Chapter II: The New Constitution (2)

This plea, even were it supported by the facts of the case, would be futile. It might pass muster with disputants in search of a verbal triumph, but to any man seriously concerned for the welfare of the nation must appear childishly irrelevant. The welfare of the State cannot turn upon the neatness of a _tu quoque_; retorts are not reasons, and had every Unionist, down from the Duke of Devonshire to the present writer, pressed in 1886 for the retention of the Irish members at Westminster, the controversial inexpertness of the Unionists seven years ago would not diminish the dangers with which, under a system of Home Rule, the presence of the Irish members at Westminster actually threatens England. But the plea, futile as it is, is not supported by fact. It rests on a misrepresentation of the Unionist position in 1886.

'The case in truth stands thus:--Mr. Gladstone was [in 1886] placed in effect in this dilemma: "If you do not," said his opponents, "retain the Irish representatives at Westminster, the sovereignty of the British Parliament will be, under the terms of your Bill, no more than a name; if you do retain them, Great Britain will lose the only material advantage offered her in exchange for the local independence of Ireland." Gladstonians, in substance, replied that the devices embodied in the Government of Ireland Bill at once freed the British Parliament from the presence of the Parnellites and safeguarded the sovereignty of the British, or (for in this matter there was some confusion) of the Imperial Parliament. On the latter point issue was joined. The other horn of the dilemma fell out of sight, and some Unionists, rightly believing that the Bill as it stood did not preserve the supremacy of the British Parliament, pressed the Ministry hard with all the difficulties involved in the removal of the Irish members. In the heat of debate speeches were, I doubt not, delivered in which the argument that you could not, as the Bill stood, remove the Irish members from Westminster and keep the British Parliament supreme in Ireland, was driven so far as to sound like an argument in favour of, at all costs, allowing members from Ireland to sit in the English Parliament. Those who appeared to fall into this error were, it must be noted, but a fraction of the Unionist Party, and their mistake was little more than verbal. When the Ministry maintained that the removal of the Irish members from Westminster was a main feature of their Home Rule policy, opponents naturally insisted upon the defects of the scheme laid before them, and did not insist on the equal or greater defects of a plan which the Government did not advocate. Mr. Gladstone, we are now told, has changed his position, and assents to the principle that Ireland must be represented in the British Parliament. If this assent be represented as a concession to the demands of Unionists, my reply is that it is no such thing. It is merely the acceptance of a different horn of an argumentative dilemma. Grant for the sake of argument (what is by no means certain) that the supremacy of the Imperial Parliament is really saved. The advantage offered to England in exchange for Home Rule is assuredly gone. My friend, Mr. John Morley, used to argue in favour of Home Rule from the necessity of freeing the English Parliament from Parnellite obstruction. As a matter of curiosity, I should like to know what he thinks of a concession which strikes his strongest argumentative weapon out of his hands. My curiosity will be satisfied on the same day which tells us Lord Spencer's reflections on the surrender of the policy represented by the Land Purchase Bill. Meanwhile, I know well enough the thoughts of every Unionist who is not tied by the exigencies of his political antecedents or utterances. To say that in the eyes of such a man the proposed concession is worthless, is to say far too little. It is not a concession which he rates at a low price; it is a proposal which he heart and soul condemns.'[54]

These words were not written to meet the present condition of the controversy; they were published in 1887 at a time when no Gladstonian, except Mr. Gladstone (if indeed he were an exception), knew whether the retention in the Parliament at Westminster, or the exclusion from the Parliament at Westminster, of the Irish members, was an essential principle of Home Rule.

England again, it is alleged, suffers without murmuring all the inconvenience caused by the Irish vote at Westminster; and she may well, under a system of Home Rule, bear without complaint evils which she has tolerated for near a century.

The answer to this reasoning is plain. It is a sorry plea indeed for a desperate innovation that it leaves the evils of the existing state of things no worse than they now are. For the sake of the maintenance of the Union, which Unionists hold of inestimable value, England has borne the inconvenience caused to her by the Irish vote. It argues simplicity, or impudence, to urge that England should continue to bear the inconvenience when the national unity is sacrificed for the sake of which it was endured. But the reply does not stop here. The presence of Irish members at Westminster under the new constitution increases and stereotypes the evils, whatever their extent, now resulting from the existence of 103 Irish members in the House of Commons. The evils are increased because the Irish members are turned into a delegation from the Irish State, and their action ceases to be influenced, as it now is, by the consideration--a very important one--that the Imperial Parliament not only in theory but in fact legislates for Ireland, and that the English Cabinet controls the Irish administration and directs the course of political promotion in Ireland. The sentiment and the interest of the Irish members will be changed. Whether they come from North or South they will be representatives of Ireland, and will naturally and rightly consider themselves agents bound in every case to make the best bargain they can for Ireland as against the United Kingdom, or, in plain language, as against England. They will no longer feel it their interest to keep in power the English party which they think will best govern Ireland, for with the government of Ireland the Imperial Parliament will, as long as the new constitution stands, have no practical concern. No honest Home Ruler supposes that, if the Home Rule Bill passes into law, the Imperial Parliament will, even should the tragedy of the Phoenix Park be repeated in some more terrible form, pass a Crimes Act for Ireland; to the Irish Government will belong the punishment of Irish crime. No interest will therefore restrain the Irish delegation from swaying backwards and forwards between the two English parties, in order to obtain from the one or the other some momentary advantage, or some lucrative concession, to the Irish people. Intrigue will be pardonable, diplomatic finesse will become a duty. This evil no doubt in some degree exists, but under the present state of things it admits of diminution. A just redistribution of the franchise will undoubtedly lessen the number of Ireland's representatives, whilst it will increase the relative importance, if not the actual numbers, of loyalists in the representation of Ireland. The gradual settlement of the land question, as Unionists believe, will further strike at the true root of Irish discontent, and in removing the true grievance of the Irish tenants will diminish the strength of the party which depends for its power on the revolutionary elements in Irish society. But all chance of mitigating the inconvenience inflicted upon England by the presence of the Irish members vanishes for ever when they are changed into an Irish delegation, and are compelled by their position to be the mere mouthpiece of Ireland's claims against England.

The alleged reasons for the weakening of England are untenable, and, were they tenfold stronger than they are, could not remove the flagrant contradiction between the Gladstonian policy of 1886 and the Gladstonian policy of 1893.

But a contradiction which cannot be removed may be explained.

The withdrawal of the Irish members from Westminster might give Ireland the chance of obtaining some of the benefits, and compensate England for some of the evils, of Home Rule. But however this may be, one result it would produce with certainty; it would dash the Gladstonian party to pieces. The friends of Disestablishment, the Welsh, or the Scottish, Home Rulers, the London Socialists, all the revolutionists throughout the country, know that with the departure of the Irish representatives from Westminster their own hopes of triumph must be indefinitely postponed. England is the stronghold of British conservatism, and an arrangement which leaves the fate of England in the hands of Englishmen may be favourable to reform, but is fatal to revolution. Has this fact arrested the attention of Gladstonians? I know not. It is an unfortunate coincidence that the least defensible portion of an indefensible policy should, while it threatens ruin to England, offer temporary salvation to the party who rally round Mr. Gladstone.[55]

C. _The Powers of the Irish Government_

I. _The Irish Executive_. At the head of the Irish Executive will nominally stand the Lord Lieutenant; he will however in reality occupy the position of a colonial Governor, and be, for most purposes, little more than the ornamental figure-head of the Irish Administration. The real executive government of Ireland[56] must be a parliamentary Ministry or Cabinet[57] chosen in effect, though not in name, by the Irish Parliament, or rather by the Irish Legislative Assembly, or House of Commons, just as the English Cabinet is appointed in effect by the English House of Commons. Allowing then for the occasional intervention of the Lord Lieutenant as the representative of the Imperial Parliament to protect either the interests of the Empire or the special rights of the United Kingdom,[58] the Irish Ministry is to occupy in Ireland the position which the New Zealand Ministry occupies in New Zealand, and will for most purposes as truly govern Ireland as the New Zealand Ministry governs New Zealand, or as Mr. Gladstone's Ministry governs England. The Irish Ministry will be the true Government of Ireland.

This is a fact to which the attention of the English public ought to be sedulously directed. The creation of an independent Irish Parliament strikes the imagination; it is seen to be an innovation of primary importance. The creation of an independent Irish Cabinet or Ministry is taken as a matter of course, and neither Unionists nor Gladstonians see its full import. Yet in Ireland, as elsewhere, the character of the Executive is of more practical consequence than the character of the Legislature. A country may dispense, for a long time, with legislation; no country can dispense with good government.

This principle holds good even in an orderly country such as England, where the sphere of the administration is far less extended than it is in most States. We might get on for a good while prosperously enough without a Parliament, or without new laws, but if anything deprived us even for a week of an Executive, or if, for any reason, the whole spirit of the public administration were changed, every Englishman would feel this portentous revolution in every concern of his daily life. The protection of the Government, of the army, of the police, of the law courts, are with us so much matters of course, that we never realise how much the comfort and prosperity of our existence hang upon it, nor do we reflect that the aid we derive from the Courts is in the last instance dependent upon the decisions of the judges being actively supported by the forces at the command of the executive power. Again, we are so used to the preservation on the part of the Executive and the Courts of an attitude of perfect impartiality and to the extension of their aid to all citizens alike, that we can hardly even in imagination conceive what would be the condition of things if the public administration favoured particular classes and looked askance on the rights of one class, whilst it enforced with rigour the rights of another. Yet events which have been passing before our eyes may show any one how absolutely dependent we may be, at any moment, for our enjoyment of life, property, or freedom upon the authority and the equity of the Executive. Consider the strike at Hull. Practically the legal rights and personal freedom of every inhabitant of the city depend upon the action of the Government. It is as plain as day that if the Government had taken actively and unfairly the side of one party or the other to the contest, the party which the Government favoured would at once have won. Suppose, though the supposition is a very improbable one, that the Home Secretary had directed the police to put down every form of picketing and to arrest every one who counselled the free labourers to desert their employment, the strike would come at once to an end. Suppose on the other hand--the supposition is also a wild one--that the Home Secretary had declined to protect the rights of the free labourers, that the troops had been withdrawn, and that the police had been inactive; suppose, in short, that the Government had been careless to maintain order. The Trade Unionists would at once have become supreme, and freedom of contract, as well as liberty of person, would have been at once abolished. Even in England then the power to exercise our rights as citizens has its source in the constant, though unobserved, intervention of the executive power. What is true of England is truer still of countries where the sphere of the administration is more widely extended than with us, and what is true of every civilised country is truest of all of Ireland. Ireland is a country where the sphere of the administration is large, and where it will probably be increased. Ireland is divided by hostile factions not too much prone to respect the law. Even as things stand, the Irish Executive finds it hard enough to hold a perfectly even and level course, and the whole state of the country depends upon the spirit in which the law is enforced. One of the very gravest defects of our present system is that in Ireland a change of government means, to a certain extent, a change in the administration of the law. Yet both Mr. Balfour and Mr. Morley have enforced the law, and have meant, according to their lights, to act towards all citizens with equitable impartiality. And Mr. Balfour, Mr. Morley, or any statesman appointed by the Imperial Parliament, is likely to act with more fairness than at the present moment would any Executive chosen by any Irish Parliament. One thing, at any rate, is certain. An independent Irish Executive will possess immense power. It will be able by mere administrative action or inaction, without passing a single law which infringes any Restriction to be imposed by the Irish Government Act, 1893, to effect a revolution. Let us consider for a moment a few of the things which the Irish Cabinet might do if it chose. It might confine all political, administrative, or judicial appointments to Nationalists, and thus exclude Loyalists from all positions of public trust. It might place the Bench,[59] the magistracy, the police wholly in the hands of Catholics; it might, by encouragement of athletic clubs where the Catholic population were trained to the use of arms, combined with the rigorous suppression of every Protestant association suspected, rightly or not, of preparing resistance to the Parliament at Dublin, bring about the arming of Catholic and the disarming of Protestant Ireland, and, at the same time, raise a force as formidable to England as an openly enrolled Irish army. But the mere inaction of the Executive might in many spheres produce greater results than active unfairness. The refusal of the police for the enforcement of evictions would abolish rent throughout the country. And the same result might be attained by a more moderate course. Irish Ministers might in practice draw a distinction between 'good' landlords and 'bad' landlords, and might grant the aid of the police for the collection of reasonable, though refusing it for the collection of excessive rents, and might at last magnanimously recognise the virtues of Mr. Smith-Barry, whilst passing a practical sentence of outlawry on Lord Clanricarde. Is there anything absurd or unreasonable in the supposition that a Ministry of Land Leaguers chosen by a Parliament of Nationalists should attempt to enforce the unwritten law of the Land League? A Gladstonian who answers this question in the affirmative entertains a far lower opinion than can any candid Unionist of Mr. Gladstone's Irish allies. It would be the grossest unfairness to suggest that every man convicted of conspiracy by the Special Commission added to criminality and recklessness a monstrous form of hypocrisy, and that, whilst urging Irish peasants to boycott evictors and land-grabbers, he felt no genuine moral abhorrence of evictions and land-grabbing. But if, as is certainly the case, the founders of the Land League really detested the existing system of land tenure, and considered a landlord who exacted rent a criminal, and a tenant who paid it a caitiff, it is as certain as anything can be that they will be under the greatest temptation, not to say, in their own eyes, under a stringent moral obligation, to strain the power of an Irish Executive for the purpose of abolishing the payment of rent. Nothing, at any rate, will seem to an Irish Ministry more desirable than that within three years[60] from the passing of the Bill landlords and tenants should come to an arrangement, and nothing is more likely to produce this result than the withdrawal from the landlords of the aid, if not the protection, of the law. My argument, however, at the present point does not require the assertion or the belief that an Irish Ministry will be guilty of every act of oppression which it can legally commit. All that I insist upon is that an Irish Ministry will exercise immense power, and that without violating a letter of the constitution, and without passing a single act which any Court whatever could treat as void, the Ministry will be able to change the social condition of Ireland. The Irish Cabinet, remember, will not be checked by any Irish House of Commons, for it will represent the majority of that House. It will not need to fear the interposition of the Imperial Ministry or the Imperial Parliament, for if the authorities in England are to supervise and correct the conduct of the Irish Cabinet, Home Rule is at an end. Mr. Asquith has repudiated all idea of creating two Executives in Ireland[61] for the ordinary purposes of government, and from his own point of view he is right. The notion of a dual control is preposterous; the attempt to carry it out must involve anarchy or revolution. The Irish Ministry must in ordinary matters be at least as free as the Ministry of a self-governing colony. The independence of the Irish Executive is indeed a totally new phenomenon in Irish history, and is, as I have said, a far more important matter than the independence of the Irish Parliament, but it is an essential feature of Home Rule, and every elector throughout England should try to realise its import.

One check, indeed, is placed upon the power of the Irish Cabinet. The military forces of the Crown, and the Royal Irish Constabulary and Dublin Metropolitan Police (as long as they exist[62]), are subject to the control of the Imperial or English Ministry.[63] The result is that the English Cabinet will have the means of using force in Ireland for the maintenance of order, for the execution of the law, or for the maintenance of the authority of the Imperial Parliament. But this advantage is after all purchased at the price of placing the country under the rule of something very like two Executives. If the policy of the Irish Cabinet, _e.g._ as to suppressing a riot at Dublin or Belfast, should differ from the policy of the English Cabinet, the ordinary police may be called into action whilst the army or the royal constabulary stand by inactive, or the army may disperse a meeting which the Irish Ministry hold to be a lawful assembly.

II. _The Irish Parliament._ The authority of the Irish Parliament, whilst acting within the limits of the constitution, is extremely wide.[64]

The Parliament appoints the Irish Government of the day; it will determine whether Mr. M'Carthy or Mr. Redmond, Mr. Healy or Mr. Davitt, directs the Irish Administration. In this matter the British Government will have no voice. The English Ministry are under the new constitution expected in many ways to co-operate with the Irish Ministry, yet it is quite conceivable that the Ministers of the Crown at Dublin may be men whose whole ideas of expediency, of policy, of political morality, may be opposed to the ideas of the Ministers of the Crown at Westminster.

The Irish Parliament, again, even if every Restriction on its powers inserted in the Home Rule Bill should pass into law, will be found to have ample scope for legislative action.[65]

It can repeal[66] any Act affecting Ireland which was enacted before the passing of the Home Rule Bill. Thus it can do away with the right to the writ of _habeas corpus_; it can abolish the whole system of trial by jury; it can by wide rules as to the change of venue expose any inhabitant of Belfast, charged with any offence against the Irish Government, to the certainty of being tried in Dublin or in Cork. If an Irish law cannot touch the law of treason or of treason-felony, the leaders of the Irish Parliament may easily invent new offences not called by these names, and the Parliament may impose severe penalties on any one who attempts by act or by speech to bring the Irish Government into contempt. A new law of sacrilege may be passed which would make criticism of the Irish priesthood, or attacks on the Roman Catholic religion, or the public advocacy of Protestantism, practically impossible. The Irish House of Commons may take the decision of election petitions into its own hands, and members nominated by the priests may determine the proper limits of spiritual influence. Thus the party dominant at Dublin can, if they see fit, abolish all freedom of election; nor is this all that the Irish Parliament can accomplish in the way of ensuring the supremacy of an Irish party. After six years from the passing of the Home Rule Bill--let us say in the year 1900--the Irish Parliament can alter the qualification of the electors and the distribution of the members among the constituencies. Parliament can in fact introduce at once universal suffrage, and do everything which the ingenuity of partisanship can suggest for diminishing the representation of property and of Protestantism. If, further, in any part of Ireland there be reason to fear opposition to the laws of the Irish Parliament, a severer Coercion Act may be passed than any which has as yet found its way on to the pages of the English or the Irish Statute Book. Worse than all this, the Irish Parliament has the right to legislate with regard to transactions which have taken place before the passing of the Home Rule Bill. An Act inflicting penalties on magistrates who have been zealous in the enforcement of the Crimes Act, an Act abolishing the right to recover debts incurred before 1893, an Act for compensation to tenants who had suffered from obedience to the behests of the Land League, are all Acts which, however monstrous, the Irish Parliament is, under the new constitution, competent to pass.

My assertion is, be it noted, not that all or any of such laws would be passed, but that the passing of them would, under the new constitution, be legal. The Irish Parliament could further by its legislation pursue lines of policy opposed to the moral feeling and political judgment of Great Britain, and this too where Irish legislation practically affects Great Britain. State lotteries might be re-established, gambling tables might be re-opened at Dublin. If the imposition of protective duties on imported goods is forbidden, there is nothing apparently to prevent the reintroduction of Protection into Ireland by the payment of bounties; there is certainly nothing to prohibit the repeal or suspension of the Factory Acts, so that English manufacturers might be compelled to compete with Irish rivals who are freed from the limits imposed upon excessive labour by the humanity or the wisdom of England. The power of the Irish Parliament to pass laws which in the eyes of Englishmen are unwise or inequitable, is, it will be urged, an essential part of the policy of Home Rule. I admit that this is so. But this makes it the more necessary that English electors should realise what this essential characteristic of Home Rule means, or may mean. The Nonconformist conscience exposed Irish Home Rulers to painful humiliation and possible ruin by forbidding them to follow the political leader of their choice to whom they had deliberately renewed their allegiance. Is it certain that Englishmen who could not tolerate the official authority of Mr. Parnell will bear the official leadership, say of Mr. Healy, if employed to carry out the economical principles of Mr. Davitt?

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 L1,000 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 L1,000 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 L1,000 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.