Home Rulers would, moreover, soon discover a reason for resistance to the Federal Court or the Federal Government, which from their point of view would be a perfectly valid reason. The Federal Government would, in effect, be the Government of England; the Federal Court would in effect be a Court appointed by the English Government. In a Confederacy where there are many States, the Government of the Federation cannot be identified with even the most powerful of the States; it were ridiculous to assert that the Government at Washington is only the Government of New York under another name. Where a Confederacy consists in reality, if not in name, of two States only, of which the one has at least four or five times the power of the other, the authority of the Confederacy means the authority of the powerful State. "Irish Federalism," if in reality established, would soon generate a demand from Ireland, not unreasonable in itself, under the circumstances of the case, that the whole British Empire should be turned into a Confederacy, under the guidance of a general Congress. Thus alone could Ireland become a real State, the member of a genuine Confederation. Hence arises a new danger. Apply Federalism to Ireland and you immediately provoke demands for autonomy in other parts of the United Kingdom, and for constitutional changes in other parts of the British Empire. Federalism, which in other lands has been a step towards Union, would, it is likely enough, be in our case the first stage towards a dissolution of the United Kingdom into separate States, and hence towards the breaking-up of the British Empire. This is no future or imaginary peril; the mere proposal of Home Rule, under something like a Federal form, has already made it an immediate and pressing danger. Sir Gavan Duffy, by far the ablest among the Irish advocates of Home Rule, predicts that before ten years have elapsed there will be a Federation of the Empire.[37] A majority of Scotch electors support the policy of Mr. Gladstone, and forthwith a most respectable Scotch periodical puts forward a plan of Home Rule for Scotland. Canon MacColl already suggests that we should make tentatively an experiment capable of development into a permanent system on the lines of the American Constitution, and make it not only in Ireland, but also perhaps gradually in Scotland, and even in Wales.[38] It is unnecessary to discuss Canon MacColl's argument at length. When he tells his readers that "the Constitution which Mr. Gladstone desires to create in Ireland is modelled on the system existing in the great colonies of the Empire; there are certain variations and some novelties in the Irish scheme, but these are the lines on which it is drawn;" he ventures a statement on which, as a lawyer, I need make but one comment. It is a statement as erroneous and misleading as can be any assertion made in good faith by a writer who must be presumed to have studied the measure of which he is speaking. When the same authority asks why should a system which imparts strength to America, to Austria, and to Germany, disintegrate and ruin the British Empire, he raises an inquiry which does not admit of an answer, since it assumes the identity of things which are radically different. The system which may or may not impart strength to Austria is no more the system which imparts strength to America, than the system which imparts strength to England is the same as the system which does or does not impart strength to Russia. To lump under one head every policy which can by any straining of the terms be brought under the heads of "Federalism" or "Home Rule," is neither more nor less absurd than to classify together every Constitution which can be called a monarchy.

But while I write these pages a more significant indication of this danger has appeared. Mr. Gladstone's own method of interpreting his own past utterances makes it the duty of his critics to weigh well not only his direct statements, but his suggestions; and there is, I think, no possible unfairness in construing the language of his pamphlet on the Irish Question as an intimation that he already entertains, if he does not favour, the idea of applying the Federal principle to Scotland and to Wales.[39] Federalism is the solvent which, if applied to one part of the United Kingdom, will undo the work not only of Pitt, but of Somers, of Henry VIII., and of Edward I. Meanwhile, the one prediction which may be made with absolute confidence is that Federalism would not generate that goodwill between England and Ireland which, could it be produced, would, in my judgment at least, be an adequate compensation even for the evils and the inconveniences of the Federal system.

To the view of Federalism here maintained there exist one or two objections, so obvious that without some reference to them my argument would lack completeness.

Federalism, it is urged, has succeeded in Switzerland and in America; it may, therefore, succeed in the United Kingdom.

If the general drift of my argument does not sufficiently answer this objection, two special replies lie near at hand. In the case both of Switzerland and of America, a Federal Constitution supplied the means by which States, conscious of a common national feeling, have approached to political unity. It were a rash inference from this fact, that when two parts of one nation are found (as must be asserted by any Home Ruler) not to be animated by a common feeling of nationality, a Federal Constitution is the proper means by which to keep them in union. The more natural deduction from the general history of Federalism is, that a confederation is an imperfect political union, transitory in its nature, and tending either to pass into one really united State, or to break up into the different States which compose the Federation.

If, again, the example either of America or of Switzerland is to teach us anything worth knowing, the history of those 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. General Dufour in Switzerland, General Grant and General Sherman in America, were the true interpreters and preservers of the constitutional pact. This undoubted fact hardly suits the theories of Irish Federalists.

Nor ought we to stop at this point. Citizens of the Union filled with justifiable pride at the success of the American Constitution assume that a Federal Government is in itself absolutely the best form of government, that in any country where it can be adopted it must be an improvement on the existing institutions of the land, and that as compared with the constitutional monarchy of England federalism exhibits no special faults from which English constitutionalism is free. This assumption is perfectly natural; it resembles that absolute faith in the virtues of the British Constitution which reached its culminating point when Burke's intimate friend and pupil, Gilbert Elliott, himself no mean statesman, went to Corsica to establish a miniature copy of English Parliamentary institutions. But in each case a faith which is natural will also be pronounced by any candid judge to be unfounded. Federalism has in its very essence, and even as it exists in America, at least two special faults. It distracts the allegiance of citizens, and what is even more to the present point, it does not provide sufficient protection for the legal rights of unpopular minorities. There is not, and never was, a word in the Articles of the Constitution forbidding American citizens to criticise the institutions of the State. An American Abolitionist had as much right to denounce slavery at Boston, or for that matter at Charlestown, as an English Abolitionist had to denounce slavery in London or Liverpool. It were ridiculous to maintain that the right was one which either Lloyd Garrison or his disciples were able to exercise. Mr. Godkin[40] has repeated with perfect fairness the tale of the persecutions suffered by Prudence Crandall in Connecticut because she chose in exercise of her legal and moral rights to educate young women of colour. Mr. Godkin apparently draws, as I have already pointed out, from the fact an inference—which I confess myself not well able to follow—against all attempts to enforce an unpopular law. The more natural conclusion is that the Federal Government was not able to protect the rights of individuals against strong local sentiment. This moral at any rate has an obvious application to any scheme of Federalism for Ireland.

The experience of Canada, again, is adduced to prove that a Federal constitution is compatible with loyalty to the British Crown. Why should an arrangement which produces peace, prosperity, and loyalty across the Atlantic not be applied to Ireland?

The answer is, that the case of Canada is as regards Federalism irrelevant. Canada is not part of a British Federation. The Dominion as a whole is simply a colony, standing essentially in the same relation to England as Victoria or New South Wales. The laws of the Parliament that meets at Ottawa need the Royal sanction, or, in other words, may be vetoed, or rather not approved, by the English Ministry of the day. The Act itself on which the existence of the Canadian constitution depends is an Act of the British Parliament, and cannot be modified by any other authority. The British Parliament is supreme in Canada as throughout the British dominions; and Canada sends no representatives to the British Parliament. The provinces, no doubt, which compose the Dominion are under an Act of Parliament a Federation; but the dangers and difficulties of Federalism are to a great extent avoided by the supremacy of the British Crown. These difficulties, however, do arise. If any one will study the "Letellier case," he will soon perceive that Canada has exhibited the germ of the conflict between the central authority of the Dominion and the "State right" of the provinces; he will also perceive that the conflict was determined by a reference to the English Ministry, who in effect gave judgment in favour of the Dominion. The example of Canada suggests, if anything, that Irish difficulties might be solved by turning Ireland into a colony without representatives in the Imperial Parliament.

We have now the materials for comparing, as regards the interests of England, the effects of Irish independence with the effects of Home Rule as Federalism. The case as between the two stands thus:—

The national independence of Ireland entails on England three great evils—the deliberate surrender of the main object at which English statesmanship has aimed for centuries, together with all the moral loss and disgrace which such surrender entails; the loss of considerable material resources in money, and still more in men; the incalculable evil of the existence in the neighbourhood of Great Britain of a new, a foreign, and, possibly, a hostile State. For these evils there are, indeed, to be found two real though inadequate compensations—namely, the probability that loss of territory might restore to England a unity and consistency of action equivalent to an increase of strength, and the possibility that separation might be the first step towards gaining the goodwill, and ultimately the alliance of Ireland. It is, however, hardly worth while to calculate what might be the extent of the possible deductions from evils which no English statesman would knowingly bring on Great Britain. By men of all parties and of all views it is practically conceded that England neither will nor can, except under compulsion, assent to Irish independence.

Federalism, on the other hand, has the appearance of a compromise. It does not avowedly break up the unity of Great Britain and Ireland; it does not wholly deprive England of Irish resources; it does not, directly at least, lay Great Britain open to foreign attack. Federalism has, however, special evils of its own. It revolutionizes the whole Constitution of the United Kingdom; by undermining the sovereignty of Parliament, it deprives English institutions of their elasticity, their strength, and their life; it weakens the Executive at home, and lessens the power of the country to resist foreign attack. The revolution which works these changes holds out no hope of reconciliation with Ireland. An attempt, in short, to impose on England and Scotland a constitution which they do not want, and which is quite unsuited to the historical traditions and to the genius of Great Britain, offers to Ireland a constitution which Ireland is certain to dislike, which has none of the real or imaginary charms of independence, and ensures none of the solid benefits to be hoped for from a genuine union with England.

If this be the true state of the case, thus much at least is argumentatively made out: Federalism offers to England not a constitutional compromise, but a fundamental revolution, and this revolution, however moderate in its form or in the intention of its advocates, does not offer that reasonable chance of reconciliation with the mass of the Irish people which might be a compensation for a repeal of the Union, and is as much opposed to the interests of Great Britain as would be the national independence of Ireland. This conclusion is a purely negative one, but it is, as far as English statesmen are concerned, the reductio ad impossibile of the case in favour of Home Rule in so far as Home Rule takes the form of Federalism.

* * * * *

II. Home Rule as Colonial Independence.—The modern Colonial policy of England has, or is thought to have, achieved two results which impress popular imagination:—it has relieved English statesmanship from an unbearable burden of worry and anxiety; it has (as most people believe) changed Colonial unfriendliness or discontent into enthusiastic or ostentatious loyalty. Some politicians, therefore, who are anxious to terminate the secular feud between England and Ireland, and to free Parliament from the presence, and therefore from the obstructiveness, of the Home Rulers, readily assume that the formula of "Colonial independence" contains the solution of the problem how to satisfy at once the demand of Ireland for independence and the resolution of Great Britain to maintain the integrity of the Empire. This assumption rests on no sure foundation, but derives such plausibility as it possesses from the gross ignorance of the public as to the principles and habits which govern the English State system. A mere account of the constitutional relations existing between England and a self-governed colony is almost equivalent to a suggestion of the reasons which forbid the hope that the true answer to the agitation for Home Rule is to be found in conceding to Ireland institutions like those which satisfy the inhabitants of New South Wales or Victoria. To render such a statement at once brief and intelligible is no easy matter, for, among all the political arrangements devised by the ingenuity of statesmen, none can be found more singular, more complicated, or more anomalous than the position of combined independence and subordination occupied by the large number of self-governing colonies which are scattered throughout the British Empire. Victoria, which may be taken as a type of the whole class, is, for most purposes of local and internal administration, and for some purposes which go beyond the sphere usually assigned to local government, an independent, self-governing community. Victoria is at the same time, for all purposes in theory and for many purposes in fact, a merely subordinate portion of the British Empire, and as truly subject to the British Parliament as is Middlesex or the Isle of Wight.

Let us try in the first place to realize—for this is the essential matter as regards my present argument—the full extent of Victorian independence.

Victoria enjoys a Constitution after the British model. The Governor, the two Houses, the Ministry, reproduce the well-known features of our limited monarchy. The Victorian Parliament further possesses in Victoria that character of sovereignty which the British Parliament possesses throughout the dominions of the Crown, and is (subject, of course, to the authority of the British Parliament itself) as supreme at Melbourne as are Queen, Lords, and Commons at Westminster. It makes and unmakes Cabinets; it controls the executive action of the Ministry; who, in their turn, are the authorized advisers of that sham constitutional monarch, the Colonial Governor. The Parliament, moreover, recognizes no restrictions on its legislative powers; it is not, as is the Congress of the United States, restrained within a very limited sphere of action; it is not, as are both the Congress and the State Legislatures of the Union, bound hand and foot by the articles of a rigid Constitution; it is not compelled to respect any immutable maxims of legislation. Hence the Victorian Parliament—in this resembling its creator, the British Parliament—exercises an amount of legislative freedom unknown to most foreign representative assemblies. It can, and does, legislate on education, on ecclesiastical topics, on the tenure of land, on finance, on every subject, in short, which can interest the Colony. It provides for the raising of Colonial forces; it may levy taxes or impose duties for the support of the Victorian administration, or for the protection of Colonial manufactures. It is not forbidden to tax goods imported from other parts of the Empire; it is not bound to abstain from passing ex post facto laws, to respect the sanctity of contracts, or to pay any regard to the commercial interests of the United Kingdom. It may alter the Constitution on which its own powers depend, and, for example, extend the franchise or remodel the Upper House. To understand the full extent of the authority possessed by the Victorian Parliament and the Victorian Ministry—which is, in fact, appointed by the Parliament—it should be noted that, while every branch of the administration (the courts, the police, and the Colonial forces) is, as in England, more or less directly under the influence or the control of the Cabinet, the Colonies have, since 1862, provided for their own defence, and, except in time of war, or peril of war, are not garrisoned by British troops.[41] It is, therefore, no practical exaggeration to assert that Victoria is governed by its own Executive, which is appointed by its own Parliament, and which maintains order by means of the Victorian police, supported, in case of need, by Victorian soldiers. An intelligent foreigner, therefore, might reside for years in Melbourne, and conceive that the supremacy of the British Government was little more than nominal. In this he would be mistaken. But should he assert that, as to all merely Colonial matters, Victoria was in practice a self-governed and independent country, his language would not be accurate, yet his assertion would not go very wide of the truth.

The local independence, however, of an English colony is hardly more noteworthy than are the devices by which a colony is retained in its place as a subordinate portion of the British Empire, and anyone who would understand the English Colonial system must pay hardly less attention to the subordination than to the independence of a country like Victoria.

The foundation of the whole scheme is the admission of the complete and unquestioned supremacy of the British Parliament throughout every portion of the royal dominions. No Colonial statesman, judge, or lawyer ever dreams of denying that Crown, Lords, and Commons can legislate for Victoria, and that a statute of the Imperial Parliament overrides every law or custom repugnant thereto, by whomsoever enacted, in every part of the Crown dominions. The right, moreover, of Imperial legislation has not fallen into disuse. Mr. Tarring[42] enumerates from sixty to seventy Imperial statutes, extending from 7 Geo. III. c. 50 to 44 & 45 Vict. c. 69, which apply to the Colonies generally, and to this list, which might now be lengthened, must be added a large number of statutes applying to particular colonies. The sovereignty of Parliament, moreover, is formally recorded in the Colonial Laws Act, 1865 (28 & 29 Vict. cap. 63), which itself may well be termed the charter of Colonial legislative authority. This essential dogma of parliamentary sovereignty, moreover, is not proclaimed as a merely abstract principle—it is enforced by two different methods. Every court, in the first place, as well in Victoria as elsewhere throughout the British dominions, is bound to hold void, and in fact does hold void, enactments which contravene an Imperial statute, and from Colonial courts there is an appeal to the Privy Council. The Colonial Governor, in the second place, though from one point of view he is a constitutional monarch acting under the advice given him by his Ministers, bears also another and a different character. He is an Imperial official appointed by the Crown—that is, by the English Cabinet, which represents the wishes of the Imperial Parliament—and he is, as such representative of the Imperial power, bound if possible to avert the passing of any Bill, and when he cannot avert the passing, then to veto any Act of the Colonial Legislature, which is disapproved of by the Home Government as opposed either to Imperial law or to Imperial policy. Thus, a Victorian Act, even when sanctioned by the Governor, must pass through another stage before it finally becomes law. It must receive the assent of the Crown, or, in other words, the assent of the English Secretary of State for the Colonies, and unless this assent be either actually or constructively given it does not come into force.[43] The matter to be carefully noted is that the Crown, or in other words the English Ministry, which represents the House of Commons, has, as far as law goes, complete power of controlling the legislation even of colonies like Victoria. This power is both positive and negative. If the Victorian Parliament fails to pass some enactment necessary in the opinion of the British Parliament for the safety of the Empire, then the Parliament at Westminster can pass an Act for Victoria supplying the needful provisions. If on the other hand the Victorian Legislature passes a bill, (e.g. expelling Chinese from the Colony,) which the Home Government representing the British Parliament deems opposed to Imperial interests, then the Government can either direct the Governor to refuse his assent to the law, or cause the Crown to disallow it, and thus in any case make it void. When we add to all this that there are many occasions, which we can here only allude to, on which a Colonial Governor can, and does, act so as to hinder courses of action which conflict with English interests or policy, it becomes clear enough that, as far as constitutional arrangements can secure the reality of sovereignty, the Imperial Parliament maintains its supremacy throughout the length and breadth of the British Empire. It is of course perfectly true that Parliament having once given representative institutions to a colony, does not dream of habitually overriding or thwarting Colonial legislation. But it were a gross error to suppose that Colonial recognition of British sovereignty is a mere form. It is in the main cheerfully acquiesced in by the people of Victoria, because they gain considerable prestige and no small material advantage from forming part of the Empire. They have no traditional hostility with the mother country; they have every reason to deprecate separation, and—a matter of equal consequence—they believe that if they wished for independence it would not be refused them. England stands, in short, as regards Victoria, in a position of singular advantage. She could suppress local riot, or cause it to be suppressed, and she would not try to oppose a national demand for separation. Hence a complicated political arrangement is kept in tolerable working order by a series of understandings and of mutual concessions. If either England or Victoria were not willing to give and take, the connection between England and the Colony could not last a month. The policy, in short, of Colonial independence is, like most of our constitutional arrangements, based on the assumption that the parties to it are willing to act towards one another in a spirit of compromise and good-will, and though at the present moment the pride of England in her Colonial empire, and the appreciation on the part of our colonies of the benefits, moral and material, of the supremacy of Great Britain, keep our scheme of Colonial government in working order, it is well to realize that this system is not so invariably successful as might be inferred from the optimism which naturally colours official utterances. The names of Sir Charles Darling and Sir George Bowen recall transactions which show that a community as loyal as Victoria may adopt a course of policy which meets with the disapproval of English statesmen. The recent and deliberate refusal of the citizens of Melbourne to endure the landing on their shores of informers whose evidence had procured the punishment of an outrageous crime, combined with the fact that the populace of Melbourne were abetted in a gross, indubitable, patent breach of law by Colonial Ministers who were after all, technically speaking, servants of the Crown, gives rise to serious reflection, and suggests that, even under favourable circumstances, Colonial independence is hardly consistent with that enforcement throughout the Crown's dominions of due respect for law which is the main justification for the existence of the British Empire.[44] A student, moreover, who turns his eyes towards dependencies less favourably situated than Victoria soon perceives how great may at any moment become the difficulty of working an artificial and complicated system of double sovereignty. In Jamaica the hostility of the whites and blacks led to riot on the part of the blacks, followed by lawless suppression of riot on the part of the Governor, who represented the feelings of the whites, and the restoration of peace and order ultimately entailed the abolition of representative government. At the Cape the pressure of war at once exposed the weak part of the constitutional machine. The pretensions of the Cape Ministry to snatch from the hands of the Governor the control of the armed forces met with successful resistance; but the question then raised as to the proper relation between the Colonial Ministry and the army, though for a time evaded, is certain sooner or later to re-appear, and will not always admit of an easy or peaceable answer.[45]

Any reader interested in my argument should supplement this brief statement of the relation actually existing between England and her self-governing colonies by a perusal of Mr. Todd's most instructive 'Parliamentary Government in the British Colonies.' But the statement, brief and colourless though it be, is sufficient for its purpose; it shows that the proposal to give to Ireland the institutions of a colony is open to two fatal objections.

1st.—The concession to Ireland of Colonial independence would entail upon England probable peril and certain disgrace.

The peril is obvious. An Irish Cabinet armed with the authority possessed by a Victorian Ministry would at once provide for the self-defence of Ireland, and an Irish army, obeying an Irish Executive and commanded by Irish officers, would be none the less formidable because it might in name be identified with an armed police, or, like the troops raised at the Cape or in Victoria, enjoy the ominous title of Volunteers. If the Colonial precedent were strictly carried out, British troops ought, from the time Ireland obtained an independent Parliament, to be withdrawn from the country. The acknowledged danger of foreign invasion, and the unavowed probability of Irish insurrection, would make the retirement of the English army impossible. But the presence of British forces—and forces, be it remarked, intended in reality as a check on the action of the local Government—would of itself place Ireland in a position utterly unlike the situation of Victoria, and would also involve both the Imperial and the local Government in endless difficulties and controversies. If any one doubts this, let him read the correspondence between Mr. Molteno[46] and Sir Bartle Frere, and substitute for the Premier of the Cape Colony the name of Mr. Parnell, and for Sir Bartle Frere the name of any Lord-Lieutenant who might be unfortunate enough to hold office in Ireland after Mr. Parnell became Premier of an Irish Cabinet. Suppose, however, that by some miracle of management or good luck the Irish and English forces acted well together, and that the satisfaction given by a state of things approaching to independence prevented for the moment all attempts at separation, England might escape peril, but she would assuredly not avoid deserved disgrace. An Irish Parliament, returned in the main by the very men who support the National League, would assuredly pass laws which every man in England, and many men throughout Ireland, would hold to be unjust, and which, whether in themselves unjust or not, would certainly set aside Imperial legislation, which England is bound by every consideration of honour and justice to uphold. There is no need to demonstrate here what has been demonstrated by one writer after another, and, indeed, hardly needs proof, that at the present day an Irish Parliament would certainly deprive Irish landlords, and possibly deprive Irish Protestants, of rights which the Imperial Parliament would never take away, and which the Imperial Government is absolutely bound to protect.[47] If the English Government were to be base enough to acquiesce in legislation which the Imperial Parliament would never itself have countenanced, then England would be dishonoured; if Bill after Bill passed by the Irish Legislature were prevented from becoming law by veto after veto, then English honour might be saved, but the self-government of Ireland would be at an end, nor would England gain much in credit. The English Ministry can, as long as the connection with a colony endures, arrest Colonial legislation. But the Home Government cannot for any effective purpose interfere with the administrative action of a Colonial Executive. Given courts, an army, and a police controlled by the leaders of the Land League, and it is easy to see how rents might be abolished and landlords driven into exile without the passing by the Irish Parliament of a single Act which a Colonial Secretary could reasonably veto, or which even an English court could hold void under the provisions of the Colonial Laws Act. It is indeed probable that wild legislation at Dublin might provoke armed resistance in Ulster. But a movement which, were Ireland an independent nation, might ensure just government for all classes of Irishmen would, if Ireland were a colony, only add a new element of confusion to an already intolerable state of affairs. Imagine for a moment what would have been the position of England if Englishmen had been convinced that Riel, though technically a rebel, was in reality a patriot, resisting the intolerable oppression of the Dominion Parliament, and you may form some slight idea of the feeling of shame and disgrace with which Englishmen would see British soldiers employed to suppress the revolt of Ulster against a Government which, without English aid, would find it difficult to resist or punish the insurgents. The most painful and least creditable feature in the history of the United States is the apathy with which for thirty years the Northern States tolerated Southern lawlessness, and even now indirectly support Southern oppression.

2nd.—If Colonial independence would be found in Ireland inconsistent with the protection of England's interests and with the discharge of England's duties, it would also fail to produce the one result which would be an adequate compensation for many probable or certain evils—namely, the extinction of Irish discontent.

It is by no means certain, indeed, that Colonial independence would be accepted with genuine acquiescence by any class of Irishmen. Certainly the demand for Grattan's Parliament lends no countenance to the supposition that the people of Ireland would accept with satisfaction a political arrangement which is absolutely opposed in its character to the Constitution of 1782.[48] Suppose, however, for the sake of argument, that the Irish leaders and the Irish people accepted the offer of Colonial independence; we may be well assured that this acceptance would not produce good-will towards England, and this not from the perversity of the Irish nature, of which we hear a great deal too much, but from difficulties in the nature of things, of which we hear a great deal too little. The restrictions on the authority of the Irish Parliament would, one cannot doubt, be, as safeguards for the authority of the Imperial Government, absolutely illusory. But they would be intensely irritating. Irish leaders would wish, and from their own point of view rightly wish, to carry through a revolutionary policy. The Imperial Government would attempt, and from an English point of view rightly attempt, to arrest revolution. Every considerable legislative measure would give ground for negotiation and for understandings—that is, for dissatisfaction and for misunderstanding. There would be disputes about the land laws, disputes about the army, disputes about the police, disputes about the authority of Imperial legislation, disputes about the validity of Irish enactments, disputes about appeals to the Privy Council. To say that all these sources of irritation might embitter the relation between England and Victoria, and that, as they do not habitually do so, one may infer that they will not embitter the relation between England and Ireland, is to argue that institutions nominally the same will work in the same way when applied to totally different circumstances. Victoria is prosperous; Ireland is in distress. Victoria takes pride in the Imperial connection; the difficulty in dealing with Ireland consists in the fact that large bodies of Irishmen detest the British Empire. Victoria has never aspired to be a nation; the best side of Irish discontent consists in enthusiasm for Irish nationality. Above all this, there has never been any lasting feud between England and her Australian dependencies; the main ground in favour of a fundamental change in the constitutional relations of Ireland and England is the necessity of putting an end at almost any cost to traditional hatred and misunderstanding generated by centuries of misgovernment and misery. If, as already pointed out, the source of this misery, so far as it can be touched by law at all, is a vicious system of land tenure, it is in vain to imagine that the misfortunes of Ireland can be cured by any mere change of constitutional forms. Grant, however, for the sake of argument, that the passion of nationality is the true ground of the demand for Home Rule; grant, also, in defiance of patent facts, that the autonomy of a dependency satisfies the sensibilities of a nation; still it is idle to fancy that a system based, like our scheme of Colonial government, on friendly understandings and the habitual practice of compromise, can regulate the relations of two countries which are kept apart mainly because they cannot understand one another, and can neither of them admit the necessity of mutual concessions. Moreover, a scheme of nominal subjection combined with real independence has the one great defect that it does not teach the lessons which men and nations learn by depending on their own unassisted and uncontrolled efforts. No one learns self-control who fancies he is controlled by a master.[49]

The scheme, in short, of Colonial independence, though less absolutely impracticable than any form of Federalism,[50] has, as a solution of our Irish difficulties, two fatal defects: it gives Ireland a degree of independence more dangerous to England than would be the existence of Ireland as a separate nation; it bestows on Ireland a kind of self-government which presents neither the material advantages derived from the Union, nor the possible, though hypothetical, gains which might accrue to her from the self-control and energy supposed to flow from the inspiring sentiment of nationality. Still the Colonial system is, in spite of its immense defects as a scheme of Home Rule for Ireland, out and out the least objectionable of the models which have been proposed to us for our imitation, and this for several reasons. To grant to Ireland, if she be prepared to accept it, the position of Victoria is not to impair the supremacy of Parliament; if we copied faithfully the Victorian polity, every Irish member of Parliament would permanently depart from Westminster; there would be no more need for having at Westminster a representative of Dublin than there is for having a representative of Melbourne; the Irish Parliament would depend for its very existence on an Act of the Imperial Parliament, and the British Parliament would be able without consulting any Irish representative to modify, override, or abolish all or any part of the Act constituting the Irish Parliament. In this there would be no breach of faith, for the Constitution would bear on its face that the Act of Parliament on which it depended could be changed by the British Parliament as lawfully as can the Act 18 & 19 Vict. c. 55, which calls into existence the Victorian legislature. The undoubted legal authority and ease with which the British Parliament could suspend or abolish the Irish Constitution would have two good results: the one that Great Britain would have a sanction by which to enforce the adherence of the Irish government to just principles of legislation and of administration; the other that the readiness with which this sanction could be applied would, it is not unlikely, make its application needless. England, again, would not by the concession of Colonial independence dislocate her own Constitution: she would only be extending to Ireland a scheme of government already existing in other parts of the Empire, and would find herself possessed of officials accustomed to make a Colonial Constitution work. Nothing would be changed: there would only be one Colony the more, and the Colonial Office would find no insuperable difficulty in undertaking the government of Ireland in the same sense in which the Office undertakes the government of Victoria. The position, it may be objected, would be a very poor one for Ireland. With this objection I entirely agree: my very contention is that for Ireland, no less than for England, it is best that Ireland shall form part of the United Kingdom. Home Rulers think otherwise: they prefer the local autonomy of Victoria to a share in the United Kingdom. They may probably, however, say that taxation involves representation, and that if Ireland is to take the disadvantages she must also have the immunities of a colony. Here fair-minded men will hold that the Home Rulers are right. The maxim, indeed, that taxation involves representation need not deeply impress any one who remembers that throughout the United Kingdom the property of every woman is taxed, and that no woman has a share in Parliamentary representation. But a formula which is not logically defensible may yet be the embodiment of a just claim. If the very hazardous experiment of placing Ireland in the position of Victoria is to be tried, it must be tried fairly and with every circumstance which may increase its chances of success. Ireland on assuming the position of a colony should, like other colonies, be freed from Imperial taxation. England can afford the sacrifice of three or four millions a year, and she would obtain a valuable quid pro quo in the increased homogeneity of the British Parliament. Ireland too would gain something. A country impoverished, in part at least through bad government, might think it no hard bargain to gain at once local independence and exemption from a heavy weight of taxation. The absence of anything like a tribute to Great Britain would be an immense advantage, for it would remove one cause of certain discontent, and would for once place England before the Irish people at any rate in the light of a liberal ally. Let me not be misunderstood. I do not recommend Home Rule under any form whatever: what I do assert is that of all its forms the Colonial form is the least injurious to British interests, and that the experiment of placing Ireland in the situation of Victoria can be carried out neither with fairness nor with any chance of success, unless Englishmen let Ireland, like Victoria, be exempt from Imperial taxation. If any English taxpayer says that the price is too high to pay for the success of an experiment of which I do not myself recommend the trial, I am not concerned to consider whether he is right. My only concern is to insist that the sacrifice of three or four millions per annum is an essential feature of this particular scheme of Home Rule, and that persons who say the sacrifice is too great have only added one to the many arguments which lead to the conclusion that under no form whatever can Irish Home Rule be accepted by England.

* * * * *

[Sidenote: Objection to Constitution of 1782, not faults of Irish Parliament.]

III. Home Rule as the revival of Grattan's Constitution.—The cry for Home Rule sometimes takes the form of a demand that Ireland should reacquire the Constitution of 1782. The true answer to this demand is not to be found where Englishmen often seek for it, in attacks on Grattan's Parliament. That body exhibited some grave defects common to the English Parliament of the day; it had also many faults of its own to answer for; but it had with all its demerits virtues which still cast a halo round its memory in the eyes of Irish patriotism, and which serve to redeem many of its admitted faults in the judgment of impartial history. It produced great men. Flood, Grattan, Curran, and Fitzgibbon were none of them faultless statesmen, but they were leaders of whom any people have a right to be proud. Grattan's Parliament, moreover, though it represented a class, represented a class of Irishmen, and we may even say the best class of Irishmen. It was lastly, with all its defects, a Parliament of men who knew and belonged to Ireland, and after its lights cared for the country. It was in a true sense a national Parliament. When we consider further that the Parliament was abolished against the wish of the best men in Ireland, that it was abolished by arts which have brought lasting and just discredit on the men who carried through the Act of Union, we can well understand why as calm and as well-informed judges as Mr. Lecky hold to the belief—certainly in nowise in itself unreasonable—that the Treaty of Union was, to say the least, premature, and that England and Ireland would have gained much if for a generation or two more the interest and repute of Ireland had been guarded by an Irish Parliament. The argument that the Irish Parliament because it was corrupt, or because it represented a class, was rightly abolished, proves too much. The English Parliament under Walpole was at least as open as the Irish Parliament in the time of Grattan to each of these charges, yet long before legislation had removed the flagrant anomalies of the unreformed House of Commons the English Parliament had cast off its worst vices, and few persons will maintain that England would have gained if during the time of Walpole Parliamentary government had been abolished. Be this as it may, vituperation of Grattan's Parliament is for our present purpose as irrelevant as it is unjust and injudicious.

[Sidenote: True objection, restoration impossible.]

The true reason for declining to consider the demand for the Constitution of 1782 is, that to concede it is in the strictest sense of the word an impossibility. Grattan's Constitution not only is dead, but can look for no resurrection. The social, the political, the religious, we might almost say the physical conditions under which Grattan's Parliament existed have vanished, never to return. "It cannot be too clearly understood," writes Mr. Lecky, "that the real meaning of the separate Irish Parliament of the eighteenth century was that the efficient government of the country was placed in the hands of its Protestant gentry, qualified by the fact that the English Government possessed a sufficient number of nomination boroughs to exercise a constant controlling influence over their proceedings. The existing Grand Juries and the Synod of the disestablished Church are the bodies which now represent most faithfully the independent elements in Grattan's Parliament. That Parliament consisted exclusively of men who were bound to the English connection by the closest ties of interest and sentiment [and] who were pre-eminently the representatives of property."[51] We may deplore that such a Parliament was doomed to destruction when it might possibly have been saved by reform. But to any one who has eyes to see it is as clear as day that with Protestant ascendancy, with the prestige of the Established Church, with the leading position of Irish landlords, with the submission of Irish tenants, with the power of control exercised by the English Government, with the necessary dependence of the English Colony upon the connection with England, Grattan's Constitution with all its possibilities or impossibilities has vanished for ever. You can no more restore the Parliament of 1782 in Ireland than you can restore the unreformed Parliament of 1832 in England. In either case to reproduce the form would not renew the spirit, and the attempted revival of an anomaly would turn out the creation of a monstrosity.

One consideration suggested by the memory of Grattan's Parliament is well worth attention. With the curious laxity of thought about constitutional changes which marks modern British statesmanship, language is often used which implies that to ask for Grattan's Parliament is equivalent to asking for Colonial self-government as in Victoria. No two things are in reality more different. It is no exaggeration to say that the Constitution of 1782 presented in its principles the exact antithesis to the modern Constitution of Victoria. Grattan's Constitution rested on the absolute denial of British Parliamentary sovereignty. The keynote of his policy was the Parliamentary independence of Ireland; its aim was to make Ireland an independent nation connected with England only by goodwill, by common interest, and by what has been called the "golden link" of the Crown. The statement indeed that between the date of Irish Parliamentary independence and the date of the Union England and Ireland were governed under two crowns, is not much better than a piece of rhetorical antiquarianism.[52] It is, however, undoubtedly true that from 1782 to 1800 the British Parliament had no more right to legislate for Ireland than at the present day it has to legislate for New York, and no appeal lay from any Irish Court to any English tribunal. But if under the Constitution of 1782 Ireland was in one sense an independent nation, she could not under that Constitution be called a self-governed country. The Irish Executive was controlled by George the Third and his English Ministers, and the passing of the Act of Union was proof, if evidence were needed, that England possessed potent though unavowed means for controlling the decision of the Irish Legislature. The Constitution, it may be added, bore exactly the fruit to be expected from its anomalous character. It stimulated national feeling; this was its saving merit. It did not secure supremacy to the will of the Irish nation; this, as appeared in 1800, was its fatal flaw. Compare with this the Constitution of Victoria. The Victorian Constitution is based on complete acknowledgment of English Parliamentary sovereignty. But the amplest recognition of British authority is balanced by the unrestricted enjoyment of local self-government. Hence Victoria manages her own affairs, but Victorians are not inspired with the sense of constituting a nation.

* * * * *

[Sidenote: Gladstonian Constitution—its character.]

IV. Home Rule under the Gladstonian Constitution[53]—No legislative proposal submitted to Parliament has ever received harder measure than the Government of Ireland Bill. Its introduction aroused the keenest political battle which during half a century has been fought in England. The Bill therefore became at once the mark of hostile and (what is nearly the same thing) of unfair criticism at the hands of opponents. This was to be expected; it is the necessary result of the system which makes tenure of office depend on success in carrying through or resisting proposed legislation. What did take place but was not to be expected was, that the Government of Ireland Bill met with harsh criticism at the hands of its friends. The Opposition wished to prove that the principle of the Bill was bad, by showing that it led to disastrous and absurd results. They therefore directed their assaults upon the details of a measure which they disliked in reality not because of the special provisions which they attacked, but because of the principle to which these provisions gave effect. Ministeralists on the other hand were only too ready to surrender any clause in the Bill as a matter of detail, provided only they could persuade Parliament to sanction the principle of the measure, and thereby affirm the policy of giving Ireland an Irish Executive and an Irish Parliament. Nor was this course of action dictated solely by the exigencies of Parliamentary strategy. Ministerialists saw the flaws in the Bill as plainly as did the Opposition, and no man (it may be conjectured), from the Premier who devised, down to the draughtsman who drew, the Government of Ireland Bill, would have wished it to become an Act in the form in which it stood on the 7th day of June, 1886. The supporters, moreover, of the Government emphasized their dislike to the details of the particular measure, because to attack a detail of the machinery by which it was proposed to give Ireland Home Rule countenanced in the critic's own mind the assumption that some mechanism could be invented which might carry out the principle of creating an Irish Parliament without violating the conditions on which alone the idea of any such measure could be entertained by any English statesman. Opponents, in short, of the Government of Ireland Bill attacked its details out of hostility to its principle; its defenders tried to win approval for its principle by conceding or insisting upon the defects of its details.[54] The result was unfortunate. The Bill was never either by its opponents or its friends regarded in the light in which it ought to be viewed by a constitutional lawyer. It was never criticised as a whole; it never therefore received full justice. Whoever examines the now celebrated Bill in the spirit of a jurist will see that it constitutes, in spite of many obvious blots both in its special provisions and in its language, a most ingenious attempt to solve the problem of giving to Ireland a legislature which shall be at once practically independent, and theoretically dependent, upon the Parliament of Great Britain; which shall have full power to make laws and appoint an executive for Ireland, and yet shall not use that power in a way opposed to English interests or sense of justice. The problem (it may be said) admits of no solution. This may be so, and is indeed my own conviction. But this conviction ought not to prevent the acknowledgment that the Bill is the rough outline of an ingeniously attempted solution. If the Bill fails in achieving its object, the failure arises not from mistakes of detail, but from the unsoundness of the principle on which the Bill rests, and shows that the conditions on which Englishmen can wisely give Home Rule to Ireland are conditions which no scheme of Home Rule can satisfy. The idea which lies at the basis of the plan sketched out in the Government of Ireland Bill is the combination of the Federal system and the Colonial system of Home Rule. The right mode of criticising this combination is first to trace in the barest outline the leading features of the Bill, treating it much as if it had become an Act, and had given to Ireland an actual Constitution; and next to examine how far this Constitution, which may with no unfairness be called the "Gladstonian Constitution," satisfies the conditions which a scheme of Home Rule is bound to fulfil.

The Gladstonian Constitution establishes a new form of government in Ireland; it also modifies, or, to use plain and accurate language, repeals the main provisions of the Act of Union, and thus introduces a fundamental change into the existing Constitution of England.[55]

The following are for our present purpose its principal features.

[Sidenote: Its features as regards government of Ireland.]

As regards the government of Ireland—

The Executive Government of Ireland is vested in the Queen, but is carried on by the Lord-Lieutenant and a Council.[56] Though the formation and powers of the Executive are under the Constitution left very much at large, we may fairly assume that the authors of the Constitution intend that the Lord-Lieutenant should occupy the position in substance of Colonial Governor, and rule Ireland through a ministry appointed nominally by the Lord-Lieutenant, but in reality selected by the Irish legislative body. In this manner the Irish Constitution is, like that of Victoria, a copy of the English original.

There is created—and this, of course, is the vital provision of the Constitution—an Irish legislature, which I shall take leave hereafter to call by its proper name, the "Irish Parliament," consisting of the Queen and an Irish legislative body, which we may call a House of Parliament or a Chamber, made up itself of two orders.[57]

The Irish Parliament, subject to certain restrictions, has authority to make or repeal any laws for the peace, order, and good government of Ireland; it is in fact in the strictest sense what I have termed it, an Irish Parliament. It is the body which indirectly appoints and controls the Executive, and directly legislates for Ireland. It can repeal laws which have been passed by the existing Parliament of the United Kingdom in so far as they are in force in Ireland.

The powers of the Irish Parliament are, it should be noted, indefinite. The Parliament, that is to say, may pass any law which it is not, under the Constitution, forbidden to pass. In this respect it stands in the position not like that of the American Congress, which can legislate only on certain topics, which are expressly placed within the competence of Congress, but in a position like that occupied by the Parliament of the Canadian 1 Dominion, which can legislate on all topics not expressly excepted from its competence. The difference between a legislature of definite and a legislature of indefinite powers is important. In the one case changes of circumstances may diminish but cannot increase the authority of the legislature; in the other case changes of circumstances may increase but cannot diminish that authority. The Irish Parliament is a body whose authority will, from the necessity of things, tend constantly to increase.

If the authority given to the Irish Parliament is indefinite, it is not unlimited. A large number of exceptions and restrictions are imposed upon its freedom of action. It is hard to point to any clear principle on which they rest. Their object undoubtedly is to guard against legislation about subjects such as the armed forces, the coinage, and the like, which are of Imperial rather than of local concern. But we can hardly say that the line between the things which the Irish Parliament can do, and the things which it cannot do, exactly coincides with the line which divides Imperial from local legislation. The Irish Parliament might lawfully pass laws opposed to the whole tenour of British legislation, such, for instance, as an Act preventing particular classes of foreigners, or even of Englishmen, from settling in Ireland. The Irish Parliament could not, on the other hand, pass any law for the establishment or the endowment of religion. Hence Ireland could not, in imitation of England and Scotland, provide herself with an established Church, nor could she again pass any law relating to volunteers. She could not therefore take steps for the defence of the country, which are permissible to Victoria or Canada.

The observance of these limitations on the Parliament's power of legislation is enforced by a twofold method: first, by the veto of the Lord-Lieutenant;[58] secondly, by the special authority given to the Judicial Committee of the English Privy Council.[59]

The Lord-Lieutenant can, after the manner of a Colonial Governor, refuse the Royal assent to any bill passed by the Irish House of Parliament.[60] It would rather appear (though this is by no means certain) that a Bill passed by the Irish Parliament might, even though the Lord-Lieutenant assented thereto, be like the Bill of a Colonial legislature, disallowed by the Crown, or in effect by the English Ministry.[61]

The Judicial Committee of the English Privy Council, with the addition of certain members, who must be, or have been, Irish Judges, exercises under the Gladstonian Constitution a very peculiar authority in respect of Irish legislation. It becomes both an administrative and a judicial body.

As an administrative body it can give a decision as to the constitutional validity of any Bill brought before or Act passed by, the Irish Parliament. In its judicial character it is a court of final appeal, with exclusive power to pronounce a decision upon the validity of an Act of the Irish Parliament whenever the validity thereof comes in question in the course of an action.[62] The decisions of the Privy Council are final; their twofold character as opinions and judgments deserve special attention. The result is that the Judicial Committee of the English Privy Council can always in one way or another pronounce void the proposed or actual legislation of the Irish Parliament if it is in the judgment of the Privy Council unconstitutional.

Ireland in return for the advantages gained by her under the Gladstonian Constitution gives up the representation which she now has in each of the two Houses of the Parliament of the United Kingdom. No Irish representative, either Peer or Commoner, sits under that Constitution at Westminster.[63] The present Parliament of the United Kingdom under whatever name it be described, and whatever be its powers, becomes therefore on the withdrawal of the Irish representatives a British Parliament, and is hereinafter termed by me, for the sake of distinction, the British Parliament. Ireland also contributes annually to the Consolidated Fund of the United Kingdom a sum of over four millions. The Irish customs and excise are made the security for the payment of this contribution; they are, if I understand the Government of Ireland Bill rightly, to be collected by British officials and paid into the British Treasury, but the details of the financial arrangements intended to exist under the Gladstonian Constitution are not within the scope of this work.

The Irish Parliament has no power to modify or alter the provisions of the Constitution under which it exists,[64] except in one or two cases provided for by the Constitution itself. The Constitution is alterable in a particular manner therein pointed out, namely by the co-operation of the British Parliament and the Irish Parliament. If we omit certain complications of detail, this co-operation takes place by the Irish representatives being summoned back, and thus added to the British Parliament. The body thus constituted for the alteration of the Gladstonian Constitution is formed of much the same elements as the existing Parliament of the United Kingdom, and is hereinafter called the Imperial Parliament.[65]

[Sidenote: As regards the English Constitution.]

As regards the Constitution of England—

The Gladstonian Constitution, as it will now be seen, does, whatever the intention of its authors, as a matter of fact seriously affect the Constitution of England, and this in more points than one.

First.—The withdrawal of the Irish representation from the Parliament of the United Kingdom constitutes in effect a new body, which in its composition is different from the present Parliament of the United Kingdom, and which since (allowing for changes introduced by the different Reform Acts which have been passed during the century) it corresponds with the Parliament of Great Britain as it existed before the Union with Ireland, may be rightly described by the name I have applied to it, of the British Parliament. This British Parliament has admittedly authority to legislate on every matter which comes within the competence neither of the Irish Parliament, nor of the body which I have distinguished as the Imperial Parliament, which, it will be remembered, consists of the British Parliament with the Irish representatives summoned thereto. Whether the British Parliament has or has not any further powers is a moot question which I purposely leave for the moment untouched. What is admitted on all hands is that a Parliament in which Irish representatives have no voice whatever can legislate on every matter affecting England, Scotland, or the British Empire, and also on the topics specially excluded from the competence of the Irish Parliament unless they belong to the one topic, namely, the alteration of the Gladstonian Constitution, reserved for the Imperial Parliament.

Secondly.—The British Parliament, whatever be its theoretical authority, will cease under the Gladstonian Constitution to pass laws for Ireland, and will not impose any taxation on Ireland in addition to the contribution which Ireland is compelled to pay under the Constitution.

Hence, Thirdly,—and as a result of the various features in the Gladstonian Constitution which have been already noted, there exist under it three bodies with different functions which, by whatever name they may be each called, ought to be carefully distinguished. They are—

(i.) The British Parliament at Westminster, in which sit no Irish members, which legislates for Great Britain, and for the whole of the British Empire, except Ireland, but which does not in general at any rate legislate for Ireland.

(ii.) The Irish Parliament at Dublin, in which sit no British representatives, which legislates for Ireland, but does not legislate for England, Scotland, or for any other part of the British Empire, and does not have any voice whatever in the general policy of the Empire.

(iii.) The Imperial Parliament also sitting at Westminster, and comprising both the British and the Irish Parliament. This body, which in composition corresponds nearly if not exactly with the existing Parliament of the United Kingdom, comes together only on special occasions and only for a special purpose, namely the revision or alteration of the Gladstonian Constitution.

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.