Chapter VII: Home Rule--Its Forms (4)

Home Rule as Federalism means the immediate dislocation and the ultimate rebuilding of the whole English Constitution; it involves the transformation of an old and tried polity which centuries of experience have admirably adapted to the wants of the English people, and which has fostered the growth of the British Empire, into a form of government in itself not free from defects, and successful where it has succeeded only under conditions which the United Kingdom does not present.

[Sidenote: 2. Home Rule as Colonial independence.]

Home Rule in the form of Colonial independence involves far less change in the institutions of Great Britain or in the complex arrangements of the British Empire than does Federalism. It appears at first sight to be an application to Ireland of institutions which, as they have been found to answer their purpose in such countries as Canada and Victoria, may also prove successful in Ireland. The appearance is delusive. The true reasons why the Colonial system, self-contradictory as it is in theory and unsatisfactory as it sometimes is in practice, has produced harmony between England and her dependencies, are that the colonies are far distant and are prosperous, that they feel pride in their relation to the mother-country, that whilst contributing not a penny towards meeting Imperial burdens they derive valuable and valued benefits from the connection with the Empire, and lastly that they are not in reality dependencies; the colonies willingly acquiesce in the supremacy of England, because England protects them gratis and does not govern them at all. It is not the Colonial system, but the conditions which make that system succeed, which ought to engross our attention. These conditions will not be found in any arrangement whatever between England and Ireland. It is in the strictest sense impossible that Ireland whilst forming part of the United Kingdom, or even of the British Empire, should enjoy or endure the independence of Victoria. If the Act which gives Victoria her constitution were reenacted with the necessary verbal changes for Ireland, the constitution which satisfies the Victorians would not satisfy the Irish, and for a good reason: the form would be the same, but the effect would be different. A suffering and discontented people will not accept words for facts.

One condition indeed, which more perhaps than any other ensures the success of our Colonial system, Great Britain has in the case of Ireland the power to reproduce. Immunity from Imperial taxation is one source of Colonial loyalty to the Empire. If Ireland is to accept or to receive the mixed independence and subordination of a colony, she ought to enjoy the substantial advantage of a theoretically inferior position. The Colonial system, as I have already insisted, involves the renunciation of Imperial taxation.

[Sidenote: 3. Home Rule as Constitution of 1782.]

Home Rule as the revival of Grattan's Constitution is an impossibility. The Constitution of 1782 belongs to a past age, and cannot by any miracle of political art be at the present day restored to life.

[Sidenote: 4. Home Rule as Gladstonian Constitution.]

Home Rule under the Gladstonian Constitution means an artificial combination of Federalism and Colonialism. Its aim is to secure the advantages of two opposite systems; its result is to combine and intensify the disadvantages of both systems. It inevitably tends towards the dissolution of the United Kingdom into a Federation; it immediately disturbs the bases of the Constitution by creating the artificial bond of something like a Federal legislature between England and Ireland; it introduces into the relations between each of the different divisions of the United Kingdom elements of conflict which are all but inherent in Federalism; it requires that absolute deference for the judicial decisions of a Federal Court which if it exist anywhere can exist only among a people like the Americans, imbued with legal notions, and as it were born with innate respect for law. That this sentiment cannot exist in Ireland is certain; whether it exist in the required intensity even in England is problematical. The Gladstonian Constitution, again, because it contains some institutions borrowed from the Colonial system without the conditions requisite for their proper working so to speak falsifies them. The Imperial supremacy of Great Britain, the Imperial control over the army, the occasional interference with the Irish executive and the veto of the Crown on Irish legislation, are each and all of them under the Gladstonian Constitution certain to be the source of justifiable dissatisfaction. To the ingenuity of the plan proposed by Mr. Gladstone's Ministry hostile critics have given insufficient praise. But the essential unreality which this ingenuity has concealed has not even yet met with due condemnation. Since the day when the National Assembly of France presented the brand-new French Constitution to the acceptance of Louis XVI. no form of government has ever been seriously proposed for adoption by an intelligent people so radically unworkable as that Gladstonian Constitution which has been instinctively rejected by the good sense of the British Parliament. The Constitution of France lasted out two years; to a jurist it may appear conceivable, though hardly probable, that by the vigorous aid of the British Parliament the new Constitution for the United Kingdom might have lasted for as long a period.

FOOTNOTES:

[29] Compare Mr. Gladstone's speech of 8th April, 1886, '_The Times_ Parliamentary Debates,' pp. 130, 131; and Mr. Gladstone's speech of 13th April, _ibid._, pp. 255, 256.

[30] Compare _ibid._, pp. 130, 132.

[31] Compare the following expressions in Mr. Gladstone's speeches:--"The essential conditions of any plan that Parliament can be asked or could be expected to entertain are, in my opinion, these:--The unity of the Empire must not be placed in jeopardy; the safety and welfare of the whole--if there is an unfortunate conflict, which I do not believe--the welfare and security of the whole must be preferred to the security and advantage of the part. The political equality of the three countries must be maintained. They stand by statute on a footing of absolute equality, and that footing ought not to be altered or brought into question. There should be what I will at present term an equitable distribution of Imperial burdens. Next I introduce a provision which may seem to be exceptional, but which in the peculiar circumstances of Ireland, whose history unhappily has been one long chain of internal controversies as well as of difficulties external, is necessary in order that there may be reasonable safeguards for the minority. I am asked why there should be safeguards for the minority.

* * * * *

"I have spoken now of the essential conditions of a good plan for Ireland, and I add only this--that in order to be a good plan it must be a plan promising to be a real settlement of Ireland. (Speech of Mr. Gladstone, 8th April, 1886, '_The Times_ Parliamentary Debates,' pp. 130, 131.)

"I laid down, I say, five essential conditions, from which it appeared to me we could under no circumstances depart. These were the essential conditions under which in our opinion the granting of a domestic Legislature to Ireland would be justifiable and wise--first, that it must be consistent with Imperial unity; secondly, that it must be founded upon the political equality of the three nations; thirdly, that there must be an equitable distribution of Imperial burdens; fourthly, that there should be safeguards for the minority; and, fifthly, that it should be in the nature of a settlement, and not of a mere provocation to the revival of fresh demands, which, according to the right hon. gentleman, exceeded all reasonable expectation and calculation." (Speech of Mr. Gladstone, 13th April, 1886, '_The Times_ Parliamentary Debates,' p. 256.) Let it be observed that when Mr. Gladstone speaks of the unity of the Empire he means the sovereignty of Parliament, for in the same speech from which these extracts are taken he says, "The unity of the Empire rests upon the supremacy of Parliament and on considerations much higher than considerations merely fiscal." ('_The Times_ Parliamentary Debates,' p. 132.)

[32] Dicey, 'Law of the Constitution,' lecture iv. Parliamentary Sovereignty and Federalism.

[33] A singular instance of the attempt to dissolve a country into States deserves notice. In 1852 a constitution was devised for New Zealand, under which the country was to be governed by a central legislature and subordinate provincial governments and councils. This artificial federation was of short duration; the provincial governments were in 1875 abolished by an Act of the General Assembly.--Todd, 'Parliamentary Government,' pp. 320-322.

[34] See Dicey, 'Law of the Constitution,' 2nd ed., pp. 35-79.

[35] _Contemporary Review_, vol. xii., p. 908.

[36] _Contemporary Review_, vol. xli., p. 921.

[37] 'Mr. Gladstone's Irish Constitution,' _Contemporary Review_, May, 1886, p. 616.

[38] 'Arguments for and against Home Rule,' by the Rev. Malcolm MacColl, M.A., p. 71.

[39] 'The Irish Question,' by the Right Hon. W.E. Gladstone, pp. 36, 37.

[40] 'American Home Rule,' by E.L. Godkin, _Nineteenth Century_, June, 1886, pp. 793, 802.

[41] See Todd, 'Parliamentary Government in the British Colonies,' pp. 274-303, and especially p. 281, as to the position of the colonial troops in Victoria.

[42] See Tarring, 'Chapters on the Law relating to the Colonies,' pp. 79-85.

[43] See Dicey, 'Law of the Constitution,' pp. 105, 106.

The somewhat complicated principles which govern what is popularly called the right of veto on Bills passed by Colonial Legislatures, are thus stated in the 'Rules and Regulations' published for the use of the Colonial Office, Chapter III., Legislative Councils and Assemblies, Rules 48-55:--

"48. In every Colony the Governor has authority either to give or to withhold his assent to laws passed by the other branches or members of the Legislature, and until that assent is given no such law is valid or binding.

"49. Laws are in some cases passed with suspending clauses; that is, although assented to by the Governor they do not come into operation or take effect in the Colony until they shall have been specially confirmed by Her Majesty, and in other cases Parliament has for the same purpose empowered the Governor to reserve Laws for the Crown's assent, instead of himself assenting or refusing his assent to them.

"50. Every Law which has received the Governor's assent (unless it contains a suspending clause) comes into operation immediately or at the time specified in the Law itself. But the Crown retains power to disallow the Law; and if such power be exercised at any time afterwards, the Law ceases to have operation from the date at which such disallowance is published in the Colony.

"51. In Colonies having Representative Assemblies the disallowance of any Law, or the Crown's assent to a reserved Bill, is signified by Order in Council. The confirmation of an Act passed with a suspending clause is not signified by Order in Council unless this mode of confirmation is required by the terms of the suspending clause itself, or by some special provision in the constitution of the Colony.

"52. In Crown Colonies the allowance or disallowance of any Law is generally signified by despatch.

"53. In some cases a period is limited, after the expiration of which Local Enactments, though not actually disallowed, cease to have the authority of Law in the Colony, unless before the lapse of that time Her Majesty's confirmation of them shall have been signified there; but the general rule is otherwise.

"54. In Colonies possessing Representative Assemblies, Laws purport to be made by the Queen or by the Governor on Her Majesty's behalf or sometimes by the Governor alone, omitting any express reference to Her Majesty, with the advice and consent of the Council and Assembly. They are almost invariably designated as Acts. In Colonies not having such Assemblies, Laws are designated as Ordinances, and purport to be made by the Governor with the advice and consent of the Legislative Council (or in British Guiana of the Court of Policy).

"55. In West Indian Islands or African Settlements which form part of any general Government, every Bill or Draft Ordinance must be submitted to the Governor-in-Chief before it receives the assent of the Lieutenant-Governor or Administrator. If the Governor-in-Chief shall consider any amendment indispensable, he may either require that amendment to be made before the Law is brought into operation, or he may authorize the officer administering to assent to the Bill or Draft on the express engagement of the Legislature to give effect to the Governor-in-Chief's recommendation by a supplementary Enactment."

The effect of these Regulations may be best understood by taking the following supposed case as an example of their operation.

The Houses of the Victorian Parliament pass a Bill legalising the marriage of a widower with his deceased wife's sister.

i. The Governor refuses his assent. The Bill is lost and never becomes law.

ii. The Governor assents to the Bill on the 1st of January. It thereupon becomes an Act, and law in Victoria.

iii. The Crown disallows the Act on the 1st of April. The disallowance is published in Victoria on the 1st of May. From the 1st of May the Act ceases to be law in any part of the British Dominions, but marriages made under it between the 1st of January and the 1st of May are valid.

iv. The Crown allows the Bill. It thereupon becomes an Act which continues in force in Victoria until it be repealed either by the British Parliament or by the Victorian Parliament.

v. The Bill contains a clause that it shall not come into force unless and until allowed by the Crown within two years of its passing. It is not so allowed, it never comes into force, or in other words never becomes law.

The point to be noted is that the Crown, or in reality the Colonial Office, has and often exercises the power of placing a veto upon any Colonial law whatever.

[44] Compare 'Victorian Parliamentary Paper,' 1883, 2 S., No. 22, and the _Times_ of September 27, October 2, 5, 10, 12, 15 and 18, 1883.

[45] See Todd, 'Parliamentary Government in the Colonies,' p. 283.

[46] Todd, p. 283.

[47] See, e.g., a letter by Mr. Lecky in the _Times_ of January 13, 1886.

[48] See pp. 221, 222, _post._

[49] See a letter in the _Spectator_ of January 2, 1886, on 'Home Rule or Separation,' by Mr. J. Cotter Morison.

[50] See p. 197, _ante._

[51] _The Times_, May 5, 1886.

[52] Under the political arrangements connecting the two countries, it was practically impossible that the two crowns could by legal means be separated without the assent of the English Parliament. George III. was necessarily a member both of the English and of the Irish Parliaments; and it is inconceivable that as King of Ireland he should have assented to a bill passed by the Irish Houses of Parliament which was strenuously opposed by the English Houses of Parliament. The madness of the King raised a case not provided for by the Constitution, and the accidental difference of opinion between the English and Irish Houses of Parliament, as to the Regency, has been treated as possessing more importance than from a constitutional point of view belonged to it.

[53] See Appendix for the Government of Ireland Bill. It is there printed in extenso. The clauses which mainly concern the points discussed in the following pages are printed in italics. Readers who wish to understand my comments on the Gladstonian Constitution, should study the Bill itself. I am anxious to call attention to its words, because I am quite aware that on more than one point the interpretation put by me upon its provisions will be disputed by supporters of Mr. Gladstone's policy. My interpretation is, I believe, sound, but it would be unfair not to give my readers the opportunity of judging for themselves as to its soundness.

[54] Criticism of particular provisions was made the easier by the fact that hesitations of statesmanship betrayed themselves throughout the Bill in blunders of draughtsmanship. The very heading of the Bill is a misdescription, and involves confusion of ideas. The expressions "status of the Crown," "Executive Government," "Imperial Parliament," are from a legal point of view open to severe criticism; and the substitution of the name "Irish legislature" or "Legislature of Ireland" for the plain intelligible term Irish Parliament, involves something like political cowardice. For errors of this kind, though in one sense errors of draughtsmanship, official draughtsmen are, it must in fairness be remembered, no more responsible than is an amanuensis for the erasures and blots which mar a letter written or re-written to suit the contradictory views of a writer who does not quite know his own meaning and is not anxious to put his meaning into plain words. (See for some excellent criticisms on the Government of Ireland Bill two letters in the _St. James's Gazette_ of 20th and 22nd April, 1880 signed II.)

[55] My statement that the Government of Ireland Bill repeals the main provisions of the Act of Union is made, not because I anticipate that the Bill if passed would lead to a repeal of the Union, but because it is my opinion that the Bill if passed would, as a matter of law, repeal the provisions of that Act, under which the United Kingdom is represented in one and the same Parliament to be styled the Parliament of Great Britain and Ireland. The effect of the Bill would be in very general terms that Ireland would be represented in a Parliament which contained no English or Scotch representatives, and Great Britain would be represented in a Parliament which contained no Irish representatives. Occasionally and for one definite purpose, and no other, namely for the purpose of modifying the terms of the Gladstonian Constitution, a Parliament might be convened which contained representatives from England, Scotland, and Ireland. By what name any one of these assemblies might be called is a matter of indifference; but that either the British Parliament which contained no Irish representatives, or the Irish Parliament which contained no English or Scotch representatives, or the exceptional and only occasionally convoked body whose one function is to modify a single Act of Parliament, could be considered by any lawyer the "one and the same Parliament" in which the United Kingdom is now represented, is in my judgment all but incredible. If, however, the term "repeal" causes offence or misunderstanding, let us substitute the word "modify," which, however, I believe to be less accurate. The lay reader ought to be reminded that "Statutes may be repealed either by express words contained in later Acts of Parliament, or by implication," and that "a repeal by implication is effected when the provisions of a later enactment are so inconsistent with, or repugnant to, the provisions of an earlier enactment that the two cannot stand together" (Wilberforce, 'Statute Law,' p. 310). My contention is that the Government of Ireland Bill would on becoming law be so inconsistent with portions of 39 & 40 Geo. III. cap. 67, as to amount to a repeal thereof. (For a statement of an opposite opinion, see Mr. Gladstone's pamphlet on the Irish Question pp. 38, 39.)

[56] The Government of Ireland Bill, clause 7.

[57] See the Government of Ireland Bill, clauses 1, 9.

[58] See the Government of Ireland Bill, clause 7.

[59] _Ibid_., clause 25.

[60] _Ibid_., clause 7.

[61] As to the disallowance of Colonial bills, see pp. 202-5, _ante_.

[62] See the Government of Ireland Bill, clause 25, sub-clause (_a), (b_) and (_c_).

[63] Government of Ireland Bill, clause 24.

[64] Government of Ireland Bill, clauses 37, 39. On the whole question as to the mode in which the Gladstonian Constitution, or in other words the Government of Ireland Bill, is intended to be altered, readers are specially referred to the terms of the Bill itself. The whole matter is involved in so much controversy that one can hardly make any statement about it which an opponent will not question. The parts of the Bill to be studied are clauses 37 and 39.

[65] See Government of Ireland Bill, clause 39.

[66] I am quite aware that the account I have given of the proposed Gladstonian Constitution is likely not to be accepted as correct by some of the supporters of the Government of Ireland Bill. That measure by designating both what I have termed the British Parliament and the Imperial Parliament by the one name Imperial Parliament, conceals in my judgment the extent of the alteration which the Bill contemplates. For the sake of clearness of thought I must request my readers to distinguish carefully four different bodies:--

1. The Parliament of the United Kingdom of Great Britain and Ireland. This is the actually existing Parliament constituted by the Act of Union with Ireland.

2. The British Parliament; that is, the Parliament of the United Kingdom with the Irish representatives removed from it. This body is called under the Government of Ireland Bill the Imperial Parliament. It is a distinctly different body from the Parliament of the United Kingdom. Whether it does or does not inherit the legal powers of the Parliament of the United Kingdom is a separate question afterwards to be considered. All that I now insist upon is that it is a different body.

3. The Irish Parliament, a body admittedly constituted or to be constituted under the Government of Ireland Bill, and therein called the Irish Legislature.

4. The Imperial Parliament, a body in effect consisting of the British Parliament with the addition of the Irish representatives, or in other words of the British Parliament combined with the Irish Parliament. This body is convoked, as I have pointed out, only for the special purpose of altering the Gladstonian Constitution. It is termed in the Government of Ireland Bill the Imperial Parliament.

What I am most anxious my readers should note is that the bodies 2 and 4 are each termed in the Bill the Imperial Parliament, and thereby not only confused together, but as far as possible each identified with the existing Parliament of the United Kingdom, with which neither really corresponds. The British Parliament differs from the Parliament of the United Kingdom certainly in constitution, if not also in authority.

The so-called Imperial Parliament nearly corresponds with the Parliament of the United Kingdom in constitution, but differs from it in function and authority.

[67] In reference to the legal effect of the Government of Ireland Bill on the sovereignty of Parliament, see on the one side the speeches of Sir Henry James of 13th May, 1886, '_The Times_ Parliamentary Debates,' p. 468; of Mr. Finlay, 21st May, 1886, '_The Times_ Parliamentary Debates,' p. 614; and an article by Sir William Anson on the Government of Ireland Bill and the Sovereignty of Parliament in the _Law Quarterly Review_ for October, 1886. See on the other side Mr. Gladstone's speeches in Parliament of 8th April, 1886, '_The Times_ Parliamentary Debates,' p. 125; of 13th April, 1886, _ibid._ 255; of 10th May, 1886, _ibid._ 404; and of 7th June, 1886, _ibid._ p. 861; of Mr. Parnell of 7th June, _ibid._ p. 847; and 'The Government of Ireland Bill,' being a speech delivered by Mr. James Bryce, M.P., on 17th May, 1886, and published as a pamphlet. My disagreement with Mr. Bryce's conclusions makes me anxious to express my great admiration for his speech, which is by far the best statement I have read of the view undoubtedly held by Mr. Gladstone and his followers, that the Bill did not affect the sovereignty of Parliament. The reader should notice that the question throughout between the late Government and its opponents was as to the effect of the Bill on the sovereignty of what I have called the "British Parliament," _i.e._ the body, by whatever name it be called, which consists of the representatives of England and Scotland only, and does not include representatives of Ireland.

[68] As to the sovereignty of Parliament, see Dicey, 'Law of the Constitution,' pp. 35-79.

[69] Government of Ireland Bill, clause 39.

[70] I do not, of course, deny for a moment that an Act could be so drawn as to give Ireland an Irish Parliament, to remove the Irish members from the Parliament of the United Kingdom, and at the same time to reserve to the residue of the United Parliament, or Rump, the full sovereignty now possessed by the Parliament of the United Kingdom. What I do insist upon is, that it is open to question whether the Government of Ireland Bill was so drawn as to achieve these results. Nor is the question unimportant. The fundamental ambiguity of the Bill obviously arose from the fact that its authors, whilst wishing to promise in appearance to Ireland that the new Irish constitution should not be changed by a body in which Ireland had no representatives, also wished to soothe the apprehensions of England by tacitly reserving to the British Parliament the power of altering or repealing the Irish constitution without recalling the representatives of Ireland. The consequence is that the Bill proclaims in so many words that its provisions shall be altered in one way only, but by implication, as its authors suppose, provides that its provisions may be altered in another and quite different way. If this is the intended effect of the Bill it ought to have been made patent on its face. In constitutional matters, as indeed in all the serious concerns of life, ambiguity and uncertainty of expression is the source both of misunderstanding and of danger.

The question of the sovereignty of the British Parliament might, it should be noted, arise in another and more perplexing form, which received, unless I am mistaken, no attention during the debates on the Irish Government Bill. Admit for the sake of argument that the British Parliament can legislate for Ireland; is it equally certain that the Imperial Parliament (i.e. the British Parliament with the addition of Irish representatives) cannot claim to legislate for England or for the whole British Empire? No doubt the Gladstonian Constitution proposes that the Imperial Parliament should be convened only for a limited definite purpose; but is it certain that the Imperial Parliament, which would in its constituent parts be in effect the reunited Parliament of the United Kingdom, might not when convened claim to reassume sovereign power? The addition of a hundred Irish members might turn a minority in the British Parliament into a majority in the Imperial Parliament; can we feel sure that the English minority in the British Parliament would resist the temptation to exalt the authority of a body in which they would be supreme? The enquiry sounds to Englishmen a strange one; but the annals of foreign constitutions suggest that an assembly which, though convoked for a particular purpose, is able from any point of view to consider itself sovereign is with difficulty restrained from asserting supreme power. From this side the Gladstonian Constitution might prove a menace to the supremacy of the British Parliament.