Chapter IV: Introduction (3)

The system of land tenure in England has been the growth of custom gradually hardening into law; in Ireland the traditional custom was suddenly abolished, and English law substituted in its place. The English law was no doubt a better law, and one more fitted to a progressive community; but in Ireland it violently upset the traditional law of the country, and, consequently, was met with sullen and unremitting hostility. By Irish law, the tribe was owner; the tribesmen were joint proprietors, and the forfeiture of the chief did not involve the forfeiture of the land occupied by the tribesmen. By English law, however, these latter, such of them as were not expelled or exiled, suddenly found themselves transformed from joint-owners into tenants at will. Further, the difficulty of dealing direct with tenants, experienced by landlords who were in very many cases absentees, led to the abominable "middleman" system by which the owner leased great stretches of land to some one who undertook to "manage" it for him, and who in turn sub-let it in smaller patches at rack-rents to those who, to get back their money, had to sub-let again at still higher rents. The result was, as an official report in the eighteenth century states: "It is well known that over the most part of the country, the lands are sub-let six deep, so that those who actually labour it are squeezed to the very utmost." And Lord Chesterfield, when Viceroy, complained of the oppression of the people by "deputies of deputies of deputies." The eighteenth-century policy of checking or suppressing the industrial enterprises of the English colony aggravated the evil until, as Lord Dufferin expressed it: "Debarred from every other industry, the entire nation flung itself back upon the land, with as fatal an impulse as when a river whose current is suddenly impeded, rolls back and drowns the valley it once fertilised."

In time the middleman tended to die out, but the evil results of the system in preventing direct and friendly and helpful relations between landlord and tenant remained. Here and there, even in Arthur Young's time, enterprising and devoted landlords had established something like the "English system" on their estates, but, as a rule, the landlord remained a mere rent charger. The report of the Devon Commission says:--

"It is admitted on all hands that, according to the general
practice in Ireland, the landlord neither builds dwelling-houses
nor farm offices, nor puts fences, gates, etc., in good order
before he lets his land to a tenant. The cases where a landlord
does any of these things are the exception. In most cases, whatever
is done in the way of building or fencing is done by the tenant,
and in the ordinary language of the country, dwelling-houses, farm
buildings, and even the making of fences, are described by the
general word, 'improvements,' which is thus employed to denote the
necessary adjuncts of a farm without which in England or Scotland
no tenant would be found to rent it."

In a word, as one who owned land both in England and in Ireland put it, "In England we let farms, in Ireland we let land." And by law an unjust landlord had the power at any moment to expel a tenant or a group of tenants, although no rent was owing, and without giving any compensation for the "improvements" which were the sole work of the tenant. Most landlords acted reasonably and equitably in such matters, but, especially among the new class of purely mercantile purchasers who came in under the Landed Estates Court after the great famine of 1846, there were too many who insisted on their extreme legal rights, thus disturbing the peace of the country and producing the Irish Land Question in an acute form that called for State interference.

The systems of "compensation for improvements" (1870), and of rent fixing by itinerant tribunals (1881), were tried in turn, but each was found to raise more difficulties than it settled, until finally Mr. Parnell and his Land League set the whole country in a flame, and produced a series of strikes against the payment of any rent. For some years it is hardly too much to say that the law of the League, with its purely revolutionary propaganda, supplanted the law of the land and reduced large areas to a condition of chaos, the decrees of the "village ruffians," who ruled the situation, being enforced by systematic outrage and assassination.

The first statesman who made a really serious attempt to meet this appalling state of things was Mr. Arthur Balfour, who, as Chief Secretary for Ireland, resolutely took up the task, first of repressing crime and enforcing the law, and then of recasting the whole land system in such a way that the tenant, transformed into an owner, would for the first time feel it his interest to range himself on the side of the law and of orderly government. At the same time, a systematic attempt was made to deal with the question of perennial poverty in the extreme West of Ireland in what came to be known as the "Congested Districts." The construction of railways and piers, the draining of land, and the provision of instruction in agriculture, fisheries, etc., speedily gave promise of a new era in the economic history of a hitherto helpless and hopeless population.

All this was done by Mr. Balfour and his successors in spite of opposition and obstruction of a kind such as no Chief Secretary had ever before had to encounter. Formerly, all through the centuries, whenever a Viceroy or Chief Secretary was face to face with an organised outbreak of crime and sedition in Ireland, both British parties united in supporting and strengthening the hands of the executive as representing the Crown. Mr. Gladstone's extraordinary reversal of policy and principle in the winter of 1885-86 put an end to all this, and gravely increased the difficulties of the Irish Government.

When Mr. Gladstone was first confronted with the demand for Home Rule, even in the mild and constitutional form advocated by Mr. Isaac Butt, and his Home Government Association, founded in the autumn of 1870, he promptly declared, like Mr. John Morley, that legislative Union with Great Britain was the only position permanently possible for an island situated as Ireland is. In a speech at Aberdeen[19] he indignantly asked--

"Can any sensible man, can any rational man, suppose that at this
time of day, in this condition of the world, we are going to
disintegrate the great capital institutions of this country for the
purpose of making ourselves ridiculous in the sight of all mankind
and crippling any powers we possess for conferring benefits on the
country to which we belong."

And for fifteen years, in power or in opposition, Mr. Gladstone preached and acted upon the same doctrine. When the Land League was founded he denounced it as an organisation whose steps were "dogged with crime," and whose march was "through rapine to the dismemberment of the Empire." The League was finally "proclaimed" by his Government as a criminal conspiracy and its members, from Mr. Parnell downwards, arrested and imprisoned without trial as being "reasonably suspected" of criminal practices.

This continued until in an unfortunate moment for himself Mr. Gladstone discovered, in November, 1885, that the votes of Mr. Parnell and his eighty-six colleagues were necessary for his own return to power as Prime Minister, whereupon he entered into negotiations which resulted, on the one hand, in his securing the necessary votes, and on the other in his accepting the principles and the policy of those whom until then he had denounced and imprisoned as instigators to crime and sedition. He rightly recognised that there was no half-way house, and that he could not become a Home Ruler without accepting and defending the actions of the Home Rulers. He worshipped what he had formerly burnt, and he burned what he had hitherto worshipped. The result was that for several years England beheld for the first time the scandalous spectacle of men who had held high office under the Crown openly defending--and even instigating--lawlessness and disorder, shielding and excusing criminals, proved such before the courts, and thwarting, misrepresenting, and obstructing those whose duty it was to restore order and legality in Ireland.

Such were the difficulties that confronted Mr. Arthur Balfour as Chief Secretary for Ireland from 1887 to 1891, difficulties which he surmounted with such resolution and such statesmanship that he retired from an office that has been called "the grave of reputations" with a reputation so much enhanced as to ensure him the leadership of his party and the gratitude of Irishmen of all classes for generations to come. And yet his method was a supremely simple one--to reassert the supremacy of the law, to neglect, almost ostentatiously, all merely political cries, and to set himself seriously to deal with the real Irish question, that of conferring some measure of security and prosperity on a population which over wide districts had known too little of such things.

Occupying ownership of Irish land by means of State credit was not, of course, a new policy in Mr. Balfour's day. The Bright clauses (1869) had introduced the principle into the Statute-book, and Lord Ashbourne's Act (1885) had carried it several steps further. But it was Mr. Arthur Balfour and his successors, Mr. Gerald Balfour and Mr. George Wyndham, who carried it by a series of boldly conceived steps almost within sight of completion. So thorough was the success of this policy of land purchase, and so marked was the cessation of crime and outrage and seditious agitation in every district into which it was carried, that those who made their living by agitation grew alarmed, and did all in their power to stop the working of the Purchase Acts. One Nationalist member declared that the process had gone "quite far enough," and that he wished it could be stopped. The farmers who had purchased their holdings were declared to have become selfish, and "as bad as the landlords." In other words, they had become orderly and industrious, and had ceased to subscribe for the upkeep of the United Irish League and its salaried agitators.

The unhappy result of this outcry on the part of those whose occupation would be gone, and who would be compelled to resort to honest industry should Ireland become peaceful and prosperous, was the passing of Mr. Birrell's "amending" Bill, which has practically stopped for the present the beneficent working of the Wyndham Act of 1903. Under the various purchase Acts over 180,000 Irish farmers have become the owners of their holdings, thanks to over one hundred millions of public money advanced on Imperial credit for the purpose. The first task of a Unionist government, when again in power, must be the resumption of this policy of State-aided land-purchase--the only completely and unquestionably successful and pacifying piece of agrarian legislation in the history of English rule in Ireland.

Other writers will give, later on, a more detailed account of various branches of Unionist practical policy in Ireland. The story of the Congested Districts Board, Mr. Arthur Balfour's special work, is a romance in itself. So well, in fact, has it accomplished its immediate task that the time has probably come when it could with advantage be merged in the later-created Department of Agriculture and Technical Instruction. This department, which has been linked up with the County or Borough Councils, by the legislation of Mr. Gerald Balfour, has done an immense amount of educational and practical work in connection with agriculture in all its branches, including dairying, poultry rearing, fruit-growing, and other rural industries, not to speak of technical instruction in matters suited for artisans and town workers.

These remarkable achievements, the work of successive Unionist Governments from 1896 to 1906, have revolutionised the face of the country, and are bringing about a new Ireland. The chief danger now lies in the intrigues of discredited politicians, whose object is to divert the eyes of the people from practical, remedial, and constructive legislation, and to keep them fixed upon what Mr. John Morley has called "the phantom of Irish legislative independence."

FOOTNOTES:

[Footnote 3: J.R. Green, "Short History," chap. ix. sec. 8.]

[Footnote 4: "Dict. Nat. Biog.," sub.-tit. "Erskine, John, Earl of Mar," p. 430.]

[Footnote 5: "England," says Mr. James Bryce in his Introduction to "Two Centuries of Irish History," "acted as conquering nations do act, and better than some nations of that age."]

[Footnote 6: Wogan to Swift, Feb. 27th, 1732.]

[Footnote 7: Swift, "The Legion Club."]

[Footnote 8: "Life of Macartney," vol. ii, p. 136.]

[Footnote 9: "Tour in Ireland," vol. ii., p. 123 ff.]

[Footnote 10: Hamilton Rowan's "Autobiography," p. 340.]

[Footnote 11: "Wealth of Nations," Book V., Chap. III.]

[Footnote 12: "The End of the Irish Parliament," 1911, Edward Arnold.]

[Footnote 13: "Edmund Burke, a Historical Study," by John Morley, pp. 286 ff.]

[Footnote 14: "Pitt," by Lord Rosebery, p. 155.]

[Footnote 15: From the official returns embodied in "A Statement to the Prime Minister," Irish Loyal and Patriotic Union, Dublin, 1886.]

[Footnote 16: "Ireland from the Union to Catholic Emancipation," by D. A. Chart, M.A. A most valuable and instructive work.]

[Footnote 17: It is, I hope, no reflection on the memory of an eminent public servant to suggest that in this, as in too many of the estimated figures contained in his evidence before the Commission, and upon which the Majority Report of the Commission was largely based, Sir Robert seriously under-estimated the resources of Ireland. It is obvious when the ascertained figures of 1910 are compared with the estimated figures of 1895 that Sir Robert Giffen must have been several millions below the truth. The steady nature of the growth of Irish commerce is shown by the following figures taken from the Official Report for the year ended December 31, 1910.

Imports, Exports, Total,
Mill. L. Mill. L. Mill. L.

1904 54 49 103 1905 55 51 106 1906 57 56 113 1907 61 59 120 1908 59 57 116 1909 63 61 124 1910 65 65 130 ]

[Footnote 18: "A History of the Commercial Relations between Great Britain and Ireland," by Alice E. Murray, D.Sc.]

[Footnote 19: Sept. 26, 1871.]

CRITICAL

III

THE CONSTITUTIONAL QUESTION

BY GEORGE CAVE, K.C., M.P.

INTRODUCTORY

Few things are more remarkable in the Parliamentary history of the Home Rule movement than the complete absence from the counsels of the English advocates of Home Rule of any definite and settled policy as to the form of self-government to be offered to Ireland, and their consequent oscillation between proposals radically differing from one another. Since the "new departure" initiated by Davitt and Devoy in 1878,[20] it has been the deliberate practice of Irish Nationalists to abstain from defining the Nationalist demand and to ask in general terms for "self-government," doubtless with the object of attracting the support of all who favour any change which could be described by that very elastic term. Such a policy has its advantages. But confusion of thought, however favourable to popular agitation, is a disadvantage when the moment for legislation arrives; and uncertainty as to the aim goes far to explain the vacillation in Home Rule policy.

Mr. Gladstone's Home Rule Bill of 1886 would have given to Ireland the substance of "responsible" or colonial self-government, subject only to certain reservations and restrictions, the value of which will be considered later in this chapter, and would have excluded the Irish members and representative peers from the Parliament of the United Kingdom. By the Bill of 1893 the reservations and restrictions were increased, and representatives of Ireland were to be permitted to sit at Westminster--by the Bill as introduced for some purposes, and by the Bill as passed by the House of Commons for all purposes.

After the defeat of this second Bill, a "cold fit" appears to have seized the Liberal Party. Lord Rosebery, in 1894, declared that before Home Rule could be carried England, as the predominant partner, must be convinced. Sir Edward Grey in 1905 declared that his party on its return to power would "go on with Sir Anthony MacDonnell's policy," which he rightly described as a policy of large administrative reforms; and Mr. Asquith "associated himself entirely and unreservedly with every word" of Sir Edward Grey's speech.[21] Accordingly the Irish Council Bill proposed by Mr. Asquith's Government in 1907 was purely a measure of devolution, certain administrative functions only being put under the control of an Irish Council, subject to the veto of the Lord Lieutenant, and the whole legislative power remaining in the Parliament of the United Kingdom. This proposal, having been condemned by a National Convention at Dublin, was incontinently withdrawn.

In the years succeeding this fiasco the Liberal policy for Ireland appeared to be at the mercy of shifting winds. For some time Liberal speakers contented themselves with vague declarations in favour of Federalism or "Home Rule all round"--phrases which may mean much or little according to the sense in which they are used. More recently an able writer,[22] while admitting that "there is no public opinion in Ireland as to the form of the Irish Constitution," has argued in a work of 350 pages in favour of the grant to Ireland of full legislative, administrative and financial autonomy; while a member of the Government[23] declared that fiscal autonomy for all practical purposes means separation and the disintegration of the United Kingdom. In a publication recently issued by a committee of Liberals, comprising several members of the present Government,[24] two views directly contrary to one another are put forward, one writer arguing for a devolution to an Irish body of "definite and defined powers only," and another for the grant of the widest possible form of Home Rule and the exclusion from Westminster of all Irish representation. The latest official pronouncements indicate that the Government have it in their minds to revert to the Gladstonian form of Home Rule; but even now[25] no one outside the Cabinet, and possibly few inside that inner circle, would venture on a confident prophecy even as to the broad lines of the measure which in a few days may be submitted to Parliament as representing the urgent and considered demand of public opinion.

Franklin said truly that--

"those who govern, having much business on their hands, do not
generally like to take the trouble of considering and carrying into
execution new projects."

But surely on a question of such vital moment to the Empire as the revision of the constitution of the United Kingdom, the bases, if not the details, of the contemplated change are deserving of prolonged consideration and even of some public and ordered discussion. The British North America Act, 1867, by which the relation of the Dominion of Canada to its provinces is regulated, was the result, not only of years of preliminary debate in the provincial Legislatures and elsewhere, but of a formal conference at Quebec in 1864, followed by the appointment of delegates to confer with the Imperial Government on the matter. In Australia the proposal for union, agitated at intervals since 1846, was canvassed in every detail at inter-colonial Conferences or Conventions in 1883, in 1891, and in 1897-8, as well as in the several colonial Legislatures, before it was embodied in the Australia Constitution Act, 1900. And although in the case of South Africa, owing to the urgency of the question of union, the time occupied in the discussion was less than in the other great dominions, yet in the Convention of 1908-9 the best brains in the country were occupied for months in considering every detail of the proposal for union before it was submitted to the Colonial and Imperial Parliaments for their sanction.[26] And yet in the Mother Country, where centuries of military and political conflict have given us the Union, it is considered that a few weeks' consideration by a committee of the Cabinet, without advice from independent constitutional experts,[27] and without formal consultation even with the Government's own supporters outside the Ministry, is sufficient to determine both the general form and the details of a proposal for its dissolution.

In the confusion so engendered it may be useful to consider in some detail the different proposals which have been or may be made under the name of Home Rule, their special qualities and dangers, and the results to which they may severally lead.

RESPONSIBLE GOVERNMENT.

A proposal to give to Ireland full "responsible" government, without any other limitations than such as are imposed on our self-governing Colonies, would find few supporters in this country. Under such a constitution an Irish Government would have power to forbid or restrict recruiting for the Imperial forces in Ireland, and to raise and train a force of its own. It might establish or subsidise a religion, make education wholly denominational, levy customs duties on imports from Great Britain and give fiscal advantages to a foreign power, confiscate or transfer property without payment, and deprive individuals of nationality, franchise, liberty, or life without process of law. However improbable some of these contingencies may appear, it is right on a matter of so much moment to consider possibilities and not probabilities only. Such powers as these could not without serious risk be conceded to any part of the kingdom, and in the case of Ireland there would be a special danger in granting them to a popularly elected body.

In the first place, the national safety would be involved. Englishmen were at one time too fond of saying that the great Colonies might, if they chose, sever the link which binds them to the Mother Country. Happily, in their case, no such catastrophe need now be considered. But it would be folly to shut our eyes to the fact that to many Irishmen national independence appears to be the only goal worth striving for. If the concession of full responsible government should be followed (at whatever interval) by an assertion of complete independence, we may assume that Great Britain would follow the example of Federal America and re-establish the Union by force of arms, but at how great a cost! Those who deny the possibility of a serious movement towards separation would do well to remember Mr. Gladstone's reference[28] to the position of Norway and Sweden, then united under one crown:--

"Let us look to those two countries, neither of them very large,
but yet countries which every Englishman and every Scotchman must
rejoice to claim his kin--I mean the Scandinavian countries of
Sweden and Norway. Immediately after the great war the Norwegians
were ready to take sword in hand to prevent their coming under the
domination of Sweden. But the Powers of Europe undertook the
settlement of that question, and they united those countries upon a
footing of strict legislative independence and co-equality.... And
yet with two countries so united, what has been the effect? Not
discord, not convulsions, not danger to peace, not hatred, not
aversion, but a constantly growing sympathy; and every man who
knows their condition knows that I speak the truth when I say that
in every year that passes the Norwegians and the Swedes are more
and more feeling themselves to be the children of a common country,
united by a tie which never is to be broken."

The tie was broken within twenty years.

It may be that the Nationalist leaders, or some of them, do not desire separation; but it by no means follows that a concession of their demands would not lead to that result. Franklin, in 1774, had an interview with Chatham, in which he says--

"I assured him that, having more than once travelled almost from
one end of the continent (of America) to the other, and kept a
great variety of company, eating, drinking, and conversing with
them freely, I never had heard in any conversation from any person,
drunk or sober, the least expression of a wish for a separation, or
a hint that such a thing would be advantageous to America."[29]

And yet independence came within ten years.

In the case of the United Kingdom there is no need to consider in detail how serious would be the effects--naval, military, and economic--of separation, for the gravity of such a contingency is admitted by all. Admiral Mahan, the American naval expert, writes that--

"the ambition of the Irish separatists, realised, might be even
more threatening to the national life of Great Britain than the
secession of the South was to that of the American Union.... The
instrument for such action in the shape of an independent
Parliament could not safely be trusted even to avowed friends."

Some Home Rulers are able to--

"rise superior to the philosophy, as fallacious in fact as it is
base and cowardly in purpose, which sets the safety of a great
nation above the happiness and prosperity of a small one,"[30]

but to less lofty souls it appears that the safety of the nation is paramount, and that upon it depends the prosperity of each of its component parts.

In the next place, in considering whether complete "colonial" self-government can be conceded to Ireland, it must not be forgotten that the island is bi-racial, that the two races differ widely in character, in politics, and in religion, and that the differences are apt to find vent in violent conflict or secret attacks. Further, Ireland has for generations been the scene of a revolt against one particular species of property, the ownership of land; and although under the operation of the Land Purchase Acts this cause of conflict tends to abate, it still breaks out from time to time in the form of cattle drives and attacks on "land grabbers."[31] Hitherto we have, broadly speaking, kept the peace. That we should now forsake this duty, and, washing our hands of Ireland, leave the Protestant and the landowner, at or small, to his fate is unthinkable.

In connection with the question last-mentioned it may be necessary at some time to consider how far it is the constitutional right of this country to impose upon the minority in Ireland the new obligations implied in a grant to the whole island of colonial Home Rule. It may be that the Imperial Parliament can disallow the claim of a section of the population of Ireland to remain subject to its own control. But it is one thing to reject the allegiance of a community, it is quite another thing forcibly to transfer that allegiance to a practically independent legislature; and this is especially the case when the transfer may involve the use against a loyal population of coercion in its extreme form.

CHECKS AND SAFEGUARDS.

In every formal proposal for Home Rule in Ireland, weight has been given to the above considerations, and attempts have been made to meet them by qualifying the grant of responsible Government. The qualifications suggested have taken the form of _(a)_ the reservation of certain powers to the Imperial Parliament, or (_b_) the restriction of the powers granted to the Irish legislature by prohibiting their exercise in certain specific ways, or (_c_) the provision of some form of Imperial veto or control. It is important to consider whether and how far such checks or "safeguards" are likely to prove effective and lasting.

The "safeguards" proposed by the Government of Ireland Bill, 1886, were somewhat extended by the Bill of 1893; and the proposals shortly to be submitted to Parliament, so far as they can be gathered from recent speeches of Ministers, will not in this respect differ materially from those contained in the latter Bill. It will therefore be convenient to take as a basis for discussion the provisions of the Bill of 1893, as passed by the House of Commons.

The Bill of 1893, after stating in a preamble that it was "expedient that without impairing or restricting the supreme authority of Parliament an Irish Legislature should be created for such purposes in Ireland as in this Act mentioned," proposed to set up in Ireland a Legislature[32] consisting of the Sovereign and two Houses, namely a Legislative Council of 48 members to be returned under a restricted franchise by the Irish counties and the boroughs of Dublin and Belfast, and a Legislative Assembly of 103 members to be returned by the existing parliamentary constituencies in Ireland. A Bill introduced into the Irish Legislature was to pass both Houses; but in the event of disagreement the proposals of the Legislative Assembly were to be submitted, after a dissolution or a delay of two years, to a joint Session of the two Houses. The executive power was to remain in the Crown, aided and advised by an Irish Ministry (called an Executive Committee of the Privy Council of Ireland), and the assent of the Crown to Irish legislation was to be given or withheld on the advice of this Executive Committee subject to any instructions given by the Sovereign.

The specific reservations and restrictions were contained in clauses 3 and 4 of the Bill, which were as follows:--

"3. The Irish Legislature shall not have power to make laws in
respect of the following matters or any of them:--

"(1) The Crown, or the succession to the Crown, or a Regency; or
the Lord Lieutenant as representative of the Crown; or

"(2) The making of peace or war or matters arising from a state of
war; or the regulation of the conduct of any portion of Her
Majesty's subjects during the existence of hostilities between
foreign States with which Her Majesty is at peace, in respect of
such hostilities; or

"(3) Navy, army, militia, volunteers, and any other military
forces, or the defence of the realm, or forts, permanent military
camps, magazines, arsenals, dockyards, and other needful
buildings, or any places purchased for the erection thereof; or

"(4) Authorising either the carrying or using of arms for military
purposes, or the formation of associations for drill or practice
in the use of arms for military purposes; or

"(5) Treaties or any relations with foreign States or the
relations between different parts of Her Majesty's dominions, or
offences connected with such treaties or relations, or procedure
connected with the extradition of criminals under any treaty; or

"(6) Dignities or titles of honour; or

"(7) Treason, treason-felony, alienage, aliens as such, or
naturalisation; or

"(8) Trade with any place out of Ireland; or quarantine, or
navigation, including merchant shipping (except as respects inland
waters and local health or harbour regulations); or

"(9) Lighthouses, buoys, or beacons within the meaning of the
Merchant Shipping Act, 1854, and the Acts amending the same
(except so far as they can consistently with any general Act of
Parliament be constructed or maintained by a local harbour
authority); or

"(10) Coinage; legal tender; or any change in the standard of
weights and measures; or

"(11) Trade marks, designs, merchandise marks, copyright, or
patent rights.

"Provided always, that nothing in this section shall prevent the
passing of any Irish Act to provide for any charges imposed by Act
of Parliament, or to prescribe conditions regulating importation
from any place outside Ireland for the sole purpose of preventing
the introduction of any contagious disease.

"It is hereby declared that the exceptions from the powers of the
Irish Legislature contained in this section are set forth and
enumerated for greater certainty, and not so as to restrict the
generality of the limitation imposed in the previous section on
the powers of the Irish Legislature.

"Any law made in contravention of this section shall be void.

"4. The powers of the Irish Legislature shall not extend to the
making of any law--

"(1) Respecting the establishment or endowment of religion,
whether directly or indirectly, or prohibiting the free exercise
thereof; or

"(2) Imposing any disability, or conferring any privilege,
advantage, or benefit, on account of religious belief, or raising
or appropriating directly or indirectly, save as heretofore, any
public revenue for any religious purpose, or for the benefit of
the holder of any religious office as such; or

"(3) Diverting the property, or, without its consent, altering the
constitution of any religious body; or

"(4) Abrogating or prejudicially affecting the right to establish
or maintain any place of denominational education, or any
denominational institution or charity; or

"(5) Whereby there may be established or endowed out of public
funds any theological professorship, or any university or college
in which the conditions set out in the University of Dublin Tests
Acts, 1873, are not observed; or

"(6) Prejudicially affecting the right of any child to attend a
school receiving public money without attending the religious
instruction at that school; or

"(7) Directly or indirectly imposing any disability or conferring
any privilege, benefit, or advantage upon any subject of the Crown
on account of his parentage or place of birth, or of the place
where any part of his business is carried on, or upon any
corporation or institution constituted or existing by virtue of
the law of some part of the Queen's dominions, and carrying on
operations in Ireland, on account of the persons by whom or in
whose favour, or the place in which any of its operations are
carried on; or

"(8) Whereby any person may be deprived of life, liberty, or
property without due process of law in accordance with settled
principles and precedents, or may be denied the equal protection
of the laws, or whereby private property may be taken without just
compensation; or

"(9) Whereby any existing corporation incorporated by Royal
Charter or by any local or general Act of Parliament may, unless
it consents, or the leave of Her Majesty is first obtained on
address from the two Houses of the Irish Legislature, be deprived
of its rights, privileges, or property without due process of law
in accordance with settled principles and precedents, and so far
as respects property without just compensation. Provided nothing
in this sub-section shall prevent the Irish Legislature from
dealing with any public department, municipal corporation, or
local authority, or with any corporation administering for public
purposes taxes, rates, cess, dues, or tolls, so far as concerns
the same. Any law made in contravention of this section shall be
void."

The power to impose taxation other than duties of custom and excise was to be transferred, subject to a short delay as to existing taxes and to a special provision in respect of taxes for war expenditure, to the Irish Legislature (clause II). Two judges of the Supreme Court in Ireland, to be called "Exchequer Judges," were to be appointed under the Great Seal of the United Kingdom, and to be removable only on an address from the Imperial Parliament; and proceedings relating to the reserved powers or to the customs or excise duties were to be determined by such judges (clause 19). Appeals from the Courts in Ireland were to lie to the Judicial Committee of the Imperial Privy Council (clause 21); and any question as to the powers of the Irish Legislature could be referred to the same Committee (clause 22). The Royal Irish Constabulary and Dublin Metropolitan Police Force were gradually to disappear, and police matters to be regulated by the Irish Legislature and Executive (clause 29). The Irish Legislature was to be prohibited from passing land legislation for a period of three years (clause 34).

As to these proposals the first observation that occurs is that, in addition to the matters proposed to be reserved, there are others in which legislative uniformity throughout the kingdom is greatly to be desired. To mention but a few such matters, questions of status, contract and succession, of international trade and navigation, of the regulation of railways and of industrial labour, and of the criminal law, should not be differently determined in different parts of the kingdom; and as life becomes more complex, the number of subjects in which diversity of laws is a hindrance continues to increase.

In the next place, it is to be noted that the checks proposed affect legislation only and not administration. If the Bill of 1893 or any similar Bill should become law, the whole executive power in Ireland will be in an Irish Ministry responsible to an Irish Assembly; and it is obvious that many of the wrongs against which the restrictive clauses of the Bill were directed may be inflicted by administrative act or omission as effectively as by legislation. To quote a work of authority[33]--

"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, 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."

Irish Ministers might even refuse actively to oppose the "moral claim" of the Irish Catholics to the use of the cathedrals and of the accumulated capital of the Irish Church.[34]

To contemplate the possibility of action or calculated inaction of the character above described is not to attribute to Irishmen any special measure of original sin. In every case where the executive power is divorced from the ultimate legislative authority such divergencies are likely to recur; and more than one instance may be found in our own recent history. In 1859 the Canadian Government warned the Home Government that any attempt to interfere with the customs policy of the Dominion was inadmissible, unless the home authorities were prepared to undertake the responsibility of administering the whole government of Canada. The Home Government gave way.[35] In 1878 the Governor of Cape Colony proposed to place the colonial forces under the control of the officer commanding the Imperial forces. The Cape Government resisted, and refused to resign; and eventually the Governor, on the advice of the Home Government, dismissed his ministers. In this case a change of government occurred after the general election, but in the end the claim put forward by the Imperial authorities had to be withdrawn.[36] In 1906 the Natal Government proclaimed martial law, and ordered the execution of twelve natives on charges of murder. The Imperial Government intervened, and suggested the suspension of the order pending further consideration. The Natal Ministry immediately resigned; and as there was no chance of the formation of a new Government, the Imperial authorities hastily withdrew.[37]

Differences have arisen even on so grave a matter as the succession to the throne. The union of England and Scotland in 1707 was preceded and hastened by the so-called Act of Security, by which the Scottish Estates asserted the right to name a successor to the throne of Scotland, who should not (except under certain specified conditions) be the person designated as sovereign by the English law. And during the illness of King George III. in the year 1788, Grattan, in defiance of the views of Pitt and of the majority in both Houses of the Imperial Parliament, carried in the Irish Parliament an address to the Prince of Wales, calling upon him (without waiting for a Regency Bill) to assume the Government of the Irish nation, "and to exercise and administer all legal power, jurisdiction and prerogatives to the Crown and Government thereof belonging"--words borrowed from the address by which in the Revolution of 1688 William of Orange was requested to assume the Crown. Happily, the Viceroy declined to present the address, and a deputation sent from Ireland to present it found on their arrival that the king had recovered; but the incident might have led to a conflict upon a matter so important as the exercise of the royal power.

The fact is that the word "supremacy," so often used in this controversy, is one of ambiguous meaning. Parliament is supreme in the United Kingdom, Parliament is likewise supreme in New Zealand; but the two supremacies are of widely different kinds. Supremacy consists of two ingredients--authority to enact and power to enforce; and without the latter the former is little more than a legal figment, which may have no more practical importance than the theoretical right of veto which is retained by the Crown. Mr. Balfour, speaking on the second reading debate of the 1893 Bill, referred to this matter as follows:--

"Legally, of course, the Imperial Parliament would be supreme: no
one has doubted it. But what layman takes the slightest interest
in these paper supremacies? For my part I take no more interest in
the question of whether the Imperial Parliament is on paper
superior to the Irish Parliament, than I do as to the order of
precedence at a London dinner party. The thing is of no public
interest or importance whatever. What we want to know is where the
power lies. Who is going to exercise supremacy? Who is going to be
the _de facto_ ruler of Ireland?"

Special importance attaches to these considerations owing to the heavy liabilities undertaken by this country in respect of land purchase in Ireland. At the present time many millions of British money are sunk in Irish land, and the amount may increase to a sum approaching two hundred millions. The tenants now pay their annuities because, in the last resort, the Government can turn them out. Under Home Rule the powers of Government would rest with men who have led "no rent" agitations in the past, and who would be dependent upon the votes of those personally interested in repudiating the debt. The British Treasury can hardly run such a risk; and some sort of concurrent control, with all its evils and risks, seems to be necessary. And yet financial independence is the first essential to genuine autonomy.

But, it may be said, if the Irish Government go beyond the law, the Irish Courts may be asked to interfere; and in the event of their refusal, the Bill provides an appeal to the Judicial Committee in London. No doubt it does, but in practice the person aggrieved might have very great difficulty in making the remedy effective. He must obtain a decision in his favour from the Judicial Committee of the Privy Council, at no small cost of money and personal odium; and the decision of that "alien" tribunal (as it would be called) must then be enforced under the jurisdiction of a Government which (on the hypothesis which we are considering) would be unfriendly, by judges and executive officers appointed and perhaps removable by that authority, and in the midst of a population hostile to "foreign" interference. Is it extravagant to suppose that the complainant would not gain much by his appeal to Caesar?

And even if we suppose the Irish Legislature and Executive to confine themselves within the letter of the Act, are the checks of any real value? The Irish Parliament might still interfere with contracts, or might validate contracts now held to be void as contrary to public policy. They might defeat the Mortmain Acts. They might deal as they thought fit with internal trade; and the great industries of Belfast and its neighbourhood might find their views on trade questions of no avail. The Irish Legislature might create new offences and institute new tribunals; and the reference in the Bill to "due process of law" would not necessarily secure trial by jury or by an impartial tribunal.[38]

It is said that legislation of this character would be subject to the veto of the Crown. But that veto is to be exercised on the advice of the Irish Ministry subject to any instructions given by the Sovereign; and so long as an Irish Legislature is entitled to withhold Irish supply, a veto against the advice of the Irish ministry would surely tend to become impossible.

Again, it is said that an unjust law passed by the Irish Parliament might be repealed by the Imperial Parliament. Doubtless the technical right would exist, as in the case of the Colonies; but no one dreams that, with "responsible" government existing in Ireland and Irish representatives at Westminster, it would in practice be used. The Imperial Government has never been known to interfere with the legislation of a self-governing colony except where Imperial interests are concerned, or where a fraud on the colony can be established;[39] and the same rule would obtain in the case of Ireland.

Lastly, it is said that in the last resort there is the British Army. But if the civil power in Ireland does not call in the military force, how can the latter be used to enforce the law? Are the forces to be controlled from England, and what is this but a counter revolution? It is hardly worth while to liberate Ireland from the peaceful rule of the Imperial Government in order to govern her by military force.

But in fact the so-called "safeguards" would not last. Professor Dicey[40] and Professor Morgan,[41] writing from opposite sides of the controversy, agree in holding that no colony would tolerate them for a moment; and it is incredible that Ireland, with a Parliament of her own, would submit to them for more than a few years.[42] Suppose the majority of the Irish Legislature to grow weary of the "safeguards," and to demand their repeal. The Imperial ministry might refuse, but the reply of the Irish ministry (if in command of a majority in the Irish House of Commons) would be to resign and to make the government of Ireland impossible except by force. And if Ireland were still represented in the Imperial Parliament, the new "sorrows of Ireland" would find eloquent and insistent expression there. What, then, would England do? What could she do, except, after a futile struggle, to give way? The truth is, that if you part with the executive power, all checks and "safeguards" are futile. Mr. Redmond[43] eagerly "accepts every one of them," and will accept others if desired; for he knows that they must prove ineffective. "If," said Lord Derby in 1887, "Ireland and England are not to be one, Ireland must be treated like Canada or Australia. All between is delusion or fraud."

IRISH REPRESENTATION AT WESTMINSTER.

The hybrid form of government proposed in the Home Rule Bills of 1886 and 1893 gave rise to a further difficulty, and one which went far towards wrecking them both. Should Ireland under Home Rule be represented at Westminster by its members and representative peers? Under a system of Gladstonian Home Rule there appear to be only three possible answers to this question. The Irish representatives may be excluded altogether, they may be retained altogether, or they may be retained in diminished numbers and with some limitation on their voting powers.

The total exclusion clause in the Bill of 1886 was one of the most unpopular parts of an unpopular Bill. It was immediately urged that this arrangement was virtually equivalent to separation, and Mr. Gladstone admitted[44] that the argument had force. Since 1886 public sentiment has advanced in the direction of a closer Imperial unity, and it is unlikely that the country will recur in 1912 to a proposal which in 1886 was admitted to be intolerable. Moreover, if the British Parliament is to retain control of the whole foreign policy of the kingdom, and--what is likely to be of enormous importance in the future--of its whole fiscal policy, it would be manifestly unjust to deny to Ireland a voice and vote in such matters. How would it be possible, for instance, to discuss the effect upon agriculture of a Tariff Reform Budget in the absence of competent representatives of the Irish farmers, or to consider the yearly grant to be made (as it is said) in aid of Irish finance without the assistance of any representatives of Ireland?

A recognition of the difficulties in the way of total exclusion led Mr. Gladstone to propose, in 1893, what was known as the "popping-in-and-out clause," under which Irish members would have sat at Westminster, but would have voted only on Imperial measures. The best criticism of this attempt to distinguish between local and Imperial matters was supplied on another occasion by Mr. Gladstone himself:--

"I have thought much, reasoned much, and inquired much with regard
to that distinction, but I have arrived at the conclusion that it
cannot be drawn. I believe it passes the wit of man."

To distinguish between matters which might and those which could not affect Ireland was impossible to the ordinary man, and the device of committing all matters of special difficulty to the decision of Mr. Speaker had not then its present vogue. Further, it was obvious that under such a system a British Ministry might have on one day, when English or Scottish affairs were under discussion, a commanding majority; but on the next, when a vote possibly affecting the sister island was in question, might find itself labouring in the trough of the sea; while on the third day, that vote having been disposed of and the Irish members having taken their leave, it might rise once more on the crest of the wave. The proposal was too ludicrous to be long defended. The sense of humour of the House prevailed over Mr. Gladstone's earnestness, and he fell back on inclusion for all purposes.

But inclusion for all purposes had its own difficulties. Under the Gladstonian system the Imperial Parliament would have considered, not only matters affecting the whole kingdom, but also purely English or purely Scottish affairs; and to give to the Irish representatives the control in their own Parliament of purely Irish affairs, and also a voice at Westminster on matters affecting England or Scotland only, was obviously unjust. Such a power would have been used, not for the benefit of England or Scotland, but as an instrument for wresting further concessions for Ireland.

"I will never be a party," said Mr. Gladstone at one time, "to
allowing the Irish members to manage their own affairs in Dublin,
and at the same time to come over here and manage British affairs.
Such an arrangement would not be a Bill to grant self-government to
Ireland, but one to remove self-government from England; it would
create a subordinate Parliament indeed, but it would be the one at
Westminster, and not that in Dublin."[45]

The problem seems insoluble because, under a hybrid (or Gladstonian) system of Home Rule, it is insoluble. If a clear line is taken, there is no difficulty under this head. If full "responsible" or colonial government is granted, clearly representation in the Imperial Parliament (I do not now speak of a federal assembly) is an anomaly. On the other hand, if nothing more is in question than the extension of local government generally known as Devolution, then adequate representation in the Imperial Parliament is a matter of course. If a federal government is established, each member of the Federation must needs be represented in the federal Parliament; but in that case there must be no attempt to entrust to the same assembly both the duties of the federal Parliament and those of a Legislature for one of the federating states. It was this attempt to treat the Imperial Parliament as the local or state Legislature for Great Britain, and also as the federal Parliament for Great Britain and Ireland, which was fatal to Mr. Gladstone's proposals.

FEDERALISM.

These considerations bring us face to face with Federalism, or, to use the phrase which to so many perplexed Liberals has seemed to point the way to safety, "Home Rule all round." The expression covers a wide field, and before any opinion can be pronounced upon the proposal, it is essential to know what its advocates in fact desire.