[Sidenote: As regards the English Const.i.tution.]

As regards the Const.i.tution of England--

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

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

_Secondly._--The British Parliament, whatever be its theoretical authority, will cease under the Gladstonian Const.i.tution to pa.s.s laws for Ireland, and will not impose any taxation on Ireland in addition to the contribution which Ireland is compelled to pay under the Const.i.tution.

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

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

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

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

That the existence of these three bodies, each normally exercising the different functions or powers I have attributed to them, const.i.tutes an unmistakable, and I should myself say a fundamental, change in the existing English Const.i.tution with its one sovereign Parliament of the United Kingdom, hardly in my judgment requires or admits of proof. If the change be denied, I have no course but to leave the decision of the question whether such a change can be fairly ignored to the intelligence of my readers.[66]

The Gladstonian Const.i.tution, if it worked in the way contemplated by its authors--if everything, that is to say, went exactly as it was wished, and everybody acted exactly in the manner in which const.i.tutionally they ought to act--would provide a complicated but, as I have already said, most ingenious solution of the problem before us.

The British Parliament would sit at Westminster undisturbed by any Irish obstructives, and legislate for Great Britain and the whole British Empire in accordance with the wishes of the people of England and Scotland. Not only would Irish obstruction vanish, but what is even better, the necessity of considering Irish questions at all would disappear. English legislators would not be called upon to pay more attention to the affairs of Ireland than to the affairs of Canada or of New Zealand. The Irish Parliament would take the whole burden of legislation for Ireland off our hands, and Irishmen if they did not like Irish laws would have n.o.body to complain of but Irish legislators. But the Irish Parliament whilst it saved England from all trouble would, if the Const.i.tution worked properly, give England no trouble whatever. If Bills were proposed or Acts pa.s.sed at Dublin in violation of the Const.i.tution they would be p.r.o.nounced void by the Privy Council, and all Ireland would at once acquiesce in the final decisions of that exalted tribunal. If on the other hand the Irish House of Parliament were to pa.s.s enactments which though not unconst.i.tutional were inexpedient, then foolish proposals would be nullified by the veto of the Lord-Lieutenant.

The contribution from Ireland would be duly collected and be paid up to the day, since its collection would lie in the hands of British officials; and should any difficulty arise, the collectors would be aided by the Irish Court of Exchequer, the Judges of which would be appointed by the English Government, and the judgments of the Court of Exchequer could, if need were, be enforced by the British Army. This paper federation, in short, looks as promising as paper Const.i.tutions generally do. It appears at first sight to combine the merits of American Federalism and of Colonial independence. To see, however, whether the Gladstonian Const.i.tution gives any real promise of fulfilling the hopes which it seems to hold out, let us examine how far it really fulfils the conditions on which alone, as we have already pointed out, Home Rule can possibly be accepted by the people of Great Britain.

[Sidenote: 1st Question.--Is sovereignty of Parliament preserved?]

_1st Question._--Is the Gladstonian Const.i.tution consistent with the sovereignty or ultimate legislative supremacy of the British Parliament?[67]

It is well to make clear to ourselves the precise meaning of this enquiry. It is nothing else than this: Do or do not the provisions of the Gladstonian Const.i.tution either legally or morally impair the right of the British Parliament when sitting at Westminster without having summoned a single representative from Ireland to legislate (e.g. pa.s.s a Coercion Act) for Ireland, and if need be to repeal of its own authority all or any of the provisions of the Gladstonian Const.i.tution, including the very provision under which it is declared in substance that the Const.i.tution shall not be alterable except by the Imperial Parliament, which consists, as already noted, of the British Parliament and the Irish Parliament? To put the same matter in another shape, the enquiry is whether, under the Gladstonian Const.i.tution, the British Parliament does or does not retain the sovereignty now admittedly possessed by the Parliament of the United Kingdom.[68]

Let us first consider the matter as a pure question of const.i.tutional law.

[Sidenote: As a question of const.i.tutional law.]

The inquiry then is whether a Judge in England or Ireland resolved to do his duty would or would not be bound to treat as invalid an Act pa.s.sed by the British Parliament either inconsistent with or, to put the matter more strongly, actually repealing of such Parliament's own authority the provisions of the Gladstonian Const.i.tution, or in other words of the Government of Ireland Bill, which would then, as we are a.s.suming the Gladstonian Const.i.tution to be in existence, have become the Irish Government Act.

Such a Judge would have to consider a question to which English Courts are now quite unaccustomed as regards Acts pa.s.sed by the Parliament of the United Kingdom. The reason why they are unused to solve the particular kind of question supposed to arise under the new Irish Const.i.tution is, that as the Parliament of the United Kingdom is undoubtedly a sovereign body, the validity of its enactments is in any British Court beyond dispute. The reason why the problem might under the Gladstonian Const.i.tution require an answer is, that the question might arise whether the British Parliament were or were not a sovereign body.

Our Judge would find the question more difficult to answer than is readily admitted by English lawyers not versed in any const.i.tution except their own. He would have to consider the language and effect of the Irish Government Act in the light of certain propositions which are now, and at the supposed pa.s.sing of that Act must have been, true of the Parliament of the United Kingdom.

These propositions may be thus stated, roughly indeed, but with sufficient accuracy for our purpose:--

The Parliament of the United Kingdom is admittedly the sovereign of the whole British Empire.

The Parliament of the United Kingdom because it is a sovereign body can make laws for every part of the British Empire, and can legally make or unmake any law, and establish, alter, or abolish any inst.i.tution (including in that term the Const.i.tution of the Canadian Dominion or of Victoria) existing within the limits of any country subject to the British Crown.

The Parliament of the United Kingdom just because it is a sovereign body cannot, whilst retaining its position as sovereign of the British Empire, be itself bound by any Act of Parliament whatever.

To recur to an instance which is pre-eminently instructive, Parliament conferred in 1867 upon the Dominion of Canada as large a measure of independence as is compatible with a colony's maintaining its position as part of the British Empire. Yet the Parliament of the United Kingdom retains now, as ever, the indisputable legal power to change or abolish the Const.i.tution of the Dominion.

The Parliament of the United Kingdom, just because it is a sovereign body, though it cannot remain a sovereign and place a legal limit on its own powers, can, like any other sovereign, e.g. the Czar of Russia, abdicate its sovereignty in reference to the whole, or it may be to part of the Crown's dominions; and the Parliament of the United Kingdom can, just because it is a sovereign body, do what is at bottom the same thing as abdicate, namely, merge its own powers in those of another sovereign body, or, in other words, form, or aid in forming, a new sovereign for the British Empire.

This proposition has during the Home Rule controversy been occasionally, in words at least, disputed or questioned by the supporters of Mr.

Gladstone's policy, and language has been used which seems to imply that a sovereign power such as the Parliament of the United Kingdom can never by its own act divest itself of sovereignty. I can hardly think that the able controversialists who seem to maintain this doctrine really meant to contend for more than the admitted principle that a sovereign cannot while remaining a sovereign limit his sovereign powers. If, however, it be seriously suggested that the Parliament of the United Kingdom cannot divest itself of sovereignty, the suggestion is as a matter of argument untenable, and this for more than one reason.

An autocrat, such as the Russian Czar, can undoubtedly abdicate; but sovereignty, whether it be the sovereignty of the Czar or of Parliament, is always one and the same quality. If the Czar can abdicate, so can Parliament. The Czar again could, instead of abdicating in the ordinary sense of the term, const.i.tute a new sovereign body for the government of Russia, of which he might himself be a part. Thus he may undoubtedly give Russia a const.i.tution like that of England, under which the Czar and two Houses of Parliament might together become the sovereign of the Russian State, and no const.i.tutionalist would dream of maintaining that the new power thus const.i.tuted was the less supreme owing to the fact that one of its members, namely the Czar, had at one time been himself the real sovereign of Russia. Here again what is true of the Czar is true of Parliament. The Parliament of the United Kingdom certainly might become a part of another sovereign body, or might join in const.i.tuting a sovereign power supreme throughout the British Empire of which Parliament itself did not form a part. There is nothing in the theory of sovereignty to prevent the Parliament of the United Kingdom from forming a const.i.tution for the whole British Empire under which the Parliament of the United Kingdom, the Victorian Parliament, the Parliament of the Canadian Dominion and so forth should become simply State Parliaments, whilst the whole British Empire was ruled by some Imperial Congress sitting, say, either in London or in Victoria. Nor need we in this matter have recourse to theory. The present Parliament of the United Kingdom is itself a monument of the historical fact that sovereign Parliaments can divest themselves of sovereignty. For the Parliament of the United Kingdom is itself the result of the abdication of supreme power by sovereign Parliaments. The Union with Scotland was not, as Englishmen often, I suspect, fancy, the absorption of the Parliament of Scotland in the Parliament of England. The transaction bears, when carefully looked at, a quite different character. Up to the year 1707 there existed an English Parliament sovereign in England, and there existed a Scotch Parliament sovereign in Scotland. These two sovereign bodies in negotiating the Treaty of Union acted with scrupulous, and on the Scotch side with punctilious, independence. Neither sovereign body would consent to be absorbed in the other. What they did agree to was to const.i.tute a new State, namely, the United Kingdom of Great Britain, and each to surrender their separate sovereignty in favour of a new sovereign, namely, the sovereign Parliament of the United Kingdom. The English Parliament no more became supreme in Scotland than the Scotch Parliament became supreme in England. The old Parliament of each country abdicated and lost its ident.i.ty in the New Parliament of Great Britain.

In theory the Treaty of Union between Great Britain and Ireland bore exactly the same character as the Treaty of Union between England and Scotland. But on this point I do not care strongly to insist, because at the present moment every part of Irish history excites controversy.

When, however, the excitement of the day has pa.s.sed by, no one will dispute that 22 Geo. III. c. 53 and 23 Geo. III. c. 28 const.i.tuted the renunciation by the British Parliament of sovereignty over Ireland. The difference between the limitation of sovereignty and the surrender of sovereignty has been pressed far enough for my present purpose; no principle of jurisprudence is more certain than that sovereignty implies the power of abdication, and no fact of history is more certain than that a sovereign Parliament has more than once abdicated or shared its powers. To argue or imply that because sovereignty is not limitable (which is true), it cannot be surrendered (which is palpably untrue) is to confuse together two distinct ideas, and is like arguing that because no man can while he lives give up, do what he will, his freedom of volition, therefore no man can commit suicide.

The Parliament of the United Kingdom, further, whilst because it is a sovereign body it cannot impose any legal limit to the exercise of its own power, may so express an intention to use or not to use its power in a particular way as to excite expectations which it will be extremely difficult or hazardous to disappoint, and so may find itself morally fettered as to its subsequent legislative action.

A notorious instance, taken from our const.i.tutional history, ill.u.s.trates this proposition. The statute 18 Geo. III. c. 12 declares in substance that Parliament will not impose any tax on any colony in North America or in the West Indies. The history of the statute is told by its date--1778. Now no const.i.tutional lawyer will contend that the Parliament of the United Kingdom is legally bound by this Act. If Parliament were to impose an income tax on Jamaica to-morrow the impost would be legal, and could, no doubt, be enforced. But the Declaratory Act of 1778 makes it morally impossible for Parliament to tax any colony. That the impossibility does not arise from a law is clear, because it applies with as much strength to colonies which do not fall as to colonies which do fall within the terms of 18 Geo. III. c. 12.

Victoria is not a colony in North America or in the West Indies, but Victoria is at least as well protected from Imperial taxation as is Barbadoes. The so-called Act establishes not a rule of law, but a precept of const.i.tutional morality. It does not theoretically limit, but it practically impedes and interferes with the legislative sovereignty of Parliament.

Our Judge with these propositions fully before his mind would scan the terms of the Gladstonian Const.i.tution, or in other words of the Irish Government Act. He would certainly come to the conclusion that the point for his decision was one of great nicety. Against the validity of any Act pa.s.sed by the British Parliament in contravention of the provisions of the Const.i.tution could be adduced the precise and formal enactment, pa.s.sed, be it noted, by the undoubtedly sovereign Parliament of the United Kingdom, that the Const.i.tution should be alterable in one way, and in one way only;[69] and if it were said that the body which pa.s.sed this enactment could also repeal it, then the Judge might consider that that body, namely the Parliament of the United Kingdom, had in effect ceased to exist, and that the successor to its sovereign powers, if any, was not the British Parliament, but the Imperial Parliament, the body which, under any view, had legal authority to alter the Const.i.tution.

No doubt there would be a great deal to be urged on the other side. The attention of the Judge would be called to the singular and ambiguous use throughout the Const.i.tution of the term Imperial Parliament, which it might be argued was meant to show that what I have called the British Parliament was to be identified with the Parliament of the United Kingdom. Reference would also be made to the ambiguous saving of powers contained in the 37th section of the Irish Government Act. The high and all-important enquiry as to the authority of the British Parliament sitting at Westminster would come to turn upon the studied ambiguities of one ill-drawn section of an Act of Parliament. There the legal question of the sovereignty of the British Parliament under the Gladstonian Const.i.tution may well be left. It is not within the scope of this work to deal with the draughtsmanship of the Government of Ireland Bill. It is easy to antic.i.p.ate what would be the practical result of that Bill's ambiguities if it pa.s.sed into an Act. Irish Judges would honestly take one view, English Judges would as honestly take another.

The Courts of Ireland would maintain that the Const.i.tution could be altered only in the method provided by the Const.i.tution, namely, by the Imperial Parliament. The English Courts would maintain that the Const.i.tution could also be altered by the British Parliament, which was itself the Parliament of the United Kingdom, and possessed the sovereignty inherent in the Parliament of the United Kingdom. No Court in either country could satisfactorily terminate the dispute. Force would no doubt settle what law had left undecided, but to interpret a Const.i.tution by power of arms is in reality to subst.i.tute revolutionary violence for const.i.tutional discussion.[70]

Let us next consider the matter before us, not as a question of const.i.tutional law, but as a question of public morality.

[Sidenote: As question of public morality.]

The enquiry then is whether under the Gladstonian Const.i.tution the legislative supremacy of the British Parliament is or is not morally and in fact impaired? It is extremely difficult to see how any candid person can answer this question except by the admission that for all practical purposes, and except on possible but very extreme occasions, the right of the British Parliament to legislate for Ireland is morally not only impaired but destroyed. The supporters of the Government of Ireland Bill have admitted again and again that it const.i.tutes what they term a Parliamentary compact; it embodies, in other words, a solemn contract between Great Britain and the people of Ireland that the British Parliament, whatever be its legal power, shall not legislate about Irish affairs without summoning Irish representatives to share in its deliberations. This covenant is made for great and valuable consideration, namely, the withdrawal of the Irish representatives from the Parliament of the United Kingdom, and the consequent acquisition by the British Parliament of power to legislate not only on every British but on every Imperial concern without consulting the wishes of the Irish people. This is in a moral point of view little less than a treaty; it is an engagement which England could not break, or incur the imputation of breaking, without dishonour. With all this every man of sense and of honour agrees; but if this be so, it is impossible to see how any one can maintain that this Parliamentary compact does not morally impair, as far as Ireland is concerned, the sovereignty or legislative supremacy of the British Parliament. It may be doubted whether the most earnest Gladstonian really and seriously maintains that under the Gladstonian Const.i.tution the British Parliament sitting at Westminster could or ever would legislate for Ireland in contravention at any rate of the patent and apparent meaning of the Const.i.tution. All that is really maintained is that the British Parliament would retain a legal power of doing that which would never be done by it. There is, however, it is suggested, convenience in retaining a nominal sovereignty which is not intended for real use. Convenience there may be, but there is also immense danger.

The Irish Parliament we will suppose acts in a way which is most annoying to England, but the Irish Parliament at the same time takes care not to violate a line of the Const.i.tution. The temptation to use our sovereign authority is great, and likely enough may prove irresistible; yet if we use it every Irishman, and many Englishmen for that matter, will accuse England of bad faith. No doubt a breach of the Const.i.tution by the Irish Parliament might be remedied by the use of the sovereignty reserved to the British Parliament. But it is difficult even then to see the great advantage of this reservation. In any case in which England would be morally justified in setting aside the terms of the high Parliamentary contract, she would be equally justified in suspending the Const.i.tution by the use of force. The employment of power becomes the more not the less odious because it is allied, or seems to be allied, with fraud. The miserable tale of the transactions which carried the Treaty of Union teaches at least one indisputable lesson--the due observance of legal formalities will not induce a people to pardon what they deem to be acts of tyranny, made all the more hateful by their combination with deceit. For the British Parliament to renounce the exercise whilst retaining the name of sovereignty is the very course by which to run a great risk of damaging the character without any certainty of increasing the power of Parliament.

The plain answer then to the enquiry on which we have been engaged is this:--

Under the Gladstonian Const.i.tution, as foreshadowed in the Government of Ireland Bill, the sovereignty of the British Parliament is legally rendered doubtful, and is morally reduced to nothing.

[Sidenote: Does Const.i.tution secure justice?]

_2nd Question._--Does the Gladstonian Const.i.tution secure justice?

The justice which the Const.i.tution ought to secure is twofold--justice to Great Britain, and justice to all cla.s.ses, including minorities, of Irishmen.

The just claims of Great Britain may roughly be summed up under the one claim, that Ireland should contribute her fair share to Imperial expenditure.

The Gladstonian Const.i.tution, nominally at least, makes fair provision that this claim should be satisfied. But any one who looks into the matter with care will find reason to think that as regards the exaction of payments from Ireland, which are already known by the hateful name of "tribute," Great Britain will find herself involved in this dilemma.

Either she must surrender the tribute, or else surrender all hope of attaining the main object for the sake of which it is proposed to grant Home Rule to Ireland. If the tribute is exacted, we may be sure that it will have to be exacted in the long run by British officials supported by a British army. Laws, we are told, which are otherwise just are hated in Ireland because they bear a foreign aspect, and come before the Irish people in a foreign garb. If this a.s.sertion be not true, then the whole case for Home Rule falls to the ground. If this a.s.sertion possess even partial truth, then it applies with far greater force to tribute than to law. It is almost an absurdity to suppose that people who hate good laws because they may be termed English will not detest a heavy tax which not only may be called, but in reality is, a tribute to England.

It is well to remember that a "publican" was a tax-gatherer, and that Roman publicans were far more hated than Roman Judges or Roman law. If England gives Ireland semi-independence, and at the same time makes Ireland pay tribute, all the conciliatory effects of Home Rule will be lost. If Home Rule is to have even a bare chance of producing in Ireland the contentment of Victoria, Ireland, the poorest of all civilized countries, must be freed from Imperial taxation, which would not be tolerated by the richest of our colonies. To this conclusion the advocates and the opponents of Home Rule may, I think, both come without grave dissatisfaction. Of all the sacrifices by which Ireland might be benefited, that sacrifice which England should make with the least regret is sacrifice of revenue. If, however, it be a.s.sumed, as the supporters of the Government of Ireland Bill must a.s.sume, that justice requires the contribution by Ireland of three or four millions annually to Imperial expenditure, then the Gladstonian Const.i.tution, if it provides for the satisfaction of the claims of Great Britain, does so at the cost of keeping alive Irish discontent. Nor is it at all certain that the payment of the tribute could in effect be easily secured. The practical working of the Const.i.tution might well be that Great Britain were impoverished and Ireland were angered.

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

The Gladstonian Const.i.tution ought to provide securities against executive and legislative oppression.

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

[Sidenote: Methods for securing just government.]