The Framework of Home Rule Part 12

(_a_) It will be bad for Ireland, in the first place, to have her energies weakened at the outset by having to find two complete sets of representatives, when she will be in urgent need of all her best men to do her own work. There is no a.n.a.logy with Quebec, Victoria, Ma.s.sachusetts, or Wurtemburg, which had all been accustomed to self-government before they entered their respective Federations.

Ireland has to find her best men, create her domestic policies, reconstruct her administration, and the larger the reservoir of talent she has to draw from the better. When true Federation becomes practical politics it will be another matter. By that time she will have men to spare.

(_b_) More serious objection still, retention in full numbers will, it is to be feared, tend to counteract the benefits of Home Rule in Ireland by keeping alive old dissensions and bad political habits. If, after long and hot controversy, a system is set up under which Great Britain can still be regarded as a pacificator--half umpire and half policeman--of what Peel called the "warring sects" of Ireland, it is to be feared that the Members sent to London may fall into the old unnatural party divisions; a Protestant minority seeking to revoke or curtail Home Rule, and a Nationalist majority--paradoxical survival of a pre-national period--seeking to maintain or enlarge Home Rule. These unhappy results would react in their turn upon the Irish Legislature, impairing the value of Home Rule, and making Ireland, as of old, the c.o.c.kpit of sectarian and sentimental politics. The same results would have happened if, simultaneously with the concession of Home Rule to Canada, Australia and South Africa, these Colonies had been given representation in the British Parliament.

(_c_) Whatever the extent of the danger I have indicated, inclusion in full numbers will tend to keep alive the habit of dependence on Great Britain for financial aid, a habit so ingrained, through no fault of Ireland's, that it will be difficult to break if the Parliamentary leverage is left intact. If ever there was a country which needed, as far as humanly possible, to be thrown for a time--not necessarily for a long time--upon its own resources, it is Ireland. Every other self-governing Colony in the Empire has gone through that bracing and purifying ordeal, accepting from the Mother Country, without repayment, only the loan of military and naval defence, and Ireland can imitate them without dishonour.

What is bad for Ireland is sure to be bad for Great Britain, too, and the bad effect in this case is sufficiently apparent. Imagine the result if Quebec, besides having her own Legislature and her own representatives in the Dominion Parliament, were to be represented also in the Ontario Legislature. Ireland, besides controlling her own affairs, free from British interference, would have a voice in British affairs, and sometimes a deciding voice. "If you keep the Irish in,"

said Mr. John Morley in 1886--and he meant in their full numbers--"they will be what they have ever been in the past--the arbitrators and masters of English policy, of English legislative business, and of the rise and fall of British administrations." That is a rather exaggerated account of the past, for had it been literally true Ireland would have had Home Rule long ago; and it was unduly pessimistic about the future, for it hardly made sufficient allowance for a change in Irish spirit as a result of Home Rule; but there is a truth in the words which everybody recognizes and whose recognition is one of the great motive forces behind Home Rule. Even a total change in Irish sentiments and parties would not remove the danger, and might intensify it by producing at Westminster a solid instead of, as at present, a divided, Irish vote. It would be truer, perhaps, to say what I said above, that retention of Members would tend to stereotype Irish parties and the mutual antipathy of Ireland and Great Britain.

2. Inclusion in full numbers (say 70) for limited purposes. This (with the figure of 80) was Mr. Gladstone's original proposal of 1893, and it took the form of a clause known as the "In and Out Clause," which purported to divide all Parliamentary business into Imperial, Irish, and non-Irish business, and to give Irish Members the right to vote only on Imperial and Irish subjects. Mr. Gladstone never disguised his view that a sound cla.s.sification was impracticable, and put forward the clause, frankly, as a tentative scheme for the discussion of the House. Like its successor, the "Omnes omnia" Clause, it was riddled with criticism, and it was eventually withdrawn. Without investigating details, the reader will perceive at once the hopeless confusion arising from an attempt to inject a tincture of Federalism into a unitary Parliament, forming part of an unwritten Const.i.tution of great age and infinite delicacy. It is not merely that it is absolutely impossible to distinguish rigidly between Imperial, Irish, and British business. The great objection is that there would be two alternating majorities in an a.s.sembly which is, and must be, absolutely governed by a party majority, and which, through that majority, controls the Executive. It "pa.s.sed the wit of man," said Mr. Gladstone, to separate in practice the Legislative and Executive functions in the British Const.i.tution. At present a hostile vote in the House of Commons overturns the Ministry of the day and changes the whole British and Imperial administration. A hostile vote, therefore, determined by the Irish Members, on a question affecting Ireland, such as the application to Ireland of a British Bill, would seriously embarra.s.s the Ministry, if it did not overturn it. The log-rolling and illicit pressure which this state of things would encourage may be easily imagined. A Ministry might find itself after a General Election in the position of having a majority for some purposes and not for others. That was actually the case in 1893, when Mr. Gladstone, with a majority, including the Irish Nationalists, of only 40, was carrying his Bill through Parliament. It is actually the case now, in the sense that if the Irish Nationalists voted with the Opposition, the Ministry would be defeated. Any change for the better in Irish sentiment towards Great Britain would _pro tanto_ mitigate the difficulty, but would not remove it, and might, as I suggested above, increase it, by the creation of a solid Irish vote. If Great Britain resents the present system, she alone is to blame. As long as she insists on keeping the Irish Members out of Ireland, where they ought to be, she thoroughly deserves their tyranny, and would be wise to get rid of it by the means they suggest. Until they are given Home Rule, they are not only justified in using their power, but are bound, in duty and honour, to use it. To reproduce in the Home Rule Bill, albeit in a modified form, conditions which might lead to the same results as before would surely be a gratuitous act of unwisdom.

3. Inclusion in reduced numbers for all purposes. By "reduced numbers"

is meant numbers less than the population of Ireland warrants. For the sake of argument we may a.s.sume the number to be 35, that is, approximately half the proper proportion; but directly we desert a scientific principle of allocation, the exact figure we adopt is a matter of arbitrary choice.

Mr. Gladstone appears to have contemplated this plan for a brief period in 1889; but he dropped it. Clearly it cannot be defended on any logical grounds, but only as a compromise designed, as it avowedly was, to conciliate British opinion. It would minimize but not remove the difficulties inherent in No. 1; and so far as it did lessen these difficulties, the representation given would be impotent and superfluous. That is why I have taken it last in order of the three possible methods of inclusion. It raises in the sharpest and clearest form the important question underlying the whole of the discussion we have just been through--namely, what are to be the powers delegated to the Irish Parliament and Executive, and what are to be the powers reserved to the Imperial Parliament and Executive?

If the powers reserved are small, it will be possible to justify not merely a small Irish representation in the House of Commons, but even under certain conditions the total exclusion of Irish members. Indeed, if the figure 35 corresponded to the facts of the case, one might as well abandon these painful efforts to "conciliate British opinion,"

accept total exclusion, and subst.i.tute Conference for representation. If the powers reserved are large, full representation in spite of all the crus.h.i.+ng objections to it, will be absolutely necessary, in order to safeguard Irish interests. Here is the grand dilemma, and it says little for our common sense as a nation that we should submit to be puzzled and worried by it any longer. Half the worry arises from the old and infinitely pernicious habit of regarding Ireland as outside the pale of political science, of ignoring in her case what Lord Morley has called the "fundamental probabilities of civil society." Let us break this habit once and for all and take the logical and politic course of total exclusion, with its logical and politic accompaniment, a measure of Home Rule wide enough to justify the absence of Irish representation at Westminster. That will be found to be the path both of duty and of safety.

Let it be clearly understood that lapse of time has not diminished appreciably the power of the arguments against the inclusion of Irish Members in the House of Commons. On their merits, these arguments are still unanswerable, and we had better recognize the fact. Mr. Balfour said, in 1893, "Those questions" (of representation at Westminster) "are not capable of solution, and the very fact that they are incapable of solution affords, in our opinion, a conclusive argument against the whole scheme, of which one or other of the plans in question must form a part." Speaking as a Unionist, Mr. Balfour was right, and, as Home Rulers, we should be wise to remember it.

Lastly, even if the question of inclusion in the House of Commons were "capable of solution," as it is not, there would remain the problem raised by the House of Lords. It is idle to ignore the fact that the bulk of the Irish peerage, and the a.s.sembly of which it forms part, has been for a century in consistent and resolute opposition to the views of the vast majority of Irishmen. The recent curtailment of its powers, whether a right or a wrong measure in itself, does not make it any the more suitable as an Upper Chamber, under a Home Rule scheme, for the decision of important Irish questions reserved for settlement at Westminster; indeed, the bare proposal is the best imaginable example of the extraordinary complications which would ensue from the introduction of a quasi-Federal element into a unitary Const.i.tution.

Federal Upper Chambers, so far from being hostile to State rights, are almost invariably framed on the principle of giving disproportionately large representation to the smaller States. In the United States and Australia, for example, every State, however small, has an equal number of Senators.

It will be clear now that there are two distinct ways of approaching the question of the framework of Home Rule. One may begin with the nature and extent of the powers reserved or delegated, and proceed from them to the inclusion and exclusion of Irish representation at Westminster, or one may begin with the topic of inclusion or exclusion and proceed from it to the nature and extent of powers. While premising that we must trust Ireland and evoke her sense of responsibility, I chose the latter of the two courses, because I believe it to be on the whole the most illuminating and trustworthy course. It is also the more logical course, though I should not have adopted it for that reason alone; and I have already given, I hope, some good reasons to show that in this matter logic and policy coincide. Englishmen pride themselves on the lack of logic which characterizes their slowly evolved inst.i.tutions, but they may easily carry that pride to preposterous extremes. Faced now with the necessity of making a written Const.i.tution which will stand the test of daily use they would commit the last of innumerable errors in Irish policy if, with full warning from experience elsewhere, they were to frame a measure whose unprecedented and unworkable provisions were the outcome of a distrust of Ireland which it was the ostensible object of the measure itself to remove.

IV.

IRISH POWERS AND THEIR BEARING ON EXCLUSION.

I pa.s.s to what I suggest to be the right solution: Total exclusion, as proposed by Mr. Gladstone in 1886, though he shrank from recommending what he knew to be its financial corollary. Mr. Bright regarded exclusion as the "best clause" of a dangerous scheme, and Mr.

Chamberlain has admitted that he attacked it, as he attacked the proposals for Land Purchase, which he knew to be right, in order to "kill the Bill."[79] I propose only to recapitulate the merits of exclusion before dealing with the alleged difficulties of that form of Home Rule, and in particular with the point on which the controversy mainly turns--Finance.

To give Ireland Colonial Home Rule, without representation in London, is to follow the natural channel of historical development. Ireland was virtually a Colony, and is treated still in many respects as an inferior type of Colony, in other respects as a partner in a vicious type of Union. We cannot improve the Union, and it is, admittedly, a failure.

Let us, then, in broad outline, model her political system on that of a self-governing Colony.

History apart, circ.u.mstances demand this solution. It is the best solution for Ireland, because she needs, precisely what the Colonies needed--full play for her native faculties, full responsibility for the adjustment of her internal dissensions, for the exploitation, unaided, of her own resources, and for the settlement of neglected problems peculiar to herself. As a member of the Imperial family she will gain, not lose. And the Empire, here as everywhere else, will gain, not lose.

These ends will be jeopardized if we continue to bind her to the British Parliament, and restrict her own autonomy accordingly. Reciprocally, we damage the British Parliament and gratuitously invite friction and deadlock in the administration either of British or of Imperial affairs, or both. Of the difficulties raised we can mitigate one only by bringing another into existence. Endeavouring to minimize them all by reducing the Irish representation to the lowest point, we either do a gross injustice to Ireland, by diminis.h.i.+ng her control over interests vital to her, or, by conceding that control, remove the necessity for any representation at all. Most Irish Unionists would, I believe, prefer exclusion to retention. One gathers that from the debates of 1893, and the view is in accordance with the traditional Ulster spirit, and the spirit generally displayed by powerful minorities threatened with a Home Rule to which they object on principle. It was the spirit displayed by the Upper Canadian minority, in 1838-39 (_vide_ p. 101), in threatening to leave the Empire rather than submit to Home Rule, and by the Transvaal minority in the lukewarm and divided support given to the half-baked Const.i.tution of 1905, and in the hearty welcome given to the full autonomy of 1906. How the Colonists expressed themselves matters nothing. We must make generous allowance for hot party feeling and old prejudices. The Canadian minorities did not really mean to call in the United States, nor does it signify a particle that some of the Johannesburgers vowed that anything could be borne which freed them from the interference of a Liberal Government. These opinions are transient and negligible. The spirit is essentially healthy. Paradox as it may seem, the uncompromising att.i.tude of Ulster Unionists, as voiced by the ablest representative they ever had, Colonel Saunderson,[80] is hopeful for the prospects of Home Rule. They fight doggedly for the Union, but I believe they would prefer a real Home Rule to a half-measure, and in making that choice they would show their virility and courage at its true worth.

Where are the dangers and difficulties of exclusion? The dangers first.

I believe, from a study of events in the last twenty-five years, that the strongest opposition to it was founded, not so much upon a reluctance to give Ireland powers full enough to render needless her representation at Westminster, but on a jealous desire to keep Irish Members under surveillance, as a dangerous and intractable body of men who would hatch mischief against the Empire if they were allowed to disappear from sight; the same kind of instinct which urged revolutionary Paris to stop the flight of Louis and to keep him under lock and key. In the case of Ireland it is possible to understand the prevalence of this instinct in 1886, though even then it was irrational enough. But in 1911 we should be ashamed to entertain it. Irish plots against the Empire have pa.s.sed into electoral scares, and if they had not, representation in London would be no safeguard. We should also dismiss the more rational but groundless view that Imperial co-operation necessitates representation in a joint a.s.sembly. Conference is a better method. Anyone who studies the proceedings of the last Imperial Conference and observes the number and variety of the subjects discussed and the numerous and valuable decisions arrived at, will realize how much can be done by mutual good-will and the pressure of mutual interest.[81]

It may be objected that, with one or two exceptions of quite recent date, the Colonies have contributed nothing to the upkeep of the Empire, except in the very indirect form of maintaining local military forces, that their present tendency --unquestionably a sound tendency--is to co-operate, not by way of direct money contribution to Imperial funds, but by the construction of local Navies out of their own money, and, in time of peace, under their own immediate control, and that Ireland cannot be allowed to follow their example. The objection has no point.

Ireland, through no fault of her own, has reached a stage (if we are to trust the Treasury figures) where she no longer pays any cash contribution to Imperial expenses, nor is it possible to look back with any satisfaction upon the enormous total of her cash contributions in the past. They were not the voluntary offerings of a willing partner, but the product of a joint financial system which, like all consequences of a forced Union, was bad for Ireland. If we consider that a similar attempt to extort an Imperial contribution from the American States led to their secession; that the principle was definitely abandoned in the case of the later Colonies; that, on the contrary, large annual sums raised in these islands were, until quite recent times, spent for purposes of defence within these Colonies; that in the South African War two hundred and fifty million pounds were spent in order to a.s.sist British subjects in the Transvaal to obtain the rights of freemen in a self-governing Colony; and that to this day indirect colonial contributions in the shape of local expenditure are small in proportion to the immense benefit derived from the protection of the Imperial Navy, Army, and Diplomacy, and from the a.s.sistance of British credit; if we then reflect that before the Union Ireland was, in the matter of contribution, somewhat in the same position as Canada or Australia to-day--that is, paying no fixed cash tribute, but voluntarily a.s.suming the burden, very heavy in time of war, of certain Army establishments; that for seventeen years after the Union contributions fixed on a scale grossly inequitable drove her into bankruptcy; that from 1819 until two years ago, she paid, by dint of excessive taxation and in spite of terrible economic depression, a considerable share, and sometimes more than her proportionate share, of Imperial expenditure;[82] if, finally, we remember that, cash payments apart, Irishmen for centuries past have taken an important part in manning the Army and Navy, have fought and died on innumerable battle-fields in the service of the Empire, and have contributed some of its ablest military leaders; if we consider all these facts soberly and reasonably, we shall, I believe, agree that it would be fair and right to place a Home Ruled Ireland in the position of a self-governing Colony, with a moral obligation to contribute, when her means permit, and in proportion to her means, but without a statutory and compulsory tribute.

What form should that contribution eventually take? Does it necessarily follow that Ireland should be given power to construct her own Navy, and raise and control her own troops? Let us use our common sense, and use it, let me add, fearlessly. If Ireland really _wanted_ full colonial powers, if, like Australia and Canada, she would be discontented and resentful at their denial, we should be wise to grant them, and rely on common interests and affections to secure friendly co-operation. Does it not stand to reason that a friendly alliance even with a foreign power, such as France, to say nothing of the far more intimate relations with a consanguineous Colony, is better business than any arrangement for common forces unwillingly or resentfully acceded to? But, as I pointed out in Chapter VIII., all these uneasy speculations about independent Irish armaments are superfluous. Ireland does not want separate armaments. The sporadic attempts to discourage enlistment in the Imperial forces are, as every sensible person should recognize, the results of refusing Home Rule. They would have occurred in every Colony under similar circ.u.mstances, and they do occur in one degree or another wherever countries agitate vainly for Home Rule. If Russia misinterprets such phenomena, we have, let us hope, more political enlightenment than Russia.

Ireland's strategical situation bears no a.n.a.logy to that of Australia and Canada, which, for geographical reasons, are compelled, as South Africa will be compelled, to make a certain amount of independent provision, not only for military, but for naval defence, and would be wanting in patriotic feeling if they did otherwise. New Zealand, on the other hand, is too small to be capable of creating a Navy, and rightly contributes to ours. We have arrived at an interesting psychological point when Australia and Canada both seem to be inclined to reserve, in theory, a right to abstain from engaging their Navies in a war undertaken by Great Britain, but n.o.body will be alarmed by this theoretical reservation. It is an insignificant matter beside the Naval Agreement reached at the last Conference (1911)--an agreement worth more than volumes of unwritten statutes--to the effect that the personnel of the colonial fleets is to be interchangeable with that of the Imperial fleet and that in a joint war colonial s.h.i.+ps are to form an integral part of the British fleet under the control of the Admiralty. With such an agreement in existence, it becomes superfluous to lay stress upon the fact that without formal and complete separation from the Mother Country in time of peace, the neutrality of a Colony would not be recognized by a belligerent enemy of Great Britain in time of war. In any case these developments have no concern for Ireland, which does not want, and need not be given, power to raise a local Navy. Nor, with regard to the regular land forces, will anything be changed. Troops quartered in Ireland will be, as before, and as in the Colonies now, under complete Imperial control. So will Imperial camps, magazines, a.r.s.enals, dock-yards. On the other hand, arrangements should certainly be made to permit the raising of Volunteer forces in Ireland. There are large numbers of Irishmen in the British Territorial Army, and Ireland sent five companies to the South African War. Though the poverty of the country will for a long time check the growth of Volunteer forces, it is the Union which presents the only serious obstacle to their establishment. No surer proof of the need for Home Rule could be adduced than the fact that it was held to be impossible to extend the Territorial system to Ireland. One of the objects of Home Rule is to remove this suspicious atmosphere. Whether local power to organize and arm Volunteers in Ireland should be given to the Irish authority, or, as in the Home Rule Bills of 1886 and 1893, reserved to the Imperial Government, is, if we trust Ireland, as we must, a secondary and not a vital matter, which would not affect the question of representation at Westminster.[83] Probably it would be most convenient to leave the matters in the hands of the Irish Legislature. In any case, the Command-in-Chief of all forces in Ireland, regular or volunteer, would, as in the Colonies,[84] be vested in the King.

The control of the Royal Irish Constabulary and Dublin Metropolitan Police does not affect the question of representation at Westminster.

With or without representation, Ireland should be given the control of all her own police forces from the first, without the restrictions imposed by the Bills of 1886 and 1893 with regard to Imperial control of the existing forces.[85]

With the important exception of taxation, with which I shall deal last, no other power which should properly be reserved to the Imperial Parliament, or delegated to the Irish Parliament, has any appreciable bearing upon the exclusion of Irish Members from the House of Commons.

Nor do any of them raise issues which are likely to be troublesome.

Common sense and mutual convenience should decide them. The Army, Navy, and other military forces I have already dealt with. The Crown, the Lord-Lieutenant, War and Peace, Prize and Booty of War, Foreign Relations and Treaties (with the exception of commercial Treaties), t.i.tles, Extradition, Neutrality,[86] and Treason, are subjects upon which the Colonies have no power to legislate or act, and of which it would be needless, strictly, to make any formal statutory exception in the case of Ireland, though the exception no doubt will be made in the Bill. Naturalization, Coinage, Copyright, Patents, Trademarks, are all matters in which the Colonies have local powers, whose existence, and the limitations attaching to them, are determined either solely by const.i.tutional custom or with the addition of an implied or express statutory authority.[87] The two former would, I should think, be wholly reserved to the Imperial Parliament. In the case of the latter three, which were wholly reserved in the Bill of 1886 and 1893, Ireland might be placed in the position of a self-governing Colony.[88]

In Trade and Navigation it would be wise to take the same course. The Home Rule Bill of 1886, without giving Ireland representation at Westminster, denied her all powers over Trade and Navigation. The Bill of 1893 gave her powers over Trade within Ireland and Inland Navigation, and these powers at any rate should be given in the coming Bill, together with the larger functions also; though Ireland would naturally leave in operation the great bulk of the statutes concerned, since they intimately affect the commercial and industrial relations of the two countries. For the rest, Ireland no more than the Colonies can be freed from a measure of Imperial control maintained by Acts like the Merchant s.h.i.+pping Act of 1894.

The Postal Service in Ireland should, as in the Bill of 1886, come under Irish control.

In the Home Rule Bill of 1893 (Section 34) it was laid down that for three years the Irish Legislature should not "pa.s.s an Act respecting the relations of landlord or tenant, or the sale, purchase, or letting of land generally." Such a provision repeated in the coming Bill would be inconsistent with the absence of Irish Members from Westminster. But I take it for granted that there is no question of its repet.i.tion. At first it might appear that Land Purchase should be distinguished from other branches of land legislation and reserved to the Imperial Government on the ground that it needs Imperial credit. I shall deal with this point fully in Chapter XIV., and only need here to express the view that Land Purchase cannot be separated from other branches of land legislation, or from the Congested Districts Board, or even from the control of the police, and that we are bound to give, and shall be acting wisely in giving, all these powers to the Irish Legislature from the first.

It is necessary perhaps to add that non-representation at Westminster does not in the smallest degree affect the complete legal supremacy of the Imperial Parliament over the subordinate Irish Legislature. This Legislature will in legal language be a "local and territorial" body, like those of the Colonies. It will be the creature of Parliament, and could be amended or even extinguished by it in a subsequent Act. The Bill of 1886 (perhaps because it never reached the Committee stage) said nothing explicit about the supremacy, though the Bill of 1893, while providing for representation at Westminster, repeatedly (and sometimes quite superfluously) affirmed it--in the Preamble, for example, and in a rider to Clause 2. The King's authority, through the Lord-Lieutenant, will be supreme in Ireland, as, through the Governors, it is supreme in the Colonies. Every Irish Bill, like every Colonial Bill, will require the Royal a.s.sent, given through the Lord-Lieutenant, who will correspond to the Colonial Governors. The Lord-Lieutenant, like his colonial counterpart, will have to exercise both his Executive and Legislative functions in a double capacity: in the first instance by the advice of his Irish Cabinet, but subject to a veto by the British Cabinet. This dual capacity has belonged to all Colonial Governors ever since the principle of responsible government was established. As I showed in earlier chapters, it was regarded even by Lord John Russell as impossible and absurd as late as 1840; but it ought by now to be understood by every educated man, and we may hope to be spared the philosophical disquisitions and hair-splitting criticisms which it evoked from men who should have known better in the Home Rule debates of 1893.

Laws framed at Westminster will be applicable to Ireland, as they are frequently made applicable to the Colonies.[89] Conversely, only through the express legislative authority of Westminster will an Irish, like a Colonial Act,[90] be held to operate outside the borders of Ireland.

Apart from the strict legal omnipotence of Imperial sovereignty, it is, of course, impossible to say now what the exact const.i.tutional position of Ireland will be under any form of Home Rule. No Bill can state it fully in set terms. Time, custom, and judicial decisions will build up a body of doctrine. It is so with the Colonies, whose exact const.i.tutional relations with the Mother Country are still a matter of juristic debate, and are only to be deduced from the study of an immense number of judicial decisions and of Imperial Acts pa.s.sed subsequently to the grant of the original Const.i.tutions. Some of these Acts I have already ill.u.s.trated. The one Act of general application, namely, the Colonial Laws Validity Act, cannot be read without the rest, though in form it appears to contain a complete set of rules. While giving general power to a self-governing Colony "to make laws for the peace, welfare, and good government of the Colony" (words which will also necessarily appear in the Home Rule Bill), the Act makes void all colonial laws or parts of laws which are "repugnant to the provisions of any Act of Parliament extending to the Colony to which such law shall relate," and this provision will no doubt, be applied, _mutatis mutandis,_ to Ireland, as it was in Section 32 of the Home Rule Bill of 1893. The Irish Legislature, that is, will be able "to repeal or alter any enactments in force in Ireland except such as either relate to matters beyond the power of the Irish Legislature, or, being enacted by Parliament after the pa.s.sing of this Act, may be expressly extended to Ireland."

It will be noticed that the words "beyond the power of the Irish Legislature" referred to the subjects expressly excepted in the Bill itself. This is one of the points in which the Irish Const.i.tution will bear at any rate a superficial resemblance to that of a Province or State within a Federation rather than to that of a self-governing Colony. The practice of expressly, and in the text of a Const.i.tution, forbidding a self-governing Colony to legislate upon certain subjects, or of expressly reserving concurrent or exclusive powers of legislation to the Mother Country, has fallen into disuse since the establishment of the principle of responsible government. Such restrictions were inserted in the Canadian Union Act of 1840, where the old right of the Mother Country to impose customs duties in the Colonies for the regulation of commerce was reaffirmed, and even in the Acts of 1855 for giving full powers of self-government to the Australian Colonies, which were forbidden to impose intercolonial customs, though they were expressly granted the power of imposing any other customs duties they pleased,[91]

but they do not appear in modern Const.i.tutions, for example in the Transvaal Const.i.tution of 1906. As I have indicated, this implies no change in the strict legal theory of Colonial subordination to the Mother Country; for, although the tendency of modern juristic thought is to ascribe "plenary" power to a Colony, restrictions nevertheless do exist in practice, and are contained, express or implicit, in a number of disjointed Acts.

A Federating Colony, on the other hand, like a foreign Federation, has in its own self-made, domestic Const.i.tution to apportion powers with some approach to precision between the federal and the provincial authorities, and in this respect the Irish Bill, in reserving certain powers to the Imperial Parliament, will resemble a federating Bill, and it should follow the American and Australian precedents in leaving residuary powers to the subordinate or Irish Legislature, not, in accordance with the Canadian precedent, to the Parliament at Westminster. That is an indispensable corollary of excluding Irish Members from Westminster.

In speaking of powers reserved or delegated, and of residuary or unallocated powers, I have thus far referred only to powers which must be exercised, or at any rate may need to be exercised, if not by the subordinate legislature, then by the superior Parliament. Those restrictions on the Irish Legislature which are imposed in order to protect the religious or economic interests of a minority within the State, or as a recognition that there are certain kinds of laws which it is morally wrong to pa.s.s, fall into an altogether different category. By implication they morally bind the superior Parliament too, and are irrelevant, therefore, to the question of representation. They will be necessary, no doubt, in the coming Irish Bill, though they need not be so extensive as those which are to be found in Clause 4 of the Bill of 1893, some of which are borrowed from the famous anti-slavery amendments of 1865-1869 to the Const.i.tution of the United States.[92] In inserting them we shall again be following the "Federal" rather than the "Colonial" model. No such restrictions have been imposed by the Mother Country upon any self-governing Colony. The nearest approach, perhaps, to such a tendency was the provision in the Transvaal Const.i.tution of 1906 (Section 39), that "any law whereby persons not of European birth or descent may be subjected or made liable to any disabilities or restrictions to which persons of European birth or descent are not also subjected or made liable" should be specially "reserved"--that is, sent home by the Governor--for the signification of the Royal pleasure; but no similar provision appeared in the Act of 1909 for const.i.tuting the South African Union. In Federal systems, on the other hand, such restrictions, taking the form of self-denying ordinances, are common, whether appearing in the Federal Const.i.tution itself or in the subordinate State Const.i.tutions. The Const.i.tution of the United States, for example, in addition to the anti-slavery provisions noted above, enacts that the National Government cannot (by Amendment I.) establish any religion or prohibit its free exercise, or (by Amendment V.) take private property for public use without just compensation, or (by Article 1, -- 9) grant a t.i.tle of n.o.bility. Neither (by Amendment XIV.

and Article 1, -- 10 respectively) can a State do these things. By Article 1, -- 10, a State cannot pa.s.s a law impairing the obligation of a contract. Exactly similar restrictions appear in many of the individual State Const.i.tutions. Others forbid the establishment of any church or sect; the introduction of armed men "for the suppression of domestic violence"; "perpetuities or monopolies," and a variety of other things.

a.n.a.logous provisions are to be found in the British North America Act, 1867 (const.i.tuting the Dominion of Canada), where the provincial Legislatures are forbidden to interfere with certain rights and privileges of religious bodies in the matter of education. There are no limitations of the kind in the Australian Commonwealth Act of 1900.

Australia, no doubt, correctly represents the tendency of modern thought on this matter. Some of the American safeguards have produced great inconvenience. Nor can it be denied that the most elaborately contrived legal safeguards are of less value than the moral safeguard afforded by the sense of honour, justice, and prudence in the community. The existence of these qualities in Ireland, as in other white countries, is the true foundation of Home Rule. Some day Irishmen will ask, as a united country, for the repeal of these statutory safeguards.

That brings me to the penultimate point of importance, which may be held to affect the inclusion or exclusion of Irish Members at Westminster--I mean the question of future const.i.tutional amendment. Here the colonial a.n.a.logies are a little complicated. Since the Australian Colonies Act of 1850, in the new grant of a Const.i.tution to a self-governing Colony, power has invariably been given to amend its own Const.i.tution, without, of course, detracting from any powers specified in it for preserving the sovereignty of the Mother Country. Canada, when federating in 1867, took the somewhat singular course of making no provision in her Federal Const.i.tution for its subsequent amendment, though, by Section 92 of the British North America Act, she gave her Provinces the exclusive right to amend their own Const.i.tutions, a right which three of them have used to abolish their Upper Chambers. The Dominion Const.i.tution, then, cannot be amended otherwise than by an Imperial Act. Such amending Acts are promoted by the Dominion Government without any specially devised machinery for ascertaining the public opinion of Canadians. Australia, on the other hand, when federating in 1900, made elaborate arrangements, which have been put several times into operation, for the amendment of the Federal Const.i.tution by the Australian people itself, without an Imperial Act. Now, it will follow as a matter of course that Ireland will be given powers, as in both the previous Bills,[93] to amend her own Const.i.tution within certain defined limits, after a certain lapse of time, and without encroaching upon Imperial authority. For my part I would strongly urge that the powers now to be conferred should be much wider; for I believe that Ireland alone can make a really perfect Const.i.tution for herself. But, that point apart, the question arises of the further amendment, outside such permissive powers, of the Home Rule Act itself, which will, of course, contain within its four corners the whole of the Irish Const.i.tution, so far as it can be written down. No special arrangements were made for such a contingency in the Bill of 1893, presumably because Ireland was to be represented at Westminster and would have a share in the making of any amending act. In the Bill of 1886, which excluded the Irish Members, Mr. Gladstone proposed (in Clause 39) that no alteration of the Act should be made (apart, of course, from points left for Irish alteration) except (1) by an Imperial Act formally a.s.sented to by the Irish Legislature, or (2) by an Imperial Act for the pa.s.sing of which a stated number of Members of both branches of the Irish Legislature should be summoned to sit at Westminster.

It will be clear, I think, now, in 1911, that this latter proposal is not worth revival. No substantial amendment of the Act should properly be made without the formal consent of the Irish Legislature, representing Irish public opinion, and the prior consultation with the Irish Cabinet which such consent would imply. If the lamentable necessity ever arose of amending the Act against the wishes of Ireland, the sudden invasion of Westminster by a body of angry Irish Members, too small to affect the result (for otherwise the attempt to amend would not be made) and large enough to revive the old political dislocation and pa.s.sion, would not simplify the process of amendment or be of value to anybody concerned. The proposal was probably only suggested by a vague leaning towards the Federal principle, which, in the present case, we should certainly reject. It serves indeed as one more ill.u.s.tration of the anomalies which might result from the inclusion of Irish Members at Westminster. No more unhealthy position could be imagined than one which would render it possible for an amendment of the Home Rule Act, whether in the direction of greater lat.i.tude or of stricter limitation, to depend solely upon the Irish vote in an a.s.sembly predominately non-Irish. That is not to the discredit of Ireland. The system would be just as indefensible, whatever the subordinate State concerned. It would be Federalism run mad, and would make Alexander Hamilton turn in his grave. It is worth while to note that, even under a sane and normal Federal system, the Irish Const.i.tution would be less easily alterable in either direction than under the plan of treating her as a self-governing Colony. In the latter case action is direct and simple, while most Federal Const.i.tutions are extraordinarily difficult to amend. The Dominion of Canada is only an apparent exception.

I turn lastly to Finance, the point which most closely affects representation at Westminster, and which distinguishes any form of quasi-Federal Home Rule most sharply from its alternative, "Colonial"

Home Rule.

All Federal systems necessarily involve a certain amount of joint finance between the superior and the inferior Government. The distribution of financial powers varies widely in different Federations, but all have this feature in common--that the central or superior Government controls Customs and Excise, and is to a large degree financed by means of the revenue derived from those sources. The United States Government, as distinguished from that of the individual States, pays in this way for almost its entire expenditure.[94] So does the Dominion of Canada;[95] while in the Australian Commonwealth the receipts from Customs and Excise alone more than cover the whole Commonwealth expenditure.[96]

Finance makes or mars Federations. Some Federations or organic Unions of independent States have come into being through a strong desire in the separate States to have, among other things, a common system of Customs, and in the case of the German Empire and the South African Union a Customs Union or _Zollverein_ has preceded Federation. These phenomena are the most marked ill.u.s.tration of the general truth that a common desire to federate, or unite, on the part of individual States is a condition precedent to a sound Federation or Union. On the other hand, finance, especially the question of joint Customs, has sometimes presented obstacles to a Federation which, on other grounds, was earnestly desired. The long delay in achieving the Australian Federation was largely due to the desire of New South Wales to maintain her Free Trade system, while the financial arrangements generally caused most of the practical difficulties met with in arranging the Federation both of Canada and Australia, and in their subsequent domestic relations. Nova Scotia in the former case, and Western Australia in the latter, held out to the last instant, and the former subsequently had to receive exceptionally favourable treatment. In both Federations some measure of friction is chronic, and in neither has a perfectly satisfactory system been evolved. The Union of Ireland and Great Britain in 1800 was in this respect, as in all others, a flagrant departure from sound principle.

The Customs Union which followed it was a forced Customs Union, and, together with the other financial arrangements between the two countries, has produced results incredibly absurd and mischievous. Some of these results I briefly indicated in Chapter V. In the following chapters I shall tell the whole story fully, and I hope to convince the reader that we should follow, not only historically, but morally and practically, the correct line of action if, in dissolving the Legislative Union, we dissolve the Customs Union also. That would involve a virtually independent system of finance for Ireland, and place her fiscally in the position of a self-governing Colony. If and when a real Federation of the United Kingdom becomes practical politics, she would then have the choice of entering it in the spirit and on the terms invariably a.s.sociated with all true Federations or Unions. That is, she would voluntarily relinquish, in her own interest, financial and other rights to a central Government solely concerned with central affairs.

I need scarcely point out in this connection the vital importance of the question of representation at Westminster. Ireland resembles the self-governing Colonies, and differs from Great Britain, in that the greater part of the revenue raised from her inhabitants is derived from Customs and Excise--that is, from the indirect taxation of commodities of common use. If she is denied control of these sources of revenue under the coming Bill, it will be absolutely necessary, in spite of all the concomitant difficulties, to give her a representation at Westminster which is as effective as it can be made. But let it be realized that we could not make her control over her own finance as effective as that exercised by a small State within a Federation, because such a State, however small, has equal, or at any rate disproportionately large, representation in the Federal Upper Chamber, and Federal Upper Chambers can reject Money Bills. The Upper Chamber in Ireland's case would be the House of Lords, where she could scarcely be given effective representation, and which, in any case, cannot reject Money Bills.

Let us now examine Ireland's claim for fiscal autonomy.