Chapter VI: Part 6

Certainly, if Home Rule is to be refused till all the prophets of evil are refuted, Ireland must go without Home Rule for ever. "If the sky fall, we shall catch larks." But he would be a foolish bird-catcher who waited for that contingency. And not less foolish is the statesman who sits still till every conceivable objection to his policy has been mathematically refuted in advance, and every wild prediction falsified by the event; for that would ensure his never moving at all. _Sedet æternumque sedebit_. A proper enough attitude, perhaps, on the part of an eristic philosopher speculating on politics in the silent shade of academic groves, but hardly suitable for a practical politician who has to take action on one of the most burning questions of our time. Human affairs are not governed by mathematical reasoning. You cannot demonstrate the precise results of any legislative measure beforehand as you can demonstrate the course of a planet in the solar system. "Probability," as Bishop Butler says, "is the guide of life;" and an older philosopher than Butler has warned us that to demand demonstrative proof in the sphere of contingent matter is the same kind of absurdity as to demand probable reasoning in mathematics. You cannot confute a prophet before the event; you can only disbelieve him. The advocates of Home Rule believe that their policy would in general have an exactly contrary effect to that predicted by their opponents. In truth, every act of legislation is, before experience, amenable to such destructive criticism as these critics urge against Home Rule. I have not a doubt that they could have made out an unanswerable "case" against the Great Charter at Runnymede; and they would find it easy to prove on _à priori_ grounds that the British Constitution is one of the most absurd, mischievous, and unworkable instruments that ever issued from human brains or from the evolution of events. By their method of reasoning the Great Charter and other fundamental portions of the Constitution ought to have brought the Government of the British Empire to a deadlock long ago. Every suspension of the Habeas Corpus Act, every Act of Attainder, every statute for summary trial and conviction before justices of the peace, is a violation of the fundamental article of the Constitution, which requires that no man shall be imprisoned or otherwise punished except after lawful trial by his peers.[20] Consider also the magazines of explosive materials which lie hidden in the constitutional prerogatives of the Crown, if they could only be ignited by the match of an ingenious theorist. The Crown, as Lord Sherbrooke once somewhat irreverently expressed it, "can turn every cobbler in the land into a peer," and could thus put an end, as the Duke of Wellington declared, to "the Constitution of this country."[21] "The Crown is not bound by Act of Parliament unless named therein by special and particular words."[22] The Crown can make peace or war without consulting Parliament, can by secret treaty saddle the nation with the most perilous obligations, and give away all such portions of the empire as do not rest on Statute. The prerogative of mercy, too, would enable an eccentric Sovereign, aided by an obsequious Minister, to open the jails and let all the convicted criminals in the land loose upon society.[22] But criticism which proves too much in effect proves nothing.

In short, every stage in the progress of constitutional reform has, in matter of fact, been marked by similar predictions falsified by results, and the prophets who condemn Home Rule have no better credentials; indeed, much worse, for they proclaim the miserable failure of "things as they are," whereas their predecessors were in their day satisfied with things as they were.[23]

It is, high time, therefore, to call upon the opponents of Home Rule to tell us plainly where they stand. They claim a mandate from the country for their policy. They neither asked nor received a mandate to support the system of Government which prevailed in Ireland at the last election, and still less the policy of coercion which they have substituted for that system. Do they mean to go back or forward? They cannot stand still. They have already discovered that one act of repression leads to another, and they will find ere long that they have no alternative except Home Rule or the suppression of Parliamentary Government in Ireland. Men may talk lightly of the ease with which eighty-six Irish members may be kept in order in Parliament. They forget that the Irish people are behind the Irish members. How is Ireland to be governed on Parliamentary principles if the voice of her representatives is to be forcibly silenced or disregarded? Could even Yorkshire or Lancashire be governed permanently in that way? Let it be observed that we have now reached this pass, namely, that the opponents of Home Rule are opposed to the Irish members, not on any particular form of self-government for Ireland, but on any form; in other words, they resist the all but unanimous demand of Ireland for what "Unionists" of all parties declared a year ago to be a reasonable demand. No candidate at the last election ventured to ask the suffrages of any constituency as "a supporter of things as they are." Yet that is practically the attitude now assumed by the Ministerial party, both Conservatives and Liberal Unionists. It is an attitude of which the country is getting weary, as the bye-elections have shown. But the "Unionists," it must be admitted, are in a sore dilemma. Their strength, such as it is, lies in doing nothing for the reform of Irish Government. Their bond of union consists of nothing else but opposition to Mr. Gladstone's policy. They dare not attempt to formulate any policy of their own, knowing well that they would go to pieces in the process. Their hope and speculation is that something may happen to remove Mr. Gladstone from the political arena before the next dissolution. But, after all, Mr. Gladstone did not create the Irish difficulty. It preceded him and will survive him, unless it is settled to the satisfaction of the Irish people before his departure. And the difficulty of the final settlement will increase with every year of delay. Nor will the difficulty be confined to Ireland. The Irish question is already reacting upon kindred, though not identical, problems in England and Scotland, and the longer it is kept open, so much the worse will it be for what are generally regarded as Conservative interests. It is not the Moderate Liberals or Conservatives who are gaining ground by the prolongation of the controversy, and the disappearance of Mr. Gladstone from the scene would have the effect of removing from the forces of extreme Radicalism a conservative influence, which his political opponents will discover when it is too late to restore it. Their regret will then be as unavailing as the lament of William of Deloraine over his fallen foe--

"I'd give the lands of Deloraine
Dark Musgrave were alive again."

The Irish landlords have already begun to realize the mistake they made when they rejected Mr. Gladstone's policy of Home Rule and Land Purchase. It is the old story of the Sibyl's books. No British Government will ever again offer such terms to the Irish landlords as they refused to accept from Mr. Gladstone. On the other hand, Home Rule is inevitable. Can any reflective person really suppose that the democracy of Great Britain will consent to refuse to share with the Irish people the boon of self-government which will be offered to themselves next year? Any attempt to exclude the Irish from the benefits of such a scheme, after all the promises of the last general election, would almost certainly wreck the government; for constituencies have ways and means of impressing their wills on their representatives in Parliament even without a dissolution. If, on the other hand, Ireland should be included in a general scheme of local Government, the question of who shall control the police will arise. In Great Britain the police, of course, will be under local control. To refuse this to Ireland would be to offer a boon with a stigma attached to it. The Irish members agreed to let the control of the constabulary remain, under Mr. Gladstone's scheme, for some years in the hands of the British Government; but they would not agree to this while Dublin Castle ruled the country. Moreover, the formidable difficulty suggested by Lord Salisbury and Mr. John Stuart Mill (see pp. 115, 116) would appear the moment men began seriously to consider the question of local government for Ireland. The government of Dublin Castle would have to go, but something would have to be put in its place; and when that point has been reached it will probably be seen that nothing much better or safer can be found than some plan on the main lines of Mr. Gladstone's Bill.

FOOTNOTES:

[Footnote 15: Speech at Manchester, May 7, 1886, by Mr. Shaw-Lefevre, who was a member of the Cabinet to which Mr. Chamberlain's scheme was submitted.]

[Footnote 16: _Hansard_, vol. 220, pp. 708, 715.]

[Footnote 17: _Considerations on Representative Government_, p. 281.]

[Footnote 18: Dicey's _England's Case against Home Rule_, pp. 25-31, and Letter in _Spectator_ of September 17th, 1887.]

[Footnote 19: From the beginning of 1880 till now there have been six Viceroys and ten Chief Secretaries in Dublin--namely, Duke of Marlborough, Earls Cowper and Spencer, Earls of Carnarvon and Aberdeen, and the Marquis of Londonderry; Mr. Lowther, Mr. Forster, Lord F. Cavendish, Mr. Trevelyan, Mr. Campbell Bannerman, Sir W. Hart Dyke, Mr. W.H. Smith, Mr. J. Morley, Sir M. Hicks-Beach, and Mr. A. Balfour. A fine example, truly, of stable government and continuous policy!]

[Footnote 20: Creasy's _Imperial and Colonial Constitutions of the Britannic Empire,_ p. 155.]

[Footnote 21: May's _Const. Hist._, i. 313.]

[Footnote 22: Blackstone's _Commentaries_, by Stephen, ii. 491, 492, 497, 507.]

[Footnote 23: We need not go far afield for illustrations. A few samples will suffice. "It was natural," says Mill (_Rep. Gov._, p. 311), "to feel strong doubts before trial had been made how such a provision [as the Supreme Court of the United States] would work; whether the tribunal would have the courage to exercise its constitutional power; if it did, whether it would exercise it wisely, and whether the Government would consent peaceably to its decision. The discussions on the American Constitution, before its final adoption, give evidence that these natural apprehensions were strongly felt; but they are now entirely quieted, since, during the two generations and more which have subsequently elapsed, nothing has occurred to verify them, though there have at times been disputes of considerable acrimony, and which became the badges of parties respecting the limits of the authority of the Federal and State Governments." The Austrian opponents of Home Rule in Hungary predicted that it would lead straight to separation. The opponents of the Canadian Constitution prophesied that Canada would in a few years be annexed to the United States; and Home Rule in Australia was believed by able statesmen to involve independence at an early date. Mr. Dicey himself tells us "that the wisest thinkers of the eighteenth century (including Burke) held that the independence of the American Colonies meant the irreparable ruin of Great Britain. There were apparently solid reasons for this belief: experience has proved it to be without foundation." The various changes in our own Constitution, and even in our Criminal Code, were believed by "men of light and leading" at the time to portend national ruin. All the judges in the land, all the bankers, and the professions generally, petitioned against alteration in the law which sent children of ten to the gallows for the theft of a pocket-handkerchief. The great Lord Ellenborough declared in the House of Lords that "the learned judges were unanimously agreed" that any mitigation in that law would imperil "the public security." "My Lords," he exclaimed, "if we suffer this Bill to pass we shall not know where we stand; we shall not know whether we are on our heads or on our feet." Mr. Perceval, when leader of the House of Commons in 1807, declared that "he could not conceive a time or change of circumstances which would render further concessions to the Catholics consistent with the safety of the State." (_Croker Papers_, i. 12.) Croker was a very astute man; but here is his forecast of the Reform Act of 1832: "No kings, no lords, no inequalities in the social system; all will be levelled to the plane of the petty shopkeepers and small farmers: this, perhaps, not without bloodshed, but certainly by confiscations and persecutions." "There can be no longer any doubt that the Reform Bill is a stepping-stone in England to a Republic, and in Ireland to separation." Croker met the Queen in 1832, considered her very good-looking, but thought it not unlikely that "she may live to be plain Miss Guelph." Even Sir Robert Peel wrote: "If I am to be believed, I foresee revolution as the consequence of this Bill;" and he "felt that it had ceased to be an object of ambition to any man of equable and consistent mind to enter into the service of the Crown." And as late as 1839, so robust a character as Sir James Graham thought the world was coming to an end because the young Queen gave her confidence to a Whig Minister. "I begin to share all your apprehensions and forebodings," he writes to Croker, "with regard to the probable issue of the present struggle. The Crown in alliance with Democracy baffles every calculation on the balance of power in our mixed form of Government. Aristocracy and Church cannot contend against Queen and people mixed; they must yield in the first instance, when the Crown, unprotected, will meet its fate, and the accustomed round of anarchy and despotism will run its course." And he prays that he may "lie cold before that dreadful day." (_Ibid._, ii. 113, 140, 176, 181, 356.) Free Trade created a similar panic. "Good God!" Croker exclaimed, "what a chaos of anarchy and misery do I foresee in every direction, from so comparatively small a beginning as changing an _average_ duty of 8_s._ into a _fixed_ duty of 8_s._, the fact being that the fixed duty means _no duty at all_; and _no duty at all_ will be the overthrow of the existing social and political system of our country!" (_Ibid._, iii. 13.) And what have become of Mr. Lowe's gloomy vaticinations as to the terrible consequences of the very moderate Reform Bill of 1866, followed as it was by a much more democratic measure?]

A LAWYER'S OBJECTIONS TO HOME RULE.

BY E.L. GODKIN.

Mr. Dicey in his _Case against Home Rule_ does me the honour to refer to an article which I wrote a year ago on "American Home Rule,"[24] expressing in one place "disagreement in the general conclusion to which the article is intended to lead," and in another "inability to follow the inference" which he supposes me to draw "against all attempts to enforce an unpopular law." Now the object of that article, I may be permitted to explain, was twofold. I desired, in the first place, to combat the notion which, it seemed to me, if I might judge from a great many of the speeches and articles on the Irish question, was widely diffused even among thoughtful Englishmen that the manner in which the Irish have expressed their discontent--that is, through outrage and disorder--was indicative of incapacity for self-government, and even imposed upon the Englishmen the duty, in the interest of morality (I think it was the _Spectator_ who took this view), and as a disciplinary measure, of refusing to such a people the privilege of managing their own affairs. I tried to show by several noted examples occurring in this country that prolonged displays of lawlessness, and violence, and even cruelty, such as the anti-rent movement in the State of New York, the Ku-Klux outrages in the South, and the persecution of Miss Prudence Crandall in Connecticut, were not inconsistent with the possession of marked political capacity. I suggested that it was hardly adult politics to take such things into consideration in passing on the expediency of conceding local self-government to a subject community. There was to me something almost childish in the arguments drawn from Irish lawlessness in the discussion of Home Rule, and in the moral importance attached by some Englishmen to the refusal to such wicked men as the Irish of the things they most desire. It is only in kindergartens, I said, that rulers are able to do equal and exact justice, and see that the naughty are brought to grief and the good made comfortable. Statesmen occupy themselves with the more serious business of curing discontent. They concern themselves but little, if at all, with the question whether it might not be manifested by less objectionable methods.

The Irish methods of manifesting it, I endeavoured to show, were not exceptional, and did not prove either inability to make laws or unwillingness to obey them. I illustrated this by examples drawn from the United States. I might, had I had more time and space, have made these examples still more numerous and striking. I might have given very good reasons for believing that, were Ireland a state in the American Union, there probably would not have been any rent paid in the island within the last fifty years, and that the armed resistance of the tenants would have had the open or secret sympathy of the great bulk of the American people. In truth, the importance of Irish crime as a political symptom is grossly exaggerated by English writers. I venture to assert that more murders unconnected with robbery are committed in the State of Kentucky in one year than in Ireland in ten, and the condition of some other Southern and Western States is nearly as bad. All good Americans lament this and are ashamed of it, but it never enters into the heads of even the most lugubrious American moralists that Kentucky or any other State should be disfranchised and remanded to the condition of a Territory, because the offences against the person committed in it are so numerous, and the punishment of them, owing to popular sympathy or apathy, so difficult.

There are a great many Englishmen who think that when they show that Grattan's Parliament was a venal and somewhat disorderly body, which occasionally indulged in mixed metaphor, they have proved the impossibility of giving Ireland a Parliament now. But then, as they are obliged to admit, Walpole's Parliament was very corrupt, and no one would say that for that reason it would have been wise to suspend constitutional government in England in the eighteenth century. It is only through the pernicious habit of thinking of Irishmen as exceptions to all political rules that Grattan's Parliament is considered likely, had it lasted, to have come down to our time unreformed and unimproved.

Those have misunderstood me who suppose that I draw from the success of the anti-rent movement in this State between 1839 and 1846 an inference against "all attempts to enforce an unpopular law." Such was not by any means my object. What I sought to show by the history of this movement was that there was nothing peculiar or inexplicable in the hostility to rent-paying in Ireland. The rights of the New York landlords were as good in law and morals as the rights of the Irish landlords, and their mode of asserting them far superior. Moreover, those who resisted them were not men of a different race, religion, or nationality, and had, as Mr. Dicey says, "none of the excuses that can be urged in extenuation of half-starved tenants." Their mode of setting the law at defiance was exactly similar to that adopted by the Irish, and it was persisted in for a period of ten years, or until they had secured a substantial victory. The history of the anti-rent agitation in New York also illustrates strikingly, as it seems to me, the perspicacity of a remark made, in substance, long ago by Mr. Disraeli, which, in my eyes at least, threw a great deal of light on the Irish problem, namely, that Ireland was suffering from suppressed revolution. As Mr. Dicey says, "The crises called revolutions are the ultimate and desperate cures for the fundamental disorganization of society. The issue of a revolutionary struggle shows what is the true sovereign power in the revolutionized state. So strong is the interest of mankind, at least in any European country, in favour of some sort of settled rule, that civil disturbance will, if left to itself, in general end in the supremacy of some power which by securing the safety at last gains the attachment of the people. The Reign of Terror begets the Empire; even wars of religion at last produce peace, albeit peace may be nothing better than the iron uniformity of despotism. Could Ireland have been left for any lengthened period to herself, some form of rule adapted to the needs of the country would in all probability have been established. Whether Protestants or Catholics would have been the predominant element in the State; whether the landlords would have held their own, or whether the English system of tenure would long ago have made way for one more in conformity with native traditions; whether hostile classes and races would at last have established some _modus vivendi_ favourable to individual freedom, or whether despotism under some of its various forms would have been sanctioned by the acquiescence of its subjects, are matters of uncertain speculation. A conclusion which, though speculative, is far less uncertain, is that Ireland, if left absolutely to herself, would have arrived, like every other country, at some lasting settlement of her difficulties" (p. 87). That is to say, that in Ireland as in New York the attempt to enforce unpopular land laws would have been abandoned, had local self-government existed. For "revolution" is, after all, only a fine name for the failure or refusal of the rulers of a country to persist in executing laws which the bulk of the population find obnoxious. When the popular hostility to the law is strong enough to make its execution impossible, as it was in New York in the rent affair, it is accepted as the respectable solution of a very troublesome problem. When, as in Ireland, it is strong enough to produce turbulence and disorder, but not strong enough to tire out and overcome the authorities, it simply ruins the political manners of the people. If the Irish landlords had had from the beginning to face the tenants single-handed and either hold them down by superior physical force, or come to terms with them as the New York landlords had to do, conditions of peace and good will would have assuredly been discovered long ago. The land question, in other words, would have been adjusted in accordance with "Irish ideas," that is, in some way satisfactory to the tenants. The very memory of the conflict would probably by this time have died out, and the two classes would be living in harmony on the common soil. If in New York, on the other hand, the Van Rensselaers and Livingstons had been able to secure the aid of martial law and of the Federal troops in asserting their claims, and in preventing local opinion having any influence whatever on the settlement of the dispute, there can be no doubt that a large portion of this State would to-day be as poor and as savage, and apparently as little fitted for the serious business of government, as the greater part of Ireland is.

There is, in truth, no reason to doubt that the idea of property in land, thoroughly accepted though it be in the United States, is nevertheless held under the same limitations as in the rest of the world. No matter what the law may say in any country, in no country is the right of the landed proprietor in his acres as absolute as his right in his movables. A man may own as much land as he can purchase, and may assert his ownership in its most absolute form against one, two, or three occupants, but the minute he began to assert it against a large number of occupants, that is, to act as if his rights were such that he had only to buy a whole state or a whole island in order to be able to evict the entire population, he would find in America, as he finds in Ireland, that he cannot have the same title to land as to personal property. He would, for instance, if he tried to oust the people of a whole district or of a village from their homes on any plea of possession, or of a contract, find that he was going too far, and that no matter what the judges might say, or the sheriff might try to do for him, his legal position was worth very little to him. Consequently a large landlord in America, if he were lucky enough to get tenants at all, would be very chary indeed about quarrelling with more than one of them at a time. The tenants would no more submit to wholesale ejectment than the farmers in Missouri would submit some years ago to a tax levy on their property to pay county bonds given in aid of a railroad. The goods of some of them were seized, but a large body of them attended the sale armed with rifles, having previously issued a notice that the place would be very "unhealthy" for outside bidders.

The bearing of this condition of American opinion on the Irish question will be plainer if I remind English readers that the Irish in the United States numbered in 1880 nearly 2,000,000, and that the number of persons of Irish parentage is probably between 4,000,000 and 5,000,000. In short there are, as well as one can judge, more Irish nationalists in the United States than in Ireland. The Irish-Americans are to-day the only large and prosperous Irish community in the world. The children of the Irish born in the United States or brought there in their infancy are just as Irish in their politics as those who have grown up at home. Patrick Ford, for instance, the editor of the _Irish World_, who is such a shape of dread to some Englishmen, came to America in childhood, and has no personal knowledge nor recollection of Irish wrongs. Of the part this large Irish community plays in stimulating agitation--both agrarian and political--at home I need not speak; Englishmen are very familiar with it, and are very indignant over it. The Irish-Americans not only send over a great deal of American money to their friends at home, but they send over American ideas, and foremost among them American hostility to large landowners, and American belief in Home Rule. Now, to me, one of the most curious things in the English state of mind about the Irish problem is the apparent expectation that this Irish-American interference is transient, and will probably soon die out. It is quite true, as Englishmen are constantly told, that "the best Americans," that is, the literary people and the commercial magnates, whom travelling Englishmen see on the Atlantic coast, dislike the Irish anti-English agitation. But it is also true that the disapproval of the "best Americans" is not of the smallest practical consequence, particularly as it is largely due to complete indifference to, and ignorance of, the whole subject. There are probably not a dozen of them who would venture to express their disapproval publicly. The mass of the population, particularly in the West, sympathize, though half laughingly, with the efforts of the transplanted Irish to "twist the British lion's tail," and all the politicians either sympathize with them, or pretend to do so. I am not now expressing any opinion as to whether this state of things is good or bad. What I wish to point out is that this Irish-American influence on Irish affairs is very powerful, and may, for all practical purposes, be considered permanent, and must be taken into account as a constant element in the Irish problem. I will indeed venture on the assertion that it is the appearance of the Irish-Americans on the scene which has given the Irish question its present seriousness. The attempts of the Irish at physical resistance to English authority have been steadily diminishing in gravity during the present century--witness the descent from the rebellion of 1798 to Smith O'Brien's rebellion and the Fenian rising of 1867. On the other hand the power of the Irish to act as a disturbing agency in English politics has greatly increased, and the reason is that the stream of Irish discontent is fed by thousands of rills from the United States. Every emigrant's letter, every Irish-American newspaper, every returned emigrant with money in his pocket and a good coat on his back, helps to swell it, and there is not the slightest sign, that I can see, of its drying up.

Where Mr. Dicey is most formidable to the Home Rulers, as it seems to me, is in his chapter on "Home Rule as Federalism," which is the form in which the Irish ask for it. He attacks this in two ways. One is by maintaining that the necessary conditions for a federal union between Great Britain and Ireland do not exist. This disposes at one blow of all the experience derived from the working of the foreign federations, on which the advocates of Home Rule have relied a good deal. The other is what I may call predictions that the federation even if set up would not work. Either the state of facts on which all other federations have been built does not exist in Ireland, or if it now exists, will not, owing to the peculiarities of Irish character, continue to exist. In other words, the federation will either fail at the outset, or fail in the long run. No one can admire more than I do the force and ingenuity and wealth of illustration with which Mr. Dicey supports this thesis. But unfortunately the arguments by which he assails Irish federalism might be, or might have been, used against all federations whatever. They might have been used, as I shall try to show, against the most successful of them all, the Government of the United States. I was reminded, while reading Mr. Dicey's account of the impossibility of an Anglo-Irish federation, of Mr. Madison's rehearsal in the _Federalist_ (No. 38) of the objections made to the Federal Constitution after the Convention had submitted it to the States. These objections covered every feature in it but one; and that, the mode of electing the President, curiously enough, is the only one which can be said to have utterly failed. A more impressive example of the danger of _à priori_ attacks on any political arrangement, history does not contain. Mr. Madison says: "This one tells me that the proposed Constitution ought to be rejected, because it is not a confederation of the states, but a government over individuals. Another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory not of the personal rights of individuals, but of the rights reserved to the states in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election. An objector in a large state exclaims loudly against the unreasonable equality of representation in the Senate. An objector in a small state is equally loud against the dangerous inequality in the House of Representatives. From one quarter we are alarmed with the amazing expense, from the number of persons who are to administer the new government. From another quarter, and sometimes from the same quarter, on another occasion the cry is that the Congress will be but the shadow of a representation, and that the government would be far less objectionable if the number and the expense were doubled. A patriot in a state that does not import or export discerns insuperable objections against the power of direct taxation. The patriotic adversary in a state of great exports and imports is not less dissatisfied that the whole burden of taxes may be thrown on consumption. This politician discovers in the constitution a direct and irresistible tendency to monarchy. That is equally sure it will end in aristocracy. Another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them. Whilst a fourth is not wanting, who with no less confidence affirms that the Constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against the opposite propensities. With another class of adversaries to the Constitution, the language is, that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favour of liberty. Whilst this objection circulates in vague and general expressions, there are not a few who lend their sanction to it. Let each one come forward with his particular explanation, and scarcely any two are exactly agreed on the subject. In the eyes of one the junction of the Senate with the President in the responsible function of appointing to offices, instead of vesting this power in the executive alone, is the vicious part of the organization. To another the exclusion of the House of Representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. With a third the admission of the President into any share of a power which must ever be a dangerous engine in the hands of the executive magistrate is an unpardonable violation of the maxims of republican jealousy. No part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the Senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. We concur fully, reply others, in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error; our principal dislike to the organization arises from the extensive powers already lodged in that department. Even among the zealous patrons of a council of state, the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted."

Mr. Madison's challenge to the opponents of the American Constitution to agree on some plan of their own, and his humorous suggestion that if the American people had to wait for some such agreement to be reached they would go for a long time without a government, are curiously applicable to the opponents of Irish Home Rule. They are very fertile in reasons for thinking that neither the Gladstone plan nor any other plan can succeed, but no two of them, so far as I know, have yet hit upon any other mode of pacifying Ireland, except the use of force for a certain period to maintain order, and oddly enough, even when they agree on this remedy, they are apt to disagree about the length of time during which it should be tried.

Mr. Dicey, in conceding the success of the American Constitution, seems to me unmindful, if I may use the expression, of the judgments he would probably have passed on it had it been submitted to him at the outset were he in the frame of mind to which a prolonged study of the Irish problem has now brought him. The Supreme Court, for instance, which he now recognizes as an essential feature of the Federal Constitution, and the absence of which in the Gladstonian arrangement he treats as a fatal defect, would have undoubtedly appeared to him a preposterous contrivance. It would have seemed to him impossible that a legislature like Congress, with the traditions of parliamentary omnipotence still strong in the minds of the members, would ever submit to have its acts nullified by a board composed of half a dozen elderly lawyers. Nor would he have treated as any more reasonable the expectation that the State tribunals, which had existed in each colony from its foundation, and had earned the respect and confidence of the people, would quietly submit to have their jurisdiction curtailed, their decisions overruled, causes torn from their calendar, and prisoners taken out of their custody by new courts of semi-foreign origin, which the State neither paid nor controlled. He would, too, very probably have been most incredulous about the prospect of the growth of loyalty on the part of New-Yorkers and Massachusetts men to a new-fangled government, which was to make itself only slightly felt in their daily lives, and was to sit a fortnight away in an improvised village in the midst of a Virginian forest.

He would, too, have ridiculed the notion that State legislatures would refrain, in obedience to the Constitution, from passing any law which local sentiment strongly favoured or local convenience plainly demanded, such as a law impairing the obligation of obnoxious contracts, or levying duties on imports or exports. The possibility that the State militia could ever be got to obey federal officers, or form an efficient part of a federal army, he would have scouted. On the feebleness of the front which federation would present to a foreign enemy he would have dwelt with emphasis, and would have pointed with confidence to the probability that in the event of a war some of the states would make terms with him or secretly favour his designs. National allegiance and local allegiance would divide and perplex the feelings of loyal citizens. Unless the national sentiment predominated--and it could not predominate without having had time to grow--the federation would go to pieces at any of those crises when the interests or wishes of any of the states conflicted with the interests or wishes of the Union. That the national sentiment could grow at all rapidly, considering the maturity of the communities which composed the Union and the differences of origin, creed, and manners which separated them, no calm observer of human nature would believe for one moment.

The American Constitution is flecked throughout with those flaws which a lawyer delights to discover and point out, and which the framers of a federal contract can only excuse by maintaining that they are inevitable. It is true that Mr. Dicey does not even now acknowledge the success of the American Constitution to be complete. He points out that if the "example either of America or of Switzerland is to teach us anything worth knowing, the history of these countries must be read as a whole. It will then be seen that the two most successful confederacies in the world have been kept together only by the decisive triumph through force of arms of the central power over real or alleged State rights" (p. 192).

It is odd that such objectors do not see that the decisive triumph of the central power in the late civil war in America was, in reality, a striking proof of the success of the federation. The armies which General Grant commanded, and the enormous resources in money and devotion from which he was able to draw, were the product of the Federal Union and of nothing else. One of the greatest arguments its founders used in its favour was that if once established it would supply overwhelming force for the suppression of any attempt to break it up. They did not aim at setting up a government which neither foreign malice nor domestic treason, would ever assail, for they knew that this was something beyond the reach of human endeavour. They tried to set up one which, if attacked either from within or from without, would make a successful resistance, and we now know that they accomplished their object. Somewhat the same answer may be made to the objection, which is supposed to have fatal applicability to the case of Ireland, that among the "special faults of federalism" is that it does not provide "sufficient protection of the legal rights of unpopular minorities," and that "the moral of it all is that the [American] Federal Government is not able to protect the rights of individuals against strong local sentiment" (p. 194 of Mr. Dicey's book). He says, moreover, if I understand the argument rightly, that it was bound to protect free speech in the States because "there is not and never was a word in the Articles of the Constitution forbidding American citizens to criticize the institutions of the State." It would seem from this as if Mr. Dicey were under the impression that in America the citizen of a State has a right to do in his State whatever he is not forbidden to do by the Federal Constitution, and in doing it has a right to federal protection. But the Federal Government can only do what the Constitution expressly authorizes it to do, and the Constitution does not authorize it to protect a citizen in criticizing the institutions of his own State. This arrangement, too, is just as good federalism as the committal of free speech to federal guardianship would have been. The goodness or badness of the federal system is in no way involved in the matter.

The question to what extent a minority shall rely on the federation for protection, and to what extent on its own State, is a matter settled by the contract which has created the federation. The settlement of this is, in fact, the great object of a Constitution. Until it is settled somehow, either by writing or by understanding, there is, and can be, no federation. If I, as a citizen of the State of New York, could call on the United States Government to protect me under all circumstances and against all wrongs, it would show that I was not living under a federation at all, but under a centralized republic. The reason why I have to rely on the United States for protection against some things and not against others is that it was so stipulated when the State of New York entered the Union. There is nothing in the nature of the federal system to prevent the United States Government from protecting my freedom of speech. Nor is there anything in the federal system which forbids its protecting me against the establishment of a State Church, which, as a matter of fact, it does not do. Nor is there anything in the federal system compelling the Government to protect me against the establishment of an order of nobility, which, as a matter of fact, it does do. The reason why it does not do one of these things and does the other is simply and solely that it was so stipulated, after much discussion, in the contract. Most thinking men are to-day of opinion that the United States ought to have exclusive jurisdiction of marriage, so that the law of marriage might be uniform in all parts of the Union. The reason why they do not possess such jurisdiction is not that Congress is not fully competent to pass such a law or the federal courts to execute it, but that no such jurisdiction is conferred by the Constitution. In fact it seems to me just as reasonable to cite the ease of divorce in various States of the Union as a defect in the federal system, as to cite the oppression of local minorities in matters not placed under federal authority by the organic law.

If one may judge from a great deal of writing on American matters which one sees in English journals and the demands for federal interference in America in State affairs which they constantly make, the greatest difficulty Irish Home Rule has to contend with is the difficulty which men bred in a united monarchy and under an omnipotent Parliament experience in grasping what I may call the federal idea. The influence of association on their minds is so strong that they can hardly conceive of a central power, worthy of the name of a government, standing by and witnessing disorders or failures of justice in any place within its borders, without stepping in to set matters right, no matter what the Constitution may say. They remind me often of an old verger in Westminster Abbey during the American civil war who told me that "he always knew a government without a head couldn't last." Permanence and peace were in his mind inseparably linked with kingship. That even Mr. Dicey has not been able to escape this influence appears frequently in his discussions of federalism. He, of course, thoroughly understands the federal system as a jurist, but when he comes to discuss it as a politician he has evidently some difficulty in seeing how a government with a power to enforce _any_ commands can be restrained by contract from enforcing _all_ commands which may seem to be expedient or salutary. Consequently the cool way in which the Federal Government here looks on at local disorders seems to him a sign, not of the fidelity of the President and Congress to the federal pact, but of some inherent weakness in the federal system.

The true way to judge the federal system, however, either in the United States or elsewhere, is by observing the manner in which it has performed the duties assigned to it by the Constitution. If the Government at Washington performs these faithfully, its failure to prevent lawlessness in New York or the oppression of minorities in Connecticut is of no more consequence than its failure to put down brigandage in Macedonia. Possibly it would have been better to saddle it with greater responsibility for local peace; but the fact is that the framers of the Constitution decided not to do so. They did not mean to set up a government which would see that every man living under it got his due. They could not have got the States to accept such a government. They meant to set up a government which should represent the nation worthily in all its relations with foreigners, which should carry on war effectively, protect life and property on the high seas, furnish a proper currency, put down all resistance to its lawful authority, and secure each State against domestic violence on the demand of its Legislature.

There is no common form for federal contracts, and no rules describing what such a contract must contain in order that the Government may be federal and not unitarian. There is no hard and fast line which must, under the federal system, divide the jurisdiction of the central Government from the jurisdiction of each State Government. The way in which the power is divided between the two must necessarily depend on the traditions, manners, aims, and needs of the people of the various localities. The federal system is not a system manufactured on a regulation model, which can be sent over the world like iron huts or steam launches, in detached pieces, to be put together when the scene of operation is reached. Therefore I am unable to see the force of the argument that, as the conditions under which all existing federations were established differ in some respects from those under which the proposed federal union between England and Ireland would have to be established, therefore the success of these confederations, such as it is, gives them no value as precedents. A system which might have worked very well for the New England States would not have worked well for a combination which included also the middle and southern States. And the framers of the American Constitution were not so simple-minded as to inquire, either before beginning their labours or before ending them--as Mr. Dicey would apparently have the English and Irish do--whether this or that style of constitution was "the correct thing" in federalism. Assuming that the people desired to form a nation as regarded the world outside, they addressed themselves to the task of discovering how much power the various States were willing to surrender for this purpose. That was ascertained, as far as it could be ascertained, by assembling their delegates in convention, and discussing the wishes and fears and suggestions of the different localities in a friendly and conciliatory spirit. They had no precedents to guide them. There had not existed a federal government, either in ancient or modern times, whose working afforded an example by which the imagination or the understanding of the American people was likely to be affected in the smallest degree. They, therefore, had to strike out an entirely new path for themselves, and they ended by producing an absolutely new kind of federation, which was half Unitarian, that is, in some respects a union of states, and in others a centralized government; and it was provided for a Territory one end of which was more than a month's distance from the other.

It is not in its details, therefore, but in the manner of its construction, that the American Constitution furnishes anything in the way of guidance or suggestion to those who are now engaged in trying to find a _modus vivendi_ between England and Ireland. The same thing may be said of the Swiss Constitution and of the Austro-Hungarian Constitution. Both of them contain many anomalies--that is, things that are not set down in the books as among the essentials of federalism. But both are adapted to the special wants of the people who live under them, and were framed in reference to those wants.

The Austro-Hungarian Delegations are another exception to the rule. These Delegations undoubtedly control the ministry of the Empire, or at all events do in practice displace it by their votes. It is made formally responsible to them by the Constitution. All that Mr. Dicey can say to this is that "the real responsibility of the Ministry to the Delegations admits of a good deal of doubt," and that, at all events, it is not like the responsibility of Mr. Gladstone or Lord Salisbury to the British Parliament. This may be true, but the more mysterious or peculiar it is the better it illustrates the danger of speaking of any particular piece of machinery or of any particular division of power as an essential feature of a federal constitution.