THE CONSTITUTIONAL QUESTION

BY GEORGE CAVE, K.C., M.P.

INTRODUCTORY

Few things are more remarkable in the Parliamentary history of the Home Rule movement than the complete absence from the counsels of the English advocates of Home Rule of any definite and settled policy as to the form of self-government to be offered to Ireland, and their consequent oscillation between proposals radically differing from one another. Since the “new departure” initiated by Davitt and Devoy in 1878, it has been the deliberate practice of Irish Nationalists to abstain from defining the Nationalist demand and to ask in general terms for “self-government,” doubtless with the object of attracting the support of all who favour any change which could be described by that very elastic term. Such a policy has its advantages. But confusion of thought, however favourable to popular agitation, is a disadvantage when the moment for legislation arrives; and uncertainty as to the aim goes far to explain the vacillation in Home Rule policy.

Mr. Gladstone’s Home Rule Bill of 1886 would have given to Ireland the substance of “responsible” or colonial self-government, subject only to certain reservations and restrictions, the value of which will be considered later in this chapter, and would have excluded the Irish members and representative peers from the Parliament of the United Kingdom. By the Bill of 1893 the reservations and restrictions were increased, and representatives of Ireland were to be permitted to sit at Westminster by the Bill as introduced for some purposes, and by the Bill as passed by the House of Commons for all purposes.

After the defeat of this second Bill, a “cold fit” appears to have seized the Liberal Party. Lord Rosebery, in 1894, declared that before Home Rule could be carried England, as the predominant partner, must be convinced. Sir Edward Grey in 1905 declared that his party on its return to power would “go on with Sir Anthony MacDonnell’s policy,” which he rightly described as a policy of large administrative reforms; and Mr. Asquith “associated himself entirely and unreservedly with every word” of Sir Edward Grey’s speech. Accordingly the Irish Council Bill proposed by Mr. Asquith’s Government in 1907 was purely a measure of devolution, certain administrative functions only being put under the control of an Irish Council, subject to the veto of the Lord Lieutenant, and the whole legislative power remaining in the Parliament of the United Kingdom. This proposal, having been condemned by a National Convention at Dublin, was incontinently withdrawn.

In the years succeeding this fiasco the Liberal policy for Ireland appeared to be at the mercy of shifting winds. For some time Liberal speakers contented themselves with vague declarations in favour of Federalism or “Home Rule all round” phrases which may mean much or little according to the sense in which they are used. More recently an able writer, while admitting that “there is no public opinion in Ireland as to the form of the Irish Constitution,” has argued in a work of 350 pages in favour of the grant to Ireland of full legislative, administrative and financial autonomy; while a member of the Government declared that fiscal autonomy for all practical purposes means separation and the disintegration of the United Kingdom. In a publication recently issued by a committee of Liberals, comprising several members of the present Government, two views directly contrary to one another are put forward, one writer arguing for a devolution to an Irish body of “definite and defined powers only,” and another for the grant of the widest possible form of Home Rule and the exclusion from Westminster of all Irish representation. The latest official pronouncements indicate that the Government have it in their minds to revert to the Gladstonian form of Home Rule; but even now no one outside the Cabinet, and possibly few inside that inner circle, would venture on a confident prophecy even as to the broad lines of the measure which in a few days may be submitted to Parliament as representing the urgent and considered demand of public opinion.

Franklin said truly that

“those who govern, having much business on their hands, do not
generally like to take the trouble of considering and carrying into
execution new projects.”

But surely on a question of such vital moment to the Empire as the revision of the constitution of the United Kingdom, the bases, if not the details, of the contemplated change are deserving of prolonged consideration and even of some public and ordered discussion. The British North America Act, 1867, by which the relation of the Dominion of Canada to its provinces is regulated, was the result, not only of years of preliminary debate in the provincial Legislatures and elsewhere, but of a formal conference at Quebec in 1864, followed by the appointment of delegates to confer with the Imperial Government on the matter. In Australia the proposal for union, agitated at intervals since 1846, was canvassed in every detail at inter-colonial Conferences or Conventions in 1883, in 1891, and in 1897-8, as well as in the several colonial Legislatures, before it was embodied in the Australia Constitution Act, 1900. And although in the case of South Africa, owing to the urgency of the question of union, the time occupied in the discussion was less than in the other great dominions, yet in the Convention of 1908-9 the best brains in the country were occupied for months in considering every detail of the proposal for union before it was submitted to the Colonial and Imperial Parliaments for their sanction. And yet in the Mother Country, where centuries of military and political conflict have given us the Union, it is considered that a few weeks’ consideration by a committee of the Cabinet, without advice from independent constitutional experts, and without formal consultation even with the Government’s own supporters outside the Ministry, is sufficient to determine both the general form and the details of a proposal for its dissolution.

In the confusion so engendered it may be useful to consider in some detail the different proposals which have been or may be made under the name of Home Rule, their special qualities and dangers, and the results to which they may severally lead.

RESPONSIBLE GOVERNMENT.

A proposal to give to Ireland full “responsible” government, without any other limitations than such as are imposed on our self-governing Colonies, would find few supporters in this country. Under such a constitution an Irish Government would have power to forbid or restrict recruiting for the Imperial forces in Ireland, and to raise and train a force of its own. It might establish or subsidise a religion, make education wholly denominational, levy customs duties on imports from Great Britain and give fiscal advantages to a foreign power, confiscate or transfer property without payment, and deprive individuals of nationality, franchise, liberty, or life without process of law. However improbable some of these contingencies may appear, it is right on a matter of so much moment to consider possibilities and not probabilities only. Such powers as these could not without serious risk be conceded to any part of the kingdom, and in the case of Ireland there would be a special danger in granting them to a popularly elected body.

In the first place, the national safety would be involved. Englishmen were at one time too fond of saying that the great Colonies might, if they chose, sever the link which binds them to the Mother Country. Happily, in their case, no such catastrophe need now be considered. But it would be folly to shut our eyes to the fact that to many Irishmen national independence appears to be the only goal worth striving for. If the concession of full responsible government should be followed (at whatever interval) by an assertion of complete independence, we may assume that Great Britain would follow the example of Federal America and re-establish the Union by force of arms, but at how great a cost! Those who deny the possibility of a serious movement towards separation would do well to remember Mr. Gladstone’s reference to the position of Norway and Sweden, then united under one crown:

“Let us look to those two countries, neither of them very large, but yet countries which every Englishman and every Scotchman must rejoice to claim his kin I mean the Scandinavian countries of Sweden and Norway. Immediately after the great war the Norwegians were ready to take sword in hand to prevent their coming under the domination of Sweden. But the Powers of Europe undertook the settlement of that question, and they united those countries upon a footing of strict legislative independence and co-equality.... And yet with two countries so united, what has been the effect? Not discord, not convulsions, not danger to peace, not hatred, not aversion, but a constantly growing sympathy; and every man who knows their condition knows that I speak the truth when I say that in every year that passes the Norwegians and the Swedes are more and more feeling themselves to be the children of a common country, united by a tie which never is to be broken.”

The tie was broken within twenty years.

It may be that the Nationalist leaders, or some of them, do not desire separation; but it by no means follows that a concession of their demands would not lead to that result. Franklin, in 1774, had an interview with Chatham, in which he says

“I assured him that, having more than once travelled almost from one end of the continent (of America) to the other, and kept a great variety of company, eating, drinking, and conversing with them freely, I never had heard in any conversation from any person, drunk or sober, the least expression of a wish for a separation, or a hint that such a thing would be advantageous to America."

And yet independence came within ten years.

In the case of the United Kingdom there is no need to consider in detail how serious would be the effects naval, military, and economic of separation, for the gravity of such a contingency is admitted by all. Admiral Mahan, the American naval expert, writes that

“the ambition of the Irish separatists, realised, might be even more threatening to the national life of Great Britain than the secession of the South was to that of the American Union.... The instrument for such action in the shape of an independent Parliament could not safely be trusted even to avowed friends.”

Some Home Rulers are able to

“rise superior to the philosophy, as fallacious in fact as it is
base and cowardly in purpose, which sets the safety of a great
nation above the happiness and prosperity of a small one,"

but to less lofty souls it appears that the safety of the nation is paramount, and that upon it depends the prosperity of each of its component parts.

In the next place, in considering whether complete “colonial” self-government can be conceded to Ireland, it must not be forgotten that the island is bi-racial, that the two races differ widely in character, in politics, and in religion, and that the differences are apt to find vent in violent conflict or secret attacks. Further, Ireland has for generations been the scene of a revolt against one particular species of property, the ownership of land; and although under the operation of the Land Purchase Acts this cause of conflict tends to abate, it still breaks out from time to time in the form of cattle drives and attacks on “land grabbers." Hitherto we have, broadly speaking, kept the peace. That we should now forsake this duty, and, washing our hands of Ireland, leave the Protestant and the landowner, at or small, to his fate is unthinkable.

In connection with the question last-mentioned it may be necessary at some time to consider how far it is the constitutional right of this country to impose upon the minority in Ireland the new obligations implied in a grant to the whole island of colonial Home Rule. It may be that the Imperial Parliament can disallow the claim of a section of the population of Ireland to remain subject to its own control. But it is one thing to reject the allegiance of a community, it is quite another thing forcibly to transfer that allegiance to a practically independent legislature; and this is especially the case when the transfer may involve the use against a loyal population of coercion in its extreme form.

CHECKS AND SAFEGUARDS.

In every formal proposal for Home Rule in Ireland, weight has been given to the above considerations, and attempts have been made to meet them by qualifying the grant of responsible Government. The qualifications suggested have taken the form of (a) the reservation of certain powers to the Imperial Parliament, or (b) the restriction of the powers granted to the Irish legislature by prohibiting their exercise in certain specific ways, or (c) the provision of some form of Imperial veto or control. It is important to consider whether and how far such checks or “safeguards” are likely to prove effective and lasting.

The “safeguards” proposed by the Government of Ireland Bill, 1886, were somewhat extended by the Bill of 1893; and the proposals shortly to be submitted to Parliament, so far as they can be gathered from recent speeches of Ministers, will not in this respect differ materially from those contained in the latter Bill. It will therefore be convenient to take as a basis for discussion the provisions of the Bill of 1893, as passed by the House of Commons.

The Bill of 1893, after stating in a preamble that it was “expedient that without impairing or restricting the supreme authority of Parliament an Irish Legislature should be created for such purposes in Ireland as in this Act mentioned,” proposed to set up in Ireland a Legislature consisting of the Sovereign and two Houses, namely a Legislative Council of 48 members to be returned under a restricted franchise by the Irish counties and the boroughs of Dublin and Belfast, and a Legislative Assembly of 103 members to be returned by the existing parliamentary constituencies in Ireland. A Bill introduced into the Irish Legislature was to pass both Houses; but in the event of disagreement the proposals of the Legislative Assembly were to be submitted, after a dissolution or a delay of two years, to a joint Session of the two Houses. The executive power was to remain in the Crown, aided and advised by an Irish Ministry (called an Executive Committee of the Privy Council of Ireland), and the assent of the Crown to Irish legislation was to be given or withheld on the advice of this Executive Committee subject to any instructions given by the Sovereign.

The specific reservations and restrictions were contained in clauses 3 and 4 of the Bill, which were as follows:

“3. The Irish Legislature shall not have power to make laws in
respect of the following matters or any of them:

“(1) The Crown, or the succession to the Crown, or a Regency; or
the Lord Lieutenant as representative of the Crown; or

“(2) The making of peace or war or matters arising from a state of war; or the regulation of the conduct of any portion of Her Majesty’s subjects during the existence of hostilities between foreign States with which Her Majesty is at peace, in respect of such hostilities; or

“(3) Navy, army, militia, volunteers, and any other military forces, or the defence of the realm, or forts, permanent military camps, magazines, arsenals, dockyards, and other needful buildings, or any places purchased for the erection thereof; or

“(4) Authorising either the carrying or using of arms for military
purposes, or the formation of associations for drill or practice
in the use of arms for military purposes; or

“(5) Treaties or any relations with foreign States or the relations between different parts of Her Majesty’s dominions, or offences connected with such treaties or relations, or procedure connected with the extradition of criminals under any treaty; or

“(6) Dignities or titles of honour; or

“(7) Treason, treason-felony, alienage, aliens as such, or
naturalisation; or

“(8) Trade with any place out of Ireland; or quarantine, or
navigation, including merchant shipping (except as respects inland
waters and local health or harbour regulations); or

“(9) Lighthouses, buoys, or beacons within the meaning of the Merchant Shipping Act, 1854, and the Acts amending the same (except so far as they can consistently with any general Act of Parliament be constructed or maintained by a local harbour authority); or

“(10) Coinage; legal tender; or any change in the standard of
weights and measures; or

“(11) Trade marks, designs, merchandise marks, copyright, or
patent rights.

“Provided always, that nothing in this section shall prevent the passing of any Irish Act to provide for any charges imposed by Act of Parliament, or to prescribe conditions regulating importation from any place outside Ireland for the sole purpose of preventing the introduction of any contagious disease.

“It is hereby declared that the exceptions from the powers of the Irish Legislature contained in this section are set forth and enumerated for greater certainty, and not so as to restrict the generality of the limitation imposed in the previous section on the powers of the Irish Legislature.

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

“4. The powers of the Irish Legislature shall not extend to the
making of any law

“(1) Respecting the establishment or endowment of religion,
whether directly or indirectly, or prohibiting the free exercise
thereof; or

“(2) Imposing any disability, or conferring any privilege, advantage, or benefit, on account of religious belief, or raising or appropriating directly or indirectly, save as heretofore, any public revenue for any religious purpose, or for the benefit of the holder of any religious office as such; or

“(3) Diverting the property, or, without its consent, altering the
constitution of any religious body; or

“(4) Abrogating or prejudicially affecting the right to establish
or maintain any place of denominational education, or any
denominational institution or charity; or

“(5) Whereby there may be established or endowed out of public funds any theological professorship, or any university or college in which the conditions set out in the University of Dublin Tests Acts, 1873, are not observed; or

“(6) Prejudicially affecting the right of any child to attend a
school receiving public money without attending the religious
instruction at that school; or

“(7) Directly or indirectly imposing any disability or conferring any privilege, benefit, or advantage upon any subject of the Crown on account of his parentage or place of birth, or of the place where any part of his business is carried on, or upon any corporation or institution constituted or existing by virtue of the law of some part of the Queen’s dominions, and carrying on operations in Ireland, on account of the persons by whom or in whose favour, or the place in which any of its operations are carried on; or

“(8) Whereby any person may be deprived of life, liberty, or property without due process of law in accordance with settled principles and precedents, or may be denied the equal protection of the laws, or whereby private property may be taken without just compensation; or

“(9) Whereby any existing corporation incorporated by Royal Charter or by any local or general Act of Parliament may, unless it consents, or the leave of Her Majesty is first obtained on address from the two Houses of the Irish Legislature, be deprived of its rights, privileges, or property without due process of law in accordance with settled principles and precedents, and so far as respects property without just compensation. Provided nothing in this sub-section shall prevent the Irish Legislature from dealing with any public department, municipal corporation, or local authority, or with any corporation administering for public purposes taxes, rates, cess, dues, or tolls, so far as concerns the same. Any law made in contravention of this section shall be void.”

The power to impose taxation other than duties of custom and excise was to be transferred, subject to a short delay as to existing taxes and to a special provision in respect of taxes for war expenditure, to the Irish Legislature (clause II). Two judges of the Supreme Court in Ireland, to be called “Exchequer Judges,” were to be appointed under the Great Seal of the United Kingdom, and to be removable only on an address from the Imperial Parliament; and proceedings relating to the reserved powers or to the customs or excise duties were to be determined by such judges (clause 19). Appeals from the Courts in Ireland were to lie to the Judicial Committee of the Imperial Privy Council (clause 21); and any question as to the powers of the Irish Legislature could be referred to the same Committee (clause 22). The Royal Irish Constabulary and Dublin Metropolitan Police Force were gradually to disappear, and police matters to be regulated by the Irish Legislature and Executive (clause 29). The Irish Legislature was to be prohibited from passing land legislation for a period of three years (clause 34).

As to these proposals the first observation that occurs is that, in addition to the matters proposed to be reserved, there are others in which legislative uniformity throughout the kingdom is greatly to be desired. To mention but a few such matters, questions of status, contract and succession, of international trade and navigation, of the regulation of railways and of industrial labour, and of the criminal law, should not be differently determined in different parts of the kingdom; and as life becomes more complex, the number of subjects in which diversity of laws is a hindrance continues to increase.

In the next place, it is to be noted that the checks proposed affect legislation only and not administration. If the Bill of 1893 or any similar Bill should become law, the whole executive power in Ireland will be in an Irish Ministry responsible to an Irish Assembly; and it is obvious that many of the wrongs against which the restrictive clauses of the Bill were directed may be inflicted by administrative act or omission as effectively as by legislation. To quote a work of authority

“An independent Irish Executive will possess immense power. It will be able by mere administrative action or inaction, without passing a single law which infringes any restriction to be imposed by the Irish Government Act, 1893, to effect a revolution. Let us consider for a moment a few of the things which the Irish Cabinet might do if it chose. It might confine all political, administrative, or judicial appointments to Nationalists, and thus exclude Loyalists from all positions of public trust. It might place the bench, the magistracy, the police, wholly in the hands of Catholics; it might, by encouragement of athletic clubs where the Catholic population were trained to the use of arms, combined with the rigorous suppression of every Protestant association suspected, rightly or not, of preparing resistance to the Parliament at Dublin, bring about the arming of Catholic, and the disarming of Protestant, Ireland, and, at the same time, raise a force as formidable to England as an openly enrolled Irish army. But the mere inaction of the executive might in many spheres produce greater results than active unfairness. The refusal of the police for the enforcement of evictions would abolish rent throughout the country. And the same result might be attained by a more moderate course. Irish Ministers might in practice draw a distinction between ‘good’ landlords and ‘bad’ landlords, and might grant the aid of the police for the collection of ‘reasonable,’ though refusing it for the collection of ‘excessive,’ rents.”

Irish Ministers might even refuse actively to oppose the “moral claim” of the Irish Catholics to the use of the cathedrals and of the accumulated capital of the Irish Church.

To contemplate the possibility of action or calculated inaction of the character above described is not to attribute to Irishmen any special measure of original sin. In every case where the executive power is divorced from the ultimate legislative authority such divergencies are likely to recur; and more than one instance may be found in our own recent history. In 1859 the Canadian Government warned the Home Government that any attempt to interfere with the customs policy of the Dominion was inadmissible, unless the home authorities were prepared to undertake the responsibility of administering the whole government of Canada. The Home Government gave way. In 1878 the Governor of Cape Colony proposed to place the colonial forces under the control of the officer commanding the Imperial forces. The Cape Government resisted, and refused to resign; and eventually the Governor, on the advice of the Home Government, dismissed his ministers. In this case a change of government occurred after the general election, but in the end the claim put forward by the Imperial authorities had to be withdrawn. In 1906 the Natal Government proclaimed martial law, and ordered the execution of twelve natives on charges of murder. The Imperial Government intervened, and suggested the suspension of the order pending further consideration. The Natal Ministry immediately resigned; and as there was no chance of the formation of a new Government, the Imperial authorities hastily withdrew.

Differences have arisen even on so grave a matter as the succession to the throne. The union of England and Scotland in 1707 was preceded and hastened by the so-called Act of Security, by which the Scottish Estates asserted the right to name a successor to the throne of Scotland, who should not (except under certain specified conditions) be the person designated as sovereign by the English law. And during the illness of King George III. in the year 1788, Grattan, in defiance of the views of Pitt and of the majority in both Houses of the Imperial Parliament, carried in the Irish Parliament an address to the Prince of Wales, calling upon him (without waiting for a Regency Bill) to assume the Government of the Irish nation, “and to exercise and administer all legal power, jurisdiction and prerogatives to the Crown and Government thereof belonging” words borrowed from the address by which in the Revolution of 1688 William of Orange was requested to assume the Crown. Happily, the Viceroy declined to present the address, and a deputation sent from Ireland to present it found on their arrival that the king had recovered; but the incident might have led to a conflict upon a matter so important as the exercise of the royal power.

The fact is that the word “supremacy,” so often used in this controversy, is one of ambiguous meaning. Parliament is supreme in the United Kingdom, Parliament is likewise supreme in New Zealand; but the two supremacies are of widely different kinds. Supremacy consists of two ingredients authority to enact and power to enforce; and without the latter the former is little more than a legal figment, which may have no more practical importance than the theoretical right of veto which is retained by the Crown. Mr. Balfour, speaking on the second reading debate of the 1893 Bill, referred to this matter as follows:

“Legally, of course, the Imperial Parliament would be supreme: no one has doubted it. But what layman takes the slightest interest in these paper supremacies? For my part I take no more interest in the question of whether the Imperial Parliament is on paper superior to the Irish Parliament, than I do as to the order of precedence at a London dinner party. The thing is of no public interest or importance whatever. What we want to know is where the power lies. Who is going to exercise supremacy? Who is going to be the de facto ruler of Ireland?”

Special importance attaches to these considerations owing to the heavy liabilities undertaken by this country in respect of land purchase in Ireland. At the present time many millions of British money are sunk in Irish land, and the amount may increase to a sum approaching two hundred millions. The tenants now pay their annuities because, in the last resort, the Government can turn them out. Under Home Rule the powers of Government would rest with men who have led “no rent” agitations in the past, and who would be dependent upon the votes of those personally interested in repudiating the debt. The British Treasury can hardly run such a risk; and some sort of concurrent control, with all its evils and risks, seems to be necessary. And yet financial independence is the first essential to genuine autonomy.

But, it may be said, if the Irish Government go beyond the law, the Irish Courts may be asked to interfere; and in the event of their refusal, the Bill provides an appeal to the Judicial Committee in London. No doubt it does, but in practice the person aggrieved might have very great difficulty in making the remedy effective. He must obtain a decision in his favour from the Judicial Committee of the Privy Council, at no small cost of money and personal odium; and the decision of that “alien” tribunal (as it would be called) must then be enforced under the jurisdiction of a Government which (on the hypothesis which we are considering) would be unfriendly, by judges and executive officers appointed and perhaps removable by that authority, and in the midst of a population hostile to “foreign” interference. Is it extravagant to suppose that the complainant would not gain much by his appeal to Cæsar?

And even if we suppose the Irish Legislature and Executive to confine themselves within the letter of the Act, are the checks of any real value? The Irish Parliament might still interfere with contracts, or might validate contracts now held to be void as contrary to public policy. They might defeat the Mortmain Acts. They might deal as they thought fit with internal trade; and the great industries of Belfast and its neighbourhood might find their views on trade questions of no avail. The Irish Legislature might create new offences and institute new tribunals; and the reference in the Bill to “due process of law” would not necessarily secure trial by jury or by an impartial tribunal.

It is said that legislation of this character would be subject to the veto of the Crown. But that veto is to be exercised on the advice of the Irish Ministry subject to any instructions given by the Sovereign; and so long as an Irish Legislature is entitled to withhold Irish supply, a veto against the advice of the Irish ministry would surely tend to become impossible.

Again, it is said that an unjust law passed by the Irish Parliament might be repealed by the Imperial Parliament. Doubtless the technical right would exist, as in the case of the Colonies; but no one dreams that, with “responsible” government existing in Ireland and Irish representatives at Westminster, it would in practice be used. The Imperial Government has never been known to interfere with the legislation of a self-governing colony except where Imperial interests are concerned, or where a fraud on the colony can be established; and the same rule would obtain in the case of Ireland.

Lastly, it is said that in the last resort there is the British Army. But if the civil power in Ireland does not call in the military force, how can the latter be used to enforce the law? Are the forces to be controlled from England, and what is this but a counter revolution? It is hardly worth while to liberate Ireland from the peaceful rule of the Imperial Government in order to govern her by military force.

But in fact the so-called “safeguards” would not last. Professor Dicey and Professor Morgan, writing from opposite sides of the controversy, agree in holding that no colony would tolerate them for a moment; and it is incredible that Ireland, with a Parliament of her own, would submit to them for more than a few years. Suppose the majority of the Irish Legislature to grow weary of the “safeguards,” and to demand their repeal. The Imperial ministry might refuse, but the reply of the Irish ministry (if in command of a majority in the Irish House of Commons) would be to resign and to make the government of Ireland impossible except by force. And if Ireland were still represented in the Imperial Parliament, the new “sorrows of Ireland” would find eloquent and insistent expression there. What, then, would England do? What could she do, except, after a futile struggle, to give way? The truth is, that if you part with the executive power, all checks and “safeguards” are futile. Mr. Redmond eagerly “accepts every one of them,” and will accept others if desired; for he knows that they must prove ineffective. “If,” said Lord Derby in 1887, “Ireland and England are not to be one, Ireland must be treated like Canada or Australia. All between is delusion or fraud.”

IRISH REPRESENTATION AT WESTMINSTER.

The hybrid form of government proposed in the Home Rule Bills of 1886 and 1893 gave rise to a further difficulty, and one which went far towards wrecking them both. Should Ireland under Home Rule be represented at Westminster by its members and representative peers? Under a system of Gladstonian Home Rule there appear to be only three possible answers to this question. The Irish representatives may be excluded altogether, they may be retained altogether, or they may be retained in diminished numbers and with some limitation on their voting powers.

The total exclusion clause in the Bill of 1886 was one of the most unpopular parts of an unpopular Bill. It was immediately urged that this arrangement was virtually equivalent to separation, and Mr. Gladstone admitted that the argument had force. Since 1886 public sentiment has advanced in the direction of a closer Imperial unity, and it is unlikely that the country will recur in 1912 to a proposal which in 1886 was admitted to be intolerable. Moreover, if the British Parliament is to retain control of the whole foreign policy of the kingdom, and what is likely to be of enormous importance in the future of its whole fiscal policy, it would be manifestly unjust to deny to Ireland a voice and vote in such matters. How would it be possible, for instance, to discuss the effect upon agriculture of a Tariff Reform Budget in the absence of competent representatives of the Irish farmers, or to consider the yearly grant to be made (as it is said) in aid of Irish finance without the assistance of any representatives of Ireland?

A recognition of the difficulties in the way of total exclusion led Mr. Gladstone to propose, in 1893, what was known as the “popping-in-and-out clause,” under which Irish members would have sat at Westminster, but would have voted only on Imperial measures. The best criticism of this attempt to distinguish between local and Imperial matters was supplied on another occasion by Mr. Gladstone himself:

“I have thought much, reasoned much, and inquired much with regard
to that distinction, but I have arrived at the conclusion that it
cannot be drawn. I believe it passes the wit of man.”

To distinguish between matters which might and those which could not affect Ireland was impossible to the ordinary man, and the device of committing all matters of special difficulty to the decision of Mr. Speaker had not then its present vogue. Further, it was obvious that under such a system a British Ministry might have on one day, when English or Scottish affairs were under discussion, a commanding majority; but on the next, when a vote possibly affecting the sister island was in question, might find itself labouring in the trough of the sea; while on the third day, that vote having been disposed of and the Irish members having taken their leave, it might rise once more on the crest of the wave. The proposal was too ludicrous to be long defended. The sense of humour of the House prevailed over Mr. Gladstone’s earnestness, and he fell back on inclusion for all purposes.

But inclusion for all purposes had its own difficulties. Under the Gladstonian system the Imperial Parliament would have considered, not only matters affecting the whole kingdom, but also purely English or purely Scottish affairs; and to give to the Irish representatives the control in their own Parliament of purely Irish affairs, and also a voice at Westminster on matters affecting England or Scotland only, was obviously unjust. Such a power would have been used, not for the benefit of England or Scotland, but as an instrument for wresting further concessions for Ireland.

“I will never be a party,” said Mr. Gladstone at one time, “to allowing the Irish members to manage their own affairs in Dublin, and at the same time to come over here and manage British affairs. Such an arrangement would not be a Bill to grant self-government to Ireland, but one to remove self-government from England; it would create a subordinate Parliament indeed, but it would be the one at Westminster, and not that in Dublin."

The problem seems insoluble because, under a hybrid (or Gladstonian) system of Home Rule, it is insoluble. If a clear line is taken, there is no difficulty under this head. If full “responsible” or colonial government is granted, clearly representation in the Imperial Parliament (I do not now speak of a federal assembly) is an anomaly. On the other hand, if nothing more is in question than the extension of local government generally known as Devolution, then adequate representation in the Imperial Parliament is a matter of course. If a federal government is established, each member of the Federation must needs be represented in the federal Parliament; but in that case there must be no attempt to entrust to the same assembly both the duties of the federal Parliament and those of a Legislature for one of the federating states. It was this attempt to treat the Imperial Parliament as the local or state Legislature for Great Britain, and also as the federal Parliament for Great Britain and Ireland, which was fatal to Mr. Gladstone’s proposals.

FEDERALISM.

These considerations bring us face to face with Federalism, or, to use the phrase which to so many perplexed Liberals has seemed to point the way to safety, “Home Rule all round.” The expression covers a wide field, and before any opinion can be pronounced upon the proposal, it is essential to know what its advocates in fact desire.

To some the phrase means nothing less than Gladstonian Home Rule “all round,” in other words that we should meet the objections to dissolving the legislative and executive Union with Ireland by dissolving also the older Union with Scotland, and even (for some do not shrink from the reductio ad absurdum) the yet older unity of England and Wales. Consider what this means. For more than two hundred years the English and Scottish races have been united by a constitutional bond strengthened by mutual respect and good feeling, and Scotsmen, like Englishmen, have taken their part in the government of these islands. If in the division of labour and of honours there has been a balance of advantage, it has not been against the virile Scottish race, from which have sprung so many of our great soldiers and administrators, so many leaders of the nation. And such a combination is to be broken up, and Scotland to become a colony, because Ireland, unwilling to bear her share in the duties of government, desires to be reduced to that status! To such a proposal Mr. Gladstone’s phrase about Home Rule applies in all its force:

“Can any sensible man, can any rational man, suppose that at this time of day, in this condition of the world, we are going to disintegrate the great capital institutions of this country for the purpose of making ourselves ridiculous in the sight of all mankind, and crippling any power we possess for bestowing benefits through legislation on the country to which we belong?”

The proposal would be incredibly stupid, if it were not recklessly mischievous.

But to most advocates of the federal system the word means less than this; and the conception, usually vaguely expressed, is that the relations of England, Scotland, and Ireland, should be something like those of the communities which make up (to quote instances commonly given) the German Empire, the Swiss Federation, the United States of America, or the British self-governing dominions of Canada, Australia, and South Africa. So expressed, the aspiration for a federal union deserves respectful consideration.

In the first place, it must not be forgotten that no proposal of this nature has yet been put forward, even in general terms, by any English or Irish Party. Mr. John Redmond, the leader of the Irish Nationalists, has indeed said that he and his friends “were only asking what had already been given in twenty-eight different portions of the Empire:" and a speaker usually more careful in his language lately suggested to his audience that they should

“ask the twenty-eight Home Rule Parliaments if the Empire would be
split in pieces if there were a twenty-ninth.”

But in order to make up the number of Parliaments and Legislatures within the Empire to twenty-eight it is necessary to include in one category the Parliament of the United Kingdom, the colonial Parliaments of Newfoundland and New Zealand, the federal Parliaments of Canada and Australia, the provincial or state Legislatures (widely differing from one another in their constitution and powers) comprised in those Federations, the Union of South Africa and its constituent provinces, and the tiny assemblies surviving in the Channel Islands and the Isle of Man. From a reference so vague and confused no inference as to the real meaning or desire of either speaker can safely be drawn.

But let us put aside, with the foreign confederacies (which have in most cases been achieved or maintained by armed conflict), the practically independent Parliaments within the British Empire, and confine ourselves to the Federations of Canada and Australia, and to the Union (sometimes incorrectly called a Federation) of South Africa.

In the first place, it is not immaterial to observe that each of the Legislatures here referred to resulted, not from the dissolution of an existing union, but from the voluntary assumption by communities formerly independent of one another of a closer bond. In other words, there was in each case a real Jaedus or treaty, not imposed by the Imperial power, but having a local origin and springing from the need of common action. The operative force was centripetal; and as the force continues to operate, the tendency of the mass is towards a chemical in lieu of a mechanical fusion. But in the case of the United Kingdom a change from organic union to Federation would be the beginning of dissolution; and the centrifugal force, once set in motion, might lead further in the same direction.

Again, there can be no true federation without (1) provincial legislatures and executives, (2) a central Parliament and executive, (3) a careful definition of the powers of each, and (4) a federal court to which should be entrusted the duty of determining questions arising between the federal and provincial governments and legislatures. If, therefore, provincial or state Governments are created for Ireland and for Scotland, a like Government should logically be created for England. Are we prepared to see four (or, if Wales be added, five) legislatures, and four (or five) executives, in these islands? Have we considered the possible effect on our whole system of government, on the theory of Cabinet responsibility to Parliament, on the powers of the House of Commons over grievance and supply? Must not each unit in a Federation be put as regards financial matters upon a like footing; and, if so, can Ireland bear her share? Is federation consistent with the predominance of one state, England, in wealth and population? These questions are vital, and none of them have received consideration. By declaring in general terms for Federalism you go but a little way.

And if we treat the proposal for Federation as indicating a desire to adopt a constitution under which the relations of the United Kingdom to each of its constituent parts would be as the relation of some one of the three self-governing Dominions to the states or provinces of which it is composed, the question remains, which of those Dominions should be adopted as a model? For they differ not only in form but in essence.

Under the British North America Act, 1867, and the amending statutes, there is “one Parliament for Canada” (sec, while each province has its Legislature. Each provincial Legislature is empowered exclusively to make laws in relation to certain specified subjects (including property and civil rights and the administration of justice), and also in relation to “all matters of a merely local or private nature in the province”; while the Dominion Parliament may “make laws for the peace, order, and good government of Canada in relation to all matters not coming within” the classes of subjects assigned exclusively to the provincial Legislatures. The division of functions has given rise to much confusion and litigation; but, speaking generally, the trend of judicial decision has been towards a wide interpretation of the provincial powers. The “residuary powers” are in the Dominion Parliament.

The constitution of the Commonwealth of Australia, as defined by the Commonwealth of Australia Constitution Act, 1900, is of a different character. The Federal Parliament is entrusted with power to make laws with respect to a number of subjects divided into no less than 39 classes (sec; the State Legislatures have concurrent powers of legislation, but in case of conflict the law of the Commonwealth is to prevail over the State law (sec. The “residuary powers” are in this case left to the States. There is power to alter the Constitution with the consent of a majority of the electors in a majority of the States and of a majority of the electors of the Commonwealth (sec a power which has been freely used.

The case of South Africa is sometimes cited as a precedent for loosening the bonds in the United Kingdom. It is a strong precedent for closer union. The South Africa Act, 1909, created in fact as well as in name, not a Federation but a true Legislative Union. Under the Act, the South African colonies were “united in a legislative union under one government under the name of the Union of South Africa” (sec. The legislative power is vested in the Parliament of the Union (sec, which has full power to make laws for the peace, order, and good government of the Union (sec. In each province (formerly a colony) there is an administrator appointed by the Governor-General of the Union in Council (sec, and a Provincial Council (sec; but the powers of the Provincial Councils are confined within narrow limits (sec, and their ordinances (they are not called laws) have effect within the province as long as and so far as they are not repugnant to any Act of the Union Parliament (sec. The Supreme Courts of the old colonies become provincial divisions of the Supreme Court of South Africa (sec, and the colonial property and debts are transferred to the Union (sect-124). In fact, in South Africa, where, as in Ireland, the distinction in the past has been racial and not territorial, Union and not Federation has gained the day. It is safe to prophesy that the coming proposals of the Government will not follow the South African plan.

DEVOLUTION.

The South African precedent leads naturally to a few observations on the proposals for the extension of local self-government, usually classified under the head of Devolution. These proposals differ, not in degree only but in kind, from schemes for the granting of responsible government, or Gladstonian Home Rule. Under all devolutionary schemes, properly so-called, the central Parliament and executive remain the ultimate depositaries of power; and the powers entrusted to local bodies are administrative only, and can be resumed at will. The Acts by which County Councils were set up, first in Great Britain and afterwards in Ireland, were steps in this direction. The Welsh Intermediate Education Act, 1889, was another. The establishment by the Agriculture and Technical Instruction (Ireland) Act, 1899, of a Council of Agriculture, as Agricultural Board, and a Board of Technical Instruction, was a third. By these statutes wide powers are delegated to representative bodies directly or indirectly elected by popular vote; but in each case the delegated powers are strictly defined, their exercise is made subject to central control, and the right of Parliament to modify or withdraw any of them is absolute and unquestioned. The appointment by the House of Commons of a Grand Committee for Scottish Bills is another experiment of a similar character, though on different lines. Such delegations of power are consistent with the maintenance in its entirety of the Union of the Kingdom, and there is no reason whatever why further progress should not be made in the same direction. The events of 1907 are evidence that Devolution, regarded merely as a means of satisfying the political cry for Home Rule, is indeed “dead.” But when the din of political battle has once more passed by, it may be possible to obtain consideration for a moderate and clearly defined scheme of delegation which, if applied not exclusively to Ireland, but to the whole country, might relieve the House of Commons of much of its work, and strengthen the habit of local self-government throughout the United Kingdom.