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

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

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

[Sidenote: Methods for securing just government.]

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

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

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

[Sidenote: 2. Action of Privy Council.]

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

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

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

[Sidenote: Does Constitution possess finality?]

3rd Question.—Does the Gladstonian Constitution hold out fair hopes of finality?

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

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

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

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

[Sidenote: Constitution will cause disappointment to England.]

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

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

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

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

[Sidenote: And to Ireland.]

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

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

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

[Sidenote: Constitution will cause friction.]

The Constitution will produce irritation and friction.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FOOTNOTES:

[29] Compare Mr. Gladstone's speech of 8th April, 1886, 'The Times Parliamentary Debates,' pp. 130, 131; and Mr. Gladstone's speech of 13th April, ibid., pp. 255, 256.

[30] Compare ibid., pp. 130, 132.

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

* * * * *

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

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

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

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

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

[35] Contemporary Review, vol. xii., p. 908.

[36] Contemporary Review, vol. xli., p. 921.

[37] 'Mr. Gladstone's Irish Constitution,' Contemporary Review, May, 1886, p. 616.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[46] Todd, p. 283.

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

[48] See pp. 221, 222, post.

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

[50] See p. 197, ante.

[51] The Times, May 5, 1886.

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

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

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

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

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

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

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

[59] Ibid., clause 25.

[60] Ibid., clause 7.

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

[62] See the Government of Ireland Bill, clause 25, sub-clause (a), (b) and (c).

[63] Government of Ireland Bill, clause 24.

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

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

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

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

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

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

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

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

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

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

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

[69] Government of Ireland Bill, clause 39.

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

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



CHAPTER VIII.

CONCLUSION.

[Sidenote: Survey of argument.]

Let us here review and summarise our argument. The demand for Home Rule is a demand for a change in the Constitution so fundamental as to amount to a legal and pacific revolution; such a demand requires for its support cogent, we may almost say conclusive, reasons.

The positive arguments in favour of Home Rule are not easy to grasp. Their strength lies in their correspondence with the prevailing opinions of the day. But though public opinion under any form of government, and especially under the system of what is called popular government, deserves great consideration, still the value of a prevailing belief or conviction cannot be determined without examining the elements which have gone to its production. The state of opinion which favours Home Rule is found to result from various and even self-contradictory feelings, some of which belong to the highest and some to the lowest parts of human nature; humanity and a sense of justice are in this instance curiously combined with indolence and impatience. The arguments again for Home Rule rest upon one dubious assumption and one undoubted fact. The dubious assumption is that the root of Irish discontent is the outraged feeling of nationality. The undoubted fact is that in Ireland, on all matters either directly or even remotely connected with the tenure of land, the law of the Courts is opposed to the customs, to the moral sentiment, we may say to the law of the people; hence the Queen's tribunals are weak because they are not supported by that popular assent whence judges derive half their authority; the tribunals of the League are strong because their decisions commend themselves to the traditional feeling of the people. But the doubtful hypothesis and the undoubted fact, though one or other of them lies at the basis of all the strongest arguments in favour of Home Rule, each invalidate almost as much as they support the contention that an Irish Parliament will prove the specific for the diseases (due in the first instance to the original vice of the connection between England and Ireland) under which Irish society now suffers. If the passion of nationality is the cause of the malady, then the proposed cure is useless, for Home Rule will not turn the people of Ireland into a nation. If a vicious system of land tenure is the cause of lawlessness, then the restoration or re-creation of an Irish Parliament is needless, for the Parliament of the United Kingdom can reform, and ought to reform, the land system of Ireland, and ought to be able to carry through a final settlement of agrarian disputes with less injustice to individuals than could any Parliament sitting at Dublin.

Reasoning, however, which fails to establish the expediency of creating an Irish Parliament may prove, and in fact does amply prove, that the task of maintaining peace order and freedom in Ireland is at the present juncture a matter of supreme difficulty. Any possible course, moreover, open to English statesmanship involves gigantic inconvenience, not to say tremendous perils. A man involved practically in the conduct of public affairs may easily bring himself to believe that the policy which he recommends is not only the best possible under the circumstances, but is also open to no serious objection. Outsiders, who in this matter are better because more impartial judges than the ablest of politicians, know that this is not so. We have nothing before us but a choice of difficulties or of evils. Every course is open to valid criticism.

The maintenance of the Union must necessarily turn out as severe a task as ever taxed a nation's energies, for to maintain the Treaty of Union with any good effect means that while refusing to accede to the wishes of millions of Irishmen, we must sedulously do justice to every fair demand from Ireland, must strenuously and without either fear or favour assert the equal rights of landlords and tenants, of Protestants and Catholics, and must at the same time put down every outrage and reform every abuse.

To carry out by peaceful means the political separation of countries which for good and for evil have for centuries been bound together by position and by history, is an operation so critical that in the judgment of statesmen it involves dangers too vast for serious contemplation.

How, lastly, to devise a scheme of Home Rule which, while giving to Ireland as much of legislative independence as may satisfy her wants or wishes, shall leave to England as much supremacy as may be necessary for the prosperity of the United Kingdom, or for the continued existence of the British Empire, is a problem which jurists would find it hard to solve as a matter of speculative science, and which politicians may not without reason hold to admit of no practical solution.

Yet Maintenance of the Union, Separation, Home Rule, are names which designate the only paths open to us. To one of these three courses we are absolutely tied down. Each path is arduous. To complain about the nature of things is childish. The course of wisdom is obvious. We must all of us look facts in the face. "Things and actions are what they are, and the consequences of them will be what they will be. Why then should we desire to be deceived?"[71] We must calmly compare the advantages of the three steep roads which lie open to the nation, and then on the strength of this comparison determine the course which the nation is bound to follow by motives of expediency and of justice.

Such a comparison we have already instituted:[72] its results to any reader who assents to my train of reasoning must be obvious.

The maintenance of the Union involves at the outset a strenuous and most regrettable conflict with the will of the majority of the Irish people. It necessitates at once the strict enforcement of law, combined with the resolute effort to strip law of all injustice. It may require large pecuniary sacrifices, and it certainly will require a constancy in just purpose which is supposed, and not without reason, to be specially difficult to a democracy. The difficulties on the other hand which meet us are not unprecedented, though some of them have assumed a new form. We have some advantages unknown to our forefathers: we can, more easily than they could, remodel the practices of the Constitution, modify the rules of party government, or, incredible as it may seem to members of Parliament, touch with profane hands the venerable procedure of the House of Commons. The English democracy, further, just because it is a democracy, may, like the democracy of America, enforce with unflinching firmness laws which, representing the deliberate will of the people, are supported by the vast majority of the citizens of the United Kingdom. The English democracy, because it is a democracy, may also with a good conscience destroy the remnants of feudal institutions, and all systems of land tenure found unsuitable to the wants of the Irish people. Nor, though the crisis be difficult, are there features lacking in the tendencies of the modern world which in the United Kingdom as in the United States and in the Swiss Confederacy favour every effort to uphold the political unity of the State. Whatever be the difficulties (and they are many) of maintaining the Union, not in form only but in reality, the policy is favoured no less by the current of English history, than by the tendencies of modern civilization. It preserves that unity of the State which is essential to the authority of England and to the maintenance of the Empire. It provides, as matters now stand, the only means of giving legal protection to a large body of loyal British subjects. It is the refusal not only to abdicate legitimate power, but (what is of far more consequence) to renounce the fulfilment of imperative duties. Nor does Union imply uniformity. Unity of Government—equality of rights—diversity of institutions,—these are the watchwords for all Unionists. To attain these objects may be beyond our power, and the limit to power is the limit to responsibility. Still, whatever may be the difficulties, or even the disadvantages, of maintaining the Union, it undoubtedly has in its favour not only all the recommendations which must belong to a policy of rational conservatism, but also these two decisive advantages—that it does sustain the strength of the United Kingdom, and that it does not call for any dereliction of duty.

Separation, or in other words the national independence of Ireland, is an idea which has not entered into the practical consideration of Englishmen. The evils which it threatens are patent: it at the same moment diminishes the means of Great Britain and increases the calls upon her resources. It lowers the fame of the country, and plants by the side of England a foreign, it may be a hostile, neighbour; it involves the desertion of loyal fellow-citizens who have trusted in the good faith of England. Yet, on the other hand, the material losses and perhaps the dangers involved in the independence of Ireland are liable to exaggeration. Great Britain might find in her complete freedom of action and in restored unity of national sentiment elements of power which might balance the obvious damage resulting from Separation; she might also find it possible to make for the protection of Loyalists terms more efficacious than any guarantees contained in the articles of a statutory constitution. If, further, the spirit of nationality has the vivifying power ascribed to it by its votaries, then Ireland might gain from it blessings which cannot be conferred by any scheme of merely Parliamentary independence, since no form of Home Rule can transform Ireland into a nation.

For Home Rule it may be pleaded that it offers two obvious advantages: it satisfies the immediate wish of millions of Irishmen, and it facilitates the adaptation of Irish institutions to Irish wants. These advantageous results are the best that can be hoped for from Home Rule. They are real, and to underrate them is folly; the moral gain indeed of meeting the wishes of the body of the Irish people is so incalculable, that did Home Rule involve no intolerable evils a rational man might think it wise to venture on the experiment. Home Rule, it may be suggested, has the further gain of lessening English responsibility for the government of Ireland. What it really might effect is to lighten England's sense of responsibility for misrule in Ireland. But this, so far from being a blessing, would in truth be one of the greatest of evils. The distinguished author of the Gladstonian Constitution denies in his recent pamphlet that the Government of Ireland Bill would, if passed, repeal the Act of Union. To follow the reasoning by which this denial is made good is beyond my powers. But there is one aspect in which the statement, paradoxical though it be, that the Union is not dissolved by the existence of an Irish Parliament, has a most serious meaning, which ought to command hearty and general assent. Under the Gladstonian Constitution, as under any form of Home Rule, the Government of the United Kingdom must still remain in the last resort responsible for the administration of justice throughout the whole realm. Admit for the sake of argument that the Act of Union, though affected in every section, is not repealed, then assuredly if men be wrongfully deprived of their property, if they be denied their lawful freedom, if they suffer unlawful injury to life or limb in any part of the United Kingdom, the responsibility for seeing that right be done falls on the executive, and in the last resort on the Parliament, of the United Kingdom. The delegated authority of a subordinate legislature will not free the principal from the liability inherent in the delegation of power; and if Home Rule in Ireland fosters, as it must foster, the notion that the United Kingdom is not as a whole responsible for misdeeds done in Ireland, this is one of the worst results of the proposed constitutional change.

But putting this matter aside, an examination into the various forms which Home Rule may assume leads to the conclusion that whatever be its hypothetical benefits it threatens more than countervailing loss to England. There is no need to do more than refer in most general terms to evils which have already been set forth in detail. Home Rule under two of its three possible forms dislocates and weakens the whole English Constitution. Under its least objectionable form—that of Colonial independence—it brings upon England many of the perils which would follow upon the national independence of Ireland; it involves, if the experiment is to have a fair chance of success, large pecuniary sacrifice, and it does not present a reasonable hope of creating real harmony of feeling between Great Britain and Ireland. Home Rule, lastly, under whatever form, whilst not freeing England from moral responsibility for protecting the rights of every British subject, does virtually give up the attempt to ensure to these rights more than a nominal existence, and thus gives up the endeavour to enforce legal and equal justice between man and man. It must also be considered that an examination into the different forms of Home Rule, while it shows that no scheme of legislative independence for Ireland offers any promise of finality, also suggests that the form of Home Rule least injurious to England is the form which gives Ireland most independence. The inference from these facts cannot be missed. Home Rule is the half-way house to Separation. Grant it, and in a short time Irish independence will become the wish of England. If any thorough-paced Home Ruler admit this conclusion, and suggest that Home Rule is a desirable transition towards Separation, the answer is that Home Rule is such a transition, but assuredly that such a transition is not to be desired. If one country is destined to become independent of another it is better for each not to experience the disappointment and the heartburning which accompany a period of unwilling connection.

This is the result of the comparison we have instituted between the three possible courses open to England. If the comparison be just the conclusion to which its leads is obvious. The maintenance of the Union is at this moment to England a matter of duty even more than of interest. If the time should come when the effort to maintain the unity of the State is too great for the power of Great Britain, or the only means by which it is found maintainable are measures clearly repugnant to the humanity or the justice or the democratic principles of the English people,—if it should turn out that after every effort to enforce just laws by just methods our justice itself, from whatever cause, remains hateful to the mass of the Irish people,—then it will be clear that the Union must for the sake of England, no less than of Ireland, come to an end. The alternative policy will then be not Home Rule but Separation. We shall save the unity at the expense of lessening the territory of the State; we shall escape self-reproach because having reached the limit of our powers we shall also have filled up the measure of our obligations. But if (as there is every reason to suppose) agrarian misery is the source of Irish discontent, and agrarian misery springs in part from bad administration, and in part from the law governing the tenure of land; if, in general terms, the undoubted ills of Ireland are curable by justice, even though justice proceed from the Parliament of the United Kingdom—an assembly, be it noted, in which the voice of Ireland is freely heard—then there is no need to indulge in speculations, always dangerous, upon a possible remedy which may never be necessary, and which, while the inhabitants of England and Ireland are still fellow-citizens of one State, it is painful even to contemplate. On the whole, then, it appears that whatever changes or calamities the future may have in store, the maintenance of the Union is at this day the one sound policy for England to pursue. It is sound because it is expedient; it is sound because it is just.

[Sidenote: Character of England's case]

This is the case of England against Home Rule; it is a case which, however feebly stated—and I may well have failed to state it with force—is founded on argument. It is a case which makes and need make no appeal to rhetoric; it is a case which indeed, like all sound views of national policy, is grounded on the interest of the greater number of the citizens of the State, but it is a case not grounded on any mere pride of power, a case not based on any disregard of justice, a case which above all involves no unfriendliness to Irishmen, and no assumption, either tacit or express, that there has fallen to Irishmen a greater amount of either original or acquired sin than falls to other human beings, it is a case which does not assume that real or supposed differences of race are a legitimate ground for inequality of rights. Any one, indeed, after having to the best of his power tried to state what can be said with fairness on one side of a question such as that now at issue between the majority and the minority of the citizens of the United Kingdom, may well call to mind the conclusion of the noblest statement ever made by genius of a case involving momentous national interests:—

"It would be presumption in me to do more than to make a case. Many things occur. But as they, like all political measures, depend on dispositions, tempers, means, and external circumstances for all their effect, not being well assured of these, I do not know how to let loose any speculations of mine on the subject. The evil is stated in my opinion as it exists. The remedy must be where power, wisdom, and information, I hope, are more united with good intentions than they can be with me. I have done with this subject, I believe for ever. It has given me many anxious moments for the two last years. If a great change is to be made in human affairs, the minds of men will be fitted to it; the general opinions and feelings will draw that way. Every fear, every hope, will forward it; and then they who persist in opposing this mighty current in human affairs will appear rather to resist the decrees of Providence itself, than the mere designs of men. They will not be resolute and firm, but perverse and obstinate."[73]

The sentiment of these words is one of eternal application. Still at this great crisis in the fortunes of our country, when every course is involved in undeniable perplexity, and surrounded by admitted danger, there are two principles to which we may confidently appeal; for it is by habitual adherence to them that England has grown to greatness. These two principles are the maintenance of the supremacy of the whole State, and the use of that supremacy for the purpose of securing to every citizen, whether rich or poor, the rights of liberty and of property conferred upon him by law. To maintain that any policy, however plausible, by which these principles are violated, must undermine the moral basis of the Constitution, and must therefore lead the nation to calamity and to disgrace, is at any rate to plead a cause which rests upon a firm foundation of plain morality. The case may be ill-stated, the arguments by which it is defended may admit of reply, but it is a case which a just man may put forward without shame, and a humane man may support without compunction.

FOOTNOTES:

[71] Butler's Sermons; vii., p. 136, ed. 1726.

[72] See Chapters V., VI., & VII., ante.

[73] Burke's Works, vol. vii., pp. 84, 85.



APPENDIX.

GOVERNMENT OF IRELAND BILL.[74]

ARRANGEMENT OF CLAUSES.

PART I.

Legislative Authority.

CLAUSE.

1. Establishment of Irish Legislature.

2. Powers of Irish Legislature.

3. Exceptions from powers of Irish Legislature.

4. Restrictions on powers of Irish Legislature.

5. Prerogatives of Her Majesty as to Irish Legislative Body.

6. Duration of the Irish Legislative Body.

Executive Authority.

7. Constitution of the Executive Authority.

8. Use of Crown lands by Irish Government.

Constitution of Legislative Body.

9. Constitution of Irish Legislative Body.

10. First order.

11. Second order.

Finance.

12. Taxes and separate Consolidated Fund.

13. Annual contributions from Ireland to Consolidated Fund of United Kingdom.

14. Collection and application of customs and excise duties in Ireland.

15. Charges on Irish Consolidated Fund.

16. Irish Church Fund.

17. Public loans.

18. Additional aid in case of war.

19. Money bills and votes.

20. Exchequer divisions and revenue actions.

Police.

21. Police.

* * * * *

PART II.

SUPPLEMENTAL PROVISIONS.

Powers of Her Majesty.

22. Powers over certain lands reserved to Her Majesty.

Legislative Body.

23. Veto by first order of Legislative Body, how over-ruled.

24. Cesser of power of Ireland to return members to Parliament.

Decision of Constitutional Questions.

25. Constitutional questions to be submitted to Judicial Committee.

Lord-Lieutenant.

26. Office of Lord-Lieutenant.

Judges and Civil Servants.

27. Judges to be removable only on address.

28. Provision as to judges and other persons having salaries charged on the Consolidated Fund.

29. As to persons holding civil service appointments.

30. Provision for existing pensions and superannuation allowances.

Transitory Provisions.

31. Transitory provisions in Schedule.

Miscellaneous.

32. Post Office and savings banks.

33. Audit.

34. Application of parliamentary law.

35. Regulations for carrying Act into effect.

36. Saving of powers of House of Lords.

37. Saving of Rights of Parliament.

38. Continuance of existing laws, courts, officers, &c.

39. Mode of alteration of Act.

40. Definitions.

41. Short title of Act.

SCHEDULES.

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A Bill to amend the provision for the future Government of Ireland.

[Sidenote: A.D. 1886]

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

PART I.

Legislative Authority.

[Sidenote: Establishment of Irish Legislature.]

1. On and after the appointed day there shall be established in Ireland a Legislature consisting of Her Majesty the Queen and an Irish Legislative Body.

[Sidenote: Powers of Irish Legislature.]

2. With the exceptions and subject to the restrictions in this Act mentioned, it shall be lawful for Her Majesty the Queen, by and with the advice of the Irish Legislative Body, to make laws for the peace, order, and good government of Ireland, and by any such law to alter and repeal any law in Ireland.

[Sidenote: Exceptions from powers of Irish Legislature.]

3. The Legislature of Ireland shall not make laws relating to the following matters or any of them:—

(1.) The status or dignity of the Crown, or the succession to the Crown, or a Regency;

(2.) The making of peace or war;

(3.) The army, navy, militia, volunteers, or other military or naval forces, or the defence of the realm;

(4.) Treaties and other relations with foreign States, or the relations between the various parts of Her Majesty's dominions;

(5.) Dignities or titles of honour;

(6.) Prize or booty of war;

(7.) Offences against the law of nations; or offences committed in violation of any treaty made, or hereafter to be made, between Her Majesty and any foreign State; or offences committed on the high seas;

(8.) Treason, alienage, or naturalization;

(9.) Trade, navigation, or quarantine;

(10.) The postal and telegraph service, except as hereafter in this Act mentioned with respect to the transmission of letters and telegrams in Ireland;

(11.) Beacons, lighthouses, or sea marks;

(12.) The coinage; the value of foreign money; legal tender; or weights and measures; or

(13.) Copyright, patent rights, or other exclusive rights to the use or profits of any works or inventions.

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

[Sidenote: Restrictions on powers of Irish Legislature.]

4. The Irish Legislature shall not make any law—

(1.) Respecting the establishment or endowment of religion, or prohibiting the free exercise thereof; or