The legislative powers, ample as they are, of the Irish Parliament are

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.]

A Leap in the Dark A Criticism of the Principles of Home Rule as Illustrated by the Bill of 1893 · 第 3 / 6 章