal of all assistance from the British
Treasury.
[Sidenote: Constitution will cause friction.]
The Constitution will produce irritation and friction.
Every scheme for uniting into a political whole States which are
intended to retain, even when connected together, a certain amount of
independence, aims at minimising the opportunities for constitutional
collision, or for friction between the different States which are
connected together, and also between any State and the Central power.
If we compare the mode in which this end is attained, either under the
Federal system or under the Colonial system, with the arrangements of
the Gladstonian Constitution, we shall easily see how little its authors
have attended to the necessity for avoiding occasions of constitutional
friction.
Where Federalism, as in America, appears in its best form, the skill
with which opportunities for collision or friction have been minimised
is almost above praise. The Federal or Central power is so constructed
as to represent the whole nation; its authority cannot by any
misrepresentation be identified with the power of one State more than
another. The Federal Government acts through its own officers, is
represented by its own Judiciary, and levies its own taxes without
recourse to State authorities. Every device which could be thought of
has been taken to make it unnecessary for the National Government to
come into direct collision with any State. It deals in general with the
individual citizens of the United States; it does not deal with the
particular States. The result is that on the one hand, whatever may be
said against the taxes imposed by Congress, they cannot by any stretch
of imagination be looked upon as tribute paid by one State to another,
say by Massachusetts to New York, or by New York to Massachusetts. It is
again unnecessary for the Federal Government to issue commands to a
State. There is, therefore, little opportunity for a contest between a
State and the National Executive. Whoever wishes to understand the
elaborate devices necessary to make Federalism work smoothly should
compare the clumsiness of the arrangements by which the Swiss
Confederacy has at times been compelled to enforce obedience of the
Cantons to the will of the Confederation, with the ingenuity of the
methods by which the Federal authorities of the United States exert
their authority over American citizens.
The English Colonial system on the other hand, though far less elaborate
than any form of Federalism, does, as a matter of fact, reduce within
very narrow limits the chances of collision between England and her
colonies. The system, however, succeeds, not because it is a model of
constructive art, but because it attempts very little, and can, owing to
favourable circumstances, leave to nominal dependencies something little
short of complete self-government. Where collisions do arise they are
disposed of by the habit of the Imperial Government always to give way.
The Gladstonian Constitution is, as we have already pointed out, a
combination between Federalism and Colonialism; it may possess some of
the merits, but it much more certainly displays some of the demerits of
each system. From Federalism is borrowed the idea of leaving the
settlement of constitutional questions to a Court. But the conception is
spoilt in the borrowing. All the difficulties which under a Federal
system beset the enforcement of judgments pronounced by a Federal Court
affect in an aggravated form the attempt to enforce in Ireland
judgments affecting the validity of Irish Acts, which judgments are
pronounced by a Committee of the English Privy Council sitting in
England. The Privy Council, moreover, while it has every weakness of the
Supreme Court of America, has more than one special weakness of its own.
It lacks moral authority, for it is an English Court sitting in England
and representing English opinion; it lacks jurisdiction, because while
it can pronounce on the validity of Irish, it cannot pronounce on the
validity of British Acts of Parliament; it does not possess a strictly
judicial character, because it is not only a Court called upon to give
judgments, but is also an administrative body called upon to deliver
opinions upon the validity of Irish Bills and of Irish Acts. Hence its
decrees come into direct collision with the proposals or enactments of
the Irish Parliament, and the Privy Council is made to appear not as a
body of Judges deciding cases between man and man, but as a body of
officials whose duty it is to oppose any unconstitutional action on the
part of the Irish Parliament. From Federalism again is borrowed the
contribution by Ireland towards meeting the expenses of the Empire. But
imposts which under a Federal system are a tax towards the payment of
common expenditure are under the Gladstonian Constitution a tribute to a
foreign power. From the Federal system again is taken that restriction
of legislative authority which hardly affects Parliaments such as that
of Victoria, and which under any circumstances is a source of
irritation. From the Colonial system, on the other hand, is derived the
theoretical supremacy of the British Parliament, the right of veto, and
the fatal dependence of the Irish executive on every vote of the Irish
legislature. From the colonies we therefore bring to Ireland sources of
dispute, of friction, and of irritation, which are unknown to a true
system of Federalism, whilst we do not give Ireland that practical
independence, and that immunity from taxation, which prevent our
ill-arranged connection with the colonies from causing real
dissatisfaction. Federalism has its merits and its defects; English
Colonialism works well enough; the sham Federalism and the sham
Colonialism of the Gladstonian Constitution must create between Great
Britain and Ireland all the causes of discontent which have from time to
time tried the strength of the American Union, and all the causes of
disturbance which from time to time reveal the weakness of the tie which
binds together our Colonial Empire.
Among the hypothetical virtues of the Gladstonian Constitution cannot
assuredly be numbered the merit of finality.
The Gladstonian Constitution therefore fails entirely to fulfil for any
practical purpose the conditions it is meant to satisfy. It neither
maintains the sovereignty of Parliament, nor makes adequate securities
for justice, nor offers a prospect of finality.
A criticism of Home Rule in its four forms gives then this result:--
[Sidenote: Result of criticism. 1. Home Rule as Federalism.]
Home Rule as Federalism means the immediate dislocation and the ultimate
rebuilding of the whole English Constitution; it involves the
transformation of an old and tried polity which centuries of experience
have admirably adapted to the wants of the English people, and which has
fostered the growth of the British Empire, into a form of government in
itself not free from defects, and successful where it has succeeded only
under conditions which the United Kingdom does not present.
[Sidenote: 2. Home Rule as Colonial independence.]
Home Rule in the form of Colonial independence involves far less change
in the institutions of Great Britain or in the complex arrangements of
the British Empire than does Federalism. It appears at first sight to be
an application to Ireland of institutions which, as they have been found
to answer their purpose in such countries as Canada and Victoria, may
also prove successful in Ireland. The appearance is delusive. The true
reasons why the Colonial system, self-contradictory as it is in theory
and unsatisfactory as it sometimes is in practice, has produced harmony
between England and her dependencies, are that the colonies are far
distant and are prosperous, that they feel pride in their relation to
the mother-country, that whilst contributing not a penny towards meeting
Imperial burdens they derive valuable and valued benefits from the
connection with the Empire, and lastly that they are not in reality
dependencies; the colonies willingly acquiesce in the supremacy of
England, because England protects them gratis and does not govern them
at all. It is not the Colonial system, but the conditions which make
that system succeed, which ought to engross our attention. These
conditions will not be found in any arrangement whatever between England
and Ireland. It is in the strictest sense impossible that Ireland whilst
forming part of the United Kingdom, or even of the British Empire,
should enjoy or endure the independence of Victoria. If the Act which
gives Victoria her constitution were reenacted with the necessary verbal
changes for Ireland, the constitution which satisfies the Victorians
would not satisfy the Irish, and for a good reason: the form would be
the same, but the effect would be different. A suffering and
discontented people will not accept words for facts.
One condition indeed, which more perhaps than any other ensures the
success of our Colonial system, Great Britain has in the case of Ireland
the power to reproduce. Immunity from Imperial taxation is one source of
Colonial loyalty to the Empire. If Ireland is to accept or to receive
the mixed independence and subordination of a colony, she ought to enjoy
the substantial advantage of a theoretically inferior position. The
Colonial system, as I have already insisted, involves the renunciation
of Imperial taxation.
[Sidenote: 3. Home Rule as Constitution of 1782.]
Home Rule as the revival of Grattan's Constitution is an impossibility.
The Constitution of 1782 belongs to a past age, and cannot by any
miracle of political art be at the present day restored to life.
[Sidenote: 4. Home Rule as Gladstonian Constitution.]
Home Rule under the Gladstonian Constitution means an artificial
combination of Federalism and Colonialism. Its aim is to secure the
advantages of two opposite systems; its result is to combine and
intensify the disadvantages of both systems. It inevitably tends towards
the dissolution of the United Kingdom into a Federation; it immediately
disturbs the bases of the Constitution by creating the artificial bond
of something like a Federal legislature between England and Ireland; it
introduces into the relations between each of the different divisions of
the United Kingdom elements of conflict which are all but inherent in
Federalism; it requires that absolute deference for the judicial
decisions of a Federal Court which if it exist anywhere can exist only
among a people like the Americans, imbued with legal notions, and as it
were born with innate respect for law. That this sentiment cannot exist
in Ireland is certain; whether it exist in the required intensity even
in England is problematical. The Gladstonian Constitution, again,
because it contains some institutions borrowed from the Colonial system
without the conditions requisite for their proper working so to speak
falsifies them. The Imperial supremacy of Great Britain, the Imperial
control over the army, the occasional interference with the Irish
executive and the veto of the Crown on Irish legislation, are each and
all of them under the Gladstonian Constitution certain to be the source
of justifiable dissatisfaction. To the ingenuity of the plan proposed by
Mr. Gladstone's Ministry hostile critics have given insufficient praise.
But the essential unreality which this ingenuity has concealed has not
even yet met with due condemnation. Since the day when the National
Assembly of France presented the brand-new French Constitution to the
acceptance of Louis XVI. no form of government has ever been seriously
proposed for adoption by an intelligent people so radically unworkable
as that Gladstonian Constitution which has been instinctively rejected
by the good sense of the British Parliament. The Constitution of France
lasted out two years; to a jurist it may appear conceivable, though
hardly probable, that by the vigorous aid of the British Parliament the
new Constitution for the United Kingdom might have lasted for as long a
period.
FOOTNOTES:
[29] Compare Mr. Gladstone's speech of 8th April, 1886, '_The Times_
Parliamentary Debates,' pp. 130, 131; and Mr. Gladstone's speech of 13th
April, _ibid._, pp. 255, 256.
[30] Compare _ibid._, pp. 130, 132.
[31] Compare the following expressions in Mr. Gladstone's
speeches:--"The essential conditions of any plan that Parliament can be
asked or could be expected to entertain are, in my opinion, these:--The
unity of the Empire must not be placed in jeopardy; the safety and
welfare of the whole--if there is an unfortunate conflict, which I do
not believe--the welfare and security of the whole must be preferred to
the security and advantage of the part. The political equality of the
three countries must be maintained. They stand by statute on a footing
of absolute equality, and that footing ought not to be altered or
brought into question. There should be what I will at present term an
equitable distribution of Imperial burdens. Next I introduce a provision
which may seem to be exceptional, but which in the peculiar
circumstances of Ireland, whose history unhappily has been one long
chain of internal controversies as well as of difficulties external, is
necessary in order that there may be reasonable safeguards for the
minority. I am asked why there should be safeguards for the minority.
* * * * *
"I have spoken now of the essential conditions of a good plan for
Ireland, and I add only this--that in order to be a good plan it must be
a plan promising to be a real settlement of Ireland. (Speech of Mr.
Gladstone, 8th April, 1886, '_The Times_ Parliamentary Debates,' pp.
130, 131.)
"I laid down, I say, five essential conditions, from which it appeared
to me we could under no circumstances depart. These were the essential
conditions under which in our opinion the granting of a domestic
Legislature to Ireland would be justifiable and wise--first, that it
must be consistent with Imperial unity; secondly, that it must be
founded upon the political equality of the three nations; thirdly, that
there must be an equitable distribution of Imperial burdens; fourthly,
that there should be safeguards for the minority; and, fifthly, that it
should be in the nature of a settlement, and not of a mere provocation
to the revival of fresh demands, which, according to the right hon.
gentleman, exceeded all reasonable expectation and calculation." (Speech
of Mr. Gladstone, 13th April, 1886, '_The Times_ Parliamentary Debates,'
p. 256.) Let it be observed that when Mr. Gladstone speaks of the unity
of the Empire he means the sovereignty of Parliament, for in the same
speech from which these extracts are taken he says, "The unity of the
Empire rests upon the supremacy of Parliament and on considerations much
higher than considerations merely fiscal." ('_The Times_ Parliamentary
Debates,' p. 132.)
[32] Dicey, 'Law of the Constitution,' lecture iv. Parliamentary
Sovereignty and Federalism.
[33] A singular instance of the attempt to dissolve a country into
States deserves notice. In 1852 a constitution was devised for New
Zealand, under which the country was to be governed by a central
legislature and subordinate provincial governments and councils. This
artificial federation was of short duration; the provincial governments
were in 1875 abolished by an Act of the General Assembly.--Todd,
'Parliamentary Government,' pp. 320-322.
[34] See Dicey, 'Law of the Constitution,' 2nd ed., pp. 35-79.
[35] _Contemporary Review_, vol. xii., p. 908.
[36] _Contemporary Review_, vol. xli., p. 921.
[37] 'Mr. Gladstone's Irish Constitution,' _Contemporary Review_, May,
1886, p. 616.
[38] 'Arguments for and against Home Rule,' by the Rev. Malcolm MacColl,
M.A., p. 71.
[39] 'The Irish Question,' by the Right Hon. W.E. Gladstone, pp. 36, 37.
[40] 'American Home Rule,' by E.L. Godkin, _Nineteenth Century_, June,
1886, pp. 793, 802.
[41] See Todd, 'Parliamentary Government in the British Colonies,' pp.
274-303, and especially p. 281, as to the position of the colonial
troops in Victoria.
[42] See Tarring, 'Chapters on the Law relating to the Colonies,' pp.
79-85.
[43] See Dicey, 'Law of the Constitution,' pp. 105, 106.
The somewhat complicated principles which govern what is popularly
called the right of veto on Bills passed by Colonial Legislatures, are
thus stated in the 'Rules and Regulations' published for the use of the
Colonial Office, Chapter III., Legislative Councils and Assemblies,
Rules 48-55:--
"48. In every Colony the Governor has authority either to give or to
withhold his assent to laws passed by the other branches or members of
the Legislature, and until that assent is given no such law is valid or
binding.
"49. Laws are in some cases passed with suspending clauses; that is,
although assented to by the Governor they do not come into operation or
take effect in the Colony until they shall have been specially confirmed
by Her Majesty, and in other cases Parliament has for the same purpose
empowered the Governor to reserve Laws for the Crown's assent, instead
of himself assenting or refusing his assent to them.
"50. Every Law which has received the Governor's assent (unless it
contains a suspending clause) comes into operation immediately or at the
time specified in the Law itself. But the Crown retains power to
disallow the Law; and if such power be exercised at any time afterwards,
the Law ceases to have operation from the date at which such
disallowance is published in the Colony.
"51. In Colonies having Representative Assemblies the disallowance of
any Law, or the Crown's assent to a reserved Bill, is signified by Order
in Council. The confirmation of an Act passed with a suspending clause
is not signified by Order in Council unless this mode of confirmation is
required by the terms of the suspending clause itself, or by some
special provision in the constitution of the Colony.
"52. In Crown Colonies the allowance or disallowance of any Law is
generally signified by despatch.
"53. In some cases a period is limited, after the expiration of which
Local Enactments, though not actually disallowed, cease to have the
authority of Law in the Colony, unless before the lapse of that time Her
Majesty's confirmation of them shall have been signified there; but the
general rule is otherwise.
"54. In Colonies possessing Representative Assemblies, Laws purport to
be made by the Queen or by the Governor on Her Majesty's behalf or
sometimes by the Governor alone, omitting any express reference to Her
Majesty, with the advice and consent of the Council and Assembly. They
are almost invariably designated as Acts. In Colonies not having such
Assemblies, Laws are designated as Ordinances, and purport to be made by
the Governor with the advice and consent of the Legislative Council (or
in British Guiana of the Court of Policy).
"55. In West Indian Islands or African Settlements which form part of
any general Government, every Bill or Draft Ordinance must be submitted
to the Governor-in-Chief before it receives the assent of the
Lieutenant-Governor or Administrator. If the Governor-in-Chief shall
consider any amendment indispensable, he may either require that
amendment to be made before the Law is brought into operation, or he may
authorize the officer administering to assent to the Bill or Draft on
the express engagement of the Legislature to give effect to the
Governor-in-Chief's recommendation by a supplementary Enactment."
The effect of these Regulations may be best understood by taking the
following supposed case as an example of their operation.
The Houses of the Victorian Parliament pass a Bill legalising the
marriage of a widower with his deceased wife's sister.
i. The Governor refuses his assent. The Bill is lost and never becomes
law.
ii. The Governor assents to the Bill on the 1st of January. It thereupon
becomes an Act, and law in Victoria.
iii. The Crown disallows the Act on the 1st of April. The disallowance
is published in Victoria on the 1st of May. From the 1st of May the Act
ceases to be law in any part of the British Dominions, but marriages
made under it between the 1st of January and the 1st of May are valid.
iv. The Crown allows the Bill. It thereupon becomes an Act which
continues in force in Victoria until it be repealed either by the
British Parliament or by the Victorian Parliament.
v. The Bill contains a clause that it shall not come into force unless
and until allowed by the Crown within two years of its passing. It is
not so allowed, it never comes into force, or in other words never
becomes law.
The point to be noted is that the Crown, or in reality the Colonial
Office, has and often exercises the power of placing a veto upon any
Colonial law whatever.
[44] Compare 'Victorian Parliamentary Paper,' 1883, 2 S., No. 22, and
the _Times_ of September 27, October 2, 5, 10, 12, 15 and 18, 1883.
[45] See Todd, 'Parliamentary Government in the Colonies,' p. 283.
[46] Todd, p. 283.
[47] See, e.g., a letter by Mr. Lecky in the _Times_ of January 13,
1886.
[48] See pp. 221, 222, _post._
[49] See a letter in the _Spectator_ of January 2, 1886, on 'Home Rule
or Separation,' by Mr. J. Cotter Morison.
[50] See p. 197, _ante._
[51] _The Times_, May 5, 1886.
[52] Under the political arrangements connecting the two countries, it
was practically impossible that the two crowns could by legal means be
separated without the assent of the English Parliament. George III. was
necessarily a member both of the English and of the Irish Parliaments;
and it is inconceivable that as King of Ireland he should have assented
to a bill passed by the Irish Houses of Parliament which was strenuously
opposed by the English Houses of Parliament. The madness of the King
raised a case not provided for by the Constitution, and the accidental
difference of opinion between the English and Irish Houses of
Parliament, as to the Regency, has been treated as possessing more
importance than from a constitutional point of view belonged to it.
[53] See Appendix for the Government of Ireland Bill. It is there
printed in extenso. The clauses which mainly concern the points
discussed in the following pages are printed in italics. Readers who
wish to understand my comments on the Gladstonian Constitution, should
study the Bill itself. I am anxious to call attention to its words,
because I am quite aware that on more than one point the interpretation
put by me upon its provisions will be disputed by supporters of Mr.
Gladstone's policy. My interpretation is, I believe, sound, but it would
be unfair not to give my readers the opportunity of judging for
themselves as to its soundness.
[54] Criticism of particular provisions was made the easier by the fact
that hesitations of statesmanship betrayed themselves throughout the
Bill in blunders of draughtsmanship. The very heading of the Bill is a
misdescription, and involves confusion of ideas. The expressions "status
of the Crown," "Executive Government," "Imperial Parliament," are from a
legal point of view open to severe criticism; and the substitution of
the name "Irish legislature" or "Legislature of Ireland" for the plain
intelligible term Irish Parliament, involves something like political
cowardice. For errors of this kind, though in one sense errors of
draughtsmanship, official draughtsmen are, it must in fairness be
remembered, no more responsible than is an amanuensis for the erasures
and blots which mar a letter written or re-written to suit the
contradictory views of a writer who does not quite know his own meaning
and is not anxious to put his meaning into plain words. (See for some
excellent criticisms on the Government of Ireland Bill two letters in
the _St. James's Gazette_ of 20th and 22nd April, 1880 signed II.)
[55] My statement that the Government of Ireland Bill repeals the main
provisions of the Act of Union is made, not because I anticipate that
the Bill if passed would lead to a repeal of the Union, but because it
is my opinion that the Bill if passed would, as a matter of law, repeal
the provisions of that Act, under which the United Kingdom is
represented in one and the same Parliament to be styled the Parliament
of Great Britain and Ireland. The effect of the Bill would be in very
general terms that Ireland would be represented in a Parliament which
contained no English or Scotch representatives, and Great Britain would
be represented in a Parliament which contained no Irish representatives.
Occasionally and for one definite purpose, and no other, namely for the
purpose of modifying the terms of the Gladstonian Constitution, a
Parliament might be convened which contained representatives from
England, Scotland, and Ireland. By what name any one of these assemblies
might be called is a matter of indifference; but that either the British
Parliament which contained no Irish representatives, or the Irish
Parliament which contained no English or Scotch representatives, or the
exceptional and only occasionally convoked body whose one function is to
modify a single Act of Parliament, could be considered by any lawyer the
"one and the same Parliament" in which the United Kingdom is now
represented, is in my judgment all but incredible. If, however, the term
"repeal" causes offence or misunderstanding, let us substitute the word
"modify," which, however, I believe to be less accurate. The lay reader
ought to be reminded that "Statutes may be repealed either by express
words contained in later Acts of Parliament, or by implication," and
that "a repeal by implication is effected when the provisions of a later
enactment are so inconsistent with, or repugnant to, the provisions of
an earlier enactment that the two cannot stand together" (Wilberforce,
'Statute Law,' p. 310). My contention is that the Government of Ireland
Bill would on becoming law be so inconsistent with portions of 39 & 40
Geo. III. cap. 67, as to amount to a repeal thereof. (For a statement of
an opposite opinion, see Mr. Gladstone's pamphlet on the Irish Question
pp. 38, 39.)
[56] The Government of Ireland Bill, clause 7.
[57] See the Government of Ireland Bill, clauses 1, 9.
[58] See the Government of Ireland Bill, clause 7.
[59] _Ibid_., clause 25.
[60] _Ibid_., clause 7.
[61] As to the disallowance of Colonial bills, see pp. 202-5, _ante_.
[62] See the Government of Ireland Bill, clause 25, sub-clause (_a),
(b_) and (_c_).
[63] Government of Ireland Bill, clause 24.
[64] Government of Ireland Bill, clauses 37, 39. On the whole question
as to the mode in which the Gladstonian Constitution, or in other words
the Government of Ireland Bill, is intended to be altered, readers are
specially referred to the terms of the Bill itself. The whole matter is
involved in so much controversy that one can hardly make any statement
about it which an opponent will not question. The parts of the Bill to
be studied are clauses 37 and 39.
[65] See Government of Ireland Bill, clause 39.
[66] I am quite aware that the account I have given of the proposed
Gladstonian Constitution is likely not to be accepted as correct by some
of the supporters of the Government of Ireland Bill. That measure by
designating both what I have termed the British Parliament and the
Imperial Parliament by the one name Imperial Parliament, conceals in my
judgment the extent of the alteration which the Bill contemplates. For
the sake of clearness of thought I must request my readers to
distinguish carefully four different bodies:--
1. The Parliament of the United Kingdom of Great Britain and Ireland.
This is the actually existing Parliament constituted by the Act of Union
with Ireland.
2. The British Parliament; that is, the Parliament of the United Kingdom
with the Irish representatives removed from it. This body is called
under the Government of Ireland Bill the Imperial Parliament. It is a
distinctly different body from the Parliament of the United Kingdom.
Whether it does or does not inherit the legal powers of the Parliament
of the United Kingdom is a separate question afterwards to be
considered. All that I now insist upon is that it is a different body.
3. The Irish Parliament, a body admittedly constituted or to be
constituted under the Government of Ireland Bill, and therein called the
Irish Legislature.
4. The Imperial Parliament, a body in effect consisting of the British
Parliament with the addition of the Irish representatives, or in other
words of the British Parliament combined with the Irish Parliament. This
body is convoked, as I have pointed out, only for the special purpose of
altering the Gladstonian Constitution. It is termed in the Government of
Ireland Bill the Imperial Parliament.
What I am most anxious my readers should note is that the bodies 2 and 4
are each termed in the Bill the Imperial Parliament, and thereby not
only confused together, but as far as possible each identified with the
existing Parliament of the United Kingdom, with which neither really
corresponds. The British Parliament differs from the Parliament of the
United Kingdom certainly in constitution, if not also in authority.
The so-called Imperial Parliament nearly corresponds with the Parliament
of the United Kingdom in constitution, but differs from it in function
and authority.
[67] In reference to the legal effect of the Government of Ireland Bill
on the sovereignty of Parliament, see on the one side the speeches of
Sir Henry James of 13th May, 1886, '_The Times_ Parliamentary Debates,'
p. 468; of Mr. Finlay, 21st May, 1886, '_The Times_ Parliamentary
Debates,' p. 614; and an article by Sir William Anson on the Government
of Ireland Bill and the Sovereignty of Parliament in the _Law Quarterly
Review_ for October, 1886. See on the other side Mr. Gladstone's
speeches in Parliament of 8th April, 1886, '_The Times_ Parliamentary
Debates,' p. 125; of 13th April, 1886, _ibid._ 255; of 10th May, 1886,
_ibid._ 404; and of 7th June, 1886, _ibid._ p. 861; of Mr. Parnell of
7th June, _ibid._ p. 847; and 'The Government of Ireland Bill,' being a
speech delivered by Mr. James Bryce, M.P., on 17th May, 1886, and
published as a pamphlet. My disagreement with Mr. Bryce's conclusions
makes me anxious to express my great admiration for his speech, which is
by far the best statement I have read of the view undoubtedly held by
Mr. Gladstone and his followers, that the Bill did not affect the
sovereignty of Parliament. The reader should notice that the question
throughout between the late Government and its opponents was as to the
effect of the Bill on the sovereignty of what I have called the "British
Parliament," _i.e._ the body, by whatever name it be called, which
consists of the representatives of England and Scotland only, and does
not include representatives of Ireland.
[68] As to the sovereignty of Parliament, see Dicey, 'Law of the
Constitution,' pp. 35-79.
[69] Government of Ireland Bill, clause 39.
[70] I do not, of course, deny for a moment that an Act could be so
drawn as to give Ireland an Irish Parliament, to remove the Irish
members from the Parliament of the United Kingdom, and at the same time
to reserve to the residue of the United Parliament, or Rump, the full
sovereignty now possessed by the Parliament of the United Kingdom. What
I do insist upon is, that it is open to question whether the Government
of Ireland Bill was so drawn as to achieve these results. Nor is the
question unimportant. The fundamental ambiguity of the Bill obviously
arose from the fact that its authors, whilst wishing to promise in
appearance to Ireland that the new Irish constitution should not be
changed by a body in which Ireland had no representatives, also wished
to soothe the apprehensions of England by tacitly reserving to the
British Parliament the power of altering or repealing the Irish
constitution without recalling the representatives of Ireland. The
consequence is that the Bill proclaims in so many words that its
provisions shall be altered in one way only, but by implication, as its
authors suppose, provides that its provisions may be altered in another
and quite different way. If this is the intended effect of the Bill it
ought to have been made patent on its face. In constitutional matters,
as indeed in all the serious concerns of life, ambiguity and uncertainty
of expression is the source both of misunderstanding and of danger.
The question of the sovereignty of the British Parliament might, it
should be noted, arise in another and more perplexing form, which
received, unless I am mistaken, no attention during the debates on the
Irish Government Bill. Admit for the sake of argument that the British
Parliament can legislate for Ireland; is it equally certain that the
Imperial Parliament (i.e. the British Parliament with the addition of
Irish representatives) cannot claim to legislate for England or for the
whole British Empire? No doubt the Gladstonian Constitution proposes
that the Imperial Parliament should be convened only for a limited
definite purpose; but is it certain that the Imperial Parliament, which
would in its constituent parts be in effect the reunited Parliament of
the United Kingdom, might not when convened claim to reassume sovereign
power? The addition of a hundred Irish members might turn a minority in
the British Parliament into a majority in the Imperial Parliament; can
we feel sure that the English minority in the British Parliament would
resist the temptation to exalt the authority of a body in which they
would be supreme? The enquiry sounds to Englishmen a strange one; but
the annals of foreign constitutions suggest that an assembly which,
though convoked for a particular purpose, is able from any point of view
to consider itself sovereign is with difficulty restrained from
asserting supreme power. From this side the Gladstonian Constitution
might prove a menace to the supremacy of the British Parliament.