A Leap in the Dark Part 5

The Imperial Parliament remains in form unchanged, and retains the attribute of nominal sovereignty. But in Ireland the Imperial Parliament surrenders all, or nearly all, the characteristics of true and effective power; it retains in fact in Ireland nothing more than the right to effect under the semblance of a legal proceeding a revolution which after all must be carried out by force. For practical purposes it has no more power at Dublin than it has at Melbourne, _i.e._ it retains at Dublin scarcely any real power whatever.

For the sake of this nominal and shadowy authority the Imperial Parliament is itself transformed into a strange cross between a British Parliament and the Congress of an Anglo-Irish Federation.

The Irish Executive and the Irish Parliament become under the new const.i.tution the true and real Government of Ireland. But the Irish Government and the Irish people are fettered by Restrictions which would not be borne by the Government or the people of a self-governing colony.

These Restrictions are ineffective to bind, but they are certain to gall, and if taken together with onerous financial obligations to Great Britain, which whether just or not must have an air of hardness, and with the habitual presence in Ireland of a British army under the direction of the British Executive, lay an ample foundation for the most irritating of conflicts.

The new const.i.tution, lastly, places in the hands of the Irish people ample means for const.i.tutional or extra-const.i.tutional resistance to Imperial, or in fact to English, power, and almost ensures the success of Ireland in any const.i.tutional conflict. The presence of the Irish members at Westminster saves, or proclaims, the nominal sovereignty of the Imperial Parliament; but their presence in truth makes this sovereignty unexercisable, and therefore worthless, and while increasing the apparent power ensures the real weakness of England.

FOOTNOTES:

[25] Thus little, if anything, is said in these pages on the const.i.tution of the Irish Legislature, though it is in several points, and especially in the character of the Legislative Council, open to grave criticism. Little, again, is said of the financial arrangements in their fiscal character. The topic is of the highest importance, but it must be debated in the main by experts. My remarks upon these arrangements refer almost exclusively to the way in which they may affect the working of the const.i.tution. The inclusion of Ulster within the operation of the Bill and the refusal to give weight to the demand of Ulster that the Act of Union should not be touched, are of course matters of primary importance. They ought never to be distant from the thoughts of any one concerned with the policy or impolicy of Home Rule; they dominate, so to speak, the whole political situation; they are constantly referred to in these pages; but they do not form part of the new const.i.tution so much as conditions which affect the prudence or justice of creating the new const.i.tution.

[26] Bill, 1893, Preamble, and clauses 33, 37.

[27] The language of clause 33 is vague, but, according to the best interpretation I can put upon it, its effect as to laws made for Ireland after the Home Rule Bill becomes law will be this: The Imperial Parliament will be able to pa.s.s enactments of any description whatever with regard to Ireland, and the Irish Legislature will not be able to repeal or alter any enactments so enacted by the Imperial Parliament which are expressly extended to Ireland. Thus the Irish Parliament might, it is submitted, on the Home Rule Bill pa.s.sing into law repeal the Criminal Law and Procedure (Ireland) Act, 1887, 50 & 51 Vict. c. 20.

But if, after the Home Rule Bill pa.s.sed into law, the Criminal Law and Procedure (Ireland) Act, 1887, were continued, or after its repeal by the Irish Parliament were re-enacted, by the Imperial Parliament, then the Irish Parliament could not repeal the Act or any part of it. Still clause 33 of the Home Rule Bill is much too vaguely expressed. What, for example, is the effect of an Act of the Imperial Parliament which is 'impliedly' extended to Ireland? If my interpretation of the clause is the right one, the meaning of the clause ought to be made perfectly clear; ambiguity in such a matter is unpardonable.

[28] See pp. 4-6 _ante_. This ambiguity underlies and vitiates almost every argument used by Home Rulers, whether English or Irish, in favour of Home Rule. English Home Rulers emphasise and exaggerate the extent of the control, or the so-called supremacy, which, after the establishment of an Irish Parliament, can and will be exerted in Ireland by the Imperial Parliament at Westminster. Irish Home Rulers, when addressing English electors, or the Imperial Parliament, often use language which resembles the phrases of their English allies. But a.s.suredly Irish Home Rulers, when addressing Irishmen, or when collecting subscriptions from American citizens of Irish descent, speak the language of Irish Nationalists and cut down the effective supremacy of the Imperial Parliament after the granting of Home Rule so as to make it consistent with the war cry of 'Ireland a Nation.' (Compare Cambray's _Irish Affairs and the Home Rule Question_, pp. 48-65.)

[29] Mr. s.e.xton, Feb. 13, 1893, _Times Parliamentary Debates_, p. 319; Mr. Redmond, Feb. 14, 1893, _ibid_. pp. 350-52; and April 13, 1893, _ibid_. p. 414. Compare especially language of Mr. Redmond, _Irish Independent,_ Feb. 17, and note that all the arguments for Home Rule drawn from its success or alleged success in the British Colonies imply that the relation of the Imperial Parliament to Ireland shall resemble its relation to the Colonies. See generally, debate of May 16 in _The Times,_ May 17, pp. 6-8.

[30] Feb. 13, 1893, _Times Parliamentary Debates_, p. 303.

[31] April 14, 1893, _ibid_. pp. 439, 440.

[32] Feb. 14, 1893, _ibid_. pp. 340, 341, 343.

[33] Bill, clause 12, sub-clause (3).

[34] This is the only sense in which the sovereignty of the Imperial Parliament is inalienable. This should be noted, because a strange and absurd dogma is sometimes propounded that a sovereign power such as the Parliament of the United Kingdom, can never by its own act divest itself of sovereignty, and it is thence inferred or hinted that there is no need for the Imperial Parliament to take measures for the preservation of its supremacy. The dogma is both logically and historically untenable. A sovereign of any kind can abdicate. A Czar can lay down his power, and so also can a Parliament. To argue or imply that because sovereignty is not limitable (which is true) it cannot be surrendered (which is palpably untrue) involves the confusion of two distinct ideas.

It is like arguing that because no man can while he lives give up, do what he will, his freedom of volition, so no man can commit suicide. A sovereign power can divest itself of authority in two ways. It may put an end to its own existence or abdicate. It may transfer sovereign authority to another person, or body of persons, of which body it may, or may not, form part. The Parliaments both of England and of Scotland did at the time of the Union each transfer sovereign power to a new sovereign body, namely the Parliament of Great Britain. The British Parliament did in 1782 surrender its sovereignty in Ireland to the Irish Parliament. In 1800 both the British Parliament and the Irish Parliament alienated or surrendered their sovereign powers to the Parliament of the United Kingdom. Compare Dicey, _Law of the Const.i.tution_ (7th ed.), note 3, p. 65.

[35] It may, I am quite aware, be argued that the presence of Irish representatives is not requisite for the maintenance of parliamentary supremacy. In theory it is not. An arrangement might quite conceivably be made (which if Home Rule were to be conceded might be the least objectionable method of carrying out a radically vicious policy) under which it should be distinctly agreed that Ireland should occupy the position of a self-governing colony with all the immunities and disadvantages thereof, and should cease to be represented at Westminster, whilst the British Parliament retained the right to abolish, or modify, the Irish const.i.tution. Such an arrangement would, however, make it perfectly plain that the sovereignty of the British Parliament meant in Ireland what the sovereignty of the Imperial Parliament now means in New Zealand. But 'the retention of the Irish members is a matter of great public importance' (at any rate in the opinion of Mr. Gladstone) 'because it visibly exhibits that supremacy'

(_i.e._ the supremacy of Parliament) 'in a manner intelligible to the people.'--Mr. Gladstone, Feb. 13, 1893, _Times Parliamentary Debates_, p. 306. See as to Home Rule in the character of colonial independence, _England's Case against Home Rule_ (3rd ed.), pp. 197-218.

[36] _i.e._ at the moment when these pages are written. What parts of the Government of Ireland Bill may or may not be officially deemed essential by the time these pages appear in print, no sensible man will undertake to predict. Mr. Gladstone's own language is most extraordinary. On the retention of the Irish members, which in the eyes of any ordinary man affects the whole character of the new const.i.tution, and essentially distinguishes the Home Rule policy of 1886 from the Home Rule policy of 1893, he uses (_inter alia_) these words: 'On the important subject of the retention of the Irish members I do not regard it, and I never have regarded it, as touching what may be called the principles of the Bill. It is not included in one of them. But whether it be a principle of the Bill or not, there is no question that it is a very weighty and, if I may say so, an organic detail which cuts rather deep in some respects into the composition of the Bill.'--Mr. Gladstone, Feb. 13, 1893, _Times Parliamentary Debates_, pp. 305, 306. This statement, with the whole pa.s.sage of which it forms part, is as astounding as would have been a statement by Lord John Russell on introducing the great Reform Bill, that he could not say whether the disfranchis.e.m.e.nt of rotten boroughs did or did not form a principle of the measure.

[37] Compare Report of Special Commission, pp. 18, 19.

[38] Under the Home Rule Bill of 1893 as sent up to the House of Lords, it would have been the 'constant presence.'

[39] The division of parties in an American State is governed not by questions concerning the internal affairs of the State, but by the questions which divide parties at Washington. State politics depend upon federal politics. 'The national parties have engulfed the State parties.

The latter have disappeared absolutely as independent bodies, and survive merely as branches of the national parties, working each in its own State for the tenets and purposes which a national party professes and seeks to attain.' See Bryce, _American Commonwealth_, ii. p. 194.

[40] _i.e._ in 1893.

[41] Mr. Morley at Newcastle, _The Times_, April 22, 1886.

[42] Now Lord Morley of Blackburn.

[43] _i.e._ in 1893, and as they continue to be in 1911.

[44] Mr. Morley at Newcastle, _The Times_, April 22, 1886. [Morley's argument applied primarily, no doubt, to the Home Rule Bill of 1886; its force, however, was infinitely strengthened as applied to the Home Rule Bill of 1893 by the change which retained eighty Irish members at Westminster with unrestricted powers of legislation. The tenor of his argument applies, I contend with confidence, to any Home Rule Bill which shall propose to give Ireland a real Irish Parliament led by an Irish Cabinet, and at the same time to retain representatives of Ireland as members of the British Parliament.]

[45] See p. 43, _ante_.

[46] See Motley's speech, _Times_, April _22_, 1886.

[47] See Bill, Third Schedule.

[48] This is at any rate the opinion of Mr. Redmond expressed in the _Nineteenth Century_, Oct. 1892.

[49] Bill, clause 9, sub-clause (3).

[50] The authors of the Home Rule Bill foresee the possibility of such an erroneous decision. They have carefully provided that such an error shall have no legal effect. Clause 9, sub-clause (4), 'Compliance with the provisions of this section shall not be questioned otherwise than in each House in manner provided by the House,' is in reality a provision sanctioning the grossest unfairness. Its effect is that a British Bill pa.s.sed solely by virtue of the Irish vote is, on its becoming an Act, good law, in spite of its having been pa.s.sed in violation of the const.i.tutional rule laid down in clause 9, sub-clause (3), that an Irish member shall not be ent.i.tled to deliberate or vote on any Bill the operation of which is confined to Great Britain.

[51] Compare Bill, clause 9, sub-clause (3), and sub-clause (4), which provides that 'compliance with the provisions of this section shall not be questioned otherwise than in each House in manner provided by the House.'

[52] 23 Geo. III. c. 28.

[53] The reader, in order to understand this account of the proposed const.i.tution of 1886, should remember that under that const.i.tution there were in effect, though not in name, const.i.tuted three different Parliaments, which must be carefully distinguished.

1. The British Parliament at Westminster, containing no Irish members, which was to legislate for Great Britain and for the whole British Empire except Ireland.

2. The Irish Parliament at Dublin, containing no British representatives, which was to legislate for Ireland, but which was not to legislate for England, Scotland, or for any other part of the British Empire, and was not to have any voice whatever in the general policy of the Empire.

3. The Imperial Parliament also sitting at Westminster, and comprising both the British and the Irish Parliament. This body would have corresponded nearly, if not exactly, with the existing Parliament of the United Kingdom, and was intended to come together only on special occasions and for a special purpose, namely the revision or the alteration of the Gladstonian const.i.tution. For the fuller explanation of the whole of this subject see _England's Case against Home Rule_ (3rd ed.), pp. 234, 238

Note that England gains little or nothing (as compared with what was offered to her under the Home Rule Bill of 1886) by the Imperial Parliament retaining the power to legislate for Ireland, for even under that Bill the Imperial Parliament (_i.e._ the Parliament at Westminster when consisting both of British and of Irish members) could legislate for Ireland.

[54] _Unionist Delusions_, pp. 6-9.

[55] The following pa.s.sage from the writings of a man whose words, whilst he was yet amongst us, Unionists and Gladstonians alike always heard with the respect due to sense, to ability, to knowledge, and to fairness, deserves attention:--

'In Mr. Gladstone's proposed measure of Home Rule' _[i.e._ the Bill of 1886]' the Parliament sitting at Westminster was no longer to contain Irish members. I hold this to be an essential feature of the scheme, an essential feature of any scheme of Home Rule. By Mr.

Gladstone's scheme, Ireland was formally to exchange a nominal voice, both in its own affairs and in common affairs, for the real management of its own affairs and no voice at all in common affairs. This is the true relation of Home Rule. As dependent Canada has no representatives in the Parliament of the United Kingdom, so neither would dependent Ireland have representatives in the Parliament of Great Britain. I am unable to understand why this provision, which seemed so naturally to follow from the rest of the scheme, awakened so powerful an opposition among Mr. Gladstone's own supporters. I believe the Irish have no wish to appear in the British Parliament. They wish to manage their own affairs, and are ready to leave Great Britain to manage its own affairs and those of the "Empire" to boot. It is very hard to see in what character the Irish members are to show themselves at Westminster. If they may vote on British affairs, while the British members do not vote on Irish affairs, surely too great a privilege is given to Ireland; it is Great Britain which will become the dependency. If they are to vote on "Imperial" affairs only, to say nothing of the difficulty of defining such affairs, it will be something very strange, very novel, very hard to work, to have members of Parliament who are only half-members, who must walk out of the House whenever certain cla.s.ses of subjects are discussed.' (E.A. Freeman, 'Irish Home Rule and its a.n.a.logies,' _The New Princeton Review_, vi. pp. 194, 195.)

Mr. Freeman's language proves that I have not overrated the essential difference or opposition between the Home Rule policy of 1886 and the Home Rule policy of 1893.

[56] It is styled in the Home Rule Bill 'an Executive Committee of the Privy Council of Ireland.'

[57] If there were reason to expect (which there is not) that the Home Rule Bill would pa.s.s into law, it would be worth while to consider carefully a question which has not yet engaged the attention of English statesmen: Is it desirable that under a system of Home Rule the Irish Executive should be a Parliamentry Ministry? The answer to this question is by no means clear. Both in the United States, and in every State of the Union, the executive power is lodged in the hands of an official who is neither appointed nor removable by the Legislature. The same remark applies to the Executive of the German Empire. In Switzerland the Ministry, or Council of State, is indeed appointed, but is not removable by the Federal a.s.sembly or Parliament. Arguments certainly might be suggested in favour of creating for Ireland an Executive whose tenure of office might be independent of the will of the Irish Parliament.

Ireland, in short, like many other countries, might gain by the possession of a non-parliamentary Executive. See as to the distinction between a parliamentary and a non-parliamentary Executive, _Law of the Const.i.tution_ (7th ed.), App. p. 480.

[58] See Bill, clause 14.

[59] This would apparently approve itself to Dr. Nulty, Roman Catholic Bishop of Meath. Of Mr. Justice Andrews he seems to have written that 'this Judge is a Unitarian,' and that it appears to the Bishop that 'the man who denies the divinity of our Lord is as incompetent to form clear, correct, and reliable conceptions of the feelings, the instincts, the opinions, and the religious convictions of an intensely Irish population as if they were inhabitants of another planet.' See _The Times_, April 3, 1893, p. 8, where a correspondent from Ireland purports to give the effect of a pamphlet by Dr. Nulty. The Bishop wrote, I suppose, with a view to Mr. Justice Andrews' opinions as to priestly influence at elections, but the Bishop's words suggest the inference that the government of a Catholic country ought to appoint Catholic Judges. Why should we be surprised at this? Religious toleration is not a doctrine of the Roman Catholic Church.

[60] See Home Rule Bill, 1893, clause 35, p. 214, _post_.