Against Home Rule (1912) Part 5

"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,"[30]

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 owners.h.i.+p 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."[31] Hitherto we have, broadly speaking, kept the peace. That we should now forsake this duty, and, was.h.i.+ng 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 const.i.tutional 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 pa.s.sed 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[32] 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 a.s.sembly of 103 members to be returned by the existing parliamentary const.i.tuencies in Ireland. A Bill introduced into the Irish Legislature was to pa.s.s both Houses; but in the event of disagreement the proposals of the Legislative a.s.sembly 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 a.s.sent 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, a.r.s.enals, 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 a.s.sociations 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 t.i.tles 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 s.h.i.+pping (except as respects inland waters and local health or harbour regulations); or

"(9) Lighthouses, buoys, or beacons within the meaning of the Merchant s.h.i.+pping 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 pa.s.sing 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 const.i.tution of any religious body; or

"(4) Abrogating or prejudicially affecting the right to establish or maintain any place of denominational education, or any denominational inst.i.tution or charity; or

"(5) Whereby there may be established or endowed out of public funds any theological professors.h.i.+p, 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 inst.i.tution const.i.tuted 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, munic.i.p.al 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 pa.s.sing 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 a.s.sembly; 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[33]--

"An independent Irish Executive will possess immense power. It will be able by mere administrative action or inaction, without pa.s.sing 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 a.s.sociation 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 acc.u.mulated capital of the Irish Church.[34]

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.[35] 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.[36] 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.[37]

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 a.s.serted 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 a.s.sume 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 a.s.sume 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 Caesar?

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 inst.i.tute 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.[38]

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 ent.i.tled to withhold Irish supply, a veto against the advice of the Irish ministry would surely tend to become impossible.