Chapter I—Old And New Constitution
The Home Rule Bill[5] contains a New Constitution for the whole United Kingdom.[6]
The Bill bears on its face that its object is 'to amend the provision for the Government of Ireland'; it is entitled 'The Irish Government Act, 1893'; it is in popular language known as the Home Rule Bill. But all these descriptions are misleading. It is in truth a measure which affects the government alike of England, of Scotland, and of Ireland. It changes, to some extent the form, but to a far greater extent the working, and the spirit of all our institutions. It is a bold attempt to form a new constitution for the whole United Kingdom; it subverts the very bases of the existing constitution of England.
The present constitution of the United Kingdom is marked and has long been marked by two essential characteristics, the one positive and the other negative.
The positive characteristic is the absolute and effective authority of the Imperial Parliament throughout the length and breadth of the United Kingdom.
To this characteristic Englishmen are so accustomed that they hardly recognise its full importance. A government may make its power felt in three different ways—by the action of the Executive, including under that head all the agents of the Executive, such as the judiciary and the armed forces—by legislation—and by the levying of taxes. Take any of these tests of authority, and it will be found that the British Parliament is not only theoretically, but actually and effectively, supreme throughout the whole of Great Britain and Ireland. The Cabinet is virtually appointed by the Houses of Parliament; the army, the judges, the magistracy, all officials who throughout the country exercise executive power in any form whatever are directly or indirectly appointed by Parliament, and hold office subject to the will of Parliament. Of the legislative authority of Parliament as regards the United Kingdom it is scarcely necessary to speak. Any law affecting the United Kingdom not only lawfully may, but can in fact, be changed by the Imperial Parliament. Of the unlimited legislative authority ascribed to, and exercised by, Parliament in the United Kingdom the Home Rule Bill itself is sufficient evidence; and the Gladstonian Ministry, at any rate, see no reason why Parliament should not within the course of a few weeks remodel the fundamental laws of the realm. The right to impose taxes is historically the source of Parliamentary power, and in all matters of taxation Parliament has absolute freedom of action from one end of the United Kingdom to the other; whether the income tax is to be lowered, raised, or abolished, whether some new duty, such as the cart and wheel tax, shall be imposed, whether the United Kingdom shall maintain free trade, or return to protection, how taxes shall be raised and how they shall be spent—all matters in short connected with revenue are throughout the United Kingdom determined and determinable in the last resort by Parliament alone.
Hence, as things now stand, no kind of governmental action in any part of Great Britain and Ireland escapes Parliamentary supervision. The condition of the army, the management of the police, the misconduct of a judge, the release of a criminal, the omission to arrest a defaulting bankrupt, the pardon of a convicted dynamiter, the execution of a murderer, the interference of the police with a public meeting, or the neglect of the police to check a riot in London, in Skye, or in Tipperary, any matter, great or small, with which the executive is directly or indirectly concerned, is, if it takes place in any part of the United Kingdom, subject to stringent and incessant Parliamentary supervision, and may, at any moment, give rise to debates on which depend the fate of ministries and parties. If there be such a thing as supreme actual and effective authority, such authority is throughout the whole of the United Kingdom exercised by the Imperial Parliament, not occasionally and in theory, but every day and in the ordinary course of affairs.
This exertion of actual and effective power by the Imperial Parliament throughout the United Kingdom is a totally different thing from the supremacy or sovereignty exercised by Parliament throughout the whole British Empire. As a matter of legal theory Parliament has the right to legislate for any part of the Crown's dominions. Parliament may lawfully impose an income tax upon the inhabitants of New South Wales; it may lawfully abolish the constitution of the Canadian Dominion, just as some years ago it did actually abolish the ancient constitution of Jamaica. But though Parliament does in fact exert a certain, or rather a very uncertain, amount of power throughout the whole Empire, we all know that the Imperial Parliament neither exercises, nor claims to exercise, in a self-governing colony such as New Zealand,[7] that kind of effective authority which Parliament exercises in the United Kingdom. The Cabinet of New Zealand is not appointed at Westminster; the action of a New Zealand Ministry as regards the affairs of New Zealand is not controlled by the English Government. Not a pennyworth of taxation is imposed on the inhabitants of New Zealand, or of any colony whatever, by the Imperial Parliament. Even the imposition of customs, though it has an important bearing on the interest of the Empire, is in a self-governing colony determined by the colonial, and not by the British, Parliament. It is the Parliament of New Zealand, and not the Parliament of England, which governs New Zealand. The Imperial Parliament, though for Imperial purposes it may retain an indefinite supremacy throughout the British Empire, has, as regards self-governing colonies, renounced, for all other than Imperial purposes, executive and legislative functions. To labour this point may savour of pedantry. But the distinction insisted upon, whilst often overlooked, is of extreme importance. We risk being deceived by words. The Imperial Parliament is supreme in the United Kingdom, it is also supreme in New Zealand. But the supremacy of the Imperial Parliament is a misleading expression; it means one thing in the United Kingdom, and another thing in New Zealand or in Canada. In the United Kingdom it means the exercise of real, actual, effective and absolute authority. In New Zealand it means little more than the claim to regulate matters of a distinctly and exclusively Imperial character. The distinction is vital. The essential feature of the English constitution is the actual and direct government of the whole United Kingdom by the Parliament at Westminster. No change could be more fundamental than a change which, in England, Scotland, or Ireland, reduced this actual authority to the ultimate or reserved sovereignty exercised, or rather claimed, by Parliament in Canada or in New Zealand.
The negative characteristic of the English constitution is the absence of federalism or of the federal spirit.
The spirit of institutions is as important as their form, and the spirit of English Parliamentary government has always been a spirit of unity.
The fundamental conditions of federal government are well known. They are first the existence of States such as the Cantons of Switzerland or the States of Germany, which are capable of bearing in the eyes of their inhabitants an impress of common nationality, and next the existence among the inhabitants of the federalised country of a very peculiar sentiment, which may be described as the desire for political union without the desire for political unity.[8] This condition of opinion leads to a division of powers between the federal or national government and the States. Whatever concerns the nation as a whole is placed under the control of the federal power. All matters which are not primarily of common interest remain in the hands of the States. Now each of these conditions upon which federalism rests has, as a matter of history, been absolutely unknown to the people of England. In uniting other countries to England they have instinctively aimed at an incorporative not at a federal union. This absence of the federal spirit is seen in two matters which may appear of subordinate, but are in reality of primary, consequence. Every member of Parliament has always stood on a perfect equality with his fellows; the representatives of a county or of a borough, English members, Scottish members, Irish members, have hitherto possessed precisely equal rights, and have been subject to precisely the same duties. They have been sent to Parliament by different places, but, when in Parliament, they have not been the delegates of special localities; they have not been English members, or Scottish members, or Irish members, they have been simply members of Parliament; their acknowledged duty has been to consult for the interest of the whole nation; it has not been their duty to safeguard the interests of particular localities or countries. Hence until quite recent years English parties have not been formed according to sectional divisions. There has never been such a thing as an English party or a Scottish party. Up to 1832 the Scottish members were almost without exception Tories; since 1832 they have been for the most part Liberals or Radicals; they have kept a sharp eye upon Scottish affairs, but they have never formed a Scottish party. The same thing has, to a great extent, held good of the Irish members. The notion of an Irish party is a novelty, and in so far as it has existed is foreign to the spirit of our institutions. Hence further, the Cabinet has been neither in form nor in spirit a federal executive. No Premier has attempted to constitute a Ministry in which a given proportion of Irishmen or Scotchmen should balance a certain proportion of Englishmen. English politicians have as yet hardly formed the conception of an English party. Not a single Prime Minister has claimed the confidence of the country on the ground that his colleagues were, or were not, English, Scottish, or Irish. That a Premier should glory in his pure Scottish descent is an innovation; it is an innovation ominous of revolution; it betrays a spirit of disintegration. If at the moment it flatters Scottish pride, Scotchmen and Irishmen would do well to recollect that it is a certain presage of a time when some Englishman will rise to power and obtain popular support on the ground of his staunch English sympathies and of his unadulterated English blood.
Now place the new constitution side by side with the old. Assume, as I do assume throughout this chapter, that our new Gladstonian policy works in accordance with the intentions of its authors.
The new constitution abolishes in Ireland the actual and effective control and authority of the Imperial Parliament.
The government of Ireland is under the Home Rule Bill[9] placed in the hands of an executive authority, or, in plain terms, a Cabinet, undoubtedly to be appointed by the Irish Legislature, in the same sense in which an English Cabinet is appointed by the British Parliament, or a New Zealand Cabinet is appointed by the Parliament of New Zealand.[10] For the first time in the whole course of history the administration of Irish affairs is placed in the hands of an Irish Ministry, in the selection of which the Imperial Parliament has no hand or concern whatever. Mr. McCarthy, Mr. Healy, Mr. Redmond, Mr. Davitt, any leader, known or unknown, loyal or disloyal, who commands the confidence of the Irish Legislature, or, as I will venture to term it, the Irish Parliament,[11] will naturally become the Premier of Ireland, and, together with his colleagues, will possess all the authority which belongs to a Parliamentary Executive. On the action of this Irish Cabinet the Bill places, with rare exceptions, either no restrictions at all or restrictions which are only transitory.[12] Speaking generally, we may lay down that, except as to the control of the army, if that be an exception, the Irish Cabinet will, when the constitution gets into full working order, occupy in Ireland the position now occupied by the British Cabinet in regard to the whole United Kingdom. The appointment of officials, the conduct of Irish affairs, all the ordinary functions of government will, with certain exceptions meant for the most part to protect the rights of the Imperial Parliament, be exercised by Irish Ministers responsible to the Irish Parliament; and the British or Imperial Parliament will, in the ordinary course of things, have no more to do with the administration of affairs in Ireland than it has to do with the administration of affairs in New Zealand. The Irish, not the British, Cabinet will decide what are the steps to be taken for the protection throughout Ireland of the rights of property or of personal liberty; the Irish and not the English Cabinet will determine by what means the payment of rent is to be enforced; the Irish and not the English Cabinet will decide what persons are to be prosecuted for crime; the Irish and not the English Cabinet will determine whether the means for enforcing the punishment of crime are adequate, and whether Ireland, or some part of Ireland, say Belfast, requires to be governed by means of a Coercion Act; the Irish and not the English Cabinet will decide with what severity wrong-doers are to be punished, and whether, and under what circumstances, convicted criminals deserve either pardon or mitigation of punishment.
It is patent that under the new constitution the Irish Parliament and, under ordinary circumstances, the Irish Parliament alone will legislate for Ireland. For the Irish Parliament can, subject to certain Restrictions,[13] pass any law whatever 'for the peace, order and good government of Ireland, in respect of matters exclusively relating to Ireland or some part thereof'[14]; and, subject to the same Restrictions, may repeal any law which, before the Home Rule Bill becomes law, is in force in Ireland. Under the new constitution the Irish Parliament and not the Imperial Parliament will, it is clear, as a rule legislate for Ireland. Under the new constitution the Irish Parliament may enact a Coercion Act, applying say to Ulster, or may repeal the existing Crimes Act. It may abolish trial by jury[15] altogether, put any restraints it sees fit on the liberty of the press, or introduce a system of administrative law like that which exists in France, but is totally foreign to English notions of jurisprudence.
Under the new constitution, again, the financial relations of Great Britain and Ireland are made the subject of an elaborate arrangement which may fairly be called a contract[16]. Ireland takes over certain charges[17], and speaking very generally, whilst all the duties of customs levied in Ireland are collected by and paid over to the Exchequer of the United Kingdom, as Ireland's contribution to Imperial expenditure, all the other taxes are, as a general rule, paid over to the Irish Exchequer. The justice or the policy of these financial arrangements is for my present purpose immaterial. All that need be observed is that the ordinary taxation of Ireland passes from the hands of the Imperial Parliament into the hands of the Irish Parliament, and that under the new constitution this arrangement is a settlement which the Imperial Parliament is morally bound to respect for a period of at least fifteen years[18].
In Ireland therefore the new constitution abolishes the effective exercise of authority by the Imperial Parliament in matters of administration, in matters of legislation, in matters of finance; every concern which affects the daily life of Irishmen will be under the control of the Irish Cabinet and the Irish Parliament. The relation of the Imperial Parliament towards Ireland will not be the relation which it now occupies towards the whole United Kingdom, and which under the new constitution it will still occupy towards Great Britain. The Imperial Parliament, it is true, retains considerable reserved powers; what are the effect and nature of these powers shall be considered in its due place. The matter upon which I now insist is simply this: the new constitution does in any case transfer the effective government of Ireland from the Imperial Parliament to the Irish Parliament. The authority reserved to the Imperial Parliament may be termed supremacy, or sovereignty, or may be described by any other fine-sounding name which we are pleased to use, but the fact remains unaltered that, as long as the new constitution stands and works, the Imperial Parliament will not govern Ireland in the sense in which it governs England and Scotland, and that such authority as it exerts in Ireland will be analogous not to the power which it now exercises there, but to the influence which it possesses in Canada or in New Zealand.[19]
The new constitution is at bottom a federalist or semi-federalist constitution; it introduces into English institutions many of the forms of federalism and still more of its spirit.
The Parliament sitting at Westminster becomes for the first time a Federal Congress.
Of its members, 567 will represent Great Britain; 80 will represent Ireland. The exact numbers are for the present purpose insignificant. The serious matter is that the Imperial Parliament undergoes an essential change of character. The British members will have, or are intended to have, no concern with the government of Ireland. The Irish members ought to have nothing to do with the government of Great Britain. On Imperial subjects the Imperial Parliament, or, to call it by its proper name, the Federal Congress, votes as a whole; on Irish subjects it does not vote at all; on British topics its British members only vote. The British and the Irish members, in short, alike represent, though in a very clumsy fashion, the States of a Confederacy. Though the fact be artfully concealed, we have under the new constitution already, in germ at least, a British State and an Irish State, a British Parliament and an Irish Parliament, and a third body consisting of these two Parliaments, which is the Imperial or Federal Parliament.[20]
The different features of federalism make their appearance though under strange forms.
The constitution imposes Restrictions on the powers of the State Governments and of the Federal Government.
This appears unmistakably in the limitations placed upon the authority of the Irish Parliament.
These Restrictions, be they wise or unwise, politic or impolitic, are perfectly in keeping with the constitutional arrangements of a Federal Government, but are absolutely unknown to the theory and practice of English parliamentary government.
The powers of the Imperial Parliament, it may be said, are under the new constitution subject to no limitations. In words this assertion is true, in substance it is false. If the constitution works properly the Imperial Parliament will clearly be subject to the terms of the Government of Ireland Act, 1893, or, in other words, of the Federal Constitution. This subjection is not absolute; it is moral, not legal, still it exists. A breach of the federal compact will be no light matter.
The constitution again, as one would expect under a federal scheme, provides for the enforcement of the compact.
In the case of Ireland this is manifest. The royal veto,[21] the power of the Courts, and ultimately of the Privy Council, to pronounce on the constitutionality of any Irish Act, and treat it as void if it is in excess of the authority bestowed upon the Irish legislature, the provisions for the legal determination of constitutional questions,[22] the arrangements as to the payment of the Irish customs into the Imperial Exchequer, the special and very anomalous position of the Exchequer Judges, are all attempts, whatever be their worth, to restrain the Irish legislature and government, or in effect the Irish people, from the undue assertion of State rights.
Restraints again are placed on the unconstitutional action of the Imperial or Federal Parliament. They are less obvious, but at least as real and effectual as the safeguards against the breach of the constitution by the Irish government or legislature. They are all summed up in the presence of the Irish representatives at Westminster. The only legitimate reason, if legitimate reason there be, for their presence is the guardianship of Irish rights under the constitution. It is for them to see that these rights are held sacred. No diminution thereof can take place without either the assent of the Irish members or else the existence of such a majority in the Parliament at Westminster as may override the protests of Ireland.[23] No doubt this is not an absolute security. But whoever considers the habits of English political life will conclude that, except in the event of the Imperial Parliament being resolved to suspend or destroy the constitution, there exists the highest improbability that any inroad should be made upon the privileges conferred under the new constitution upon Ireland. The security, though not absolute, is a good deal better than any safeguard given by the Bill that the State rights of Great Britain shall be duly respected by the representatives from Ireland. Assume, however, that the constitution works properly, and that all parties respect the spirit of its provisions. The result is that the new constitution forms a fundamental law, fixing the respective rights of Ireland, of Great Britain, of the Irish Parliament, and of the Imperial Parliament.[24]
The federal arrangements which, utterly unknown as they are to our institutions, form the foundation of the new constitution, are as nothing compared with the recognition and fostering of the federal spirit.
Great Britain and Ireland constitute for the first time in history a confederation. The difference or opposition of their interests receives legislative acknowledgment: each country is to possess in reality, though not in name, State rights; each must rely upon the constitution for the protection of these rights; each may suffer from the encroachments of the Imperial or central power. Ireland may complain that the Imperial Parliament by legislation, or the Privy Council by judicial interpretation, encroaches on her guaranteed rights. Great Britain may complain either that Irish members intermeddle in British affairs, and thus British rights are violated, or that the Privy Council so interprets the constitution that the prerogatives of the Central Government (which be it remembered must in practice be identified with the power of England) are unduly diminished. To imagine such complaints is not to assume that the constitution works badly. They are of necessity inherent in the federal system. There exists no federal government throughout the world where such complaints do not arise, and where they do not at times give rise to heart-burnings. It is well indeed, judging from the lessons of history, if they do not produce bitter conflicts, or even civil war. Let us take, however, the most sanguine view possible. Let us grant that both in England and in Ireland every minister, every legislator, every judge, is inspired with a spirit of perfect disinterestedness and absolute fairness. This concession, immense though it be, does not exclude vital differences of opinion. In our new confederacy, as in every other, there will arise the contest between State rights and federal rights, between the authority of the Central Government and of the State Government. In any case, a whole class of new difficulties and questions of a totally new description will make their appearance in the field of English politics, and call for the exercise on the part both of English and of Irish statesmen of extraordinary wisdom and extraordinary self-control. The new constitution in short, in virtue of its federal tendencies, will revolutionise the public life of the United Kingdom.
From whatever side the matter be considered we arrive at the same result. The Home Rule Bill is a new constitution; it subverts the bases of the English constitution as we now know it, for it destroys throughout Ireland the effective authority of the Imperial Parliament, and turns the United Kingdom into a federal government of a new and untried form.
The change may be necessary or needless, wise or unwise. The first and most pressing necessity of the moment is that every elector throughout the United Kingdom should, realise the immense import of the innovation. It is a revolution far more searching than would be the abolition of the House of Lords or the transformation of our constitutional monarchy into a presidential republic.
The next point to which the attention of every man throughout the land should be directed is, that the new constitution offered to us for acceptance is unknown to any other civilised country. Parts of it are borrowed from the United States; some of its provisions are imported from the British colonies, whilst others are apparently the inventions of the unknown and irresponsible Abbé Siéyès, who is the ingenious constitution-maker of the Cabinet. But the new polity as a whole resembles in its essence neither the American Commonwealth nor the Canadian Dominion, nor the Government either of New Zealand or of any other self-governing colony. It is an attempt—its admirers may think an original and ingenious attempt—to combine the sovereignty of an Imperial Parliament with the elaborate limitation and distribution of powers which distinguish federal government. The whole thing is an experiment and an experiment without precedent. Its novelty is not its necessary condemnation, but neither on the other hand is innovation of necessity the same thing as reform. The institutions of an ancient realm are not exactly the corpus vile on which theorists hard pressed by the practical difficulties of the political situation can be allowed to try unlimited experiments. We are bound to scrutinise with care every provision of this brand-new polity. We are bound to consider what will be their effect according to the known laws of human nature and under the actual circumstances of the time. It is vain to tell us that many of our institutions remain untouched. The introduction of new elements into an old political system may revolutionise the whole; the addition of new cloth to an old garment may, we all know, rend the whole asunder. There is no need for panic; there is the utmost need for prudence.