Chapter VII: Home Rule--Its Forms (3)

That the existence of these three bodies, each normally exercising the different functions or powers I have attributed to them, constitutes an unmistakable, and I should myself say a fundamental, change in the existing English Constitution with its one sovereign Parliament of the United Kingdom, hardly in my judgment requires or admits of proof. If the change be denied, I have no course but to leave the decision of the question whether such a change can be fairly ignored to the intelligence of my readers.[66]

The Gladstonian Constitution, if it worked in the way contemplated by its authors--if everything, that is to say, went exactly as it was wished, and everybody acted exactly in the manner in which constitutionally they ought to act--would provide a complicated but, as I have already said, most ingenious solution of the problem before us. The British Parliament would sit at Westminster undisturbed by any Irish obstructives, and legislate for Great Britain and the whole British Empire in accordance with the wishes of the people of England and Scotland. Not only would Irish obstruction vanish, but what is even better, the necessity of considering Irish questions at all would disappear. English legislators would not be called upon to pay more attention to the affairs of Ireland than to the affairs of Canada or of New Zealand. The Irish Parliament would take the whole burden of legislation for Ireland off our hands, and Irishmen if they did not like Irish laws would have nobody to complain of but Irish legislators. But the Irish Parliament whilst it saved England from all trouble would, if the Constitution worked properly, give England no trouble whatever. If Bills were proposed or Acts passed at Dublin in violation of the Constitution they would be pronounced void by the Privy Council, and all Ireland would at once acquiesce in the final decisions of that exalted tribunal. If on the other hand the Irish House of Parliament were to pass enactments which though not unconstitutional were inexpedient, then foolish proposals would be nullified by the veto of the Lord-Lieutenant. The contribution from Ireland would be duly collected and be paid up to the day, since its collection would lie in the hands of British officials; and should any difficulty arise, the collectors would be aided by the Irish Court of Exchequer, the Judges of which would be appointed by the English Government, and the judgments of the Court of Exchequer could, if need were, be enforced by the British Army. This paper federation, in short, looks as promising as paper Constitutions generally do. It appears at first sight to combine the merits of American Federalism and of Colonial independence. To see, however, whether the Gladstonian Constitution gives any real promise of fulfilling the hopes which it seems to hold out, let us examine how far it really fulfils the conditions on which alone, as we have already pointed out, Home Rule can possibly be accepted by the people of Great Britain.

[Sidenote: 1st Question.--Is sovereignty of Parliament preserved?]

_1st Question._--Is the Gladstonian Constitution consistent with the sovereignty or ultimate legislative supremacy of the British Parliament?[67]

It is well to make clear to ourselves the precise meaning of this enquiry. It is nothing else than this: Do or do not the provisions of the Gladstonian Constitution either legally or morally impair the right of the British Parliament when sitting at Westminster without having summoned a single representative from Ireland to legislate (e.g. pass a Coercion Act) for Ireland, and if need be to repeal of its own authority all or any of the provisions of the Gladstonian Constitution, including the very provision under which it is declared in substance that the Constitution shall not be alterable except by the Imperial Parliament, which consists, as already noted, of the British Parliament and the Irish Parliament? To put the same matter in another shape, the enquiry is whether, under the Gladstonian Constitution, the British Parliament does or does not retain the sovereignty now admittedly possessed by the Parliament of the United Kingdom.[68]

Let us first consider the matter as a pure question of constitutional law.

[Sidenote: As a question of constitutional law.]

The inquiry then is whether a Judge in England or Ireland resolved to do his duty would or would not be bound to treat as invalid an Act passed by the British Parliament either inconsistent with or, to put the matter more strongly, actually repealing of such Parliament's own authority the provisions of the Gladstonian Constitution, or in other words of the Government of Ireland Bill, which would then, as we are assuming the Gladstonian Constitution to be in existence, have become the Irish Government Act.

Such a Judge would have to consider a question to which English Courts are now quite unaccustomed as regards Acts passed by the Parliament of the United Kingdom. The reason why they are unused to solve the particular kind of question supposed to arise under the new Irish Constitution is, that as the Parliament of the United Kingdom is undoubtedly a sovereign body, the validity of its enactments is in any British Court beyond dispute. The reason why the problem might under the Gladstonian Constitution require an answer is, that the question might arise whether the British Parliament were or were not a sovereign body.

Our Judge would find the question more difficult to answer than is readily admitted by English lawyers not versed in any constitution except their own. He would have to consider the language and effect of the Irish Government Act in the light of certain propositions which are now, and at the supposed passing of that Act must have been, true of the Parliament of the United Kingdom.

These propositions may be thus stated, roughly indeed, but with sufficient accuracy for our purpose:--

The Parliament of the United Kingdom is admittedly the sovereign of the whole British Empire.

The Parliament of the United Kingdom because it is a sovereign body can make laws for every part of the British Empire, and can legally make or unmake any law, and establish, alter, or abolish any institution (including in that term the Constitution of the Canadian Dominion or of Victoria) existing within the limits of any country subject to the British Crown.

The Parliament of the United Kingdom just because it is a sovereign body cannot, whilst retaining its position as sovereign of the British Empire, be itself bound by any Act of Parliament whatever.

To recur to an instance which is pre-eminently instructive, Parliament conferred in 1867 upon the Dominion of Canada as large a measure of independence as is compatible with a colony's maintaining its position as part of the British Empire. Yet the Parliament of the United Kingdom retains now, as ever, the indisputable legal power to change or abolish the Constitution of the Dominion.

The Parliament of the United Kingdom, just because it is a sovereign body, though it cannot remain a sovereign and place a legal limit on its own powers, can, like any other sovereign, e.g. the Czar of Russia, abdicate its sovereignty in reference to the whole, or it may be to part of the Crown's dominions; and the Parliament of the United Kingdom can, just because it is a sovereign body, do what is at bottom the same thing as abdicate, namely, merge its own powers in those of another sovereign body, or, in other words, form, or aid in forming, a new sovereign for the British Empire.

This proposition has during the Home Rule controversy been occasionally, in words at least, disputed or questioned by the supporters of Mr. Gladstone's policy, and language has been used which seems to imply that a sovereign power such as the Parliament of the United Kingdom can never by its own act divest itself of sovereignty. I can hardly think that the able controversialists who seem to maintain this doctrine really meant to contend for more than the admitted principle that a sovereign cannot while remaining a sovereign limit his sovereign powers. If, however, it be seriously suggested that the Parliament of the United Kingdom cannot divest itself of sovereignty, the suggestion is as a matter of argument untenable, and this for more than one reason.

An autocrat, such as the Russian Czar, can undoubtedly abdicate; but sovereignty, whether it be the sovereignty of the Czar or of Parliament, is always one and the same quality. If the Czar can abdicate, so can Parliament. The Czar again could, instead of abdicating in the ordinary sense of the term, constitute a new sovereign body for the government of Russia, of which he might himself be a part. Thus he may undoubtedly give Russia a constitution like that of England, under which the Czar and two Houses of Parliament might together become the sovereign of the Russian State, and no constitutionalist would dream of maintaining that the new power thus constituted was the less supreme owing to the fact that one of its members, namely the Czar, had at one time been himself the real sovereign of Russia. Here again what is true of the Czar is true of Parliament. The Parliament of the United Kingdom certainly might become a part of another sovereign body, or might join in constituting a sovereign power supreme throughout the British Empire of which Parliament itself did not form a part. There is nothing in the theory of sovereignty to prevent the Parliament of the United Kingdom from forming a constitution for the whole British Empire under which the Parliament of the United Kingdom, the Victorian Parliament, the Parliament of the Canadian Dominion and so forth should become simply State Parliaments, whilst the whole British Empire was ruled by some Imperial Congress sitting, say, either in London or in Victoria. Nor need we in this matter have recourse to theory. The present Parliament of the United Kingdom is itself a monument of the historical fact that sovereign Parliaments can divest themselves of sovereignty. For the Parliament of the United Kingdom is itself the result of the abdication of supreme power by sovereign Parliaments. The Union with Scotland was not, as Englishmen often, I suspect, fancy, the absorption of the Parliament of Scotland in the Parliament of England. The transaction bears, when carefully looked at, a quite different character. Up to the year 1707 there existed an English Parliament sovereign in England, and there existed a Scotch Parliament sovereign in Scotland. These two sovereign bodies in negotiating the Treaty of Union acted with scrupulous, and on the Scotch side with punctilious, independence. Neither sovereign body would consent to be absorbed in the other. What they did agree to was to constitute a new State, namely, the United Kingdom of Great Britain, and each to surrender their separate sovereignty in favour of a new sovereign, namely, the sovereign Parliament of the United Kingdom. The English Parliament no more became supreme in Scotland than the Scotch Parliament became supreme in England. The old Parliament of each country abdicated and lost its identity in the New Parliament of Great Britain. In theory the Treaty of Union between Great Britain and Ireland bore exactly the same character as the Treaty of Union between England and Scotland. But on this point I do not care strongly to insist, because at the present moment every part of Irish history excites controversy. When, however, the excitement of the day has passed by, no one will dispute that 22 Geo. III. c. 53 and 23 Geo. III. c. 28 constituted the renunciation by the British Parliament of sovereignty over Ireland. The difference between the limitation of sovereignty and the surrender of sovereignty has been pressed far enough for my present purpose; no principle of jurisprudence is more certain than that sovereignty implies the power of abdication, and no fact of history is more certain than that a sovereign Parliament has more than once abdicated or shared its powers. To argue or imply that because sovereignty is not limitable (which is true), it cannot be surrendered (which is palpably untrue) is to confuse together two distinct ideas, and is like arguing that because no man can while he lives give up, do what he will, his freedom of volition, therefore no man can commit suicide.

The Parliament of the United Kingdom, further, whilst because it is a sovereign body it cannot impose any legal limit to the exercise of its own power, may so express an intention to use or not to use its power in a particular way as to excite expectations which it will be extremely difficult or hazardous to disappoint, and so may find itself morally fettered as to its subsequent legislative action.

A notorious instance, taken from our constitutional history, illustrates this proposition. The statute 18 Geo. III. c. 12 declares in substance that Parliament will not impose any tax on any colony in North America or in the West Indies. The history of the statute is told by its date--1778. Now no constitutional lawyer will contend that the Parliament of the United Kingdom is legally bound by this Act. If Parliament were to impose an income tax on Jamaica to-morrow the impost would be legal, and could, no doubt, be enforced. But the Declaratory Act of 1778 makes it morally impossible for Parliament to tax any colony. That the impossibility does not arise from a law is clear, because it applies with as much strength to colonies which do not fall as to colonies which do fall within the terms of 18 Geo. III. c. 12. Victoria is not a colony in North America or in the West Indies, but Victoria is at least as well protected from Imperial taxation as is Barbadoes. The so-called Act establishes not a rule of law, but a precept of constitutional morality. It does not theoretically limit, but it practically impedes and interferes with the legislative sovereignty of Parliament.

Our Judge with these propositions fully before his mind would scan the terms of the Gladstonian Constitution, or in other words of the Irish Government Act. He would certainly come to the conclusion that the point for his decision was one of great nicety. Against the validity of any Act passed by the British Parliament in contravention of the provisions of the Constitution could be adduced the precise and formal enactment, passed, be it noted, by the undoubtedly sovereign Parliament of the United Kingdom, that the Constitution should be alterable in one way, and in one way only;[69] and if it were said that the body which passed this enactment could also repeal it, then the Judge might consider that that body, namely the Parliament of the United Kingdom, had in effect ceased to exist, and that the successor to its sovereign powers, if any, was not the British Parliament, but the Imperial Parliament, the body which, under any view, had legal authority to alter the Constitution. No doubt there would be a great deal to be urged on the other side. The attention of the Judge would be called to the singular and ambiguous use throughout the Constitution of the term Imperial Parliament, which it might be argued was meant to show that what I have called the British Parliament was to be identified with the Parliament of the United Kingdom. Reference would also be made to the ambiguous saving of powers contained in the 37th section of the Irish Government Act. The high and all-important enquiry as to the authority of the British Parliament sitting at Westminster would come to turn upon the studied ambiguities of one ill-drawn section of an Act of Parliament. There the legal question of the sovereignty of the British Parliament under the Gladstonian Constitution may well be left. It is not within the scope of this work to deal with the draughtsmanship of the Government of Ireland Bill. It is easy to anticipate what would be the practical result of that Bill's ambiguities if it passed into an Act. Irish Judges would honestly take one view, English Judges would as honestly take another. The Courts of Ireland would maintain that the Constitution could be altered only in the method provided by the Constitution, namely, by the Imperial Parliament. The English Courts would maintain that the Constitution could also be altered by the British Parliament, which was itself the Parliament of the United Kingdom, and possessed the sovereignty inherent in the Parliament of the United Kingdom. No Court in either country could satisfactorily terminate the dispute. Force would no doubt settle what law had left undecided, but to interpret a Constitution by power of arms is in reality to substitute revolutionary violence for constitutional discussion.[70]

Let us next consider the matter before us, not as a question of constitutional law, but as a question of public morality.

[Sidenote: As question of public morality.]

The enquiry then is whether under the Gladstonian Constitution the legislative supremacy of the British Parliament is or is not morally and in fact impaired? It is extremely difficult to see how any candid person can answer this question except by the admission that for all practical purposes, and except on possible but very extreme occasions, the right of the British Parliament to legislate for Ireland is morally not only impaired but destroyed. The supporters of the Government of Ireland Bill have admitted again and again that it constitutes what they term a Parliamentary compact; it embodies, in other words, a solemn contract between Great Britain and the people of Ireland that the British Parliament, whatever be its legal power, shall not legislate about Irish affairs without summoning Irish representatives to share in its deliberations. This covenant is made for great and valuable consideration, namely, the withdrawal of the Irish representatives from the Parliament of the United Kingdom, and the consequent acquisition by the British Parliament of power to legislate not only on every British but on every Imperial concern without consulting the wishes of the Irish people. This is in a moral point of view little less than a treaty; it is an engagement which England could not break, or incur the imputation of breaking, without dishonour. With all this every man of sense and of honour agrees; but if this be so, it is impossible to see how any one can maintain that this Parliamentary compact does not morally impair, as far as Ireland is concerned, the sovereignty or legislative supremacy of the British Parliament. It may be doubted whether the most earnest Gladstonian really and seriously maintains that under the Gladstonian Constitution the British Parliament sitting at Westminster could or ever would legislate for Ireland in contravention at any rate of the patent and apparent meaning of the Constitution. All that is really maintained is that the British Parliament would retain a legal power of doing that which would never be done by it. There is, however, it is suggested, convenience in retaining a nominal sovereignty which is not intended for real use. Convenience there may be, but there is also immense danger. The Irish Parliament we will suppose acts in a way which is most annoying to England, but the Irish Parliament at the same time takes care not to violate a line of the Constitution. The temptation to use our sovereign authority is great, and likely enough may prove irresistible; yet if we use it every Irishman, and many Englishmen for that matter, will accuse England of bad faith. No doubt a breach of the Constitution by the Irish Parliament might be remedied by the use of the sovereignty reserved to the British Parliament. But it is difficult even then to see the great advantage of this reservation. In any case in which England would be morally justified in setting aside the terms of the high Parliamentary contract, she would be equally justified in suspending the Constitution by the use of force. The employment of power becomes the more not the less odious because it is allied, or seems to be allied, with fraud. The miserable tale of the transactions which carried the Treaty of Union teaches at least one indisputable lesson--the due observance of legal formalities will not induce a people to pardon what they deem to be acts of tyranny, made all the more hateful by their combination with deceit. For the British Parliament to renounce the exercise whilst retaining the name of sovereignty is the very course by which to run a great risk of damaging the character without any certainty of increasing the power of Parliament.

The plain answer then to the enquiry on which we have been engaged is this:--

Under the Gladstonian Constitution, as foreshadowed in the Government of Ireland Bill, the sovereignty of the British Parliament is legally rendered doubtful, and is morally reduced to nothing.

[Sidenote: Does Constitution secure justice?]

_2nd Question._--Does the Gladstonian Constitution secure justice?

The justice which the Constitution ought to secure is twofold--justice to Great Britain, and justice to all classes, including minorities, of Irishmen.

The just claims of Great Britain may roughly be summed up under the one claim, that Ireland should contribute her fair share to Imperial expenditure.

The Gladstonian Constitution, nominally at least, makes fair provision that this claim should be satisfied. But any one who looks into the matter with care will find reason to think that as regards the exaction of payments from Ireland, which are already known by the hateful name of "tribute," Great Britain will find herself involved in this dilemma. Either she must surrender the tribute, or else surrender all hope of attaining the main object for the sake of which it is proposed to grant Home Rule to Ireland. If the tribute is exacted, we may be sure that it will have to be exacted in the long run by British officials supported by a British army. Laws, we are told, which are otherwise just are hated in Ireland because they bear a foreign aspect, and come before the Irish people in a foreign garb. If this assertion be not true, then the whole case for Home Rule falls to the ground. If this assertion possess even partial truth, then it applies with far greater force to tribute than to law. It is almost an absurdity to suppose that people who hate good laws because they may be termed English will not detest a heavy tax which not only may be called, but in reality is, a tribute to England. It is well to remember that a "publican" was a tax-gatherer, and that Roman publicans were far more hated than Roman Judges or Roman law. If England gives Ireland semi-independence, and at the same time makes Ireland pay tribute, all the conciliatory effects of Home Rule will be lost. If Home Rule is to have even a bare chance of producing in Ireland the contentment of Victoria, Ireland, the poorest of all civilized countries, must be freed from Imperial taxation, which would not be tolerated by the richest of our colonies. To this conclusion the advocates and the opponents of Home Rule may, I think, both come without grave dissatisfaction. Of all the sacrifices by which Ireland might be benefited, that sacrifice which England should make with the least regret is sacrifice of revenue. If, however, it be assumed, as the supporters of the Government of Ireland Bill must assume, that justice requires the contribution by Ireland of three or four millions annually to Imperial expenditure, then the Gladstonian Constitution, if it provides for the satisfaction of the claims of Great Britain, does so at the cost of keeping alive Irish discontent. Nor is it at all certain that the payment of the tribute could in effect be easily secured. The practical working of the Constitution might well be that Great Britain were impoverished and Ireland were angered.

Justice to individuals and to unpopular minorities is a matter of far greater importance and far more difficult to secure than the regular payment of Ireland's contribution to Imperial expenditure.

The Gladstonian Constitution ought to provide securities against executive and legislative oppression.

To provide however against the possible oppression of classes or individuals by an Irish Ministry and Irish officials is all but an impossibility, though, as every one knows, the grossest oppression may in any country arise from the wrongful action or inaction of the executive power. The assumption, indeed, is constantly made, though its truth is very hard to prove, that if Ireland were self-governed the law of the land would be enforced. In one sense this assumption may perhaps be well founded. A strong government, or, to put matters plainly, a popular despotism when installed in office at Dublin would, it may be suspected, stringently compel obedience to such laws as the Government approved. The Jacobin Club was no friend to anarchy when anarchy meant defiance of the mandates issued by the Club. But the energy of a strong Government in carrying out laws which it approves is a different matter from the zealous maintenance of even-handed justice. An Irish executive will immediately on coming into existence be called upon to deal with cases which will severely test its sense of justice. Landlords cannot at once be banished like vermin from Ireland; landlords, as long as they exist, must, I presume, have some rights. Is there any security under the Gladstonian Constitution, that the rights--rights, be it remembered, of British subjects, which ought to be neither more nor less sacred than the rights of a British subject in London or Calcutta--will be protected by an executive of Land Leaguers? There is, I answer, none whatever. To distrust the justice of an Irish Government is not, be it remarked, to show any special distrust of Irish nature. The Irish leaders are of necessity revolutionists, and, it must be added, revolutionists of no high character. Revolutionists on accession to power do not lay aside the revolutionary temperament, and this temperament may have every other virtue, but it knows nothing of the virtue of justice. The Gladstonian Constitution withdraws Ireland from the control of the Government of the United Kingdom, which with all its faults must of necessity possess more impartiality than can a Ministry formed out of the leaders of any Irish faction. The Gladstonian Constitution therefore does leave unpopular classes or individuals exposed to considerable risks of injustice at the hands of the Irish Government.

[Sidenote: Methods for securing just government.]

Though it is from the nature of things almost impossible to take effective steps for ensuring that an Irish executive shall make a right use of its powers, it is an essential feature of the Gladstonian Constitution that the Irish Parliament shall so far at least use its authority justly as to keep within the limits placed upon its competence. Whether these limitations have been wisely drawn, and whether they may not be in some respects too wide and in others too narrow, are inquiries which, though important in themselves, need hardly detain us. The question in comparison with which all matters of detail sink into insignificance is not what are the limitations which the Constitution imposes on the competence of the Irish Parliament, but what is the efficacity of the means provided by the Constitution for compelling the Irish Parliament to respect these limitations? This is the one vital inquiry, for upon the answer to it depends the reality of the constitutional provisions for the maintenance of just legislation. These methods are, as already pointed out, twofold.

[Sidenote: 1. Veto of Lord-Lieutenant.]

The first is the veto of the Lord-Lieutenant. Let us assume, though the truth of the assumption is not quite clear, that this veto is combined, as in the case of the colonies, with a further power of disallowance on the part of the Crown, or in effect of the British Ministry. The result is that the British Ministry, or, to put the thing plainly, the British House of Commons, can put a check on such Irish legislation as may be opposed to the letter or to the spirit of the Constitution. The check is in one sense real, but it must, as in the case of the colonies, be but rarely employed. Its constant use, or its use on occasions of great importance, would seem to Irishmen, and with good reason, to nullify the concession of Home Rule. Suppose, for example, the Irish Ministry carry a measure for artificially stimulating Irish commerce, and the Crown disallows it on the ground that it is contrary to the provision of the Constitution forbidding the Irish Parliament to make any law relating to trade. The Irish Cabinet thereupon resigns. What course is the Lord-Lieutenant to take? If he uses the veto he reintroduces in the most awkward form the interference of the British Parliament with Irish legislation. If he does not use the veto, or, what is in its effect the same thing, if the Act is not disallowed, then the right of veto comes to little or nothing. We may be quite sure that in general neither the Lord-Lieutenant nor the Crown will refuse assent to Bills approved of by the Irish Parliament. The veto in its different forms will, in short, be but a very slight check on unconstitutional or unjust legislation.

[Sidenote: 2. Action of Privy Council.]

The second method by which it is endeavoured to check unconstitutional legislation is the use of the authority vested in the English Privy Council. Privy This method is borrowed from Federalism, as the Lord-Lieutenant's veto is borrowed from the Colonial system. The Privy Council, it should be remembered, may nullify the effect of Irish legislation in two ways:--It may as an administrative body give a decision that a Bill or Act is void. It must, however, be hoped and expected that the Privy Council will rarely adopt this mode of exercising its powers, for such exercise would at once give rise to a direct conflict between the Irish Parliament and the English Privy Council. That body may, however, act simply as a Court of final appeal, and as a tribunal decide whether an enactment Of the Irish Parliament is or is not void. This, we may suppose, is the mode in which the Privy Council will usually put forth its authority. It is easy, bearing the experience of America and Canada in mind, to see how the whole arrangement will, in theory at least, work. _A._ sues _X._ in an Irish Court, _X._ bases his defence on some Act passed by the Irish Parliament. The Privy Council pronounce the Act void, as being opposed to some provision of the Constitution, and give a judgment in favour of _A._, under which he has a right to recover L10,000 against _X._ Here it will be said the whole matter is settled. The law was unconstitutional; the law has been treated as void; _A._ has obtained judgment; _A.'s_ rights are secured. This would be all that was required, but for one consideration. The object of the plaintiff in an action is to obtain not judgment, but payment or execution. What are the means by which judgments of the Privy Council may be put in force where they happen not to be supported by Irish opinion, and are opposed, it may be, to the decisions of the Irish Courts? The answer is simple: the Constitution provides no means whatever. The Federal tribunals of America possess in every State officials of their own, and are supported in the main by American opinion. The Americans are, moreover, to use their own expression, "a law-abiding people." Yet for all this the judgment of the Supreme Court may be worth little if it runs across State sentiment, and if the President should happen to sympathise with State rights. A citizen of colour was unlawfully imprisoned in Georgia; he applied for a habeas corpus. The application ultimately came before Chief Justice Marshall, and the writ was granted. The traditional comment of President Jackson is noteworthy: "John Marshall has given his judgment, let him enforce it if he can." The Executive would not assist the Court, and the Supreme Court was powerless. Switzerland, again, has a Federal tribunal: it is a Court, as would be the Privy Council, which cannot command officials of its own to execute its process; it depends for aid on the Cantonal authorities. This state of things, I am told on good authority, produces its natural result. The judgments of the Federal tribunal can be rendered almost ineffective by the opposition of a Canton.

At this moment the statutes of the Imperial Parliament bind every man throughout the United Kingdom. The Courts in Ireland are bound to give effect to every statute, and the Irish Courts are supported by the Sheriff and his officers, and in the last resort by the power of the United Kingdom. Yet the very difficulty of the day is enforcing judgments which run against Irish popular opinion. Is it common sense to imagine that opposition which defies, often with success, the authority of the Irish Queen's Bench Division, or ultimately of the House of Lords, would not easily nullify the judgments of the Privy Council when not only unpopular in Ireland, but in contradiction to a law devised by the Irish Executive, passed by the Irish Parliament, supported by the Irish Judges? The truth must be spoken: the Gladstonian Constitution will, as regards the restrictions placed under it on the powers of the Irish Parliament, inevitably turn out a mere paper Constitution. The methods for compelling the observance of these limitations have neither of them any real efficacity. The veto can with difficulty and but rarely be used; the judgments or opinions of the Privy Council may have a speculative interest, but will possess no coercive power.

If this be so the guarantees afforded by the Constitution for just legislation are nugatory; they are worth neither more nor less than the pompous securities for every kind of inalienable right which have adorned the most splendid and the most transitory among the Constitutions which have during a century been in turn created and destroyed in France--that is, they are worth nothing; nor is it unfair to conjecture that on this point my opinion agrees with the opinion of many English Home Rulers. They think the limitations on the independence of the Irish Parliament useless and destined to disappear; for their avowed belief is that legislation by an Irish Parliament will in the main be just, and that the laws of the Irish Parliament, because they represent the wishes of the Irish people, will obtain easy obedience in Ireland. If this conviction be sound--and it is the almost necessary basis for a policy of Home Rule--let us act upon it, and not impose restrictions which, if needless, must certainly be noxious. Meanwhile in any case let us dismiss the delusion that restrictions which cannot be enforced are any guarantee for justice. The Gladstonian Constitution admits on the face of it that guarantees are wanted. Most Englishmen agree in the opinion implied in this admission. But if I am right in asserting that the guarantees for justice are illusory, then the Gladstonian Constitution does not secure justice, and is therefore not just.

[Sidenote: Does Constitution possess finality?]

_3rd Question_.--Does the Gladstonian Constitution hold out fair hopes of finality?

This is an enquiry which may be answered with some confidence.

To any one who surveys the Constitution, not as a politician, but as a legist; to any one moderately versed in the study of comparative constitutionalism, few statements which savour of prediction will appear more certain than the assertion that the Gladstonian Constitution cannot be a final or even a lasting settlement of the constitutional relations between England and Ireland.

The grounds of this opinion are, briefly, that the proposed Constitution will, while leaving alive elements of discord, cause disappointment and inconvenience to both countries, and that the mechanism of the Constitution, framed as it is upon a combination of Federalism and of Colonialism, has some of the defects of each system, and promises in its working to produce something like the maximum of irritation and friction.

The two grounds for believing that the Gladstonian Constitution bears no promise of finality run into one another, but they admit of separate examination, and each requires explanation or justification.

[Sidenote: Constitution will cause disappointment to England.]

The Constitution will cause disappointment and inconvenience both to England and to Ireland, Englishmen will on the Gladstonian Constitution coming into operation find to their great disappointment that they have not attained the object which from an English point of view was the principal inducement to grant Home Rule to the Irish people, that is, freedom from the difficulty of governing Ireland. The difficulty no doubt will be diminished, or rather shifted; but the dream is vain that under the new Constitution Englishmen would be able to trouble themselves no more about the concerns of Ireland than they do about the affairs of Canada. Ireland would still be our immediate neighbour. Irishmen would still be divided by differences of class and religion, and England would still, disguise the fact as you may, be ultimately responsible for good government in Ireland. Home Rule is not Separation, and nothing short of Irish independence would greatly lessen English responsibility. This would be true under whatever form Home Rule were established, but it is emphatically true of Home Rule under the particular form contemplated by the Gladstonian Constitution. The army in Ireland--and no one supposes that England can withdraw her soldiers from the country--will be the British Army under the control of the British Government. But the power of the sword is, though we often forget the fact, the sanction by which law is maintained. Hence it follows that the British Ministry remains at bottom responsible for the maintenance of peace and order throughout Ireland. Note the results. If there are riots at Belfast; if unpopular officials are assassinated in Dublin; if evictions give rise to murder in Kerry, the British Army must in the last resort be called in to restore peace or punish crime. If the army are not under the control of the Irish Executive, then the English Cabinet become directly responsible for the government of Ireland. If British soldiers are placed at the disposal of the Irish Ministry, still the English Government must, shift the thing as you will, share the responsibility of the Irish Cabinet. During a riot at Belfast a hundred Protestants or Catholics are shot by British soldiers whilst restoring order. If any one fancies that such slaughter can take place without the English Ministry being called upon in the British Parliament for explanation and defence, he shows utter ignorance of English, or indeed of human nature. Nor is it for the action only of the troops that the English Executive will incur liability. If British subjects are killed by a mob in Belfast or in Dublin whilst British troops stand quietly by and under the direction of an Irish Home Secretary take no steps to prevent murder, we may rest assured that the Queen's Government in England will be asked whether it is decent that the Queen's forces should be trained to stand as indifferent spectators of outrageous breaches of the Queen's peace.

Take again the question of pardoning crime. Suppose that the first Irish Ministry on their accession to power propose to inaugurate the new era by a free pardon of all the political offenders, dynamiters and others, whose misguided zeal placed them within the gripe of the law, but also in no small measure contributed to achieve the Parliamentary independence of Ireland. If the request is not granted, then the Irish Administration are refused the means of carrying on the government of the country after their own notions of sound polity. If the request is granted, can the English Government be held entirely irresponsible for the mode in which the Crown exercises its prerogative? Let it be settled that the prerogative of mercy must in Ireland be exercised in accordance with the wishes of the Irish Ministry. Even then the English Government will not really escape responsibility. British soldiers put down a riot at Belfast; they are indicted for the murder of a Catholic rioter, before a Catholic grand jury, convicted by a Catholic jury under the direction of a Catholic judge who has just been appointed by the new Irish Ministry. Popular opinion demands the execution of the convicted murderers, the Irish Ministry advise that the law should take its course. The general belief in England, shared we will suppose by the English Home Office, is that the convicted soldiers are about to be capitally punished for having simply discharged their duty. Is an English Minister to abstain from advising a pardon? The dilemma is difficult. If he recommends a pardon, the Irish Government are prevented by England from governing Ireland. If the soldiers are hanged, the English Ministry will not keep long in office, the British Army will hardly maintain its habit of absolute obedience to the civil power.

Englishmen, in the next place, will soon discover that the creation of a statutory constitution for Ireland curiously hampers the working of our own institutions. Questions must arise whether Acts of the British Parliament do or do not trench upon the provisions of the Irish Constitution. Few persons are aware of the number of Imperial Acts which touch the Colonies. To such statutes there is no legal or moral objection, because the principle embodied in the Colonial Laws Act, 1865, that enactments passed by the Parliament of the United Kingdom override any Colonial law with which they conflict, is universally admitted; but, as already pointed out, it is questionable as a matter of law whether the statutes of the British Parliament can repeal Acts duly passed by the Irish Parliament, and it is quite beyond question that for the British Parliament to infringe upon the province of the Irish legislature would involve a breach of good faith. Changes again in the formation of the British Parliament might under the Gladstonian Constitution become difficult. The abolition of the House of Lords would be hard to reconcile with the right of the Irish Peers to be summoned on occasion to the Imperial Parliament. An increase in the number of British representatives in the House of Commons would be objected to by Irishmen because it diminished the relative importance of the members from Ireland when recalled to take part in the deliberations of the Imperial Parliament. The reduction of the number of members of the House of Commons, though one of the most salutary reforms which could be carried out, would be opposed by every person interested in maintaining the present excessive number of the Lower House, on the ground that to reduce the numbers of the House of Commons, to say 400, would involve an increase in the authority of the Irish members whenever they reappeared on the scene. The moot question whether the British Parliament could on an emergency repeal of its own authority the articles of the Irish Constitution; the extent to which Ireland should be represented on the Judicial Committee of the Privy Council; above all, the vital question whether the reassembled Imperial Parliament were not the true representative of the Parliament of the United Kingdom, and the ultimate sovereign power in the State, would in periods of excitement give rise to disputes hitherto quite alien to English politics, and involving elements of unknown danger.

Ambiguity and obscurity, since they help to pass Bills, are in the judgment of Parliamentary draughtsmen and Parliamentary statesmen characteristics which promote the easy working of Acts. Knives which are made to sell are not knives which are made to cut. No delusion is more dangerous. The founders of the American Union knew their own minds, and were not well acquainted with the advantages to be derived from the obscurities of modern draughtsmanship. But on two points they tried the experiment of keeping real perils out of sight by omitting to refer to them. "Slave" and "slavery" are words not to be found in the Constitution of the United States. What (if any) was the right of a State to retire from the Union, was a matter purposely left open for the interpretation of future generations. The Abolition movement, the Fugitive Slave Law, the War of Secession tell the result of trying to ignore perils or problems which it is not easy to face or to solve.

[Sidenote: And to Ireland.]

The last disappointment of Englishmen would be to find that Home Rule had not satisfied Ireland. For to Irishmen no less than to Englishmen the Constitution must bring disappointment and inconvenience.

That the Gladstonian Constitution cannot satisfy Ireland is all but certain.

To say this is not to imply that its acceptance by Irish Home Rulers is dishonest. In their eyes it is a move in the right direction; they exaggerate, as their English allies underrate, the freedom of action which the Constitution offers to Ireland. It cannot, as already pointed out, by any possibility remove the admitted causes of Irish discontent. It cannot tempt capital towards Ireland, but it may easily drive capital away from her shores; it cannot diminish poverty; it cannot in its direct effect assuage religious bigotry; it cannot of itself remove agrarian discontent. The Land Purchase Bill, even when discarded, remains an involuntary exposure of the futility of the Gladstonian Constitution, and of the unsoundness of the principle on which the demand for Home Rule rests. No friend of Italy ever suggested that Italian independence should be accompanied by a loan from Austria to the Italian Kingdom. For the principle of nationality was the true source of Italian disaffection. If in dealing with Ireland we must calm agrarian misery before satisfying national aspirations, this necessity is all but a confession that Irish unrest is due far more to desire for a change in the land laws than to passionate longing for national independence. I do not doubt that the spirit of nationality has some, though probably a small, part in the production of Irish discontent. But the Gladstonian Constitution is unfortunately so devised as to outrage quite as much as it soothes national sentiment. The tribute will affect every Irishman in his pride no less than in his purse. Can any one suppose that Northerners indignant at recent treachery, and Catholics mindful of ancient oppression, will not join, and justly join, in denouncing as at once ignominious and ruinous the payment of a tribute raised for Imperial purposes at the moment when Ireland ceases to have any voice in the direction of Imperial policy? Irishmen again will find to their surprise that the Constitution intended to give them independence imposes annoying fetters on their freedom of action. They wish for a protective tariff, and they come across the prohibition to make laws affecting trade; they desire that the country shall defend herself, and they discover that they cannot raise even a body of volunteers; they wish to try the plan of concurrent endowment, and they are thwarted by the article of the Constitution prohibiting the endowment of religion. These restrictions are the more annoying because none of them are imposed upon the Colonies. Irishmen will further discover that great achievements of constructive legislation require for their success the command of large pecuniary resources, and that exemption from British control involves the withdrawal of all assistance from the British Treasury.

[Sidenote: Constitution will cause friction.]

The Constitution will produce irritation and friction.

Every scheme for uniting into a political whole States which are intended to retain, even when connected together, a certain amount of independence, aims at minimising the opportunities for constitutional collision, or for friction between the different States which are connected together, and also between any State and the Central power. If we compare the mode in which this end is attained, either under the Federal system or under the Colonial system, with the arrangements of the Gladstonian Constitution, we shall easily see how little its authors have attended to the necessity for avoiding occasions of constitutional friction.

Where Federalism, as in America, appears in its best form, the skill with which opportunities for collision or friction have been minimised is almost above praise. The Federal or Central power is so constructed as to represent the whole nation; its authority cannot by any misrepresentation be identified with the power of one State more than another. The Federal Government acts through its own officers, is represented by its own Judiciary, and levies its own taxes without recourse to State authorities. Every device which could be thought of has been taken to make it unnecessary for the National Government to come into direct collision with any State. It deals in general with the individual citizens of the United States; it does not deal with the particular States. The result is that on the one hand, whatever may be said against the taxes imposed by Congress, they cannot by any stretch of imagination be looked upon as tribute paid by one State to another, say by Massachusetts to New York, or by New York to Massachusetts. It is again unnecessary for the Federal Government to issue commands to a State. There is, therefore, little opportunity for a contest between a State and the National Executive. Whoever wishes to understand the elaborate devices necessary to make Federalism work smoothly should compare the clumsiness of the arrangements by which the Swiss Confederacy has at times been compelled to enforce obedience of the Cantons to the will of the Confederation, with the ingenuity of the methods by which the Federal authorities of the United States exert their authority over American citizens.

The English Colonial system on the other hand, though far less elaborate than any form of Federalism, does, as a matter of fact, reduce within very narrow limits the chances of collision between England and her colonies. The system, however, succeeds, not because it is a model of constructive art, but because it attempts very little, and can, owing to favourable circumstances, leave to nominal dependencies something little short of complete self-government. Where collisions do arise they are disposed of by the habit of the Imperial Government always to give way.

The Gladstonian Constitution is, as we have already pointed out, a combination between Federalism and Colonialism; it may possess some of the merits, but it much more certainly displays some of the demerits of each system. From Federalism is borrowed the idea of leaving the settlement of constitutional questions to a Court. But the conception is spoilt in the borrowing. All the difficulties which under a Federal system beset the enforcement of judgments pronounced by a Federal Court affect in an aggravated form the attempt to enforce in Ireland judgments affecting the validity of Irish Acts, which judgments are pronounced by a Committee of the English Privy Council sitting in England. The Privy Council, moreover, while it has every weakness of the Supreme Court of America, has more than one special weakness of its own. It lacks moral authority, for it is an English Court sitting in England and representing English opinion; it lacks jurisdiction, because while it can pronounce on the validity of Irish, it cannot pronounce on the validity of British Acts of Parliament; it does not possess a strictly judicial character, because it is not only a Court called upon to give judgments, but is also an administrative body called upon to deliver opinions upon the validity of Irish Bills and of Irish Acts. Hence its decrees come into direct collision with the proposals or enactments of the Irish Parliament, and the Privy Council is made to appear not as a body of Judges deciding cases between man and man, but as a body of officials whose duty it is to oppose any unconstitutional action on the part of the Irish Parliament. From Federalism again is borrowed the contribution by Ireland towards meeting the expenses of the Empire. But imposts which under a Federal system are a tax towards the payment of common expenditure are under the Gladstonian Constitution a tribute to a foreign power. From the Federal system again is taken that restriction of legislative authority which hardly affects Parliaments such as that of Victoria, and which under any circumstances is a source of irritation. From the Colonial system, on the other hand, is derived the theoretical supremacy of the British Parliament, the right of veto, and the fatal dependence of the Irish executive on every vote of the Irish legislature. From the colonies we therefore bring to Ireland sources of dispute, of friction, and of irritation, which are unknown to a true system of Federalism, whilst we do not give Ireland that practical independence, and that immunity from taxation, which prevent our ill-arranged connection with the colonies from causing real dissatisfaction. Federalism has its merits and its defects; English Colonialism works well enough; the sham Federalism and the sham Colonialism of the Gladstonian Constitution must create between Great Britain and Ireland all the causes of discontent which have from time to time tried the strength of the American Union, and all the causes of disturbance which from time to time reveal the weakness of the tie which binds together our Colonial Empire.

Among the hypothetical virtues of the Gladstonian Constitution cannot assuredly be numbered the merit of finality.

The Gladstonian Constitution therefore fails entirely to fulfil for any practical purpose the conditions it is meant to satisfy. It neither maintains the sovereignty of Parliament, nor makes adequate securities for justice, nor offers a prospect of finality.

A criticism of Home Rule in its four forms gives then this result:--

[Sidenote: Result of criticism. 1. Home Rule as Federalism.]