CHAPTER X

THE FRAMEWORK OF HOME RULE

I.

THE ELEMENTS OF THE PROBLEM.

It was not only to support the principle of Home Rule for Ireland that I

followed in some detail the growth of the Liberal principle of

government as applied to outlying portions of the British Empire. The

historical circumstances which moulded the form of each individual

Colonial Constitution, the Constitutions themselves, and the

modifications they have subsequently undergone, supply a mass of

material rich in interest and instruction for the makers of an Irish

Constitution. Nor is the analogy academical. Ireland is at this moment

under a form of government unique, so far as I know, in the whole world,

but resembling more closely than anything else that of a British Crown

Colony where the Executive is outside popular control, and the

Legislature is only partially within it; with this additional and

crowning inconvenience, that the Irish Crown Colony can obstruct the

business of the Mother Country. What we have to do is to liberate Great

Britain and to give Ireland a rational Constitution--not pedantically

adhering to any colonial model, but recognizing that, however closely

her past history resembles that of a Colony, Ireland, by her

geographical position, has a closer community of interest with Great

Britain than that of any Colony.

Three main difficulties have to be contended with: first, that the

system to be overthrown is so ancient, and the prejudice against Home

Rule so inveterate; second, the Irish are not agreed upon any

constructive scheme; third, the confusion in the popular mind between

"Federal" and other systems of Home Rule.

A.

With regard to the first of these obstacles, we have got to make a big

national effort to take a sensible and dispassionate view of the whole

problem. We must cease to regard Ireland as an insubordinate captive, as

a "possession" to be exploited for profit, or as a child to be humoured

and spoiled. All this is _vieux jeu_. It belongs to an utterly

discredited form of so-called Imperialism, which might more fitly be

called Little Englandism, masquerading in the showy trappings of

Bismarckian philosophy. We have gone too far in the "dismemberment" of

our historic Empire, and near enough to the dismemberment of what

remains, to apply this worn-out metaphor to the process of making

Ireland politically free.

In Ireland we must build on trust, or we build on sand.

What is best for Ireland will be best for the Empire.

Let us firmly grasp these principles, or we shall fail. They may be

carried to the extreme point. If it were for Ireland's moral and

material good to become an independent nation, it would be Great

Britain's interest to encourage her to secede and assume the position of

a small State like Belgium, whose independence in our own interests we

guarantee. Since nobody of sense, in or out of Ireland supposes that her

interest lies in that direction, we need not consider the point; but it

is just as well to bear in mind that a prosperous and friendly neighbour

on a footing of independence is better than a discontented and backward

neighbour on a footing of dependence. The corollary is this--that any

restrictions or limitations upon the subordinate Irish Government and

Parliament which are not scientifically designed to secure the easy

working of the whole Imperial machinery, but are the outcome of

suspicion and distrust, will serve only to aggravate existing evils.

When the supreme object of a Home Rule measure is to create a sense of

responsibility in the people to whom it is extended, what could be more

perversely unwise than to accompany the gift with a declaration of the

incompetence of the people to exercise responsibility, and with

restraints designed to prevent them from proving the contrary?

Centuries of experience have not yet secured general acceptation for

this simple principle. In this domain of thought the tenacity of error

is marvellous, even if we make full allowance for the disturbing effect

on men's minds of India and other coloured dependencies where despotic,

or semi-despotic, systems are in vogue. Since the expansion of England

began in the seventeenth century, it cannot be said that the principle

of trusting white races to manage their own affairs has ever received

the express and conscious sanction of a united British people. It has

been repeatedly repudiated by Governments in the most categorical terms,

and repudiated sometimes to the point of bloodshed. In other cases it

has met with lazy retrospective acquiescence on the discovery that

powers surreptitiously obtained or granted without formal legislation

had not been abused. The Australian Acts of 1850 and 1855 were the first

approach to a spontaneous application of the full principle; but even

then many statesmen were not fully alive to the consequences of their

action, while there was no public interest, and very little

Parliamentary interest, in the fate of these remote dependencies. The

fully developed modern doctrine of comradeship with the great

self-governing Dominions, a doctrine which we may date from the

accession of Mr. Chamberlain to Colonial Secretaryship in 1895, was not

the natural outcome of a belief in self-government, but a sudden and

effusive acceptation of its matured results in certain definite cases.

Irish Home Rule itself had, in the preceding decade, twice been rejected

by the nation. With the first opportunity, after 1895, of testing belief

in the principle, namely, in the Transvaal Constitution of 1905, the

Government failed. Finally, in 1906, when, to redeem that failure, for

the first time in the whole history of the Empire a Cabinet

spontaneously and unreservedly declared its full belief in the

principle, and translated that belief into law, the whole of the

Opposition, representing nearly half the electorate, washed their hands

of the policy, and, if the constitutional means had existed, would,

admittedly, have defeated it, as they had defeated the Home Rule Bills

of 1886 and 1893. The change of national opinion has, I believe, been

considerable; but the circumstances remain ominous for the dispassionate

discussion of the Irish Constitution. Patriotic people can only do their

best to ensure that the grant of Home Rule shall not be nullified by

restrictions and limitations which, if they are designed merely to

appease opposition, are destined to create friction and discontent.

I am far from implying that restrictions are bad things in themselves.

All Constitutions, whether the sole work of the men who are to live

under them, like that of the United States, or the gift of a Sovereign

State to a dependency, or the joint work of a Sovereign and a dependent

State, contain restrictions designed for the common good. The criterion

of their value is the measure of consent they meet with from those who

have to live under and work the Constitution, and it is that

circumstance which makes it urgent that Irish opinion should be evoked

upon their future Constitution, and that the Irish Nationalist party

should think out its own scheme of Home Rule. The Constitution of the

United States contains many self-imposed restrictions upon the powers

both of the Central and the State Governments, in the interest of

minorities; and nobody accuses the Americans of having insulted

themselves.

It will be no slur on Ireland, for example, if the most elaborate

safeguards against the oppression of the Protestant minority are

inserted in the Bill, provided that Nationalist Ireland, recognizing the

fears of the minority, spontaneously recommends, or, at any rate, freely

consents to their insertion--a consent which could not, of course, be

expected if their tendency was to derange the functions of Government or

cripple the Legislature.

On the other hand, it would be a slur on Ireland which she would justly

resent, besides being a highly impolitic step, to deny to the Irish

Executive an important power, such, for example, as the control of its

own police.

B.

It is a grave difficulty that there is no public opinion in Ireland as

to the form of the Irish Constitution. That is an almost inevitable

result of political conditions past and present. Violent intestinal

antagonisms are not favourable to constructive thought. The best men of

a country, working in harmony, are needed to devise a good Constitution,

and if any Irishman could succeed in convening a Conference like that

which created the South African Union, he would be famous and honoured

for ever in the annals of the future Ireland. That Conference, we must

remember, was itself the result of the grants of Home Rule two years

previously, and these grants in their turn were greatly facilitated by

the co-operation of Britons and Dutchmen.[73] Canada, in 1840, is a

warning of the errors made in constructing a Constitution without such

co-operation. Eventually it had to be torn up and refashioned. The best

way of avoiding any such error in Ireland's case is to expel the spirit

of distrust which animated the framers of the Canadian Union Act of

1840.

C.

So much for the spirit in which we should approach the problem, and I

pass to the consideration of the problem itself. What is to be the

framework of Home Rule? I take it for granted that there must, in the

broad sense, be responsible government, that is to say, an Irish

Legislature, with an Irish Cabinet responsible to that Legislature, and,

through the Lord-Lieutenant, to the Crown. So much is common ground with

nearly all advocates of Home Rule, for I take it that there is no

question of reverting to anything in the nature of the abortive Irish

Council Bill of 1907.[74] But agreement upon responsible government does

not carry us far enough. What are to be the relations between the

subordinate Irish Parliament and Government, and the Imperial Parliament

and Government?

We immediately feel the need of a scientific nomenclature. In popular

parlance, two possible types of Home Rule are recognized--"Federal" and

"Colonial." Both, of course, may be "Colonial," because there are

Colonial Federations as well as Colonial Unitary States. But,

nomenclature apart, the two possible types of Irish Home Rule correspond

to two distinct types of subordinate Constitution. The "Colonial" type

is peculiar to the British Empire, the other is to be found in many

parts of the world--the United States, for example, and Germany, and

Switzerland.

Let us examine these types a little more closely, confining ourselves as

far as possible to the British Empire, past and present, because within

it we can find nearly all the instruction we need. As I showed in my

sketch of the growth of Colonial Home Rule, all the Colonies now classed

as self-governing, together with the American Colonies before their

independence, were originally unitary States, subordinate to the Crown,

each looking directly to Great Britain, possessing no constitutional

relation with one another, and gradually obtaining their individual

local autonomies under the name of "Responsible Government." New Zealand

and Newfoundland alone have maintained their original individualities,

and their Constitutions, from an historical standpoint, are the best

examples of the first of the two types we are considering. Now for the

Federal type. Very early in the history of the American Colonies (in

1643) the New England group formed amongst themselves a loose

confederation, which was not formally recognized by the British

Government, and which perished in 1684. In the next century the War of

Independence produced the confederation of all the thirteen Colonies,

but this was little more in effect than a very badly contrived alliance

for military purposes, and it was a keen sense of the inadequacy of the

bond that stimulated the construction of the Great Constitution of 1787,

the first Federal Union ever devised by the English-speaking race. All

the States combined to confer certain defined powers upon a Federal

Parliament, to which each sent representatives, and upon a Federal

Executive whose head, the President, all shared in electing. At the same

time, each State preserved its own Constitution and the power to amend

it, with the one broad condition that it must be Republican, and subject

to any limitation upon its powers which the Federal Constitution

imposed.

Eighty years elapsed before any similar Federal Union was formed by

Colonies within the British Empire. As we have seen, all the various

North American Colonies which received Constitutions in the last quarter

of the eighteenth century, and all the Australasian Colonies similarly

honoured in the nineteenth century, were placed in direct relation to

the British Crown and in isolation from one another. Upper Canada had no

political ties with Lower Canada, Nova Scotia none with New Brunswick,

Victoria none with Tasmania. Several abortive schemes were proposed at

one time or another for the Federation of the North American Colonies,

but the first measure of amalgamation, namely, the union of the two

Canadas in 1840, was a step in the wrong direction, and bore, as I have

shown, a marked resemblance, particularly in the motives which dictated

it, to the Union of Great Britain and Ireland. It was a compulsory

Union, imposed by the Mother Country, and founded on suspicion of the

French. So far from being Federal, it was a clumsy and unworkable

Legislative Union of the two Provinces, which lasted as long as it did

only because the principle of responsible government, established in

1847, covered a multitude of sins. The somewhat similar attempt in

Australia in 1843 to amalgamate the two settlements of Port Phillip,

afterwards Victoria, and New South Wales, at a time when each had

evolved a distinct individuality of its own, was defeated by the

strenuous opposition of the Port Phillip colonists, and revoked in 1850.

Meanwhile, all aspirations after Federation in the outlying parts of the

Empire were discouraged by the home authorities. The most practical plan

of all, Sir George Grey's great scheme of South African Federation in

1859, was nipped in the bud. Canada eventually led the way. The failure

of the Canadian Union brought about its dissolution in 1867 by the

Provinces concerned, under the sanction of Great Britain (an example of

really sensible "dismemberment"), and their voluntary Federation as

Ontario and Quebec, together with Nova Scotia and New Brunswick, under

the collective title of the Dominion of Canada, and the subsequent

inclusion in this Federation of all the North American Provinces with

the exception of Newfoundland.

Note, at the outset, that this Federation differed from that of the

United States in being founded on the recognition of an organic relation

with an external suzerain authority--an authority which the Americans

had abjured in framing their independent Republic. In the matter of

constitutional relations with Great Britain, the Dominion of Canada now

assumed, in its collective capacity, the position formerly held by each

individual Province, and still held by Newfoundland. Direct relations

between the individual Provinces of the Federation and the Mother

Country practically ceased, and were replaced by a Federal relation with

the Dominion. Provincial Lieutenant-Governors are appointed by the

Dominion Government acting in the name of the Governor-General, not

directly by the British Government,[75] and, although in constitutional

theory the Crown, as in every least fraction of the Empire, is the sole

and immediate source of executive authority, and an indispensable agent

in all legislation, not only in the Dominion, but in the Provinces,[76]

in actual practice the only organic connection left between a Province

and Great Britain is the right of appeal directly to the King in

Council, that is, to the Judicial Committee of the Privy Council,

without the intervention of the Supreme Court of Canada.

So much for the external relations of the Dominion. In respect to the

domestic relations between the Provinces and the Dominion, the Federal

principle used in Canada is fundamentally the same as that which obtains

in the United States and in every true Federation in the world, whether

Monarchical or Republican, whether self-contained, like the United

States, Germany, and Switzerland, or linked, as in the British Empire,

to a supreme and sovereign Government centred in London. Each Province,

as in every genuine Federation, is an _imperium in imperio_, possessing

a Constitution of its own, and delegating central powers to a Federal

Government. The nature and extent of the powers thus delegated or

reserved, and the character of the Federal Constitution itself, vary

widely in different Federations, but we need not consider these

differences in any detail. Let us remark generally, however, that the

powers of the Canadian Province are much smaller than those of the

American State, and that what lawyers call "the residuary powers"--that

is, all powers not specifically allotted--belong to the Dominion,

whereas in the United States and Switzerland they belong to the State or

Canton.

The Australian Commonwealth of 1900 came into being in the same way as

the Dominion of Canada, by the voluntary act of the several Colonies

concerned--Victoria, New South Wales, Tasmania, South Australia, Western

Australia, Queensland--under the sanction of the British Crown and

Parliament. New Zealand stood out, and remained, like Newfoundland, a

unitary State directly subordinate to Great Britain. Nor, in the matter

of relations with the Mother Country, were the federating Colonies

merged so completely in the Commonwealth as the Provinces of Canada in

the Dominion. The Canadians had not only to construct the Dominion

Constitution, but new Constitutions for two of the federating

Provinces--Ontario and Quebec--and it was natural, therefore, that they

should identify the Provinces more closely with the Dominion. The

Australians, having to deal with six ready-made State Constitutions,

left them as they were, subject only to the limitations imposed by the

Commonwealth Constitution. One of the results is that the State

Governors are still appointed directly by the British Government, not by

the Commonwealth. This constitutional arrangement, however, has no very

practical significance. The right of appeal direct from a State Court to

the King in Council, without the intervention of the High Court of

Australia, remains, as in Canada, the only direct link between the

individual States and the British Government.

The Federal tie between the States and the Commonwealth, as defined in

the Act of 1900, is looser than that between the Provinces of Canada and

the Dominion, and bears more resemblance to the relation between a State

and the Federal Government of the United States. As in that country and

in Switzerland, residuary powers rest with the State or Canton

Governments, not with the Federal Government.

The South African Union of 1909, comprising the Colonies of the Cape of

Good Hope, Natal, the Transvaal, and the Orange River Colony, had a

Federal origin, so to speak, in that the old Colonies agreed to abandon

a great part of their autonomies to a central Government and

Legislature; but the spirit of unity carried them so far as almost to

annul State rights. The powers now retained by the provincial

Legislatures are so small, and the control of the Union Government is so

far-reaching, that the whole system is rightly described as a Union, not

as a Federation. The Provinces, which are really little more than

municipalities, have no longer any relation except in remotest

constitutional theory with the Mother Country, their Administrators are

appointed by the Union, and, unlike the Provinces of Canada and the

States of Australia, they have not even an internal system of

responsible government.[77] No direct appeal lies to the King in Council

from the provincial Courts, which are now, in fact, only "divisions" of

the Supreme Court of South Africa. The Provinces, in short, do not

possess "Constitutions" at all. Their powers can be extinguished without

their individual assent by an Act of the Union Parliament, whereas the

Canadian Dominion has no power to amend either the Dominion or the

Provincial Constitutions, and in Australia constitutional amendments

must be agreed to by the States separately as well as by the

Commonwealth Parliament. But these revolutionary changes in the status

of the old South African Colonies were brought about, let us remember,

by the free consent of the inhabitants of South Africa, after prolonged

deliberation.

The United States, the Australian Commonwealth, and the Canadian

Dominion are, then, the three genuine Federations which the

English-speaking races have constructed. The two last are included in

the present British Empire, and they stand side by side with the three

unitary Colonies--South Africa, New Zealand, and Newfoundland. The

constitutional relation of each of these five bodies to the Mother

Country is precisely the same, although they differ widely in internal

structure, as in wealth and population. Within each of the two

Federations, as we have seen, there exists a nexus of minor

Constitutions, State or Provincial, which have virtually no relations

with the Mother Country, but are integral parts of the major Federation.

II.

FEDERAL OR COLONIAL HOME RULE?

We are now in a position to pose our main question, and the simplest

course is to pose it in an illustrative form. Broadly speaking, is the

relation between Ireland and Great Britain to resemble that between the

Province of Quebec and the Dominion of Canada, or that between the

Dominion of Canada and the United Kingdom? One might equally well

contrast the relation of Victoria to the Australian Commonwealth with

the relation of New Zealand or Newfoundland to the United Kingdom. I

choose the Canadian illustration because it is more compact and

striking, and because it corresponds more closely to the history and to

the realities of the case. Moreover, Quebec, although she had a no more

stormy domestic history, owing to lack of Home Rule, than Ontario, is

bi-racial, and on that account underwent in 1840 compulsory amalgamation

with her wholly British neighbour, just as Ireland, originally

bi-racial, was forcibly amalgamated with Great Britain in 1800. The

Canadian partners agreed to break this bond, to fashion a better one on

the Federal principle, in the manner vaguely adumbrated by advocates of

the "Federal" principle for Irish Home Rule, and, as regards their

relations with the Mother Country, to pool their interests and accept

representation by the Dominion alone.

Quebec Home Rule or Dominion Home Rule? Needless to say, these are only

broad types chosen expressly to illustrate two possible types of

relation between Ireland and Great Britain, which I shall henceforth

refer to as "Federal" and "Colonial." There is no reason why we should

not profit in other respects by both examples, nor is there any

possibility of copying either faithfully.

Both types fulfil the fundamental condition laid down at the beginning

of our discussion--both, that is to say, are consistent with responsible

government in Ireland. Quebec, in its inner working, is a microcosm of

the Dominion, and the Dominion system of responsible government is

almost an exact copy of the unwritten British Constitution. In Quebec

(as in all the Provinces and States of Canada and Australia) there is a

Cabinet, headed by a Prime Minister, composed of Members of the

Legislature, and responsible at once to that Legislature and to the

Lieutenant-Governor as representing the Crown. Ireland, under a similar

system (and, _a fortiori_, if she were put in the position of the

Dominion), would have a Cabinet responsible at once to the Irish

Legislature and to the Lord-Lieutenant representing the Crown. The

parallel is more apposite in the case of the Province of Quebec than in

the case of an Australian State, because, as I noted above, the

provincial Lieutenant-Governor is actually appointed by the Dominion

Government, and is in his turn responsible in the first instance to that

Government, just as the Irish Governor, or Lord-Lieutenant, who, under

Home Rule, will for the first time justify his existence, is, and will

still be, appointed by the British Government.

But with the possibility of responsible government granted, it must be

confessed that the arguments against "Quebec Home Rule" as a measure of

practical politics at the present moment, are insuperable. In the first

place there is no question in the coming Bill of federalizing the United

Kingdom on the lines of the Dominion of Canada--that is, of constructing

a new Federal Parliament elected by the whole realm, together with new

local Legislatures elected by the various fractions of the realm.

Scottish and Welsh Home Rule are in the air, but they are not practical

issues. English Home Rule is not even in the air. I mean that

Englishmen, whatever their views on the congestion of Parliamentary

business owing to the pressure of Irish, Welsh, and Scottish affairs,

have not seriously considered the idea of a subordinate Legislature

exclusively English, which would be just as essential a feature of a

completely federalized kingdom as subordinate Legislatures exclusively

Irish, Scottish, and Welsh.

Not that it is essential to the federalization of the United Kingdom

that Ireland, Scotland, England, and Wales, should all have separate

Legislature. Any one of these fractions could coalesce with another or

others in a joint Legislature. It would be technically possible, though

highly unreasonable, to go to the extreme of giving Great Britain,

regarded as one Province, a separate Legislature; Ireland, regarded as

another Province, a separate Legislature; and, above these two

subordinate bodies, a new Imperial Parliament representing the whole

realm. Such a dual Federation was nearly coming about in Canada, when

Ontario and Quebec dissolved their Union and resolved to federate. It

became a quadruple Federation, owing to the adhesion of Nova Scotia and

New Brunswick; but in a dual form it would have worked just as well. It

is scarcely necessary to say that the disparity in population,

resources, and power between Ireland and Great Britain render a dual

Federation, which, of course, involves three Legislatures, chimerical.

What I want to insist on is that, whatever subdivisions are adopted, it

is absolutely essential to every Federation that there should be a

division of powers between a central and at least two local

Legislatures--three altogether. That is the minimum. Other things are

also essential, but for the moment we can confine ourselves to the

outstanding requirement. Now, there is no question in the coming Bill of

any such Federation. Later years may see such a development, whether

from pressure of work on the Imperial Parliament or from irresistible

demand for Home Rule from Scotland or Wales, or both, but not next year.

The Bill will contemplate two Parliaments, not three, namely, the

existing Imperial Parliament and the Irish Legislature. There is,

therefore, no question of Federal Home Rule, and the term "Federal," as

applied to Irish Home Rule at the present time, is meaningless.

Nor can the coming Bill for Ireland make any preparation, technically,

for a general Federation. Morally, as I shall show, it might have an

important effect in stimulating local sentiment, not only in England,

Scotland, and Wales, but in Ireland, towards a general Federation in the

future, but in its mechanical structure it must be not merely

non-Federal, but anti-Federal. One often hears it carelessly propounded

that Irish Home Rule, so devised as to be applicable in later years, if

they so desire, to Scotland, Wales, and England, will give us by smooth

mechanical means a General Federation. This is a fallacy. At one stage

or another, the earliest or the latest, we should have to create a

totally new central Parliament, still elected by the whole people, but

exclusively devoted to Imperial affairs, and wholly exempt from local

business, before we possessed anything in the nature of a Federation.

But, whatever the future has in store, it would be a scandal if Irish

Home Rule were to be hampered or delayed by the existence of Scotch or

Welsh claims, and it is earnestly to be hoped that no action of that

kind will be taken. The case of Ireland is centuries old, and more

urgent than ever. It differs radically from any case that can possibly

be made for Scotland and Wales.

The Bill, I repeat, must be anti-Federal, centrifugal. In the case of

Ireland we have first to dissolve an unnatural union, and then to revive

an old right to autonomy, before we can reach a healthy Federal Union.

Such, exactly, was the history of Canada. If, in that case, the

dissolution of the Legislative Union and the construction of the Federal

Union were consummated simultaneously in the British North America Act

of 1867, they were nevertheless two distinct phases, and of these two

phases the first, implying the revival of the old separate autonomies,

was the indispensable precursor of Federal Union. This antecedent

recognition of autonomy was not peculiar to Canada. Every Federation in

the world arose in the same way, by the voluntary act of States under

one Crown or suzerainty, but independent of one another, and it is of

the essence of Federalism that this psychological condition should

exist. Compulsory Federation would not last a year. It would indeed be

practicable to federalize the United Kingdom by one Legislative Act, but

the prior right to and fitness for complete Home Rule on the part of

each of the component parts would have to be implicitly recognized.

It needs only a moment's consideration of Anglo-Irish history to see the

special applicability of the psychological rule to Ireland. The evils of

the Canadian Union, during the twenty-seven years of its duration, are

infinitesimal beside the mischief, moral and material, which have been

caused to both partners by the forcible amalgamation of Great Britain

and Ireland; the waste of indigenous talent, industrial and political;

the dispersion all over the globe of Irishmen; the conversion of friends

into enemies, of peaceable citizens into plotters of treason, of farmers

into criminals, of poets and statesmen into gaolbirds; the check to the

production of wealth and Anglo-Irish commerce; the dislocation and

demoralization of Parliamentary life; and, saddest results of all, the

reactionary effect upon British statesmanship, domestic and Imperial,

and the deterioration of Irish character within Ireland. The voluntary

principle--at any rate, among the English-speaking races--is as

essential to a true Union, like that of the South African Colonies or

that of Scotland and England, as to a Federation. It is a sheer

impossibility to create a perfect, mechanical Union on a basis of hatred

and coercion; witness the strangely anomalous colonial features

surviving in Irish Government--the Lord-Lieutenancy, the separate

administration, and the standing army of police.

Persons inclined to reckon the advantages, whether of Federation or of

Union, in pounds, shillings, and pence, may regard the psychological

requirement as fanciful. It is not fanciful; on the contrary, it is

related in the clearest way to the concrete facts of the situation.

Before there is any question of Federation Ireland needs to find

herself, to test her own potentialities, to prove independence of

character, thought, and action, and to discover what she can do by her

own unaided will with her own resources. As I endeavoured to show in the

last chapter, these are the true reasons for Home Rule.

Home Rule is neither a luxury nor a plaything, but a tremendously

exacting duty which must be undertaken by every country conscious of

repression and valuing its self-respect, and which Ireland is praying to

be allowed to undertake. When a people has learnt to understand the

extent of its own powers and limitations, then it can safely and

honourably co-operate on a Federal basis with other peoples, and, in the

interests of efficiency and economy, can delegate to a central

Government, partly of its own choice, functions hitherto locally

exercised. Once more, that is the origin of all true Federations,

British and foreign, in all parts of the world.

If, then, the Home Rule Bill cannot in legal form be a federating or

unifying measure, it must be one of a precisely opposite character, and

a measure of devolution. It is a proof of the need for a scientific

nomenclature that the word "devolution" has to Irish ears come to mean

something similar in kind to "Federal" Home Rule, but less in degree,

and something different in kind from "Colonial" Home Rule, and

infinitely less in degree. What a tangle of truth and fallacy from the

misuse of a single word! It is associated rightly with the ill-starred

Irish Council Bill of 1907, and it has been universally but wrongly used

to indicate a small measure of local government in contradistinction to

the Home Rule Bills of Mr. Gladstone and, _a fortiori_, to any more

liberal schemes.

Nevertheless, the problem before us is one of devolution pure and

simple, and the question is, how far is devolution to go? It may go to

the full length of Colonial Home Rule, that is, Ireland may be vested

with the full freedom now enjoyed by a self-governing Colony (for the

grants of Colonial Home Rule were measures of devolution), or it might

at the other extreme take the form of a petty municipal government. By

hypothesis, however, we are precluded from considering any scheme which

does not admit of responsible government in Ireland. That condition

commits us to something in the nature of "Colonial" Home Rule, now

enjoyed by States widely varying in size, wealth, and population, from

the Dominion of Canada, with over seven million inhabitants, to

Newfoundland, with under a quarter of a million inhabitants and very

slender resources. It is worth notice also (to shift our analogy for the

moment) that little Newfoundland, which, owing to divergency of

interest, has declined both federation with the Dominion and union with

any of the constituent parts of the Dominion, subsists happily and

peacefully by the side of her powerful neighbour; and that New Zealand,

for the same reason, prefers to occupy the same independent position by

the side of Australia.

III.

THE EXCLUSION OR RETENTION OF IRISH MEMBERS AT WESTMINSTER.[78]

We have discarded the "Federal" solution as wholly impracticable, and

have arrived at the "Colonial" solution. And at this point I feel it

necessary to plead for the reader's patient, if reluctant, attention to

what follows. The solution I suggest is unpopular, mainly, I believe,

because prejudice has so beclouded the issue in the past, and because

for the eighteen years since the last Home Rule Bill, while prejudice

has diminished, the subject of Irish Home Rule has ceased to be studied

with scientific care.

Where is the crux of the problem? In what provision of the coming Bill

will the difference between Federal Home Rule and Colonial Home Rule

arise? The answer is clear: in the retention or exclusion of Irish

Members at Westminster. No Colony has representatives at Westminster.

The Federal solution, on the other hand, whether it be applied to the

whole Empire or to the United Kingdom alone, involves an exclusively

Federal Parliament unconcerned with State or provincial affairs. That we

have not got. What we have got is an absolutely supreme and sovereign

Parliament which has legal authority, not only over all Imperial affairs

within and without the United Kingdom, but over the minutest local

affairs. Unrepresented though the Colonies are, they can legally be

taxed, coerced, enslaved at any moment by an Act passed by a party

majority in this Parliament. Such measures, though legal, would be

unconstitutional; but, both by law and custom, and in actual daily

practice, Parliament passes and enforces certain Acts affecting the

self-governing Colonies, and wields potential and actual authority of

all-embracing extent over the Empire and over the local affairs of the

United Kingdom.

When we set up an Irish Legislature, then, we have to contemplate four

different classes of affairs in a descending scale: (1) Affairs of

common interest to the whole Empire; (2) affairs of exclusive interest

to the United Kingdom; (3) affairs exclusively British; (4) affairs

exclusively Irish.

With regard to (1), the prospects of Imperial Federation do not affect

the Irish issue. It is no doubt illogical and sometimes highly

inconvenient that the British Cabinet and Parliament, representing

British and Irish electors only, should decide matters which deeply

concern the whole Empire, including the self-governing Colonies, but it

is the fact. In the meantime we are securing very effective consultation

with the self-governing Colonies by the method of Imperial Conference. A

Federal Parliament for the whole Empire is a possible though a remote

alternative to that system. Colonial representation in the present

Imperial Parliament is an altogether impracticable alternative. The

suggestion had often been made for the American Colonies at the height

of their discontent, later for Canada as an alternative to the Act of

1791, and in recent times also. The same fallacious idea underlay the

Union of Ireland with Great Britain and her representation in

Parliament, while retaining colonial institutions. At present the

prospects of Imperial Federation seem to be indifferent. On the other

hand, the affection between all branches of our race which is the

indispensable groundwork of Federation becomes visibly stronger, and

will become stronger, provided that we do not revert to the ancient and

discredited policy either of dictating to the Colonies or taking sides

with one or another of the parties within them, provided also that the

Colonies in their growing strength do not dictate to us or take sides

with one or other of our parties.

But, whatever the prospects of Imperial Federation, so long as the

present situation lasts, there is no reason for giving a self-governing

Ireland more control over Imperial matters affecting the self-governing

Colonies than the self-governing Colonies themselves possess. The

present position is illogical enough; that would be to render it doubly

illogical. Representation of Ireland, therefore, at Westminster, on the

ground that she should take part in settling matters of the widest

Imperial purport, is indefensible. The alternative and much more

effectual method, as with the Colonies, is Conference.

(2-4) But it is when we come to regard the United Kingdom as a

self-contained entity that the difficulty of retaining Irish Members at

Westminster appears most formidable. If we discard the Federal solution

we must discard it wholeheartedly, not from a pedantic love of logic,

but to avoid real, practical anomalies which might cause the whole

political machine to work even worse than it does at present. From what

I have written, it will be seen at once that to retain the Irish Members

in the House of Commons, while giving Ireland responsible government,

would be to set up a kind of hybrid system, retaining the disadvantages

of the Union without gaining the advantages of Federalism. A Federal

system needs a Federal Parliament, which we have not got, and shall not

get for a long time yet. To introduce into it a quasi-Federal element is

to mix oil with water.

I state the proposition in this broad way at first in order to push home

the truth that Irish representation at Westminster will involve

anomalies and dangers which, beyond a certain very limited point, cannot

be mitigated. Methods of mitigation I will deal with in a moment. Let me

remark first upon the strange history of this question of Irish

representation at Westminster. Obviously it is the most fundamental

question of all in the matter of Home Rule. The whole structure of the

Bill hangs on it. It affects every provision, and particularly the

financial provisions. Yet Mr. Gladstone went no farther than to call it

an "organic detail," and in popular controversy it is still generally

regarded in that light, or even in a less serious light. As a matter of

history, however, it has proved to be a factor of importance in deciding

the fate of the Home Rule Bills. In 1886 Mr. Gladstone, in proposing to

exclude Irish Members altogether, roused a storm of purely sentimental

opposition. In 1893, in proposing to retain them--first with limited

functions, then on the old terms of complete equality with British

Members--he met with opposition even more formidable, because it was not

merely sentimental, but unanswerably practical. On both occasions Mr.

Chamberlain took a prominent part in the opposition: in 1886 because he

was then a Federalist, advocating "Quebec" Home Rule for Ireland, and

regarding the exclusion of Irish Members from Westminster as

contravening the Federal principle; in 1893 because, having ceased to be

a Home Ruler, he had no difficulty in showing that the retention of

Irish Members, either with full or limited functions, was neither

Federation nor Union, but an unworkable mixture of the two.

These facts should be a warning to those who trifle thoughtlessly with

what they call "Federal" Home Rule. It was through a desperate desire to

conciliate that Mr. Gladstone caught at the Federal chimera in 1893, and

produced a scheme which he himself could not defend. And it was one of

the very statesmen that he sought to conciliate--a statesman, moreover,

possessing one of the keenest and strongest intellects of the time--who

snatched at the chimera in 1886, and argued it out of existence in 1893.

We Home Rulers do not want a repetition of those events. We want Home

Rule, and if we are to be defeated, let us be defeated on a simple

straightforward issue, not on an indefensible complication of our own

devising.

Now to details. There are five ways of dealing with the question, and of

these I will take first the four different ways of including Irish

Members in the House of Commons, leaving their total _exclusion_ to the

last.

1. Inclusion of Irish Members in their full numbers for all

purposes--that is, with a right to vote upon all questions--British,

Irish, and Imperial. [By "full numbers" I mean, not the existing figure

of 103, but numbers fully, and no more than fully, warrantable according

to the latest figures of population--say 70.]

2. Inclusion in full numbers for limited purposes.

3. Inclusion in reduced numbers for all purposes. [By "reduced numbers"

I mean in numbers less than population would warrant.]

4. Inclusion in reduced numbers for limited purposes.

Now (4) I only set out for symmetry. It has never been proposed by

anybody, and hardly needs notice.

The three others are alike in two respects--that they leave untouched

the question of representation in the House of Lords, and that they

directly infringe both the Federal principle and the Union principle by

giving representation, both in a unitary and a subordinate Legislature,

to one portion of the realm.

Let us look at No. 1--inclusion in full numbers for all purposes. This

was Mr. Gladstone's revised proposal of 1893, and it formed part of the

Bill thrown out by the Lords. The number of Irish Members was to have

been 80. But reduction, as Mr. Gladstone admitted, would scarcely affect

the inherent difficulties of inclusion. Nor must it be forgotten that

reduction from 103 to 70 can be justified only by the concession of a

large measure of Home Rule. It is one of the paradoxes of an unnatural

Union that, over-represented as Ireland is, she has not now power enough

to secure her own will. To reduce her numbers, while retaining large

powers over Irish affairs at Westminster, would be unjust. For the time

being I shall defer the consideration of those powers, and argue the

matter on broad principle, assuming that the powers retained in Imperial

hands are small enough to warrant a reduction from 103 to 70.

Now let us apply our touchstone to this question of inclusion in "full"

numbers. Will it be good for Ireland? Surely not.

(_a_) It will be bad for Ireland, in the first place, to have her

energies weakened at the outset by having to find two complete sets of

representatives, when she will be in urgent need of all her best men to

do her own work. There is no analogy with Quebec, Victoria,

Massachusetts, or Würtemburg, which had all been accustomed to

self-government before they entered their respective Federations.

Ireland has to find her best men, create her domestic policies,

reconstruct her administration, and the larger the reservoir of talent

she has to draw from the better. When true Federation becomes practical

politics it will be another matter. By that time she will have men to

spare.

(_b_) More serious objection still, retention in full numbers will, it

is to be feared, tend to counteract the benefits of Home Rule in Ireland

by keeping alive old dissensions and bad political habits. If, after

long and hot controversy, a system is set up under which Great Britain

can still be regarded as a pacificator--half umpire and half

policeman--of what Peel called the "warring sects" of Ireland, it is to

be feared that the Members sent to London may fall into the old

unnatural party divisions; a Protestant minority seeking to revoke or

curtail Home Rule, and a Nationalist majority--paradoxical survival of a

pre-national period--seeking to maintain or enlarge Home Rule. These

unhappy results would react in their turn upon the Irish Legislature,

impairing the value of Home Rule, and making Ireland, as of old, the

cockpit of sectarian and sentimental politics. The same results would

have happened if, simultaneously with the concession of Home Rule to

Canada, Australia and South Africa, these Colonies had been given

representation in the British Parliament.

(_c_) Whatever the extent of the danger I have indicated, inclusion in

full numbers will tend to keep alive the habit of dependence on Great

Britain for financial aid, a habit so ingrained, through no fault of

Ireland's, that it will be difficult to break if the Parliamentary

leverage is left intact. If ever there was a country which needed, as

far as humanly possible, to be thrown for a time--not necessarily for a

long time--upon its own resources, it is Ireland. Every other

self-governing Colony in the Empire has gone through that bracing and

purifying ordeal, accepting from the Mother Country, without repayment,

only the loan of military and naval defence, and Ireland can imitate

them without dishonour.

What is bad for Ireland is sure to be bad for Great Britain, too, and

the bad effect in this case is sufficiently apparent. Imagine the result

if Quebec, besides having her own Legislature and her own

representatives in the Dominion Parliament, were to be represented also

in the Ontario Legislature. Ireland, besides controlling her own

affairs, free from British interference, would have a voice in British

affairs, and sometimes a deciding voice. "If you keep the Irish in,"

said Mr. John Morley in 1886--and he meant in their full numbers--"they

will be what they have ever been in the past--the arbitrators and

masters of English policy, of English legislative business, and of the

rise and fall of British administrations." That is a rather exaggerated

account of the past, for had it been literally true Ireland would have

had Home Rule long ago; and it was unduly pessimistic about the future,

for it hardly made sufficient allowance for a change in Irish spirit as

a result of Home Rule; but there is a truth in the words which everybody

recognizes and whose recognition is one of the great motive forces

behind Home Rule. Even a total change in Irish sentiments and parties

would not remove the danger, and might intensify it by producing at

Westminster a solid instead of, as at present, a divided, Irish vote. It

would be truer, perhaps, to say what I said above, that retention of

Members would tend to stereotype Irish parties and the mutual antipathy

of Ireland and Great Britain.

2. Inclusion in full numbers (say 70) for limited purposes. This (with

the figure of 80) was Mr. Gladstone's original proposal of 1893, and it

took the form of a clause known as the "In and Out Clause," which

purported to divide all Parliamentary business into Imperial, Irish, and

non-Irish business, and to give Irish Members the right to vote only on

Imperial and Irish subjects. Mr. Gladstone never disguised his view that

a sound classification was impracticable, and put forward the clause,

frankly, as a tentative scheme for the discussion of the House. Like its

successor, the "Omnes omnia" Clause, it was riddled with criticism, and

it was eventually withdrawn. Without investigating details, the reader

will perceive at once the hopeless confusion arising from an attempt to

inject a tincture of Federalism into a unitary Parliament, forming part

of an unwritten Constitution of great age and infinite delicacy. It is

not merely that it is absolutely impossible to distinguish rigidly

between Imperial, Irish, and British business. The great objection is

that there would be two alternating majorities in an Assembly which is,

and must be, absolutely governed by a party majority, and which, through

that majority, controls the Executive. It "passed the wit of man," said

Mr. Gladstone, to separate in practice the Legislative and Executive

functions in the British Constitution. At present a hostile vote in the

House of Commons overturns the Ministry of the day and changes the whole

British and Imperial administration. A hostile vote, therefore,

determined by the Irish Members, on a question affecting Ireland, such

as the application to Ireland of a British Bill, would seriously

embarrass the Ministry, if it did not overturn it. The log-rolling and

illicit pressure which this state of things would encourage may be

easily imagined. A Ministry might find itself after a General Election

in the position of having a majority for some purposes and not for

others. That was actually the case in 1893, when Mr. Gladstone, with a

majority, including the Irish Nationalists, of only 40, was carrying his

Bill through Parliament. It is actually the case now, in the sense that

if the Irish Nationalists voted with the Opposition, the Ministry would

be defeated. Any change for the better in Irish sentiment towards Great

Britain would _pro tanto_ mitigate the difficulty, but would not remove

it, and might, as I suggested above, increase it, by the creation of a

solid Irish vote. If Great Britain resents the present system, she alone

is to blame. As long as she insists on keeping the Irish Members out of

Ireland, where they ought to be, she thoroughly deserves their tyranny,

and would be wise to get rid of it by the means they suggest. Until they

are given Home Rule, they are not only justified in using their power,

but are bound, in duty and honour, to use it. To reproduce in the Home

Rule Bill, albeit in a modified form, conditions which might lead to the

same results as before would surely be a gratuitous act of unwisdom.

3. Inclusion in reduced numbers for all purposes. By "reduced numbers"

is meant numbers less than the population of Ireland warrants. For the

sake of argument we may assume the number to be 35, that is,

approximately half the proper proportion; but directly we desert a

scientific principle of allocation, the exact figure we adopt is a

matter of arbitrary choice.

Mr. Gladstone appears to have contemplated this plan for a brief period

in 1889; but he dropped it. Clearly it cannot be defended on any logical

grounds, but only as a compromise designed, as it avowedly was, to

conciliate British opinion. It would minimize but not remove the

difficulties inherent in No. 1; and so far as it did lessen these

difficulties, the representation given would be impotent and

superfluous. That is why I have taken it last in order of the three

possible methods of inclusion. It raises in the sharpest and clearest

form the important question underlying the whole of the discussion we

have just been through--namely, what are to be the powers delegated to

the Irish Parliament and Executive, and what are to be the powers

reserved to the Imperial Parliament and Executive?

If the powers reserved are small, it will be possible to justify not

merely a small Irish representation in the House of Commons, but even

under certain conditions the total exclusion of Irish members. Indeed,

if the figure 35 corresponded to the facts of the case, one might as

well abandon these painful efforts to "conciliate British opinion,"

accept total exclusion, and substitute Conference for representation. If

the powers reserved are large, full representation in spite of all the

crushing objections to it, will be absolutely necessary, in order to

safeguard Irish interests. Here is the grand dilemma, and it says little

for our common sense as a nation that we should submit to be puzzled and

worried by it any longer. Half the worry arises from the old and

infinitely pernicious habit of regarding Ireland as outside the pale of

political science, of ignoring in her case what Lord Morley has called

the "fundamental probabilities of civil society." Let us break this

habit once and for all and take the logical and politic course of total

exclusion, with its logical and politic accompaniment, a measure of Home

Rule wide enough to justify the absence of Irish representation at

Westminster. That will be found to be the path both of duty and of

safety.

Let it be clearly understood that lapse of time has not diminished

appreciably the power of the arguments against the inclusion of Irish

Members in the House of Commons. On their merits, these arguments are

still unanswerable, and we had better recognize the fact. Mr. Balfour

said, in 1893, "Those questions" (of representation at Westminster) "are

not capable of solution, and the very fact that they are incapable of

solution affords, in our opinion, a conclusive argument against the

whole scheme, of which one or other of the plans in question must form a

part." Speaking as a Unionist, Mr. Balfour was right, and, as Home

Rulers, we should be wise to remember it.

Lastly, even if the question of inclusion in the House of Commons were

"capable of solution," as it is not, there would remain the problem

raised by the House of Lords. It is idle to ignore the fact that the

bulk of the Irish peerage, and the Assembly of which it forms part, has

been for a century in consistent and resolute opposition to the views of

the vast majority of Irishmen. The recent curtailment of its powers,

whether a right or a wrong measure in itself, does not make it any the

more suitable as an Upper Chamber, under a Home Rule scheme, for the

decision of important Irish questions reserved for settlement at

Westminster; indeed, the bare proposal is the best imaginable example of

the extraordinary complications which would ensue from the introduction

of a quasi-Federal element into a unitary Constitution.

Federal Upper Chambers, so far from being hostile to State rights, are

almost invariably framed on the principle of giving disproportionately

large representation to the smaller States. In the United States and

Australia, for example, every State, however small, has an equal number

of Senators.

It will be clear now that there are two distinct ways of approaching the

question of the framework of Home Rule. One may begin with the nature

and extent of the powers reserved or delegated, and proceed from them to

the inclusion and exclusion of Irish representation at Westminster, or

one may begin with the topic of inclusion or exclusion and proceed from

it to the nature and extent of powers. While premising that we must

trust Ireland and evoke her sense of responsibility, I chose the latter

of the two courses, because I believe it to be on the whole the most

illuminating and trustworthy course. It is also the more logical course,

though I should not have adopted it for that reason alone; and I have

already given, I hope, some good reasons to show that in this matter

logic and policy coincide. Englishmen pride themselves on the lack of

logic which characterizes their slowly evolved institutions, but they

may easily carry that pride to preposterous extremes. Faced now with the

necessity of making a written Constitution which will stand the test of

daily use they would commit the last of innumerable errors in Irish

policy if, with full warning from experience elsewhere, they were to

frame a measure whose unprecedented and unworkable provisions were the

outcome of a distrust of Ireland which it was the ostensible object of

the measure itself to remove.

IV.

IRISH POWERS AND THEIR BEARING ON EXCLUSION.

I pass to what I suggest to be the right solution: Total exclusion, as

proposed by Mr. Gladstone in 1886, though he shrank from recommending

what he knew to be its financial corollary. Mr. Bright regarded

exclusion as the "best clause" of a dangerous scheme, and Mr.

Chamberlain has admitted that he attacked it, as he attacked the

proposals for Land Purchase, which he knew to be right, in order to

"kill the Bill."[79] I propose only to recapitulate the merits of

exclusion before dealing with the alleged difficulties of that form of

Home Rule, and in particular with the point on which the controversy

mainly turns--Finance.

To give Ireland Colonial Home Rule, without representation in London, is

to follow the natural channel of historical development. Ireland was

virtually a Colony, and is treated still in many respects as an inferior

type of Colony, in other respects as a partner in a vicious type of

Union. We cannot improve the Union, and it is, admittedly, a failure.

Let us, then, in broad outline, model her political system on that of a

self-governing Colony.

History apart, circumstances demand this solution. It is the best

solution for Ireland, because she needs, precisely what the Colonies

needed--full play for her native faculties, full responsibility for the

adjustment of her internal dissensions, for the exploitation, unaided,

of her own resources, and for the settlement of neglected problems

peculiar to herself. As a member of the Imperial family she will gain,

not lose. And the Empire, here as everywhere else, will gain, not lose.

These ends will be jeopardized if we continue to bind her to the British

Parliament, and restrict her own autonomy accordingly. Reciprocally, we

damage the British Parliament and gratuitously invite friction and

deadlock in the administration either of British or of Imperial affairs,

or both. Of the difficulties raised we can mitigate one only by bringing

another into existence. Endeavouring to minimize them all by reducing

the Irish representation to the lowest point, we either do a gross

injustice to Ireland, by diminishing her control over interests vital to

her, or, by conceding that control, remove the necessity for any

representation at all. Most Irish Unionists would, I believe, prefer

exclusion to retention. One gathers that from the debates of 1893, and

the view is in accordance with the traditional Ulster spirit, and the

spirit generally displayed by powerful minorities threatened with a Home

Rule to which they object on principle. It was the spirit displayed by

the Upper Canadian minority, in 1838-39 (_vide_ p. 101), in threatening

to leave the Empire rather than submit to Home Rule, and by the

Transvaal minority in the lukewarm and divided support given to the

half-baked Constitution of 1905, and in the hearty welcome given to the

full autonomy of 1906. How the Colonists expressed themselves matters

nothing. We must make generous allowance for hot party feeling and old

prejudices. The Canadian minorities did not really mean to call in the

United States, nor does it signify a particle that some of the

Johannesburgers vowed that anything could be borne which freed them from

the interference of a Liberal Government. These opinions are transient

and negligible. The spirit is essentially healthy. Paradox as it may

seem, the uncompromising attitude of Ulster Unionists, as voiced by the

ablest representative they ever had, Colonel Saunderson,[80] is hopeful

for the prospects of Home Rule. They fight doggedly for the Union, but I

believe they would prefer a real Home Rule to a half-measure, and in

making that choice they would show their virility and courage at its

true worth.

Where are the dangers and difficulties of exclusion? The dangers first.

I believe, from a study of events in the last twenty-five years, that

the strongest opposition to it was founded, not so much upon a

reluctance to give Ireland powers full enough to render needless her

representation at Westminster, but on a jealous desire to keep Irish

Members under surveillance, as a dangerous and intractable body of men

who would hatch mischief against the Empire if they were allowed to

disappear from sight; the same kind of instinct which urged

revolutionary Paris to stop the flight of Louis and to keep him under

lock and key. In the case of Ireland it is possible to understand the

prevalence of this instinct in 1886, though even then it was irrational

enough. But in 1911 we should be ashamed to entertain it. Irish plots

against the Empire have passed into electoral scares, and if they had

not, representation in London would be no safeguard. We should also

dismiss the more rational but groundless view that Imperial co-operation

necessitates representation in a joint Assembly. Conference is a better

method. Anyone who studies the proceedings of the last Imperial

Conference and observes the number and variety of the subjects discussed

and the numerous and valuable decisions arrived at, will realize how

much can be done by mutual good-will and the pressure of mutual

interest.[81]

It may be objected that, with one or two exceptions of quite recent

date, the Colonies have contributed nothing to the upkeep of the Empire,

except in the very indirect form of maintaining local military forces,

that their present tendency --unquestionably a sound tendency--is to

co-operate, not by way of direct money contribution to Imperial funds,

but by the construction of local Navies out of their own money, and, in

time of peace, under their own immediate control, and that Ireland

cannot be allowed to follow their example. The objection has no point.

Ireland, through no fault of her own, has reached a stage (if we are to

trust the Treasury figures) where she no longer pays any cash

contribution to Imperial expenses, nor is it possible to look back with

any satisfaction upon the enormous total of her cash contributions in

the past. They were not the voluntary offerings of a willing partner,

but the product of a joint financial system which, like all consequences

of a forced Union, was bad for Ireland. If we consider that a similar

attempt to extort an Imperial contribution from the American States led

to their secession; that the principle was definitely abandoned in the

case of the later Colonies; that, on the contrary, large annual sums

raised in these islands were, until quite recent times, spent for

purposes of defence within these Colonies; that in the South African War

two hundred and fifty million pounds were spent in order to assist

British subjects in the Transvaal to obtain the rights of freemen in a

self-governing Colony; and that to this day indirect colonial

contributions in the shape of local expenditure are small in proportion

to the immense benefit derived from the protection of the Imperial Navy,

Army, and Diplomacy, and from the assistance of British credit; if we

then reflect that before the Union Ireland was, in the matter of

contribution, somewhat in the same position as Canada or Australia

to-day--that is, paying no fixed cash tribute, but voluntarily assuming

the burden, very heavy in time of war, of certain Army establishments;

that for seventeen years after the Union contributions fixed on a scale

grossly inequitable drove her into bankruptcy; that from 1819 until two

years ago, she paid, by dint of excessive taxation and in spite of

terrible economic depression, a considerable share, and sometimes more

than her proportionate share, of Imperial expenditure;[82] if, finally,

we remember that, cash payments apart, Irishmen for centuries past have

taken an important part in manning the Army and Navy, have fought and

died on innumerable battle-fields in the service of the Empire, and have

contributed some of its ablest military leaders; if we consider all

these facts soberly and reasonably, we shall, I believe, agree that it

would be fair and right to place a Home Ruled Ireland in the position of

a self-governing Colony, with a moral obligation to contribute, when her

means permit, and in proportion to her means, but without a statutory

and compulsory tribute.

What form should that contribution eventually take? Does it necessarily

follow that Ireland should be given power to construct her own Navy, and

raise and control her own troops? Let us use our common sense, and use

it, let me add, fearlessly. If Ireland really _wanted_ full colonial

powers, if, like Australia and Canada, she would be discontented and

resentful at their denial, we should be wise to grant them, and rely on

common interests and affections to secure friendly co-operation. Does it

not stand to reason that a friendly alliance even with a foreign power,

such as France, to say nothing of the far more intimate relations with a

consanguineous Colony, is better business than any arrangement for

common forces unwillingly or resentfully acceded to? But, as I pointed

out in Chapter VIII., all these uneasy speculations about independent

Irish armaments are superfluous. Ireland does not want separate

armaments. The sporadic attempts to discourage enlistment in the

Imperial forces are, as every sensible person should recognize, the

results of refusing Home Rule. They would have occurred in every Colony

under similar circumstances, and they do occur in one degree or another

wherever countries agitate vainly for Home Rule. If Russia misinterprets

such phenomena, we have, let us hope, more political enlightenment than

Russia.

Ireland's strategical situation bears no analogy to that of Australia

and Canada, which, for geographical reasons, are compelled, as South

Africa will be compelled, to make a certain amount of independent

provision, not only for military, but for naval defence, and would be

wanting in patriotic feeling if they did otherwise. New Zealand, on the

other hand, is too small to be capable of creating a Navy, and rightly

contributes to ours. We have arrived at an interesting psychological

point when Australia and Canada both seem to be inclined to reserve, in

theory, a right to abstain from engaging their Navies in a war

undertaken by Great Britain, but nobody will be alarmed by this

theoretical reservation. It is an insignificant matter beside the Naval

Agreement reached at the last Conference (1911)--an agreement worth more

than volumes of unwritten statutes--to the effect that the personnel of

the colonial fleets is to be interchangeable with that of the Imperial

fleet and that in a joint war colonial ships are to form an integral

part of the British fleet under the control of the Admiralty. With such

an agreement in existence, it becomes superfluous to lay stress upon the

fact that without formal and complete separation from the Mother Country

in time of peace, the neutrality of a Colony would not be recognized by

a belligerent enemy of Great Britain in time of war. In any case these

developments have no concern for Ireland, which does not want, and need

not be given, power to raise a local Navy. Nor, with regard to the

regular land forces, will anything be changed. Troops quartered in

Ireland will be, as before, and as in the Colonies now, under complete

Imperial control. So will Imperial camps, magazines, arsenals,

dock-yards. On the other hand, arrangements should certainly be made to

permit the raising of Volunteer forces in Ireland. There are large

numbers of Irishmen in the British Territorial Army, and Ireland sent

five companies to the South African War. Though the poverty of the

country will for a long time check the growth of Volunteer forces, it is

the Union which presents the only serious obstacle to their

establishment. No surer proof of the need for Home Rule could be adduced

than the fact that it was held to be impossible to extend the

Territorial system to Ireland. One of the objects of Home Rule is to

remove this suspicious atmosphere. Whether local power to organize and

arm Volunteers in Ireland should be given to the Irish authority, or, as

in the Home Rule Bills of 1886 and 1893, reserved to the Imperial

Government, is, if we trust Ireland, as we must, a secondary and not a

vital matter, which would not affect the question of representation at

Westminster.[83] Probably it would be most convenient to leave the

matters in the hands of the Irish Legislature. In any case, the

Command-in-Chief of all forces in Ireland, regular or volunteer, would,

as in the Colonies,[84] be vested in the King.

The control of the Royal Irish Constabulary and Dublin Metropolitan

Police does not affect the question of representation at Westminster.

With or without representation, Ireland should be given the control of

all her own police forces from the first, without the restrictions

imposed by the Bills of 1886 and 1893 with regard to Imperial control of

the existing forces.[85]

With the important exception of taxation, with which I shall deal last,

no other power which should properly be reserved to the Imperial

Parliament, or delegated to the Irish Parliament, has any appreciable

bearing upon the exclusion of Irish Members from the House of Commons.

Nor do any of them raise issues which are likely to be troublesome.

Common sense and mutual convenience should decide them. The Army, Navy,

and other military forces I have already dealt with. The Crown, the

Lord-Lieutenant, War and Peace, Prize and Booty of War, Foreign

Relations and Treaties (with the exception of commercial Treaties),

Titles, Extradition, Neutrality,[86] and Treason, are subjects upon

which the Colonies have no power to legislate or act, and of which it

would be needless, strictly, to make any formal statutory exception in

the case of Ireland, though the exception no doubt will be made in the

Bill. Naturalization, Coinage, Copyright, Patents, Trademarks, are all

matters in which the Colonies have local powers, whose existence, and

the limitations attaching to them, are determined either solely by

constitutional custom or with the addition of an implied or express

statutory authority.[87] The two former would, I should think, be wholly

reserved to the Imperial Parliament. In the case of the latter three,

which were wholly reserved in the Bill of 1886 and 1893, Ireland might

be placed in the position of a self-governing Colony.[88]

In Trade and Navigation it would be wise to take the same course. The

Home Rule Bill of 1886, without giving Ireland representation at

Westminster, denied her all powers over Trade and Navigation. The Bill

of 1893 gave her powers over Trade within Ireland and Inland Navigation,

and these powers at any rate should be given in the coming Bill,

together with the larger functions also; though Ireland would naturally

leave in operation the great bulk of the statutes concerned, since they

intimately affect the commercial and industrial relations of the two

countries. For the rest, Ireland no more than the Colonies can be freed

from a measure of Imperial control maintained by Acts like the Merchant

Shipping Act of 1894.

The Postal Service in Ireland should, as in the Bill of 1886, come under

Irish control.

In the Home Rule Bill of 1893 (Section 34) it was laid down that for

three years the Irish Legislature should not "pass an Act respecting the

relations of landlord or tenant, or the sale, purchase, or letting of

land generally." Such a provision repeated in the coming Bill would be

inconsistent with the absence of Irish Members from Westminster. But I

take it for granted that there is no question of its repetition. At

first it might appear that Land Purchase should be distinguished from

other branches of land legislation and reserved to the Imperial

Government on the ground that it needs Imperial credit. I shall deal

with this point fully in Chapter XIV., and only need here to express the

view that Land Purchase cannot be separated from other branches of land

legislation, or from the Congested Districts Board, or even from the

control of the police, and that we are bound to give, and shall be

acting wisely in giving, all these powers to the Irish Legislature from

the first.

It is necessary perhaps to add that non-representation at Westminster

does not in the smallest degree affect the complete legal supremacy of

the Imperial Parliament over the subordinate Irish Legislature. This

Legislature will in legal language be a "local and territorial" body,

like those of the Colonies. It will be the creature of Parliament, and

could be amended or even extinguished by it in a subsequent Act. The

Bill of 1886 (perhaps because it never reached the Committee stage) said

nothing explicit about the supremacy, though the Bill of 1893, while

providing for representation at Westminster, repeatedly (and sometimes

quite superfluously) affirmed it--in the Preamble, for example, and in a

rider to Clause 2. The King's authority, through the Lord-Lieutenant,

will be supreme in Ireland, as, through the Governors, it is supreme in

the Colonies. Every Irish Bill, like every Colonial Bill, will require

the Royal Assent, given through the Lord-Lieutenant, who will correspond

to the Colonial Governors. The Lord-Lieutenant, like his colonial

counterpart, will have to exercise both his Executive and Legislative

functions in a double capacity: in the first instance by the advice of

his Irish Cabinet, but subject to a veto by the British Cabinet. This

dual capacity has belonged to all Colonial Governors ever since the

principle of responsible government was established. As I showed in

earlier chapters, it was regarded even by Lord John Russell as

impossible and absurd as late as 1840; but it ought by now to be

understood by every educated man, and we may hope to be spared the

philosophical disquisitions and hair-splitting criticisms which it

evoked from men who should have known better in the Home Rule debates of

1893.

Laws framed at Westminster will be applicable to Ireland, as they are

frequently made applicable to the Colonies.[89] Conversely, only through

the express legislative authority of Westminster will an Irish, like a

Colonial Act,[90] be held to operate outside the borders of Ireland.

Apart from the strict legal omnipotence of Imperial sovereignty, it is,

of course, impossible to say now what the exact constitutional position

of Ireland will be under any form of Home Rule. No Bill can state it

fully in set terms. Time, custom, and judicial decisions will build up a

body of doctrine. It is so with the Colonies, whose exact constitutional

relations with the Mother Country are still a matter of juristic debate,

and are only to be deduced from the study of an immense number of

judicial decisions and of Imperial Acts passed subsequently to the grant

of the original Constitutions. Some of these Acts I have already

illustrated. The one Act of general application, namely, the Colonial

Laws Validity Act, cannot be read without the rest, though in form it

appears to contain a complete set of rules. While giving general power

to a self-governing Colony "to make laws for the peace, welfare, and

good government of the Colony" (words which will also necessarily appear

in the Home Rule Bill), the Act makes void all colonial laws or parts of

laws which are "repugnant to the provisions of any Act of Parliament

extending to the Colony to which such law shall relate," and this

provision will no doubt, be applied, _mutatis mutandis,_ to Ireland, as

it was in Section 32 of the Home Rule Bill of 1893. The Irish

Legislature, that is, will be able "to repeal or alter any enactments in

force in Ireland except such as either relate to matters beyond the

power of the Irish Legislature, or, being enacted by Parliament after

the passing of this Act, may be expressly extended to Ireland."

It will be noticed that the words "beyond the power of the Irish

Legislature" referred to the subjects expressly excepted in the Bill

itself. This is one of the points in which the Irish Constitution will

bear at any rate a superficial resemblance to that of a Province or

State within a Federation rather than to that of a self-governing

Colony. The practice of expressly, and in the text of a Constitution,

forbidding a self-governing Colony to legislate upon certain subjects,

or of expressly reserving concurrent or exclusive powers of legislation

to the Mother Country, has fallen into disuse since the establishment of

the principle of responsible government. Such restrictions were inserted

in the Canadian Union Act of 1840, where the old right of the Mother

Country to impose customs duties in the Colonies for the regulation of

commerce was reaffirmed, and even in the Acts of 1855 for giving full

powers of self-government to the Australian Colonies, which were

forbidden to impose intercolonial customs, though they were expressly

granted the power of imposing any other customs duties they pleased,[91]

but they do not appear in modern Constitutions, for example in the

Transvaal Constitution of 1906. As I have indicated, this implies no

change in the strict legal theory of Colonial subordination to the

Mother Country; for, although the tendency of modern juristic thought is

to ascribe "plenary" power to a Colony, restrictions nevertheless do

exist in practice, and are contained, express or implicit, in a number

of disjointed Acts.

A Federating Colony, on the other hand, like a foreign Federation, has

in its own self-made, domestic Constitution to apportion powers with

some approach to precision between the federal and the provincial

authorities, and in this respect the Irish Bill, in reserving certain

powers to the Imperial Parliament, will resemble a federating Bill, and

it should follow the American and Australian precedents in leaving

residuary powers to the subordinate or Irish Legislature, not, in

accordance with the Canadian precedent, to the Parliament at

Westminster. That is an indispensable corollary of excluding Irish

Members from Westminster.

In speaking of powers reserved or delegated, and of residuary or

unallocated powers, I have thus far referred only to powers which must

be exercised, or at any rate may need to be exercised, if not by the

subordinate legislature, then by the superior Parliament. Those

restrictions on the Irish Legislature which are imposed in order to

protect the religious or economic interests of a minority within the

State, or as a recognition that there are certain kinds of laws which it

is morally wrong to pass, fall into an altogether different category. By

implication they morally bind the superior Parliament too, and are

irrelevant, therefore, to the question of representation. They will be

necessary, no doubt, in the coming Irish Bill, though they need not be

so extensive as those which are to be found in Clause 4 of the Bill of

1893, some of which are borrowed from the famous anti-slavery amendments

of 1865-1869 to the Constitution of the United States.[92] In inserting

them we shall again be following the "Federal" rather than the

"Colonial" model. No such restrictions have been imposed by the Mother

Country upon any self-governing Colony. The nearest approach, perhaps,

to such a tendency was the provision in the Transvaal Constitution of

1906 (Section 39), that "any law whereby persons not of European birth

or descent may be subjected or made liable to any disabilities or

restrictions to which persons of European birth or descent are not also

subjected or made liable" should be specially "reserved"--that is, sent

home by the Governor--for the signification of the Royal pleasure; but

no similar provision appeared in the Act of 1909 for constituting the

South African Union. In Federal systems, on the other hand, such

restrictions, taking the form of self-denying ordinances, are common,

whether appearing in the Federal Constitution itself or in the

subordinate State Constitutions. The Constitution of the United States,

for example, in addition to the anti-slavery provisions noted above,

enacts that the National Government cannot (by Amendment I.) establish

any religion or prohibit its free exercise, or (by Amendment V.) take

private property for public use without just compensation, or (by

Article 1, § 9) grant a title of nobility. Neither (by Amendment XIV.

and Article 1, § 10 respectively) can a State do these things. By

Article 1, § 10, a State cannot pass a law impairing the obligation of a

contract. Exactly similar restrictions appear in many of the individual

State Constitutions. Others forbid the establishment of any church or

sect; the introduction of armed men "for the suppression of domestic

violence"; "perpetuities or monopolies," and a variety of other things.

Analogous provisions are to be found in the British North America Act,

1867 (constituting the Dominion of Canada), where the provincial

Legislatures are forbidden to interfere with certain rights and

privileges of religious bodies in the matter of education. There are no

limitations of the kind in the Australian Commonwealth Act of 1900.

Australia, no doubt, correctly represents the tendency of modern thought

on this matter. Some of the American safeguards have produced great

inconvenience. Nor can it be denied that the most elaborately contrived

legal safeguards are of less value than the moral safeguard afforded by

the sense of honour, justice, and prudence in the community. The

existence of these qualities in Ireland, as in other white countries, is

the true foundation of Home Rule. Some day Irishmen will ask, as a

united country, for the repeal of these statutory safeguards.

That brings me to the penultimate point of importance, which may be held

to affect the inclusion or exclusion of Irish Members at Westminster--I

mean the question of future constitutional amendment. Here the colonial

analogies are a little complicated. Since the Australian Colonies Act of

1850, in the new grant of a Constitution to a self-governing Colony,

power has invariably been given to amend its own Constitution, without,

of course, detracting from any powers specified in it for preserving the

sovereignty of the Mother Country. Canada, when federating in 1867, took

the somewhat singular course of making no provision in her Federal

Constitution for its subsequent amendment, though, by Section 92 of the

British North America Act, she gave her Provinces the exclusive right to

amend their own Constitutions, a right which three of them have used to

abolish their Upper Chambers. The Dominion Constitution, then, cannot be

amended otherwise than by an Imperial Act. Such amending Acts are

promoted by the Dominion Government without any specially devised

machinery for ascertaining the public opinion of Canadians. Australia,

on the other hand, when federating in 1900, made elaborate arrangements,

which have been put several times into operation, for the amendment of

the Federal Constitution by the Australian people itself, without an

Imperial Act. Now, it will follow as a matter of course that Ireland

will be given powers, as in both the previous Bills,[93] to amend her

own Constitution within certain defined limits, after a certain lapse of

time, and without encroaching upon Imperial authority. For my part I

would strongly urge that the powers now to be conferred should be much

wider; for I believe that Ireland alone can make a really perfect

Constitution for herself. But, that point apart, the question arises of

the further amendment, outside such permissive powers, of the Home Rule

Act itself, which will, of course, contain within its four corners the

whole of the Irish Constitution, so far as it can be written down. No

special arrangements were made for such a contingency in the Bill of

1893, presumably because Ireland was to be represented at Westminster

and would have a share in the making of any amending act. In the Bill of

1886, which excluded the Irish Members, Mr. Gladstone proposed (in

Clause 39) that no alteration of the Act should be made (apart, of

course, from points left for Irish alteration) except (1) by an Imperial

Act formally assented to by the Irish Legislature, or (2) by an Imperial

Act for the passing of which a stated number of Members of both branches

of the Irish Legislature should be summoned to sit at Westminster.

It will be clear, I think, now, in 1911, that this latter proposal is

not worth revival. No substantial amendment of the Act should properly

be made without the formal consent of the Irish Legislature,

representing Irish public opinion, and the prior consultation with the

Irish Cabinet which such consent would imply. If the lamentable

necessity ever arose of amending the Act against the wishes of Ireland,

the sudden invasion of Westminster by a body of angry Irish Members, too

small to affect the result (for otherwise the attempt to amend would not

be made) and large enough to revive the old political dislocation and

passion, would not simplify the process of amendment or be of value to

anybody concerned. The proposal was probably only suggested by a vague

leaning towards the Federal principle, which, in the present case, we

should certainly reject. It serves indeed as one more illustration of

the anomalies which might result from the inclusion of Irish Members at

Westminster. No more unhealthy position could be imagined than one which

would render it possible for an amendment of the Home Rule Act, whether

in the direction of greater latitude or of stricter limitation, to

depend solely upon the Irish vote in an Assembly predominately

non-Irish. That is not to the discredit of Ireland. The system would be

just as indefensible, whatever the subordinate State concerned. It would

be Federalism run mad, and would make Alexander Hamilton turn in his

grave. It is worth while to note that, even under a sane and normal

Federal system, the Irish Constitution would be less easily alterable in

either direction than under the plan of treating her as a self-governing

Colony. In the latter case action is direct and simple, while most

Federal Constitutions are extraordinarily difficult to amend. The

Dominion of Canada is only an apparent exception.

I turn lastly to Finance, the point which most closely affects

representation at Westminster, and which distinguishes any form of

quasi-Federal Home Rule most sharply from its alternative, "Colonial"

Home Rule.

All Federal systems necessarily involve a certain amount of joint

finance between the superior and the inferior Government. The

distribution of financial powers varies widely in different Federations,

but all have this feature in common--that the central or superior

Government controls Customs and Excise, and is to a large degree

financed by means of the revenue derived from those sources. The United

States Government, as distinguished from that of the individual States,

pays in this way for almost its entire expenditure.[94] So does the

Dominion of Canada;[95] while in the Australian Commonwealth the

receipts from Customs and Excise alone more than cover the whole

Commonwealth expenditure.[96]

Finance makes or mars Federations. Some Federations or organic Unions of

independent States have come into being through a strong desire in the

separate States to have, among other things, a common system of Customs,

and in the case of the German Empire and the South African Union a

Customs Union or _Zollverein_ has preceded Federation. These phenomena

are the most marked illustration of the general truth that a common

desire to federate, or unite, on the part of individual States is a

condition precedent to a sound Federation or Union. On the other hand,

finance, especially the question of joint Customs, has sometimes

presented obstacles to a Federation which, on other grounds, was

earnestly desired. The long delay in achieving the Australian Federation

was largely due to the desire of New South Wales to maintain her Free

Trade system, while the financial arrangements generally caused most of

the practical difficulties met with in arranging the Federation both of

Canada and Australia, and in their subsequent domestic relations. Nova

Scotia in the former case, and Western Australia in the latter, held out

to the last instant, and the former subsequently had to receive

exceptionally favourable treatment. In both Federations some measure of

friction is chronic, and in neither has a perfectly satisfactory system

been evolved. The Union of Ireland and Great Britain in 1800 was in this

respect, as in all others, a flagrant departure from sound principle.

The Customs Union which followed it was a forced Customs Union, and,

together with the other financial arrangements between the two

countries, has produced results incredibly absurd and mischievous. Some

of these results I briefly indicated in Chapter V. In the following

chapters I shall tell the whole story fully, and I hope to convince the

reader that we should follow, not only historically, but morally and

practically, the correct line of action if, in dissolving the

Legislative Union, we dissolve the Customs Union also. That would

involve a virtually independent system of finance for Ireland, and place

her fiscally in the position of a self-governing Colony. If and when a

real Federation of the United Kingdom becomes practical politics, she

would then have the choice of entering it in the spirit and on the terms

invariably associated with all true Federations or Unions. That is, she

would voluntarily relinquish, in her own interest, financial and other

rights to a central Government solely concerned with central affairs.

I need scarcely point out in this connection the vital importance of the

question of representation at Westminster. Ireland resembles the

self-governing Colonies, and differs from Great Britain, in that the

greater part of the revenue raised from her inhabitants is derived from

Customs and Excise--that is, from the indirect taxation of commodities

of common use. If she is denied control of these sources of revenue

under the coming Bill, it will be absolutely necessary, in spite of all

the concomitant difficulties, to give her a representation at

Westminster which is as effective as it can be made. But let it be

realized that we could not make her control over her own finance as

effective as that exercised by a small State within a Federation,

because such a State, however small, has equal, or at any rate

disproportionately large, representation in the Federal Upper Chamber,

and Federal Upper Chambers can reject Money Bills. The Upper Chamber in

Ireland's case would be the House of Lords, where she could scarcely be

given effective representation, and which, in any case, cannot reject

Money Bills.

Let us now examine Ireland's claim for fiscal autonomy.

FOOTNOTES:

[73] See p. 140.

[74] The Bill set up a Council of eighty-two elected and twenty-four

nominated members, with the Under-Secretary as an _ex-officio_ member.

So far it resembled the abortive Transvaal Constitution of 1905 (see p.

130), but the Irish Council was only to be given control of certain

specified Departments, and was financed by a fixed Imperial grant. It

was to have no power of legislation or taxation, and was under the

complete control of the Lord-Lieutenant.

[75] This arrangement, which is peculiar to the Canadian Federation, is

regarded by some authorities as a somewhat serious infraction of the

Federal principle, since it seems to imply executive control of the

Province by the central Government. The Governors of the States in the

Australian Federation are appointed by the Home Government.

[76] The Judicial Committee has ruled "that the relation between the

Crown and the Provinces is the same as that between the Crown and

Dominion in respect of such powers, executive and legislative, as are

vested in them respectively." (Maritime Bank of Canada _v._

Receiver-General of New Brunswick, 1892).

[77] They are governed by Executive Committees, the members of which

need not be members of the Councils.

[78] In writing upon this subject, I am indebted to an able paper by Mr.

Basil Williams, which is to be found in "Home Rule Problems."

[79] "Life of Parnell," R. Barry O'Brien, pp. 149 and 139-141.

[80] _E.g._, in 1893, on Clause I. of the Home Rule Bill (Hansard, p.

490): "The Irish minority were willing to be treated on the footing of a

Colony, but they protested against a supremacy which would enable the

honourable gentleman who formed the Irish Government to appeal to the

Imperial Parliament for the assistance of the Army and Navy to compel

the Irish minority to obey their behests."

[81] Cd. 5741, 1911. Some of the subjects discussed were Commercial

Relations and Shipping, Navigation Law, Labour Exchanges, Uniformity in

Copyright, etc., Emigration, Naturalization, Compensation for Accidents,

etc.

[82] I am summarizing facts fully narrated in Chapters XI. and XII.

[83] In the Federal Constitutions of Australia and Canada the central

Federal Parliament is responsible for the colonial defences, but the

Provinces or States are, of course, represented in the Federal

Parliament.

[84] Commonwealth of Australia Constitution Act, 1900, Sec. 58, and

British North America Act, 1867, Sec. 15. Until quite recently it was

the custom always to give the command of the Canadian Militia to a

British officer lent to Canada. The present Commander, however, is a

Canadian.

[85] See Appendix.

[86] A Colony may make local regulations to carry out an Imperial Law

about extradition and neutrality, but may not touch the law.

[87] For the constitutional position of self-governing Colonies, the

author owes much to Mr. Moore's "Commonwealth of Australia."

[88] The Commonwealth of Australia Constitution Act, 1900, and the

British North America Act, 1867, in order to delimit the respective

powers of the Federal and Provincial Legislatures, set out a list of

subjects on which the Federal Parliament has exclusive or collateral

power to legislate. There is implied, of course, a pre-existing right on

the part of the Colony, as a whole, _qua_ Colony, to legislate on the

matters referred to in the list. But the pre-existing right is subject

to any pre-existing constitutional or statutory limitations. _E.g.,_

"Naturalization and Aliens" is in the list of Commonwealth powers (Sec.

51, xix.), and of the Canadian powers (Sec. 91, xxv.), but the power of

any Colony is limited by Acts of 1847 and 1879 to giving naturalization

within its own borders. (At the Imperial Conference of 1911 a scheme was

foreshadowed for standardizing naturalization throughout the Empire.)

"Copyright" is also in both lists, but the colonial power is limited by

the International Copyright Act of 1886, which, by Sec. 8, implies that

a "British possession" may only make laws "respecting the Copyright

within the limits of such possession of works produced in that

possession." This Copyright Act is an example of implied limitation and

sanction together. The Coinage Act of 1853 is an example of implied

sanction only, in empowering a Colony to legislate as if the Act had not

been passed. Another class of Imperial Acts confers _direct_ powers to

legislate on certain subjects--_e.g.,_ the Australian Colonies Custom

Duties Act of 1873 (removing the restrictions imposed upon intercolonial

duties in 1850). The Naturalization Acts are partly of this character,

and other examples are the Colonial Naval Defence Act of 1865, and

certain provisions of the Army Act of 1881, and the Colonial Courts of

Admiralty Act of 1890.

[89] _E.g.,_ Colonial Attorneys Belief Act, 1857; Colonial Probates Act,

1892; parts of the Finance Act, 1894; and Wills Act, 1861.

[90] _E.g.,_ Colonial Laws made under sanction of the following Imperial

Acts: Colonial Prisoners Removal, 1869; Merchant Shipping, 1894;

Sections 478 and 736, Colonial Marriages, 1866.

[91] _E.g.,_ 18 Vict. Ch. 55, Sections 42 and 43.

[92] See Appendix, under the head of restrictions on "Irish Matters."

For convenience, land legislation is included in the list, though it

clearly belongs to a different category, and I have so dealt with it

above.

[93] In the Bill of 1886 (Clause 11, Subsec. 7) and in the Bill of 1893

(Clause 8, Subsec. 3) power was given to alter the qualifications of the

franchise, etc., for the Lower House--in the former Bill after the first

dissolution, in the latter after six years.

[94] In 1910, of the total Federal revenue of 675,511,715 dollars,

623,616,963 dollars were raised in this way, or twelve-thirteenths.

(Postal revenue, which balances Postal receipts, is excluded.)

[95] In 1909-10 Dominion revenue from Customs and Excise was 75,409,487

dollars. Total ordinary expenditure (excluding capital accounts),

79,411,747 dollars.

[96] Estimate for 1910-11. Total Federal revenue, £16,841,629; revenue

from Customs and Excise, £111,700,000. Total Federal expenditure

£11,122,297. £5,267,500 will be available for return to the State

exchequers (see pp. 245-246).