in some respects restricted, but what the Parliament cannot accomplish
by law it could accomplish by resolution. The expressed opinion of a
legislature entitled to speak in the name of the people of Ireland must
always command attention, and may exert decisive influence. Suppose that
the Irish House of Commons asserts in respectful, but firm, language,
the right of the Irish people to establish a protective tariff; suppose
that when England is engaged in a diplomatic, or an armed, contest with
France, the Irish House of Commons resolves that Ireland sympathises
with France, that Ireland disapproves of all alliance with Germany, that
she has no interest in war, and wishes to stand neutral; or suppose
that, taking another line, the Irish Parliament at the approach of
hostilities resolves that the people of Ireland assert their inherent
right to arm volunteers, or raise an army in their own defence. No
English Minister can allege with truth that these resolutions or a score
more of the same kind are a breach of the constitution; yet such
resolutions will not be without their effect in England; they cannot be
without their effect abroad; in many parts of Ireland they will have
more than the authority of an Act of Parliament.
Assume, for the purpose of my argument, that the Irish Parliament always
acts absolutely within the limits or the letter of the constitution,
though to make this assumption is to substitute unreasonable hopes for
rational expectations. What Englishmen should note, because they do not
yet understand it, is that within the limits of the constitution the
Irish Cabinet and the Irish Parliament possess and must possess the most
extensive powers, and that these powers may be used in ways which would
surprise and shock the British public, and impede and weaken the action
of the Imperial, or English, Government.
D. _The Restrictions (or Safeguards) and the Obligations_
I. _Their Nature_. The limitations on the power of the Irish Legislature
are of a twofold character.
The Restrictions contained in clause 3 of the Bill are intended to
restrain the Irish Parliament from acting as the representative body of
an independent nation. This clause invalidates for example acts with
respect to the Crown or the succession to the Crown, with respect to
peace or war, with respect to the naval or military forces of the realm,
with respect to treaties or other relations with foreign states, and
with respect to trade with any place out of Ireland, which apparently
includes the imposition of a protective tariff.
The Restrictions[67] contained in clause 4 may be roughly divided into
three heads; first, prohibitions intended to ensure the maintenance of
absolute religious equality[68]; secondly, prohibitions intended to
prevent injustice to individuals, such as deprivation of life, liberty,
or property without due process of law, denial of equal protection of
the law, the taxing of private property without due compensation, or the
unfair treatment of any existing corporation; thirdly, a provision
prohibiting any law which deprives any inhabitant of the United Kingdom
of equal rights to public sea fisheries.[69]
On these Restrictions it were easy to write an elaborate treatise.
Should our new constitution ever come into force, they will give rise to
a whole series of judgments, and to lengthy books explanatory thereof.
The language in which the Restrictions are expressed is in many cases
exceptionable. No lawyer will venture to predict what for instance may
be the interpretation placed by the Courts on such expressions as 'due
process of law,' 'just compensation,' and the like, and it is more than
doubtful whether the so-called safeguards are so expressed as to carry
out the intention of their authors, or, even in words, adequately to
protect either the authority of the Imperial Parliament or the rights of
individuals. But it is not my purpose to criticise the Restrictions, or
the Bill itself, in detail. The drafting of the Government of Ireland
Bill needs much amendment, but at the present juncture it is waste of
time to criticise defects removable by better draftmanship or by slight
changes in the substance of the measure. My object is to dwell on such
points relating to the Restrictions as show their bearing on the
character of the new constitution.[70]
_First._ The Restrictions are one and all of them limits upon the
powers of the Irish Parliament; they are none of them limits upon the
powers of the Irish Executive. The new constitution does not
contain--from its nature it hardly could contain--a single safeguard
against abuse of power by the Irish Ministry or its servants. Yet in all
countries there is far more reason to dread executive than parliamentary
oppression, and this is emphatically true of Ireland.
_Secondly._ The Restrictions contain no prohibition against the passing
of an Act of Indemnity.
Yet of all the laws which a Legislature can pass an Act of Indemnity is
the most likely to produce injustice. It is on the face of it the
legislation of illegality; the hope of it encourages acts of vigour, but
it also encourages violations of law and of humanity. The tale of
Flogging Fitzgerald in Ireland, or the history of Governor Eyre in
Jamaica, is sufficient to remind us of the deeds of lawlessness and
cruelty which in a period of civil conflict may be inspired by
recklessness or panic, and may be pardoned by the retrospective sympathy
or partisanship of a terror-stricken or vindictive Legislature.
Circumstances no doubt may arise in Ireland, as in other countries,
under which the maintenance of order or the protection of life may
excuse or require deviation from the strict rules of legality. But the
question, whether these circumstances have arisen, will always be
decided far more justly by the Parliament at Westminster than it can be
decided by the Parliament at Dublin. Can any one really maintain that a
Parliament in which Mr. Healy, or, for that matter, Col. Saunderson,
might be leader, would be as fair a tribunal as a Parliament under the
guidance of Mr. Gladstone or Lord Salisbury for determining whether an
officer who, acting under the direction of the Irish Government and with
a view to maintain order at Belfast or at Dublin, should have put an
agitator or conspirator to death without due trial, had or had not done
his duty.
_Thirdly._ There is among the Restrictions no prohibition against the
passing of an _ex post facto_ law. Yet an _ex post facto_ law is the
instrument which a legislature is most apt to use for punishing the
unpopular use of legal rights. There is not a landlord, there is not a
magistrate, there is not a constable in Ireland, who may not tremble in
fear of _ex post facto_ legislation. There is no reason, as far as the
Home Rule Bill goes, why the gaoler who kept Mr. William O'Brien in
prison or the warders who attempted to pull off his breeches, should not
be rendered legally liable to punishment for their offences against the
unwritten law of Irish sedition. No such monstrosity of legal inequity
will, it may be said, be produced. I admit this. But the very object of
prohibitions is the prevention of outrageous injustice. The wise
founders of the United States prohibited both to Congress and to every
State legislature the passing of _ex post facto_ legislation. If any man
hint that it be an insult to Ireland to anticipate the possible
injustice of an Irish Parliament, my reply is simple. No Irishman need
resent as an insult prohibitions which were not felt to be insulting
either by the citizens of America or the citizens of Massachusetts.
_Fourthly._ The Restrictions on the powers of the Irish Parliament do
not contain any safeguard against legislation which sets aside
contracts.
This is remarkable, not to say ominous. The Gladstonian constitution has
been drawn up by legislators who profess to profit by the experience of
America. Under the Constitution of the United States[71] no State can
pass any law 'impairing the obligation of a contract.' This provision
has kept alive throughout the Union the belief in the sacredness of
legal promises. It embodies a principle which lies at the bottom of all
progressive legislation. It gives the best guarantee which a
constitution can give against the most insidious form of legislative
unfairness; it embodies a doctrine which all legislatures are likely to
neglect and which an Irish Parliament is more likely to neglect than any
other legislature, for in Ireland there exist contracts which do not
command popular approval, and the Imperial legislation of twenty years
and more has taught the Irish people that agreements which do not
command popular approval may, without breach of good faith, be set aside
by legislative enactment. We all know further that reforms, or
innovations, are desired by thousands of Irishmen which cannot be
carried into effect unless the obligation of contracts be impaired. Why,
then, have statesmen who borrow freely from the Constitution of the
United States omitted the most salutary of its provisions from our new
constitution?
The official reply is at any rate singular; it is apparently[72] that
the section of the United States Constitution which invalidates any law
impairing the obligation of a contract has given much occupation to the
Courts of America. This answer is on the face of it futile; it urges the
proved utility of a law as a reason for its not being enacted; as well
suggest that because the criminal courts are mainly occupied with the
trial of thieves there ought to be no law against petty larceny, or that
because the labours of the Divorce Court increase year by year, the law
ought not to permit divorce. The absurdity of the official reply
suggests the existence of some reason which the defenders of this
strange omission are unwilling clearly to allege. The true reason why
the founders of the new constitution have omitted in this instance to
copy a polity which they profess to admire is not hard to discover. An
enactment which enjoined an Irish Parliament to respect the sanctity of
a contract would be fatal to any remodelling of the Irish land law which
tended towards the spoliation of landowners. Yet this very fact makes
the matter all the more serious. That British statesmen should under
these circumstances deliberately decline to insert an injunction to
respect the sanctity of plighted good faith is much more than an
omission. It amounts to the suggestion, almost to the approval, of
legislative robbery; it is a proclamation that as against landlords, as
against creditors, as against any unpopular class, the Imperial
Parliament sanctions the violation of good faith. To the Irish
Parliament the authors of the new constitution in effect say: 'You may
raise no soldiers, you may not yourselves summon volunteers for the
defence of your country, you shall not impose customs on foreign goods,
and are therefore forbidden to follow a policy of protection approved of
by every civilised State except England; you shall neither establish nor
endow a church, you shall not by providing salaries for your priesthood
at once lighten the burdens of the flock, and improve the position of
the pastor; these things, not to speak of many others, you are forbidden
to do, though there are many wise statesmen who deem that the courses of
action from which you are debarred would conduce to the dignity and the
prosperity of Ireland; but there is one thing which you may do, you may
sanction breach of faith, you may encourage dishonesty, you may enjoin
fraud, you may continue to teach the worst lesson which the vacillation
of English government has as yet taught the Irish people, you may drive
home the conviction that no man need keep a covenant when the keeping
thereof is to his own damage.' This is the message of political morality
which the last true Parliament of the United Kingdom hands over to the
first new Parliament of Ireland.
II. _Their Enforcement._ The nature of the Restrictions imposed upon
the Parliament, and indirectly upon the Government of Ireland, is of far
less importance than are the means provided for their enforcement. A law
which is not enforceable is a nullity; it has in strictness no
existence.
The methods provided by the Home Rule Bill for keeping the Irish
Parliament within its proper sphere of legislative activity are two in
number--the veto of the Lord Lieutenant, and the action of the Courts.
_The Veto._ This is little more than an empty sham, for it must in
general be exercised on the advice of the Irish Cabinet; in other words
it will never be exercised at all.[73] Were the matter not so serious
there would be something highly amusing in the conduct of
constitution-makers who, intending to provide against unconstitutional
legislation on the part of the Irish Parliament, provide that the Irish
Cabinet, who are practically appointed by the Irish Parliament, and who
direct its legislation, shall have power to veto Bills passed by the
Irish Parliament presumably on the advice of the Irish Cabinet.
The English Ministry no doubt may, if they see fit, instruct the Lord
Lieutenant to veto a given Bill. So also the Imperial Parliament has
authority to repeal or override any Act, constitutional or
unconstitutional, passed by the Irish Parliament. Each power stands on
the same footing, neither is meant for ordinary use; either is a means
of legal revolution. The veto of the Crown means little in New Zealand;
it will at best mean no more in Ireland; but in truth it will mean a
good deal less. New Zealand sends no member to Westminster to stay the
hand of the Imperial Government whenever it attempts by way of veto or
otherwise to put in force the reserved powers of the Imperial
Parliament.[74]
_The Privy Council and the Courts_. The English Privy Council[75] may
nullify the effect of Irish legislation in two ways.
It may as an administrative body give a decision that an Act is
void.[76] This power can by exercised only upon the application of the
Lord Lieutenant or a Secretary of State, and it is a power which we may
expect will be but rarely employed, for its use would at once give rise
to a direct conflict between the Irish Parliament and the English Privy
Council. Let it be noted in passing that this provision for the decision
of constitutional questions is foreign to the habits and traditions of
English Courts; no judge throughout the United Kingdom ever pronounces
a speculative opinion upon the extent, operation, or validity of an Act
of Parliament. It is the inveterate habit of our judges to deal with
particular cases as they come before them, and with particular cases
alone. They will find themselves greatly perplexed when they come to
pronounce judgment upon abstract questions of law. This is not all. The
proposed arrangement is as foreign to the spirit of American Federalism
as it is to the spirit of English law. The Supreme Court of the United
States never in strictness pronounces an Act either of Congress or of a
State Legislature void. What the Court does is to treat it as void in
the decision of a particular case. Tocqueville and other critics have
directed special attention to the care with which the Federal tribunals,
by dealing only with given cases as they arise, avoid as far as possible
coming into conflict with any State. They determine the rights of
individuals; they do not determine directly what may be the legislative
competence of the State, or for that matter of the Federal,
Legislature.[77] The extraordinary power given to the Privy Council
violates a fundamental principle of federalism, which by the way is
violated in other parts of the Home Rule Bill. It brings, or tends to
bring, the central power, represented in this case by the Privy Council,
into direct conflict with one of the States of the Federation.[78]
The English Privy Council, or, in strictness, the Judicial Committee of
the Privy Council, is under the new constitution constituted a Final
Court of Appeal from every Court in Ireland.[79]
The Privy Council also is the Court of Appeal from a new kind of
Imperial, or as one may say 'Federal,' judiciary, specially formed for
the determination of matters having relation to the competence of the
Irish Parliament.
This Imperial or Federal judiciary consists of the two Exchequer Judges
of the Supreme Court in Ireland; they are appointed under the Great Seal
of the United Kingdom, and therefore by the English Ministry. Their
salaries are charged on the Consolidated Fund of the United Kingdom, and
they are removable only on an address to the Houses of the Imperial
Parliament. They constitute therefore an Imperial not an Irish Court.
Before this Court may be brought on the application of any party thereto
any legal proceedings in Ireland which _inter alia_ 'touch any matter
not within the power of the Irish Legislature, or touch any matter
affected by a law which the Irish Legislature has not power to repeal or
alter.'[80] With the details of these arrangements I need not trouble my
readers; the point to notice is that, whenever in any proceeding in
Ireland the validity or constitutionality of an Irish Act can come into
question, the matter may, at the wish of any party concerned, and in
many cases apparently must be, brought before an Imperial or in effect
British Court--the Exchequer Judges--and be determined by them subject
to an appeal to another Imperial or British Court, viz. the Privy
Council. Note further that to the Exchequer Judges are given special
powers for the enforcement of any judgment of their Court. If the
Sheriff does not give effect to their judgment, they may appoint any
other officer with the full rights of a Sheriff to enforce it.[81]
Here then we have the machinery of the Imperial, or Federal, Judicature.
To put the matter simply, the Restrictions imposed on the Irish
Parliament depend for their effectiveness on judgments of the Privy
Council enforced by the Exchequer Judges.
Consider how the whole arrangement will work.[82] The theoretical
operation of the scheme is clear enough. _A_ sues _X_ in an Irish Court,
say, to simplify matters, before the Exchequer Judges, for £1,000 due to
_A_ for rent. _X_ bases his defence on an Act of the Irish Parliament,
drawn by Irish statesmen, and approved presumably by Irish electors. _A_
questions the constitutionality of the Act. The Exchequer Judges are
divided in opinion. The matter at last comes before the Privy Council.
The Privy Council pronounce the Act void, and give judgment in _A's_
favour. He has a right to recover the £1,000 from _X_. The whole
question in theory is settled. The law is unconstitutional, the law is
void; _A_ has obtained judgment. But can the judgment be enforced? This
is the essential question; for the object of a plaintiff is to obtain
not judgment but payment or execution. What then are the means for
enforcing the judgment of the Privy Council when it is not supported by
Irish opinion, when it sets aside an Act of the Irish Parliament, and
when it may possibly be opposed to the decision, in a similar case, of
an Irish Court? The means are the action of the Sheriff. What if the
Sheriff is a strong Nationalist, and makes default? The only thing to be
done is to appoint an officer empowered to carry out the decree of the
Court. Of course if the Irish Ministry are bent on enforcing the
judgment, if the Exchequer Court, whose judgment, it may be, has been
overruled, is zealous in supporting the authority of the Privy Council,
if the Irish people are filled with reverence for tribunals which are
really English Courts, all will go well. But Mr. Gladstone himself
cannot anticipate that novel constitutional machinery will work with
ease, or that on the passing of the Home Rule Bill the disposition, the
traditional feelings, and the sympathies of the Irish populace will be
changed. Suppose that _A_ is Lord Clanricarde; suppose that _X_ is an
evicted tenant. It is not common sense to believe that the judgment in
his lordship's favour will as a matter of course take effect. At the
present moment the Irish Courts, backed by the whole authority of the
Imperial Government and the Irish Executive, often find a difficulty in
enforcing their judgments. Will English Courts find it easy to give
effect to a judgment in Ireland if the Irish Executive and its servants
stand neutral or hostile? What if the Irish House of Commons turn out as
unwilling that force should be used for enforcing the decree of the
Privy Council as are some English Radicals that force shall be employed
for the protection of free labourers against Trades Unionists? What if
the officer of the Court is in fact some bailiff trembling for his own
life? He may, I am told, call in the military. Of his authority to do
this I am not quite sure. He must, I suppose, in the first instance
apply to the Irish Home Secretary. The Irish Minister pressed by the
opposition turns a deaf ear to the appeal of the bailiff. Application
must then be made in some form or other to the English Ministry. The
Imperial Cabinet will think more than once before horse, foot, and
artillery are, against the wish of the Irish Government, put in movement
to enforce the judgment of a British Court, and to obtain £1,000 for
Lord Clanricarde. The matter will have become serious; the dignity of
the Irish nation will be at stake; the complaints of the plaintiff will
be drowned by the indignant clamours of eighty members at Westminster.
The essential principle of the new constitution is that there shall be
but one Executive in Ireland. The moment that the British Government
intervenes to support the judgment of British Courts, we have in Ireland
two hostile Executives. We tremble on the verge either of legal
revolution or of civil war. An English Cabinet, I suspect, will hardly
enforce the unpopular rights of a hated plaintiff by use of arms.
Why, it will be said, assume that the Irish Government and the Irish
people will not enforce the law? The assumption, I answer, is justified
not only by the history of Ireland, but by general experience. In all
federations, even the best ordered, difficulties constantly arise as to
the sphere of the Federal Government and the State Governments, and as
to the enforcement of judgments delivered by Federal Courts. The
authority of the federal tribunals has not always been easily enforced
even in the United States. Serious difficulties hamper the action of the
Swiss federal authorities. Even in England enthusiasm or conviction
occasionally triumphs over legality. English clergymen are at least as
reasonable as excited politicians, yet Ritualists have not invariably
submitted to the authority of the Privy Council. Why should Irishmen be
more reasonable than other men? In Ireland we are trying an entirely
novel and dangerous experiment; we are fostering the spirit of
nationality under the forms of federation. The Privy Council, hide the
matter as you will, represents British power. If Ireland is a nation,
the Government of Great Britain is an alien Government; the judgments of
the Privy Council are the judgments of an alien Court, and reason
forbids us to expect more submission to the decisions of an alien
tribunal than to the laws of an alien legislature.
Suppose, however, that British judgments are enforced by the British
army. Is this a result in which any Englishman or Irishman could
rejoice? Can we say that the new constitution works well when its real
and visible sanction is the use of British soldiers? The plain truth is
that arrangements for legally restraining the Irish Parliament within
the due limits of its powers must be ineffective and unreal and, if the
principle of Home Rule be once admitted, the widest must be the wisest
form of it. Colonial independence is better for Ireland and safer for
England than sham federalism.[83]
Grant, however, that the judgments of the Privy Council can be enforced
more easily than I suppose, still even Gladstonians would admit that the
proper working of the new constitution depends on two presumptions. The
one is that the Irish people are under no strong temptation to oppose
the Restrictions or to throw off the obligations imposed upon the Irish
Parliament or Government. The other that they possess no ready means for
nullifying these Restrictions or obligations.
Each of these assumptions is false.
Restraints ineffective for the protection either of British interests or
of individual freedom may be intensely irritating to national sentiment.
The limitations imposed on the powers of the Irish Parliament, or, in
other words, of the Irish people, are opposed to the spirit of
nationality and independence which Home Rule, it is hoped, will appease
or satisfy. They will be hateful therefore not only to that multitude
whom Gladstonians call the Irish people, but to every Irishman who is
bidden by Gladstonians to consider himself a member of the Irish nation.
The Irish are a martial race; they excel in the practice, and delight in
the pageantry, of warfare, but they are forbidden to raise a regiment or
man a gunboat. They cannot legally raise a regiment of volunteers, they
cannot save their country from invasion. Will they permanently acquiesce
in restraints not imposed on the Channel Islands? Irishmen, Unionists no
less than Home Rulers, are mostly Protectionists, and believe that
tariffs may give to Ireland, not indeed a 'plethora of wealth,' for of
this no man out of Bedlam except Mr. Gladstone dreams, but reasonable
prosperity. Vain to argue that Protection is folly. Englishmen think so,
and Englishmen are right. But English doctrine is not accepted in
Germany, in France, in the United States, or in the British Colonies;
why should Irishmen be wiser than the inhabitants of every civilised
country, except England? The fact, in any case, cannot be altered that
most Home Rulers are Protectionists, and that many of them desire Home
Rule mainly because they desire Protection for Ireland. Yet Protection,
at any rate in the form of a tariff, they cannot have.[84] Take again
the Restrictions imposed on the endowment of religion. All English
Nonconformists, and many English Churchmen, hold these Restrictions to
be in themselves politic and just. But the one strong reason for the
concession of Home Rule is that Irishmen disagree with English notions
of policy and of justice. No one can assign any reason why Irish
statesmen, Catholics or Protestants, might not feel it a matter of duty
or of policy to endow the priesthood, to level up instead of levelling
down, to enter into some sort of concordat with Rome. It is a policy
which is distasteful to English Nonconformists and to most Irish
Protestants. But under a system of Home Rule, at any rate, English
Nonconformists have no right to dictate the policy of Ireland. There is
not the remotest reason why Restrictions on the endowments of religion
and the like should not be hateful to Irishmen.
The limitations, in short, on the competence of the Irish Parliament are
inconsistent with the fundamental principle of Gladstonian statecraft.
It is a policy we are told of trust in the people, the limitations are
dictated by distrust of the Irish people; Home Rule is to be granted in
order that Irishmen may give effect to Irish ideas; the Restrictions are
enacted to check the development of Irish ideas, and to impose English
ideas upon the policy of Ireland.
As though, however, the Restraints were not enough to cause first
irritation and then agitation, the financial provisions contemplated by
the Bill are in themselves certain to generate, not future, but
immediate discord.
Of the financial arrangements instituted under the new constitution, my
purpose is to say very little. My object is not to show that Mr.
Gladstone's financial calculations are wrong, or that they are ruinous
to Ireland or unfair to England. All this is for my present purpose
immaterial. My aim is to insist that, in their very nature, they are a
cause of conflict; and that they bring the interest, and, even more,
the sentiment, of Ireland into direct opposition with the power of
England.[85]
All the customs payable at every Irish port are to be regulated,
collected, and managed by, and to be paid into, the Exchequer of the
United Kingdom. Not a penny of these customs benefits Ireland; they are
all--and this is certainly the light in which they will appear to most
Irishmen--a contribution to the revenue of the United Kingdom, that is,
of England. If every taxable article were smuggled into Ireland, so that
not one pound of Irish customs were paid to the English treasury, the
Imperial power would lose, but the Irish State would gain. Ireland would
be delivered from a tax which will soon be called a tribute. If,
moreover, Ireland continues to be treated as financially a part of the
United Kingdom, then free smuggling, which is free trade, would make
Ireland a free port, where might be landed untaxed the goods required by
the whole United Kingdom. It is easy to see how the English revenue
would suffer, but it is equally easy to see that Irish commerce might
flourish. If I am told that the ruin of the British revenue may be
averted by the examination of goods brought from Ireland to Great
Britain--this, of course, is so. But then freedom of trade within the
United Kingdom is at an end. We are compelled, in substance, to raise an
internal line of custom houses; we abolish at one stroke one great
benefit of the Treaty of Union.
The mode, again, in which the customs are levied outrages every kind of
national sentiment. Coast-guards, custom-house officers, and gaugers are
never popular among a population of smugglers; they will not be the more
beloved when every custom-house officer or coastguard is the
representative of an alien power, and is employed to levy tribute from
Ireland.
Another leading feature of the financial arrangements is the charging
upon the Irish Consolidated Fund of various sums rightly due and payable
to the Exchequer of the United Kingdom.[86] They are made a first charge
upon the revenue of Ireland. They are to be paid in the last resort upon
the order of the Lord Lieutenant, acting as an Imperial officer. The
necessity for some arrangement of this kind is clear. Millions have been
lent to Ireland, and these millions must be repaid. But if the need for
some such arrangement be certain, its desperate impolicy is no less
certain. England and Ireland, the English Government and the Irish
Government, are brought into direct hostile collision. The rich English
Government appears in the light of an imperious creditor the Irish
Government stands in the position of a poverty-stricken debtor. Note,
and this is the point which should be pressed home, that in all
confederations the difficulty of exacting the money needed by the
federal government from any state of the confederacy has been found all
but insuperable. Study the history of the thirteen American colonies
between the time of the acknowledgment of their independence by England
and the formation of the United States. This has been termed 'the
critical period' of American history. The colonies were united by
recollections of common suffering and of common triumph, they were not
divided by race or religion; no State aspired to separate nationality,
yet they drifted rapidly towards anarchy; they were discontented at
home, they were powerless abroad, above all, they nearly made shipwreck
on the financial arrangements. Congress was never able, for the
satisfaction either of national needs or of national honour, to obtain
fair contributions from the different States.[87]
Already, further, before the Home Rule Bill has passed from the hands of
the House of Commons Mr. Gladstone's very moderate demands, as they seem
to Englishmen, are held by some Irish Nationalists to be outrageous.[88]
The difference, moreover, is not a matter of calculation, to be settled
by accounts and balances, or disposed of by auditors. No one can read
the statements of Nationalists such as Mr. Redmond or Mr. Clancy without
seeing that the real difference of view lies very deep. These typical
Nationalists do not regard the United Kingdom as a nation. Ireland is
the nation. They doubt what is her interest in the British Empire; they
believe, and already hint, that the financial arrangements between the
two countries cannot be treated as a mere pecuniary transaction. Ireland
has been overtaxed and overburdened. She has claims for compensation.
All the feelings or convictions which inspired hatred of Irish landlords
are already being aroused with regard to the Imperial power. A campaign
against tribute may become as popular as a campaign against rent. The
two campaigns indeed have a close affinity; a large portion of the
tribute is in reality payment in respect of rent, and the instalments
which an Irish farmer pays to buy his land will, to him at any rate,
appear rent or tribute payable to Great Britain. The rent or tribute
will be collected under the new constitution by the Irish
Government.[89] No Irish Ministry will relish the position of collector.
It would have been difficult for a landlord to collect rent after his
agent had publicly announced that it was excessive and unjust. Yet a
landlord could dismiss his agent; the English Cabinet cannot dismiss the
Irish Government. It is certain too that the Irish Ministry will not
find the collection of rent easy. Should the Irish Government state that
the rent is iniquitously high, and refuse to collect it, what will be
the position of the British Ministry? It must either set the
constitution aside or undertake for itself the collection of rent in
opposition to, or, at any rate, unaided by, the Irish Executive and the
Irish Parliament. No more odious task was ever undertaken by a
government. Suppose, however, that things do not come to the worst, the
financial arrangements of the Bill ensure that Ireland will soon demand
modifications of its provisions. Opposition is a probability, discontent
is a certainty.
Ireland is provided under the new constitution with the readiest means
of nullifying the Restrictions. The Irish Cabinet and its servants can
at any moment reduce an unpopular law to a nullity. Even in England a
resolution of the House of Commons may be enough to turn a law into a
dead letter. The Imperial Cabinet at this moment could go very near
making the Vaccination Acts of no effect, and by declining to have
troops sent to Hull could, as I have already pointed out, give victory
to the Trades Unionists. Nor is it necessary that the Cabinet should
decline sending forces to Hull for the support of the law. An intimation
that persons accused of intimidation would either not be prosecuted at
all, or if prosecuted and convicted, would be pardoned, would be
sufficient of itself to make the strike successful. In no country could
the Executive do more to render laws ineffectual than in Ireland. The
Irish Cabinet might by mere inaction render the collection of rent
impossible; they might, as I have already pointed out, give tacit
encouragement to smuggling. If the people regarded a coastguard as an
enemy, if he and his family were left severely alone, if he were often
maltreated and occasionally shot, his position might be a difficult one,
even if supported by the whole force of the state. But if smuggling were
regarded as no crime, if the smuggler were looked upon as the patriot
who deprived an alien power of a revenue to which England had no right,
it is clear that nothing but the energetic support of all the central
and local authorities in the country could give a revenue officer the
remotest chance of victory in his contest with smugglers. But suppose
the national government were apathetic, suppose that the Irish Ministry
looked with favourable eye on the diminution of English revenue; suppose
that no Irish official gave any aid to a custom-house officer; suppose
that, if a British coastguardsman were murdered, Irish detectives made
no effort to discover the wrong-doer; and that when the culprit was
discovered the Irish law officers hesitated to prosecute; suppose that
when a prosecution took place the Attorney-General showed that his heart
was not in the matter, and that the jury acquitted a ruffian clearly
guilty of murder, is it not as clear as day that smuggling would
flourish and no customs be collected? In the same way the Irish Ministry
might by mere apathy, by the very easy process of doing nothing, nullify
the effect of judgments delivered by the Exchequer judges, and the Irish
Ministry would show very little ingenuity if they could not without any
open breach of the law impede the carrying out of executions against the
goods of persons whom popular feeling treated as patriots.
The Irish Executive might, as already pointed out,[90] easily raise an
Irish army. Drilling countenanced or winked at by the Irish Ministry
could never be stopped by the British Government. Prussia at the period
of her extreme weakness, and under the jealous eye of Napoleon, sent
every Prussian through the ranks. Bulgaria raised an army while
pretending to encourage athletic sports. The value of the precedent is
not likely to escape an Irish Premier.
The Irish Parliament cannot legally repeal a single provision of the
constitution, but an Irish Parliament might render much of the
constitution a nullity. The Parliament might pass Acts which trenched
upon the Restrictions limiting its authority. Till treated as void such
statutes would be the law of the land. Such voidable Acts, and even
parliamentary resolutions,[91] would go like a watchword through the
country and encourage throughout Ireland popular resistance to Imperial
law. A profound observer has remarked that people do not reckon highly
enough the importance at a revolutionary crisis of any show or
appearance of legality.[92] Revolution acquires new force when masked
under the form of law. This is a point which Englishmen constantly
overlook. They know the moral influence of leagues and combinations;
they do not reflect that a Parliament or House of Commons in sympathy
with resistance to Imperial demands would possess tenfold the moral
authority of any National League. Note too that the Irish Ministry and
the Irish Parliament would play into one another's hands, and would
further be strengthened by their Irish allies at Westminster, as also by
the Irish electoral vote in England.
For the true stronghold of the Irish Government lies, under the new
constitution, at Westminster.[93]
There they would command at least eighty votes: the Irish members could
still, as now, and far more effectively than now, coerce under ordinary
circumstances any Ministry disposed to enforce the rights of the
Imperial Government, or, in other words, of England.
Take a concrete case to which I have already referred.[94] Irish farmers
who have purchased under the Ashbourne Act grow weary of paying
instalments which are equivalent to rent. The Irish Cabinet refuses to
collect the rent; it urges its absolute inability to pay the sums due to
the Imperial Exchequer and asks for remission. Meanwhile the Irish House
of Commons passes a resolution supporting the conduct of the Irish
Government. The British Ministers are stern, and reject the request of
the Irish Cabinet. The Cabinet at Dublin retire from office. No
successors can be appointed who command the support of the Irish
Parliament. The Lord Lieutenant advises the Government at home that
things have come to a deadlock and that a dissolution will change
nothing. Thereupon the Irish members at Westminster begin to move; they
threaten general hostility to the British Ministry.
They proffer their support to the Opposition. It may of course happen
that the British Ministry can, like the Unionist Government of 1886,
defy the Opposition and the Irish members combined. If so the English
Cabinet can risk a constitutional conflict in Ireland, though it is a
conflict likely to end in disturbance or civil war. But judging the
future by the past the eighty members will hold the balance of power. If
so their course is clear. They expel from office the Ministers who have
protected the rights of the Imperial Government. A weak Ministry
depending on Irish votes rules, or rather is ruled, at Downing Street.
Every one knows how, under the supposed conditions, the affair will
end. There will be a transaction of some sort, and we may be certain
that such a transaction will be to the advantage of the Irish
Government, and will weaken or discredit Imperial or English authority.
We come round here to the root of the whole matter. Were the
Restrictions on the power of the Irish Parliament real and easily
enforceable, were the obligations imposed upon or undertaken by the
Irish people obligations of which an English Ministry could at once
compel the fulfilment, Restrictions and obligations alike would be
rendered futile and unreal by the presence of the Irish members at
Westminster. Every Home Rule scheme which can be proposed is impolitic
and is as dangerous as Separation; but the most impolitic of all
possible forms of Home Rule is the scheme embodied in the Bill of 1893.
Its special and irremediable flaw is the retention of the Irish members
at Westminster. This governs and vitiates all the leading provisions of
the new constitution. Under its influence every conceivable safeguard,
the supreme authority of Parliament, the veto, the legal restrictions on
the competence of the Irish legislature melt away into nothing.
They are some of them capable of doing harm, they are none of them
capable of doing good.
Cast a glance back at the leading features of the new constitution.
The Imperial Parliament remains in form unchanged, and retains the
attribute of nominal sovereignty. But in Ireland the Imperial Parliament
surrenders all, or nearly all, the characteristics of true and effective
power; it retains in fact in Ireland nothing more than the right to
effect under the semblance of a legal proceeding a revolution which
after all must be carried out by force. For practical purposes it has no
more power at Dublin than it has at Melbourne, _i.e._ it retains at
Dublin scarcely any real power whatever.
For the sake of this nominal and shadowy authority the Imperial
Parliament is itself transformed into a strange cross between a British
Parliament and the Congress of an Anglo-Irish Federation.
The Irish Executive and the Irish Parliament become under the new
constitution the true and real Government of Ireland. But the Irish
Government and the Irish people are fettered by Restrictions which would
not be borne by the Government or the people of a self-governing colony.
These Restrictions are ineffective to bind, but they are certain to
gall, and if taken together with onerous financial obligations to Great
Britain, which whether just or not must have an air of hardness, and
with the habitual presence in Ireland of a British army under the
direction of the British Executive, lay an ample foundation for the most
irritating of conflicts.
The new constitution, lastly, places in the hands of the Irish people
ample means for constitutional or extra-constitutional resistance to
Imperial, or in fact to English, power, and almost ensures the success
of Ireland in any constitutional conflict. The presence of the Irish
members at Westminster saves, or proclaims, the nominal sovereignty of
the Imperial Parliament; but their presence in truth makes this
sovereignty unexercisable, and therefore worthless, and while increasing
the apparent power ensures the real weakness of England.
FOOTNOTES:
[25] Thus little, if anything, is said in these pages on the
constitution of the Irish Legislature, though it is in several points,
and especially in the character of the Legislative Council, open to
grave criticism. Little, again, is said of the financial arrangements in
their fiscal character. The topic is of the highest importance, but it
must be debated in the main by experts. My remarks upon these
arrangements refer almost exclusively to the way in which they may
affect the working of the constitution. The inclusion of Ulster within
the operation of the Bill and the refusal to give weight to the demand
of Ulster that the Act of Union should not be touched, are of course
matters of primary importance. They ought never to be distant from the
thoughts of any one concerned with the policy or impolicy of Home Rule;
they dominate, so to speak, the whole political situation; they are
constantly referred to in these pages; but they do not form part of the
new constitution so much as conditions which affect the prudence or
justice of creating the new constitution.
[26] Bill, 1893, Preamble, and clauses 33, 37.
[27] The language of clause 33 is vague, but, according to the best
interpretation I can put upon it, its effect as to laws made for Ireland
after the Home Rule Bill becomes law will be this: The Imperial
Parliament will be able to pass enactments of any description whatever
with regard to Ireland, and the Irish Legislature will not be able to
repeal or alter any enactments so enacted by the Imperial Parliament
which are expressly extended to Ireland. Thus the Irish Parliament
might, it is submitted, on the Home Rule Bill passing into law repeal
the Criminal Law and Procedure (Ireland) Act, 1887, 50 & 51 Vict. c. 20.
But if, after the Home Rule Bill passed into law, the Criminal Law and
Procedure (Ireland) Act, 1887, were continued, or after its repeal by
the Irish Parliament were re-enacted, by the Imperial Parliament, then
the Irish Parliament could not repeal the Act or any part of it. Still
clause 33 of the Home Rule Bill is much too vaguely expressed. What, for
example, is the effect of an Act of the Imperial Parliament which is
'impliedly' extended to Ireland? If my interpretation of the clause is
the right one, the meaning of the clause ought to be made perfectly
clear; ambiguity in such a matter is unpardonable.
[28] See pp. 4-6 _ante_. This ambiguity underlies and vitiates almost
every argument used by Home Rulers, whether English or Irish, in favour
of Home Rule. English Home Rulers emphasise and exaggerate the extent of
the control, or the so-called supremacy, which, after the establishment
of an Irish Parliament, can and will be exerted in Ireland by the
Imperial Parliament at Westminster. Irish Home Rulers, when addressing
English electors, or the Imperial Parliament, often use language which
resembles the phrases of their English allies. But assuredly Irish Home
Rulers, when addressing Irishmen, or when collecting subscriptions from
American citizens of Irish descent, speak the language of Irish
Nationalists and cut down the effective supremacy of the Imperial
Parliament after the granting of Home Rule so as to make it consistent
with the war cry of 'Ireland a Nation.' (Compare Cambray's _Irish
Affairs and the Home Rule Question_, pp. 48-65.)
[29] Mr. Sexton, Feb. 13, 1893, _Times Parliamentary Debates_, p. 319;
Mr. Redmond, Feb. 14, 1893, _ibid_. pp. 350-52; and April 13, 1893,
_ibid_. p. 414. Compare especially language of Mr. Redmond, _Irish
Independent,_ Feb. 17, and note that all the arguments for Home Rule
drawn from its success or alleged success in the British Colonies imply
that the relation of the Imperial Parliament to Ireland shall resemble
its relation to the Colonies. See generally, debate of May 16 in _The
Times,_ May 17, pp. 6-8.
[30] Feb. 13, 1893, _Times Parliamentary Debates_, p. 303.
[31] April 14, 1893, _ibid_. pp. 439, 440.
[32] Feb. 14, 1893, _ibid_. pp. 340, 341, 343.
[33] Bill, clause 12, sub-clause (3).
[34] This is the only sense in which the sovereignty of the Imperial
Parliament is inalienable. This should be noted, because a strange and
absurd dogma is sometimes propounded that a sovereign power such as the
Parliament of the United Kingdom, can never by its own act divest itself
of sovereignty, and it is thence inferred or hinted that there is no
need for the Imperial Parliament to take measures for the preservation
of its supremacy. The dogma is both logically and historically
untenable. A sovereign of any kind can abdicate. A Czar can lay down his
power, and so also can a Parliament. To argue or imply that because
sovereignty is not limitable (which is true) it cannot be surrendered
(which is palpably untrue) involves the confusion of two distinct ideas.
It is like arguing that because no man can while he lives give up, do
what he will, his freedom of volition, so no man can commit suicide. A
sovereign power can divest itself of authority in two ways. It may put
an end to its own existence or abdicate. It may transfer sovereign
authority to another person, or body of persons, of which body it may,
or may not, form part. The Parliaments both of England and of Scotland
did at the time of the Union each transfer sovereign power to a new
sovereign body, namely the Parliament of Great Britain. The British
Parliament did in 1782 surrender its sovereignty in Ireland to the Irish
Parliament. In 1800 both the British Parliament and the Irish Parliament
alienated or surrendered their sovereign powers to the Parliament of the
United Kingdom. Compare Dicey, _Law of the Constitution_ (7th ed.), note
3, p. 65.
[35] It may, I am quite aware, be argued that the presence of Irish
representatives is not requisite for the maintenance of parliamentary
supremacy. In theory it is not. An arrangement might quite conceivably
be made (which if Home Rule were to be conceded might be the least
objectionable method of carrying out a radically vicious policy) under
which it should be distinctly agreed that Ireland should occupy the
position of a self-governing colony with all the immunities and
disadvantages thereof, and should cease to be represented at
Westminster, whilst the British Parliament retained the right to
abolish, or modify, the Irish constitution. Such an arrangement would,
however, make it perfectly plain that the sovereignty of the British
Parliament meant in Ireland what the sovereignty of the Imperial
Parliament now means in New Zealand. But 'the retention of the Irish
members is a matter of great public importance' (at any rate in the
opinion of Mr. Gladstone) 'because it visibly exhibits that supremacy'
(_i.e._ the supremacy of Parliament) 'in a manner intelligible to the
people.'--Mr. Gladstone, Feb. 13, 1893, _Times Parliamentary Debates_,
p. 306. See as to Home Rule in the character of colonial independence,
_England's Case against Home Rule_ (3rd ed.), pp. 197-218.
[36] _i.e._ at the moment when these pages are written. What parts of
the Government of Ireland Bill may or may not be officially deemed
essential by the time these pages appear in print, no sensible man will
undertake to predict. Mr. Gladstone's own language is most
extraordinary. On the retention of the Irish members, which in the eyes
of any ordinary man affects the whole character of the new constitution,
and essentially distinguishes the Home Rule policy of 1886 from the Home
Rule policy of 1893, he uses (_inter alia_) these words: 'On the
important subject of the retention of the Irish members I do not regard
it, and I never have regarded it, as touching what may be called the
principles of the Bill. It is not included in one of them. But whether
it be a principle of the Bill or not, there is no question that it is a
very weighty and, if I may say so, an organic detail which cuts rather
deep in some respects into the composition of the Bill.'--Mr. Gladstone,
Feb. 13, 1893, _Times Parliamentary Debates_, pp. 305, 306. This
statement, with the whole passage of which it forms part, is as
astounding as would have been a statement by Lord John Russell on
introducing the great Reform Bill, that he could not say whether the
disfranchisement of rotten boroughs did or did not form a principle of
the measure.
[37] Compare Report of Special Commission, pp. 18, 19.
[38] Under the Home Rule Bill of 1893 as sent up to the House of Lords,
it would have been the 'constant presence.'
[39] The division of parties in an American State is governed not by
questions concerning the internal affairs of the State, but by the
questions which divide parties at Washington. State politics depend upon
federal politics. 'The national parties have engulfed the State parties.
The latter have disappeared absolutely as independent bodies, and
survive merely as branches of the national parties, working each in its
own State for the tenets and purposes which a national party professes
and seeks to attain.' See Bryce, _American Commonwealth_, ii. p. 194.
[40] _i.e._ in 1893.
[41] Mr. Morley at Newcastle, _The Times_, April 22, 1886.
[42] Now Lord Morley of Blackburn.
[43] _i.e._ in 1893, and as they continue to be in 1911.
[44] Mr. Morley at Newcastle, _The Times_, April 22, 1886. [Morley's
argument applied primarily, no doubt, to the Home Rule Bill of 1886; its
force, however, was infinitely strengthened as applied to the Home Rule
Bill of 1893 by the change which retained eighty Irish members at
Westminster with unrestricted powers of legislation. The tenor of his
argument applies, I contend with confidence, to any Home Rule Bill which
shall propose to give Ireland a real Irish Parliament led by an Irish
Cabinet, and at the same time to retain representatives of Ireland as
members of the British Parliament.]
[45] See p. 43, _ante_.
[46] See Motley's speech, _Times_, April _22_, 1886.
[47] See Bill, Third Schedule.
[48] This is at any rate the opinion of Mr. Redmond expressed in the
_Nineteenth Century_, Oct. 1892.
[49] Bill, clause 9, sub-clause (3).
[50] The authors of the Home Rule Bill foresee the possibility of such
an erroneous decision. They have carefully provided that such an error
shall have no legal effect. Clause 9, sub-clause (4), 'Compliance with
the provisions of this section shall not be questioned otherwise than in
each House in manner provided by the House,' is in reality a provision
sanctioning the grossest unfairness. Its effect is that a British Bill
passed solely by virtue of the Irish vote is, on its becoming an Act,
good law, in spite of its having been passed in violation of the
constitutional rule laid down in clause 9, sub-clause (3), that an Irish
member shall not be entitled to deliberate or vote on any Bill the
operation of which is confined to Great Britain.
[51] Compare Bill, clause 9, sub-clause (3), and sub-clause (4), which
provides that 'compliance with the provisions of this section shall not
be questioned otherwise than in each House in manner provided by the
House.'
[52] 23 Geo. III. c. 28.
[53] The reader, in order to understand this account of the proposed
constitution of 1886, should remember that under that constitution there
were in effect, though not in name, constituted three different
Parliaments, which must be carefully distinguished.
1. The British Parliament at Westminster, containing no Irish
members, which was to legislate for Great Britain and for the whole
British Empire except Ireland.
2. The Irish Parliament at Dublin, containing no British
representatives, which was to legislate for Ireland, but which was
not to legislate for England, Scotland, or for any other part of
the British Empire, and was not to have any voice whatever in the
general policy of the Empire.
3. The Imperial Parliament also sitting at Westminster, and
comprising both the British and the Irish Parliament. This body
would have corresponded nearly, if not exactly, with the existing
Parliament of the United Kingdom, and was intended to come together
only on special occasions and for a special purpose, namely the
revision or the alteration of the Gladstonian constitution. For the
fuller explanation of the whole of this subject see _England's Case
against Home Rule_ (3rd ed.), pp. 234, 238
Note that England gains little or nothing (as compared with what was
offered to her under the Home Rule Bill of 1886) by the Imperial
Parliament retaining the power to legislate for Ireland, for even under
that Bill the Imperial Parliament (_i.e._ the Parliament at Westminster
when consisting both of British and of Irish members) could legislate
for Ireland.
[54] _Unionist Delusions_, pp. 6-9.
[55] The following passage from the writings of a man whose words,
whilst he was yet amongst us, Unionists and Gladstonians alike always
heard with the respect due to sense, to ability, to knowledge, and to
fairness, deserves attention:--
'In Mr. Gladstone's proposed measure of Home Rule' _[i.e._ the Bill
of 1886]' the Parliament sitting at Westminster was no longer to
contain Irish members. I hold this to be an essential feature of
the scheme, an essential feature of any scheme of Home Rule. By Mr.
Gladstone's scheme, Ireland was formally to exchange a nominal
voice, both in its own affairs and in common affairs, for the real
management of its own affairs and no voice at all in common
affairs. This is the true relation of Home Rule. As dependent
Canada has no representatives in the Parliament of the United
Kingdom, so neither would dependent Ireland have representatives in
the Parliament of Great Britain. I am unable to understand why this
provision, which seemed so naturally to follow from the rest of the
scheme, awakened so powerful an opposition among Mr. Gladstone's
own supporters. I believe the Irish have no wish to appear in the
British Parliament. They wish to manage their own affairs, and are
ready to leave Great Britain to manage its own affairs and those of
the "Empire" to boot. It is very hard to see in what character the
Irish members are to show themselves at Westminster. If they may
vote on British affairs, while the British members do not vote on
Irish affairs, surely too great a privilege is given to Ireland; it
is Great Britain which will become the dependency. If they are to
vote on "Imperial" affairs only, to say nothing of the difficulty
of defining such affairs, it will be something very strange, very
novel, very hard to work, to have members of Parliament who are
only half-members, who must walk out of the House whenever certain
classes of subjects are discussed.' (E.A. Freeman, 'Irish Home
Rule and its Analogies,' _The New Princeton Review_, vi. pp. 194,
195.)
Mr. Freeman's language proves that I have not overrated the essential
difference or opposition between the Home Rule policy of 1886 and the
Home Rule policy of 1893.
[56] It is styled in the Home Rule Bill 'an Executive Committee of the
Privy Council of Ireland.'
[57] If there were reason to expect (which there is not) that the Home
Rule Bill would pass into law, it would be worth while to consider
carefully a question which has not yet engaged the attention of English
statesmen: Is it desirable that under a system of Home Rule the Irish
Executive should be a Parliamentry Ministry? The answer to this question
is by no means clear. Both in the United States, and in every State of
the Union, the executive power is lodged in the hands of an official who
is neither appointed nor removable by the Legislature. The same remark
applies to the Executive of the German Empire. In Switzerland the
Ministry, or Council of State, is indeed appointed, but is not removable
by the Federal Assembly or Parliament. Arguments certainly might be
suggested in favour of creating for Ireland an Executive whose tenure of
office might be independent of the will of the Irish Parliament.
Ireland, in short, like many other countries, might gain by the
possession of a non-parliamentary Executive. See as to the distinction
between a parliamentary and a non-parliamentary Executive, _Law of the
Constitution_ (7th ed.), App. p. 480.
[58] See Bill, clause 14.
[59] This would apparently approve itself to Dr. Nulty, Roman Catholic
Bishop of Meath. Of Mr. Justice Andrews he seems to have written that
'this Judge is a Unitarian,' and that it appears to the Bishop that 'the
man who denies the divinity of our Lord is as incompetent to form clear,
correct, and reliable conceptions of the feelings, the instincts, the
opinions, and the religious convictions of an intensely Irish population
as if they were inhabitants of another planet.' See _The Times_, April
3, 1893, p. 8, where a correspondent from Ireland purports to give the
effect of a pamphlet by Dr. Nulty. The Bishop wrote, I suppose, with a
view to Mr. Justice Andrews' opinions as to priestly influence at
elections, but the Bishop's words suggest the inference that the
government of a Catholic country ought to appoint Catholic Judges. Why
should we be surprised at this? Religious toleration is not a doctrine
of the Roman Catholic Church.
[60] See Home Rule Bill, 1893, clause 35, p. 214, _post_.
[61] 'I am not suggesting for a moment that we are going to set up in
Ireland two independent and separate Executives. I think the granting of
Home Rule in any intelligible sense would be entirely incomplete if it
were not supplemented by the granting of executive power, and in my
judgment the Executive in Ireland is intended to be and must be
dependent upon and responsible to the Irish Legislature in Irish
affairs. But that does not in the least prevent the retention in the
Crown of the executive government of the United Kingdom, as it provided
in this Bill such executive authority as is necessary for the execution
of the Imperial laws' (sic). Mr. Asquith, April 14, 1893, _Times
Parliamentary Debates_, p. 440. Compare _Hansard_, vol. xi. same date,
p. 348.
[62] Bill, clause 30.
[63] This is technically expressed in the Bill by the provision that
'the two forces [viz. the Royal Irish Constabulary and the Dublin
Metropolitan Police] shall, while they continue, be subject to the
control of the Lord Lieutenant as representing Her Majesty.' As to the
military or naval forces of the Crown, the Bill contains no provision,
but it cannot, it is submitted, be doubted that they will remain subject
to the Imperial Government, and, except with the sanction of the
Imperial Government, will not be subject to the control of the Irish
Executive.
[64] See Bill, clauses 1-5, and as to the Restrictions on its
legislative power, see pp. 80-110, _post_.
[65] See two excellent articles in the _Spectator_ of February 25 and
March 4, 1893.
[66] Of course all these statements are to be taken subject to the
Restrictions placed on the powers of the Irish Legislature by Bill,
clauses 3, 4, pp. 197, 198 _post_.
[67] These Restrictions, or safeguards, deprive Ireland of powers in
fact possessed by the Legislature of any self-governing colony, and I
believe by the Isle of Man or Jersey. [Compare the Home Rule Bill 1893,
clause 3, sub-clause (3) (p. 197, _post_,) as it appears in the original
Bill, with the same clause as amended by the House of Commons and sent
up to the House of Lords. The original clause forbids the Irish
Parliament to make any law in respect (_inter alia_) of 'naval or
military forces or the defence of the realm.' The clause as amended by
the House of Commons forbids the Irish Parliament to make any law in
respect of '(3.) Navy, Army, Militia, Volunteers, and any other military
forces, or the defence of the realm, or forts, or permanent military
camps, magazines, arsenals, dockyards, and other needful buildings, or
any places purchased for the erection thereof.'
In 1893, Unionists and Gladstonians alike were determined that on no
pretence whatever should an Irish Parliament be allowed to raise an
Irish army, even of volunteers. The very name of 'volunteers,' and the
history of 1780-82, explain and justify their prudence.
[68] Clause 4, sub-clause (1) to (4).
[69] For the details of the Restrictions contained in clauses 3 and 4
the reader should study carefully the terms of the Bill itself. See
Bill, in Appendix.
[70] In more than one case it is pretty clear that the Restrictions are
in themselves ineffective. Take these instances:--
1. The Restrictions do not really prevent the drilling of an armed
force. The Act which makes drilling illegal is a statute of 1819,
60 Geo. III. 1 Geo. IV. c. 1. This Act applies to Ireland and
cannot (it is submitted) be repealed by the Irish Parliament. But
this statute of 1819 might easily be evaded, for by sec. 1 meetings
for training and drilling may be allowed by any two Justices of the
Peace. The Irish Executive might, and probably would, appoint
plenty of justices who were willing to allow training and drilling.
The men thus trained and drilled could not, I conceive, technically
be made a volunteer force, but they might, for all that, be a very
dangerous armed body.
2. It is not certain what is the real effect of the provisions
whereby no 'person may be deprived of life, liberty or property
without due process of law.' Does it, for example, preserve a right
to trial by jury? I doubt whether it does. American judgments on
the same words in United States Constitution, Amendments, art. 14,
would of course have no legal authority in the United Kingdom, and
there is a special reason why they often could not be followed. No
process would (it is submitted) be considered in an Irish or
British Court as not a 'due' process, for which a parallel could be
found in the legislation of the Imperial Parliament. But the
Prevention of Crime (Ireland) Act, 1882, sec. 1, to instance no
other enactment, took away the right to trial by jury in cases of
trial for treason, murder, etc.
3. Private property might still in fact be taken without just
compensation. The Privy Council would not apparently have to
consider whether in any given case property was taken without just
compensation, but whether a particular law was a law whereby it
might be taken without just compensation. Suppose, for example, Sir
James Mathew and the commissioners who sat with him were
constituted by an Irish Act a Court for determining what
compensation should be given for the taking of certain property for
public use, and the Act itself provided that just compensation must
be given. It is very doubtful how far the Privy Council could treat
the Act as invalid, or could in any way enter upon the question
whether just compensation had been given. Yet it is plain that such
a Court might give very far from just compensation, say to Lord
Clanricarde.
[71] Constitution, art. i sect. 10.
[72] See Mr. J. Morley, April 18, 1893, _Times Parl. Deb._, p. 500.
[73] See Bill, clause 5, sub-clause (3). The language of this clause
disposes of the contention put forward by at least one Gladstonian
candidate at the last general election [_i.e._ of 1892], that the veto
must of necessity be exercised under the control of the British Cabinet;
an arrangement too futile for an ardent Gladstonian to contemplate as
possible is therefore actually enacted in the Government of Ireland
Bill.
[74] It is to be presumed that the Crown, or in effect the British
Cabinet, does not in the case of Ireland retain the power of
'disallowance' under which the Crown occasionally annuls colonial Acts
which have received the assent of a colonial Governor. The power to
disallow an Irish Act which, though not unconstitutional, has worked
injustice, might be of advantage. But in truth the parliamentary methods
for enforcing the Restrictions or safeguards are utterly unreal; they do
not repay examination; whether there be two sham modes of enforcement,
or one, must be to a sensible man a matter of indifference. As to the
disallowance of Acts see Rules and Regulations published for the use of
the Colonial Office, chap. iii.; Legislative Councils and Assemblies,
Rules 48-54; British North America Act, 1868, sections 55-57; _England's
Case against Home Rule_ (3rd ed.), p. 33. [Compare Dicey, _Law of
Constitution_ (7th ed.), pp. 111-114.]
[75] The appeal to the English Privy Council, both under clauses 19,
_22_, and 23 of the Bill, appears to be in each case an appeal to the
Judicial Committee of the Privy Council. [The particular provisions
contained in the Home Rule Bill, 1893, as to an appeal to the Privy
Council, etc., are now of little direct importance, but they are worth
study as showing the extreme difficulty of providing any satisfactory
body for acting as a Court called upon to decide the numerous
constitutional questions, as to the legislative power of an Irish
Parliament, which must be raised under any Home Rule Act whatever.]
[76] See Bill, clause 23.
[77] See Tocqueville, _Démocratie en Amérique_, i. chap. viii. pp.
231-250; Bryce, _American Commonwealth_, ii. (1st ed.) p. 45; _ibid._ i.
ch. 23.
[78] Compare _England's Case against Home Rule_ (3rd ed.), pp. 257, 258.
[79] Compare Bill, clauses 19, 22, pp. 206, 209, _post._
[80] Bill, clause 19, sub-clause(4).
[81] Clause 19, sub-clause (5). The whole of the provisions as to the
Exchequer Judges are extremely obscure. The jurisdiction and the powers
of the Court, should it ever be formed, will need to be defined by a
special Act of Parliament. There are special laws regulating the action
of the Federal Judiciary both in the United States and in Switzerland.
As the matter at present stands the jurisdiction of the Exchequer Judges
and of the Privy Council as a Court of Appeal from them may apparently
be thus described.
It extends to all legal proceedings in Ireland which
(i) are instituted at the instance of or against the Treasury or
Commissioners of Customs, or any of their officers, or
(ii) relate to the election of members to serve in [the Imperial]
Parliament, or
(iii) touch any matter not within the powers of the Irish
Legislature, or
(iv) touch any matter affected by a law which the Irish Legislature
have not power to repeal or alter.
It is possible that sub-clause (4) gives the Exchequer Judges a much
wider jurisdiction than is intended by the authors of the Home Rule
Bill, and the strictures which have been made on this sub-clause deserve
attention. My purpose, however, is not to criticise the details of the
Home Rule Bill or to suggest amendments thereto. Its fundamental
principle is, in the eyes of every Unionist, unsound, and the Bill
itself therefore unamendable. My object is simply to describe and
criticise the general constitutional provisions of the Bill and to show
their bearing and effect.
[82] Compare _England's Case_ (3rd ed.), pp. 258, 259.
[83] See _England's Case_ (3rd ed.), pp. 214-218.
[84] See Home Rule Bill, clause 3, sub-clause (7) (p. 198, _post_), and
compare same clause slightly amended, in Bill, as sent up to the House
of Lords, sub-clause (8).
[85] These strictures on the financial arrangements which were to exist
between England and Ireland apply directly to the Home Rule Bill as
introduced into the House of Commons, but they are less applicable to
the Bill as amended, more or less in favour of Ireland, before the Bill
was sent up to the House of Lords. Compare clause 10 of the original
Bill with clause 11 of the Bill as amended and brought up to the House
of Lords.
[86] Bill, clauses 14, 15, and 16. [Compare with these clauses of the
original Bill clauses 13, 14, 15, and 16 of the Bill as amended before
being sent to the House of Lords.]
[87] See Fiske, _Critical Period of American History_, chs. iii. and iv.
[88] See, _e.g._, letter of Mr. Clancy, M.P., on the Financial Clauses of
the Home Rule Bill, _Manchester Guardian_, April 4, 1893.
[89] Bill, clause 15.
[90] See pp. 72 and 82, _ante_.
[91] See pp. 79, 80, _ante_.
[92] _Souvenirs de Alexis de Tocqueville_, p. 63.
[93] The reader should note the history of the insurrection in Ticino
during 1891. It is quite clear that the Liberals of Ticino who had
distinctly broken the law were more or less comforted or protected by
the Liberal party in the Swiss Federal Assembly. Compare Hilty,
_Separatabdruck aus dem Politischen Jahrbuch der Schweizerischen
Eidgenossenschaft_ (_Jahrgang_ 1891).
[94] See p. 103, _ante_. [The force of this illustration has been
increased by every Land Act passed since 1893. 'The Imperial Exchequer
[_i.e._ in effect Great Britain] has made a free grant of £17,000,000
towards furthering land purchase; moreover to that end it has expressed
its willingness to pledge its credit to the amount of £183,000,000 of
which over £35,000,000 has already been raised. The Imperial Exchequer
looks to the Irish tenant purchaser for the interest and sinking fund on
that loan.'--Cambray, _Irish Affairs_, p. 214.]